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Protik Prokash Banerjee on dealing with success and challenges of a litigator, mettle of law students and opportunities at the Calcutta HC

protik-banerjee7Protik Da talked to us earlier on studying law, career of a litigator at Calcutta High Court and building clientele. This time we requested him to delve more deeper into the nuances of the legal profession. Success, failure, challenges and how he took them on his stride.

In this interview he shares his insights of:

  • Dealing with challenges and successes
  • Having a few landmark judgments to his credit
  • Difference between the regular and the ‘elite’ law students
  • Opportunities at the Calcutta High Court for an young lawyer

 

It is 19 years of your illustrious practice at the Calcutta High Court. You must have encountered difficulties few and far between your successes. What were the most taxing challenges you ever faced? And how did you overcome them?

The worst challenge I faced was in my early years. I had to appear to argue a Second Appeal before a Division Bench presided over by a very conservative Judge who had, before elevation, a roaring civil practice. The gentleman was so old school that he believed that no junior should argue a second appeal at the stage of Order 41 Rule 11, Code of Civil Procedure unless he had at least ten years’ practice; by that time of course, you were not a junior anymore. He also felt that juniors should lose in his Court at least thrice before they were entitled to an order. The first might have been justified considering the difficulties involved in arguing a second appeal at the Order 41 Rule 11 (popularly but wrongly called ‘admission’) stage, but the second was really tyrannical. I was constrained to argue the matter because the client was standing in the Court room and did not want me to take an adjournment on the ground of the absence of the learned Senior Advocate who had been briefed to lead me.

The Hon’ble Division Bench first asked me whether I wanted an adjournment; naturally I said I would argue, though I was led by a Learned Senior Advocate. The Judge became very irritated and asked me whether as a Junior I thought I knew enough to argue on a substantial question of law. When I persisted politely, he visibly gnashed his teeth and asked me to begin. He did not look at me or the brief but kept staring out of the window. After gamely going on for an hour, I stopped. He asked me if I had anything more to say. I naturally said that I had completed. He dictated a judgment which did not reflect anything I had argued. It was a rather brief Order by which my second appeal was dismissed on the ground that no substantial question of law was involved. He was the Senior Judge. The Hon’ble Junior Judge, as is customary unless there is strong reason to dissent, indicated his agreement. I came out of the Court Room almost in tears. My client went to Supreme Court. He won there.

Another time was when I confessed before a Court that my client really had no point on merit but only technical grounds to justify his refusal to allow his tenant to have a separate meter in his name. My client had issues with the tenant and wanted to evict him. The Court became livid since according to it, I was no one to judge whether or not my client had any point on merit, but that it was his duty as a Judge. He recorded my submissions and allowed the writ petition (where I was the private Respondent) and ordered that my client was to pay costs assessed at Rs.5 lakhs each to each of the Respondents and the writ petitioner.

There were eight respondents apart from my client and one writ petitioner so in effect it was an order for payment of Rs.45 lakhs. This was in the year 1999. It was a big sum in those days. I came out of the Court room stunned, and sat down on a chair outside. I was still dazed when a learned Senior Advocate of our Court, Sri Bikash Bhattacharya, put a hand on my shoulder. I jumped up, to offer him the seat but he forced me to remain sitting. “It’s a blessing in disguise”, he said “now you will easily get a stay from the Division Bench. You can’t just appeal against costs so you will have to appeal against the entire order. Normally with your case you would have lost anyway. Yet now the amount of costs will make the Division Bench be sympathetic.” It worked out exactly in that way.

My difficulties – then and now – can be summarized in two words. Bad habits. These have ruined my health. Working without sleeping, sometimes without eating and mostly eating the wrong sort of food at odd hours have made it impossible for me to attend Court as regularly I would have liked. Then again, because of my late hours and the consequential effect on the offices of privy, I do not always come to Court on time. These made many learned advocates feel chary about briefing me. Perhaps the worst thing was my substance abuse. I used to drink very heavily and there were times till 2001—2002 when I drank a litre of single malt every day and two litres on Friday evenings. I used to work on, but naturally people get very anxious if they come to brief a lawyer and find him reeking like a distillery. Together these things brought my practice down to nil thrice in these last nineteen years. The fourth time was deliberate, when I became the Standing Counsel for the State of West Bengal. I took a conscious decision to limit my private practice to drafting pleadings, petitions and affidavits in matters where the state government or its agencies were not parties. These three years the challenge was subsisting on the meagre amounts that the government paid, very irregularly, without bringing down my accustomed standard of living. My bank account took a huge blow from which it is yet to recover!

 

You became a Govt. Counsel in 2011. What does it take to represent the Govt.? What were the main areas of your expertise you were banking on as a Govt. Counsel?

I do not claim expertise in anything at all. I am a competent draftsman, and I can speak in English. I read a lot. These are what any lawyer would require to practise law. I had some experience in banking law and interlocutory matters (applications made while a suit is pending, seeking receivers, injunctions and various other interim reliefs and relating to the suit) and I had done some arbitration and winding up proceedings, and I had appeared in quite a number of writ petitions, but these were not what I banked upon. I relied upon my basic honesty and the willingness to learn from anyone.

I do like the complex laws relating to land in West Bengal. I was briefed in matters of various types, but of these I liked to do land matters most. At one point of time I was briefed in almost all the important land matters of the day. I was also involved in a lot of police inaction or police harassment cases where in my own way I tried to ensure that justice was done and even the writ Petitioners accepted that the State was fair in its treatment.

To represent the government you need to develop the ability to work for very long hours without getting paid, working on sketchy instructions given by pen-pushers to whom either nothing matters or who are so committed that they stay awake night after night trying to help counsel though they do not get paid anything extra for it. You need to have patience and good manners so that the officer who has come to brief you and who may be your father’s age, does not feel insulted by your behaviour. He calls you sir because your position demands it, but you should also show him the respect that a man of his age or designation is accustomed to. Many of my colleagues working for the government took pride in the fact that they treated Secretaries of Departments and Directors of Directorates like dirt. The way they behaved with lower division clerks – who in most cases know more about the law relating to their department than qualified lawyers – would make you puke. I tried, during my tenure, to treat them exactly as I treated any other client or client’s officer from my days of representing corporates. Perhaps it helped.

When I left my government position I was humbled by the number of people who expressed their regrets – from my juniors in the government panel of lawyers to the high officers of State whom I had represented and even the staff of the Advocate General’s and Standing Counsels’ offices. This is what I carry with me – the good wishes and blessings of those with whom I have worked. In the end – apart from character and providing for your family – perhaps it is all that matters.

 

You have a few landmark judgements to your credit. One which I can readily recall is about amenability of arbitration to the High Court. How does it feel to have a landmark judgment to your credit? Do you think achievements like this can change one’s recognition drastically?

Landmark judgments do not do much for the client except immortalize his name. Most of the landmark judgments result in a loss for the petitioner. Look at Keshavnand Bharti, Maneka Gandhi or even Olga Tellis. In each of these cases important principles of law were laid down, extolling the Rule of Law, Natural Justice, Basic features and the right to livelihood. Yet after laying down these principles which are vital for any libertarian democracy – the petitioner lost the particular case. Maneka Gandhi’s grievance was held to be one which could be redressed by a post-decisional hearing, the eviction of the squatters was upheld in Olga Tellis and even in Keshavnand Bharti, in the ultimate analysis, I think the Petitioners lost. That is my view.

The one you referred to is Unik Accurates—v—Sumedha Fiscal. It was the first time that a High Court decided that an arbitral tribunal is amenable to the jurisdiction of the High Court under Article 227 of the Constitution of India. Of course now it has been modified somewhat by the larger Bench of SBP—v—Patel Engineering, where the Supreme Court has laid down that so long as the arbitration proceeding is pending High Courts ought not to intervene due to the existence of an alternative remedy and the statutory scheme, but that does not take away the principle of law settled by the High Court, that under the Arbitration and Conciliation Act of 1996 an arbitral tribunal is a tribunal for the purposes of Article 227 of the Constitution of India, therefore the arbitral tribunal ought to be so also.

So far oft cited judgments where I appeared are concerned I’d rather not talk about them. They are there online and in law-reports and I am sure if anyone is interested they can be found. I remember fondly only one of them, the case of Labonyamoyee Chanda where a widow of a country doctor was refused treatment and admission by a reputed government hospital on the ground of lack of ‘bed’ though she was in a moribund condition as certified by that hospital while a lady referred by an important politician was admitted immediately, just half an hour later without any bed having been vacated in the meanwhile. My client survived due to charity of people who contributed enough money to have her treated in a private establishment. What made my blood boil was that this lady’s husband, while alive, had given up a lucrative medical career in the city and had devoted his entire life as a doctor in a government hospital treating the poor and indigent but after his death without issues, his wife was treated like a pariah.

I argued that ‘passing the patient’ was not a game that any hospital could play particularly when she was in a moribund condition and if beds were not available, she ought to have been accommodated on a trolley bed and treated immediately. We won, not merely compensation but also the price of the pace-maker that had to be installed. We were also awarded costs.

I do not feel particularly different just because a matter which I argued later on became celebrated or is cited very often not just in Calcutta but elsewhere. I will not lie, they make me very happy – but let me make one thing very clear: celebrating reported judgments as landmarks by the lawyer who argued them is like resting on one’s laurels – and that is not the part of the body on which laurels were meant to be worn.

 

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You have indiscriminately mentored a lot of students and provided invaluable guidance to many. What are the differences that you found between students of the ‘elite’ law schools and students from other law colleges and traditional universities?

Those who come from ‘elite’ law schools are also divided into two parts: CLAT and non-CLAT. Those from other law colleges – such as mine – feel that they have a lot more to prove and when they do internships, by and large they are far more open to new ideas and think out of the box. They are taught very little in their colleges and so they know that there is a lot to learn. They keep on ruing that they do not get well paid jobs immediately after graduation, but they are eager to practise for a few years so that ultimately they are picked up by law firms and bodies corporate who want experienced junior litigators to look after procedural matters.

The students of CLAT law schools, by and large, are very well up on the theory of law. I have had the honour of teaching successive fourth and final year students at the NUJS and have had students from almost every national law school intern with me over the years. Most of them are very good at researching principles of law and cases, even when doing their 3rd semester. This year I wanted to see how their first year students do and though it’s too early to comment, most of them have that brightness in the eye which I want to see in every student. The one thing that I do dislike in the CLAT law school students, though, is their unconscious assumption of superiority just because they have qualified in the CLAT. As I keep on saying an examination is only a test of what you could remember and write on that day. Law as a profession demands consistent excellence every day in the year and not just one day for four or five hours. A lawyer must study. Studying is what you can do equally well while doing a correspondence course so long as you are online. Yes it is true that CLAT law schools have the best libraries I have seen. I am fascinated by the NUJS library which has both reference and text books and journals and which also has a lot of the literature of law. The students are enriched.

The non-CLAT elite law schools leave me perplexed. Some of them charge almost what a High Court judge makes a year, boast of certifications and collaborations from foreign universities and have their own entrance examinations. They are comparatively new. I know for a fact that their faculty is usually of sterling quality but to afford the fees either you have to be uber-rich or hock your patrimony! I have trained a few students from those law schools and despite the innate goodness of children – for that is how I think of them – I have either smelt the crass stink of easy and new money or the desperation that arranging for student loans entails. I keep asking them, why do you choose to study in those places where neither top-tier jobs nor excellence in practice is certain? They really have no answer.

I cannot conclude my answer without taking two names: Arun Krishna Dhan, whom I taught in 2006, from NUJS and who knows more Constitution of India and precedents than I did then or would ever know; Koushik Layek, also from the same batch who was the most complete (though a bit of rogue) lawyer I have ever seen. Both showed rare courage in first taking very highly paid jobs in one of the top-tier law firms in Delhi, achieving great heights of both salary and position and then remembering what I had told them about private practice, paying off their student loans, and chucking the jobs to start a private practice. Both are doing well, by God’s Grace.

Please do not think I am partial to NUJS. I started out hating all National Law Schools, coming as I do from a law college which has a storied past but is nowhere now compared to these law schools. Yet after I went to teach at NUJS as a guest lecturer, I saw these kids first hand, participated in their joys, sorrows and aspirations…and I found something terribly strange: law students the world over are the same; unsure of the step they have taken, the so called glorious uncertainty which can change so quickly into utter failure and mediocrity. Yet they persevere. This experience made me look at National and in fact all law schools in the present light. They are what you must go through to become a lawyer and you cannot be too harsh, for life is short and as Joan Baez sang, nothing is given to man.

 

What do you look for in your interns when they apply for a position to work with you? If there is someone who wants your guidance, what should she do?

Very briefly, I do not like interns who think that they will be able to contribute to my practice or think that they know this field or that very well or want to use this opportunity to hone their skills. I like honest, brief curricula vitae (which I rarely read) and an impression that he or she wants to learn. I want my interns to work very hard when I work hard or ask them to, to play even harder when we are not working, to enjoy internship and think of chambers as a second home. It helps if they mail me or send a private message on Facebook telling me about themselves because ultimately it is a student and a teacher relationship and unless we can respect each other, there would be no process of learning as from a Guru.

I may not answer telephones but I answer all electronic mails and Facebook and text messages. Sometimes, if the work load is brutal, it might take a few days, but I answer everyone personally. If someone has a query, and it is something I can help them out with I answer questions online personally; they do not have to intern with me for that. Yet with each intern I demand two commitments which persist even after the internship is formally over: they must keep in touch with me so long as I am alive and keep me posted about their work and they ought never to disclose what happens in chambers outside, even to their parents or best friends. This is because critical, confidential and often matters of state importance are discussed in my chambers and except for matrimonial cases I ask my interns to sit in on the conferences. If these leaked out then my clients – especially in high stake matters – would be compromised. Thankfully each of my interns – even those who did not part with me on pleasant terms – has kept this covenant.

 

There have been quite a few booms and busts in the legal industry. What do you think about the future of legal education in India? How do you say a student can manage to stay ahead of the ‘rat race’?

I do not accept that there is a legal industry in India. There is only a profession. A profession is a perennial stream. There is neither a boom nor a bust. There are only professionals who painstakingly and conscientiously do their best for their clients while jealously and vigilantly guarding the rule of law. Those who call themselves lawyers but do not do this, or are only interested in the money have no business being in this river. For them I have only contempt and disgust. These profiteers and speculators in law are the detritus and decay that every institution generates. Let them be relegated to the garbage dump of experience.

Naturally, in the light of what I feel, the question of staying ahead in a rat-race does not arise. A student must study and acquire and assimilate knowledge. He or she must do a lot of internships to learn the practical side of law. Depending upon proclivities, the student may choose to do more corporate internships or more litigation based internships. The work that a student does imprints itself on the person who checks that work. If the work is good and the student is not obnoxious, the student will get good certificates, good recommendations and most importantly, help which is very important to a young graduate starting out on his career.

 

How is the work atmosphere at the High Court presently? Do you think it has become more difficult for a fresher to be successful? What would you advise a fresh graduate as he enters the world of litigation today?

The opportunities today in the High Court at Calcutta are tremendous and far more than before. Judges accept with good grace juniors submitting before them even on high stake matters. Youth has been given encouragement by our Full Court this year by designating several lawyers with less than 20 years practice as Senior Advocates. All that a fresher needs to know is procedure and there are many older lawyers who are helpful and will guide the junior. For this they neither charge fees nor demand a brief. I guess it is because we all know that freshers are the future of our profession and if we cannot train youngsters to be better than us then the profession as a whole would lose its lustre.

I would advise him to read and follow knowledge like a sinking star, and perhaps to catch up with it; to learn the procedure and watch as many cases as possible to learn court craft. It would be very helpful if he devilled with a senior in chambers for a year because he would have the benefit of a guidance which I lacked. He should never put on airs, before a Judge or otherwise, but state his case simply and with conviction. If he decides to practice as an advocate on record, it is imperative to work with a solicitor/advocate on record whether a sole practitioner or a law firm, for at least an year or two and follow the solicitor’s clerk to the Department and learn the procedures of filing and taking steps first-hand. I would ask him to analyze all drafts he can get his hands upon to learn the different styles and formats for different proceedings. I would ask him, most importantly, to have patience and not lose faith. Things will work out in the end.

 

You must have considered trying out different legal avenues? What are your thoughts about becoming a judge or an arbitrator?

I have been part of an arbitral tribunal on many occasions. Sometimes I have been a sole arbitrator. Arbitration is a useful way of resolving disputes though being a lawyer in an arbitration is more lucrative than being an arbitrator. I will not recommend becoming an arbitrator by profession. It is something that a lawyer does as part of his profession but it cannot be the only profession of a practising lawyer. Retired judges make very good arbitrators since they are used to judging between man and man.

A judge is not something one chooses to become in this country. One is asked if one is considered to be worthy. I have no thoughts of it at present except that if asked it would be an honour.

 

What would be your advice to all the law students and lawyers regarding success?

Success is relative. Everyone I know measures success in different terms. Most find success in money, some in fame and a few more in the number of people whose lives they have touched. I can only share with you my life’s lesson: read as much as you can, work hard and do your best even if it be at the cost of your health – leave the rest to God.

In te Domine speravi non confundar in aeternum.

 

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