On November 28, 2013, Bar & Bench speaks with Subramanian Swamy, an Indian academician, politician, economist and legal activist. In this interview, he talks about his love for law, how he got involved in litigation, and the peculiarities of being a “non-lawyer”.
Bar & Bench: For a “non-lawyer”, you are a familiar face in more than one court. How did it all start?
Subramanian Swamy: The first time I ever argued in court was in 1982. This was when Ram Jethmalani (he was then with the BJP and I was with the Janata Party) filed a criminal defamation case against me. It was a turning point in my life.
Most lawyers told me that they did not want to appear against Jethmalani. My wife, who is a Parsi lawyer, had a highly rated criminal lawyer friend PR Vakil and he advised me to argue myself. He said, “I will coach you but you argue”. So, that is how I began. I argued that case, and won it too, with Jethmalani on the opposite side.
Later, I was again subjected to a defamation case by Ramkrishna Hegde, who was the then Chief Minister of Karnataka. I had accused him of appropriating land in Bangalore for the benefit of his son-in-law. The reaction was the same as is now regarding my accusation against Kejriwal; because he carried the image of a man with extra-ordinary honesty and was a potential Prime Minister of India. So everybody came down upon me. He filed a Rs. 100 crore defamation suit in Bombay. Then I argued in the Supreme Court on forum non-convenience and I succeeded. I appeared before Justice Ahmadi here. It is a reported judgment.
My wife has always been the principal back up. She essentially prepares the petition because I think she has the stomach for arguing these aggressive cases.
I won every defamation case filed against me. Tamil Nadu Chief Minister Jayalalitha filed close to 100 defamation cases against me in different courts between 1992 and 1996. I took the matter to the Supreme Court and got the famous New York Times Case of 1964 read into law. It provided that if a person in public life, including one in government, feels aggrieved by a defamatory statement, then that person must not only prove in the court that the defamatory statement is false but also that the maker of the statement knew it to be false. This principle, thus, reversed the traditional onus on the defamer and placed the burden of proof on the defamed. Later, Jayalalitha withdrew all the 100 cases filed against me.
Subsequently, Jethmalani filed three more defamation cases and lost all of them. I found that people realised that I am an authority in defamation cases that they stopped filing defamation cases against me. No such case has been filed against me since 1998.
B&B: What about all the PILs filed by you? Where did this start?
Swamy: As I started appearing in court, I found several public interest matters. There was one matter that was not quite a public interest matter. I had tried to go to an island called Katchatheevu between India and Sri Lanka and the Tamil Nadu Chief Minister MG Ramachandran got me arrested. I brought the matter before the Supreme Court and won that case. Then, I filed a number of cases seeking a CBI enquiry in police firing etc. Subsequently, the big case for public interest came when I fought for Tamil farmers regarding Mullaperiyar dam and I won that too. After that I filed a large number of PILs and have lost count now.
B&B: What prompted you to get involved in litigation?
Swamy: I felt that people were losing faith in politicians with politicians making statements that so and so is corrupt etc. Up to the mid-90’s people were ready to listen but then I felt nothing was really happening. So, I thought that I must do the logical thing of filing complaints and then going to court – that became more credible work. That was the motivation and ultimately I tested it on the 2G case and it was immensely successful.
B&B: In an article in the Indian Express you said, “I got tutorials in law from several well-known lawyers.”
Swamy: Instead of directly saying that they tutored me, I would say that I have benefited by frequent conversations on social occasions, through personal contacts with lawyers like Fali
Venugopal and to a limited extent Soli Sorabjee. Most of all, Nariman, with whom I have been friends for a long time and, of course, he is Parsi so there is always some connection. As I told you, for criminal cases it was PR Vakil.
I have one habit, which I have acquired from the days of being a student and a professor; never hesitate to ask somebody a question, do not worry what he might think. Even when I am sitting in court also on the either side, I will ask people who are not ideologically with me like Rajiv Dhavan, or Parasaran and even Abhishek Manu Singhvi.
I was also the Law Minister for some time. So I have interacted with judges. I know some of the Supreme Court judges whom I had appointed. So I meet them and pick their brains.
B&B: You even tried registering as your wife’s court clerk to get quicker access into the Supreme Court premises. How did you get the idea?
Swamy: I tried to. What was happening was every time I would have to go to court I would have to stand in a long queue for a pass to enter the Supreme Court. So I wanted something as a long-term pass. It was suggested to me by the Supreme Court Bar Association, who later on didn’t want to be quoted, that since I do a lot of work almost as a clerk for my wife, I can apply for a clerk’s pass. It was cleared, but the Indian Express being a nasty newspaper was motivated by P Chidambaram got to know and made a big issue. The consequence of that is instead of getting daily passes now I get monthly passes; and because of the controversy they could not give me the proximity pass. The proximity pass was never denied. They have asked me to pick it up but every time I go they say “abhi Mumbai se nahi pahucha” (it has not yet come from Mumbai) or something like that.
It is true that I do a lot of clerking for my wife. She would prepare a brief and ask me to go file it. I get work done faster because everybody recognizes me, they see me on television. So, the essential work I was doing was a clerk’s work; I was not telling a lie. I am also publicly known. So I can’t tell a lie that I am a clerk. The Bar Association cleared it and recommended it also. Now the problem is over because I get monthly pass. And for Delhi High Court, I have a parliament pass. The Delhi High Court went a step further and allowed me to just show my ID without mandating a pass.
B&B: You have been filing all these PILs and are involved in a number of big cases. How does it all function, how do you research? Who is part of your legal team like?
Swamy: I used to do most of the research myself; but now it has become so extensive – the amount of work, the number of cases and so on. And then out of the blue came two youngsters, one of them is Supriya Manan. She is a young lawyer and an absolute wizard on the Internet; and her fiancé Ishkaran Singh Bhandari is very good in looking at the law.
So, now I am being assisted by them and from time to time, some students have come and have interned with me. It was very strange but they somehow got their universities to accept that they could be my understudy while in college. So a lot of young law students have been coming and I give them projects. They have done a lot of good work.
I have devised things which others find difficult to believe.
The recent judgment on EVMs and whether a foreign citizen can be an editor of Indian newspaper in which the judgment is awaited are both quite interesting cases. These two young lawyers researched on these cases. So, now the scope of my PILs is in pioneering areas, no more in traditional arbitrariness, unreasonableness. It is more in the areas of constructing the law.
B&B: You have been appearing in courts since the 80’s. How did the judges perceive you initially and how do they perceive you now?
Swamy: I think the most important thing that has come through – and this I have heard from judges sitting next to me in airplanes as co-passengers and so on – is that they feel that many of these public interest litigations is basically a way of scaring the other side, and getting some kind of settlement. You just get paid and you forget about your litigation; or you get threatened or you get scared and you walk off.
So when I appear, I have managed to create the impression that I will not let go once I have taken something and there is nobody who will make me back down. No power can make me back down and there would be no price for which I will settle. So that confidence does matter to a judge. When [judges] see that somebody is using [litigation] as a source of blackmail they become a little apprehensive. They don’t want to be a party to that.
Second, I am in the public life and I have been Law Minister. When I ceased to be a Law Minister, the Supreme Court gave me a farewell party, which is very unusual. They said that, “for the first time we are convinced, that a non-lawyer should be the law minister because he doesn’t allow the Bar loyalties to enter the picture.” Whereas, if you are a lawyer and if you have had a clash with somebody, a lot of injustice is committed if such a person becomes a minister.
Also, the judges have found that my research is original. In fact, most of the judges ask me for my notes. When I argued the Ram Setu case, they asked for my notes and when I argued the case of New York Times Standard, Justice Jeevan Reddy said, ”Give me all your notes”. So I gave him the copy of my notes and then I found that he used them in the judgment.
Also, I have been very careful never to make an allegation against a judge no matter how adverse the judgment is.
B&B: So was it difficult to get the judges’ confidence in the beginning?
Swamy: I was always a well-known figure. Also I was a Member of Parliament and have been very active on television all the time. But over the years they feel that I have also acquired scholarship. I have a new point; I have a view, which nobody else has, about a new point of law, or a new way of looking at something. For instance, the judgment on Electronic Voting Machine – the judges have formally thanked me for it. The commitment that I have brought out and shown, that is what matters. And I am not known to be corrupt as a lawyer. I am not one of those who take fees, I do it free of charge.
B&B: Going back over the last two decades do you see any difference in our judiciary?
Swamy: I think today’s judges are more honest than the judges I saw in 80’s. I am particularly impressed with these young ladies who have come in the Patiala House [District Court] – they are very sharp. There is also enormous respect for the judiciary. Especially after the 2G judgment- the judiciary became God. I can tell you that in 90’s there were some very bad judges in the Supreme Court and the High Courts. You can see that some judges are reluctant to take up your case because they may be slated to go to the Supreme Court but generally I have found very good judges.
B&B: What are your views on the Judicial Appointments Commission and the Executive having a say in appointments?
Swamy: There is a human element in the decision-making, personal likes and dislikes and so on. I don’t think there is a perfect system. Suppose you make a rule that the Minister of Law will not be a member of the Bar, then I think a greater say for the government is also not bad. But in the end I would say any system has a human element in it and there is no perfect system unless the human being is perfect
B&B: So do you think we should move away from the collegium system?
Swamy: No, I don’t think so. I think there will be no great improvement in the selection process [with the JAC].
Both the systems have pros and cons. The collegium system was brought in because what the then Law Minister HR Bhardwaj did was terrible. His appointments were really bad. So, such things should not happen. Judges are very thin skinned, they have prejudices and so on but some corrections are there. Also, collegium recommendations are not binding, the President can always say, “No, I won’t sign the warrant.”
B&B: If you become the Law Minister once again, what legal reforms would you bring?
Swamy: I would like to bring one reform, which is very good for speedy justice. But it means a lot of work for the lawyers. I tried to introduce it when I was the Law Minister but the then Chief Justice Ranganath Mishra told me, ”You will only have strikes once you are through”. And that is the provision in the CPC for discovery and interrogatories wherein before you go to trial, you get everything in affidavit form. This system is prevalent in the USA. The cost of litigation will go up a bit but it will reduce the time taken. The plaintiff will get 20 minutes; respondent/ defendant will get 20 minutes and 10 minutes for rebuttal. That is it; and then the court will retire to its chambers and come back after 15 minutes and deliver the judgment.
There are so many case files and the judges hear every one of them and people give bulky documents. I think we need to empower the judges to hire 20-30 research assistants. They can read the case, summarize the case and give them the points and the judges may not even have a hearing for dismissal. The court can notify a dismissal saying, “We are not going to take up this case as there is nothing in it”; particularly at the Supreme Court level.
I would like no judge to retire. He can be out of the Bench i.e he won’t sit in the Supreme Court after some age. I think it should be at the age of 70 so that you don’t disturb the seniority. So at the age of 70, the judge stops sitting in the Supreme Court but he sits in another Bench like a reserve Supreme Court where the Supreme Court judge may refer cases because they are overloaded. In America, the Supreme Court handles 200 cases in a year. In India every Bench hears 300 cases a day. The Supreme Court should say, ”It is not a very important case (and is on a small technical ground) but it is important for the petitioners, so hand it over to the reserve Supreme Court.” So no judge should retire at all till he is medically certified unfit. You have to reduce the workload on the judges. It is too high. It is not fair!
B&B: What are your views on a uniform civil code?
Swamy: I am certainly for it. You call yourself a secular country and you have two different laws. It is anti-gender. Why should a man have a right to marry four women, then you should allow women also to marry four men. It is gender biased. I certainly think that a uniform civil code is very necessary.
B&B: Your party has merged with BJP. If it comes to power, how will you balance your filing of PILs as a petitioner and a party member?
Swamy: Suppose I become a Minister it will be a problem. If I get an interesting portfolio where I can do something, I don’t need to do this. I can do it through the Ministry but if they give me Sports Portfolio or something, I will say, “Look, forget about my being a Minister, I will do this.”
B&B: Any PILs in the pipeline?
Swamy: I am preparing a PIL to do away with criminal defamation, as it is unconstitutional. We should have only civil defamation. Nobody should go to jail for expressing a defamatory view. You can go to jail perhaps if you deliberately incite people to riot but if you say someone is an idiot, you shouldn’t go to jail for that.
I have just finished a PIL and got myself impleaded in a writ petition for equal inheritance right to Muslim women where I am claiming that a Muslim father has no right to write a will according to his wishes as far as women are concerned. Women are at a disadvantage because the best they can get is one-third share.
B&B: Why didn’t you study law?
Swamy: I did attend classes at Harvard and I also briefly attended evening classes in Delhi University. It was interrupted by the Emergency and so I could not complete it. I might have got a law degree then but later on I felt that supposing I get a law degree, I would get sucked into law because you get paid so highly. Then I might forget my main mission in life, which was to be an economist. I still want to be an economist and I want to be a professor but [I] couldn’t because there was discrimination against me because I was anti-socialist. So the communists ganged up against me and won’t let me teach. I didn’t want to go back to USA.
I was selected for the job of professor of Economics at IIT (Delhi) in 1969 but the Leftists conspired to terminate my professorship within a year. I was sacked from IIT because Mrs. Gandhi was angry with me because I was criticizing her and the communist scared the hell out her. They said I would have a bad effect on students. It was not just the class, but hostels, JNU; and I was challenging the orthodoxy of Marxism and also because of my Harvard glamour I was having a huge impact. So they thought that they should get rid of me.
My wife fought that case and we won after 22 years. Now I have demanded my salary with interest which is Rs. 1 crore.
B&B: What are your views on legal profession?
Swamy: First thing, the time has now come when minimal legal knowledge should be made compulsory in school and colleges, particularly all women colleges. The law is a powerful tool. When somebody knows that you know the law, he is very careful with you. I think women are vulnerable at a physical level, so knowledge of law is very important. The police and everybody else behaves better if you know the law. So law should become like English grammar or elementary mathematics. That is one thing I would like to see.
B&B: Any legal mentor?
Swamy: I wouldn’t say I had a mentor, but there have been many lawyers from whom I have learnt and consulted. KTS Tulsi has always stood by me and any time I have difficulty in criminal matters, I will call him up. Anything on Constitutional matters I will call Nariman and sometimes KK Venugopal. I also consult PP Rao, although he is very reluctant to give advice.
B&B: Your office looks exactly like that of a lawyer.
Swamy: I am having difficulty in convincing people that I am not a lawyer. People come outside my house, “mera case le lo, mera zamin chala gaya” [Please take my case, otherwise I will lose my land]. I tell them I am not a lawyer; they won’t believe it. In many T.V programs I have been introduced as a Senior Advocate.
B&B: Any message for young lawyers?
Swamy: Well I think, the main thing one has to develop now – because the fees is growing in leaps and bounds – is you shouldn’t fight more than 50% of your cases for money. This is a profession for which the impression is that they are all sharks. That impression should be done away with.