CLS interview with Sr. Adv. K.K. Venugopal

The Constitutional Law Society recently had the opportunity to interview Mr. K.K. Venugopal, Senior Advocate, Supreme Court of India. He is not only one of the most respected and experienced lawyers in the country but is also regarded as an expert in Constitutional Law. He answered various questions regarding Constitutional Law and litigation as a career for law students amongst others. 

Following are the excerpts of the interview conducted by the Constitutional Law Society of the West Bengal National University of Juridical Sciences, Kolkata. 

  1. Sir, there has been a trend worldwide to use closed materials as evidence in trial proceedings against terror suspects. This closed material is not given to the suspect for his/her defence and more often than not the lawyer of the suspect is also not allowed to discuss even the gist of the material with the suspect. The same is done by arguing that the material cannot be disclosed on the basis of national security. What are your thoughts on the same?

When national security is involved the whole scenario changes.  There has to be a balance between conflicting facets of public interest.  On the one hand you have the individual rights of the persons accused of serious offences like terrorism, and on the other is the very security of the State itself.  The terrible acts of terror that took place in Paris today come to one’s mind.  Over 120 persons are believed to have died, and about 100 persons seriously injured.  Would, then, national security prevail or natural justice?  I believe that the answer, prima-facie, has to be that national security will prevail.  But, there is a caveat.  If it is possible to ensure a modicum of fairness and objectivity in the procedure to be followed, one has to do so.  The closed material procedure must, to the extent possible, take into account the rights of the person accused of an act of terror.  In the United Kingdom, under the Justice and Security Act, 2013, an endeavour appears to have been made to achieve this end by ensuring judicial application of mind for making a declaration that the closed material procedure is required to be followed in a given case.  Further, a special advocate is appointed to whom alone the confidential material is shown.  He is to defend the accused and he has to maintain secrecy in regard to the acts disclosed in that material.

  1. The Supreme Court recently finished hearing the argument and has reserved its judgment in the constitutional challenge to the Haryana Panchayati Raj Act which disqualifies people from contesting Panchayat elections. Disqualification can occur if they haven’t been educated beyond Class VIII (the bar is lower for certain constituencies), if they do not have a functional toilet in their house, and if they owe arrears of electricity bills, agricultural cooperative loans, etc. Do you believe that such a legislation violates any Constitutional provision {Articles 14, 15(1) and 19(1)(a)}, and/or is inconsistent with the basic structure of the Constitution?

[Note: This question was answered before the judgment in Rajbala v. State of Haryana was delivered]

I am clearly of the view that democratic rights should prevail.  In my view, therefore, these disqualifications which stand in the way of an individual either casting his vote at the Panchayat elections or contesting Panchayat elections would be arbitrary and violative of Article 14 of the Constitution.  In the case of Union of India vs Association for Democratic Reforms ­– (2002) 5 SCC 294, a Bench presided by Justice M.B. Shah held that criminal antecedents of candidates for elections, the total assets and wealth of the candidate and his immediate family, as well as the educational qualifications of candidates should be disclosed so that the voter would be able to take an informed decision in regard to the merits of each candidate.  I had appeared in this case before the Supreme Court, and objected to educational qualifications being included, but my objection was overruled by the Court.   The reason for my objection was that despite the passage of more than 50 years since India attained independence, the State has failed miserably in its duty of ensuring universal education.  The educational system prevailing in rural areas is mired in inefficiency and corruption.  Most of the time, schools are situated far away from the dwelling areas, and often are accessible only by crossing rope bridges and the like.  Teachers would attend to their farms and cultivation, and were notoriously lax in attending to the classes.  Could you then compound the ineptitude and indifference of government after government, and deprive the persons concerned of their democratic right to vote or contest elections?  Is there anything written anywhere or established by evidence that an educated person would have more common-sense than a villager who endeavours to better the lot of his fellow men?  Voters, even in rural areas, would very well know the merits and demerits of the candidates and if they prefer a person who has not studied upto class 8, I believe their choice must be respected.  Equally, it is impermissible for people to be deprived of the right to contest elections on the basis that they do not have a toilet at home, or that they are in arrears of electricity bills or loans taken from agricultural cooperatives. What should be remembered is that there are varying statistics about the poverty in the country, some declaring that as many as 33% of the population lives below the poverty line.  In absolute terms, this would mean that out of a population of around 1.25 billion,  more than 30 million live n abject poverty.  Surely, it is the state which is wholly responsible for this sorry state of affairs, and to deprive persons of the right to contest elections on the basis, virtually, of their poverty, is rather cruel.

  1. Law graduates in India have become averse to joining litigation because of the initial struggle involved in litigation and the meager and uncertain beginners pay, which litigation offers. This coupled with the fact that many students take loans to ensure education in good law colleges, including the National Law Universities, makes corporate jobs the easiest way out. While the insufficient demand of corporate lawyers in comparison to supply takes care of the fact that graduates join litigation, this does hinder many graduates from practicing in the courts even if they want to. What do you think can be done to improve the situation? Do you think experienced lawyers teaching in the law Universities and recruiting directly from the students they teach allowing them to gauge the temperament of the students and thus allowing them to offer a sufficient pay is a good option?

It is a sad fact of life that lawyers without Godfathers have to struggle in the first few years, however, talented and competent they are.  The advent of the National Law Universities (or ‘NLUs’) has changed this scenario. But, how many NLUs are there? Perhaps about 17. The rest of the Law Colleges may not be able to produce graduates of the same level as the NLUs except a few, which I need not name.  I feel that the answer to this problem is, Continuing Legal Education (CLE), where new law graduates may be trained by professors and practicing lawyers. CLE is a concept which is common in several western nations, like the United States.  This is what is lacking in India and, perhaps, the Bar Council of India and the State Bar Councils could consider filling up this vacuum in the near future. The CLE would take the place of the godfather and would produce a lawyer, who not only have learnt smattering of the vocabulary used in the law court and also an in-depth knowledge of both the legal principles as well as the procedures, along with, perhaps, the actual experience in courts, which would be a part of the curriculum.

I feel that lawyers and, especially, those with long experience and heavy income would be doing injustice to the profession, if they don’t take into their chambers, juniors or associates, who would be able to assist them in their professional work.  I believe that the Bar Council of India, should make it mandatory for lawyers who have put in 15 years’ experience and also have an income above a fixed level to take at least 1 or 2 juniors. This has been followed so far as the accountants are concerned, and as expected, this requirement of payment of stipend mandatorily to Articled Assistants, a challenge was made in the court and, which was rightly rejected. This would be the precedent which has to be followed so far as the legal profession is concerned. A greater amount of confidence would then be instilled in fresh law graduates that they need not necessary chose the corporate world.

  1. This is with regard to the recent incident where Delhi police entered Kerala house to investigate the allegation that beef was being served there. The investigation was made under the guise of the Delhi Agricultural Cattle Preservation Act, 1994. What would be your opinion on the same?

When the Kerala House was invaded by 20 policemen in search of cow meat, I had been asked for my views.  I had prepared a short note, which is to the following effect:

“Section 11 of the Delhi Agricultural Cattle Preservation Act 1994 authorizes only the named two authorities to enter any premises for the purpose of finding out whether cow meat is being consumed in that place.  The two authorities are the Director, Animal Husbandry, Government of Delhi, and the Veterinary Officer of the Animal Husbandry Department.  On the other hand, under the Act, a Police Officer can only stop and search  a vehicle which is being used for the export of agricultural cattle or to seize the cattle if a violation is taking place.  In both cases, under Section 100 of the CrPC, a warrant will have to be obtained.

Obviously, the action of the 20 policemen in raiding the Kerala Government guest house is not only highly illegal, but also smacks of constitutional impropriety, and is a blot on Centre-State relations.”

  1. Sir, how do you prepare for a case? What advice would you give to law students?

 From my experience, I can say that the legal profession is not an easy one.  It requires tremendous effort and hard work, apart from sheer luck, to succeed.   It is imperative for a fresh graduate to take pains to thoroughly prepare each case that he/she is entrusted with.  I would suggest that one must, first and foremost, master the factual aspects of the case.  For this, it is always useful to prepare a list of dates and events, which reduces the entirety of the facts of the case to a few pages.  Next, one should prepare what I like call an ‘aspect note’.  The aspect note would bring to the fore the real legal issues in the case.  In the aspect note, the relevant case law should also be noted.  For this purpose, it may not be enough to rely on computers and software alone, and one must make the effort of referring to and reading leading textbooks on the subject.  One must also try and study the decisions of foreign courts, so that the progress in that area of jurisprudence in other countries can also be analysed. With this, one would be in a position to present their case effectively.

[The questions for this interview were prepared by the members of the Constitutional Law Society and the interview was conducted by Ayushi Singhal, Member, Constitutional Law Society and student of WBNUJS, Kolkata.]


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