Who is Shyam Divan, and why is he at the forefront of the Aadhaar battle?

Sunny Sen July 20, 2017

At 84, Anil Divan appeared for senior advocate Ram Jethmalani to help him fight for the right way to bring back the black money stashed abroad. “In a democracy we should never give up the fight,” he told a journalist, and criticised the Narendra Modi government for violating the confidentiality clause to protect accounts holders.

Two years later, on March 20, 2017, Divan, one of India’s most eminent and fearless lawyers, passed away at the age of 86. By then, in a career spanning over half a century, he had played an important role in shaping up judicial precedents in the country’s legal history.

He was the counsel for the Karnataka government in Cauvery dispute in 1992, challenged the Prevention of the Terrorism Act, appeared in Bhopal gas tragedy case, was amicus curiae in the famous Jain Hawal case, and appeared in the Oleum gas leak. Contemporary to other eminent jurists like Fali S. Nariman and Soli Sorabjee, Divan stood for accountability and independence of judiciary, and fought for people’s rights and freedom.

Anil Divan, Shyam’s father, was the counsel for the Karnataka government in the Cauvery dispute in 1992, challenged the Prevention of the Terrorism Act and appeared in Bhopal gas tragedy case

Apart from the entire judicial fraternity, politicians including finance minister Arun Jaitley and eminent businessmen attended the cremation at Lodhi Road Crematorium at 4:30PM, on March 21.

At the funeral, a senior advocate of the Supreme Court of India, Shyam Divan, stood silently, arms folded. He was looking at his mentor and father on the pyre.

Shyam Divan is Anil Divan’s protégé and son. Today, he is best known as one of the lawyers representing petitioners in a highly anticipated hearing in front of a 9-member bench of the Supreme Court on Right to Privacy as a fundamental right. The other advocates on the case are Gopal Subramanium, Soli Sorabjee, and Arvind Datar.

ALSO READ: Aadhaar-privacy Supreme Court hearing: Picture abhi baaki hai

In some circles, he is a legal rockstar, who has relentlessly fought for balance in the way the Aadhaar project is implemented. “We gave birth to the State. We are sovereign. Will we be put on an electronic leash for our entire lifetimes? If from birth onwards, the State knows everything about you, will the relationship between State and individual remain the same?” he has stated in court. His statements continue to be quoted in arguments against the identity project.

Fighting for civil rights

The day after his father’s death, Divan, who is in his mid-fifties, was back in court. “If he has a commitment, he is always there for the matter,” says Pallavi Shroff, managing partner of Shardul Amarchand Mangaldas & Co., who has known Divan since he graduated from college.

“Shyam is a mature lawyer; he is clever, is a good speaker, understands the art of advocacy, listens to every and all the perspectives, never comes unprepared, always reads his brief, has the ear of the court, and is a nice person,” says Shroff.

Like his father, Shyam, too, cares deeply and passionately about civil rights.

“He is deeply committed towards civil rights,” says Gautam Bhatia, a Delhi-based lawyer and author whose live Twitter thread documenting Divan’s stirring speech in the Supreme Court in the linking-Aadhaar-with-PAN hearing in April made Divan a liberal icon.

Like his father, Shyam, too, cares deeply and passionately about civil rights.  

“His philosophy is all about the balance of power between the State and the individual. If there is too much concentration of power in the hands of the State, it will mark the end of what we call a civilised society,” says Bhatia, who has worked with Divan in the Aadhaar case on privacy.

To put that in context, linking Aadhaar to various public schemes, and PAN cards have been widely criticised by NGOs, academicians, working groups, and lawyers. At least three cases are subjudice in India’s top courts, one which is breach of privacy.

‘As far as I am concerned, the State cannot take away my body’

Divan believes that citizens of this country should be given a choice as to what they want to disclose to the government, without compromising one’s right to dignity and privacy.

“It is a personal cause for him,” says another person who has been working with Shyam for over four years (the individual did not want to be named). “His only concern with Aadhaar is right to privacy. He believes that an individual’s sovereignty with get lost because of Aadhaar.”

Shyam Divan declined a request for an interview made by FactorDaily via email.

Not many know that Divan’s work in the Aadhaar case is completely pro bono. He doesn’t make a single paisa for appearing it court or preparing his arguments. That’s something he, perhaps, learnt from his father. “He does a fair bit of pro bono work. If it’s public interest litigation, he needs to be convinced about the cause,” says Udayaditya Banerjee, who is a junior advocate in Divan’s office.

Not many know that Divan’s work in the Aadhaar case is completely pro bono.

It’s not only Aadhaar, Divan also represented Naz Foundation, which filed a petition in the Delhi High Court to abolish a portion from section 377 of the IPC criminalising homosexuality, in a famous case that led to a historic judgement (later overturned by the Supreme Court). He also represented Punjab in the Punjab-Haryana water dispute case.

Divan grew up in Mumbai (then Bombay), and became a designated senior advocate, after which he shifted his base to Delhi around one and half decade ago. His success, however, has not changed him as an individual.

“He is passionate about things he believes in. That’s visible from the way he argues, the passion he has…” says Bhatia.

“My fingerprints and iris are mine and my own. As far as I am concerned, the State cannot take away my body. This imperils my life… You can’t take my body part as a condition of me exercising my rights. That is a Faustian bargain. Not permissible under the constitution,”  Divan thundered in court.

His electrifying arguments left his opponents speechless. That is also because he is always very well prepared, whichever matter it is.

The devil is in the details

“Unlike a few other senior advocates, Shyam never misses a matter that is up for hearing,” says Shroff. Other might skip a matter or two, if there are 15 other matters listed under his or her name… This separates Shyam from the flock.”

Before appearing in court for a hearing senior advocates are brief by other advocates who hire them for the argument. Divan’s colleagues say he doesn’t care how long a briefing conference goes on, until he has understood every aspect of the case. “He wants the people to be well-prepared before the briefing. He loses his calm if the counsels are not well-prepared with the answers,” says an advocate who has been briefing and engaging Shyam for over three years now. He did not want to be named in this story.

That has also helped Divan establish himself as a lead lawyer in many critical cases, including the Vijay Mallya case, where the Supreme Court found Mallya guilty of contempt of its order to furnish complete and accurate details of his overseas assets. Shyam also represents the consortium of banks in the share sale dispute of United Spirits Limited (USL) shares sold by United Breweries (UBHL) to Diageo.

The minutiae of living

A source with knowledge of the matter told FactorDaily that four year ago Divan charged Rs 1,50,000 for a hearing. That has gone up to anything between Rs 3,50,000 to Rs 4,50,000, depending on the client. “People take him as the first choice of counsel… he is great at in-depth arguments, he is one of the best,” the source said.

Recently, Divan shifted into his new office-cum-residence at 9, Nizamuddin East, before which he stayed in Defence Colony and worked from a very functional office in Jor Bagh.

“The new office is beautiful, with the office on the ground floor and a lawn in the front,” said the source. Shyam and his wife Madhavi Goradia Divan, also a lawyer and law writer, work from the same office. The second and the third floor are residential.

Often accompanying Divan is Buttons, his golden retriever, even when there is no one in the office.

Usually, office members including his assisting advocates leave by nine in the evening. Shyam, too, takes a short break, goes upstairs for dinner, and often comes back to the office to continue reading on the next day’s matter.

The mornings are early, too. He starts usually at 6:30. Takes a break in between for exercise — at times a run and sometimes a session of badminton. “He is extremely fit,” said a person who has known Divan for a many years. “Often during the first briefing at his office, he is either in his gymming attire or running shorts,” he says.

He works for 15-16 hours every day. But he seems to be a considerate employer, and doesn’t ask his co-workers to stay back. “We leave after the last conference happens… He might be working late night, but has always advocated work-life balance,” says Banerjee.

With all his skills, passion and devotion, Divan may or may not win against the government on what constitutes privacy.

Still, he has already played an important role in shaping India’s privacy laws, and enriching and elevating the public discourse on the privacy and dignity of ordinary citizens.

 


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