- Scope of bail hearing should be limited. It should be clarified that a Bail hearing is not a mini trial, and a statutory amendment should clarify so. Especially, given the conflicting judicial decisions on this point.
- Reconsideration of higher threshold for bail in cases under special criminal laws.
- Time-bound disposal of bail applications. Make it a statutory mandate.
- Alternatives to traditional monetary/property based bail (For instance, GPS Anklets, for instance, or revocation of passport, etc)
- Streamlining the process/safeguards relating to Look Out Circulars. Currently this rests on a very flimsy legal basis and is open to great misuse.
- Harnessing technology to ensure no prolonged detention and decongest prisons. For instance, in default bail period computation (167(2)Proviso)/436A CrPC, etc, let’s leverage tech/ICJS, and notify each judge on their system/phone – how long accused in their jurisdiction have been behind the bars, as under trials.
- Crease out issues such as legal permissibility of Anticipatory Bail to Juveniles.
- Statutorily regulate what conditions can be imposed at the time of Bail. Let’s clarify : Only those conditions which have a nexus with Bail can be imposed. (Aparna Bhat v. State, 2021) (So no more conditions of planting trees, distributing blankets, or Victim tying Rakhi on the Accused, and other bizarre conditions).
Tag: Bharat Chugh advocate
Visualise an examination in chief like building a wall (made up of the bricks of relevant facts and facts in issue).
Imagine cross examination as trying to punch holes in that wall by incisive questioning and exposing falsehood, inconsistent statements, impeaching the credibility and veracity of the witness, culling out admissions, etc. etc.
We all know that in cross examination one avoids journalistic-type questions such as : what, why, where, when, so as to not allow the witness to spin a story and explain matters. The witness has to be kept on a tight leash.
What you ask him instead (mostly!) are ‘leading questions’. Questions which have an answer implicit and which the witness can answer with a simple Yes, or No. (For instance, “At the time of the incident – you were standing near the railway line, right?”)
What is also often asked in cross examination are a species of statements called ‘suggestions’.
A suggestion is essentially the cross-examiner’s version/case on the facts at hand. For instance : “I put it to you that you are deposing falsely at the behest of the police because you are a stock witness?” or “I put it to you that you did not witness the incident because you were in a different city at that time”.
The witness, in all probability, denies these as incorrect suggestions and the answers are recorded as “It is wrong to suggest that I am deposing falsely as I am a stock witness …….” and “It is wrong to suggest that I did not witness the incident as I was…..”
What is the use of these suggestions – then, you ask?
Well, their utility in modern times is quite suspect as most of the times the witness denies these suggestions. However, the rationale of giving suggestions seems to be : to set out, for the appreciation of the court, the defence version/narrative in as many words. Pertinently, this may be important as there are no pleadings (strictly speaking!) in criminal trials and accused’s precise stand is not before the Court till the examination of accused u/s 313 CrPC or when and if the accused chooses to enter the witness box as a defence witness.
The requirement of giving suggestions in criminal cases should, therefore, be seriously considered as there is a line of judgments that says that if a factual narrative/version is not to put to the witness as a suggestion, or if prosecution version is not challenged/refuted by way of suggestions during cross examination, the same is taken to have been admitted and cannot be argued/relied upon at the time of appreciation of evidence. (Though there are contra judgments too!). But do read this with a caveat that giving suggestions sometime is dangerous too, especially if the Court freely allows the witness to explain (volunteering, as it’s called, where the witness does not only say ‘Yes’ or “No’ to the question but goes on to explain. This is an undesirable practice and should be controlled more. More on this some other day!). Back to how suggestions can be damaging. Picture this : if important and damning admissions have been elicited from the witness during cross examination, then giving suggestions at the end may give the witness an opportunity to explain (as the witness becomes wiser during the cross examination). So be very very careful while giving suggestions.
In civil cases suggestions are not considered necessary as the pleadings of the parties are already there before the Court where the respective cases of the parties are set out in great detail. So, suggestions, it seems, are not necessary in civil cases. (reliance may be placed on Sher Mohammad v. Mohan Magotra, 2013 SCC Online Del 2530)
- Sher Mohammad v. Mohan Magotra, 2013 SCC Online Del 2530.
- Tarun Bora Alias Alok Hazarika v State of Assam (2002) 7 SCC 39
PS : There is a contra view to Sher Mohammad also which may be found in Sa v. AA (22nd March, 2016 Judgment by a Ld.Single Judge, Delhi High Court), which, in turn, relies on earlier SC judgments to argue that a distinction between civil and criminal cases cannot be made and Sher Mohammad may be per incuriam.
Having said that, in my humble opinion, the view expressed in Sher Mohammad is the more sound and practical view, especially given the nature of pleadings these days in civil cases and the fact that parties’ testimony comes on an affidavit which is quite comprehensive. The requirement of suggestions may be a relic of the past as far as civil cases are concerned (when examination in chief used to take place in witness box) and would do little to help matters and greatly delay trials. Also, the fine distinction between failure to cross examine and giving suggestions should also be appreciated.
Thanks to Ms.Sushmita Chaudhury for the very insightful comment below
In the midst of hate, I found there was, within me, an invincible love.
In the midst of tears, I found there was, within me, an invincible smile.
In the midst of chaos, I found there was, within me, an invincible calm.
I realized, through it all, that…
In the midst of winter, I found there was, within me, an invincible summer.
And that makes me happy. For it says that no matter how hard the world pushes against me, within me, there’s something stronger – something better, pushing right backAlbert Camus
I wrote this in 2017 and this first appeared in Tariq Khan’s ‘On The Rise’. (https://www.fortuneindia.com/ideas/tis-the-season-for-much-reading/101982)
One has to always live forward, though life is best understood backwards. Or is it really so? Is one ever accurate or objective while connecting the dots of one’s life backwards? Any account of one’s own life or achievements vacillates between understatement (of one’s follies) to exaggeration (of triumph) and there is a real fear of hindsight bias (I knew-it-all-along!) also creeping in. However, I do not plead all this in mitigation of my guilt. ‘Objectivity’ is the ideal, even more so, in case of a judge.
Therefore, I have to hedge the ‘story of my life’ with this caveat: It falls for the reader to evaluate and sift the proverbial chaff from the grain; at all times; I shall claim no presumption of innocence or equities in my favour, and everything I say must be taken cum grano salis. I shall not be the judge today, but the judgment debtor, or the decree holder, depending on how you judge my life. With this, let us begin at the beginnings.
Does a man have anything to do with him being born? All our ancestors, on either side, right from Adam and Eve, had to sustain themselves till adult life, meet and pass on the genetic baton for millions of years for us to be born. Despite such astronomical odds, I was born on the 20th of June, 1989, in the soil of a lower middle class family, and in the challenging ethos of Social Darwinism; An out and out fight for survival. Nothing much to really fall back upon. I was the second child of my parents. My father was a practicing lawyer, whose heart bled for the poor. He loved being the lawyer for the damned and the underdog. Never a man of the world. He was one of the rare breed of lawyers who will not only do a case for free, but feed the client at the court canteen, to ensure that he does not go without a meal.
He was a refugee who had come to India at the time of partition, with five younger siblings in tow, and had taken up residence in the squalor of Sabji Mandi, Ghanta Ghar, in North Delhi. A predominantly refugee locality, with narrow labyrinthine lanes and open drains. He and his family were thrown out of the evacuee house allotted to them and some local property grabbers forcibly took the possession of the house. The case filed in court for recovery of possession was dismissed in-default for ‘non prosecution’ as the lawyer briefed by my father (who was still a teenager!) did not turn up in court on the date of hearing, despite having taken the fees upfront. Due to lack of means, they could not pursue fight this further. I shudder to think how my father must have coped with it. But he was not the one to give up. This first, and rather unfortunate tryst with the law made him vow to become a lawyer and fight for rights of the poor and to try and correct power imbalances, through the instrumentality of law. Years later, he will return to the same Tis Hazari Court as we shall see, armed with a law degree and a heart full of indignation at the monstrous inequities of life, experienced first-hand. This anger would go on to become the defining feature of his life. Each injustice rankled his soul, as it does mine.
Coming back, without a roof on their heads, my father and his family were constrained to take up residence with relatives; they survived on tattered hand me downs, left-over food. My father had to start working as a young child: he sold tea, oranges, did odd jobs at shops after school. However, he never left studying. He used to study under the streetlight in order to save electricity and also not to disturb the five younger siblings and mother sleeping in a one room run-down tenement. There was never a time in his life when he was not working. After completing school, he went-on to do his graduation in law. He kept working alongside. He eventually took a type-writer on rent and started sitting under a shed at Tis Hazari Courts and working as a typist. He joined Law Faculty, Delhi University and did a three year LL.B course, in the evening shift. He entered the courts once again, and this time as a lawyer.
Of Father’s illness, Early Life & Education in the School of Hard Knocks.
My father’s law practise was brought to a premature halt by a major brain stroke and paralysis in 1995, which left him hanging at an equidistance between life and death and practically bed ridden for the rest of his life. I was six years back then, and my elder sister ten. This destabilised our already tenuous financial position and pushed us to the brink of homelessness. Our school threatened to strike our names off the roles. It became hard to eke out that princely sum of Rs.1500/- per month that we used to pay as rent. The landlord asked us to vacate the one room matchbox of an apartment that we used to live in. However, throughout this, my parents put up a brave face and managed to keep us afloat. Both my mother and father were the ones, to borrow Kipling’s expression, those who could “watch the things they gave their lives to, broken, and stoop and build’s up with worn-out tools…and never breathe a word about their loss” My mother displayed great equanimity in times of loss.
First brush with the Law at 10.
Dad regained some of his health and started doing work from home. Me and my sister started assisting my father in drafting pleadings since he couldn’t use the typewriter himself, and as we could not afford a professional stenographer, either. So my first brush with the law came when I was around ten years, with me taking dictations from my dad and hammering them out on an old Remington. But this never brought enough money home and my father started going to Court, albeit with great difficulty. I started accompanying him to the court by the age of 13-14 years. The rules of attendance were considerably relaxed by my teacher, in view of ‘special circumstances’. I was not merely accompanying my father to the court and drafting pleadings, I was also doing the filing, getting affidavits attested, applying for certified copies, filing process fee etc, all from our ‘seat’ (a table, couple of chairs and a tin shed) near State Bank of India, Tis Hazari Courts.
Though the finances were tough, luckily we were always afloat (though perilously close). My father brought home our first computer back when computers were still luxury. I took to it with such fervour that it literally became an extension of me. I used it not only for court work, but started typing letters for people in the neighbourhood, printing brochures, repairing computers. This helped me earn that extra income, which I kept for myself and started spending on books and magazines. By the time, I was 15, I was thoroughly disillusioned with conventional schooling and thought of it as an unnecessary financial burden. I got to know of the possibility of school education from correspondence, usually for children who cannot attend school. After completing 8th standard (I stood 1st in 8th Standard), I dropped out. I filled the application form for 10th Standard from the National Open School. I frog leaped 9th Standard and gained a useful year in the process. This allowed me to assist my father during the day-time and also doing other odd-jobs for those extra bucks each month. My teachers, neighbours and class mates were taken-aback and did their best to dissuade me from the decision. I could see some people roll their eyes on the mention of ‘Open School’, however, that never kept me from doing what I thought was necessary.
I started going to courts almost everyday. I still remember, cycling my way to Pitampura Sub-Registrar’s office from our residence in Shalimar Bagh, to buy stamp papers for the affidavits that I used to draft for people in my locality. I used to charge Rs.100 for an affidavit, out of which ten rupees were spent on buying the stamp paper, ten rupees for the attestation by the notary public and five rupees for the notary stamp. I used to roughly save seventy-five rupees on one affidavit, which was great money for a 15 year old boy. I was living one day at a time. Like Sysiphus, driving the proverbial boulder up the hill everyday, only to start once again, the next morning. The same set of affidavits. Eventually, I also started designing websites, teaching kids basic computer courses, repairing and assembling computers, in order to supplement my income.
What appeared to be an apparent disadvantage at first, turned out to be a blessing in disguise. Being exposed to the hard realities of life helped me mature faster. Though I was missing out on school, I was taking lessons at the school of life.
During this time, I also developed a love for reading. My father encouraged me to read more and more. Even on a shoe-string budget, he would buy me books. We would go to the Daryaganj Sunday Book Market and buy books by the kilos. During this time, I also started going to the Delhi Public Library. By then, I had understood that studying was not only a source of pleasure and learning, but the only salvation. Knowledge was power. It had dawned on me that the most successful people in the world thrived on information asymmetries. I started on a reading frenzy and devoured whatever I could lay my hands on. A book to me, was the opportunity to get into somebody else’s skin, walk the town in it, and not just the skin of any person, but the best thinkers that the world has ever produced. With the power/money odds that life had stacked up against me, I found it easier to stand and fight on the shoulders of these giants. I started harvesting the knowledge that sat in the minds of these great men.
Law School Diaries.
Things went on like this and I completed 12th Standard, again from the Open School. I skipped 11th Standard. Due to these frog leaps, I was poised to enter law school at the age of just under 17. I joined the Faculty of Law, Jamia Millia Islamia and kept working in the evenings. I used to travel from my place in Shalimar Bagh, all the way to Jamia in South East Delhi, changing 3 buses in the process.
So more than the conventional schooling, I was schooled in the college of adversity.
During this time, I also became enamoured with finding a voice for myself. I worked hard on my language. I knew that words were the main tools of a lawyer. I didn’t go to a fancy English medium school, and for that reason, I was initially very hesitant but moot courts/debates helped me overcome that hesitation. I won the ‘Best Speaker’ in a couple of moots, and a legal quiz and that gave my confidence and self-belief a huge shot in the arm. Mine was one of the few teams picked from the world over for a SIAC International Construction and Infrastructure Arbitration Moot. A first in many respects for our college and there was no looking back after that.
Along with my batchmates, I also started an organisation called ‘Law Students Collective’wherein a couple of us came together to provide 24 x 7 free legal aid to the needy and the disenfranchised. We also collaborated with the Delhi Legal Services Authority on various legal aid projects.
I finally graduated in law from Jamia in 2011, at the age of 21.
Challenges : Confessions of a young lawyer
The legal aid projects, which were totally charitable earlier, did finally pay off well. After I graduated, these legal aid cases will go on to be my first briefs and help me enormously in my initial phase as an independent lawyer. All these clients could trust me (a rather untested 21 year old!) due to the good faith we had built by selfless legal aid work done over years. I got the opportunity to advise and argue in a huge variety of cases including: Conventional Criminal law issues, Bail Applications, Property related Injunctions, Landlord-Tenant, Trust and conventional civil and commercial matters. I also advised in a couple of cases on issues relating to Arbitration. I also appeared in a number of Writ Petitions and PILs. I also dealt with cases relating to Negotiable Instruments, Financial Fraud and Cheating. I had a series of clients who I advised on Matrimonial/Inheritance/Succession/Guardianship and Custody related issues. It was during this time that I started writing extensively on issues relating to conflict of laws and tendered advise in some very interesting and rather vexed issues of conflict of laws.
Armed with legal aid goodwill, publications and frequent court appearances (even if that meant doing it pro bono) ensured that I was never really without a brief.
On preparations, I personally followed the formulae of spending 70 % of my time reading the brief and atleast 30 % just thinking about it. By this mental exercise, the brief becomes ‘you’ and it prepares you to tackle any questions that may fall from the bench and answer them appropriately.
Memorable Court room experiences
I got the opportunity to argue my first matter before the Supreme Court in a Special Leave Petition impugning an order of the Punjab and Haryana High Court, on behalf of a group of small shopkeepers, who were apprehending demolition of their shops after the P & H High Court had ruled against them. The High Court had given 7 days time for them to obtain a stay from the Supreme Court, failing which the bulldozers would start rolling. They approached me a little late and 4 days had already elapsed from the date of the HC order. I burnt the midnight oil along with my Advocate-on-Record to draw the SLP. I was totally naïve to the mysterious ways of the Supreme Court Registry and was welcomed into Supreme Court practice with a long list of seemingly insurmountable objections. My Interim Application seeking stay of the High Court order could not be listed in time. It was the 8th day, the shopkeepers who had reposed their faith in an untested 21 year old lawyer were naturally very jittery. It was a question of their livelihood, their families; besides I did not want that unpropitious start to my legal career as that. Now, without the application being listed before the bench concerned, I proceeded to the bench and right when they were about to get up for lunch, mentioned the matter. As far as I can recollect, I started something like this: “Melords! I am a naive young lawyer, and this is my first brief before the Hon’ble Supreme Court. I am innocent to the ways of the Supreme Court Registry and just beginning to learn. I don’t have a Senior to guide me through all this. My IA (Interim Application), which merits urgent attention could not be listed on account of technical objections. If on account of these technical reasons, and my relative inexperience at dealing with them, shops of poor shopkeepers are demolished, it will be a huge travesty of justice”. Then, I went on to point the legal infirmities in the High Court briefly. The Hon’ble Judges smiled at my artlessness, admitted my SLP, granted me a stay for a week, ordered listing of my SLP, sitting well into their lunch hour. I was ecstatic. I did not need food and drink for days. I went-on to do a couple of other matters at the SC and won more than I lost. Needless to say, in my other cases, the argument were more legal than emotional!
I also enjoyed my stint at the trial courts immensely. Cross examining was something that fascinated me immensely. For aspiring lawyers, there is nothing that is a more challenging test of the fecundity of human mind than cross examination. It is an extremely cerebral exercise which puts to test an advocate’s ability to think on his/her feet, understanding of human behaviour, psychology, and life in general.
In my first go at cross examination (and I claim my relative inexperience at 22, in mitigation of my guilt), I ended up asking too many open ended questions and the witness got a chance to plug the loopholes in his case. However, the mistake did not turn out to be fatal as I succeeded in earning an exoneration for the client on the defence of ‘bar of limitation’ (only for him to be left to the inexorable laws of Karma later, for there is no statute of limitations in Karma’s court, but more on that some other time!). I let out a huge sigh of relief, and vowed to work on this harder on this. I started spending a lot of time in court watching the proceedings and senior lawyers cross examine.
The other cross-examinations that I conducted turned out to be far more successful. One of my favorite cases was a divorce case. I was appearing for the husband in that matter. The husband had filed a petition seeking divorce on the ground of mental cruelty. The main plank of his case was that his wife had implicated him in a false dowry harassment case. She had also levelled a charge of criminal breach of trust on the premise that my client misappropriated her gold jewellary. In support of her case, the respondent (wife) brought her brother to the witness box. The witness had come to depose as to how his wife was an ideal wife and it was my client who was a wife beating monster. I could see from the looks of this man that he was a chap of a volatile temper and one only needed some spark to his tinder and watch him burn, literally. I remember the first question that I asked him made him blow his top off. I made a suggestion to him to the effect : “I believe that you have sold all your sister’s gold articles and used the money received?’ I swear, I’ve never seen somebody angrier and more menacing. He took this personally (it was meant for him to take it personally) and started attacking me on could I ask such a question. I politely asked him to answer the question first. I rubbed it in by saying that he is not answering because that will expose him and the fact that he survives on his sister’s means. On a mad impulse, he ended up saying “This is incorrect!” I quickly followed it up by asking as to where are the gold articles. He answered that they are with his sister. I could have left it at that, but I went in for the jugular by suggesting to him that he was lying, otherwise he would have brought the gold articles to court. The witness quickly retorted that he will bring it to the court on the next date of hearing. It was clear as daylight by these answers that the allegation on my client as to misappropriation of gold articles was a false one. I was ecstatic when the client finally won on the basis of this extremely damaging admission. The word spreads fast and I ended up doing a lot of such matters, with differing strategies of course.
Practical Tips for a Budding Lawyer
Some of the principles that I could lay down for the guidance of a young lawyer in cross examination are:
- My dad used to tell me this: The best questions in a cross examination are the questions never asked. Always remember this.
- Never ask a question the answer to which you do not know yourself.
- Keep them short and sweet; stick to leading questions, and prevail on ‘yes or ‘no’ answers.
- and finally, prepare well, read up on the art of preparing cross examination binders and flow charts.
From the District Court to right upto the Supreme Court, I had great experiences. I always tried being prepared with my briefs and the possible questions that the bench could throw at me. The Judges were usually very encouraging and gave me a decent audience. I never disputed a point merely for the heck of it, and conceded fairly wherever it was required. This usually establishes a very healthy trust connection with the judge, and aligns their compasses; the judge is reassured that the counsel is here to assist the court in the discovery of truth and settling of correct legal prepositions, and not merely as the mouthpiece of the client.
From Bar to Bench
Though law is a jealous mistress, and practise of law leaves little time for anything else, I tried not to give up reading. The lawyer in me was inspired by great stalwarts at the bar like Clarence Darrow, Seervai, Nani Palhkiwala and more recently the likes of Fali Nariman, Ram Jethmalani and Alan Dershowitz. I also read great Judges like Justice Chinappa Reddy, Vivian Bose, Justice Krishna Iyer, Justice Bhagwati, Mukherjea, Hidayatullah, Lord Denning, Oliver Wendel Holmes, Lord Atkin amongst many others. I was greatly inspired by these stalwarts. I was fascinated by how learned these people were and their remarkable contribution to the evolution of law. During this time only, I decided that I will take the judicial service exam. I will not crib about the problems plaguing our judicial system but try and be the change. I started preparing for the examination, alongside my, by now decent, law practice. I coached at Rahuls’ IAS (headed by Mr.Rahul Yadav) at the mecca of coaching institutions at Mukherji Nagar, Delhi. Rahul Sir’s classes gave me a lot of conceptual clarity and the required bent of mind necessary to crack the exam. I started teaching anyone that I could find; more than the altruism of it, it helped me revise and internalize my own concepts. Teaching is one of the best ways to master a subject. During this time, I used to spend about 9 hours each day either reading myself or explaining concepts to my juniors from college or other aspirants.
With about a year of preparation, I took the prestigious Delhi Judicial Service Examination (in short ‘DJS’). The exam is an extremely challenging one. It is nothing but simulated judging. The exam pattern is such that does not incentivize learning by rote. The emphasis is on problem solving and analytical skills. The questions are drawn from hard real life cases. The test is not only of conceptual understanding and interpretive skills but also thinking on one’s feet insofar as, unlike a real court, one cannot adjourn the case either and questions have to be decided then and there. However, more than the final conclusion/decision of the case, credit is given for strength of reasoning and quality of expression. DJS is one of the most sought after exams in the country and also the most difficult. This can be gauged from the fact that of about 10000 people who took the exam, only 33 made it to the final list in my batch.
My advise to young aspirants would be to emphasize on an in-depth understanding of the ‘essence of laws’ instead of rote-learning. Selecting the right reading material is extremely important. As Plutarch said “the mind is not a vessel to be filled but a fire to be kindled”. Serious aspirants should learn to engage with law. Deconstruct and break each section, sub section into parts and sub-parts. Understanding the meaning and purpose of every law is also extremely important. An aspirant should question everything and temper it with the purifying stream of doubt. Students of law should forego the habit of willing suspension of disbelief and hero worship totally. One should strive to find one’s own truth. Be a thinking person. Aspirants should not read law mechanically, but understand and apply it analytically to practical and emerging legal issues. Students should also remember that every statute is only a ‘means to an end’ and never the end in itself, the end being ‘the object sought to be achieved by the law’. No law exists in a vacuum and every law has a social context. This social context needs to be remembered at all times while interpreting laws. Apart from this, aspirants should develop a flair of writing. In a closely contested competitive exam, articulation and rich expression can sometimes mean the difference between selection and failure.
Life as a young judge!
Bliss was in that dawn to be alive; to be young was very heaven.
I got to know about my selection as a judge on 12.12.2012. I was arguing away to glory in a bail application before the High Court. As soon as I walked out of the court room, I found out that I had not only cleared but also aced the exam, and that too in all the three successive stages. At 23, I was also the youngest judge in my batch. Once the feelings of jubilation sank in, I was paralyzed with indecision: I thoroughly enjoyed the practice of law, was doing fairly well (without a god father). I was equally fascinated with the idea of being a judge. My father, who had started off as a typist at Tis Hazari and rose to become a terrific lawyer, was ecstatic. I promised to him that I will take up judging and finally at the age of 23, I took the oath of office on 28th May, 2013. The taking of oath is an extremely evocative moment and the memory of it still gives me goosebumps, such is the power of this document. My oath read as follows :
“I, Bharat Chugh, having been appointed a judge, do solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established; that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of ability and knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the constitution and the laws. “
After taking the oath, young judges are made to undergo induction training for one year at the Judicial Academy. The training at the Academy is worth its weight in gold. The training programme at the Academy is extremely well crafted and encourages young judges not only to be adjudicators but thought leaders and dispensers of justice. The thrust of the academy is to create a motivated task force of young judicial officers who are working to uphold the Rule of Law and the ethos of our Constitution. The academy works as a think tank and training institute for newly recruited and existing judges. Not only the best legal minds in the country come and interact with the judges, but inductees also get to do a lot of hands-on judgeship assignments with senior judges. Extensive training is given in the skills of docket and case management and court craft. In my first year of judgeship only, I was permitted to preside over (under the tutelage of my seniors) various criminal and civil postings such as: Metropolitan Magistrate, Civil/Commercial Judge, Family and Guardianship Courts, Special Courts for Cheque Bounce cases, Special Court for corruption related trials and fast track cases. I had the benefit of training under the best judges in the system. Apart from the Delhi Judicial Academy, I also got to train at the National Judicial Academy and interacted with judges from across the world.
After the completion of one year of training, me and my batchmates were
poised to take up independent charge, with full zeal and enthusiasm.
My first posting was as a Metropolitan Magistrate (NI Act), Tis Hazari. I worked in my first assignment for one a half years. I conducted trial in various financial crimes with huge stakes running into crores of rupees. Mine was one of the heaviest courts in the district with over 5000 pending cases; I disposed of about 3800 cases in the first one and half years. I tried to implement new court management strategies, and ended up increasing my disposal quantitatively as well as qualitatively. During this time, I also kept working on articles/papers and also made a reference to the Hon’ble High Court of Delhi on a question of law relating to ‘Validity of ADR in Criminal Cases. The reference was entertained, amici appointed to assist the court and I received a commendation for the same from the learned judges at the High Court. A decision on this count is expected and would go a long way in easing the technical issues obstructing effective Mediation/ADR in criminal cases.
Apart from the above, I also held additional responsibility of the Crime Branch Court and as many as four police stations. I ended up conducting trials in a large number of criminal offences and deciding countless bail applications, amongst other magisterial responsibilities. This assignment gave me a great insight into the criminal justice system and trial processes.
During this time, I also acted, albeit for a brief while, as a Railway Judge, as an additional charge (colloquially ‘link judge’). I was shocked to find out that some very young people were routinely prosecuted for begging/selling tea on the railway platform under an anachronistic law called the Railways Act. This was nothing but ’Criminalisation of the Poor’. I was extremely perturbed. As catharsis, I gave voice to my own anguish in one of my poems called the ‘Confessions of a young judge’. I couldn’t let these prosecutions go on without a major dent on my conscience and tried seeking out a way-out from within the statute. The relevant provision in the Railway Act clearly forbade ‘begging/selling tea etc without license’. It was a rather unenviable position for a 23 year old judge to be in.
Inspired from Justice B.D.Ahmed’s remarkable judgment in Ram Lakhan v. State (2006), I dismissed many of these cases invoking the well-recognized general exception of ‘necessity’. The reasoning I adopted was: that a person was excused from the crime of begging, if he begs in order to save himself from starvation and a certain death. Writhing with anguish, I wrote that when the existing socio-economic set up did not provide these young men with other avenues, and they choose to sell honest tea as a means of livelihood, not out of greed or avarice, but the primordial instinct to survive and to be able to buy the next meal, the same cannot be a crime and was excepted by the defence of necessity.
In 2016, I took over my second assignment as ‘Metropolitan Magistrate (Traffic)’ and was entrusted with the task of trial of traffic related offences. Here I was faced with ‘imprisoners dilemma’. On whether to send a person to jail or not. Deterrence versus Reformation. Societal Defence versus Second Chance. This posting allowed me to work on sentencing innovations, and I passed community service orders in a variety of cases. This served a twin purpose, firstly : it prevented a first time offender from being exposed to the deleterious effects of jail life and stigma of a jail sentence, and at the same time, ensured that he is not let off scot free and contributes to the overall health of the society, in some way or the other, as a useful citizen.
I finally took over as a Civil Judge in Tis Hazari and had a fascinating tenure. I faced some of the most vexed legal questions relating to property/commercial/contract law during my tenure here. Whereas criminal side (where I had been for long) required one to think on his/her feet, civil law was relatively relaxed but extremely challenging all the same, considering the wide gamut of issues that one is faced with. Here, I was assisted by some very competent counsel, who used to appear before me and taught me a lot.
A judge’s life is anything but easy. It is a life of reticence with minimal social contact but extremely rewarding if one likes to grapple with legal issues, read and write. A solitary life is but a small price to be able to perform the divine function of administration of justice. I thoroughly enjoyed my phase as a judge. The sheer breadth of the experience that one gets while deciding hundreds of cases and applications on both the criminal and civil sides, is unparalleled.
Role of a Judge
As a judge, through my judgments and articles, I also tried making a case for a more pro-active trial judiciary. I have always been more tilted to a more inquisitorial system, where the judge is not just an umpire but a referee, who runs with the parties, shows them cards, ensures that the parties play by the rules. The judge as an ‘impassive inscrutable face of sphinx’ is a passé notion. A judge ought to understand that contests are hardly fair and level -playing-field an illusion. In most cases, one party is sometimes at a disadvantage due to lack of adequate legal representation, for instance – a poor accused. The prosecution sometimes is disinterested or plain bored, and needs to be wacked into doing their duty. The trial and the probe of truth is too important to be left to a dialectical clash and the judge has to make meaningful interventions to ensure due process.
It is heartening to note that judiciary is moving away from that traditional passivity and ‘pursuit of truth’ has reaffirmed itself as the primary goal of the entire justice system.
Managing personal and professional life
Though, as Justice Joseph Story said “The law is a jealous mistress and requires a long and constant courtship. It is not to be won by trifling favors, but by lavish homage.”, it becomes equally important to have a healthy work-life balance if one plans to sustain the passion for long. Long work hours, postural issues, all-nighters, endless caffeine can take a toll on one’s health. One needs to ensure that one’s health is not neglected. One also needs to cultivate a hobby to ensure some vibrancy in life since law sometimes can be extremely dry too. I’ve personally found solace (and catharsis!) in poetry and music. I’ve found a great combination of both in ‘spoken poetry’; a potent mix of poetry coupled with the power of the spoken word. I have lately been trying my hand at it with my own as well as other writers’ poems. My favorite authors are Neruda, Rumi, Kipling, Eliot and Seth. Apart from my love for poetry and Sufi music, I look forward to, and enjoy my monthly game of football too.
And, Back to the Bar : Once a lawyer, always a lawyer
Nothing compares to the high that one gets on winning a tough case, cross examining a recalcitrant witness and winning a case on a nuanced legal argument based on interpretation. I missed my lawyering days terribly whilst on the bench and this led me to take a decision that was not easy, by any means. After three and a half years, and with a touch of immodesty, a rather successful stint at judging, I once again took the path less travelled and in a leap of faith, decided to return to the practice of law after resigning from judgeship.
Life as a litigator !
I joined Luthra and Luthra Law Offices, Delhi as a Counsel/Managing Associate (Litigation Team) in December, 2017. The palette has been extremely vibrant; just months into the profession, I have had the occasion of lending my counsel in variety of criminal and civil cases. My team also succeeded in obtaining a discharge for our Clients, who were one of the accused persons in the 2g (spectrum allocation) trials. This order marks the first discharge in the high profile 2g cases and is truly a one of its kind order. This has led to us dealing with a lot of White collar crime/Corporate Criminal Liability issues. I have tendered advised to entities in India and abroad on a wide gamut of issues relating to Prevention of Corruption Act, Public Procurement and Money Laundering Laws.
Our team is also assisting many international organizations in tackling issues relating to the Foreign Contribution Regulation Act and criminal prosecutions under that Act. In this, I have also had the opportunity to work with magic circle law firms on some questions relating to conflict of laws (private international law), Indian Criminal Law and Extradition. I am also assisting one of the biggest media houses in India in their defense of criminal prosecutions pending against them.
I am also representing Clients in Constitutional matters relating to public procurement and judicial review of tendering process. I recently argued a case against the Ministry of Defence and obtained a stay on floating of fresh tender relating to purchase of Bird Detection Radar Systems by the defence forces. In this case, acting on behalf of our client, we had challenged the wrongful revocation of earlier tender as arbitrary and unfair and sought restoration of the same and quashing of the fresh tendering process.
Our team also recently represented a major industrial house in a land acquisition related litigation at the Supreme Court.
I have also had the chance of representing clients in various domestic and International Arbitrations emanating from MoUs/Share Sale and Purchase Agreements, amongst other contracts.
I have also represented the Firm in various legislative discussions and consultations under the mentorship of my Partner Mr.Anirban Bhattacharya (also featured in the book!), Senior Partner – Mr.Vijay Sondhi and last but certainly not the least, Managing Partner Mr.Rajiv Luthra, who have trusted me with extremely important assignments, notwithstanding my relative lack of experience.
Since a part of me feels immensely guilty about leaving ‘judgeship’ and all the opportunity of doing good that comes with it, I try doing as much of pro-bono work as I can, with a view to continue to give back and contribute to the society. Fortunately, Luthra and Luthra has a huge pro bono practice and pro bono work is greatly rewarded here at the firm.
Apart from my legal practice, I have also been actively engaged in mentoring ‘future judges’; it gives me immense satisfaction to be teaching and interacting with these aspirants who will go on to don the mantle of young judges in the near future. To be honest, apart from the love of law and teaching, I also get to live my judging days through my students, in some sort of ‘vicarious living’. This means the best of both worlds for me since I was forever torn in my desire to be a judge and a lawyer both, and by this, I get to live and ‘judge’ through my students, while at the same time practicing law myself. Apart from lectures on substantive and procedural laws, I have also addressed students across the country on ‘How to be a Judge’ and this work gives me great satisfaction and the sense of having paid my dues in life, in a fair measure.
At 27 and merely 5 years into the profession, I have had the great fortune of donning the hats of a judge, teacher and a lawyer already. I am extremely psyched about the litigation scene in Delhi and look forward to some great work in the future. Having fulfilled the promise made to my father (being a judge!), I have certain goals that I have set for myself. Whether I will be able to achieve these or not is something that only time will tell. The path that I have chosen and the decisions that I have taken may appear to be strange, but let me assure you ‘there is a method to my madness!’
I wrote this in 2017 and this first appeared in Tariq Khan’s ‘On The Rise’. (https://www.fortuneindia.com/ideas/tis-the-season-for-much-reading/101982)