From Counsel to Constitutional Strategist: Insights from Senior Advocate Sanjay Jain

1. To begin with, could you please introduce yourself to our readers and share a brief overview of your journey in the legal profession?

My name is Sanjay Jain and my legal journey began in 1985 at the trial courts and Delhi High Court, handling diverse cases that laid a strong foundation for my career. Steadily, my practice grew, attracting major clients like American Express and General Electric (GE) Capital and expanded into commercial, constitutional and regulatory litigation. In 2001, I was appointed as Central Government Standing Counsel and in 2005, I was designated as a Senior Advocate. I was later appointed as the Additional Solicitor General of India for the Delhi High Court in 2014 and for the Supreme Court in 2019. Each role added a new dimension to my professional growth and deepened my engagement with complex legal and policy matters. In 2023, I returned to independent practice as a Senior Advocate, where I continue to represent clients in a wide array of cases across various courts and tribunals.

2. You have represented the Union of India in some of the most high-profile constitutional matters. How do you prepare for litigation involving significant national impact?

I have represented the Central Government in a myriad of cases pertaining to the interpretation of the Constitution³ and/or challenge to the vires of an Act, Rule, Regulations and/or delegated legislations. Preparation for high-profile constitutional litigation requires a multi-faceted and inclusive approach that involves deep legal research, engaging in communication with the parties/stakeholders, anticipating counterarguments likely to come from opposite counsels and public interest perspectives and team coordination.

Legal research includes study and holistic interpretation and analysis of the constitutional provisions, statutory provisions and the relevant judicial pronouncements applicable in the matter(s). I would invariably study the landmark judgments, parliamentary debates and legislative history to understand the intent behind the constitutional or statutory provisions, which enabled me to anticipate arguments from all sides. No less important was to engage with government officials, policymakers and subject-matter experts to understand the broader implications of the case. If in a given case, notings made on the government file was available, it would prove to be extremely valuable in demystifying the complex issues involved in the matter, as file notings hold a mirror to the decision-making process in a given case.

While representing the Union of India, coordination with ministries ensures alignment with national policy objectives. For anticipating counterarguments, it is vital to identify potential weaknesses of our own case and developing robust counterstrategies. Given the high stakes and the socio-political and economic ramifications of the constitutional matters, balancing legal rigour with public welfare is key, as outcomes often set precedents affecting millions. I was fortunate to have a hard-working and competent team of junior counsels, researchers and domain experts to ensure comprehensive preparation, including drafting precise written submissions and oral arguments tailored to the Bench’s expectations.

3. Having served as the Additional Solicitor General both in the High Court and the Supreme Court, how did your responsibilities differ across these forums, and what did each role teach you?

In January 2019, I was appointed as the Additional Solicitor General (ASG) for the Supreme Court of India, which significantly broadened the scope of my responsibilities. Building upon my earlier role as ASG for the Delhi High Court, where I represented the Central Government, besides urban local bodies, State Governments and public sector undertakings. In Supreme Court, the spectrum of matters became broader and the matters pertaining to constitutional challenges, taxation, land acquisition, reservation policies, arbitration, criminal appeals, high-stake bail matters and diverse range of other legal issues presented themselves and I fully avail the new opportunities and professional challenges. The principal difference was that while the High Court briefs required close engagement with factual depth, the matters in Supreme Court demanded a sharper focus on constitutional interpretation and policy impact. Together, these experiences deepened my understanding of the law and the nuanced responsibility of representing the State in matters that often shape the legal and social fabric of the nation.

4. In your experience, how has the role of a law officer evolved in the context of changing constitutional jurisprudence?

The role of law officers, whether it is Attorney General (AG), Solicitor General (SG) or ASG, has evolved significantly due to shifts in constitutional jurisprudence. As the Supreme Court and High Courts are adopting a more proactive approach in reviewing governmental actions, law officers must defend policies with an in-depth preparation and legal rigour, without being rigid or unfair in a situation, which requires a law officer to respond fairly and not to articulate an absurd proposition. This requires a nuanced understanding of constitutional doctrines like colourable legislation, proportionality, legitimate expectation, etc. Judicial interpretations have expanded the scope of rights under Articles 14⁴, 19⁵ and 21⁶ of the Indian Constitution.

Law officers must adapt to these developments, ensuring government actions align with dynamic constitutional standards. The ever-evolving constitutional jurisprudence requires the law officers to bridge the gap between executive policy goals and judicial expectations. This involves articulating with clarity the Government’s position in a way that withstands judicial scrutiny while advancing public welfare.

Emerging areas like data privacy and digital rights require the law officers to stay abreast of global legal trends and technological advancements and this in turn demands continuous learning and developing interdisciplinary expertise. Law officers face greater public and media scrutiny, which makes it important to communicate the legal position clearly to both the court and the public. In a nutshell, the law officers have transformed into strategic advisors who combine legal expertise with policy insight, navigating a complex interplay of law, governance and societal expectations.

5. You have practiced across diverse domains such as tax, insolvency, environmental law and public international law. What has helped you maintain such breadth and depth in your work?

Building and maintaining practice across diverse legal domains requires continuous learning, interdisciplinary approach combining multiple fields of law, collaboration with experts, structured management and handling of cases and courtroom experience. For continuous learning, the law officers need to stay updated on legal developments by way of reading judgments, academic literature and international frameworks. For example, tax law demands knowledge of Finance Acts, while public international law requires familiarity with treaties, conventions and customary law. Working with colleagues on the government panel, who possess domain knowledge in niche areas, such tax and insolvency immensely helped building strategy and deepen case preparation. Depending on the nature and type of case in hand, it was vital to identify core issues, carry out research on applicable laws, organise teams for handling research and crafting of arguments. It is the combination of multidisciplinary learning, collaboration and practice experience, that enabled value addition in the matters, that were entrusted to me as a law officer.

6. Given the increasing complexity of commercial litigation, what do you think is the most crucial quality a counsel must develop to succeed in this space?

The key to success in complex commercial litigation such as insolvency proceedings, matters involving interplay of the Companies Act, 2013 with other branches of commercial laws, contractual disputes involving multi-lateral laws, disputes arising out of regulatory regimes and arbitrations in general, in my view, is a clear and persuasive litigation strategy that simplifies intricate issues for Judges while addressing stakeholders’ practical needs. It involves breaking down intricate financial, contractual, or technical issues into clear, persuasive arguments that resonate with Judges, who may not be the experts in the particular domain; understanding the business context and interests of stakeholders to craft remedies that are practical and enforceable; presenting arguments in a concise and succinct manner in the court, ably supported by well-structured written submissions.

7. How do you view the growing emphasis on mediation and arbitration in India’s dispute resolution framework?

The growing emphasis on mediation and arbitration in India is a positive development with varied advantages. These alternative dispute resolution (ADR) mechanisms reduce the burden on courts, particularly in matters having voluminous records, involving multiple issues or technical nuances and likely to consume disproportionally large spans of time, that would disrupt the balanced court management. Arbitration provides quicker resolutions for disputes, while mediation fosters mutually acceptable solutions, preserving business relationships. India is rising as a commercial hub and in this backdrop, arbitration and mediation become indispensable modes of dispute resolution, keeping in view the amount of foreign investment being attracted in India in current times. Dispute resolution framework has been further strengthened by legislative reforms such as the Commercial Courts Act, 2015, amendments to the Arbitration and Conciliation Act, 1996 and the legislation of a separate the Mediation Act, 2023.

ADR mechanism, howsoever beneficial, have been facing a wide range of challenges. The success of these processes depends on skilled professionals and arbitrators of enormous intellect, profound experience and tremendous integrity. Inconsistency in the work of the professionals/arbitrators would greatly undermine the outcomes. While arbitration awards are straight away enforceable as decrees, delays in enforcement proceedings can dilute benefits. High costs of arbitration may often deter parties hence; a window gets open for promoting mediation as a viable option. In my view, mediation faces challenges in a litigation-heavy legal culture, where parties mostly prefer adversarial process. Time is ripe for elevating mediation culture and to bring it at power with that of arbitration.

8. What is your perspective on the balance between judicial activism and restraint, especially in cases with socio-political implications?

The balance between judicial activism and restraint is a delicate one, particularly in socio-political cases. Judicial activism is justified when the constitutional courts address systemic justice or protect fundamental rights, overlooked by the legislature or neglected by the executive, sometimes deliberately and even with malice, personal as well as institutional. Landmark rulings such as Maneka Gandhi v. Union of India⁷ (expanding due process) or Vishaka v. State of Rajasthan⁸ (guidelines on workplace harassment) demonstrate how activism fills legislative gaps.

However, when the judicial activism turns into judicial overreach, it often blurs and dilutes the doctrine of separation of powers, more so, where the courts end up encroaching upon on policy domain, best left to the elected representatives. This risk undermining democratic accountability. Judicial restraint, on the other hand, respects the constitutional division of powers, allows the legislature and executive to function within their respective domains. It ensures that judicial decisions remain grounded in law rather than personal or political views. However, a balanced approach is needed since even an excessive restraint may lead to judicial abdication.

For instance, in socio-political cases such as Shayara Bano v. Union of India⁹ (triple talaq), the Supreme Court struck a balance by addressing a rights violation without overstepping into legislative reform. In cases with socio-political implications, courts must weigh public interest, legal precedent and institutional limits. Transparency in reasoning and adherence to constitutional principles ensure legitimacy. This balance requires Judges to exercise wisdom and ensure that activism serves justice without destabilising democratic structures and without undermining the authority of agencies and public institutions.

9. You have mentored several young advocates. What, in your opinion, are the most important values they must carry with them into litigation?

I believe that if you do not enjoy the profession, you should not be doing it. I enjoy litigation the way I enjoy the music of Kishore Kumar or Jagjit Singh, so for me, each day in court is a melody. Passion, sincerity and discipline will be your natural companions when you truly love, what you do.

In my opinion, the most important values, young advocates must carry into litigation includes: continuous learning; integrity and ethics; preparation; respect for the Court and opponents; perseverance and resilience; clear communication and commitment to justice and empathy.

(A) Continuous learning.—The law is dynamic and young advocates must stay updated on legal developments and global trends. I encourage a habit of reading judgments, attending seminars and learning from mentors to build depth and versatility.

(B) Integrity and ethics.—I consistently emphasise the importance of honesty and ethical conduct. Young advocates must uphold the truth, avoid misleading the court and maintain transparency with clients. This builds trust and credibility, which are critical for a sustainable legal career. Adherence to the Bar Council of India’s rules on professional conduct is non-negotiable.

(C) Preparation.—Preparation is a cornerstone of effective advocacy. Young lawyers must master the facts, law and procedural nuances of their cases. This involves meticulous research, understanding precedents and anticipating counterarguments. Half the battle is won through rigorous preparation before stepping into court.

(D) Respect for the court and opponents.—Maintaining decorum and respect for Judges, opposing counsel and the judicial process is vital. Young advocates should practise humility and professionalism even in adversarial settings. I often highlight that courteous advocacy strengthens arguments and fosters a positive reputation.

(E) Perseverance and resilience.—Litigation is indeed very demanding and can be full of setbacks like lost cases or long hours working. I advise young lawyers to develop resilience, learn from failures and stay committed to their craft. Patience is key, as success in litigation often comes with time and experience.

(F) Clear communication.—The ability to articulate arguments clearly and persuasively is critical. Time and again I have emphasised that young lawyers should focus on simplifying complex legal issues for the court, using precise language in written submissions and oral arguments. Effective communication also involves active listening to understand judicial queries and respond aptly.

(G) Commitment to justice.—Personal success apart, young advocates must prioritise the broader goal of justice. This includes supporting access to justice and aligning their practice with constitutional values like fairness and equality. Advocacy is a service to society, not just a profession.

(H) Empathy and client care.—Understanding the needs and perspectives of the clients fosters trust and effective representation. In this regard, I advise young lawyers to balance professional detachment with empathy, ensuring clients feel heard while receiving realistic advice.

10. Finally, what advice would you offer to young law students who aspire to serve in constitutional law or become law officers for the Union or the State?

Based on my insights gained as a law officer for the Union, spanning nearly over 9 years, I would advise law students who aspire to serve in constitutional law or become law officers as follows:

(A) Build a strong foundation in constitutional law.—This includes mastering the key provisions of the Indian Constitution, historical context, constitutional principles and doctrines besides extensively reading seminal judgments, which over the years have gained iconic status in their respective fields, such as and landmark judgments. Some of the illustrative cases, which are bound to illuminate the understanding of law are: State of Madras v. Champakam Dorairajan¹⁰ (special consideration for weaker section), C. Golak Nath v. State of Punjab¹¹ (fundamental rights), Kesavananda Bharati v. State of Kerala¹² (basic structure doctrine), Maneka Gandhi case¹³ (expansive interpretation of Article 21), Minerva Mills Ltd. v. Union of India¹⁴ (on power of parliament to amend the Constitution would be limited by the Constitution itself), Olga Tellis v. Bombay Municipal Corpn.¹⁵ (Article 21 includes right to livelihood), Indra Sawhney v. Union of India¹⁶ (creamy layer in reservations), S.R. Bommai v. Union of India¹⁷ (Presidential rule, importance of federalism), K.S. Puttaswamy (Privacy-9J.) v. Union of India¹⁸ (privacy as a fundamental right) and Navtej Singh Johar v. Union of India¹⁹ (decriminalising homosexuality in adults), to understand constitutional principles.

(B) Develop analytical and research skills.—Constitutional law and the role of a law officer demand rigorous analysis of legal provisions, judicial precedents and policy implications. Students should practice dissecting judgments and understanding the inter-play of statutes and constitutional provisions.

(C) Gain practical experience.—I advise students to intern with Senior Advocates, law officers, or courts handling constitutional matters. Exposure to writ petitions, public interest litigations (PILs) and constitutional challenges in High Courts or the Supreme Court provides practical insights. Assisting in real cases helps in honing drafting skills and courtroom etiquette, which are critical for law officer roles.

(D) Communication skills.—Clear and persuasive communication is vital for constitutional litigation. I have already highlighted the need for precise written submissions and articulate oral arguments while answering one of the previous questions. Students should participate in moot courts, debates and legal aid clinics to develop these skills early. Learning to simplify complex constitutional issues for Judges is a key asset.

(E) Understand the role of a law officer.—A law officer is first of all is an officer of the court, she is not there to oppose the legitimate rights of the citizens, she is also not the mouthpiece of the Government. A law officer is supposed to assist the Court in arriving at the just and correct decision. Students should study the roles and duties of the law officers outlined in the Constitution and observe how law officers navigate sensitive socio-political cases.

(F) Stay updated on legal and policy developments.—It goes without saying that the law of the land is dynamic in nature and that the constitutional law evolves with societal changes. The law students are advised to follow current affairs, read journals and track legislative changes to stay relevant. Engaging with emerging areas like data protection, right to privacy under Article 21, federalism disputes, etc. is particularly important.

(G) Uphold integrity and independence.—Students should cultivate a reputation for integrity, as trust is critical for appointment to roles like AG, SG, ASG or Standing Counsel.

(H) Build a diverse legal portfolio.—Constitutional law often intersects with other domains like administrative, tax, or public international law. Working in trial courts or commercial litigation can provide a strong foundation before specialising.