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LEGALLY SPEAKING Lawyers script new trend — doubt SC’s efficacy in dealing with a case and then argue that case

September 03, 2019 05:36 AM


Lawyers script new trend — doubt SC’s efficacy in dealing with a case and then argue that case

Till recently, the trend was that lawyers argued their cases and waited for the judgment. Most accepted the judgments of the Supreme Court, howsoever unpalatable they might be. But some minced no words in criticising a judgment if it went beyond the established cannons of law and precedents set by the SC.

Some prominent senior advocates have started a new trend. They first write articles in newspapers and web portals raising doubts about the SC’s efficacy to deal with a particular case. Coincidentally, the articles get published on the day the SC is scheduled to take up the case for hearing. And then, the very same lawyers appear before the SC to argue those cases.

Are these hearing-eve articles meant to soften the SC judges? Would it not be construed as interference in the administration of justice? Would it be wrong to term this an intellectually surreptitious method to attempt to influence the thinking process of judges? Lastly, would it not amount to an intrusion into independence of judiciary?

All would agree that 73-year-old senior advocate Rajeev Dhavan is one of the best in the field of constitutional law. In addition to being blessed with a sharp mind, he possesses a razor sharp tongue. Complex constitutional wrangles bring out the best in this mercurial lawyer who can hold a courtroom spellbound for hours with his analytical and argumentative skills.

Last week, he filed a petition in the Ayodhya land dispute case and requested the SC to initiate contempt proceedings against an 88-yearold retired education officer, who in a letter cursed that multiple physical disabilities would befall him as he had appeared for Muslim parties against deity Ram Lalla.

Dhavan said, “By sending that letter, the alleged contemnor has committed contempt because he is intimidating a senior advocate who is appearing for a party/parties before the Supreme Court and discharging his duties as a senior advocate.”

During the Ayodhya hearing, Dhavan on August 17 wrote an article critically commenting on the manner in which hearing in the case has proceeded. Many times in the course of the article, Dhavan clarified “I do not want to get into the whispering controversy”, and yet gave details of whispers raising doubts over the hearing process and hinting about possible machinations behind these.

He said, “I am not concerned with rumours over whether the Misra bench was trying to prolong the case because CJI Misra did not want to hear it and that the case was being deferred until CJI Misra retired.”

A little later, he said, “Once again, I do not want to get into the whispering controversy over whether Chief Justice Gogoi was also trying to prolong the case until his retirement or why the case went, or did not go, into super-acceleration. I also do not want to enter into any controversy as to what compulsions may have prompted this.” Yet again, he said, “Once more, I do not want to enter into the whispering controversy as to whether the five-judge bench (headed by CJI Gogoi) wanted to hear the case before CJI Gogoi was to retire in November 2019. But the change was dramatic.”

Dhavan’s writing gave wings to rumours and speculation, despite being written with the “I do not want to get into...” caveat. Is there a similarity between his contempt petition and his article?

If an octogenarian’s curses, borne out of religious frustration, becomes so intimidating to impede the performance of a seasoned lawyer, it is hard to fathom the effect of Dhavan’s article on SC judges.

When in the mood, Dhavan can be at his intimidating best in the courtroom. While defending contemnors Subrata Roy and two Sahara companies, his vituperative arguments had scalded a bench of Justices K S Radhakrishnan and J S Khehar. His speciality in heaping scorn through arguments was captured by Justice Khehar, who authored the judgment on May 6, 2014.

Justice Khehar wrote, “One wonders, what is it that a judge should be made of to deal with such litigants (Sahara), who have nothing to lose. What is the level of merit, grit and composure required to stand up to the pressures of today’s litigants? What is it that is needed to bear the affront, scorn and ridicule hurled at officers presiding over courts? Surely one would need super-humans to handle the emerging pressures on the judicial system.”

The practice of authoring hearing-eve articles was adopted by senior advocate Raju Ramachandran. On August 28, the SC was scheduled to take up a bunch of petitions challenging defanging of Article 370. The same morning, a newspaper article co-authored by Ramachandran termed the Article 370 cases as the ‘ADM Jabalpur’ moment for the SC, hinting that if the SC did not entertain the petitions, it could be sliding back to dark days of Emergency when it had buckled under government pressure to disregard citizens’ fundamental rights.

Ramachandran appeared for some petitioners before the SC in the Article 370 matter. He has come a long way in the last decade and a half. Despite the February 2002 post-Godhra riots tainting the BJP government in Gujarat, he had accepted the additional solicitor general post from the BJP-led NDA government in November 2002. Towards the later part of that decade, he became amicus curiae for post-Godhra related riot cases in the SC. Now, he is a prominent human rights lawyer.

The other day, when senior advocate Kapil Sibal was rushing to argue the anticipatory bail plea of former finance minister P Chidambaram, Ramachandran stopped him midway to wish him luck. The anticipatory bail plea arguments lasted for four days. Can Ramachandran recall which other litigant, facing a CBI or ED case, was heard by the SC for more than half an hour? Was their liberty any less important than that of Chidamabaram’s?

When the accused are as big as Roy or Chidambaram, they hire the best lawyers who possess an inexhaustible armoury of arguments. If the court fails to grant the lawyer the desired time and relief, then it conveniently gets termed as the “darkest day” in judiciary before TV cameras.

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