If the language of law is to be easily understood by those who must obey it, then Abhishek Singhvi’s From the Trenches is a lesson on how to de-jargonise, demystify and strip it of the kind of legalese that conflates Latin pretension with profundity.
The eight ‘most important’ cases in the career of the well-known lawyer and parliamentarian are related in a refreshingly accessible manner. “The challenge, a difficult one, was to write for the layman and yet make it interesting for those versed in the law,” he says.
More importantly, perhaps, is that the cases — a diverse mix that includes Sabarimala, the Tata Group boardroom battle, animal abuse and the misuse of Article 365 — are narrated with a rare even-handedness. The shots fired by those in the opposing trenches are heard loudly and clearly, their arguments fleshed out with the necessary detail. And there is a recognition that there are issues — at least some issues — that lie in a spectrum of grey, a fact that demands privileging nuance and detail over self-assured and inflexible moral certainties.
For arguments’ sake
Sabarimala, in Singhvi’s eyes, appears to be the kind of case where some fine but important legal distinctions, which have enormous practical significance, have been obscured by the desire to reach a “progressive” verdict. Having represented the Travancore Devaswom Board, he did his best to argue in favour of excluding women between the ages of 10 and 50. He makes it clear that while he does not personally stand for such exclusion, he equally believes that “the somewhat sophisticated legal and constitutional arguments were the best and correct ones”.
He argued against the applicability of Article 14 (equality) on the grounds, among others, that there was no gender exclusion or discrimination, but a limited prohibition born out of a religious belief. “Sabarimala is the only one of the 1,500 Karthikeya temples, where he is represented as a Naisthik Brahmacharya. Women in that age group can go to 1,499 other temples.” As for the notion that the exclusionary custom violated Article 17 (untouchability), a position adopted by Justice D.Y. Chandrachud, Singhvi says it is a “red herring.” “The Constituent Assembly debates clearly establish that it deals only with caste-based exclusion,” he says.
Singhvi believes, as Indu Malhotra noted in her dissenting judgment, that notions of rationality cannot be invoked in matters of religion. Also, that it is important to assess the far-reaching and possibly contentious ramifications of the majority view for other places of worship. As the Supreme Court observed, while referring a number of questions relating to the broad interface between religious freedoms and other fundamental rights to a nine-member Bench, there are pending cases such as the rights of women to enter Sunni mosques and dargahs and those of Parsi women, who marry outside the community, to worship in fire temples. These questions include the scope of Article 25 (freedom to practise and propagate religion), the rights of religious denominations, and the use of PILs to question practices by those outside a religious group — all issues that were raised during the Sabarimala case.
Subjective rights
Does Singhvi then think that the wall that separates and provides autonomy to religion from the State (which is also integral to secularism) has been excessively breached in India? “Yes,” he replies. “The religious rights intended by the clutch of Articles 25 to 30 have been excessively breached, in terms of both number and degree. Objective and external tests are being applied to judge (what are) essentially subjective religious rights. While I accept that the specific language and structure of the Indian Constitution cannot be assessed by either the words in the U.S. Constitution or by the western idea about the separation of Church and State, I think the Constituent Assembly debates show clear intent to strictly ring fence the bundle of religious rights. It is important that they are not breached in a casual manner.”
Singhvi thinks that lawyers don’t exist to assess or judge their clients. “I respectfully disagree with Gandhiji (who had strong views about who to represent),” he quips. At the same time, the fact that he wears multiple hats — most pertinently that of a Congress politician and MP — has on rare occasions come in the way of professional lawyering.
For instance, in the Jallikattu case that led to the Supreme Court banning the customary practice, Singhvi, who had initially represented the Animal Welfare Board of India, did not join its challenge of the Tamil Nadu government’s amendment of a statute that allowed the State to bypass the judgment. Congressmen from Tamil Nadu and Kerala urged him to not appear, leading Singhvi to resist for a long time before giving in. “There was so much noise and I don’t like looking over my shoulder or being in a position where I cannot fearlessly discharge my duties. I gave up the case reluctantly, but I made it clear that my personal beliefs are unchanged.”
Humaneness is key
A self-declared lover of animals whose Anatolian shepherd has been the love of his life for the last 11 years (“don’t tell my wife this”), Singhvi has devoted time to appearing in cases for animal rights and against animal abuse pro bono in courts. “Even if one concedes that you must kill to eat, we must acknowledge that animals must be put humanely to death and be allowed to live without cruelty. Factory farming of animals completely eliminates humaneness.”
All the eight cases in the book are legally significant, but one that would rank somewhere in the higher reaches, if not at the very top, is D.K. Basu v. State of West Bengal, in which the Supreme Court’s landmark judgment laid down guidelines to prevent illegal arrests and custodial torture and violence. But such things continue to happen as they did before, don’t they? Singhvi, who was appointed amicus curiae in the case, admits there are “continuing and egregious breaches and that there are many more miles to walk”.
But he says that the D.K. Basu judgment has ushered in significant reform. “Today, no police station can violate rights as easily as it did pre-Basu. The guidelines have provided a certain push and a better environmental ambience than what existed before.” We need to see the D.K. Basu case as “a journey and not a destination,” he says, a reminder that justice is not something that is just handed out but needs constant working on. As Singhvi writes: “The law is a tough teacher.”
From the Trenches: India’s Top Lawyer on His Most Important Cases; Abhishek Singhvi & Satyajit Sarna, Juggernaut, ₹599.
The reviewer is former editor, ‘The Hindu’.
