Arunava Mukherjee is an Arguing Counsel and an Advocate-on-Record at the Supreme Court of India. He is an alumnus of National Law University, Jodhpur (Class of 2009). He initially practised English law (mergers, acquisitions, finance) at Clifford Chance LLP, London which is widely regarded as the first among equals in the “Magic Circle” law firms of London. Thereafter, he practised international arbitration at Clifford Chance Pte. Ltd., Singapore before returning to practise law in India. He presently represents clients in a wide range of constitutional, commercial, civil, arbitration, criminal, environmental, matrimonial, and election matters under the original, appellate, and extraordinary jurisdiction of the Supreme Court of India and the High Court of Delhi. He also appears before other High Courts and Statutory Tribunals including the National Company Law Appellate Tribunal, the Appellate Tribunal for Electricity, the National Green Tribunal, the National Consumer Disputes Redressal Commission as well as regulatory authorities like the Competition Commission of India. His clients range from ministers and politicians to companies fighting government notices and regulatory penalties to death row convicts and the common man in trouble. Famous cases in which he has appeared include the Triple Talaq case , the One Rank One Pension case , and the Agnipath case .
Questions
1. What motivated you to pursue a career in law and how did your time at National Law University, Jodhpur shape your legal journey?
I wanted to join the Indian Army since childhood, but I developed myopic vision in my late teens which disqualified me. Law seemed to be a good choice as I was horrific at maths but terrific at debating. I was also impressed by lawyers who seemed to be magicians defending the indefensible, winning big corporate and political battles, and bringing about social reforms.
The three experiences that have shaped me as a lawyer over the years are: (1) my student days at National Law University; (2) practising law at London with a prestigious law firm like Clifford Chance; and (3) appearing before Their Lordships at the Supreme Court of India on “miscellaneous days” when cases are argued for minutes (or even seconds) before they are admitted or dismissed. Undoubtedly, my student days at my alma mater are a significant factor in shaping me as a lawyer. It was a fledging law school in my time and ours was the fourth batch, but the environment was fabulously vibrant and way ahead of the times. The quality of the students and their eagerness to excel was palpable and perennial. It was an exciting campus with more opportunities than time. In such an environment, one feels driven to perform and I, for one, was always keen to “play to win”. I had super amazing seniors and juniors and they all contributed to shaping me as a lawyer. Many of them are exceptional lawyers today with flourishing practices. My batchmates were no exception — sharing classrooms and hostel with them on a fully-residential campus meant 24×7 access to legal discussions and analytical thinking. We also had some advanced elective papers, which gave us exposure to subjects like securities law, competition law, international trade law, and even foreign exchange regulations. I will always remain eternally grateful to my alma mater and the students around me (including my seniors and juniors) who taught me a lot and forged me into a lawyer.
I must emphasise that mooting was perhaps the biggest contributor to my development as a law student. Participating in moot court exercises was compulsory in every law paper in the first three years and representing the university was subject to super-hot inter-batch contests among the best student advocates of every batch. I represented the university and the country at various national and international competitions and won the coveted “Best Student Advocate” trophy at multiple competitions. What it taught me is that three things are required to excel as a lawyer — preparation, preparation, and preparation. The more you sweat in peace, the less you bleed in war. This is exactly what happens in the profession too. A well-prepared advocate can not only assist the court better but also knows the best points of the case, saying the right thing at the right time. They earn the confidence and trust of the court. I can therefore say that my time at National Law University, Jodhpur was the numero uno factor that shaped me as a lawyer and offered me a journey in the profession that I had not even dreamt of when I decided to study law.
2. What insights can you share about your tenure at Clifford Chance and Luthra & Luthra Law Offices, as well as your experience working with Barclays Investment Bank and S&R Associates? How have these experiences shaped your approach to legal practice, especially in high stakes matters?
First and foremost, let me say that every matter is a high stakes matter. Litigation is an adversarial zero-sum game with mostly one clear winner. For every client, their case is the most important. Lawyers must treat every case the same way. Having said that, some cases are “heavy”, in the sense that they involve a lot more documents (and, also, more complex documents), which is where my experience at these prestigious law firms comes very handy. Regardless of the volume or complexity of the documents, the correct method is to be meticulous and diligent. With the growth of commercial disputes involving complex contracts, a background in corporate law perhaps helps me handle cases as well as clients better. I perhaps handle corporate clients somewhat differently since I have the experience of representing the biggest corporations of the world. Handling individuals in legal trouble is very different and I learnt that later in the course of my practice at the Bar. My empathy for people made it somewhat easier to learn.
Before delving into the law firms, let me say that my senior at the Bar who motivated me to become an Advocate-on-Record is Mr Balaji Srinivasan, an absolute gem of a person and the former Additional Advocate General for the State of Tamil Nadu at the Supreme Court of India. Having him as a senior was the most fortunate thing, because he motivated me to build a practice and taught me how to navigate Supreme Court practice. His mentorship and blessings cannot be acknowledged enough.
It will take a lot of words to accurately describe my time at the different organisations. Clifford Chance was a highly sophisticated environment with focus on special approach and methodical training at every step, quite similar to special forces training where the “special” is the resources/training and, most importantly, the mindset. The firm wanted every lawyer to be exceptional in skillset and mindset. It had a dedicated “Clifford Chance Academy” where its lawyers at every level (including senior lawyers) participated in courses appropriate for their level of experience. There were courses on law as well as soft skills, including even the ergonomics of your workstation and how to manage your secretary. On the fun side, the firm’s massive 30-storey building housed a heated swimming pool, a fully equipped gym with squash courts and shower facilities, a restaurant with in-house chefs, and even an in-house Starbucks that became a bar on Thursday and Friday evenings. The environment was super sophisticated and focussed on seamless teamwork. Everyone was well-trained for their role and consistently committed to deliver legal advice that would be market-leading in terms of both quality and innovation. Barclays Investment Bank was a client secondment from Clifford Chance — it was a rare opportunity to spend some time at an investment bank and I am glad I was selected. I saw how an investment bank lives and breathes. It was spectacular learning for me to understand the operations and expectations of in-house legal teams and business teams, respectively. Barclays too, was very methodical and had manuals and checklists that might befit the cockpit of an aircraft. After all, it is a giant international bank and most of its lawyers were formerly at leading law firms (and its legal head was herself a lawyer from Clifford Chance). On the other hand, at Indian law firms, a lot depends on the individual leading (typically a partner) and the training is more “on the job”. There are many brilliant lawyers in our domestic law firms and one can learn a lot by working with them. Luthra & Luthra gave me great exposure to projects, energy, infrastructure, engineering-procurement-construction, and project finance, in which it was the market-leading law firm in my time, advising even the Planning Commission of India on its model concession agreements, apart from the various big transactions of the major domestic and international players. S&R Associates was the firm I joined after Clifford Chance because I found the firm to be exceptionally committed to excellence. I had done an internship at the firm in my fourth year and was impressed by its work environment. It also had very big (rather mammoth) clients, and the working style was quite international in the approach and commitment, which I respected and enjoyed very much. I got the opportunity to represent very big international corporations and brief some of the leading senior advocates. One of the arbitrations had a tribunal of three arbitrators comprising of three retired Chief Justices of India, which was a unique experience.
3. Transitioning from a lucrative corporate career to litigation is quite a significant shift. Could you share what motivated this transition and drew you towards litigation?
The transition for me was more of a natural evolution than a significant shift (though, of course, the loss of earnings is always so significant that such transitions come to be labelled as “taking the plunge”). I moved from corporate transactional law (mergers, acquisitions, and finance) to litigation and dispute resolution, after practising with different teams in my time as a lawyer in London. I realised as a young lawyer that I want to argue cases before Judges and always stay on my toes. It is most thrilling for me to present a case as the lead counsel, which I often do, thanks to the choices I made. To cut a long story short, I had started planning my move to independent counsel practice pretty early, so the “shift” (at least in my mind) was rather gradual and not altogether sudden. Senior lawyers in London advised me to practice at a solicitor firm first and then move to counsel practice, since a lot of skills can be learnt as a solicitor, which helps arguing counsel in meeting the expectations of briefing solicitors as well as legal teams of client corporations. Goes without saying, I had to commit to losing a lot of money in retainer fees that law firms pay. Thankfully, the gestation period in chamber practice is shorter these days and I hit it off well. The proverbial “plunge” was easy for me as I found the clarity that it is the price I must pay to follow my heart. This is perhaps the most important thing I can share with the younger readers — following your heart is often not easy as it compels you to walk the path of most resistance, but do not give up without trying because you may regret it later. What is a life of freedom, if you are not free to do what you truly enjoy?
4. Can you detail your approach and preparation for the Triple Talaq case, and how you navigated its social and legal complexities?
My approach on every case is the same. Grasp all the facts and read all the relevant law first. I read a lot of commentaries on Mohammedan law, even more judgments from constitutional courts, as well as international treaties that cast obligations on our legal system. I also studied the legal nuances relating to instant triple talaq in Islamic countries that have banned or regulated the practice, since the Supreme Court of India always examines all possible angles (and then some) when declaring the law on such difficult subjects touching not just lives but our identity as a nation. I studied non-stop, literally burning the midnight oil, for about three weeks and then drafted the petition over a few days. However, I did not have to navigate a lot of social complexities because the social aspects of cases I handle never cross my mind, beyond their social impact. The social impact of the case was equality for Muslim women, which in turn would have a major positive impact on the whole society. The discrimination against and/or marginalisation of any group typically has negative impact on social growth and our holistic development as a nation, which is why we focus a lot on social welfare legislation and legal reforms. Of course, one does not need to read law for three weeks to prepare a case, but this was an area of law I had never explored before and challenging a personal law is always an uphill task ab initio. To make matters worse, previous cases challenging instant triple talaq had been dismissed by the Supreme Court of India. I left no stone unturned and prepared a lot. I was super cautious about attacking my own arguments and carefully choosing the best ones. One unique argument we had, which Justice R.F. Nariman reflected in the opinion he authored, to which Justice U.U. Lalit (later the Chief Justice of India) had concurred, was that we are not merely challenging a religious practice that has no legitimacy as it failed the “Essential Religious Practices Test” developed by our constitutional courts, but also challenging statutory law since the legitimises the abhorrent practice of instant triple talaq by recognising Shariat to be the law applicable to the citizens of our country in matters of divorce if they practice Islam. However, many Islamic countries (including Pakistan and Iraq) had already banned or regulated the practice for their citizens, thus establishing that the freedom to practice religion will not be adversely affected if instant triple talaq is declared illegal. To the best of my knowledge, this argument was never taken before in the judgments I had examined, so I felt extremely elated when this argument found approval in the historic judgment.
5. How do you mentor junior associates and interns at your practice, and what key skills do you focus on developing in them?
My approach to mentoring is to offer the right environment, training, and example. I believe I offer an environment free from fear, in the sense that I try not to rebuke and scold younger lawyers when I am mentoring them. Such behaviour does not help anyone who is trying to learn. Encouragement and appreciation work much better. This does not mean you will never get a piece of my mind. I focus on giving detailed training for the task, which I was most fortunate to learn at Clifford Chance, London. Even a special forces commando is “special” because of the special training, so a lot of focus is on the training with focus on why a certain approach is important. The next (and possibly the most important) tool is leading by example. I learnt this from public speeches by various Indian Army officers, since our military academies arguably teach leadership better than the best MBA programs. If you lead by example, your troops will follow wholeheartedly and give their best happily. This leadership has many facets, but I would rather keep it short for this interview. Your team must feel you care for them and look up to you because you walk the talk. If you can inspire them, they will value your advice/mentoring and will want to perform their best, which will make them grow. Interns and associates are very different since an intern is there for a very short period. Apart from involving interns in drafting work, which they really love since most lawyers do not involve interns in drafting, I ensure I explain to them how much their effort will mean to the case. But my primary goal with interns is to inspire them. If young minds set the right goals and have the right vision, they will set their standards high and achieve wonders. If they learn the correct approach, they will be likely to apply it and automatically do well in life.
My interns are all very bright and highly motivated, so they just need to understand why certain things are important. They already know most of what is important. The key skills I focus upon, and even discuss the significance of, are clarity in communication, teamwork, consistency (cannot stress this one enough), simplicity of language in drafting, commitment to excellence (which includes meticulous attention to detail), and respect towards colleagues and staff. I also discuss the significance of being well-presented in proper attire in a professional environment, but I am not strict about dress code (except when visiting court) since I am conscious that interns who come from outside Delhi face limitations in what they can carry and manage.
6. What are your views on the current state of judicial infrastructure in India, and what improvements would you advocate for?
Let me say upfront that we enjoy very good infrastructure at most courts and tribunals in Delhi and certainly at the High Court of Delhi and the Supreme Court of India. Post-covid, even the IT infrastructure has been developed a lot, practically overnight. Our courts functioned rather well during the worst phases of the lockdown, which is most commendable. I, for one, had the privilege of arguing cases all over the country from my home. Having said that, the infrastructure must be modernised a lot, particularly at the level of the districts, with basic things like clean water, toilets, cafes, and air-conditioning, apart from library and e-library. It is not just the lawyers, but also the litigants that we must think about. For younger lawyers, if not chambers, at least dedicated locker facilities and consultation tables that can be reserved by the hour, must be made available. I may be foolish for some when I say this, but I find it utterly perplexing when we say there is a shortage of chambers. We must provide lockers and tablespace to lawyers with a fledging practice, at the very least. Prime land around the court complexes must be utilised to ensure lawyers have the facilities and environment to meet their professional duties without avoidable constraints. The allocation of space and resources must not only be just and equitable but also sustainable for the next generation. But let us first appreciate that our judicial infrastructure can be no different from the strength of our economy. As India marches ahead in economic growth, we have seen tremendous development of infrastructure which many developed nations may take for granted. But more budget is required to be allocated to the judiciary. We may simply double the number of courts and Judges by doubling the budget allocation. Instead, we have joked so much about “tareekh pe tareekh” (adjournments) that the public has been truly misled into believing it is a fault entirely attributable to the judicial system, completely forgetting that we have very few courts and Judges for our massive population. There will naturally be a long que if the entire village has to drink water from one tap. All this aside, five reforms I would advocate for strongly. First, we must double the budget allocation to the judiciary (the why is already explained above). Second, there must be mandatory case management hearing for every litigation so that there is extreme clarity upfront on the timelines for exchange of pleadings and the dates fixed for different court business. No unnecessary adjournments should be given for the asking without heavy costs. We cannot treat arbitration and commercial cases specially and allow regular cases to continue sans discipline for much longer. Third, Artificial Intelligence tools must be brought in to record testimony of witnesses, which is done in a manner I was surprised to discover in practice. When a witness starts, everything from a nod to a cough gets recorded in many other jurisdictions. In India, after the witness has answered, the question and answer are converted into a paragraph and recorded by a stenographer or a typist. Often, the demeanour of a witness is lost in translation, unless specifically recorded. The spirit of the law (and even its letter) requires the court to study the witness carefully and ask court questions, if necessary, instead of being a mute spectator (words of the Supreme Court, not mine). Fourth, we must consider having strict rules limiting the length of petitions and appeals (and even hearings) to immediately do away with the culture of verbose drafting, which is grossly inefficient at so many levels and wastes so much time for all stakeholders. Some countries allow only 20 pages for an appeal — here some lawyers (not everyone) can manage to write 200 pages and many clients applaud it. Judicial time is very precious. We must start to appreciate that lengthy drafting peppered with archaic words and repetitive submissions are not the work of a master and learn to abandon such practice. Fifth, we must develop better judicial audit and judicial accountability. Many a times, some courts do not follow judicial or administrative guidance from the superior courts. Some even refuse to follow precedent and ruin the efforts of superior courts to bring about reform. Fast Track Courts in some districts are unbelievably slow. Unnecessary adjournments for the asking, improper case management, colonial mindset, personal remarks, unprofessional conduct that sometimes amount to contempt of the majesty of the courts, are all to be curbed with an iron fist to see overnight changes because continuing accountability and swift consequences lead to better discipline and faster development. The culture of “face law” over “case law” based on personal relationships must also be effectively discouraged to ensure it is at least not rampant (and practically accepted as a reality), although I am afraid it will take more time and evolution.
7. How do you maintain resilience and mental fortitude when dealing with prolonged or particularly stressful cases?
Work on your cases like a surgeon — this is what senior lawyers advise their juniors. What they mean is that one must learn to remain calm and steady even when one faces a terrible situation. It is, of course, easier said than done. We all learn as lawyers to retain empathy for our clients and yet be somewhat detached from their miseries. My anxiousness is mostly to develop the best possible arguments and covering the client’s case in the best possible manner. Litigation is typically a long war and not one quick battle so one must plan upfront and lay siege sometimes to secure a thumping victory. Having said that, I do feel involved in the fortunes (and misfortunes) of my clients, and it can sometimes get difficult in some stressful cases involving a lot of human element or personal misery. At that point, I remind myself that I will fail my duty as a lawyer to my clients if I let one case derail my mind forever. Thus, duty takes over, rather miraculously, most of the time when I wear my lawyer hat. And the profession is such, it does not let me take that hat off very often!
8. How do you manage client expectations in cases with uncertain outcomes while maintaining clear and effective communication throughout the case?
Excellent question. The key to manage client expectations in all cases lie in clear communication, “under promise over deliver”, and in explaining every aspect to the client, which shows them how much you have grasped and why you have adopted the approach you have chosen (clients respect lawyers not only for thorough preparation and good arguments but also for allowing them an informed choice instead of the proverbial Hobson’s choice). Management of client expectations in uncertain cases depends on the upfront communication and not necessarily on the continuing ones that follow. A client needs to be counselled upfront — you cannot tell a terminal patient that they surely have years to live after a few days of medical cocktails. Even after a client has been told that bail may not be granted and they will possibly have to re-apply later or appeal, the client will pray for immediate bail. Even after a client has been told upfront that their case may take 5 years involving one hearing every 2-3 months, they will pray for a quick victory. Here, I do not show much patience or suffer fools. I honestly tell my clients upfront what the case is likely to involve, and I never downplay the worse points. I ensure they know what they are signing up for, which is only fair. Maintaining clear communication is never a problem because that is inculcated in me, thanks to my corporate law firm background. I send updates before and after a hearing. I tend to prefer email and calls, avoiding excessive WhatsApp communication which is increasingly becoming a large challenge for lawyers and clients alike.
9. What are the new areas of law or emerging issues you are excited to explore in the coming years?
I look at the subject of law as an idea or concept — jurisprudence if you will. Despite new laws on commercial contracts or criminal justice, it will always play on the core principles. Some rules will be added and tweaked. I also look at the practice of law as a way of life. For me, it is already exciting enough today to not think about what might excite me more tomorrow. I am not really thinking about what new laws or new issues will excite me in the coming years. I am super excited about today, my present clients, their current problems, and how I plan to get them justice. The new criminal laws and commercial laws will (for example) lead to legal debates and the law will be settled over time by the Supreme Court. To take other examples, competition law is relatively new, and insolvency law has become a massive practice area in a few years. New regulations are being introduced every day. Other new laws will also follow. I am already at the Supreme Court and will inevitably argue many cases involving new laws, but it would not be right for me to label them as “more exciting”. The issues I would like to advocate for though, are many. From corporate accountability and contract enforcement, to eliminating corruption and bettering governance, to data privacy and human rights … I hope to argue cases of such social importance since the impact is huge and the opportunity to contribute is a privilege.
10. Given the complexities and nuances of the Indian legal system, what advice would you offer to aspiring lawyers looking to build a successful practice, particularly in areas like civil litigation, arbitration, and regulatory compliance?
This is a very tough question because one could write a book on it. Let me try to summarise by sharing a few key concepts.
Look at the law as a concept and it will no longer feel complex. Understand the basic concept first — the best authors and Judges explain the concept succinctly so focus on them. To borrow from Shakespeare, ‘tarry a little … Rome was not built in a day!’ The complexities and nuances of the “system” are, frankly, not for the law students to learn. You first learn to bake the cake, not how to sell it. The nuances of the “system” will be learnt when you start practising. For example, do not be enticed into believing that glory lies in learning the filing and listing procedure during an internship merely because your peers do not know it. Learn the law and stay ahead in the game.
Your success will depend a lot on how much you read. You must be industrious…there is truly no shortcut to success in the profession. It is famously said that a giant in industry is a giant in the profession. The more hours a pilot flies, the more rounds a sniper shoots, the better they become. For law students, the equivalent is judgments. Judgments employ legal language to narrate the facts, identify the legal issues, and provide the reasons for a particular conclusion which is felt to be the most judicious. The more judgments you read, the more tuned you become to think and act like a lawyer, the better you can play the game. The more interdisciplinary laws you learn, the better you become at strategising. A legal problem may require multiple litigations, which a lawyer must be extremely conscious about. Ultimately, the best lawyers read a lot to offer the best legal strategy.
Keep an open mind and be inquisitive. Close-minded people cannot be good law students, forget being a lawyer. If you always keep an open mind, it will become a habit. That open mind will subconsciously never reject a fleeting lesson, and it will hit home. Bear in mind, the lessons may not repeat themselves. Ultimately, the best lawyers are the best learners. They are very innovative, and they can successfully challenge the impossible (and even the existing law itself).
We are legally required to study various areas of law, including a lot of statutory law, to qualify as a lawyer. With 4 to 6 law papers per trimester or semester in most undergraduate programs, the law student must manage time very well and have discipline to allocate time to every paper. Many who do not do it of course try to make it up later, but they sometimes pay a heavy price at least in terms of the time lost. So do not waste your time because time will not wait. Please enjoy, have fun, have hobbies, but manage your time allocation. Ultimately, the best lawyers handle many cases and handle all of them with aplomb.
To build a successful practice, particularly in areas like civil litigation, arbitration, and regulatory compliance, a law student can read a lot relating to that area of law, take special courses and/or do special research by way of writing articles. That will pique the interest and give a basic to an advanced grasp of the theory. Eventually, a law student will have to join a lawyer practising an area of law to learn how to practice that area of law. It is a practice-oriented profession so do not be so worried about future success in the present. Instead, focus on excellence as a habit. And please participate in moot court activities as much as you can, even if you think you do not want to argue in courts because you will learn to think and prepare much better when you face the heat on a regular basis.
Shayara Bano v. Union of India .
Indian Ex-Servicemen Movement v. Union of India .
Harsh Ajay Singh v. Union of India .
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