Prashanto Chandra Sen highlights the intricacies of legal profession

Introduction

Mr Prashanto Chandra Sen is a Senior Advocate practising in Delhi and various Indian High Courts. He has been ranked Tier 1 by the Legal 500 London, Asia Pacific 2022-2023 Survey of Senior Advocates. Specialising in commercial and public law, he has a notable presence in the Supreme Court and various Tribunals. He has appeared in some landmark cases such as Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2016) 4 SCC 126, which dealt with the seat of arbitration in the context of international arbitration; Article 370 of the Constitution, In re, 2023 SCC OnLine SC 1647 before the Constitution Bench, Interplay between Arbitration Agreements under the Arbitration & Conciliation Act, 1996 & the Indian Stamp Act, 1899, In re, 2023 SCC OnLine SC 1666 before the 7-Judge Bench dealing with the stamping of the arbitration agreement, and the ongoing JSW Steel Ltd. v. South Western Railway, 2022 SCC OnLine SC 1973 matterbefore the Constitution Bench which deals with the issue of appointment of arbitrators through a panel. He successfully defended a Director of Heineken in Alleged Anti-Competitive conduct in the Beer Market in India v. United Breweries Ltd., 2021 SCC OnLine CCI 53 and Glencore in Viterra India (P) Ltd., In re, 2022 SCC OnLine CCI 54.

He has led the way for public causes like challenging the recent amendments to the Forest (Conservation) Act, 1980, saving the Great Indian Bustard, and reintroducing Cheetahs into India. Another feather in his cap includes drafting the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. He was one of the Founders, Editors, and currently Editor-in-Chief of the Quarterly Bar Review, the first journal of the Delhi High Court Bar Association. Given below are some insights from a quick conversation with Senior Advocate Prashanto Chandra Sen.

1. As a Senior Advocate with extensive experience, could you please provide insights into your journey as a law student and shed light on the impact of pursuing a Bachelor of Civil Law (BCL) from the University of Oxford? Specifically, how did your life as a law student shape your professional trajectory, and did your BCL degree provide a significant kickstart to your career as a litigator?

There are pros and cons to the academic choices made by me. When I completed schooling, I had the option of applying for the second batch of National Law School, Bangalore for the 5-year law degree, the other option was to try St. Stephen’s College for an honours degree.

At the time, St. Stephen’s was better known, and hence, I opted for it. In the hindsight, I do realise that the Law School, Bangalore course may have given me more rigorous and comprehensive training in law. Yet, there were advantages of doing an undergraduate course at St. Stephen’s. It gave me some maturity and a wider perspective when I decided to opt for law at the Campus Law Centre. The Campus Law Centre had some excellent teachers who helped me grasp the basics of various branches of law. Additionally, there was no concept of internships, and mooting was not as developed as it is today.

However, we took the initiative to represent the Campus Law Centre in moot courts and also sought out internships with seniors. This laid the foundations for my future practice in law as a litigator. I still feel that the varied experiences of politics along with academics in the Campus Law Centre prepare you well for the rough and tumble of litigation.

The course at BCL was a different ball game, it was highly intense and interdisciplinary to some extent. People from other disciplines such as Political Science also came in for the course. BCL trained me to question the fundamentals of various legal principles, which may otherwise appear self-evident. A BCL degree gives you access and recognition. Entry into good law firms or good positions of work is facilitated by a foreign degree like the BCL. BCL also trains one to approach and analyse legal issues and principles in depth and with a wide perspective. This is particularly useful while dealing with drafting and framing laws, or engaging with legal policy (which can even be through litigation).

When I was involved in the Balco case (supra) which dealt with the seat of arbitration (a concept in private international law that had not been widely discussed in the Indian legal climate prevailing at the time), my training in private international law in the BCL helped in grasping concepts and developing them for legal arguments.

2. Throughout your career, you have worked extensively in both commercial and public interest. Could you please share some insights into the challenges and rewards of practising in these diverse areas of law?

One of the reasons for me joining the legal profession has been the possibility of involvement in some form of public service. This would be possible while practising, possibly in the area of constitutional law and even in other areas. What attracted me to the profession was that one could have a successful career as a lawyer, be totally independent, and also occupy a position where one could engage in public service by helping people protect their rights under different circumstances.

The challenges in commercial law are that it is extremely competitive, requiring one to be updated with recent developments and quick in thinking on one’s feet. The rewards are obvious — the excitement of a good argument; the adrenaline rush of being able to persuade the court in a difficult matter; and the fees that come your way. This compensation enables you to lead a life on your own terms without depending on others. The challenges of commercial law include intense competition, the pressure of timelines, and the need to succeed.

The challenges of public law often include fighting against the might of the Government. The people whose rights you are fighting for are not litigation savvy. Unlike in commercial law, where players are well-versed in litigation processes, public law cases are often done pro bono. It can be difficult to fight against the Government on important issues where rights are being violated. However, the rewards of being involved are extremely satisfying, and one feels a tremendous sense of fulfilment in winning these cases. One example is the Cheetah case in which I was involved, where, after a review of the Supreme Court judgment, Cheetahs were allowed to come to India after almost 70 years. Another litigation I thoroughly enjoyed was the Facebook litigation, where the issue was whether the Legislative Committee could summon the CEO of Facebook for questioning. We were appearing for the Government, and the matter was decided in our favour. The Article 370 (supra) case was another intense experience.

3. When aspiring to establish a career in litigation, would you suggest focusing solely on internships with litigators, or do you believe it is valuable for law students to diversify their experience by interning with a range of legal professionals, including Judges, law firms, MNCs, and academicians?

The work ethos and ethics that you develop at this stage are the most crucial attributes you develop from the internships you embark on in the initial stages. You must use these opportunities to build your fundamentals as a lawyer. The typical period for an internship is a month at most, making it nearly impossible to contribute much to the place of internship due to lack of experience. What energises me is someone sincere and passionate about wanting to know the ins and outs of the profession. It is your hunger to learn and ask questions about various aspects of the law that is more important than any contribution you as an intern could provide, especially in the initial stages.

At any stage of the internship, you should consider yourself very lucky if you get a good mentor. From them, you must absorb everything you can in the short period that you work under them. If you are truly keen on learning, you must beg – Beg for tutelage and beg for knowledge. A good mentor will no doubt be receptive to your sincerity. You may find yourself wanting to work for the firm or lawyer you interned under, and your sincerity as an intern during your time there will hold you in good stead.

As you progress in your degree and get a better idea of what type of career in law you are more inclined to, I would advise you to tailor your internships around that area of law. If it is a career in litigation, join a lawyer or firm that engages in hardcore litigation, which involves both filing and drafting work. Even a District Court internship is very useful as it provides you with practical exposure to the realities of the law and the journey a case goes through from its inception to its conclusion. What is exciting is the range of opportunities available in terms of internships with Judges, MNCs, law firms, and academicians. By all means, try it all and get the widest possible exposure. I do not subscribe to the view of early specialisation.

4. As a Senior Advocate, what advice would you give to young lawyers starting their careers, particularly those aspiring to appear before the Supreme Court and other High Courts? What are some essential qualities and skills they should develop?

I would like to reiterate my point about work ethic being one of the most important attributes in the arsenal of a young lawyer. I have always believed that sincerity and hard work trump efficiency and intelligence.

To quote Aristotle, “excellence is not an act but a habit”. The habits that you inculcate in the early years of your career such as punctuality, sincerity in your work, time management, and so on, are an investment in yourself. This has a compounding effect which will pay dividends down the line.

A common belief in this profession, that I believe is erroneous, is that a good orator always makes a great lawyer. In my opinion, knowing how to deal with your client and getting your drafting right is far more essential in your journey to becoming an effective lawyer. Drafting is extremely important as it streamlines your thought process and makes you sharp and logical in your thinking. It is equally important to ascertain the needs and motivations of your client. Your success in this profession, whether you want to be a senior or rise in the ranks of a firm, depends on being able to be of use to your client and meet their needs. It is important in litigation that your formative years are spent with a lawyer or law firm that is filing, drafting and actively dealing with clients. This will give you the grounding necessary to move forward in your career.

Last, but no less important, is the energy and passion you derive from going to court. If the prospect of going to court does not excite you, then litigation is probably not the field you want to venture into. From the formative period of my law career to now, the prospect of going to court has always energised me. Even if I was going to court to get a simple adjournment, I thoroughly enjoyed simply being on the premises. While I would wait in the court for my matter to come up, I would watch what was happening in the other proceedings and how the Judges were dealing with it. This simple act of observing court proceedings provides invaluable knowledge about the law, advocacy, and the psyche of the Judge and other lawyers. The most important advice I can give in today’s age of technology is to resist the temptation to keep looking at the phone all the time when in court. Please concentrate on the court, the Judges, the litigants, and the lawyers. You will be surprised at how much you learn. The learning never stops. Fali Nariman has revealed that even at an advanced age he would come to courts even if he did not have a matter, just to watch and learn.

5. As a core Committee member of the International Chamber of Commerce (ICC), India Arbitration Group, what are some of the emerging trends and challenges in the field of arbitration in India? How can young lawyers effectively navigate these trends and contribute to the growth of arbitration in the country?

Arbitration in India is evolving at a hyper-fast pace. The courts are regularly coming up with different judgments regarding how the different provisions of the Arbitration Act should be interpreted. This constantly changing landscape of arbitration has become a major challenge. The recent Constitution Bench judgments on the stamping of the arbitration agreement and the question of the validity of unilateral arbitral appointments are just some of the examples of overnight changes in arbitration.

Although India’s arbitration landscape has mostly followed international trends, there is still a tendency for courts to make rulings that could delay, disrupt, and add to the procedural complexity of the arbitral process, as has been seen in the N.N. Global 7-Judge case (supra). The ever-increasing complexity that is often involved in arbitration is making people turn to mediation. Therefore, we may need to consider the possibility of a hybrid mediation-arbitration approach that combines the benefits of both. It is also important to study and acquire the best practices of different practitioners of international arbitration. With the law getting increasingly unified, the tendency is towards cultural unity, and so, we need to foster a more inclusive environment in arbitration.

There has been a positive trend of faster timelines with enforcement in various Indian courts. However, it is important to continue developing machinery for the execution of awards in Indian arbitration. It is also very important for parties to make India a seat for arbitration. These steps could go a long way towards making India an arbitration hub.

We have no dearth of young, capable lawyers in our country. Their participation in arbitral proceedings must be encouraged. Measures must be taken to facilitate the formation of an arbitration bar to allow young advocates to be admitted as arbitration lawyers. We must encourage the formation of forums of young arbitration practitioners, and provide arbitration courses in law schools and universities across India.

6. To what extent do you believe participating in moot court competitions is beneficial for law students? Does it provide a valuable kickstart to their professional careers, considering the contrasting nature of actual court proceedings?

I believe that most of the skills derived from moot court competitions will serve you well in future law practice. Participating in moot court teaches law students how to conduct legal research, prepare effective arguments, and persuasively present these. In addition, law students get the chance to display their advocacy skills in front of a panel of Judges. For them, this experience is priceless, since it teaches them to hone their skills as well as how best to present their arguments.

Besides your internships, the other major path to acquiring practical knowledge during this time is through moot court. The practical knowledge gained through these avenues will help accentuate the theoretical knowledge you gain from reading at a later stage.

It is also a useful tool for networking early on, before your career in law has even started. Moot court provides you the opportunity to connect with individuals across States, and even from other parts of the world, depending on how seriously you take it.

The confidence you gain in speaking and presenting your arguments is also invaluable and serves as an early honing, albeit rudimentary, of the courtcraft that will be invaluable for your future career in litigation.

7. Your pro bono public interest work reflects your dedication to social causes. Can you share some insights on the role of lawyers in driving social change and promoting access to justice?

For some, legal aid is a means to gain experience and advance their careers. For others, it is part of a moral obligation to help the disenfranchised, and level the playing field for clients who do not have the monetary means to pay for capable representation.

For me, the sense of satisfaction that comes from helping others, especially those most vulnerable, will always outweigh any monetary compensation, no matter the sum. This is one of the main reasons why I undertake pro bono matters in addition to my regular private law practice. Secondly, pro bono litigation, especially those that concern the most vulnerable, often raises issues that have deep legal significance. These can be very intellectually stimulating for a lawyer. So, the motivation stems from the work being both emotionally satisfying and intellectually challenging.

In this context, I would advise reading the works of the great human rights lawyer K.G. Kannabiran, who stressed the fact that our unique situation as lawyers stems from our training in constitutional law. This enables us to play a meaningful role in society. Pro bono work often leads to engagement with constitutional issues and the questions that arise from this can provide invaluable insights for us as lawyers. Our ability to help the disenfranchised through pro bono matters puts lawyers in a very unique situation, something not found in too many other professions. At the same time, I completely understand the need to earn a decent livelihood. Remember, you can balance the commercial and public service aspects of being a lawyer.

8. For young lawyers who may face financial constraints, what strategies would you recommend to navigate through the initial stages of their career in an industry that often offers limited financial compensation? Adding to it, do you believe that implementing a minimum salary requirement for young advocates could potentially alleviate this challenge?

I would advise young aspiring lawyers to be patient about earnings. We are in a profession where money will come, so concentrate on acquiring skills that will enable you to generate revenue down the road. In my experience, all matters, even those done free of cost, have some return – whether monetary or spiritual. In a profession with an oversaturation of lawyers, my advice is to grab whatever opportunity comes to you, so long as it is in your realm of interest. The experience, reputation, and confidence that comes with these opportunities, regardless of the monetary aspect, will result in your developing skills and expertise that will put you on the path to success.

While it is true that for young lawyers entering the profession, the priority should be to learn over making money, it must be recognised that paying less remuneration to juniors, especially those with financial constraints and no “godfather” in the profession, may discourage graduates, more so those from smaller cities. In big metros, salaries must be commensurate with at least a decent quality of life.

Therefore, I feel the Bar Council of India must lay down standards to ensure that juniors are provided abundant opportunities to learn and practice in a competitive atmosphere, while at the same time being paid decent salaries. This will go a long way in ensuring that the best and brightest are not left behind in this profession.

For the time being, however, remember that litigation often entails a long journey before you begin to start earning good money, but there is light at the end of the tunnel.

9. What are your perspectives on the prevalent myth that suggests that the legal profession revolves around dishonesty and bluffing? Could you shed light on the true nature of the legal field and share your insights on the importance of integrity and ethical conduct within the practice of law?

Lawyers have always had a very polarising reputation being portrayed as both crusaders of justice on one end and charlatans on the other, willing to lie, cheat, and steal for our ends. I have, for instance, lost count of the number of times I have been asked by relatives and friends whether I am a lawyer or a liar. I appreciate that questions like these are mostly asked in jest, but it nonetheless, has its roots in the belief that this profession is best suited to the mendacious, the ambulance chasers.

I believe that it is difficult to generalise an entire profession in these extremes. Every profession has its share of bad apples, but law tends to get more of a bad rap than other professions.

It is true that the emergence of win-at-all-costs strategies and scrambling to increase personal wealth by whatever means necessary, has tarnished the professionalism that existed in law to some degree. These same negatives exist in many other professions. The prevalence of these negative aspects in law, however, is amplified as it often comes at the cost of another person. Here, let me point out the lessons a lawyer can learn from the “Sergeant at Law”, in Chaucer’s Canterbury Tales. He is a highly respected lawyer, considered very wise. He becomes very wealthy from his profession and he is seen to make himself seem more important by appearing to be busier than he is. But what is notable is that the key message of the tale written in the 14th century holds good today, and that is the value of constancy for a lawyer, the value of unending patience and faith.

The rule of law is the very cornerstone of our civilisation. And for this system to work effectively, ethics cannot be an afterthought. It is of extreme importance that core values are inculcated in young professionals starting from the college level that teach them to act with integrity and maintain the honour and dignity that is so important in our profession. All of this will go a long way in promoting public trust in the legal system.

10. We are intrigued by your involvement in matters related to the Right to Information (RTI) Act, 2005 and the PM CARES Fund. Could you shed some light on the current challenges and the importance of subjecting public institutions and funds to the principles of transparency?

The basic objective of the RTI Act is to empower people by peeling the layers of opacity that exist in the working of the Government, making it more transparent and accountable. This, I believe, is synonymous with the whole democratic process. My involvement in these matters, stems from my belief that one of the most important services a lawyer provides to this democratic process is to aid in empowering the marginalised, the disadvantaged, and the underprivileged to ensure the protection of the rights guaranteed to them in the Constitution. A crucial vehicle for this is the right to information. This is why, as a legal practitioner, working on these matters gives me an immense sense of satisfaction. I strongly believe that the RTI is aimed at building a more participatory and just democracy.

With publicly-funded relief and welfare programs being the lifeline for millions of vulnerable people who lost income-earning opportunities during the Covid-19 Pandemic, the Act should have been a powerful tool that ensured transparency in accessing relevant information for them. But, instead, the pandemic brought to light several discrepancies and deficiencies which exist in the information-sharing ecosystem. The opacity surrounding the PM CARES Fund was just one of many examples of the breakdown of the information regime during the pandemic. This highlighted the long road that lies ahead in the “RTI journey”. The recent Data Protection Act which further undermines the RTI Act is proof that we have a strenuous and uphill task ahead.

While I remain unwaveringly optimistic about the RTI movement in India, it is imperative now more than ever for the public, press, democratic institutions, lawyers, courts, and information commissioners to shore up the RTI set-up, more so in light of recent events. Legislative amendments and bureaucratic challenges are constant threats to its effectiveness. Lack of awareness, especially among disadvantaged communities on how to exercise their rights under the Act, harassment and victimisation of RTI activists, constraints in filing applications due to poor record management systems, and patchy procedures to collect information are just some of the challenges that must be addressed.

11. As we conclude this interview, would you be willing to share some valuable advice or words of wisdom for the readers of the SCC OnLine Blog?

Whether you are well-connected within the legal sphere, or just starting your career as a first generation lawyer, my experience in this profession has taught me that there is no substitute for hard work. If you are averse to the hard grind that comes with litigation, your career will stagnate, no matter how well you are placed. Law is a constantly evolving field that requires you to evolve with it. You have put in long hours of study and research. Remember, even after graduating, you remain a student of the profession throughout your career.

My answers in this interview are some of the thoughts and principles that I feel will enable lawyers to be successful. The only thing I can say with certainty is that learning is a continuous process. As Benjamin Franklin said, “A lawyer without books would be like a workman without tools.” The learning process never ends. As the great jurist Ruth Bader Ginsburg said, “I am a strong believer in listening and learning from others.” Never shy away from listening to and absorbing the opinions of others, it can only make your observations and practice of the law more nuanced and inclusive.

My final advice is not to hesitate in rejecting everything I have mentioned, if it does not feel right to you. There are no fixed criteria, and what leads to success remains a mystery. Ultimately, go by your instincts, and be a light unto yourself.