"Hijab judgment is a significant march of the law": Senior Advocate Sajan Poovayya in an exclusive interview with LawBeat

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Sajan Poovayya, Senior Advocate, while defending the College Development Council of the government PU College, Udupi, in the ‘Hijab’ case, questioned the societal imposition of restrictions on clothing for girls and thrusting on “modesty” for them, when no such rules apply to boys. Povayya contended that most of these children are minors and the decision to wear a Hijab should be left to them upon attaining majority.

"I have a duty to ensure that I achieve secularism as enshrined in the constitution", he argued.

The College Development Council was in the eye of the storm during the proceeding, the full bench of Karnataka High Court was considering whether it had infringed upon the fundamental rights of the students by enforcing the uniform and whether disciplinary inquiry should be initiated against them for their actions.

Poovayya’s arguments succeed in the High Court as it held that schools have the power to enforce uniforms on students as it is a reasonable restriction on fundamental rights. The High Court had further held that there was no case made out against the CDC to initiate disciplinary enquiry.

In this interview with LawBeat, Poovayya shares his journey and experience with the Hijab brief and why the judgment delivered by the Karnataka High Court is “a significant march of the law".

He also shares his experience with social media while arguing the case and why he feels “Social media should be a platform for debate, not disparagement.”

Hailing from Coorg, Poovayya, describes his experience of transitioning from his native to Bengaluru to Delhi as “smooth and timely.” Speaking of his journey from being a law student to a managing partner of a law firm almost immediately, he says it is “a wonderful result of favourable circumstances.” Speaking at length about how he became an expert in technology litigation, Poovayya notes that Computer law had fascinated him and this fascination was duly supported by the Information Technology boom in Bengaluru in the 1990s.

Speaking of why he chose to be designated as a senior advocate despite being a managing partner of a successful law firm, he says he “thoroughly enjoyed everyday of his existence as a senior advocate and will continue to do so.”

Calling the increasing legal awareness among the citizenry as a positive change, he says, “people who were hitherto subjugated, now have the wherewithal and capacity to approach courts seeking redressal.”

Addressing the increasing mental health issues among young lawyers in the country Poovayya notes that “a vast majority of the juniors in this country are paid below par.”

Read the interview for a detailed take on the above mentioned aspects:

What was it like to go from Coorg to a metropolis like Bangalore for education/work and subsequently to a bigger metropolis Delhi? Can you describe the culture shock you experienced? How did you cope with it?

My transition from Coorg to Bangalore and thereafter to Delhi was not only smooth, but timely. I felt no shocks, cultural or otherwise, probably because the transition was not overnight. Coorg although is rural in its natural settings, is modern in its social ethos. In particular, the Kodava community to which I belong is more westernized as compared to others in the region. I had the benefit of being schooled in some of the oldest schools in Coorg, which traditionally had continuous cultural exchanges with similar institutions in Europe. The Jesuit schools in Coorg not only imparted modern education, but also ingrained liberal ideology in the student community.

Post schooling in Coorg, I moved to Bangalore for my intermediate collegiate education and for my first degree of law at the National Law School of India University (NLSIU). The law school was a melting pot with a vibrant student community. The law school of those years under the stewardship of doyens such as Dr. N.R. Madhava Menon, Dr. N.L. Mitra and Justice E.S. Venkataramiah not only imparted legal education, but also helped students build strong character. I also thoroughly enjoyed my stint at the London School of Economics and Political Science. LSE probably pushed me further into the domain of libertarianism. The law school readied young souls to face extreme challenges. I therefore found no culture shocks or extremities either at the Bangalore Bar or Delhi Bar.

Educational institutions play an important role in building a person’s character and equipping her to face challenges, in the course of life. I was lucky that my school, St. Anne’s at Coorg; and the Law School at Bangalore equipped me well and provided me shoes to tread unknown paths. But as they say, your destination is not dependent on the shoes you wear but the steps you take. I have always been an explorer. New challenges in unknown locations excited me the most. It is probably for that reason, I chose not to practice at the Coorg Bar and moved to Bangalore. It is probably for the very reason that I chose not to continue at the Bangalore Bar a few years after Designation and chose to relocate to New Delhi. Having now spent sufficient number of fruitful years in New Delhi, I find the Delhi Bar (an amalgam of Supreme Court Bar, Delhi High Court Bar and those of National Appellate Tribunals) most vibrant and most accommodating. The Delhi Bar welcomed me affectionately and I count some of my best friends at the Bar in New Delhi. The uniqueness of the Delhi Bar is, it not only accommodates talent from all over the country, but also provides such talent fertile ground to further grow. The opportunity to argue against the best legal minds in the country, continually on a day-to-day basis, is the best gift the Delhi Bar has to offer. My journey till now has been exciting, to state the least. I look forward to further exciting challenges as I go along. My transition from Coorg to Bangalore and onward to New Delhi has been thoroughly gratifying.

What prompted you to start a law firm immediately after graduating?

Starting a law firm immediately upon graduating and enrolling at the Bar was a result of a combination of circumstances. I graduated from NLSIU in 1996 and had to undergo a year of compulsory internship prior to enrollment, in compliance with extant Bar Council regulations. Although my seniority at the Bar was reckoned from 1996, my enrollment was in June of 1997. The law firm Poovayya & Co., opened its doors in September 1997. Why would a young lawyer, a greenhorn at the Bar chose to establish a law firm? As I said, a wonderful result of favourable circumstances. Through my five years at the National Law School, I clerked with Mr. Vijay Shankar, Senior Advocate. I would work at his Chambers every evening after school and well into the night. I drafted petitions, researched on briefs, prepared submissions for Senior Counsel and even tagged along to courts. Through five years of clerking, I completely familiarized myself on the workings of the Karnataka High Court. I was familiar with how the registry operates and familiar with the thought process at the Bar. An additional year of formal internship post-graduation, cemented my confidence levels. Post enrollment, I approached my Chamber Senior Mr. Vijay Shankar who was then the Advocate General for Karnataka with a request that I be permitted to start a law firm. He was extremely encouraging. Go on you have my blessings, he said. “If you succeed, I will be very happy for you; if you don’t, the doors of my Chamber are always open”, were his words. I now had a further safety net.

My wife had graduated from NLSIU by then and had started her legal corporate career at a large enterprise. She supported me in many ways including financially. What more could I ask? I therefore jumped at the opportunity and established Poovayya & Co., in 1997. In a span of three years, by the year 2000, the law firm had grown substantially and was one of the larger firms in the city in terms of the size, human capital and turnover. There was no looking back from thereon. A little more than a decade thereafter, upon being designated as Senior Advocate, I quit the firm. I am proud that the firm continues to grow and today is one of the largest firms operating in Bangalore. I have not been a part of the firm for almost a decade now, but the fact it continues to grow makes me proud.

What drew you to IT and data protection laws? It’s definitely an up and coming field but how did you get to choose it?

When I joined the Bar almost three decades ago, specialization was a rarity. The Bar only had broad segregations. You had a Criminal Bar, a Civil Bar and a Tax Bar. Corporate litigation, commercial litigation, monopolies and antitrust litigation were all categorized broadly as civil litigation. Although I joined the civil side of the Bar, in my initial years I undertook considerable work at the criminal side of the Bar too, particularly NDPS cases. A lawyer drifts towards specialized verticals within the law depending upon the briefs she receives.

The economic ecosystem in Bangalore was at a cusp during the mid-nineties. The city had begun this rendezvous with information technology. Towards the end of the nineties Y2K bubble was looming large and every technology company worth its name was working on it. At that point in time, a lot of foreign corporations, particularly US multinational corporations were undertaking considerable business with technology companies located at Bangalore. Those foreign corporations needed domestic lawyers in Bangalore who understood a bit of technology and could help with various contracting and representative requirements. During that period there were very few national law firms capable of undertaking technology related legal work. Computer law as we called it then always fascinated me.

I dabbled with elementary computerization early in life. My first personal computer, which my father gifted me in 1991 was a 80386 machine, with a 32 bit micro processor and a storage of 40 MB, which was considered large for those times. My love firm for computerization began with that machine.  Therefore, when our little law firm based in Bangalore got the opportunity to undertake computer law related work, a precursor to technology law, we jumped at the opportunity. Briefs and engagements from technology companies in the Bay Area pushed us towards specializing in technology laws, data protection and internet regulation. Technology companies which are worth hundreds of billions of dollars today were very small then. With growth came larger technology law related representative requirements; and that growth spurred technology work for all of us.

This answers why I continue to undertake considerable work in areas of information technology, data protection and internet regulation today. I have been lucky to witness the transformation in this legal vertical over the last 25 years and I have grown with it. It is not just sufficient to know the law. It is important to know how the law interoperates with information technology in the business vertical.

A lot of senior partners at law firms choose to not get designated to run the firm, why did you choose to get designated?

Let alone choosing to be designated as Senior Advocate, I did not even choose law as my academic/professional avocation at first instance. I was not a humanities student. Biology and mathematics excited me the most. I choose the medical field and wanted to become a doctor. My father convinced me to sit the entrance examination for NLSIU. I was told I would be given the freedom to choose between law and medicine, should I pass the law school entrance examination. Even during those times, the law school entrance examination was a tough cookie and a mess. I wrote the entrance examinations for both law and medicine. The law school results were published earlier and my father once again convinced me to enroll at the law school, which I did. My father is a litigator at the criminal side of the Bar and I have always seen him enjoy his work. That spirit probably influenced me to choose law over medicine. As a student of the law at NLSIU I had no doubts in my mind that I wanted to be a litigator. My father’s court room lawyering at the mofussil courts in Coorg inspired me and many others. I had absolutely no doubts in my mind the litigation was the vertical for me.

As I have said earlier, the law firm began in 1997 and grew rapidly. With rapid growth came various administrative responsibilities which pinned me down and kept me away from court room lawyering. I hated the managerial part of my role in the law firm. I therefore did everything to spend more time in courts and as less as possible in the office. I fell further in love with litigation and that too in a wide variety of areas in the law during my stint as the Additional Advocate General for Karnataka, which opportunity came my way very early in my career. It is at that point of time, I decided that I would quit the law firm and operate purely as Senior Advocate, should I be designated. My Senior Advocate designation was in the pre-Indira Jaising Judgement era. The process was rather cumbersome. I do feel blessed at being designated rather young, which exceptional for those times. No sooner I was designated as Senior Advocate, I gave up all equity in the firm and resigned. I am of the view that a Senior Advocate should not be attached to a law firm and should be completely independent. It is that sense of independence which gives a Senior Advocate the capacity to consider briefs from a different perspective. Quitting the law firm did adversely impact me financially, but that was short-lived. I have thoroughly enjoyed every day of my existence as a Senior Advocate over the last decade and I continue to enjoy my journey.

You recently successfully defended the College Development Council in the Hijab matter, what was your experience with the brief?

I enjoy working on all briefs that I receive and the Hijab litigation was no different. Although the Hijab controversy received unnecessary publicity given the political discourse that surrounded it, as a legal brief it was a pure constitutional matter. I have always been a lawyer supporting free speech and libertarianism. I have thoroughly enjoyed my time arguing for individual freedoms whether be it in Shreya Singhal, Puttaswamy-I (Privacy) or Puttaswamy-II (Aadhaar). I continue to enjoy my work for various large internet intermediaries, in support of free speech. It was therefore only logical that I accepted a brief from the College Development Council, which supported the prevalence of a uniform dress code in tune with secularism and libertarianism, devoid of the shackles of religious prescriptions being imposed upon a person.

A full bench of the Karnataka High Court consisting of Chief Justice Ritu Raj Awasti, Justice Krishna S. Dixit and Justice J.M. Khazi did a splendid job, in patiently considering all arguments, however, volatile they may have been; distilling them to core constitutional issues; and answering them brilliantly. The judgement is a significant march of the law.

You are moderately active on social media, how did it react when you argued the Hijab matter?

It is true that I am moderately active on social media. Technology is a great tool for social engineering. It is therefore important to comment responsibly on social media. One should never lower the level of discourse on social media. Whilst arguing in the Hijab litigation I received a fair share of criticism from multiple quarters and a larger share of appreciation. I personally believe that one should not be influenced by the bouquets and brickbats one receives through social media. Social media should be a platform for debate, not disparagement.

Do you think matters that ideally should be addressed at a smaller level are reaching the courts more often these days?

Citizens approaching courts, invoking judicial remedies is a positive sign. More litigation in courts does not necessarily mean that society is becoming more litigious. On a positive note it means, people who were hither to subjugated, now have the wherewithal and capacity to approach courts seeking redressal. The doors of our courts are no more so heavy that the downtrodden cannot push them open. More litigation at the lower courts is a sign of more people seeking judicial redressal in a pluralistic democracy. Compared to the United States for example, the number of litigations per capita in India is still very low.

Do you think litigation in India is moving in the right direction, in terms of technology, upgradation and practices?

The litigation vertical in India has so much more to learn from other major legal jurisdictions, in terms of best practices. That said, in my view, litigation practice is moving in the right direction in India. The level of discourse that one finds in Indian courts, in matters of constitutional law and technology law, is fairly high. However, we certainly can do better by adopting some of the best practices of the west. By way of illustration, reducing the time spent in oral submissions in courts and improving the quality of written submissions, will go a long way in reducing protraction of litigation and increasing the qualitative level of court room lawyering.

It is heartening to note that the younger generation of lawyers entering the Bar are not only smarter, but better equipped than the older generation. They are not only more intelligent, but also more committed. The younger generation at the Bar use technology to aid court room lawyering much more than the seniors do. I have no doubt, with time, the younger members of the Bar will usher a transcendental improvement in litigation and court room lawyering in the country.

There is a lot of discourse around mental health issue among the lawyers, COVID especially played a big role in it. why do you think this deterioration in mental health is happening in this day and age?

Mental health issues among lawyers is a very important question that has received very little attention. I am glad you bring it up. Stress levels in the legal profession have been traditionally high. Some studies have compared the stress levels of a litigator to those of miners working in underground shafts. The pandemic further complicated matters, augmenting stress to disproportionate levels. Unfortunately, there has been little discourse on this subject at the Bar, except in recent times.

The judiciary, of late, has drawn attention to this issue with some of our Judges initiating discourse and action at various levels. In my view, seniors at the Bar should do their bit to reduce stress levels suffered by young lawyers, if not alleviate it completely. For starters, I am of the view that seniors must pay juniors at the Bar well. The remuneration to junior advocates should be at level sufficient for juniors to support a comfortable life. Barring certain artificial islands of prosperity, a vast majority of the juniors in this country are paid below par. Money may not be everything in this profession, but it indeed plays an important role in ensuring that younger members of the Bar have enough to support a decent lifestyle, so as to enable them to contribute at the Bar, without having to maintain a sub-optimal existence. The sooner seniors recognize this issue the better it will be. Apart to financial security, seniors should also ensure that younger members receive adequate opportunities to display their capabilities at the Bar. It is also important to establish institutional mechanisms to ensure that members at the Bar who suffer from depression, stress and anxiety receive therapeutic and counselling support.