Women make better lawyers than men; they are more persuasive: Senior Advocate Hormaz Daruwalla

As you walk into the chamber of Senior Advocate Hormaz Daruwalla, you will be surprised to note that he shares his cabin with at least two other lawyers and doesn't like keeping juniors..This is unlike most senior chambers.Daruwalla 'burnt his fingers' and made a niche for himself in the field of indirect taxation. He claims to have come from the most erudite chamber of Bombay, one that produced many seniors. In this interview with Bar & Bench's Neha Joshi, Daruwalla speaks about his journey in and out of law firms, how GST has reduced the work of indirect tax lawyers, how law students should view internships and more.Daruwalla also gives his blunt opinion on the episode of the Intelligence Bureau opposing the elevation of a lawyer by flagging an article written by his former senior..Edited excerpts follow..Neha Joshi (NJ): How did your journey in law begin?.Hormaz Daruwalla (HD): From the inside, I was always a little bent on this little thing called ‘justice’. Why is this unjust, and why is she not getting justice? This is not right, that is wrong. Even in college, I would take up a case for my friends, who would be dragged into the principal’s office, and try and fend for them. Maybe it was that thing that stuck on.After completing B.Com, I started with two things - Company Secretary (CS) and LL.B. simultaneously. In the mornings, I would attend lectures at the Government Law College. Then attend evening lectures at Sydenham College. I completed the three years of the LL.B. course in April 1987 and then a year of LL.M. too but I hadn’t completed CS though I cleared the intermediate level and one group of the final level too. I just couldn’t accept the idea of working for an organization, though my one year of Management Training for the CS course at CEAT Tyres Limited was a decider. So I had to choose between being an advocate in a firm of solicitors, or counsel practice. I had heard stories of how bright seniors had to wait for several years to get their first paid brief and I wasn’t sure if I was prepared or able to withstand that kind of wait. My friend Ashok Menon at CEAT gave me the courage to opt for counsel practice..NJ: When did you join Crawford Bayley?.HD: It was June of 1988. My good friend Rohan Shah informed me that their senior partner, Dadi B Engineer was looking at taking on an advocate in his department. When we studied at the GLC Library, I had already heard from Rohan great stories of the man, and was excited. I met Mr Engineer on the day of my first LL.M. examination paper. The interview lasted for about 10 minutes. He asked me what I wanted to do and I candidly told him that I didn’t want to work at his desk for 20 years, but wanted experience for about three years and then join counsel practice. I was surprised that he said yes to hiring me and he said “That sounds fair! You are the first one who has been honest on this aspect. Can you join the day after your last LL.M. examination paper?”. So that is how I joined Crawford Bayley. The next two years and nine months were through the grind. I worked and worked and enjoyed every moment of it. This is where I first experienced the advantage of never saying “no” to any kind or quantum of work. Mr Engineer gave his juniors a free hand at giving opinions, drafting, and appearing before the courts and authorities, except, of course, the High Court and the Supreme Court.The learning was invaluable. After two years and nine months, I expressed my desire to start counsel practice. He looked sad that I was leaving, but wished me well and supported me not only with his words, but with abundant briefs till his end..NJ: How was life after Crawford Bayley?.HD: Although it was not usual for solicitors to specialise, Mr Engineer would handle matters only relating to indirect tax. I would often brief Senior Advocate Atul Setalvad and many of his juniors, particularly Senior Advocate Darius B Shroff. Senior Advocates Fali Nariman, Ashok Desai and Rafiq Dada were some of the other counsel I briefed. With Darius, however, there was a certain closeness. Atul (and he always insisted we address him by his first name) was also of the view that I should join Darius. So, I ‘proposed’, so to speak, and Darius so very sweetly said yes. That is how I got connected to some of the greatest names in the Indian legal system..NJ: Did it feel intimidating with all these senior advocates in your chamber?.HD: I’ve observed many chambers in my time, and can only say that this place is so very different. The first thing that would strike someone is the somewhat informal manner of work and interaction. Then, the integrity. Then, solid learning and stress on knowledge, and then, the desire to assist and teach. When it's time for fun, it’s fun and games all the way. It’s like a family. You will have noticed that we do not have any kind of cubicles or partitioned cabins in the office except for separate conference rooms which are used strictly for conferences. The interns, juniors, and seniors all sit in one open hall with their tables next to each other. That’s the warmth that we are used to. Lunch is always shared and appreciated as a group at one table. The lineage and genealogy give us a kind of pride and something to live up to, but intimidation? None! There is adequate mentoring happening but no ‘spoon-feeding’. .NJ: You were also associated with Khaitan & Co. for some time..HD: It all started in 1988 with my stint with Engineer, who specialised in and handled only indirect tax cases. On starting counsel practice, I started getting indirect tax work from the very day I became a counsel. This was due to my exposure to drafting and appearing before the quasi-judicial indirect tax authorities and the appellate tribunals. A practice in indirect tax demands a very specialised kind of skill which I must have acquired during my Crawford Bayley days. I kind of was pushed into a specialization, not really out of choice though. So, I started getting work mainly in indirect tax. After a while, you tend to get a big ‘rubber stamp’ on your forehead saying “Indirect Tax Counsel”. Solicitors identify you as a Tax Counsel. That is how one kind of brief leads to another of the same kind, and one gets pushed into a certain niche or specialization from which it is often difficult to extricate oneself. I had handled plenty of commercial litigation and company matters too, but those were not sufficient to erase the ‘rubber stamp’.Then came a major change in the field of taxation, not only for the assessees, but also for the legal industry. With the advent of the Goods and Services Tax Act (GST), apart from ‘customs’, almost all indirect taxes and levies were subsumed into the GST. One would think that would mean tremendous new opportunities for the tax lawyers, but it wasn’t. With simplification and the fact that everything, including thin air, was taxable now at only a few rates and some other characteristics of the legislation, it actually reduced litigation to a great extent. The work of the lawyer was reduced considerably and the work of the 'consultant' and the 'chartered accountants' increased manifold. .Lawyers with a pure counsel practice ,particularly with a specialization in indirect tax, like me, were already reeling under an industry model where work in this subject was unevenly distributed and concentrated with certain firms that filed 'vakalatnamas' and also themselves appeared in the courts. Solicitors who earlier were up to their necks in indirect tax work found themselves winding up their indirect tax departments or consolidating these with other profitable departments. This caused a direct effect, as I said, on the practices of counsel specializing in indirect tax. The ‘rubber stamp’ too didn’t help and would take long to erase. That was the time when Khaitan & Co was looking for someone with experience and expertise in indirect tax. Haigreve Khaitan, my friend Ravi Kulkarni, and I met on a day when they made me an offer I thought was good under the circumstances. Things were soon finalised and in October of 2014, I joined Khaitan & Co as a full equity partner at the firm’s Mumbai office. Work at a law firm, particularly a large and modern one, although it is 150 years old, is so much different than what I had experienced in 1988. I was impressed at their near-perfect systems and their culture. Khaitan recruited the ‘cream of the crop’ of smart young lawyers from law universities and colleges. Haigreve, I must say, has amazing vision and skills. The work culture too was enviable and it was a happy scene. A lot that I learned there was in the areas of the manner in which work actually gets attracted to a firm, how it is executed, and the successful retention of the client due to their more than satisfying experience. However, things didn’t work out as expected and we called it quits and parted paths in September of 2016..NJ: Why do you think there was a reduction in constitutional challenges to indirect tax laws post-GST?.HD: GST has proved to be a complete game-changer. Most of the indirect taxes and levies were subsumed within the GST. It casts a wide, all-inclusive net over anything and everything. It has only a few rates of taxes and the charge of tax is simplified and the officer’s discretion is reduced considerably. Under the earlier central excise regime, there were numerous challenges and disputes with regard to valuation, classification, and where officers were given discretionary powers. Much of this, if not all, has been eliminated by GST.The disputes that arise are very few and mainly relate to compliance and evasions. Consultants, chartered accountants and large accounting firms are preferred, and rightly so, as the ‘go to’ people for such disputes and compliances. GST has definitely reduced the scope of litigation and, in that sense, has proved to be a refreshingly important piece of legislation for all. Yet, experience tells us that the assessee would find ways and means by interpretations or otherwise to reduce his burden of tax. Only time will tell how many such new and unique disputes our courts will encounter. Till then maybe, one can look to other areas to work..NJ: So after Khaitan, you came back to your counsel practice?.HD: I came back to my same old place at this chamber. We share common facilities of the chamber. Advocate CM Korde, his three juniors and my good friends Chandran Jaganathan, Sasikumar TC and Pranav Nair currently occupy the chamber. It was so considerate of them to have kept my spot. They all welcomed me, for which I’ll be ever so grateful. This time around, the two-year hiatus gave me an opportunity to erase the ‘rubber stamp’ and start with a clean slate of my choice. I once again resumed accepting work on behalf of the court custodian, before the Special Court, which I had commenced in 1995.The ‘rubber stamp’ also started fading rapidly when in a number of cases, the High Court appointed me as arbitrator. With the continuation of the briefs before the Special Court and arbitration that I was conducting, I found myself to be contentedly busy. I also appeared in public interest litigation matters and mainstream civil litigation in commercial law matters. The Special Court hears its cases only every Friday. This gives me sufficient time during the rest of the week to accept work in other matters. I still handle indirect tax cases, but the monotony is absent. The proverbial ‘rubber stamp’ has vanished (such a relief!). But the non-tax work is also varied and subjects are vast, so it is refreshingy interesting. .NJ: Your colleagues and seniors have all been males. Are there fewer female lawyers especially in such niche areas of law?.HD: That is actually very sad though. But I think the ratio is improving. Because I see a lot more women lawyers in the High Court. You do see them, very young juniors, starting out. But I don’t know what happens after a few years. You see the numbers dwindle. I don’t know why – maybe because of our Indian culture with its linkages to the stereotyped roles and responsibilities expected of women. Maybe pressures after marriage and rearing children and taking care of families and households. I hate to say this, but that’s what we, our society and culture, have done to our women. It’s such a shame! But that must change. A lot needs to be done. The government speaks mostly of ‘reservations’ for women, but that cannot address the greater evil and the root cause of this hopelessly skewed ratio. What the government needs to do is focus on changing the mindsets of people, of societies, of how we look at and treat our women. Progress on this front can happen provided the present government first, in all sincerity, changes its own mindset and expresses its will in that regard. It’s such a sorry state of affairs. Look at the judges’ ratio in the higher judiciary. The Supreme Court has only three women judges. How could we permit this to happen? I’m sure there are an equal number of women who would aspire to become lawyers and judges so there’s enough in the pipeline. But there are severe leakages that ensure the women's drop-out rate is high. Women, I think, make better lawyers and are also smarter. They are able to be more persuasive than men. They have that finesse. It’s a shame what is happening to them..NJ: Which courts or forums have you found most challenging or have you enjoyed appearing before?.HD: My first reported decision was before Justice ML Pendse. I think the judgment was of 1991-92. Justice Pendse was quite a taskmaster, but he was particularly good to juniors. He was my favourite maybe because he gave me my first reported judgment.One time, I was appearing before Justice SW Puranik and after the matter was closed for orders, Justice Puranik asked me my name. When he heard the surname “Daruwalla”, he leaned his portly frame forward, carefully took off his glasses with both hands and with a bright smile said, “Nice name!” Everyone in the court burst out laughing.Actually, the most satisfying times are when you succeed as a junior, however small or insignificant the case may be. That is because when you succeed as a junior, your thinking is so different “Yes!! The judge got my point! And he actually agreed with me!” So there are those matters which really pep you up. For the rest of the week, you have a spring in your step. Today, the same cases or something even ten times more important or significant ones, will not excite and satisfy you to that level..NJ: What do you think about hybrid hearings?.HD: Hybrid hearings are a fantastic thing that has happened. These should continue forever. Not only does it get people who are far away closer, but it also makes it convenient for judges to dispose of cases faster.However, this is provided the technology is working efficiently. Otherwise it takes longer to have an online hearing than a physical one. COVID has actually given us a gift of the online hearing. In fact, I even conduct some of my arbitration online. This saves a lot of costs for people to travel to courts. It saves time and money. It makes life easier for everybody, except when there is some cross-examination to happen. The Supreme Court has directed that online cross-examination cannot be insisted upon unless consented by all the parties concerned. The thought process is that somebody might get an opportunity to cheat. But this too could be overcome easily with two cameras on the witness, one from the front and the other from the back.So I feel it should now be a matter of course. Now many judges have started and will continue. We can have safeguards to see that it moves fast and that there is technology assistance for people who want to appear online. Maybe they could do it from specially built cabins within the court premises too..NJ: What do you think of the system of designation, does it need any tweaking?.HD: I don’t think it needs any change. It’s a very logical system based on the decision of the Supreme Court in the Indira Jaising case. Some tweaking has already been done by the Supreme Court. Actually, the earlier system too was a good one according to me. But there was a lacuna that unless the advocate was a very popular one who appeared in ten cases in six courts every day, his visibility, or rather the lack of it, didn’t help him. In the new system, this has been remedied by making the consideration based on an all-round assessment of the advocate. This system makes good sense as a senior advocate is much more than just popular..NJ: There was a recent episode where a Collegium resolution mentioned a report of the Intelligence Bureau (IB) flagging an article written by the senior of the proposed judge. What is your take on that?.HD: This was a terribly wrong thing to have happened and I’m glad it’s been handled so well by the Supreme Court Collegium. The flagging, at first sight, seems to be a benign remark by the IB. On a second look, however, it reveals something sinister about the recent much-written trend on the subject of ‘freedom of speech’. It’s a telling sign of what things are coming to and where this country is going. Firstly, I don’t believe that the senior could have ever written anything that would be even in the realm of something against the country or would be anti-national. I don’t think he is capable of doing that or would ever do that. His article, I believe, was on the subject of freedom of speech.Secondly, one fails to understand how criticizing either a politician or a government policy is anti-national or a threat to the country. Neither of these is or can be considered to be the ‘country’. Politicians and governments are being criticized every single day. That is not a big deal. I can understand if the criticism was mala fide and towards the President of India, but since when do politicians and governments become the country itself? Also, since when have juniors become their seniors themselves? On a more important issue, it would be interesting to know how and why the IB felt the need to red-flag this and what compelled the IB to red-flag something like this. In fact, this episode does actually raise several red flags, but pointing in just the opposite direction. The boot is on the other foot. This episode was most upsetting. I will, however, hasten to add that this is what we as a people have given ourselves, so we cannot complain. The less said the better..NJ: What is your take on nepotism in the legal fraternity?.HD: There are instances of nepotism in the best of countries and in the best of places, and the legal industry in India is no exception. I do not know of any specific instances that have happened recently, but human beings as they are, are prone to these things. I am not justifying it or saying that you should ignore them. But it is happening and will happen. Having said that, I’d say it’s not a kind of danger that’s like the IB red flag episode. People do succumb to these tendencies. Of course, it’s wrong, I am not saying it is right, but let us not get into all that just now. There are so many critically dangerous things and challenges that India and the society are actually experiencing that need to be addressed before you can even think of nepotism. Nepotism under today’s circumstances is relatively only an irritant. Let’s not waste time on that..NJ: Any word of advice for young lawyers?.HD: Don’t specialise! I burnt my fingers. But all said and done, I was able to efface the ‘rubber stamp’. It was an uphill task, it wasn’t easy but I still managed very well, I was lucky. Not everyone is.Be in this profession only if you have a passion for the subject. It’s exciting and fun if you’re doing what you enjoy.Whatever situation you are in, please do not say no to any kind or quantum of work given to you, thinking “This is boring, this is just numbering the pages”.I’ve worked with plenty of students and Interns. They would say "I want to do an internship in company law, because I am interested in company law.” I’d say to them “Do you know what income tax is, what constitutional law is, what indirect tax is?” and they’d say “No, but I like company law”. You young people make up your minds on something that you like, but do not know enough about the other subjects, of which you are clueless. Maybe if you knew, you might even like it. You need to explore all subjects. See the difference between then and now. I never had an opportunity to say “I don’t want to do excise and customs”. Now, before you enroll as an advocate, you’ll have done perhaps ten internships. So you have a wonderful opportunity to explore. Don’t spend time on an internship in a subject you know you love. Do a stint of internship in the subject that you think you don’t like or are ignorant about. Use the opportunity, to find out why you don’t like it..Once you’ve actually seen it, you may even like it. Don’t just go for your favourite subject. Explore everything and then decide. Don’t waste these superb opportunities. We never had these in our times.Don’t be afraid or ashamed to say you don’t know and would want to know or learn. Don’t be shy to express your ignorance and don’t you ever believe that you know it all now, because the day you start believing that, it is the day you start failing.Ultimately, it will not be your skill or the knowledge that you acquire that will determine where, what, and how you are in your career. It’s your attitude that will determine this. Be humble, be helpful, be kind, be true to your conscience, and work consistently. Things don’t always go the way we want or expect them to go. What does one do then? Make all attempts to see if you are able to figure out the real or actual obstacle and try and rectify the situation. If you can’t change it despite all your serious efforts, hang on and keep plodding. Seeing your efforts and persistence, luck, or something or someone good, will surely catch up with you sooner rather than later. Till then, happy plodding!