INTERVIEW WITH ADV. ADVAIT M. SETHNA BY KATCHERI.IN

Q1. How would you like to introduce yourself to our readers?

Professionally, I am a Practising Counsel at the Bombay High Court, Supreme Court of India and various other subordinate civil, criminal courts and tribunals.

Personally, I am an aficionado of food, inclination to travel to exotic destinations and passionate about expressing my thoughts by the pen which is truly mightier than sword.

Q2. Describe an ethical situation that you had to deal with in your career. How did that situation develop?

Also being the Senior Panel Counsel for the Government of India, I faced quite a few situations where I had the opportunity to appear against the Government of India in complex and significant matters on important issues of law. Though there was many a times no conflict issues and I could have legally appeared in some such highly remunerative private matters, my conscience did not permit me.

In my answer to the above, one such incident was when I was appearing for a high profile bureaucrat in an intense conviction trial under the Prevention of Corruption Act before the Special Court of Sessions. During the course of trial I had to place certain facts before the Court as an officer of the Court which could have gone against My Client. I did my duty to the best of my ability.

However after the first phase of hearing during lunch the Client was furious at me. I had to explain to them that equally I am an officer of the court and my duty to the court is more sacred and sacrosanct than to any one else. This is the value system imbibed and ingrained in us when we join the profession by Seniors. It was totally unacceptable to the Client. I took the decision of withdrawing from that case and in the post lunch session at the earliest opportunity I informed the Honble Court. Thereafter the Client approached me requesting that I must appear. But as it did not appeal to my conscience I gave up, that lucrative brief.

Q3. What would you do if you were assigned a case that you were morally opposed to?

In the first place, though I am not senior enough neither do I have the luxury of briefs in abundance I always first do a conflict check and see if the brief is ethically palatable to me. Though I have an incredible passion for criminal law and would like to argue good matters on the criminal aside, I will never take up cases for persons who are accused of rape, molestation, crimes against women and children. I am not suggesting that every such case the person accused is guilty. He is presumed innocent till proven guilty as per our jurisprudential norms. However, my conscience and my ethical code to which I am answerable to get a sound sleep if nothing more, will never permit me to do such matters.

Q4. Tell us about a time when you went above and beyond the call of duty. What was the outcome?

First such incident occurred in my relatively junior days. On Sunday evening in 2012 whilst reading a newspaper article I came across this piece on burning copies of the Holy Bhagwad Gita in some parts of Russia. This is not just a book but a Way of Life to many. A court hearing was ongoing in Russia but strangely there was none to represent the Indian side. Perplexed at this taking my fathers advise who is a Senior Counsel I decided to file a PIL to stop this immediately and ensure that the Ministry of External Affairs takes prompt action. We barely had 3 hours to draft, file and take it on board. It was a heavy Monday before the Bench of then Chief Justice Mohit Shah and Justice Roshan Dalvi. Without even the petition being lodged my father who was leading me, mentioned the matter at 3pm. The Chiefs Bench was not only kind enough to take it but was indulgent enough to hear without the PIL being even lodged and papers were yet on their way to court room. The Hon’ble Bench appreciated the urgency that the next day was hearing before the Russian Courts.

The External Affairs Ministry was contacted through its Counsel and they assured the Court that effective representation would be made to secure the holy scripture. A day after the matter was kept again and we were happy to inform the court that due to timely intervention India as a nation and her stand was successfully put forth in the Russian Courts by the Indian side.This PIL was done pro bono as the cause espoused and call of duty surpassed everything else for us.

Another such Incident that comes to mind is that of hearing in the famous Bollywood Film Udta Punjab based on the drug peddling menace in Punjab. I was in that court room on the day of hearing. Not appearing in the case. But was taking notes with my Junior. Unfortunately the Advocate for the CBFC could not face the onslaught of questions from the Division Bench. The Senior Judge called on me knowing that I appear for the Govt of India to contact the Ministry of Law and Justice to appoint the LD. ASG in the matter. Unfortunately he too wasn’t available that day. I informed the Court in the post lunch session. The Bench gave a clear message that no adjournments come what may as the film was to release and the Stalwart and Senior Counsel Mr. Ravi Kadam for the film makers was heard at length. The Bench asked me to start or sit down and they would pass orders. I looked behind. The law ministry officials who were equally nervous somehow whispered in my ear to go ahead. But neither did I have the brief as I wasn’t to appear nor any material not even the petition a copy of which was handed over to me across the bar.

I simply got hold of my notes where I had jotted some points down and took liberty to argue the law first and facts later. The Court said to me to address in whatever manner but not to ask for time. I somehow pulled it of for that day, Next day I was given one hour to complete my arguments. All senior officers from CBFC were in our chambers for the entire evening dissecting all 14 cuts one after the other. We sat together and prepared. There was no looking back now. Next day I continued with my arguments and explained and justified all the about 14 cuts/excisions in the said Film by CBFC in its wisdom.

The High Court finally started dictating the order , did express its displeasure towards working of CBFC, seemed like CBFC would be saddled with heavy costs. Instead, our arguments on some excisions were accepted and petition was not fully but partly allowed. The risk I took here was big enough as this case was all over the place. However only on some notes and conference with clients who reposed faith in me I withstood the test of trying times and was able to firmly hold the field. What helped and fuelled my motivation was the Verse from the Bhagwad Gita Karmaney Vadhikaraste Ma Phalechu Kadachana, Ma Karma Fala Hetur Bhur Mate Sangostva Akarmani (We are bound only to do our duty to the best of our ability; irrespective of the result that ensues which is not for us to see and any action is always better than inaction)

In the above context, what reminiscences me is a Public Interest Litigation filed by a senior executive working with Reliance Industries who did commendable work on better living conditions and treatment for eunuchs, transsexuals transgender community to ensure they are equal under the law and can access justice like any other citizen, including right to apply for jobs and being considered for the same in mainstream society. My Senior in that matter and I both requested the Court to not treat this as adversarial litigation. We agreed to put forth to the Ministry of Social Justice and Empowerment, the importance of this cause to ensure some effective steps are taken. Thankfully this is now considered including treating these persons as a separate category under Sections 375 to 377 of the Indian Penal Code. Though appearing on the other side, we abided by the call of our conscience and walked the extra mile to help this community get its much deserved life with dignity as envisaged under Article 21.

Q5. How would you feel about defending an individual who admits his guilt to you and wishes to plead “not guilty?”

Well, once I decide to take up a case, I only do if I am convinced both at the heart and in my
mind. That conviction triggers the professional obligation that we owe to clients. So as it does happen in cases for instances involving economic offenses or even in civil or contractual matters or property feuds where the Client may not be completely right, which, again, has an element of subjectivity. Thus, once a case is taken there is no looking back and to the client I become duty bound to do my best to prove that he / she is not guilty.

Q6. What factors influenced you to take law as a career?

As a child I had this craze for medicine. I always thought I would become a doctor. But the math component scared me as I have always been at logger heads with numbers. My father is a Designated Senior Counsel since 1990. I was growing in that environment. I inherited his oratory skills which made me believe Ill become a good lawyer. But that’s not all.

Post my LL.B. from Govt Law College, being a First Rank Holder, I worked for about 7 years in corporate law firms the leading ones. My father wished I start an international law firm so I dared to tread in that direction and even did my Masters from Chicago in International Comparative Law. However, during my tryst with the law firms I always thought I am missing out on something and that was Courts. I used to be a different individual absolutely delighted, energized and a smile would just appear naturally whenever I was sent to any Court.

My strength lies in my Drafting. That made me realize I need to walk the steps of our pristine Bombay High Court as that’s where my passion is and looking at litigants striving to get justice I always thought I could be of some help. That’s how after 7.5 years, one fine day I decided to commence my journey as a Counsel of the Hon’ble Bombay High Court leaving the dazzling corporate legal world and of course the monetary remuneration which is incomparable. However, today personally I am content satisfied and come back home smiling, exhausted but yet looking forward to a the next day in Court.

Q7. What according to you are the major problems in present day legal education system?

The major issue I believe that plagues the legal education system is the stark contrast between theory and practise. What students learn in law colleges, write to pass their exams has hardly any nexus with the real legal practical world out there. Subjects are fine. However, the problem solving approach, the way to handle a solution within the paradigm of the law you are studying, the analytical thinking, emphasis on effective drafting to articulate oneself, is at bay.

Unfortunately the quality of professors is also not the best. Many of them have the knowledge under their sleeve but the practical insight that one gets from hands on experience is often missing.

I personally believe students should be encouraged to do internships like you have for other professional courses like C.A. C.S. or even Solicitors to be successful as a lawyer. Activities like moot courts client counselling exercises, stress on case studies , drafting of pleadings from a practical perspective that will help them post-graduation, should be given more importance than just the stand alone theory.

Q8. What are the biggest challenges faced by a non NLU student and first generation lawyers in the legal profession?

This may sound a little non-conventional But believe me its many times better to either be a Non NLU or a first generation lawyer. You cannot always remain under the shadow of a banayan tree. Its magnificence cannot make you complacent. This being an extremely personalized profession one has to make her or his mark on his / her own.

Having said the above a drawback if one calls it so for a first generation lawyer is perhaps the motivation to not just chase but realize ones dreams and make it big. The initial days struggle lack of work dearth of vitamin M does get overwhelming. However, I firmly believe in such cases its extremely crucial to have one good mentor, a reputed Senior or Chamber to be associated with not for a year or two but for life.

The training one gets from a good senior would eventually show that first generation is a misnomer. Of course it would be wrong to say there are no challenges. There are way too many. The difficult twin siblings the Siamese twins if I may say so are the virtue of persistence, patience connected with a comparatively longer gestation period in terms of uncertainty of revenue stream. Yet again if these Siamese twins are not separated and one hangs in there for a while, Work Gets Work. You may not be as successful as another, success is subjective, but yes in your might and right you will leave your imprints at the majestic Bar.

Q9. What is more important for you while defending a case being morally right or winning the case?

Once a case is accepted, I will do my best and leave no stone unturned to ensure success. In the event there is a moral issue or a fact which needs to be disclosed to the Court will not look back in performing duties as an Officer of the Court. Important it is to note that what is legally right may not always be morally correct. Thus striking a balance is crucial.

Q10. Please share your experience in the famous “Vijay Mallya” case.

One of the experiences in my professional career which endowed me with recognition, fame and an unparalleled learning experience. I recount that when I was opposing Mr Mallaya’s bail for his prosecution in the Service Tax case for non payment of about 100 crores of admitted tax dues to the Government, I was opposed by the giant Mr Amit Desai Senior Advocate and Abad Ponda, the legal eagle in criminal law. I was relatively junior, was my first substantial criminal matter. Interesting it is that the brief was entrusted to us because a lot of senior advocates due to conflict issues could not appear against Vijay Mallaya.

On the day of hearing of the Bail Application in the Chief Metropolitan Magistrate’s Court in Mumbai I saw Mr Mallaya and Mr Sanjay Aggarwal the CEO of Kingfisher Airlines actually nervous. Mr Mallaya was continuously making eye contact and I could see clearly the fear in those tensed and stressed eyes. Aggressive in Court as I am we faced the opposition bravely. Mr. Mallaya wanted to step out of Court for a bit during the hearing. I learnt reliably that it was in relation to some bidding for the IPL Match that was taking place in Mumbai, we opposed such leave vehemently and intimated the Court the purpose of the leave sought. The matter was argued for the entire day a marathon hearing from 11 to 6pm. However as destiny would have it, his and Sanjay Agarwal’s Bail was granted subject to conditions.

My Junior and I faced anonymous threat calls. My movements were stalked. There was immense pressure even from the family that I shouldn’t do this case. We have also received calls from USA random numbers at 10 pm at night pressuring me to withdraw. But somehow the blessings of parents support of my better half and most importantly the invisible Hand of God made me continue this fight unabashed and unnerved.

Thereafter we filed extradition proceedings in the CMM Court. In those proceedings we were victorious in the sense that an open ended non bailable warrant was issued against him and Sanjay Aggrawal. For his extradition I recall that we need to file an exhaustive Dossier of about 1000 pages in this case to be sent to Ministry of Home and External Affairs. Every page of this document has to be signed by the concerned Magistrate himself / herself. That was a herculean task where my chamber junior Ms. Thhakker and I took it unto ourselves. I remember personally visiting the Registry of the CMM Court motivating the staff to have it filed. We used to Mention the matter almost daily sometime in the morning, afternoon , evening as late as 7pm to request the Judge to sign it so that it can be despatched. I must say the Judges and staff of that Court took this a clarion call for the country and co operated in an exemplary manner. As bureaucracy would have it about 3 times the voluminous, bulky dossiers were returned from the Ministry on technical grounds. We did not give up. Each time these came back we motivated ourselves went back to Court again pleaded again and again and wet though the grill till it was done.

We also fought valiant battle successfully fought in Bangalore where Service Tax Department intervened in the proceedings filed by the Bank for their 9000 crores before the Debt Recovery Tribunal. Our intervention was vehemently opposed not only by Kingfisher Airlines but also by a very senior and much revered Senior Counsel of Karnataka High Court who came specially for this. However, the Hon’ble Judge after hearing arguments on the issue of Service Tax Department being a proper and necessary party to the said proceedings, finally gave a thumping Order of about 75 pages allowing the Intervention Application of Service Tax Department that gave us an entry to secure sovereign tax dues.

Q11. How do you feel after successfully appearing in international Commercial Arbitration between Governments of India and South Africa?

I feel delighted, blessed and awestruck when this huge matter dealing with defects in Base Bleed Units supplied by the Government of Africa to the Defence Ministry, Government of India to be used as an important component in our missiles systems.

I was initially briefed with a senior lawyer on the Government of India panel in the Arbitration proceedings before the Sole Arbitrator Frm and Late Justice Ashok Aggarwal who was appointed as such by the Hon’ble Apex Court. Unfortunately, my Late senior was suffering from Parkinson. It worsened. I was requested by him to conduct the proceedings due to his ill health. Unfortunately the arbitral award went against us. We challenged it under Section 34 before the High Court. The other side filed a proceeding under Section 42 of the Act stating that the Bombay High Court had no jurisdiction. One of the Judges hearing this were not with us. However, there was a change in assignments and we argued at length before Former Mrs Justice Sondur Baldota who after reserving the Order for quite some time held in our favour on Section 42.

Considering the sensitivity of the issues involved security concerns at humungous financial stakes the matter was monitored by a Parliamentary Committee. As our Petition was pending in the Bombay High Court, we got a letter addressed from the Ministry of Defence Government of India stating that the Government of South Afrcia has agreed to settle the matter and the High Court should be informed accordingly. Couldn’t have expected a better final result for a matter like this. This was an unforgettable experience that will remain with me till eternity.

Q12. How do you react if you find that someone you work with does not like you?

For me work is definitely more important than the person. My loyalties are totally tilted towards the work assigned or brief entrusted and I am conscious of the fiduciary responsibility that I need to shoulder. Honestly its hard at times if a person working with you doesn’t get along well. There are arguments and skirmishes as well. The bottom line is even if ideologies differ, until the work is not affected there is no need to put the cart before the horse at such times. Again strategies, checks and balances become important and more often than not I have realized these dislikes or differences mitigate and ultimately loose significance.

Q13. What qualities do you search for while hiring a junior?

Our policy is that we don’t treat Interns or Associates any differently. A little surprising it is that Our Interns are at times more involved in our professional pursuits. I believe that testing some ones knowledge who wants to work with you is not important as it is my duty as a senior to impart such knowledge and expertise to them. What matters to me most is an aptitude to learn, sincerity diligence, honesty and integrity to the chamber and scrupulous compliance with timelines, deadlines for the work entrusted.

JAI HIND!

Advait M. Sethna Esq.

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