‘There should be rule of law, not law of rulers’

Coming down heavily on Delhi’s Jahangirpuri demolition drive, senior Supreme Court advocate Sanjay Hegde has claimed that no rule of law or procedure was followed for razing homes and shops in the area.

“If there is a rule of law, even if you want to bulldoze something, there is a procedure. Now what you have is the law of the ruler. Irrespective of the Supreme Court order to stop the bulldozer, they are insisting on written order before stopping the bulldozer,” he said.

Hegde was in a conversation with Kailashnath Adhikari, MD, Governance Now, as part of Visionary Talk series held by public policy and governance analysis platform. He was speaking on the Jahangirpuri communal violence and how demolition of homes and shops has turned into a political war.

Going further, Hegde alleged that in Uttar Pradesh, houses of people who left BJP to join other parties, had their houses bulldozed.

Talking about the hijab controversy, Hegde, who is a leading voice for civil rights, said if a woman wants to cover her head, a government cannot say that if she wears something on her head she cannot be educated at government expense.

“A government is funded by tax payers’ money from all communities,” he reasoned.

On the topic of education, Hegde questioned if a government should enforce uniformity in a diverse country even at the cost of sacrificing education?

“If a young mind cannot question, has to be indoctrinated, regimented, people will drop out. You as a government have to decide are you are running a military training school, are you running a police school?”

On being asked how he handles media attention in high- profile cases, Hegde said a lawyer has to do their best and forget about the rest till the matter is over. “Most of the time when a case comes to you, it is at almost critical stage and beyond repair. The result is not always in your hands.  You cannot overthink in advance.”

He said that even in cases where public sympathy is against the case, the lawyer has to put in best of defence and ignore everything else. He said it is the judge who is the decision- maker and knows when somebody has put in their best efforts and everything that could be said for the unpopular side has been said, considered and dealt with legally.

Speaking further on cases that are high-profile or involve a celebrity and come under media glare, Hegde said in such cases, the accused is unlikely to get relief in the first hearing. Be it the policeman who makes the arrest, or the magistrate or judge who has to deal with the remand and bail application, at first instance are unlikely to extend relief, else fingers will be pointed at them of being bought over or influenced.  Such matters are then send further up in hierarchy to high courts etc because those judges have constitutional protection.

On being asked if law as a profession is recession-proof, he said courtroom lawyers always face recession as not many people come to them. “With the exception of few rich or successful lawyers, an average lawyer barely makes a living and is permanently in recession,” he said.

While speaking on ramping of infrastructure of Indian courts, Hegde said, in developed societies the situation is tilted towards outcomes unlike in India, where the government is the biggest litigant and departments are fighting with each other.

He said the legal system needs structural changes. “In each and every matter, people keep getting involved more and more in processes. A judge has 100-200 matters daily to deal with, which is humanely impossible. We need to ramp up the number of judges and make systems such that they are tuned to the final matter, not steps and processes. There needs an overall attitudinal change .There is also an atmosphere of distrust  between courts of instance and appellate court.”

Of being asked if e-courts have been able to better deliver justice as compared to physical courts during the pandemic, the lawyer said, “Yes e- courts were better than having no courts and are there to stay. For longer constitutional matters, e- courts are good. Certain access to justice or lawyers all over the country has become easier to a great extent. There will a hybrid system and it will continue.”