In conversation with Senior Counsel Vineet NaikOctober 6 2019
Designated in 2012, Senior Advocate Vineet Naik is a third-generation lawyer who enjoys a successful practice on the Original and Appellate sides of the Bombay High Court. In this interview, he recalls his journey in the legal profession, right from his time as a junior in the chambers of a young DY Chandrachud, to setting up his own practice, and the challenges of hailing from a lawyer’s family.
You chose to pursue an LL.M. outside the country. Coming from a traditional lawyer’s family, was this decision met with approval?
I am a repository of the third generation of lawyers. My grandfather was a judge of the Bombay High Court, my father was a Senior Counsel and then a judge. Becoming a lawyer is what I wanted to do.
But then I always thought that doing an ordinary LL.B would not suffice; it is always better to do a Master’s – it gives you a sense of maturity. The LL.M. really helped me to approach a problem from different perspectives, to understand the different complexities, and to research. This is something you have to do day in day out as a litigator.
Coming to your practice, how did you go about choosing the chambers? Did you have to convince DY Chandrachud?
Honestly, no. I did not have to convince him in that sense. My father was a leading Senior Advocate in the Bombay High Court, and Dhananjay Chandrachud is an old family friend.
When I joined the profession, Dhananjay was already quite a star. At the very tender age of 33 or 34, he was doing exceptionally well.
My father was of the view that instead of joining a designated Senior Advocate’s chamber where you may be just one [junior] amongst others, it would be better to join someone like Dhananjay because he will have a lot of work and will also have time to give you.
Did it also help that he was practicing on the original side?
This is a very interesting question. In the 1970’s and ‘80’s there was this marked distinction between appellate and original side counsel. But that started disappearing sometime post 1985-86.
My father, Justice AP Shah, and a few others were essentially counsel that were briefed equally on the appellate and the original side. Likewise, Dhananjay was primarily a writ lawyer – so whether the writ lay on the appellate side or the original side, it hardly mattered.
And that is something that helped me because today also I believe that I am one of the few counsels who has equal amounts of work on the original and appellate sides.
But if you ask an original side lawyer in the Bombay Bar, I am not sure if he will agree with you that the difference is disappearing.
You know that is, as I said, a myth. Essentially you are appearing before the same High Court, you are appearing before the same judges. When there is a change in the roster, the same judge who was sitting on the original side comes and sits on the appellate side.
From a litigator’s perspective, the appellate side briefs are as well-paying as the original side briefs, if not more.
And I must also say that on the appellate side, you learn to swim earlier in life. You get an opportunity to argue a brief on day one. There is nobody who will be there to defend you, to lead you. Very often you will find a junior of perhaps two or three years’ experience standing up and arguing a matter before a division bench.
On the original side, there is, if I may say, a separate kind of practice where the solicitors will essentially be doing the chamber work, the junior counsel will be sent a docket to prepare the brief, then you have a conference with a senior, and the senior leads you in that matter.
Coming back to your early days, surely there must have been advantages in coming from the kind of family you came from.
Most certainly. But at the same time, there were some disadvantages. When you come from an illustrious family, there are expectations of you. The comparisons are straight up with your father or your grandfather. Which is not necessarily fair, because from day one you are expected to perform at that level.
Having said that, this can also be an advantage because it keeps you prepared, keeps you on your guard.
My father told me on my first day in the profession,
“Remember, our profession is the only ‘exposed’ profession. A doctor operates within the confines of his operating theatre, but a lawyer walks into a courtroom full of people, full of lawyers, litigants, and he is required to argue his case. Now, if he fumbles there will be criticism but if he performs well, that is as good marketing as you can get for yourself.”
He also told me that you always have to be prepared. You can never, ever, ever step into a courtroom without having read your papers.
Law is an applied subject. You cannot understand the law in the abstract, you have to apply it to the facts at hand. You may read a section, you may analyse it, but if you are not sure about the facts of your matter, then your application of the law is going to be incorrect.
Who taught you this?
This is something that I have gained through practice. Also, I have observed and seen seniors who are known to have a mastery on facts. There was a very senior lawyer in the Bombay High Court who had a mastery in civil law. His name was Mr. KJ Abhyankar.
He was once arguing a matter as the lawyer for the respondent. The appellant’s lawyer was at sea. He was making a mess of the facts. So, the judge called upon Mr. Abhyankar, and took the facts from him. And then the judge told the opposing counsel,
“In a matter like this, you must take the facts from someone like Mr. Abhyankar because he will give you the facts as they are, not trying to slip in something because he was from the other side. And we will accept this as the gospel truth.”
So, you understand the importance of knowing your facts. If every statement of fact that I submit to the court is doubted by the judge, what is my credibility? I can have a lapse of judgment on particular case law. To err is human. But on facts, you cannot afford to.
Another interesting aspect is all your juniors must read all the files.
The juniors are in my chamber to learn, to contribute, and to also help me better my performance. It would not be fair to a junior to just sit in a conference and try to figure out what the conference is about.
I may not get the time to read all the briefs by the time the conferences are scheduled. But, believe me, I just hate starting a conference with the words,
“I am sorry, I have not read your papers. Can you tell me what the matter is about?”
Because that I think is not acceptable.
Almost two decades into the profession, you decided to apply for senior designation.
It was a dream to be designated. At that time, Ravi Kadam was the Advocate General, and I had asked him and Janak Dwarkadas [about being designated]. I think was 43 at that time. I asked them whether I should apply to which they said,
“We have seen your performance, you should apply.”
So Ravi Kadam proposed my name, Janak Dwarkadas, Viraj Tulzapurkar, Pradeep Sancheti, Shreehari Aney, Mr. Thorat, and Mr. Kamdar subscribed to the proposal and the application was placed before the Full Court. Back then, fortunately or unfortunately, there was also negative voting. So, if a judge abstained it was good, but if they put a negative vote, that would be a vote against you. Fortunately, I was designated at the age of 44 with the maximum number of votes at that time.
What helped me was that I used to practice on both sides of the Court, so judges knew who I was. Number two, I had the opportunity to appear before the Aurangabad Bench as well as the Nagpur Bench. I would often have a supporting brief with Mr. Aney, and so I used to go with him.
What was it like with working with Mr. Aney?
If you see Aney sir even today, he opens his big register, and his notes will be meticulously written. Nowadays he sees me with my typed notes, and says
“Vineet, it looks like you stopped writing notes.” (laughs)
He is a hard taskmaster, but he was one senior who would actually take the pain of settling a draft. So, if I sent a petition to him and say “Sir, can you settle this for me?”, he would ask for a day’s time. And then it would come back to me in the evening, full of red and blue marks.
Do you think the current system of designations makes more sense?
High Courts have framed rules but if there is one rule that I am a little uncomfortable with, it is the one related to inviting objections. Frankly speaking, the designation is given by the High Court to a particular lawyer. Where is the question of inviting objections on these applications? That is something that I think the courts should revisit.
Coming to particular cases, you were one of the counsel in the Maratha reservation case.
Reservation is most definitely a political ploy. It was introduced in the Constitution with a very benevolent purpose, that the people who were historically oppressed be given an equal opportunity. But every political party, every government has used this for its own advantage.
And it is such a vexed issue because our country has so many castes and sub-castes that everybody feels marginalized, everybody wants their community to be recognized either as a religious minority, or a linguistic minority...
But that is almost perverse.
One of the things that the present government did say, which I thought was heartening to hear, was that the reservation would be on the basis of the statistical data of that particular community from that State.
That is very crucial.
Secondly, I always fear that at some point in time, we are going to compromise on merit. Thirty-eight percent from the reserved quota becoming doctors, joining the mainstream. What is going to be the quality of these medical professionals?
You have represented the Cricket Club of India, but I was more interested in your thoughts on the CoA itself – should courts be looking into this?
Absolutely not. It is about time that the CoA gave it up, allowed elections to take place etc. The BCCI should be allowed to take control of its affairs.
Do you think the court needs to be told that this may not be their subject of expertise?
Well I think the court is aware of this. Having said that, various state organisations were to adopt the Lodha Committee Report. That has taken some time because there has been some resistance on certain clauses.
I am on the Board of the Cricket Club of India (CCI), and I can tell you that we were a founding member of the BCCI. But, in the Lodha Committee observations, we were removed from the status of a permanent member because it was held that we are a recreational club, and we are not fielding a cricket team.
Now, just see how unique this situation is.
There is a Mumbai Cricket Association and there is a Maharashtra Cricket Association. We cannot field a cricket team that will be in conflict with these associations. We cannot have a CCI Ranji Trophy team.
But do you mean to say that we have not promoted the game of cricket? Every single person has played cricket on our ground. If you look at our list of playing members, right from Bapu Nadkarni to Vijay Merchant to Sunil Gavaskar to Sachin Tendulkar – all of them have been our members.
You do like the finer things in life, like watches.
I was very close to my late brother-in-law, who passed away three years ago. He had a passion for watches, and we hit it off very well. When I buy a watch, I enjoy the process. I like to read the literature about it, when it was manufactured, why is it so unique.
I also love my jazz music.
Does this provide some sort of balance to the insanity of litigation?
It does. I will tell you why – our brains are working overtime. You are always worried about what you have to argue the next day, especially in final hearing matters where you may be called any time.
Now, how do I relax? The only way I can is either by exercise in the mornings or perhaps some time off in the evenings. And I feel that apart from the fact that it calms you, some of the best arguments come to your mind when you are at peace.
Finally, any advice for young lawyers?
Be true to your brief and be true to your client. Have the ability and courage to tell your client that your case is not good. Don’t be worried about the fact that because you told him the case is not good, the brief will go to someone else.
Have that confidence in yourself.
Anuj Agrawal is the co-founder of Amicus Partners. [http://amicuspartners.co.in/]
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