LCI interview with Senior Advocate Sanjay Hegde

“One learns law through life and on the job”

Mr. Sanjay R Hegde, is a Senior Advocate at the Supreme Court of India. His illustrious career began in 1989 while working as a lawyer with M/s Mulla & Mulla & Craigie Blunt & Caroe Solicitors. He soon moved to Delhi to practice in the Supreme Court in the Chambers of Senior Advocate Mr. G. Ramaswamy.
He has been part of several high profile cases and appeared for the Government of Indian before an international arbitral tribunal. From 1996 to 2004 he was also on the Union of India’s arguing panel before the Supreme Court. He makes a regular appearance on television panels and writes as a columnist for several newspapers.

In this interview, he talks about a myriad of topics:

• Tracing his journey as a young lawyer back in the 80s and his career choices.
• His opinions on miscellaneous topics such as Pendency in India courts, legal journalism, why he feels it is justified that more and more law students are moving away from a life in litigation.
• His advice to law students, general public and young lawyers.

As a youngster, why did you decide to study law? At what point did you realise that it was your call?

Frankly, I didn’t know that it was my call. I came from a background of lawyers. My father was a lawyer. His uncle was also a lawyer. There was indeed a certain amount of legal background involved but, at the same  time, I was not sure that I was going to become a lawyer. Infact, I even wrote the civil services exam, qualified, and got a posting. It was not the All India Services, and I kept that on hold while I came into the legal profession. I liked it better here, so I didn’t go back.

How would you describe your time at law school?

To be very honest with you, in our times we did not have the concept of “law schools”. I come from a generation where I think I missed Bangalore Law School(NLSIU) by year or two(NLSIU was established in 1987). Law was often a course of study which you wandered into for various extraneous reasons. People used to come to law college in evening classes so that they get an extra degree and then use it to get an increment in their jobs. People used to come to law college simply because it was 3 more years of study in which they could retain a seat in their hostels. The strangest reason I have of  someone who went to law college was my old quizzing partner who later became a professor of management, he went to law school simply because that meant 3 more years of quizzing! So, law schools were not serious in our times and also to be candid with you, I studied in Bombay – The Govt. Law College which my wife went to, the people there were more serious about law. I went to K.C Law College where after the 1st year’s lectures, I did not go much to lectures. As long as you paid your fees, as long as you attended the exams, you got your degrees. And, it is now that the Bar Council has brought in compulsory attendance and timing – seeing my children struggling with attendance and I see generations of interns struggling with attendance. This was all not so in our days. One learnt law through life and on the job.

At what point of your law school journey, did you realize that litigation was what you wanted to do considering the multitude of avenues which open up to a law graduate?

I didn’t realize that I was a litigating lawyer. Again, I told you that we were rather very casual about law school education and the joke was that after your graduation, if you found nothing to do, you become a lawyer. And after a certain passage of years, if you still found nothing to do, you made your way into the judiciary. Yes, during law college, I did go to courts with my father and I did observe courts. I didn’t know at that point of time whether I was a litigating lawyer or not. Somewhere, imperceptibly I became a litigating lawyer probably 2 years after I became a lawyer. The first couple of years after becoming a lawyer, I worked with Mulla & Mulla in Bombay and then I also cleared the civil services, I came over to Delhi and I joined the then Attorney General of India. It was while instructing him that I realized that from being a puppet master, that one day I would be on the front row.

So, as you mentioned that you started your career with Mulla & Mulla in Bombay and had been there for 3 years, what prompted the shift to Delhi and what was the difference in practice culture in Delhi as compared to Bombay?

Mulla & Mulla is more like a corporate law firm. So, though I often wanted to go to the Court, my seniors would rather insist I seat in the office and draft – that does happen in most law firms. I shifted to Delhi primarily because I had an opportunity to work with the then Attorney General Mr. G. Ramaswamy, He died early, in his 70s, but he was a lawyer whom Ram Jethmalani had said that if Ram Jethmalani was in trouble, he would go to Mr. G. Ramaswamy as a lawyer. This was the interview which I read and then when I got through his chamber, I decided that I should give it a try.

So, moving onto some of your cases, you were part of the Nirbhaya case as an amicus curiae. How difficult is it to do your job when your moral compass is regularly questioned and you’re vilified by the media?

Quite frankly the media could have vilified me more but because I was already in the media probably, I got off lightly. However, it was difficult especially when you saw the mother in court; and her parents in court and you could see the family. Very often at the appellate stage in the Supreme Court ,there are only files at the end of the process. This however, was a rare case where there were actual people. At the same point of time, I hold it as an absolute holy thing that a man is entitled to the best defence when he is fighting for his life. I often give this example that Ajmal Kasb was shot in the process of capture. Nobody questions the doctor who saved his life by operating on him, yet people said things about the lawyers who appeared for him. In both circumstances, the same job is hindered – an attempt to save a life. And I also hold that human rights are for all – we give it not because the accused is human, we insist upon it because we are human. We have to ensure the highest standards of the defence before a final decision is left to the judge to take it one way or the other.

Sir, you are a designated senior advocate, how do you see it as any different compared to a normal advocate? How do you manage to handle the responsibilities that come with the role?

A senior advocate basically crunches the case and tells the instructing advocate what is likely to happen. Infact to a certain sense, he pre-judges the case. He gives you the range of possibilities where a case can go and then puts the best possible face on it before the judge and leaving it on the judge to take the ultimate call. I compare the difference between a senior advocate and a handler of litigation to; in medical terms, the difference between a surgeon who comes to operate for a day vs. the general practitioner who is more in touch with the patient – the one who knows the entire history and the one who handles the patient. The surgeon is known for his skill in that brief period of time in the operating room. He doesn’t see the patient, he sees the case.

So, do you think that legal education in India is heading towards the right direction? A lot of young lawyers tend to choose the swanky corporate lifestyle of firms over toiling it out in the initial years in litigation.

I don’t blame them at all. I think my entire legal education must have cost my father a few thousand rupees. Today, in the topmost law schools it costs in the range of about 8 lakh a year. Many of them come from middle class families and have taken a student loan. It is all very right to glamorize litigation but in a system where litigation does not pay well, especially in the early years, I would not stigmatize anyone who opts for a corporate job and  opts for security because I believe it was Mr. Hiralal Sibal – father of Kapil Sibal who once said that “you will be a good lawyer only if you live long enough,'' if you go hungry in the early years, you are not likely to continue as a lawyer. While there should be a hunger for work, deprivation for the sake of deprivation, I will not advocate.

The pendency of the cases is massive issue in India as of now. The latest statistics said that in 2018, there were almost 3 crore pending cases in the Indian Courts. So, what are your suggestions to tackle this issue?

I don’t think that these numbers will come down. On the contrary, they will go higher because as your populous gets educated and more and more people resort to law, the courts are bound to come under it. The only way I see is to ration court-time and to ration court-time means to make it an effective hearing before the court, almost all the time. Most of the court’s time is taken with just deciding on adjournments as to what would be the next convenient date of judgemental decisions and things like that. You should be in a position in your system where the matter goes to court only after the issues are totally boiled down and as many non-contentious things are totally agreed upon. Why should both the parties not have an agreed statement of facts and then come down only to a statement of facts and decisions – then ask for the decision of the judicial mind on that. One of the ways of rationing court’s time is to make it very expensive. In the US, there is often a dissent centre against taking matters unnecessarily to court. Depositions are taken in attorney’s offices. The losing side has to pay the winning side’s cost. The very fear of costs often forces settlement. Lawyers on both sides have reasonable ideas of the strengths of each other’s cases and even if a lawyer thinks that he may ultimately win in court, he is more inclined to settle because the flip side is that if he loses or makes a mistake in court, then it will be penalized very heavily in terms of cost. His own clients and the insurance agencies – the insurance companies which often under write a lot of litigations are also in favour of settlements. We are not a settlement culture – almost every issue is litigated where it doesn’t need to be. This applies to civil cases but in criminal cases as well, we should be more focussed on outcomes – a person who is accused for the first time – why should we keep them in jail for a long time and wait for his turn for a trial. If he is willing to plead guilty to a lesser offence and a lesser type, the prosecutors must have discretion to agree to that and finish off the matter without wasting the court's time. Here again, may be the elected prosecutors would be a better remedy, rather than government appointments often on political grounds. Prosecutor in discretion is also not very greatly favoured in this country. I think that we must really learn to maximize the use of our court time. The one way to do it is that if anyone has wasted the court time, there has to be an actual due financial cost for that.

As you are such an experienced lawyer, how does a lawyer develop his style of arguments in court?

I often felt that the true quest for a young lawyer is to find his own voice. You find your own voice and then the market will find a use for. There have been ranting, rasping lawyers who knew their subject and yet they were all accepted by the market. But anybody who tries to argue in a false voice or tries to copy someone often falls by the wayside. An example I often give is after Mohd. Rafi died, there were many Mohd. Rafi clones but none of them really took off. Find your own voice and pitch it – the way you want. I also hold that debates, dramatics must be more encouraged by the law schools than mere Moot Courts because an arguing lawyer gives a performance. He is selling an idea – the client’s case to the judge and convincing the judge as to why an order in favour of his client is the best possible version of justice that the judge can deliver. So, here the entire gamut of both literature and drama come into play as you would have to know what to put first, how to pitch it. Many a good cases lost by a bad opening and many bad cases sometimes sail through if it is properly packaged. I would advise the young lawyers if they are not watching good courtrooms to actually go and watch good theatre. Delhi is one of those rare cities where watching a play costs much less than watching a movie. Do go to Mandi House, do go to the theatres around that, watch theatres, participate in it. I can tell you that Kapil Sibal was the head of Shakespeare Society in St Stephens, Rajiv Dhavan spent a lot of time in Allahabad acting and directing plays. The sense of theatre is a great dimension.

Sir, we are a huge community made up of predominantly 3 sections - the general public, young lawyers as well as a lot of law students. So, what advice you would give to them individually?

As far as the general public is concerned, the knowledge of law is often helpful and more importantly, the knowledge of legal process helps you become a logical thinking individual and whenever anyone intimidates you, you can always say no, I think you are wrong – the law says this; and insist on them recording something if they are likely to go wrong in their application of law. As far as young students are concerned, my advice is slightly contrary. The possession of a law degree is again a useful life skill but not every possessor of a law degree necessarily becomes a lawyer, corporate or litigation lawyer because, quite frankly, the outcomes of a legal dispute in this country are often not very great. We are not very productive as a system. It’s a rare civil case which ends up in a huge financial change in the client’s life. As far as criminal cases are concerned, most people are glad just to see the end of it. So, given the fact that public at large attempt tend to avoid the legal system when possible, the country is not yet at a stage where it can accommodate the huge mass of lawyers that is now coming out. Particularly, after the decline of engineering as a choice of subject, a lot of middle class students are getting into law schools. I have told my own children that just because you will get a law degree does not make for an automatic assumption that you will become a lawyer. If you find your own path thereafter or in the course of your studies, go for that. I know many people with law degrees whose fathers are lawyers who became novelists, who have become travel writers, who have become chefs. For the law students, if you think that your path is only as a lawyer, work on it but don’t shut your eyes to other possibilities. Quite apart from all these, travel writers, chefs and all that, you must remember that it was a young lawyer from a law school who headed Indigo Airlines recently, lawyers have gone out to be very successful businessmen. There are several niche areas of law which are relatively underrepresented and there was somebody I knew who was doing art law, only to realize that there was a huge market there. So, don’t narrow focus in the early years. Go through as much as life as possible, have as many experiences, meet as many people. Even if you become a litigation lawyer later, all that will be useful to you. And, as far as young lawyers are concerned, my best advice is – go wherever there is work. Find yourself somebody who is a busy senior who has a lot of work and is slightly incompetent. Do not go necessarily for a big name because this is something which I again learnt from a senior lawyer who in his terms went to join the biggest lawyer of his days who was Late Mr. Ashok Sen.

Ashok Sen told him that I am senior for you, go and join Siddharth Shankar Ray who was then upcoming; join somebody who is about 10 years elder to you. When that person begins going up the ladder in law, he will take you along. So, if you find someone who is about 10 years further in the profession with you, who has got a lot of work and who needs help; step up to help – that will be the big thing of your career.

Sir, interestingly you mentioned that there are niche areas of law where avenues are opening, and as you write a lot of articles in “Hindu” and other dailies, what do you think of legal journalism as a profession going ahead?

Legal Journalism is an under developed area currently. But people are still beginning to define it, we do not yet have an Adam Liptak  or Dalia Lithwik Slate or somebody like that. We do not have a court TV in India, yet there is always a fascination with the law courts, right from the days of the Tilak Trial which was reported extensively from the Bombay Press or then you had the Nanavati case or any of the other great cases. So, if somebody is insightful about the legal process and where things can go from there, I think there is a market, but journalism itself is such a process of flux that you have 24*7 news television and you have internet portals where people are constantly on the ball. I think there is an interesting churn but there will be more areas emerging out there.

Any concluding remarks for the LAWyersclubindia fraternity?

I am glad that Lawyersclubindia is trying to talk to a lot of lawyers and the benefit of their experiences is being sort by others. No two paths will be the same but it is hoped atleast in my case, that people learn from my mistakes.

Interview conducted by Sidharth Nair, Assistant Editor - Lawyersclubindia & Rashi Chandhok, Guru Gobind Singh Indraprastha University