Litigation: Experience and Challenges | Nikhil Nayyar

Mr. Nikhil Nayyar is an NLSIU graduate of 1993 and holds a rich experience of practicing for the last 24 years in a wide variety of areas including arbitration, company law, constitutional law, electricity law, indirect taxation, education, labor and service law, environmental law, consumer protection, land acquisition among others. He was appointed as the Additional Advocate General of Punjab in November 2012 and held the post until recently. Along with his vast knowledge and experience in practice, he is also Honorary Editor of SCALE since 1993.

He has been associated with cases such as Jessica Lal Murder case, the recent case involving contempt proceedings against Justice Karnan, the Black Friday movie case. He had an informal interaction with NALSAR students at an event hosted by Nyaya Forum for Courtroom Lawyering. He talked about his long journey in litigation, throwing light upon his journey as an Advocate-on-Record in the Supreme Court of India. The interaction served as a good primer for those considering litigation as a career option.

He first pointed out how he and his batch mates at NLSIU Bangalore were pushed towards litigation by the then Vice Chancellor Professor (Dr.) NR Madhava Menon. Mr. Nayyar’s transition from being a law student to a being a junior with a senior Supreme Court lawyer came naturally to him owing to his experience with the same senior through internships in his university days. He proceeded to dwell on the significance of the role of an Advocate-on-Record in Supreme Court. Under the Supreme Court Rules only such legal personnel are permitted to file matters before the Supreme Court, a task that can not be performed by just any counsel. He lamented that the perception of the role of an Advocate on Record had deteriorated over time due to the phenomenon of name lending (a practice frowned on by the Supreme Court as early as the 1980’s) but also contended that this could be resolved if the Advocates on Record resolved not to indulge in the same.

Next, Mr. Nayyar talked about certain important traits of a lawyer. He drew from the experiences and anecdotes in the autobiography of the pre-eminent jurist and senior lawyer Mr.Fali S. Nariman, which included not being over-smart in court and not interacting with the media regarding a sub-judice case. He then reasoned his decision of starting his practice right from the Supreme Court as a lawyer really on account of not having any real choice being a first generation lawyer. Yet at the same time, he advised that starting at a high court or a lower court in one’s home state would be a more practical and reasonable choice to take since it ensured that once one decided to move to the Supreme Court one would be conversant with the nitty-gritties of practice and not be inexperienced or unprepared in any manner while also having a base in one’s home city or town. He also touched upon the subject of growing one’s practice. In his view many times clients are referred by seniors who watch and observe your performance in court. Also in the early years one should not get bogged down with comparisons with years and the remuneration one makes.

He then touched upon the nature of work he took up as an advocate. He pointed out as to how he was exposed to a number of legal subjects such as electricity law, service law, and education law which one encounters in litigation but are absent from the law school curriculum.With this in mind, he highlighted how a career in law was a constant learning process in itself and a constant challenge that one had to be prepared to undertake. Further, he delineated his involvement in cases like Mumbai Dance Bar case, Black Friday movie case, Highway Liquor Ban case and most recently the Justice Karnan contempt of court case. He also unequivocally spoke against the ‘tribunalisation’ of justice and how the tribunals are taking away the independence of judiciary by being subject to excessive governmental control, as has been attempted in the recent Finance Act, 2017, which has also been challenged in the Supreme Court.

Finally, Mr. Nayyar attempted to answer one of the most difficult questions troubling one and all in Indian legal domain today: how to make the tough choice between joining transactional practice in corporate law firms and taking up litigation in courts.  He said that even though there is no correct answer to this question, a career as a litigating lawyer has its own excitement when compared to a career at a law firm. Career as a litigating lawyer though uncertain but is extremely thrilling and adventurous. If one is patient enough and is not looking for immediate financial success, litigation is a better choice in the long run.

He additionally delved into the question of whether a law student should look at higher education and securing a post-graduate qualification. He thought back to the advice given to his batch at by Mr. Ram Jethmalani, then a visiting faculty at NLS, who said that he saw a master’s degree as neither bringing considerable advantage nor bringing any disadvantage. Mr. Nayyar however respectfully differed and opined that in the changing legal world of today and the newer opportunities, a Masters degree can throw open avenues for aspiring lawyers.

After the insightful address, Mr. Nayyar answered questions regarding the prospects, perceptions and expectations of NLU graduates as litigating lawyers and the problem of low pay packets of junior lawyers.

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