I’m glad that paying Ram Jethmalani’s bills for defending Arvind Kejriwal, the Chief Minister of Delhi, in the defamation case filed by Jaitley has become hugely controversial. Good that it has; for ordinary human beings like us.
I have nothing to say on the merits of the present case. But as one who has suffered on account of the inherent nature of litigation, I do have certain concerns that are of wider relevance.
Litigation was used against me, on a big scale, during my tenure as Principal of St Stephen’s College, Delhi. It was part of the many-pronged attack mounted on me by those who had the means and the resources to do so.
Cases after cases were piled on me on the premise, quite rightly, that I would not have the means to defend myself out of my personal resources. Even middle-level legal help is astronomically beyond the reach of the common man. Punitive litigation, wherever it happens, is encouraged by the asymmetry between the aggressor-as-litigant and the target-as-defendant. Where the resources are matched on both sides, the margin for such litigation remains minimal.
The controversy about who should pay for defending Kejriwal is, from our point of view, superfluous. As citizens it is of no consequence to us. What concerns us is the following:
Why should legal procedures and practices be such that the outcome is substantially influenced by who appears for whom? I remember an instance in which Harish Salve appeared for me, pro bono, in a case in Delhi High Court. This was not known to the complainants in advance. The moment Harish was spotted in court as the defendant’s lawyer, the morale of the other party sagged and an adjournment was sought.
The spate of court cases against me in person began to decline when Rajiv Nayyar, who has a formidable reputation in Delhi High Court, volunteered to appear for me pro bono. The fact that I was not helpless was a strong disincentive to various groups who were, till then, trigger-happy litigants against me.
What if I did not have the good will of a Rajiv Nayyar or Harish Salve?
I would not have survived in office. Would not have been able to afford my defense, on prevailing rates and fees, even for a few hearings. Nor could I have expected St Stephen’s College to foot the bill. I would have been smoked out of my office using litigation as the fire under my seat.
There is this reality, my friends, of litigation being used as a weapon of coercion and intimidation. This is my experience.
What is it that makes such an abuse of the majesty of law possible?
First of all, the highly technical nature of legal proceedings. Try as hard as I might, I cannot understand why establishing the truth of a matter has to be so sophisticated and mind-bogglingly technical that it renders even highly educated citizens feel stupid and impotent. Truth is one thing and court-craft, quite another.
I have attended court sittings. When my case is argued, I feel as though I am a stranger to my own case. My lawyer goes from doctrine to doctrine, from precedent to precedent. The facts of the matter that, in my experience, are central become superfluous and vice versa. A few sessions into my case, I won’t have the slightest clue if I am winning or losing! I often wonder if the lawyers do.
Because the establishment of the truth of the matter has become so technical and complicated, the premium on the competence of the lawyer goes up. You don’t pay Rs. 22 lakhs to anyone for adding two and two and telling you that the result is four. But you pay that kind of money per appearance –often lasting a few minutes- for establishing the truth like adding two and two, according to this doctrine and that and getting five-and-a-half according to a doctrine that was established some five decades ago in the course of seeking the logic of square root of two being rational or irrational according the rubrics, say, of English common law read together with the fundamentals of Roman jurisprudence especially per Justinian.
I had the experience of hearing cases argued by lawyers. The National Commission for Minority Educational Institutions (NCMEI) was a judicial commission. Clients used to be represented by lawyers. So I know, first-hand, the difference between lawyers. Some there are that make you eager to listen to them. Others there are who put you off with the opening statement.
The crucial difference that the lawyers make in the outcome is not, however, a matter only of the personal genius of lawyers, which is certainly a formidable factor to reckon with. It is also a matter of the system and tradition in vogue that magnifies and rewards this difference.
