Barry Sen, Counsel’s Counsel

A tribute to Eminent Lawyer and former legal adviser to the Ministry of External Affairs B.SEN who passed away on November 8 at the age of 90.

In the summer of 1949, the Chief Justice of the Federal Court of India, Sir Harilal Kania, was in London for his vacation. The jurisdiction of the Privy Council over appeals from India had been abolished and Kania was set to take over as the first Chief Justice of India under the Constitution. He decided to meet Indian barristers practising before the Privy Council and invite them to return to India. Delhi had only district court practitioners and he wanted the London-based lawyers to form the nucleus of the Supreme Court Bar and bring in the traditions of the Privy Council. Only two accepted the invitation. H.J. Umrigar was one. He died in the early 1960s. Barry Sen was the other. He passed away on Sunday at the age of 90.

Many young men from Bengal went to England to study for the Bar. Some of them like Sen aspired to get into the Indian Civil Service. But when Sen, barely 21 then, was called to the Bar in January 1946, recruitments to the ICS had stopped. As he sat contemplating his future in a London restaurant, Henry Polak asked if he could join him at the table. Polak, a radical Jewish solicitor, was a close associate and friend of Gandhiji in his South Africa days. Seeing that he was undecided about his plans, the kindly Polak suggested that he should gain some experience in the Privy Council and other courts in England. To Sen’s anxious query about how he was going to get work, Polak told him to leave it to him.

And so, briefs started coming his way, both to assist the distinguished silks of the day (including the legendary D.N. Pritt) and to lead arguments himself. As he was finding his feet as a barrister, the Law Society of England and Wales proposed his name for a summer school in International Relations in Prague. At the end of the experience, he realised that there is a world beyond the law courts and he developed a deep interest in international relations. This would lead to a remarkable dual career which would span over six decades.

When he reached India in late 1949, Sen found that Chief Justice Kania had already spoken about him to the formidable M.C. Setalvad, who was to take over as India’s first Attorney General. Sen soon joined Setalvad’s chamber and began his practice before the Supreme Court. The mark which Sen made in the fledgling yet geriatric Supreme Court can be gauged by the fact that in 1956 when he was all of 31, and just ten years old at the Bar, he was designated a senior advocate (I believe that this is a record which has not been broken in the Commonwealth. Others more steeped in the history and folklore of the Bar are welcome to correct me if I am wrong!).

The law reports of the ’50s, ’60s and ’70s are testimony to his contribution to the jurisprudence of the Supreme Court in diverse branches of the law. And his practice extended to the High Courts, to Commissions of Enquiry, to corporate disputes and to international arbitrations.

As early as in April 1950 when he was still settling down in Delhi, his interest in international law made him take the initiative to establish a branch of the venerable International Law Association in India. Such was the respect that the young Sen commanded that he was able to persuade Chief Justice Kania to be the President of the Indian branch, and Kania could convince Jawaharlal Nehru to speak at the inaugural meeting.

As a junior in Attorney General Setalvad’s chamber, Sen began to assist him in matters involving questions of international law. Setalvad soon wrote to Nehru to sponsor him for training in the British Foreign Office. Sir Girija Shankar Bajpai, the Secretary General in the Ministry of External Affairs, was already toying with the idea of creating a department for international law in the foreign office, and Sen was promptly sent for training. And by 1954, he was Honorary Legal Adviser to the Ministry of External Affairs; a position he held for ten years during the formative years of India’s foreign policy. Alongside a busy practice in court, remember.

The problems which the foreign office faced in those years were many. It had to deal with the fallout of Partition, citizenship issues, the Kashmir question, the existence of foreign pockets, the sharing of the Indus and Ganga waters, and the status of persons of Indian origin in decolonized states (Sen had to do his research in the pre-internet and pre-photocopying days). He was appointed by India as a negotiator for the Indus Waters Treaty.

In late 1980, Sen took leave of his court practice to take up the full-time position of Secretary General of the Asian African Legal Consultative Committee, which was granted the status of a Permanent Observer by the UN General Assembly. Among his other contributions, Sen will be remembered for his standard work, A Diplomat’s Handbook of International Law and Practice. The Emperor of Japan decorated him for his contribution to international law.

Sen returned to practice in 1988 to a totally different Supreme Court. Gentleman counsel that he was, he was uncomfortable with the aggressive advocacy which had started taking over. Success in today’s courts depends on the skill with which you can obtain an interim order, not on the contribution which you can make to the growth of the law. If the gentle and mild-mannered Sen were to apply for designation as a Senior Advocate in today’s court, he would have been rejected, because he wouldn’t have been noticed.

“Eminent,” one thought meant “well-known and well-respected” but today there is an added requirement. It is not enough that you have left a great mark on your profession. Your name must figure in the day’s newspapers and you must be regularly seen on television. And so the passing of Sen will not be very much in the news.

But I am being unfair to the media. Some years back, I introduced Sen to an about-to-become Chief Justice at a seminar. I could fully understand that they may not have had occasion to meet earlier, since Sen was no longer in active court practice. But I was mortified when the learned Judge looked blank and said “Oh I see,” when I recounted his achievements and contribution. No, the Chief Justice of India is not required to know the history of his court.

Raju Ramachandran is a Senior Advocate at Supreme Court of India.

This Article is originally published in TheWire.in.