Senior Advocate Sharan Jagtiani
In the first part of the interview, Senior Advocate Sharan Jagtiani discussed why the profession of law is unique in India, offered a glimpse into counsel practice in Bombay and talked about his heroes at the Bar.
In Part II, Jagtiani discusses the role of a lawyer in securing justice, the importance of hybrid hearings and his take on nepotism in the legal fraternity.
NJ: Was it more challenging to work with a senior who is much sought after and who also had many remarkable juniors?
SJ: It wasn’t. That is because of how lucky I was with the people around. I think in theory, it can be an intimidating experience, but not when you have a senior who has a great temperament and is very accessible, somebody that you can talk to. Also, the other juniors who were there around me made my early days at the Bar and in chambers a very pleasant experience. When I joined, there was a bit of a gap between me and the other juniors. Zal Andhyarujina had already been with Mr. Dwarkadas for a few years. He was already successful as an independent counsel. He would spend half the day with Mr. Dwarkadas and then go to his own chamber.
Senior to Zal was Madhavi Divan. She was really kind. We didn’t necessarily spend that much time together, but whenever she saw an opportunity to get me involved or to push a door slightly open for me, she did it. She was responsible for me getting a retainership with the Bombay Environmental Action Group.
Another junior over there was (now Justice) Kamal Khata, recently elevated as a High Court judge. He too was a lot older than me. From the time I was there, whenever I had any query, I could ask and would get so many answers. Nothing that you would be able to find in a textbook. Because of the people who were around, their nature and temperament, you never felt intimidated.
NJ: When did you decide to go independent?
SJ: I stayed in Mr. Dwarkadas’ chamber for longer than I perhaps thought. That is because in 2011, when my first daughter was born, there were a lot of medical complications. It was a very difficult time for me personally. It was not easy to transition out to your own chamber when you have issues to deal with on the personal front. And of course, Mr. Dwarkadas never even broached the subject. But for quite a while, even when I was in his chamber, a lot of my work was directly with solicitors/attorneys and appearing in court, but I was still doing a fair bit of work with Mr. Dwarkadas. So I was quite independent for about 5-6 years in Mr. Dwarkadas’ chamber and a move out could have happened earlier. Ultimately, the conversation came up in 2013 and I moved to my own chambers in January 2014, after spending a little under 10 years with Mr. Dwarkadas.
NJ: How did you expand after that?
SJ: There is a dearth of chambers for young aspiring juniors to join. Even when I moved to my own chambers, I already had been spoken to by a couple of people who wanted to join me. It is a difficult decision because you never know if you are ready to take on a junior. Sometimes you tend to overthink it. By the time I moved to my own chambers, I already had a couple of juniors who had started with me. Then it tends to expand very quickly. Many of the chambers are actually completely full to capacity. Naturally, whenever someone is starting their own chamber, because there is space, people will think of that as a possible choice. Then the challenge is how do you accommodate more juniors who are keen to make a career as a counsel.
NJ: How do you choose your juniors?
SJ: I think my juniors have chosen me, more than the other way round. I don’t believe in interviewing people and making a judgment on who is qualified or appropriate to be my junior, because I was never interviewed. I do not believe that in a 5-10 minute meeting or by reading a resume, you are going to learn anything about the person so as to make the judgment that they should or should not get the opportunity. The juniors that I have are literally a function of people applying to me and if I had the space, I am happy to accommodate. If I do not have space, I try to tell them that it may take a year or a year-and-a-half. If they are already with law firms and if they are prepared to spend time with the law firm, they are in waiting for that period and once that is over, then they start.
I generally do advise people who apply to me that it makes a lot of sense to have spent some time with a law firm before thinking of counsel practice in a counsel’s chamber. That gives you a much more holistic experience. You really learn the building blocks of how the system functions. You are there with your client in the department affirming an affidavit and filing it. You are drafting praecipes. You are learning the ABC of how a litigation starts much before you go to court. Your first contact with a client, taking him to a counsel or being in a solicitor’s office advising him on first steps, writing the first advocate’s letter. Also doing the basics in court.
If you have done that for a few years, so much of what you see during your career as a counsel, especially in the initial years, will make much more sense with an innate understanding of the processes in our system. Desai & Diwanji gave me an opportunity to appear in courts for basic things like adjournments, for circulation, to appear before the prothonotary. When you have had these experiences for a year or two, and then you come to a counsel’s chamber, to my mind, things fit in much better.
Those early days in court as a first year lawyer in a law firm were great fun too. I remember, there was this old suit in which Desai & Diwanji was on record. We were getting no instructions from the client and had to somehow manage multiple adjournments because otherwise, it would get dismissed. None of us wanted to be the fall guy every week in asking for an adjournment. So, me and two of my closest friends (Gautam Bhat and Amit Tambe) would show up in the High Court before the judge. Each week, one of us would be in a band and gown and appear as the ‘junior counsel’ and the other two would stand behind in a jacket and tie as the instructing attorney from Desai & Diwanji. We rotated who was going to be the counsel and the attorneys. The junior counsel would ask for time and look helpessly at the two behind. This went on for three weeks, where it was the same three but in different combinations of attorney and counsel. We managed to steer the matter away from a dismissal!
NJ: When did you decide to apply for senior designation?
SJ: Before the new system came, there had been a hiatus for quite some time because the matter was pending before the Supreme Court. A lot of lawyers who had applied for seniority had been on hold and had there not been a hiatus, I am sure many of them would be seniors earlier. In my mind, I will always regard them as my seniors. When I was 41 in 2018, I spoke with my family, my senior and a couple of other professionals that I am close to. When they said that one should apply, I did. And you keep your fingers crossed and hope for the best. But it took over a little over a year for the decision to be made.
NJ: What do you think of the new system of designation?
SJ: I think it is a good system. Recently, a Bench of the Supreme Court has modified the marking process. The interview was not one-on-one. It is a group interaction. It’s hard to say how much that can contribute to the marking and decision making. Publications, I believe count for fewer marks, and it is combined with lectures and teaching. I think it is generally good because it lends an objective element to the process. But, at the bottom of it all, I think people and candidates are going to be judged based on how they are in court and how they are perceived as professionals. That cannot be fully captured in a process that spans a few months. That is something which has been going on for years before your application and that remains the most important factor, in my view.
As a new system, there is going to be a process of trial and error and you must be flexible about it. Two years down the line, you may choose to tweak it. It is good you have a system now specified. But it is also important that we don’t say it is invariable. You must be prepared to change the system based on experiences.
NJ: Is there a particular case which you will always cherish?
SJ: Of late, the ones that I cherished tended to be reversed in appeal (laughs). I just think it is best not to name individual cases.
I just like the thrill of being involved in matters, of arguing, of giving it 110%. If the result is not favourable, does it bother you? Yes, it does. But you do not have any regrets. It is just that in a competitive environment, no matter what the bonhomie and mutual respect is, when we are arguing, everyone is doing it to win. Everyone wants the best possible outcome. I equate it with a contact sport. Ultimately you want to leave the field having succeeded. But it doesn’t or shouldn’t become a personal loss or a personal win.
In my mind, there are a few I would cherish. When you do well, especially when you think you are punching above your weight, or you are before a judge who is very engaging, who is asking difficult questions, you feel that you have done well in those circumstances. Those are the ones you tend to treasure the most.
NJ: In all of this, do you think this profession is about winning and losing rather than securing the ends of justice?
SJ: No. I think there are two parts to it. One is, when you are in a matter, it is about the matter. It is about the client, the justice. Obviously, that is what you are fighting for. Yet, as a counsel, I am one step removed from the client, because there is the interface of the attorney or solicitor. That is in some ways a good thing because whilst you remain completely committed to the cause of justice, you also don’t lose your objectivity.
And I think that is where this system has a particular advantage. Your ability to get justice for your client is sometimes subserved while retaining clarity and objectivity throughout the process. If you are totally subjective, it may give your client comfort because he feels he has got a lawyer who is as driven about the matter. But does that translate into getting the best results in court? Maybe not. When you are in a matter which is crying out for justice, you definitely do take that to heart to a certain extent. You are supposed to, it is a human response.
At the same time, as a professional, you will be briefed in matters where justice is not on your side. What happens then? Do you give up the brief? Do you say I do not want to appear, because I don’t identify with the cause? That is not the answer. We are lawyers who mostly do civil work. We don’t face the dilemma that criminal lawyers face in sensitive cases. But I think that as a lawyer, your duty as a professional is not to pre-judge. It is obviously good to know objectively where the truth lies, what the pitfalls are, where the balances lie so that you can be measured in your approach. Which may in a difficult case bring you better results than being completely one-sided in your approach, in a case where you know that justice is not on your side.
NJ: Do you feel there is a gap between the number of male and female arguing lawyers in the Bombay High Court?
SJ: There is a gap. Part of this is because working women have so many other responsibilities too and the perception is that at some point, they have to accommodate all of that. My wife was a transactional lawyer. She has given up her career to be a caregiver to my elder daughter, who has special needs. That is the ultimate sacrifice, to hold the family together. It is this notion that they are the ones who will make the sacrifices more than men and that is why it may impact their careers. The profession must somehow redress that. That said, I am noticing amongst my juniors and chamber colleagues and other friends of mine in the profession, who are women, that there are more who want to argue. I am seeing them in court more regularly. I think they are really talented. The trend is changing.
NJ: What is your stand on virtual or hybrid hearings?
SJ: One of the accidental and unintended benefits of COVID-19 is that because of the virtual hearing system we had to adopt, justice became a lot more accessible. You had lawyers practicing outside Bombay who could without the time and expense of travel, appear in matters in Bombay and the same thing worked for the Supreme Court. I also felt that once the judges and lawyers got a hang of the system, while it will never produce the same efficiency as a physical hearing, matters were being heard and decided with a fairly high degree of efficiency, at a much lower and affordable cost, much to the advantage of the lawyer and the client. On a cost-benefit analysis, it may not have given you everything that a physical hearing can give, but it gave you a lot.
I think that it is imperative that we retain the benefits of technology, but weave it into the physical system. I have spoken to other professionals on how this could be done. We do not want to give up on the physical system being the primary method. It is not easy to have long hearings or very contentious hearings over virtual platforms. However, in a day in court, the majority of matters don’t fit into this category. There are directions or procedural hearings which you know are not going to be effective. Those should continue over virtual platforms or should be hybrid with a virtual hearing option.
I think that you have to identify what type of hearings you will retain a hybrid or virtual system for. And once you identify that, then dedicate one or two days for those hearings. Three days a week can be only physical. We all know in theory amendment, chamber summons, and so on, which are even on the daily board shown as a different class or category of matters, are supposed to be less contested. Why not take those type of matters for hybrid or virtual hearings? So that a client who is from out of town or state won’t have to incur costs or expenses for those type of matters.
I have done a lot of long hearings during the COVID-19 years, which have gone on for days and days, on virtual systems where the virtual courtroom had only people in that matter. Time was earmarked for them and they functioned seamlessly. You have got judges who are so adept with technology. The problem is not anyone’s unfamiliarity with technology anymore. It is just about trying to find a balance where that system can co-exist with physical hearings, and I personally think there is room for it.
NJ: What would advice would you give to fresh graduates who want to join the profession as counsel?
SJ: Fortunately, we are in a city and culture where merit is very important.
Sometimes I hear this discussion about nepotism and how it affects our system. I do agree that if you are from a legal family, maybe finding your way is easier such as in getting internships or finding a chamber. But is it a permanent advantage? I don’t think so.
An attorney is going to work with a person who is going to be the most talented and honest with his/her work and delivers positive outcomes.
If you aren’t from a legal background, give it your 100%! Opportunities will start coming and then regularity will come. Opportunities will come if you are at the right place and the right time, so make sure to be in chambers even on days when you don’t have or expect to have any work. Merit and hard work will be discovered by the people who are interested in working with you.
And even if you are from a legal background, it’s pretty much the same mentality. One cannot have a sense of privilege and one cannot take things for granted.
My observation both within my chamber and outside is that those who are not from legal backgrounds have in a few years gone on to really do well and have not bemoaned the position of those who are from a legal background. Equally, those who are, have never worked with any sense of privilege or entitlement. I genuinely think there is a very good work ethic amongst young lawyers in Mumbai.