All the senior gown does is allow you to increase your fees; many juniors argue brilliantly: Fredun Devitre

The first thing that strikes you when you enter the chambers of Senior Advocate Fredun Devitre is that his bookshelves have more tomes on cricket and sports than law..An admitted cricket enthusiast, Devitre has done commentary for years and dabbled in sports journalism while maintaining a successful career as a lawyer in the Bombay High Court.In this interview with Bar & Bench, Devitre opened up about how he ‘drifted’ into law, and how he balanced his passion for cricket while building a practice. He also speaks about the importance of good drafting, shares his take on the dearth of women in the legal profession, and more..Edited excerpts follow..Neha Joshi (NJ): How did you end up doing law?.Fredun Devitre (FD): I finished my Bachelor of Arts (BA) in Economics and Statistics, and at that time, Masters in Business Administration (MBA) was ‘the’ course for most people. I joined MA in Economics and Statistics, but it was a mistake and the Statistics part turned out to be way beyond my capacity.Then I decided to switch to law because at that time, I was courting my present wife. This was about 50 years ago. She was doing law from Government Law College (GLC), Mumbai, so she suggested that I come and do law.In school, we had those aptitude tests, and I was told that depending on my performances, it would be either journalism or law. For me, it turned out to be true. Because I had also been a sports journalist for many years writing articles in Sports Week and other publications. For me, it had been a happy combination of law and journalism..NJ: What about your passion for cricket?.FD: I started cricket commentary in 1968, when I was still in first year at Xavier’s. I remember going to auditions to the Cricket Club of India as a 17-year-old and they had passes which read “children below 18 are not allowed”. I was wondering what if someone stops me!I was very popular in St Xavier’s, because 1973 were the early days of television. They wanted many people for youth programs. So, I would go around and I came to be known as the TV man. People in college said “if you want to go on TV, meet Fredun”.I started with radio, from the Bombay versus Maharashtra Ranji Trophy final in 1971. It was a five-day match and the first three days of the match coincided with the last three days of my college exams. I told my parents I wanted to do commentary over exams. They were of course worried. They got in touch with Arun Shroff, the assistant director at All India Radio (AIR), who was my mentor as well. Shroff put his foot down and told me to give my exams and that he would let me do commentary on the last two days of the match.Thereafter, I graduated to Test commentary in 1972-73. I did commentary for the first Test match telecast at Brabourne stadium, the first Test match telecast at the Wankhede stadium, the first test match telecast at the Corporation Stadium at Madras in 1974-75. I was also writing for the Sports Week magazine for two years. I moved into law, but I used to do both simultaneously.I did commentary for Asian Games in 1982 for swimming after becoming a counsel. I did not know much about swimming, but one learns. Of course, my commentary also resulted in my chamber colleagues and advocate friends drilling me about the mistakes I made during the commentary. I had once said ‘Honorary President’ instead of ‘Honorable President’..NJ: How did you manage to balance your legal career with your passion? .FD: Judges were accommodative, not that one asked for time because of commitments outside court. But they were encouraging judges and interested in cricket. So, when I met them outside court, it was always cricketing talk. In those days, commentary was not a well-paying job. Now, things are different. Maybe looking back, if one stuck to commentary, life would have been different.I have been reasonably successful in both professions. At least upto 1993, till I did my final commentary for the Hero Cup in Eden Gardens, Calcutta, both the things married very well. Of course, those were Doordarshan days. Doordarshan had its own peculiarity. They would tell you last minute, you had to make arrangements. And by today’s standards, they did not pay too well. But you always welcomed whatever came. Sports Roundup became a very famous program every week. I did the first international program from Bombay which went on for 52 weeks. It was a good marriage between sports media and journalism. I met many famous sports people.If you have an interest, you can manage your studies and your other interests even with your profession. If you are committed and interested, you make the time and you manage it. There is no difficulty. It requires longer hours, that is all. For me it was a happy space.In between, I also edited a book on cricket called ‘Willow Tales - the Lighter Side of Indian Cricket’ because cricket has been my passion. In fact, my library in the chambers has got more cricket books than law!.NJ: How were your early years at the Bar?.FD: I joined the Bar in 1977 formally and roughly after 10 years of practice, I started my individual practice with Mr. Zaiwalla. He was one of several in that Chamber No. 1 of the High Court. There were 10 of us there - including Khurshedji Bhabha, Iqbal Chagla, Niranjan Vyas (who later became a judge), Vatsal Chhatrapati, Janak Dwarkadas, Darius Khambata, Erach Kotwal and Roshan Dalwi (who also became a judge later). One thing was sacrosanct - between 4:45 PM to 6 PM, nobody took work. We used to have tea together where reputations were ruined and gossip ruled! But for a junior sitting with these eminent seniors, we were very irreverent, but free with our seniors. JP Avasia was the fulcrum. We managed to work and make it amiable. I don’t know how the chamber managed to work with all this masti!.NJ: How did you build your practice?.FD: I worked till 1980 in a law firm and then joined Senior Advocate BR Zaiwalla, who was the late Fali Nariman’s junior. Nariman happened to be a family friend, so he was helpful in getting me in the right place.I never made a conscious effort to build a practice. We were told in early years that during court vacations, juniors should not leave court because that was the time when many of the seniors had left and there were briefs available. But somehow, I was not the one to follow that, because I believed that if briefs were to come, they would come. I was maybe fortunate they came my way..Throughout my years at the Bar, I attached a great deal of importance to drafting. I find drafting is one of the aspects which is not given importance. I find great satisfaction in starting with a blank sheet and then filling it with logical arguments. I believe drafting is an underplayed aspect of counsel and solicitor practice. Even as a judge, when you have a good draft before you, I am sure it makes a difference. Most judges read the papers. It has always been my endeavour to make sure that I say the maximum with the least words. The impact is in brevity. I have always believed that for something you can say in five words, you do not need twenty. I have a bad reputation on working on my drafts - correcting, recorrecting, not to aim for perfection, but to aim for the best possible way to present to the judge.I really think that in colleges, there could be something on how to put across a proposition, how to segregate your draft into who are the parties, why you are filing proceedings, what are the brief facts, what is the law and what are you seeking. I find many drafts have mixed up these points. Poor drafting disappoints me, it is hurtful. Bombay is known for proliferation in drafting, in the sense that our drafts are very long. But I try to be as precise as possible.Today, for example, you see every paragraph in a draft stating with ‘the plaintiff says and submits’. You just switch off when you read such a draft; it is a useless, hopeless draft. Of course, the plaintiff is saying it, once you have said it at the top. People say ‘I submit’ in a witness affidavit. How can you submit in a witness affidavit? It is an affidavit of fact. People today copy the plaint averments in witness affidavits very often. Things are changing, but somehow it doesn’t percolate down. Drawing up of a witness affidavit is an important aspect, a difficult aspect sometimes, because the witness has to speak to personal knowledge, or on the basis of the record and not just merely parrot the plaint or written statement for the sake of it. So how to put it across, many people do not realise. And I am sure some of the judges who deal with these must be getting very upset when they see this sort of casual drafting. You have to be precise about it..NJ: Does this come from law firm training?.FD: Possibly, and a love for the language and literature. It gives me immense joy personally to see a blank sheet of paper filled up with your thoughts. It is an artistic work..NJ: What is your take on the system of senior designations?.FD: There is much to be said about doing away with this dual thing of senior and junior. There was a white paper in England in 1996-97 reported in a lot of newspapers highlighting the fact that seniors and judges were from a closed club and therefore the paper asked why do we need this distinction? Our Advocates Act, of course, provides for senior advocate and junior advocate. Why do you need a flap? If you are a competent lawyer, you could be a senior or a junior. There are many competent juniors who argue brilliantly.The responsibility of the senior is much greater, it sort of weighs on you. The court looks upon you as a senior. When we joined the Bar, the judges were way ahead of us in age, we were the kids. Gradually, some of our colleagues and juniors became judges. That way, it is sort of an evolving relationship between the Bar and Bench. The longer you spend at the Bar, you certainly become accustomed to the ways of the Bar and the Bench.All the gown does is allow you to increase your fees! (laughs) Jokes apart, the senior also is a mentor or a guide to the junior. That is also one of the roles a senior performs. On a personal level, I had many juniors with me. However, for the last 10-12 years, I have not been in a position to take juniors..NJ: Did you have aspirations to be a judge?.FD: I was almost compelled to become a judge because one of my former chamber colleagues, who was already a judge, was keen that I accept judgeship. I was offered to be judge during the tenure of Chief Justice MB Shah. I had said no at the time, because I was not in a position to accept judgeship at that time. I genuinely felt I was not temperamentally suited to be a judge and I am sure many others were better suited.One of the incentives held out to me was that if a young lawyer from Nagpur (younger than me) became a judge before I did, then my chance to be a Chief Justice would be quashed. I said ‘Good luck to the young gentleman’. Later, he did end up becoming the Chief Justice, but I was quite firm that I did not want to be a judge. Maybe I was not prepared to accept the restrictions that normally comes with judgeship.Maybe I was wrong and life would have taken a different turn as a judge. But I have no regrets. I was offered the position of the Additional Solicitor General (ASG) twice – once when the late GE Vahanvati was the Attorney General and once after Khambata stepped down as ASG. Both times, I declined, because maybe I am not suited or cut out for this. Maybe these are mistakes that I made. But these things happen.I have always believed that you do not need the stamp of an office to be regarded as successful. An outstanding example was the late Fali Nariman. He never held any office except as ASG, and it was earlier in his career. But he was regarded as ‘the doyen of the Bar’. So many ordinary people live an extraordinary life by the way they touch people’s lives. Not holding an official position or declining an official position doesn’t necessarily need make you a lesser of an advocate. That is my truth..NJ: You had said in a speech of yours that appearing before forums apart from courts helped you become a better lawyer. How so?.FD: It is true and that was the advice I was given. Ultimately, what is advocacy? It is persuading someone to your point of view. Judges also come from amongst us, they are part of us. When you meet an administrative officer like the Collector, or go to a lower tribunal, you learn how to persuade. What is it that strikes a chord with them, and how do you present your case? I used to appear before a Collector for several hearings. I used to go to Mantralaya (Legislative Assembly) for a land revenue code proceeding, and thereafter before the Secretariat. Many of them were very intelligent people. Of course, unlike judges, they had their own limitations in deciding against the State, and it took a great deal of courage to decide against the State. So, you went there knowing what the outcome would probably be. But nevertheless, you presented your arguments in the best possible way. That helped a lot.I personally think every junior should go everywhere where he can get an arguing brief. Of course, it helps be a second, but the arguing brief experience as a junior I think is important..NJ: You have taught in law schools briefly, what was that experience like?.FD: The interaction with these young students was what was most interesting. They had fresh minds and they viewed problems at a level where sometimes you would not think of. I found something which may seem stupid, but when I used to come back home, my daughter (who is now a lawyer herself in Zurich) would ask me what I did that day and what matter I argued. In trying to explain to her in the simplest possible way, sometimes, a thought struck me which would not strike otherwise. This would happen every often. She would ask questions like why not this. And I would wonder what she is saying is not wrong, because she is looking at it from her simplistic perspective. Because sometimes, we get too stuck in the nitty-gritty of the whole thing. So, the students would give us a broad perspective, which would be very helpful at times..NJ: What is the position of sports law in India? How evolved do you think it is?.FD: More and more matters of selection cases are coming to court. Earlier, you always accepted; if you are not selected, you are not selected. Today, people are not willing to sit back. If you have won five titles at a particular level, then you are qualified to represent India. But there is certainly an element of subjectivity in all selections. Two good cricketers may have scored centuries, but you may know someone’s temperament better. Some level of subjectivity has to come into selection. But increasingly, people are now applying standard legal tests of decisions because these sports bodies are also now very big. They are very wealthy, affect a lot of lives and they have a monopoly - the Board of Control for Cricket in India, Indian Cricketers’ Association and Hockey Association of India for example. If I have to represent India, I have to go through them. It is a public field now, and hence, all of the principles which are there in Articles 14, 19 and 226 (of Constitution) apply. Especially after the decision of the Supreme Court in the BCCI amendment case, sports is much more in court than it should be.A lot of sporting decisions are landing up in courts because much of sports is commercialised. The Indian Premier League (IPL) is completely commercialised. You see a lot of good performances, but from the owners, organisers’ perspective, it is all a written contract. Today, sports law is a niche, flourishing business. People specialise in sports law. In India, not so much, but I am sure it will grow enormously in the coming years..NJ: Does having a variety of interests outside of law help make one a better lawyer?.FD: I think so. There is a very famous saying by a West Indian sociologist who was also a very eminent cricket writer - CLR James. In his book ‘Beyond the Boundary’, he said “What do they know of cricket, who only cricket know…” I think the same thing goes for law - ‘What do they know of law, who only law know’.The law in itself is a dry subject. It is how you relate it to everything around you. Having some interest outside the law - whether it is literature, dance, some sport, or anything, helps enormously. And it also takes your mind off work. One needs a moment of relaxation which this sort of passion provides for..NJ: What changes do you see in the profession, in terms of the quality and quantity of lawyers and judges?.FD: I am not going to answer that. I am sure there are great lawyers in any era. It is like cricket, the great batsmen in any era are going to be regarded as great batsmen. We tend to glorify the past, but I think the present lawyers we are seeing before our own eyes have been outstanding. The bad ones will be bad, the good ones will be good. The great ones of any generation will remain great.We tend to think that the past was much better than the present. But I think it shows that what happened in the past also repeats itself. There are good and bad elements in every generation and era. It is not as if everything was good in the past and everything is bad now. It is a mixture of good and bad in every era. They said Chimanlal Setalvad was a great lawyer. Today, Janak Dwarkadas or Iqbal Chagla or Rohinton Nariman to name a few are as good a lawyer as any in the past. A Fali Nariman was a doyen even an earlier generation would have been proud of..NJ: As a first-generation lawyer, what is your take on nepotism within this profession, and legacy lawyers/judges?.FD: I am a first-generation lawyer, I have seen families of doctors and lawyers etc. But I believe you have to be good in your profession. Just because you are from a family of lawyers, that may give you a marginal advantage, but that will not last. What if you are a useless child of an eminent lawyer? Or you may be an outstanding child like Rohinton (former Supreme Court judge Rohinton Nariman), who outshone his father in many ways. In Bombay at least, I think it is over-hyped..NJ: Why are there so few female senior lawyers from the Bombay High Court?.FD: This female bit is over-hyped. If you are a competent female lawyer…I don’t think success depends on gender. Success depends on how competent you are. There are competent girls who are doing well. There is an Indira Jaising, Rajani Iyer, Zia Mody, there are outstanding examples of women who have made it. I mean why are we assuming they have made it despite opposition? They have made it!I am not in favour of this concept of reservation for women or keeping some seats for women. Many women are more competent than men. They will be found and pushed forward. If you want a level playing field, everyone needs to be on the same field. I think we are overplaying the gender card. There are so many women in the profession.Somebody should do a study on how many women stay on, and last the course; and how many pull back due to various difficulties. These are societal difficulties… Outstanding women and competent women will always succeed. How good you are doesn’t depend on your gender. How you are received also, doesn’t depend on the gender. It depends on how well you present your case. A female lawyer who presents her case well will be received as well as a male lawyer..Bombay Bar Association gets six female members on standing committee for the first time.NJ: What advice would you give to young lawyers?.FD: No free advice! (laughs)