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The Power Of The State & Indifference Of The Executive Have Been Put In Check By Our Judges

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rafiquedada

Legal Era Magazine in conversation with Senior Advocate RAFIQUE DADA...

Legal Era (LE): You began practicing law on the original side of the Bombay High Court in September 1964. What are the significant changes that have taken place over the years?


Rafique Dada: The Years from 1964 have brought about a change in the type of matters which come to the Courts. Filing of cases has increased. Cases take years to decide. Courts are flooded with Writ Petitions and the skill of lawyers depends upon how to convert a cause of action from a Suit to a Writ Petition. A healthy change is the cases filed to protect and preserve the environment and to protect victims of securities scams. There is also a ceaseless struggle to protect the right to life and liberty. There are more opportunities for young lawyers. There are many Courts and Tribunals where young lawyers can begin their career. The waiting period at the Bar which was very long in the sixties and seventies has now reduced.

LE: From 1969 to 1979, you served as a parttime Professor at the Government Law College. You were also Professor of Law teaching LLM students at the University of Mumbai. Do you think legal education has kept in step with the changing needs of society?


RAFIQUE DADARafique Dada: Legal education has expanded to include the study of various new subjects like securities laws, environment protection laws, and taxation. However, legal education has still to improve with the changing needs of society. A greater impetus is required to learn digital laws as also conflict of laws. However, the old laws which are the foundation of the legal system must remain, like the law of contracts, transfer of property, personal laws, law of crimes, administrative law, and finally, Constitutional law.

LE: You’ve been practicing as a Senior Advocate since September 1987. Any anecdotes you’d like to share with us from your rather long journey?


Rafique Dada: My life as a Senior Advocate has been quite eventful and fulfilling. The most difficult cases come to Senior Advocates. The most notable cases which I have been associated with may be recounted now. The suit filed by Mr. Om Prakash Berlia against financial institutions. This was a case which lasted for four months on a day-to-day hearing basis. I appeared for the Government in the case related to the takeover of Escorts by Mr. Swaraj Paul. This was one of the earliest cases of takeover. Mr. Manmohan Singh who was the Governor of the Reserve Bank of India took a very strong and independent stand. One of the most interesting matters was a suit filed to enforce a restrictive covenant against building beyond a particular height. This case lasted for almost eighteen months. It was carried in appeal and is now pending with the Hon’ble Supreme Court of India. In 1999, I appeared for Datar Switchgear Limited against the Maharashtra Electricity Board. This was before an Arbitral Tribunal consisting of a retired Supreme Court Judge and two retired Chief Justices. The Award was given on 18th June 2004. The proceedings to challenge the Award continued in Courts, and ultimately, the final decision was given by the Hon’ble Supreme Court in the beginning of 2018. Mr. Rajan Datar, who was the main person contesting the matter, has written an account of this case in a book known as “Devil’s Pie”. One of the most exciting experience has been giving expert evidence in Foreign Courts and Tribunals. The earliest was in 1983 in a Court in Houston (USA).

LE: You served as Additional Solicitor General of India (western region) from 1994 to 1997. Could you take us through the highlights of your tenure?


Rafique Dada: During my tenure, I appeared in the administration headed by Prime Minister Deve Gouda, Prime Minister Inder Kumar Gujral, Prime Minister Atal Bihari Vajpayee (a very short tenure of a fortnight), and Prime Minister Narsimha Rao. I also had to appear against persons who were detained under preventive detention laws. Advise was sought from me in regard to the proposal for repeal or reform of detention laws.

LE: You’ve represented the Government of India in cases related to infringement of revenue laws, securities laws, and foreign exchange regulations. Any particularly challenging cases that you’d like to take us through?


Courts have helped to protect privacy and have also helped to empower and protect women. Slowly but imperceptibly, society is accepting the social change

Rafique Dada: I was the first Additional Solicitor General of Western India. The post began with me. It was a great experience. I appeared in various matters for the Government and Public Corporations. Every issue of Constitutional Validity arising in Western India was referred to me either for opinion or for argument in Court. During my tenure, I appeared against various persons who were accused for securities frauds, like late Mr. Harshad Mehta and Mr. Bhansali. I also appeared in the Jain Havala Scam matters, especially in issues relating to taxation and settlement. I had to fight for the Union of India in large claims of Revenue like Customs, Income Tax, and Excise.

LE: You’ve also appeared in a wide variety of cases involving Constitutional law and infringement of fundamental rights. Any cases that made an especially deep impact on you that you’d like to tell us about?


Rafique Dada: Some of the cases are etched in my memory. I advised a lady client from USA on the validity of the Triple Talaq. I opined that it was illegal. I had to justify my opinion in a Court in Houston in 1983. It was a very satisfying experience because the counsel for the husband conceded and gave a great settlement of a million dollars to his wife. Another matter was the right to protect the Melghat Sanctuary from deforestation. I appeared in the Bombay High Court, Nagpur Bench, and faced great opposition from the timber lobby. Deforestation was stopped and the Melghat Sanctuary remains protected as it is required to be. I also appeared to save the Borivali National Park from environmental damage caused by a Mafia which created hutment colonies. This is an amazing National Park in the middle of a city which is also the habitat of leopards. Justice Gautam Patel, an Hon’ble Judge of the Bombay High Court (then a practicing lawyer), made invaluable contribution to protect this forest. I stayed overnight in the core area of the Borivali National Park to observe leopards at close range. It was a great experience living without electricity in the thick jungle.

LE: Many notable jurists have said that it is important to know the judge more than the case. Please comment.


Rafique Dada: In my view, it is important to know your case and be prepared to answer any question posed by the Bench. Judges have their own views. But in my experience, judicial discipline trains them to be objective and remain uninfluenced by their own private views.

LE: You’ve been associated with the Standing Committee of the Bombay Bar Association since 1990 and were elected President in 2002. Could you throw some light on the nature of your involvement?


RAFIQUE DADARafique Dada: I worked in the Standing Committee of the Bombay Bar Association, first as a Member, Vice President (9 years), and finally, as President for two terms of 6 years. During my tenure as President, we helped maintain the great standards of the Bombay Bar. We worked on the history of the Bombay High Court Building (125 years) and brought out a beautiful collection in the form of a Book. As President of the Bar, I led a delegation to the UK at the invitation of the Bar Council of England & Wales. We were invited to the Inns of Court. We visited various Courts including the House of Lords. The Indian Members of the House of Lords separately met and interacted with us. During my tenure, I also led a delegation to USA to study mediation and conciliation. We established relations with the Australian Bar and various Bars, including the Chinese Bar.

LE: As a Member of the Advisory Committee of the Securities and Exchange Board of India (SEBI), you were tasked with suggesting reforms in securities laws. What were the challenges you faced?


Rafique Dada: I have been associated with many cases briefed by the Securities and Exchange Board of India (SEBI). In the Advisory Committee, which you are referring to, I worked under the Chairmanship of Justice D.R. Dhanuka (Retd.). The Committee suggested various reforms to iron out the creases in securities laws so that market manipulations, fraudulent practices, and insider trading could be prevented. Many amendments of the SEBI Act owe their origin to our recommendations. This has helped to empower SEBI to take steps to protect investors.

LE: You are a trained and qualified mediator. What was the thought behind initiating action to train mediators in the Bombay Bar and also devise a course in mediation?


Rafique Dada: I realized in my practice that every lawyer must work on the problem of arrears and help restore the credibility of the legal system. I decided to lead from the front and took training in mediation with many of my senior and junior colleagues. I worked in the Pension Lok Adalat and helped in resolving many cases, including Motor Accident Claims, where victims and dependents were waiting for years to get justice. My colleagues and I decided to work free of cost to attract litigants and help them resolve disputes. I believed that there can be no greater satisfaction than helping people to come together and achieve a good compromise. Personally, I have helped many people resolve their disputes and avoid costly litigation. Among the beneficiaries of my mediation, there have also been several leading industrialists who were involved in bitter and acrimonious Court cases.

LE: Last year, you appeared for the Bar Association in a case involving the alleged sting video uploaded by India Bureau on the proceedings of the High Court. Finally, YouTube and Google were directed to delete the sting video. Please comment.


Rafique Dada: The case you refer to was rather unfortunate. The Bar was exercised over the allegations made against sitting Judges of the Bombay High Court. These allegations were scurrilous and contemptuous. This was my personal opinion and I am happy that the Court accepted my submission on behalf of the Bar.

LE: You appeared for the SBI in the case where Videocon had moved court against SBI which filed a bankruptcy petition against the company and against RBI which referred it for insolvency proceedings. The case against SBI and RBI was dropped by the Bombay HC. Please comment.


Rafique Dada: This is a case where I appeared and since the issues relating to this are still pending, I cannot comment.

LE: You represented the Board of Control for Cricket in India (BCCI) which wanted its representatives to remain present during the cross-examination of some witnesses by former IPL Commissioner Lalit Modi in an alleged case of violation of the Foreign Exchange Management Act (FEMA). Please comment.


Rafique Dada: I appeared for the BCCI in the matter you are referring to. The Hon’ble High Court passed an interim order, which in my submission protected the interest of my client.

LE: There have been speculations about the “bail-in” provisions of the Financial Resolution and Deposit Insurance (FRDI) Bill of 2017. Some say the provisions were introduced to protect the interests of depositors, while others say that the provisions harm deposits in the form of savings accounts. Please comment.


Rafique Dada: Frankly, the provisions of the Financial Resolution and Deposit Insurance (FRDI) Bill of 2017 require an in-depth analysis. In our anxiety to help banks resolve their financial issues, care must be taken to make sure that the public does not lose confidence in the banking system. Banks are often under stress but must work under the guidance of the RBI, which has an impeccable reputation. Structures are in place and norms are required to be respected without Government interference.

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LE: Recently, the Supreme Court of India held that foreign law firms cannot set up offices in India or practice in Indian Courts. However, the Apex Court ruled that they can give advice to Indian clients on a ‘fly in and fly out’ basis. Can we please have your views on this issue?


Rafique Dada: I endorse the Judgment of the Hon’ble Supreme Court of India in regard to foreign law firms. The Apex Court has come out with a just solution to the problem which has exercised the minds of many Indian lawyers. As President of the Bar, I reacted with many foreign Bars and argued that many foreign Bars who claim to have a right to practice in India were not ready to give similar rights to Indian lawyers to practice in their own Courts.

LE: Many High Courts have recently opposed the proposal for direct recruitment of District Judges. What are your thoughts on this?


Rafique Dada: I approve the direct recruitment of District Judges. This gives a chance to young lawyers to serve the Judiciary. Many direct recruits have reached the Hon’ble Supreme Court. The most notable being Late Justice Tulzapurkar.

LE: What is your opinion about trying minors as adults in serious cases such as murder and rape?


Rafique Dada: Minors who are a little below the age of majority must be tried as adults for serious crimes like murder and rape.

LE: Why do you think people like Vijay Mallya, Nirav Modi, and Mehul Choksi get away with swindling our banks and the country of thousands of crores of rupees? Do you think the steps taken by the ruling government will deter future scamsters?


Rafique Dada: The three persons whom you have referred to are the subject matter of various proceedings filed by the Government of India. Matters are subjudice and cannot be commented upon. The steps taken to prevent such problems are adequate. Better enforcement is required.

LE: Do you think that the Judiciary is crossing the line with some of the recent judgments the country has seen? Please elaborate.


RAFIQUE DADARafique Dada: The Judiciary is working well against great odds. But for the Judiciary, many members of the Indian public would be deprived of human rights. The power of the State and indifference of the Executive have been put in check by our Judges. Our Judgments have become precedents for all Democracies in the world.

LE: You got a scholarship from the London School of Economics to pursue higher education but famously rejected it to pursue law in Mumbai. What made you take that decision?


Rafique Dada: I had a choice between law and economics. As a young man out of college, I was skeptical of joining the legal profession. However, my late father reminded me that even as a child of six, I used to say that I would like to be a lawyer. On his advice, I took up law and never looked back.

LE: A fresh law graduate has to choose from among three potential career paths – litigation, law firm, or corporate counsel. What would be your advise to him/her?


Rafique Dada: I would advise law students to work in a law firm and take hands-on experience at all levels including the level of filing cases. Ultimately, my advise is to start independent practice and wait for the first client!

LE: You’ve often said that you believe in law as an agent of social change. Do you think it has helped bring about social change, considering the dog-eat-dog world we live in today?


Rafique Dada: Law is an instrument of social change. Law and Judgments of Court help to make social changes for the betterment of society. Today, the Judgments of Courts protecting against noise pollution and even protecting against pollution caused by firecrackers have become landmarks in our legal system. Courts have helped to protect privacy and have also helped to empower and protect women. Slowly but imperceptibly, society is accepting the social change.

LE: What is your idea of a work-life balance? How do you see yourself riding into the sunset?


Rafique Dada: I work hard. My principle is to give my best to every matter and never worry about whether it is good enough. I am grateful to the Almighty for his bounties. I would like to be remembered as a humble Advocate who practiced the profession of law and was in awe of its Majesty and Reach.


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