Clerking for Sisyphus: A tribute to Justice Rajiv Sahai Endlaw

In the summer of 2009, having just graduated from law school, I was eagerly awaiting a call from my good friend and senior from law school, K Parameshwar. He had undertaken a clerkship at the Delhi High Court in the past, and he was full of praise for the immense learning opportunity that the experience offered. He had promised to inform me if a clerkship position were to open up in the High Court.

After a long wait, during which time I became increasingly desperate, the phone finally rang one day in the middle of June. Parameshwar told me about a vacancy in the office of one Justice Rajiv Sahai Endlaw, who had been recently elevated to the Bench and who had enjoyed a roaring practice on the original side of the Court prior to his elevation.

Having always known Parameshwar as someone with an overall sincere and mature demeanour, I took this piece of information at face-value even though a part of me simply could not fathom that there could be a High Court judge with the almost apocalyptic-sounding surname ‘Endlaw’! However, a quick confirmatory visit to the website of the High Court revealed to my great relief that not only was there such a judge, there was also a photo of the person concerned - which features in this piece - indicating a warm and inviting persona.

And so, with this due diligence, or the lack thereof, I made up my mind to work with Justice Endlaw. Parameshwar asked me to reach out to his batchmate, Mahfooz Nazki, who had worked as Justice Endlaw’s junior during his days at the Bar. Mahfooz, helpful as always, volunteered to take me along to meet Justice Endlaw and to make an introduction.

Hence, I found myself sitting outside Justice Endlaw’s chamber in the High Court with Mahfooz one evening towards the end of June. Justice Endlaw at the time sat in Courtroom No 12, situated at the corner of the first floor of the High Court building. Now, the judge’s chamber attached to this courtroom was at the fag-end of the internal corridor which lay behind the courtrooms and provided ingress and egress for the judges and the court staff. At the end of this corridor, a much shorter corridor branched away to connect to the judges’ lounge. Justice Endlaw’s chamber was perched smack in the middle of this shorter corridor, nestled between the large and glamorous judges’ lounge and the not-so-large and not-so-glamorous washroom attached to the judges’ lounge. This somewhat undignified placement of the chamber, however, had its advantages as I later discovered in the relative peace and quiet that it offered, except at lunch-time when the coming and going of the judges replicated the hustle and bustle of a Roman vomitorium.

When we were finally ushered into the chamber after a small wait, I walked into the small room overflowing with files and books to see Justice Endlaw seated at his table, dressed casually in a colourful shirt. He rose, stretched out his hand, and said “Hi, I am Rajiv.” Being caught a bit off-guard by this display of informality, I mumbled something in return, and after some small-talk, I was asked to join the next day for a month-long ‘trial’ period.

I was eager to learn, and had no qualms of my complete naivety in the practice of the law. However, as someone prone to sentimentality and philosophical wanderings, and for whom the law was basically ‘common-sense’, I genuinely believed that a good argument was not required to be weighed down with unnecessary and tiring reference to the record, judgments, and statutory provisions. With this sort of an understanding of what was expected in the art of advocacy, I was now paired with someone who had a polar opposite viewpoint - a battle-hardened veteran of hundreds of civil trials during his days as a lawyer and someone extremely particular about precisely the things I thought of as unnecessary irritants. It was, to put it mildly, not a match made in heaven.

Quite fittingly, towards the end of the first week of the clerkship, I had been put on a strict ‘diet’. This diet was occasioned by one too many flippant and instantaneous ‘common-sensical’ responses to research tasks entrusted by Justice Endlaw. He finally had enough. I was told to not respond to any question until I could quote a specific judgment in support of the answer I gave. I was, of course, appalled by what I perceived to be this unconstitutional fetter on my right of free speech. The other disconcerting aspect was Justice Endlaw’s phrase-of-choice if he wanted to chide you when you messed up. He would, much to my consternation, say sombrely in his deep baritone, “Apply your mind, you are a lawyer now.”

To provide some background, I had indeed recently gotten enrolled as an advocate before commencing the clerkship. The enrolment day was obviously special and spent entirely in celebration, as my family beamed with joy and pride. However, when I woke up the next day, I felt much the same on the intelligence front. No seemingly enhanced brain function nor any hitherto uncharted legal insights awaited me. Yuval Noah Harari, the celebrated Israeli historian, is of the view that a cognitive revolution that started about 70,000 years ago catapulted homo sapiens to the dominant role that we enjoy today on the planet. However, despite having enrolled as an advocate, this cognitive revolution on the legal front that Justice Endlaw seemingly anticipated, and the enhanced application of mind it engendered, had sadly passed me by. Things were indeed looking dire on all fronts.

The initial weeks were quite hard. Justice Endlaw encouraged his law clerks to sit in court to observe proceedings the whole day, instead of being confined to the chamber as glorified research tools. However, this presence in court also meant increased accountability. The only way to survive was not just to check up on the precedent and statutory basis for each and every oral argument made in court, but to also keep oneself generally abreast of the latest precedent. The thought of cross-checking every single swashbuckling and sonorous argument made in court, which seemed oh-so-logical and common-sensically appealing, was excruciatingly painful and monotonously depressing. However, this was perfectly in sync with Justice Endlaw’s general approach in focusing on the content of the argument, rather than the style and manner of delivery. This, of course, ensured equal opportunity for well-prepared young lawyers, many of whom prevailed over colleagues far more senior and experienced, merely because of the individual effort and research put into that particular brief.

Justice Endlaw’s insistence on carrying out independent research in every matter irrespective of the judgments that were cited before him at the Bar and his emphasis on precedent, coupled with the high rate of case-disposal that he consciously endeavoured to achieve on a daily basis, meant that there was significant research and proof-reading work to be done on a daily basis.

Sometimes, the proposition I was asked to research on was so abstruse that I could not for the life of me believe that a judgment could exist on such an issue but, lo and behold, there would inevitably be one just as Justice Endlaw ordained there would be. Though, sometimes there were minor descriptive errors in relation to the identification of the more tenebrous precedent. Once, at the end of a tiring day-long goose chase after being asked to find a judgment of the Madhya Pradesh High Court on a very obscure point of law, I eventually found that the judgment in question was actually that of the Allahabad High Court. On this being pointed out, Justice Endlaw in a display of insufficient contrition, chuckled and said “I guess I was off by a few kilometers!”

While working with Justice Endlaw, much like in the case of counsel appearing before him in Court, you had to earn the right to debate and deliberate through your work and focus on the brief. There was also neither any mollycoddling nor any promise that the proverbial ‘pot of gold’ necessarily existed at the end of the rainbow. The profession was a difficult place to thrive in, as he would constantly remind me, and one had to try and be at the top of the game every single day. Justice Endlaw’s constant refrain was that given the great diversity of the individuals on the Bench and their conceptualizations of justice, a lawyer’s advocacy had to be adaptive in addition to being thorough. He always emphasized the importance of listening to the Judge, instead of giving into the all-so-powerful instinct to push through with a pre-planned and well-rehearsed argument come what may. He was a firm believer in the idea that while engaging with judges from varying social and economic backgrounds, temperaments, and subject-matter expertise, it was not just by courtcraft, but by tapping into the mediative and facilitating undercurrent of the law that a counsel could break through and achieve that fleeting but powerful moment of fusion and the accompanying meeting of the minds that would ensure victory in Court.

He appreciated and was excited by novel and innovative legal propositions and gladly welcomed them - from counsel and from law clerks - provided they were birthed in thoughtful consideration and engaged with the applicable law. With Justice Endlaw, you were encouraged to think ‘out of the box’, but it was important that you were cognizant of the dimensions of this box, and better yet, if a judgment defined what these dimensions were. In my time with him, I gradually came to realize that advocacy must not be like the flight of Icarus - abrupt and glorious but doomed to fail - but instead similar to what the Wright Brothers managed: put together with painstaking labour and many errors on the way, but ultimately facilitating a flight that would endure for eternity.

Over a period of time, I acquiesced in the ways of the chamber, and things smoothened out somewhat thereafter. I managed to survive the ‘trial’ period to be offered a full-time position. Despite Justice Endlaw’s exacting standards and attention to detail, the atmosphere in the chamber was never overbearing or toxic. In the evenings, after he had risen from Court, and in the midst of all the work that lay ahead for the day, there was still time for conversations on how the matters had played out in court and the various lawyers who had done battle for their clients. Justice Endlaw’s love for humour and a good tale would really come to the fore during this time. While we spoke of the events that had transpired in court, Justice Endlaw would frequently associate them with, and recall, his experiences at the Bar.

What I particularly relished were his tales of his years spent at the Tis Hazari Courts, many of which tales had the potential to scandalize someone with a more genteel disposition. However, in none of these experiences that were shared with me, was there ever a tale of self-glorification. He never waxed eloquent about a matter that he had won against all odds or some otherwise stupendous performance in court, although considering the practice that he had commanded as a lawyer, I am sure that there would have certainly been many such instances. On the other hand, whenever he spoke in personal terms, he would talk about some or the other innocent mistakes he had made as a young lawyer. All of this, relayed with a chuckle, was a balm to my insecure young professional self.

The messaging was clear: While one was indeed young and witless and there were many a stumble that lay ahead in the profession, consistency and hard work were the only means to redemption. Though there could never be any compromise on the quality of the work or the discipline of the profession, Justice Endlaw had no hang-ups in terms of the privilege or power afforded to him by dint of his position and how he treated those around him. I once asked him for a very liberal favour in terms of my working hours to cater to an academic commitment. I was a bit unsure as I was going to ask for a half-day off over almost a month-long period. Justice Endlaw said yes without batting an eyelid, as long as I ensured that the work did not suffer. On some days, he would insist on walking the long way to his residence from court in the evenings, the very prospect of which would cause his personal security officers to suffer panic attacks.

Talking of panic attacks, a trait which continued to cause me much anxiety up to the very last day of my year-long clerkship was his tendency to rush into the chamber all excited after having risen from court. All excited to rattle off statutory provisions from the far reaches of an abstruse statute in relation to some matter argued in his court that day, and to expect you to have the judgments ready in a jiffy. Anxiety aside, this excitement and breakneck speed would sometimes lead to unintended humorous moments.

One fine evening, having just risen from court and being seized of some interesting legal issue, Justice Endlaw midway to his chamber, hurriedly asked a member of his staff who was accompanying him to retrieve a copy of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. This Act, owing to the significant length of its title, is commonly referred to by the acronym ‘COFEPOSA’. The acronym itself can prove to be quite the tongue-twister and, when spoken, is easily susceptible to confused auditory reception by the listener. Now, the diminutive gentleman who had the privilege of being assigned this task was one of the most eager-to-please, meek, and affable members of Justice Endlaw’s staff, with a near-constant impish grin on his face. However, he also had a well-established reputation of committing frequent faux-pas, duly accompanied by some unrepentant giggling upon them being discovered, and which indiscretions though completely shorn of mens rea and of no great adverse consequence, were nonetheless known to cause the no-nonsense Justice Endlaw much heartburn. Now, on this particular day, upon having this acronym launched at him in a millisecond, the gentleman was quite nonplussed as to what exactly the judge had required him to procure. However, not wanting to risk seeking a clarification, he decided to trust his instinct and scurried away to perform what he perceived to be the task in question. Now, as yours truly came to realize very early on in the clerkship, and as various hapless counsel who had their civil suits ‘decreed’ on the very first date of listing came to realize in his courtroom, preferring instinct over the applicable statute or judgment in official interactions with Justice Endlaw was a recipe for disaster. However, for our resident Sancho Panza, who was a veteran of having served with various Justices in the High Court in the past, these were trifling considerations. Hence, later, as Justice Endlaw waited in the chamber fuming about the mysterious disappearance of this member of his staff which had stretched over a good half an hour, and wondering as to why it was taking so long to obtain a copy of the Act in question, the door to the chamber suddenly flew open to reveal the staff member entering with a strained but triumphant look on his face. Alas, much to Justice Endlaw’s grief, instead of the COFEPOSA, the man had come bearing some piping hot coffee and samosa!

On a more serious note though, Justice Endlaw’s staff matched the late hours over the several years they spent with him, and these affable, diligent, and hard-working set of individuals played a crucial and largely unsung role behind the scenes to ensure that justice delivery continued unabated through thick and thin.

It is difficult to pinpoint Justice Endlaw’s precise approach to his role as a judge. If one were to try, one would have to refer to Albert Camus, the French philosopher, who has written about the absurdity of trying to seek meaning in life in the face of the reality of death. He points to the Greek mythological hero Sisyphus, who suffered the curse of being tasked with rolling a heavy boulder up a steep mountain only to have the boulder roll back and crash to the bottom, with this cruel cycle being repeated for all of eternity. Camus argued that despite the evident absurdity of his situation, Sisyphus was worthy of emulation because even though he was aware of the pointlessness of his task, he nonetheless toiled away by deliberate choice and tried to find meaning and to create value in the act of resilience and toil.

For Justice Endlaw, the daily cause list and the behemoth of pendency that it reflected was this boulder that he faithfully carried all the way to the top everyday, only to have it roll back and re-appear in the form of the cause-list for the next day. This daily struggle up the mountain to create value for the countless beleaguered litigants who look to the courts for justice, and to find personal meaning in a life that is largely isolated and spent as part of an overburdened judicial system which is creaking at the seams, is something which confronts every man and woman who takes up the task of ‘judging’ in our country. This is a struggle which Justice Endlaw wholeheartedly embraced, and even revelled in. He would not just focus on the peak, that would incarnate itself in a landmark judgment (though there were many of those) but also on the unglamorous undertaking of that long and arduous daily climb up the mountain side.

True to form, he would stay on in the court premises till around 8:30 pm on most days, including most holidays, before carrying home the files for the next day for further reading late in the night and in the early hours of the morning. A crushing routine that he followed for the entirety of his tenure on the Bench. Carl Jung, the Swiss psychiatrist, postulated that the process of dreaming while asleep allows us to tap into the ‘collective unconscious’, something he describes as a repository of information archetypes shared by all human beings as a result of their common ancestral past. Knowing how little Justice Endlaw slept, I do not think he tapped much into this dreamy realm. However, every single day he spent in the judge’s chair, he was acutely conscious of the collective judicial consciousness that enveloped him, and which was in turn influenced by his daily functioning as a judge. Even in the most staid and unremarkable of matters, he consciously sought to achieve a tenuous balance against battling pendency, securing justice in the facts of the case, and weighing the consequences of that act of justice as a ripple effect on the law.

Much like Ronald Dworkin’s understanding of judges (though much maligned) as authors of a chain novel who, in the process of adjudication strive to achieve integrity with what comes before them, while at the same time arriving at a decision that is not only consistent with the law but one that also enhances the law and portrays its moral essence, Justice Endlaw viewed every judgment from this multi-dimensional perspective and weighed his findings and conclusions accordingly. It is the performance of this role, and the joy he derived from it, that was the expergefactor that kept him going all these years on the Bench.

For someone who has spent a lifetime in the service of the law, a mere article can never capture the length and breadth of his contribution to the law or his individual conceptualization of justice. However, I am more concerned with what that year with Justice Endlaw meant to me as a person and as a lawyer. In addition to the romanticization and idealization inherent in reconstructed memory, when a piece is propelled by affection for the subject and nostalgia for the time spent together, it is easy to be hagiographical. Being fully conscious of this, my time with Justice Endlaw reminds me most of this passage which I had read many years ago from The Old People, one amongst a collection of stories by William Faulkner titled Go Down, Moses. Though some of the themes and the language employed in the book might be considered problematic in the contemporary day and age, and the setting is as far removed as possible from my time spent in the High Court of Delhi as a law clerk in the 21^st century, this passage truly resonates with me when I think of that year with Justice Endlaw. It goes as under:

“He taught the boy the woods, to hunt, when to shoot and when not to shoot, when to kill and when not to kill, and better, what to do with it afterward. Then he would talk to the boy, the two of them sitting beneath the close fierce stars on a summer hilltop while they waited for the hounds to bring the fox back within hearing, or beside a fire in the November or December woods while the dogs worked out a coon’s trail along the creek, or fireless in the pitch dark and heavy dew of April mornings while they squatted beneath a turkey roost…The boy would never question him; Sam did not react to questions. The boy would just wait and then listen and Sam would begin, talking about the old days and the People…

...And as he talked about these old times and those dead and vanished men… gradually to the boy those old times would cease to be old times and would become a part of the boy’s present, not only as if they had happened yesterday, but as if they were still happening, the men who walked through them actually walking in breath and air and casting an actual shadow on the earth they had not quitted…”

I loved the law even before I joined Justice Endlaw, or at least I thought I did. Nevertheless, I loved a utopian and naïve construct of the law. Justice Endlaw showed me, though from a somewhat distant judicial perch, as to what the practice of law truly meant, its heritage, its innate connection to the past, and how it spoke to the future everyday even in the dreary daily routine of the courtroom. In doing so, Justice Endlaw spoke less, and inspired me more through his actions. The lessons I learnt remain invaluable anchors in the stormy sea of the profession more than a decade later. Justice Endlaw’s dedication to duty, his strength of character, his jurisprudential equipoise, and his love for the law shall always remain for me a personal light of Earendil, a light to me in dark places when all other lights go out. And for this, I shall be eternally grateful.

The author is an Advocate practicing before the High Court of Delhi.