Disproportionate Coverage By Media Takes Away From Important Issues: ASG Madhavi Divan

Madhavi Goradia Divan, Additional Solicitor General in the Supreme Court of India speaks to Krishnendra Joshi, Editorial Lead, BW Legal World about her journey in law, need for ethical journalism, diversity and inclusivity in the legal profession, the future of litigation in India, among other thing.

ASG Madhavi Divan

Ms Divan, you epitomize excellence as a lawyer. Would you please tell our readers what motivated you to study law? What were the initial formative years of your exceptional professional career like? 

I started effectively in 1995. I went to Bombay in 1994 with a law degree which I got from the UK. But frankly, not being from a family of lawyers, I didn't know the ropes, I didn't know how to go about it. Frankly, I wasn't even sure if I really wanted to practice law. So, I went to Bombay with the idea of just giving it a shot and seeing where it took me but I wasn't fixed in my idea that I was necessarily going to last it out in practice so it was really something I chanced upon.  

I was very lucky to get into a good chamber in Bombay through a family friend. I got into the chamber of Mr Dwarkadas who was very kind and a very good senior to me. It took a while to really get into the flow of things because the Bombay Bar and Counsel Practice particularly has a sort of unstructured kind of life is to begin with. Juniors simply don't have work and me particularly because I knew, I didn't belong to Bombay in that sense I was coming from outside. I hadn't worked in a law firm; I hadn't gone to law school in India so I didn't know many young lawyers. So, to that extent, it was harder finding my feet. We may get a drafting brief on one day and then for a long time we may not get another drafting brief. We may get a small appearance today and nothing for a few more days. So, it was a very unstructured, unpredictable and uncertain sort of beginning coupled with the fact that I wasn't sure myself whether I was going to last it out. So, it began like that frankly with no great expectations, and then I think somewhere along the way I Obviously I just got quite hooked because I was just enjoying what I did. 

Would you please shed some light on your mentors. Who are the mentors that you looked up to and admired and how they helped you in shaping your career?  

I entered as I said, the chambers of Mr Dwarkadas and Janak was a very good senior. In the beginning it was very intimidating only because we didn't have a fixed chamber at the time, and therefore, one was just rushing around court trying to follow him around and by the time you were inside the court, he finished his argument and left and went somewhere else on some other floor on the Bombay High Court. So it was very difficult to keep pace with him and he was also quite reserved so it was difficult to sort of break ice and I was also kind of unsure of myself so I guess, initially, it took a long time but then he began to give me a little research work to do, he introduced me to a solicitor and said maybe she can draft this pleading. That’s how it began and he was really an excellent senior in terms of mentoring and counseling. He also taught us some very basic good skills, simple things like how to churn out a really top-class list of dates which is very important in any matter.  When you're drafting written submissions and at that time counsel would call stenographers and dictate the drafts to stenographers. He would always urge to be very prepared when you call the stenographer, you must be ready with your flow of things because that eventually helps you to structure your arguments in court. At that stage of course, it didn’t make a lot of sense to us because very rarely did we get to argue the cases that we drafted at least in the beginning but later one began to understand the logic and it made such a lot of sense. One starts thinking from the beginning in a way where it helps to structure the arguments and it helps to sort of filter out the most superfluous, unnecessary submission for the arguments. So of course, Janak remains a mentor in that sense.  

But apart from that, there are many people I have admired in both the Bombay Bar and the Supreme Court. So many seniors whom I have looked up to. Late Mr Ashok Desai, Mr Mukul Rohatagi, Mr. Fali Nariman. These are very senior counsel whom I have worked with on the cases. I think, I found it fascinating to observe each of these seniors because they work so very differently from one another. I think there was just something that you could pick up from each one of these accomplished seniors. Ultimately, I don't think one can even aspire to be like any of them but I think the recognition that you have to learn to eventually be who you are which would be very different from anyone else, any other colleague or any senior. I guess you've got to build on what you can do best but it always helps to take away something whether from an argument or a conference that you have attended with any of these very accomplished seniors.  

Litigation has changed over the years, and now there is a lot of talk that lawyer need to embrace technology especially considering that virtual courts are becoming the new normal. So, how do you see litigation, shaping up in the future? 

No, you're right, I think the pandemic has taught us some very, very important lessons and something that we are not able to get in the near term. I think it is going to transform the way the system works. Of course, I believe that there is nothing like the real court and physical hearing and real appearances. There is no substitute for that particularly in cases which require an extended argument and which require that level of persuasion. I don't think virtual courts can really substitute. I think the virtual court system can certainly supplement the physical courts that could be a great advantage in the future as well. Then there's a lot of what I would describe as housekeeping work which can be eliminated very quickly and efficiently by using technology. I mean, now we have E- filing which is seamless and very easy and it can be done any time of the day so there is no constraint to physically go somewhere and be there during office hours. So, e- filings and small routine applications like if you remember court 1 in the Chief Justice’s court on any day of the week, there would be just long queues of lawyers jostling for space to mention a matter. Now, all those things can be taken care of through a virtual system which frees up the court's time and physical space as well for the real arguments to take place. So, I see it as supplementing and making the system much more efficient.  

The other important thing is of course that we have seen how lawyers from anywhere in the country can appear in court. So, sitting in Delhi, sitting right here in my chair, I can appear in Manipur or in Assam or in Gujarat or any other part of the country. That's something which is really quite fantastic because it also makes for a Pan Indian Bar at a certain level. it's improved mobility, it's improved access to justice, both from the litigants’ point of view, because then he can save on flying the lawyer down to Delhi or wherever else the matter is. It saves costs if he has his choice of lawyer from wherever he is situated. Also, from a lawyer's point of view I think it gives you access to so many different courts in the country and that's actually very enriching because you meet a different bar to see, you appear before a different set of judges and that it makes for a Pan Indian Bar so I think there's a great advantage to that.   

Do you think cross- examination will be as effective in a virtual setup because body language plays a very key role while doing cross- examination?  

Yes, I agree with you that there are certain things which simply cannot be replicated in the virtual system. You're right that the demeanor of the witness, just the tension I would say, the tension of being in a real court is something else. your palms have to sweat for you to really be able to deliver I feel, often times that real court, whether it's not just cross- examination I agree with you, when a witness is being cross- examined, I think  to have the judge there before you in real to have an assembled courtroom to be able to see everyone definitely plays a role in getting the truth out of the witness but that apart even in regular hearings, I would say that when you enter a physical courtroom, there is a certain gravitas that the court exudes, the whole aura of the atmosphere, the ambience of a courtroom is very different. It is very different when you see the national emblem in front, the way the divide and the elevation of the bar, it’s all meant to really convey the sort of core for the rule of law at the end of the day. Therefore, you are far more responsible in the way you conduct yourself. So, I don't think that a virtual court can completely substitute this system. In fact, even in the virtual court system, of course, there are many times when, for example, and the judges in the Supreme Court are sitting in the physical court while we argue from our own chambers. But I think the way it is arranged, right now maybe technology will improve but the way it is arranged sometimes another lawyer’s image is bigger than the image of the bench and they're pushed into a little corner somewhere which I think doesn't really create that atmosphere or that gravitas which I think a courtroom should have. 

You've played a key role in the triple talaq case and advocated against death penalty for rape of minors also. Would you please share your most memorable case so far? 

I think that’s a very tough question, I mean when you talk of triple talaq, these are the better- known cases but I mean I did not argue the triple talaq case, I assisted then Attorney General, I suddenly was responsible for the reply on behalf of the Union of India and I really enjoyed working on that case. It was a very different subject; it's not like I don't regard myself a lawyer in that sense on women's issues or anything like that. So, in a sense it was also a first time for me so that was a very interesting experience right from the drafting to the manner in which the case proceeded. It got wrapped up quite quickly, faster than I imagined within effectively a week or a little over a week, and then eventually the judgment that was also a surprise. And there were many lessons I learned. How can something as absurd as an instantaneous triple talaq stand the test in a court of law, and yet well it almost failed because it was a very thin, 3:2 success. So, there were many lessons I learned from there but sometimes it's not necessarily the cases which make news which you carry with you. Sometimes there are very small cases where it makes a big difference in somebody's life for something very important to a person so I think there are many, many cases which won't ever make news that I have enjoyed doing and have given me a lot of satisfaction.  

I remember doing a case again with my senior in Bombay and it wasn't going well and then the court broke for lunch. I said, we've got to give it our last shot. Then I just looked at the documents, much more carefully and I found that what the other side had been reading was a fabricated document. So, we were able to find that little thing, there was a line missing and it made all the difference to the case and within minutes. When this was pointed out to the court, the case on the other side was dismissed. So, even after nearly 20 years I haven't forgotten that. But there are so many, it's very difficult to say that this is the one case. I think every case is really interesting. Sometimes, the most mundane or routine sort of cases, when you can find an interesting point to present, it becomes memorable.  

You are among the only three women to be appointed as the Additional Solicitor General in Supreme Court. What are your views regarding gender diversity and inclusivity in our profession? Do you think times are changing now? 

Yeah, I should certainly hope so. I think one of the reasons I have always been a little reluctant about whether one should be speaking on a more public platform or not unless you're lecturing or something like that. But the reason I think it is important to speak on these issues is that it makes a big difference to the younger women who are out there and finding things very difficult. I can tell you that when I was a few years into the Bar, frankly in all these years I haven't had a women mentor at all that I could say that this is someone who has really scaled the heights in the profession and also managed a family, very difficult to find women who have done that. So, I think yes, times are changing, they better change and we'd like to just see more representation and on merit. it's not as if women should be just given token representation, I think that could be very counterproductive. But it's important that when there are women of merit and if they are on even keel with their male counterparts, you must make the effort to pick up anybody who represents a diversity, whether it's gender or any other kind of diversity.  

Okay! So, coming to a burning debate that is grabbing a lot of eyeballs currently. What are your views on media trial, how to draw up line between ethical investigative journalism and witch hunt?  

So yes, I think this is a huge issue and particularly relating to the quality of media. One way of looking at it is, it's all free speech and ultimately society gets the media, it deserves so if they want something shrill and sensational, that's one way of looking at it, I think there is a difference, for example, in the way the social media is meant to operate. That is so called, quote unquote citizen journalism whereas you have the institutional media, or professional media outlets which are television or newspapers, I think there is a different kind of duty which is affixed on a media organization. Ultimately, even though in India we don't have a separate right for the press or the media it all emanates from Article 19(1)(a). But at the same time, I think, ultimately, the media in terms of whether newspapers, or the broadcast media, or even social media platforms in that sense, I'm not talking about individuals. But social media platforms are ultimately trustees of the public because they are the eyes and ears for the people, where do we get our information from? We get information from, whether it's newspapers online or offline or whatever social media whatever and therefore there is a duty on these organizations to discharge their duties as trustees of the public in that sense.  

When it comes to media trial of course, I would say that there is very much a right to comment even while a case is pending. But of course, the reportage has to be sort of balanced and fair and there has to be a balance between access to justice for even the under trial and that's a right under Article 21 and 19(1)(a) right of the press and the public more importantly to know.  

But of course, the way we see things, sometimes it's serious character assassination and vilification. I'm sure media organizations know when they have entered into that sort of forbidden zone. Whether it amounts to contempt or obstruction of justice or not is another matter, but I think every media organization knows when it has crossed the line. The one point that I would like to make here is that every time the media has very disproportionate coverage on a particular issue which it feels would grab eyeballs or the public could find it very sensational and therefore would be glued to television. I think every time you do that, you are ultimately taking away time from a new story which may just have more importance from the public's point of view so whether it's a serious issue, starvation deaths or farmers’ suicides or whatever it is any issue of importance on international relations or whatever, you are taking time away from that and that would lead to dumbing down of democracy at the end of the day.  

You are keeping people away and numbing their senses at a certain level and therefore I think it's important to draw a line. The media operates on certain trust principles of public interest that ultimately, we've got to deliver and give the people everything that they should know to have a good robust citizenry. 

This reminds me of one point, for me it has become very difficult to identify and distinguish between PR and news. 

Yes, I agree with you. The exercises have taken place for example on paid views but ideally this should be a self- regulatory exercise for the media itself, it should be done by media organization and self- regulation has to be a lot better than it is because that's much better than having regulation from the other side but it's got to happen. Self- regulation has got to be far more effective. 

Moving on from serious topics, you have been a prolific writer on contentious legal issues. Do you still get time to pursue your hobbies, any movies or books you'd like to recommend to our viewers that has left a lasting impression on you? 

Well, I can assure you that my hobbies are not necessarily bookish. So, I spend enough time at work and I will say that I do spend some time in legal writing as well. The next edition of my book on media law is very much in the pipeline and I'm also trying to work on something on insolvency bankruptcy code. So that is a lot of time spent on legal writing. I think my interests are also well beyond that. Of course, the pandemic gave us time to catch up with reading, and I did some of that I read lots of heavier stuff that I also wanted to catch up on like Ambedkar’s annihilation of caste which is really brilliant, thoughts on partition, again, very interesting. I read a translation of Bhagavad Gita which is also very fascinating, purely from just a philosophical standpoint. I'm trying to read  Arthashastra which is also really wonderful. I just think it's such a shame and a pity that unfortunately in our education system, we were not exposed to any Indian classics. I have a degree in literature from St. Stephen's college, Delhi University, and I really enjoyed my lectures. We had some fabulous professors but thinking back we studied a lot of the Greek classics, which was also fascinating stuff, but I'm quite amazed that nothing Indian at all, no Indian classics at all. So, this is something we really need to correct. The wealth of literature that we have, we need to get better translations and professors who can teach the subject. 

Last time we had, Honorable Mr. Tulsi with us for the BW dialogue and he was telling us that he uses this time to read fiction. 

Okay! I've always been more fascinated by biographies and that kind of things. So, it varies, I enjoy real stories more. I read a couple of very interesting biographies in the last two months, a fascinating one on Dara Shikoh by Avik Chanda that is very good and very well written. Noor Jahan by Ritu lal, that was also very well-written and lots more but I have other interests as well. I love to travel and I love music as well. Unfortunately, we haven't been able to do that in the last few months. I have an interest in education. So, let's see I'm trying to get together a thing which can combine my interest in children's education and cultivating better citizenship. So, I'm working on a citizenship program for children just as a hobby. So, let's see how that goes. 

What is the true meaning of success according to you? What has helped you achieve and sustain success all these years and what will be your one message to young lawyers and future lawyers of India? 

I talk about success when I get there. No, no, it's much too presumptuous I think we learning every day, in every case we learn something new and that is what is so fascinating about the law, I think, particularly practice in India where, every day of the week can throw up a completely new subject. 

We don't need to specialize and someone actually pays you to learn something new, I think that is the fabulous part of our profession and I think that's what's kept me on my toes all these years. I just say to younger people; this is a profession which takes a while. I think it's a race. Race in the sense, not in a competitive way, I just mean it's something that you will have to be able to soldier on and hang in there for long to be really able to enjoy your practice. I think that notion of success doesn't come so quickly because you really need long years of very hard work and commitment for things to grow. So, I just say, Hang in there.  

Did COVID bring any lifestyle changes for you?  

Actually, I have enjoyed at a certain level of being at home. I got frighteningly accustomed to a short afternoon nap. So, that was a welcome change from what I had been used to before that, but it also brought us as a family together under the same roof after a long time. My older daughter graduated from a university in the United States and unfortunately, her last semester was cut short. But, as a result we had her back and my younger daughter also who would have otherwise gone off to college, is still very much at home, functioning online. But the advantage is that, children are now adults in that sense, but we're still under the same roof. So, that's something very special. So, I can't complain too much. 

Note: The automatic transcription has been lightly edited for a better reading experience. Some names and parts of the transcription may carry inadvertent errors that we are in the process of editing. Thank you for your understanding.  

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