Shreenath Khemka on challenges being faced by Young Independent Lawyers

Mr. Shreenath Khemka graduated from NALSAR, Hyderabad [B.A.LL.B. (Hons.) 2012-17] and completed his LLM from University of Cambridge (2017-18). He is currently Practicing as Lawyer in Punjab & Haryana High Court and also deals with cases before Delhi High Court.

In this interview, Mr. Khemka addresses the challenges faced by young lawyers who decide to practice independently at an early stage of their professional career.

Further, he talks about the changes the that we can expect in his areas of practice, i.e. Election Laws and Service Laws and whether Indian Arbitration Regime is headed in the right direction post 2019 Amendment Act.

He has been interviewed by EBC/SCC Online Student Ambassador Aniket Pandey who is currently pursuing law from MNLU, Nagpur

When and Why did you choose to pursue Law as your Career?

That’s a difficult question to answer. I was intrigued with Behavioural Sciences in High School.Ergo I was interested in economics, politics, psychology, and philosophy; disciplines that tried to understand how human beings behave.

Through my dear-colleagues at school, I found that Law is a good area to explore such interest. While preparing for CLAT I came across a lot of questions that made me realize that Law is something which fit into the larger area of where I wanted to work.

During Law School, I discovered that my love for the Practice of Law was greater than my love for Law itself.The idea of standing upin a Court, arguing before an audience, and clinching the point; was more engaging than dealing with law doctrinally.

2. How and when did you start preparing for L.L.M.?

I did not really know much about preparation for Masters till my second year at Law School. At the end of my first year, one of my seniors got into Oxford. It was then I realised that I could pursue my childhood dream of going to Cambridge, as a viable option. Otherwise Oxford, Cambridge, Yale seemed to be out of reach for an average Indian student.

I wasn’t really preparing for my Masters because I didn’t really know what was required.The only thing I would do was to study consistently and diligently, as a result of which my grades were always in the top 2 or 3 of my Batch.Subsequently, I figured out that three important things are required to apply for a Masters.

1. CV –reflects consistency in what you have done

Your CV must demonstrate consistency of pursuit in any area of your choice. For students wholly engaged in academic pursuit, consistent grades demonstrate upon your ability to work hard over a long period of time, precluding the possibility of a fluke.

Different Universities look into different aspects of your CV. Some universities give importance to your work experience, some may focus on your academic performance, or your publications. But,one common aspect that every good CV reflects is the consistency in pursuit. You have to be consistent in whatever you do.

2. Your Statement of Purpose –tells people what you want to do

The Statement of Purpose explains the journey you envision for yourself. It is not enough to have been hard working and successful, if you do not have a purpose or direction in life. A good mind is merely a stray tool, if not put to an honest purpose. By far, this is the most underrated aspect of the Application process. An honest Statement of Purpose requires deep introspection, and a venture as pensive, is in itself a great epiphany for young minds.

3. Your Recommendation Letters –how others find working with you

Human pursuit is not an isolated venture. Therefore, it is important for you to fit in well within an organizational framework. Notwithstanding, there are also finer aspects of human pursuit which cannot be reduced into a self-authored statement. In this regard, Recommendation Letters should not merely be read as letters of praise, but as testimonies of one’s character and outlook. Overall, the CV, Statement of Purpose, and the Recommendation Letters should build a coherent Story of your vision and your demonstrated ability to reach it.

3. What would you advice our readers about time management?

Time Management was the most underrated part of Law School.

Many people think that time management means drawing up a table with an hour to hour marking of what you should do. That’s not how I understand time management, as such meticulous planning can be stifling for creative thinking.Good time management means keeping track of what been done.When I was in law school, I used to have apiece of paper stuck to the inside of my wardrobe wherein I would mark each day of the month.Everyday, I would write down whatever substantial that had been done during the day. Work did not necessarily have to be only academic or literary, it could have been anything of value. If for 3 consecutive days there was nothing that I’d written down,then I’d question what I was doing during that time. That was enough to shake me out of my ennui.

Good time management helps you even more after Law School. If you join a Law firm or try for a Counsel practice, a lot of work can pile up if you do not keep a lid on how your time is flowing.Hence, one must inculcate good time management skills during Law School to set the grounding for the upcoming professional life.

4. Why did you decide to start practicing as an independent lawyer?

There were two reasons for this.

Firstly, I like doing things myself. I feel that I learn better by doing things rather than watching others do it.

Secondly, I am a passionate man. I do not second guess the things I am passionate about. And perhaps passion knows no reason. As I said before, the act of standing up before a Judge,pleading my case, and observing his pursing lip gradually melt into a wispy smile; is an electrifying feeling.

5.Young lawyers aiming to start the practice of law have a lot apprehensions and concerns. How did you deal with those concerns and what is your advice for the aspiring law practitioners?

There are 4 major concerns for any young lawyer.

1. Forum – The choice of a forum depends almost entirely on your area of work. If you are aiming for a criminal practice or constitutional practice, you can start from the courts in the city you are residing in, or the high court of your state; because all these courts will have good criminal and constitutional law work. But if you want to deal in specialised area such as Regulatory law or International law, then you will have to move to a centralized place like Delhi or Mumbai. Additionally, staying in your own State allows you to tap into your network for procurement of work. Drawing an analogy, Litigation is like politics. It is easier to win an election from your home constituency than winning an election from some other state.
2. Money –The demand elasticity of money can vary for different individuals. Some might be in need of a steady cheque, while others may be willing to hold on for a while. Lawyers who aim for an independent practice require patience for the first 3 to 4 years. You cannot expect a handsome income from the start. However, during the early years of practice, you don’t have too many responsibilities. Once you establish yourself in these early years, inflow of money shouldn’t be a big concern.
3. Guidance – Even though I started practising law independently at a very early stage, I don’t advise aspiring lawyers to do the same. The prime reason behind this is the lack of guidance one faces without a mentor.The shift from reading the law to pleading the law, is quite surreal. This comes with many challenges of earning your place in the court and learning the craft. Young lawyer usually get trivial cases with little private or State interest. However, in sensitive matters, is where you start feeling the pressure—perhaps opposing lawyers are able to manipulate the Court,or perhaps sometimes your delivery is not welcomed with the same force by the Bench. To prepare for such situations, you need guidance. Finding a good source for guidance can itself be a challenge, as I shall explain later.
4. Procurement– This is the biggest challenge that a Counsel faces. There is no lawyering without work, and there is no work without procurement. Simply put, your ceiling is determined by the work you get. Thereafter, do your skill and hard work shine through.

Finding a Senior

It is very important to find a senior who trusts you with their work because there is no learning in taking adjournments. Practice is an art of storytelling. It is the ability to empathetically convince another human of equity in your cause, whilst drawing force from a corpus of legal rules. Such experiential learning can occur only if there is mutual trust between you and your mentor, and when he gives you the work to do.

If you hasten to work with a Senior Counsel,you will find yourself grasping a fractional piece of a very large puzzle.What you may gain in terms of depth, you will certainly lose in terms of perspective. Perpetually clerking with a Judge is equally myopic, as the practice extends way beyond doctrinal research.In my opinion, a Counsel’s job is far more incisive, creative, and challenging than a Judge’s.

However, the grundnorm is to invest in a good mentor. Wherever you go, you must offer value. If you are not valued at your workplace, you will not get substantial work, as a result of which you will not learn.It is wiser to swim in a shallower pond and migrate to a deeper pond once your fins develop.

Personal Experience

For someone who wants to start practising independently at an early stage, I suggest two things—firstly, keep yourself busy; and secondly,focus on making the best of today.

To be honest, although I started independently, the same was not my plan. I came back from the US, and there was a gestation period where I thought I would find a place to work. Initially, I went to Delhi, but Delhi didn’t suit me.When I came back to Chandigarh, I didn’t know what to do. Rather than figuring out a senior for myself, I thought that I should just start on my own.There was one gentleman, a very good lawyer who had recently closed down his practice in Chandigarh and had moved to the US. I had interned with him once. He was kind enough to offer me his old Chamber, which was being wound up in the upcoming months. He gave me the liberty to pick up the 7-8 briefs lying undistributed in his Chamber. He allowed me discretion over the cases, with ready guidance when I found myself doubtful.

Therefore, when I started, I had 7-8 cases at different stages of trial.As most of them were admitted matter, I would go to the Court and sit in different Courtrooms and observe proceedings. Truth be told, the Court looks very different to a Lawyer, than it does to an Intern. Slowly, I started picking up piecemeal work from various Lawyers.For some lawyers, I would draft, for some lawyers I would argue. At days I would visit one Chamber in the morning, then go to Court, then visit a second Chamber in the evening, and pick up work from a third and fourth Chamber in the night.

What I did, I did to keep myself busy; something which is a big very big concern for anybody who starts out independently.Slowly as I started getting my own cases,I begun to let go off the piecemeal works, one by one. I started out working on other people’s matters in November 2018, and by April 2019 I had my own practice.

Most of all, I feel that my High Court has been very kind to me. Most Judges here are patient with young Counsels, forgiving their mistakes, and forbearing any breach in etiquette. A warm Judge thaws out the fear and hesitation that unexperienced lawyers face. In that regard I have been most blessed with my High Court.

6. What are the areas of law that you deal with?

I don’t mind practice in any area of law that comes to me. I think as a lawyer you must have the capability to take work even though you may not know exactly how to do it.But, there are a few kinds of cases which come repetitively because you have had some victories in those areas of law and the word gets out.I do a lot of Service Law and Administrative Law matters before the Punjab and Haryana High Court as well as the Delhi High Court. Since Law School my days, I have always loved Public Law; hence it was a natural professional choice.

7. Do you think that the Indian Arbitration Regime is headed in the right direction since we are now shifting to institutional arbitration 2019 Amendment Act?

I think the main obstacle to the growth of the Arbitration has been judicial interference. Philosophically, arbitration is a bilateral contract to move out from judicial scrutiny. Consent of parties must be strictly adhered to, and panglossian public law jurisprudence should not be imported therein. I feel that a growing number of Judges have wrongly ventured into public policy by mandatorily holding parties to Arbitrations by diluting away mutually agreed conditions, such as pre-deposit. It is a self-contradictory act to relegate parties to Arbitration, notwithstanding public law remedies; whilst washing away mutually agreed terms for such a process. Institutional Arbitration under 2019 Amendment Act might be a good step to reduce judicial intervention in appointment of arbitrators, which has oft been criticised as post-retirement sinecures for brother-Judges.

8. Are the service laws and the election laws in India in tune with the contemporary requirements and do you feel that there are some major changes required with regards to the transparency and accountability?

As far as service law is concerned, there are not too many changes that I hypothesise. Service law can be understood in two broad components.One component is of employment law between the employer and employee, which is pretty straightforward well expounded upon.The other component is of political prerogative in appointments, and the need for transparency.But, being riddled with the political thicket, Court keep their hands off the same.

However, there are lot of interesting questions in Election Law some of which I am litigation before the Courts. Because the matters are sub judice, I will not speak on their merits,but all three cases challenge the constitutionality of various provisions of the Representation of Peoples Act, which is the guiding law how elections are conducted in the country. The 3 broad issues in my cases are—criminalisation of politics; discrepancy in the right to vote; and arbitrary powers of the Election Commission to waive off disqualifications.

As far as transparency is in question, Administrative Law is an area which poses many more challenges. As an example, the debate surrounding the private-trust nature of the PMCARES is a good example of the nascent Public Law discourse in out country.  While the Courts have decided one way, I feel that we have yet not had a serious debate on the question of private exercise of public authority.

9. Do you think that your interest in the area of Public Law was affected or generated by the conditions in your family, given that your father Mr. Ashok Khemka is a civil servant and he has received widespread praise and recognition for his anti-corruption activities ?

Certainly, these circumstances have had an influence on me, but whether it has been an influence on my professional outlook is something I can’t really put my finger on.Let me explain that. You are an Indian and even if you go to the US and live your whole life there, you will retain a certain Indianness. You may also subconsciously pass it down to your children because that is your heritage,that is how you been brought up.We do not choose to be Indian; we just simply are.You may choose to be something different, however the default position is that you are what you are. Similarly,there is an atmosphere of public service, some sort of activism, and rigorous debate, at home.Hence, my outlook is accordingly shaped. Do I fight it? No. So the natural consequence is that it will be reflected in the actions that I take.

People who dedicate their lives to public service do it because of their own free volition and that must be encouraged.I won’t say that I embody a fierce anguish against the system.However, I do believe in the goodness of my people and am strongly drawn to a sense of public service. 

10. Do you have a set of Do’s and Dont’s while dealing with a case?

It is difficult to have a fixed set of things which you must do or don’t do but there are 3 gospel truths which I keep for myself:

Firstly, Don’t appear before the judge if you haven’t read your file.Try to be prepared for every case even if you are very busy. I always read for Court and have never taken an adjournment in any of my cases for lack of preparation.

Secondly, you have to be firm when you are advocating a particular case. As a young lawyer, you can get pushed around. Judges might not always be interested in what you have to say and opposing lawyers will always take the opportunity to shout you out. Being respectfully firm is essential, evermore so when you are handling cases before the Punjab and Haryana High Court, which has the reputation for being an aggressive court in terms of lawyering.

Thirdly,the most difficult thing is to be wise. And by being wise, I do not mean the knowledge of law.A wise lawyer knows when to press a point and when not to press a point. A wise lawyer is aware on what aspect a particular judge would be inclined to here further. Wisdom means anticipating the repercussions and formulating an appropriate strategy.It is to know what not to argue before a Judge, and that is something only experience can teach.

11. How do you deal with your clients and what is your advice for the aspiring lawyers in this regard?

There are many things which I have learnt from my experiences but nothing that I will profess to a young lawyer. Everyone has their own journey, and every journey has its own discoveries. The important things to remember while dealing with a Client is to how to extract the best information from the client. Facts, and not the law, form the basis of disputes. Young lawyers are oft amiss when it comes to facts since they do not engage in meaningful client-consultation. Many times,clients come to you and don’t tell you things, not because they want to hide from you, but because they don’t think it’s important. Subsequently such things might bite you in the back. I’m still trying to learn these aspects.

12. What are your future plans and what do you wish to achieve in upcoming years?

I do not think too far ahead. There is an English proverb that ‘If you want to put a man in misery, give him one wish’. I do not wish for too much in the future. I would rather be fulfilled in the present, than suffer sickness for the lure of a distant paradise. It is both impossible and foolhardy to measure the achievement of a Counsel, as milestones are lacking between starting off independently and being elevated or designated.It is my journey. Every aspect of it should be welcomed with deep bonhomie, not just its successes. I want to continue with honest hard labour, and enjoy every trough as I enjoy