In Conversation with Senior Advocate Sanjay Sen

In a sector like electricity, apart from understanding law and policy, one has to be open to absorbing some basic technical knowledge, which is often shared by the clients during initial briefings says Senior Advocate Sanjay Sen in an exclusive interview with Krishnendra Joshi, Editorial Lead, BW Legal World. Mr Sen, who has represented some of the biggest names in the electricity sector talks about his illustrious journey in law and shares his two cents for youngsters looking to start a law practice in a niche practice area.

Mr Sen, please allow us a peek into your illustrious journey in law. How did it begin and what were the formative years like? 

Yes, as a lawyer I have been around for about 30 years and have had the benefit of working across courts and sectors. After graduating with accounts honours from Ravenshaw College, Cuttack (now Kataka), Odisha, I joined the Campus Law Centre, University of Delhi. In 1992, I was enrolled as an Advocate in the Orissa State Bar Council. 

In order to gain experience in the original side practice, I moved to Kolkata. I devilled in the chamber of Mr. S.N. Mookherji, Barrister and Sr. Advocate. Mr. Mookherji’s chamber is very well known for company law and that was the subject I started with. Also, while I was staying in Kolkata, I briefly worked in the chamber of Mr. Milon Mukherjee, Sr. Advocate, who specialises in criminal law. 

After a few years in Kolkata, I went to the Old College, University of Edinburgh (U.K) for my LLM.  After graduating from Edinburgh, I moved to Delhi and joined the chamber of Late Mr. Rakesh Luthra, Advocate who had a very broad and diverse practice in the Delhi High Court. Also, during this time, for several chambers and firms based in Kolkata, I handled cases that were filed in the Supreme Court. This period allowed me to work on various subjects and also with various Senior Advocates practicing in the Supreme Court.

I later joined a top corporate law firm in Delhi and was exposed to the nuances of corporate and transaction law practice. It was those early years of economic liberalisation and India was gearing up to receive Foreign Direct Investment. The main area of work related to advisory on FDI and related issues, which included the creation of transaction documents to support investment, transfer of technology and licensing of trademark and other intellectual properties.

With this experience and background, I started my own journey in 1997-98, and shared office space with lawyer friends I had come to know during my years in DU. I later set up a small (or as they say boutique law firm), which specialised in the infrastructure sector. I worked in sectors involving road projects, private ports, non-metro airports, electricity, oil and gas etc. Apart from an advisory practice in matters relating to State Concessions, the firm worked on regulatory issues, assessment of project risk etc. During this period, I was also engaged by banks as Lender’s Counsel for several large infra-projects. With creation of regulatory institutions in electricity and oil and gas sector, I was being engaged to appear for clients in the power sector and this led to creating a fairly large volume of work. I had the benefit of working with seniors and sector specialist who always guided and mentored me during this period.

In 2013 I was designated as Senior Advocate by the High Court of Orissa. On my designation, I resigned from the law firm I had founded and dived into an independent counsel practice. I currently live and work in Delhi, with a practice that takes me to the Supreme Court, several High Courts, tribunals and commissions.    

How have you seen litigation and legal services evolving over the years and what lies ahead?

From a broad classification between civil and criminal law practice that I was introduced to when I started off, I see a growing trend towards sector-specialisation.  

Our Parliament, over the years, through various laws have curtailed the jurisdiction of civil courts. Apart from subjects like tax, labour and service laws that were initially taken away from the civil jurisdiction of ordinary courts and placed under the control of tribunals manned by specialists, subjects like company law, debt recovery, capital market, environmental laws, insurance, competition, telecom, electricity etc. were also brought within the jurisdiction of specially created tribunals. This has resulted in lawyers having to work outside the precincts of civil courts. In turn, this has led to some level of sector presence and specialisation. I believe, tribunalization in such sectors is closely linked with the country’s dynamic economic ambitions. Accordingly, apart from laws, in the form of legislation, these sectors operate under intricate set of rules, regulations and policies. Lawyers working in these sectors need to be aware of those changes and soon end up being sector specialist. This change is significant and can be seen across India, in varying degrees. One can say that there is a growth of regulatory lawyers who are sector-specialist and have deep insight in their chosen area of practice. 

Live streaming of the Supreme Court's constitutional bench is being hailed as a crucial step in the process of democratization of Justice. What are your thoughts on bringing more transparency in the Justice administration system?

Live streaming is good for both the lawyers and court. It surely allows informed citizens, lawyers, law students to closely view the functioning of our constitutional court. This will remove many misgivings that people have regarding the court functions, more so when certain comments and arguments are selectively highlighted in the media without the context in which those were made. 

Additionally, in my view, courts, statutory bodies and tribunals should adopt a hybrid-system of functioning where virtual hearings should be permitted upon request made by parties and / or their Advocates. While several courts and tribunals are permitting such hybrid mode of appearances, many have discontinued it. Though such process was introduced on account of the pandemic, it eventually led to democratisation of justice. I believe it allowed transparency, provided access to clients, improved accountability, saved costs and reduced carbon footprints. I am strongly in favour of restoration of this positive learning during an otherwise dark chapter of our lives.      

Justice D.Y. Chandrachud has recently taken over as the 50th Chief Justice of India. In your view, what are the most pressing challenges at the Bar and the Bench that need urgent attention?

There are several challenges that we face. To begin with, one must acknowledge that India lives in various time zones. While courts and the law practice in the metro-cities are of a particular level, this may not be the same say -100 kms away from that city. The conditions of the courts at the district level and those at the lowest level need to be improved. We need to understand and create conditions so as to make it attractive for young and bright law graduates to take up work at that level. The migration of good law students to the metros is a case of intra-State brain drain. Conditions should be such so that students feel attracted to reject placement offers from law firms and instead take up judicial service. Their career path in the judiciary should be predictable.    

Currently, we are struggling with the vacancies in various courts and tribunals across India. While this is being discussed and addressed, there is an urgent need to increase the capacity of our courts and tribunals. Our judges are overloaded with work. It’s a fact. All you need to do is to pick a weekly or daily cause list and see for yourself. This needs to be addressed. Apart from speed, you also need quality of judgments.           

In case of tribunals and statutory bodies, the present trend leans towards appointments of only retired judges, bureaucrats and PSU employees to become members of such tribunals. There must be a move to allow young and competent professionals, who fulfil the basic qualification-requirement, to join these tribunals. Appointments to statutory bodies and tribunals should be opened up and democratised. Alternatively, as has been discussed in several forums, there may be a need to create a national level regulatory-cadre, which will feed positions that are available in statutory bodies and tribunals. There is a need to provide better infrastructure and support staff to enable proper and effective functioning of tribunals. This has been a matter of concern as national / appellate level tribunals in Delhi suffer from severe infrastructural constraints.    

You have represented some of the biggest corporates in electricity matters. How do you foresee electricity law as a practice area? What advice would you give to youngsters wanting to start a law practice in a niche practice area?

Electricity is at the very core of human existence, and would closely follow one’s basic need of food, water, air etc. India is growing both in terms of population and economically. Today, our per capita consumption of electricity is low, lower than many other developing countries. This is bound to increase in the immediate future. The economic targets and ambitions, including the various schemes for securing higher industrial growth have been well articulated.  While we need to increase our electricity generation to meet our future demand, there is a global call to reduce dependence on fossil fuel. Independent of our commitments at various multilateral forums to reduce our carbon footprint and increase renewable energy generation, the transition from fossil fuel to renewable energy will be legally challenging. It is said that to meet the 500 GW renewable energy generation target of 2030, an investment of 35 to 40 billion USD is required annually.

Our Parliament is considering wide ranging reforms in the Electricity Act, 2003, which, amongst others, will upset or let’s say change the way the distribution business has been conducted across States till today. This will create several issues that will require resolution. 

In the conventional thermal generation sector, based on coal and gas, one has seen the operational difficulties on account of high costs and coal / fuel uncertainties. This has led to stranded assets and proceedings under the IBC. This shake-out, including realignment of contracts etc. will continue for some time.             

In a sector like electricity, apart from understanding law and policy, one has to be open to absorbing some basic technical knowledge, which is often shared by the clients during initial briefings. Also, one should be able to understand and willing to learn some level of accounts and finance, so has to appreciate the commercial implications of the issue at hand. The rest of the skills are common across subjects and as they say you get better with time.      

What to your mind are the top emerging practice areas that young lawyers must keep an eye on?

There are several areas that are available to young lawyers today. One has seen the growth in cases under the IBC, competition law, environmental issues etc. While it may be difficult to pick any subject at the beginning, its important that whenever a case involving a specialised subject comes, one should dive deep and do their best. Reach out and take help of those who may have more experience in that sector. I believe we will soon see a more aggressive regulatory regime involving water – both distribution and pricing. It is a commodity that has not received the attention it deserves, especially usage relating to industry, commercial, recreational and large agricultural farms. Some States are setting up sector regulators in water but this will need more debate and discussion at a pan-India level.       

What are your thoughts on the Competition (Amendments) Bill, 2022?

There are structural changes that are proposed. These changes are driven by the fact that there is a need to meet challenges thrown up by a constantly evolving market. There also an issue of meeting the requirements of new technologies that drive the way products, services and markets operate. Yes, the role of the market watchdog has to change. There is a lot of debate on the positives and negatives of the proposed amendments, depending on which side of the fence one is sitting. It will not be appropriate to make any sweeping statement. One can only say that there are areas of concern in the draft and a need for further debate and discussion.    

Tell us about your life outside the law. Do you still get time to pursue your hobbies? Any book that you would like to recommend to the young lawyers reading this interview?

I have several interests, though it’s difficult to classify them as pure hobbies. I love visiting game parks, irrespective of one’s chances for sighting of big cats. I read books; several are non-fictional. I like music – alternate and independent. I follow a few folk singers too. 

For those who wish to know about the journey of the Supreme Court of India – do have a look at a book written by Late Govind Das, Barrister and Sr. Advocate – The Supreme Court: In Quest for Identity. It’s an Eastern Book Company publication. The journey of the Supreme Court in that book is documented till 1998-1999.

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