Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
August 10, 2021
Prof. (Dr.) V.C. Vivekanandan has three decades of teaching and research experience in legal education and served NLS-Bangalore and NALSAR-Hyderabad between 1990 to 2017. He also was the Dean at Rajiv Gandhi School of IP Law at IIT Kharagpur between 2009-2010 and was the founding Dean of the School of Law at Bennett University at Greater Noida during 2017-2019.
He holds a Bachelor’s Degree, Master’s Degree and PhD degree in law apart from a Master’s and M.Phil. degree in Public Administration. Prof. Vivekanandan was appointed as the MHRD Chair Professor in 2008 -2009 and again from 2010 to 2017. During this tenure, he was also representing Government of India negotiations in SCCR meets at Geneva as an official delegate from 2013-2015.
From the onset of the Pandemic, HNLU has worked overtime in ramping up the digital infrastructure and also digital deliveries. The World Universities Real Impact (WURI) ranking recognized this and rated HNLU as 51/100 in crisis management. The digital infra utilization not only managed the lecture deliveries but floated innovative platforms of connecting with the students. Nevertheless, such moves are suboptimal compared to the real-world interaction in campus of class room, extracurricular activities, socialization and learning by living. As the famous adage goes that the ‘tough get going when the going gets tough’, the University administration of faculty and staff put their best foot forward and it is commendable that the student community with so many shortcomings on the infra at their end and social stress responded to a forced lifestyle of a digital world. Hope the gains of such contingency will be useful in a blended learning of the future, but everyone wishes the ‘Real World life style’ as the main stay.
In the initial few months, the technology transplant for teaching deliverables had hick ups and required a calibrated effort. The first experiment was that of the introduced the ‘Flexi Teaching – Flexi Learning’ (FTFL) model of uploading the lectures a day ahead to overcome real time glitches of connectivity, band width etc. In next semester we moved to real time classes as situation on the connectivity improved. The ‘SACE’ model (The Special Assignment of Critical Essays) which eased the traditional system of mugging and recalling legal section with original contributions. Our innovative platforms of ‘Lex Osmose’ ( single credit courses), ‘Lex Arca’ ( Out of the box lecture series), ‘Alma Matters’ ( Alumni platform) added new dimension through technology platforms. In short, the technology tools were effectively used for optimal deliverables in the given circumstances. There will be long term benefit of using such technologies after the ‘normalcy’ reigns.
Interestingly IPR serves as the guarantor of Return on Investment (ROI) for innovator firms for investing and coming out with lifesaving drugs and vaccines. On the flip side such monopoly models hamper timely access to those who need them desperately. This access issue has imploded in the unfolding of the global crisis of Covid. The legal route of compulsory licenses does not allow a breather in this type of wild fire Covid spread. This then can only be addressed by voluntarily giving up the rights and facilitating rapid licensing and upgrading of production to save the lives which are falling like nine pins. Indian advocacy in WTO-WHO of freeing the COVID vaccines is reflective of this serious concern. If this is not addressed by the protagonists of IP rights, it will lead to an aggressive backlash on the very foundation of IP logic. The innovators investments can be recovered and managed by paying the necessary compensation by the Governments and to work out a moratorium of the rights regime till the world limps back to normalcy.
Privacy as a concept and its evolution is parallel to the discourse of Human Rights itself. Open societies value this as being important as economic well-being. In a way it is a litmus test for a fair governance in democracies. The current explosion of technological innovations and applications are mindboggling in terms of benefits on one hand but also tends to be a runaway technology trampling identity and privacy. With the advent of Artificial Intelligence, it is a situation of ‘code superseding the coder’. In the battle of technology vs law, law has been always a laggard but the gap is now humongous in proportion. We certainly need an innovative legislative check mate to stop this no holds barred techno violence. At the same time, it is important that one does not throw the baby out of the bathwater.
Without an iota of doubt the current developments in terms of AI, Big Data and other emergent technologies can and will displace lawyers of their mundane and repetitive work. When billing margins of large and mid-size law firms come under pressure – pandemic has already set such onslaught — they will look forward to AI based solutions. This is an ominous sign for a sizable new entrant in the practice under the standard template work. If history is any proof, the technology juggernaut cannot be stopped but can be managed and the fallout mitigated. I am reminded of Issac Assimov’s first principle of Robotics which states “A robot may not injure a human being or, through inaction, allow a human being to come to harm”. May be we have to interpret this to include the harm of livelihood ?
Quite a few areas – standard template syllabus, lack of empirical driven research, evaluation components without a critical thinking approach, lack of training on the art of teaching, funding sources for legal research, appraisal-based increments, absence of academics in public policy formulation to point a few. In short, legal education managing the supply side in terms of quantity but the quality perspective has not tapped the potential of the students and faculty.
Not working is an oxymoron when you are heading a law school (of course this is when you are serious about your deliverables). I do take some forced break and listen to music specially the ones in SMULE platform, random You Tube browsing, reading random non-law stuff and when there is some luxury of time to watch NETFLIX or Amazon Prime Of course one cannot escape the WhatsApp forward syndrome.
August 03, 2021
With more than thirty years of professional experience as an author, researcher, teacher and administrator, Prof. Bajpai has been appointed as Convenor, Committee for Reforms in Criminal Laws set up by the Ministry of Home Affairs, Government of India, which is tasked with spearheading historic reforms in Criminal Laws in India. He has previously served as the Registrar, National Law University Delhi. He has also served as Professor of Criminology & Criminal Justice (Law); Chair Professor at K.L Arora Chair in Criminal Law; as well as the Chairperson of the Centre for Criminology & Victimology at National Law University Delhi. Prior to that, he served as Professor (Law & Development) & Chairperson at the Centre for Criminal Justice Administration, National Law Institute University, Bhopal.
Q. The coronavirus pandemic has changed the way we live and work, and the change has probably hit educational institutions the most. How has RGNUL, Punjab, adapted to the lifestyle and professional changes brought about by the pandemic?
The Covid-19 Pandemic has drastically impacted educational institutions across the world. It necessitated us to adopt new ways to confront the challenges of planning our academic activities on the campus. RGNUL’s story is quite remarkable in this regard in two ways: (i) the University oriented the teaching staff into a new technology of online classes by utilizing advanced software in the conduct of classes; (ii) the University has been conducting its examination in an online mode in real-time framework and this model is something which many institutes in India might not have adopted so far.
Q. How helpful a role has technology played in ensuring that your students’ education doesn’t suffer during the pandemic-induced lockdowns?
All the initiatives mentioned above involved an active use of technology which mainly includes the software. It is noteworthy that the university organized a special Workshop for the teachers to equip them with recent digital tools for virtual classrooms and competent use of Information Technology (IT) in the conduct of classes and other academic activities.
Q. You have expertise in Criminology and Criminal Law. In India, the criminal justice machinery is overburdened — starting from an overworked police force to mounting backlog in courts and overcrowded prisons. What kind of reforms would you recommend to ensure that our criminal justice system is reformative and rehabilitative, rather than punitive?
I am of the view that the criminal law in the country needs to be simplified a lot and the criminal process is required to be oriented in a manner so that those who are in the disadvantaged class have better chances to access the justice system. To explore alternative modes of disposal of cases by relying on non-punitive and community-based sanctions also becomes imperative in the present times.
Q. Coming to another area of your expertise — Victim Justice. In India, the concept of victim rights is often disregarded as the major focus is shifted to the accused rather than the victim. In a nutshell, what is your opinion on the concept of Victim Justice in India? Would you recommend that Victim Justice be made an integral part of our criminal justice system?
Victim Justice has not been a top priority in our system. The laws and processes now need to be geared more and more towards the victim of crime in keeping the global trends in mind. Justice to the victim will bring the much required balance in the criminal process and will also fulfil the constitutional guarantees to all the stakeholders.
Q. You have often interacted with faculties at law schools and other institutions abroad. Do you think there is a difference between the way academics in the legal profession function in India and the developed countries?
India is now significantly addressing the concerns relating to quality legal education, as it happens in the developed countries. However, there is a long way to go. In the Western world higher education is an important priority. The Indian State requires to spend more significantly on higher education.
Q. You have earned a doctorate as well as a post-doctorate from Leicester University, UK. In your opinion, in which areas are law schools in India lagging behind especially in comparison to those in the West? What needs to be done to improve the knowledge, skills, attitudes or professional expertise of law students in our country?
Law Schools in India lack capable faculty. This is the time to augment the scholarship in the legal field by deploying incentives to teaching and research. The professional expertise needs to be channelized into the policies such as making the faculty contribution more and more relevant. The component of research in law school is on the back seat and intensive efforts are now essential to prioritize it.
Q. On the personal front, what do you like to do to de-stress when you are not working?
Reading fiction/non-fiction and listening to music is something that provides succor and is definitely an important pursuit of selective engagement.
July 30, 2021
Priyanshu Kumar has over 16 years of career experience in providing legal advisory services in relation to M&A, PE, VC, JV, and similar transactions. He has advised on transactions amounting to more than USD One Billion. On the board of advisors of a number of companies in India, Singapore, Dubai, and Hong Kong, he is currently working as Managing Director – Head of Legal & Corporate Advisory of MP Morgan Capital Partners Pte Ltd, a Global Business Strategy & Corporate Advisory firm headquartered in Singapore. Priyanshu Kumar resides in the United Kingdom.
Q. Having read law at Lucknow University as well as the National University of Singapore, what do you think are the differences in the way legal education is imparted in India & Singapore?
The system of education and the way law students are practically conditioned to become lawyers in foreign countries is significantly different from India. I did Master of Laws (Corporate & Financial Services Law) LL.M from National University of Singapore (NUS) in 2005.
For instance, the LLM/ LLB courses in NUS are spread across a number of compulsory and optional modules. From the first year onwards, apart from the compulsory modules, law students are at discretion to choose modules of their interest all the way till the end of the course. The degree programme in Singapore has its foundational basis in research more than examination per se as compared to India. The coursework is spread across research papers and practical problems from lectures to tutorials.
In a nutshell, a law student who has graduated from NUS has been extensively trained in research and practical problem-solving skills.
I passed LLB (Hons.) in 2003 from Lucknow University, the five-year integrated law course (LLB Hons.) had six subjects in one semester so we technically passed 60 subjects in five years, which was quite a lot of hard work for us. There was no research or any practical exams as such so we just had to memorise and clear the exams. So, you will pass the exams with first class honors if you have a good memory. Luckily, I have a very good memory.
I heard from junior lawyers that now the study pattern has changed in law schools in India. Indian law schools are adopting foreign universities’ study pattern which is based on research.
Q. You have working as a lawyer in both India and abroad. In a nutshell, how different have both experiences been for you?
The working culture in India and abroad (in the countries where I have worked) is totally different. The work culture of various countries varies according to the different cultural practices followed by the nations. India is more of a collectivist society whereas abroad there is an individualistic approach to the society. I have worked in Singapore, India, and the UK (currently). The first thing I have found there is punctuality at the workplace. It is considered as a sign of disrespect when it comes to being late even by a minute for a meeting or to office. Whereas in India, it is pretty normal to be late by 10-20 minutes for the meetings (I also started considering this as normal when I was in India).
Second is professionalism. I have seen that Indians favour their colleagues and like to work in a friendly environment. Blunt answers are a big No in the Indian working space as it is considered a sign of rudeness. While abroad direct replies are a sign of professionalism and are not considered rude.
Third is work-life balance. Employers in Singapore and the UK are invaluable when it comes to helping manage their employees’ work-life balance. I remember that during my working days in Singapore law firms, we used to have regular support meetings to evaluate everything from the employee’s workload, responsibilities, and mental health.
I must say that working in other jurisdictions helped me a lot in developing my personal skills, widening my network, and acquiring specialist knowledge.
Q. Do you think introduction of legal technology, including that based on Artificial Intelligence and Machine Learning, has the potential to transform corporate finance advisory across the globe?
For Corporate Finance Lawyers/ Advisors, Artificial Intelligence (AI) presents many exciting opportunities to increase efficiency, reduce costs and create new services. The application of AI to corporate finance is extremely important. Corporate Finance transactions are a major form of business activity that has a significant impact on industry sectors, national and regional economics, and, therefore, on the broader society.
Corporate Finance includes raising start-up and venture capital, growth capital, merger & acquisitions (M&A), management buyouts (MBOs) backed by private equity, equity capital markets and initial public offerings (IPOs), raising debts and alternative finance, capital for specialist investment funds, infrastructure investment, and turnaround finance.
AI has the potential to increase worldwide GDP by 14% by 2030, an infusion of USD15.7 trillion into global economy. Refinitiv estimates that the global market for M&A was worth a total of more than USD 4 trillion in 2020 and counted 50,855 deals.
Some of the large private equity firms have started experimenting with AI technology. AI can play a major part in capital raising, company valuation, negotiations, deal completion, post transaction to exit/ divestment. The important part of any corporate finance deal is due diligence which takes a hell lot of time. The legal due-diligence process can require searches through tens of thousands or hundreds of thousands of documents of many different kinds to identify risks and potential liabilities for acquirers or investors in a company. AI-based applications could be used to automate many parts of that process – including the location of documents, their identification, standardization, indexation, and ranking relevance. The potential for AI-based technologies in corporate finance deals is huge but requires great professional care.
Q. What are some common legal challenges that corporate business firms usually face as far as the laws are concerned?
Any business may face legal issues at some point. An important aspect of the successful development of a business is to anticipate and tackle common legal issues in a proper and timely manner. The most common legal issues a corporation may face are tax issues, late payments, employee issues, breach of contracts, intellectual property related issues.
Legal policies keep updating on a regular basis, employers are challenged to keep up. In my view, every corporate firm should have their own legal department/ legal officer to take care of their legal requirements on a day-to-day basis. Modern business operation can be hectic and fast-paced and can as such bring about legal problems if proper documentation is not drafted to avoid the most common legal issues. Companies should appoint at least one legal professional who helps them familiarize and understand the laws, contracts, policies, and procedures.
Q. What advise would you like to give to young lawyers who are keen to make a mark in the field of corporate laws?
Well, in a difficult, confusing, or complicated situation, individuals and companies may find themselves desperately seeking the guidance of a well-prepared and reliable legal professional. The key factors to become a good lawyer are passion for the job, compassion for clients, great communication skills, research skills, willingness to listen, a sound knowledge of corporate laws, strong drafting ability, good judgment skills, and decision-making skills.
The most successful lawyers are not the ones with the best grades. They are the ones who can communicate effectively with their clients. They are good listeners and problem solvers. More importantly, they are able to relate with whatever issue the client has bought forward.
When a client comes forward with a problem, the duty of the lawyer is not to direct the client to whatever statutory provision the law has to offer. The most invaluable skill a lawyer can possess is to explain the law in the easiest way possible and provide a best solution to their problems.
Sujata Chaudhri is the Founder, Owner and Managing Partner at Sujata Chaudhri IP Attorneys and specialises in IP litigation, enforcement, prosecution and transactions in the United States and India, particularly in the area of trade marks.
July 21, 2021
Q. Why did you choose to specialise in IPR?
I got into the IP field quite by accident when I was asked to assist a partner at the firm I worked at on an IP matter. Once I started working on the matter, the subject piqued my interest, and that interest just kept growing. I soon started reading up about trademarks, copyrights and designs during my weekends off from work. An LLM in IP followed and the journey with IP began!
The core motivating value boils down to first principles: be it a start-up or an MNC, protection of human intellect, in my view, holds utmost importance and deserves to be protected and cherished.
Q. During the COVID-19 pandemic situation, there are some essential innovations taking place across the world in the tech and medical spaces to provide much-needed relief to populations. Do you think trademarks and IPR can be a hindrance to more and more people getting access to such essential products?
The pandemic’s necessity has pushed the industry to make not only drugs and medical equipment like ventilators, but also essential technologies such as copyright-protected virus-tracing software.
Does the Indian patent regime strike a balance between this commercial interest and the interest of the ultimate beneficiary – the public at large? I think the 1970 Act is flexible and robust enough through its provisions on compulsory licenses, prevention of evergreening of patents and government acquisition of patents, to deal with public health emergencies as well as the objective of incentivizing inventors, if you see Sections 84-92, and 102.
But of course, unlike an epidemic, the pandemic is not a problem specific to one jurisdiction. A recent Oxfam report reveals that “a small group of rich countries representing 13% of the world’s population has bought up more than half of the future supply of leading COVID-19 vaccines”. This makes public access to Covid-relief a problem for densely populated developing countries, as you rightly pointed out.
But then, we already have a response from pharma companies such as AstraZeneca, in the form of sub-licence agreements with several producers, including the Serum Institute of India, to increase the supply of vaccines. AstraZeneca also is billing ‘non-profit’ prices for its vaccines for the duration of the pandemic. Gilead has licensed its Remdesivir patents to generic manufacturers in India, Pakistan and Egypt for supply in 127 countries. The World Health Organisation (WHO) established the Covid-19 Technology Access Pool (C-TAP) in June last year. The pool calls for voluntary contributions of patents and all other forms of intellectual property (eg, trade secrets, software and know how) from around the world in order to expand the development and production of new technologies needed in its response to the pandemic.
These responses, although voluntary in nature, are a concrete indication of the direction an incentivized, fairly dealt with, well-fed industry has the power to take- motivations likely bolstered by reputational advantages and pro-growth industry vision.
Looking at trademarks, there are enough safeguards in the Indian regime to safeguard the public from deceptive, descriptive marks such as a ‘COVID-RELIEF’, ‘NOCORONA’, ‘CORONA SAFE’ and ‘DHL CORONAVIRUS PREVENTIVE’, among others.
So even while the Registry is seeing abundant applications from shortsighted businesses filing to protect formative marks related to ‘Coronavirus’ and ‘COVID’, none of the applicants have started using the marks. Expectedly, there are applications which have been filed under Class 5 pertaining to medical pharmaceuticals, and veterinary products and even class 3 for cleansers styled on covid related marks, as well as class 9 for anti-virus software!
But the applicants – when they are active commercial ventures – could have perhaps used some IP due diligence before embarking on chasing such registrations.
Q. We are in the midst of an Artificial Intelligence boom. What are some of the challenges that AI is posing for the IP system?
There is the looming prospect that AI will be able to behave in human-like ways and IP will have to reevaluate the standard of “person skilled in art” which analyses any inventive step. Patent law, as it stands, attributes exclusive rights only to the true and first inventor, specifically to a natural person.
There’s also the problem of copyright ownership in AI. In order to be protected under copyright law, work must originate from an author’s own sufficient skills, labor, and judgment. This system poses a great challenge when trying to determine whether or not AI has used these factors sufficiently to produce such work.
Specifically on trademarks: The purchasing process is affected by information available to the consumer and who, or indeed what, makes the purchasing decision. AI has an impact on the information available to consumers and their purchasing decisions. AI is now used for several activities like “voice search”, this eliminates the usual text searching and there’s a projection that the visual aspects of a trademark may decline in importance with greater emphasis on phonetic and conceptual comparison.
Q. What are the major challenges that lawyers usually face in IP-related practice/litigation in India?
The challenges faced are many although these challenges are what makes practicing IP in India so interesting. Most stark among the challenges is the sometimes inconsistent approaches are taken by our courts and administrative bodies that are tasked with protecting valuable intellectual property. These inconsistencies are difficult to explain to clients who might have expected a matter to go well for them.
In terms of commercials, IP lawyers are now competing with the timelines generated by an AI driven world, in terms of commercializing business’ intangible assets. This brings up larger volumes of work to deal with on more competitive timelines, and a rather interesting challenge to manage.
Q. What sets the Intellectual Property practice at your firm apart from other law firms that also deal in patents, trademarks, copyrights, etc.?
The firm is set apart by the values of multi-disciplinary management, a youthful vibe, holistic decision making and a democratic culture.
I also feel that management practices come out better when they are developed with inputs from all concerned, rather than being imposed unilaterally.
Having the team participate in decision-making process makes it more democratic in nature and encourages greater acceptability. Moreover, it often brings to light diverse points of view, some of which may not have occurred to the management unilaterally.
Talent retention, in my view, can only materialize if the firm’s and team members’ individual goals align.
Before retaining talent, it is important to get raw talent, and then hone it in a way that works well both for the firm as well as for the individual. I’ve always believed that talent should be in-grown.
At my firm we have a well-laid down bi-annual evaluation process where each lawyer and paralegal is formally evaluated on their performance and growth in a transparent manner. The exercise helps in identifying the strengths and shortcomings in an individual’s performance, thereby paving the way for an individual’s growth as a professional.
We have incentives for efficient performers, and also a policy of fast-track progression in career for those who exceed the expectations of the firm. We’ve had fast track promotions in the firm, where lawyers are given responsibility right from early stages of their career, honing not just their technical skills, but also the soft skills such as delegation of work, mentorship, representing the firm at International conferences, practice development, building a brand, etc., which are vital from an entrepreneurial perspective. This has helped us hone and retain talent.
Q. On a personal level, how are you adapting to the changes in professional environments brought about by the pandemic and the lockdown? What do you like to do when you are not working?
We have tried to look at the uncertainty that came with Covid 19 as a challenge and an opportunity to reinvent the way we operated the firm. It has made us take a relook at every aspect and function of running the firm with a fresh perspective.
Using technology as our aid, we have allocated the time and resources saved that were earlier invested in travelling and physical interactions with clients in building the firm’s internal processes.
We have also taken a relook at our processes for hiring and recruitment. We saw a surge in practice in 2020, despite the pandemic, and consequently we scaled up our practice with new hires. There is a concerted effort to build up the firm’s patent department.
As for doing other things, most of my time away from work is taken up with my young daughter and our new puppy!
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June 30, 2021
Abhir Datt is a lawyer practicing in Delhi, mainly in the areas of General Criminal Law, White Collar Crime, cases under the Prevention of Money Laundering Act and the Negotiable Instruments Act. He is associated with Atharva Law Chambers, a boutique law firm that has offices in New Delhi and Chandigarh.
Q. What are the qualities that a lawyer should have in order to practice criminal litigation?
In my opinion, anyone intending to have a career in criminal litigation must firstly hone the qualities of being meticulous and patient – the former for absorbing, understanding and mastering the facts of a case and researching the legal propositions involved, and the latter because sometimes results are delayed.
One never knows how any day in court will play out, and this is true across the litigation spectrum. While it is important to navigate through a case with a broad strategy in mind, it is equally important to be flexible and open to a change in direction, as the case evolves.
The contours of criminal litigation traverse many stages, with the trial being at its heart. The markers of an effective criminal trial lawyer are (a) a detailed mastery of the facts of the case, (b) a knowledge of the procedural and substantive legal aspects of the case, and (c) a grasp of this nebulous concept of “court craft”, which only comes with practice. It is needless, therefore, but important to say that one must be persistent, against all odds.
Regardless of which side you speak for, criminal lawyers inevitably work in close proximity with real life questions regarding constitutional rights to life, liberty, dignity, reputation and speech and expression. And so, it is crucial, perhaps above all else, to find something to ground us. Personally, I like to read. It helps to make better sense of the world I live and practice in.
Q. Do you follow any specific strategies when it comes to criminal defense? Maybe you could talk about the art of cross-examination in criminal cases.
The primary task I undertake with any brief is reading and re-reading it several times over in order to (a) master the facts, (b) identify the allegations against my Client, and (c) carve out the issues involved. The practice of this first fundamental task was inculcated in me by my senior, Mr. Manu Sharma, and it has shaped how I approach any case. Over the course of my experience, I have also learnt the importance of conducting independent investigations to understand the context in which the circumstances of any given case are set.
Finally, I cannot stress more here than I do with my junior colleagues, always start your legal research in the library, with the books. The time spent meditating over the brief eventually manifests in the strategy that is adopted at the stage of arguments on charge or cross-examination.
Strategy in criminal defence litigation largely depends on issues and circumstances identified during this process, which if left unchallenged may lead to unwarranted convictions, arrests or detentions. Although there may be different approaches to the manner in which a trial may be conducted, at the end of the day it is inevitable that as a defence lawyer one must bite away at the prosecution’s case, one circumstance or allegation at a time – there are no short cuts in this regard, fortunately.
Q. What are the major challenges that lawyers usually face in cases pertaining to White Collar Crime in India?
I think the major challenge is Perception and Prejudice, which has come to surround individuals accused of White-Collar Crimes. I often find that unsubstantiated and ludicrous figures are projected as having been cheated or laundered thereby making it seemingly a very “serious” offence or an offence of a “large magnitude”. This Perception makes it difficult for an accused to secure basic reliefs like bail or any other relief, at least until the chargesheet is filed and while investigation is undergoing, even in cases where otherwise the accused is likely to have secured such interim protections.
The other challenge, I find, is with respect to technical aspects of White-Collar Crimes, which sometimes require at least a first principle understanding of the nuances of accounting, core concepts of company law and economic policies.
Q. What has been the impact of COVID-19 on criminal procedure and law? Are there any key legislative changes? Do you believe these changes will impact how courts, investigating authorities, and enforcement authorities approach criminal trials?
It is difficult to respond to this question and avoid saying the word “unprecedented” for the umpteenth time since the COVID-19 pandemic arrived. That difficulty is insignificant in contrast to the frightening lack of accessibility that the pandemic brought with it. The Code of Criminal Procedure dates back to a time when neither today’s crisis nor conditions could have been imagined. Our Courts have tried to adapt quickly to a new mode of hearing cases.
Hearings conducted through the virtual mode have been effective in a metropolis like Delhi, and over time we have been able to establish a system for filing, mentioning, coordination, appearances, and arguments. However, a system is yet to be developed to carry out the recording of evidence, in a manner that ensures transparency and fair play, through the virtual mode. The major brunt of this lacuna has been faced by those undertrials who have been accused of serious offences, which matters are at the stage of recording of evidence, and have not seen any progress in their case. Similarly, investigation agencies also need to develop virtual modes of conducting interviews and investigations, in cases where the accused in unable to travel to the office(s) of the authorities.
The initiative of the Bench and the Bar in the decongestion of prisons by granting interim bail in light of the unique circumstance of the pandemic is one step that has been effective in retaining and recasting our constitutional ideals of fairness and due process. For the time to come, if we are to see the evolution of the e-filing and e-courts system to uniformly meet demands of access across the country, legislative intent will undoubtedly be key.
Q. In your opinion, is negligent spreading of COVID-19 a crime under Indian law? What are the laws that lay down obligations of citizens to prevent the spread of COVID-19? What are the repercussions in cases of non-conformity?
Where notionally in certain cases negligence may be made out, tortious jurisprudence has been minimal in Indian Courts. So, it is unlikely that we will actually see any such cases play out.
Q. Tell us about your law firm and what sets it apart from other firms.
We, at Atharva Law Partners, are a small multi-specialty boutique law firm that offer our retainer services, including in the areas of criminal defence litigation, civil/commercial litigation, matrimonial matters, property disputes, arbitrations and mediations, across a variety of fora such as the Supreme Court of India, the High Courts of Delhi, Allahabad and Punjab & Haryana, various tribunals and Trial Courts in Delhi NCR. We have a team of young and ambitious advocates who work together to provide our clients with a holistic approach to any case.
Q. Considering the disruption caused by the COVID-19 pandemic in the functioning of courts, in your opinion what kind of technological upgrade is required to ensure uninterrupted and efficient functioning of the courts and of lawyers’ practice in the country?
The digital transitioning of all our systems is inevitable, and the pandemic has hastened litigation into that process. Given that the shift to a digital interface does not appear reversible, it becomes imperative to invest in infrastructure that can support a virtual future for our judicial system.
Presently, there is some digital infrastructure in place which allows citizens to access public documents like orders or judgments passed by the Supreme Court of India, various High Courts across the country and some trial courts and tribunals. With respect to FIRs, in my experience, there is a scattered availability of these public records on government websites. As a primary step, these gaps in access to information need to be streamlined. For this purpose, it is crucial to establish dedicated IT departments in our Courts to (a) support the registry and the court staff, and (b) develop websites, software and applications to magnify the access to information about the cases that are pending in the judicial system. A similar department is crucial to support investigating agencies in adapting to digital tools, applications and software.
It would also be crucial to have investment going into (a) creating public spaces where virtual courts can be accessed and observed, (b) cloud storage for public records and documents and (c) development of applications that act as intermediaries between advocates and clerks, typists, translators, notaries and other support staff that work behind the scenes.
Q. Do you think Artificial Intelligence and legal technology in legal research can be helpful in improving the efficiency of the judicial system?
Absolutely. There is no doubt anymore that AI is the future of technology, as we know it. The market for IT products in the legal field is fairly young and rapidly expanding. In the past decade alone, there have been significant changes in the manner in which drafting, research and (now) hearings are being conducted. It goes without saying that these upgrades have helped make it easier to process copious amounts of information. I must admit, though, on a lighter note that I cannot help but fear the day that we see an AI algorithm designated as a senior!
Q. How has the pandemic affected you personally and professionally? How are you dealing with the changes brought about by lockdowns?
The pandemic has affected me both professionally and personally. Professionally, at the start of the pandemic, there was always an apprehension regarding how work would be conducted, whether the fact that we would not physically be present in office would impact work and if the judicial system was equipped to handle an online platform.
Professionally, we as a firm, have grown from strength to strength and adapted to the various challenges posed by the pandemic with dynamism and tenacity. Each and every person in the firm has stepped up to do their part to ensure that work runs smoothly. The fact that courts are now virtual has also been a blessing in disguise in some ways since it has moved everything online and the long commute to and fro the courts, which was previously a struggle, has been completely done away with.
On a personal front as well, the pandemic has been challenging. Being away from family and friends for long periods of time and being in constant fear for their well-being and safety has been difficult and has had a lasting psychological effect not just on me, but on everyone. I also got married in a small ceremony during the pandemic, which was a personal achievement for me, but definitely missed all my friends and loved ones who could not make it due to the situation.
That said, the Indian population is a resilient bunch and I have no doubt that we will all get through this together very soon. I am looking forward to interacting with each other in person on both a personal and professional level and am sure the future is bright!
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Mr Som Mandal is the Managing Partner of Fox Mandal, India’s oldest law firm that was established in 1896. He has been in practice for the last 27 years as a Constitutional and Corporate lawyer.
Q. What are the major challenges that lawyers usually face in cases pertaining to corporate and commercial litigation in India?
The challenges faced by lawyers in this regard are manifold. Corporate and commercial disputes pose many vexed questions of facts and law which require availability of a good pool of experts which is not easily available in India. A good expert having specialized domain knowledge is of great importance to establish a foolproof claim or defend one.
Secondly, quick and time bound resolution of such cases has always been a problem. The Commercial Courts established recently which was expected to give time bound resolution of commercial disputes has not yielded the desired results. The dispute resolution even under Alternate Dispute Resolution (ADR) mechanisms such as mediation and arbitrations have given mixed results. Though Courts are increasingly referring disputes to mediation to give it an impetus, however, it is yet to gain adequate currency. As regards arbitrations, the arbitration process itself has become time-bound, however, the time taken to execute an award or a decision in a challenge to the award, which is through the Courts, remains time consuming.
Q. Could you talk about some of the most interesting cases that you have worked on and which proved to be either great learning experiences or turning points in your career?
It is difficult to recount done in this short space the interesting cases that one has worked on. However, the one interesting case that always comes first to my mind is a commercial litigation matter that I did many years ago which was very significant in its impact and particularly memorable because of the swiftness with which we had to act and approach the Court. I was representing Barbara Taylor Bradford (Author) in a litigation against a T.V. channel with respect to a daily soap that was going to go on air that day. Our contention was that the soap was a total lift from my client’s book and the makers of the soap had not even bothered to give credit to my client leave alone any monetary benefits. We filed for an order of injunction asking the Calcutta High Court for an order of stay of the telecast that evening. The Calcutta High Court refused to give stay. We got the order at around 12 pm and by 4 pm that same day we were ready with a Special Leave Petition to be filed in the Supreme Court against that order. We ran to the Supreme Court with the SLP, petitioned the Registrar for a hearing before the Court that very evening because the telecast was to start late night, managed to get the SLP listed for that very night, appeared before the two Hon’ble judges who kindly agreed to hear the matter at their residence and managed to obtain a stay on the telecast. We got a copy of the order and hurried to the office of the TV channel to serve it upon them because if the telecast was to be stopped the TV channel had to be served with the Supreme Court’s order. Needless to say, the TV channel was hostile and unwelcoming — the notice had to be pasted at their various offices. The end result however was very sweet. We saved the day for our client and the telecast was stopped. We managed to achieve all this in a matter of 5-6 hours-right from the drafting of the SLP to managing to serve the Supreme Court’s order on TV channel. The thrill of those few hours is hard to forget.
Q. The Arbitration scenario in India faces criticism for not being upto the mark especially in comparison to some other countries. What do you have to say about the mechanism for institutional arbitration in India and its comparisons to countries like Singapore, London, etc.?
In India, arbitrations were synonymous with ad-hoc arbitrations. However, the Government has of late taken several steps to institutionalize arbitrations in India. In December 2016, Government of India constituted a Committee under the Chairmanship of Justice B.N. Srikrishna (Retd.) with the view to review and reform the institutionalization of arbitration in India. The Committee gave its report and a new bill was introduced i.e. the New Delhi International Arbitration Centre Bill. This Bill was passed by both the Houses of Parliament and enacted as “The New Delhi International Arbitration Centre Act, 2019”. This Act provides for establishment and incorporation of the New Delhi International Arbitration Centre for the purpose of creating an independent and autonomous regime for institutionalized arbitration in India. We already have the Mumbai Centre for International Arbitration which is doing good work as an institution regulating arbitrations in India.
Hopefully in a couple of years, India’s arbitration institutions will be a force to reckon with and will be comparable to the LCIA, SIAC or the HKIAC because we have a lot of homegrown talent practicing arbitration in India and India as a destination for arbitration will be much more cost efficient than London or Singapore which are expensive cities.
Q. In your opinion, what is the scope of Alternate Dispute Resolution in India?
The Indian legal system has been known to be expensive and time consuming. These are the reasons why corporate houses and multinational entities are hesitant to submit themselves to the jurisdiction of Indian courts. With the rise of economic liberalism in India, these drawbacks became very apparent and led to the rise of Alternate Dispute Resolution in India. Arbitration became increasingly popular as large corporate multinationals wanted to choose their arbitrators themselves and submit themselves to the jurisdiction of their choice.
Gradually arbitration percolated to domestic entities too and now arbitration (mediation and conciliation have still to catch up) is the preferred mode of dispute resolution in commercial contracts. Almost all types of disputes can now be referred to and adjudicated by arbitration.
With the recent amendments to the Arbitration and Conciliation Act, 1996 in 2015, 2019 and 2020, the process of arbitration is to proceed in a time bound manner. The fees of arbitrators have been regulated. So, an effort has been made to make arbitrations less expensive and time consuming. The Government is also making efforts to make arbitrations as litigant friendly as possible. All these measures will go a long way in making arbitrations and other modes of ADR more popular means of dispute resolution and increasing their scope and prominence.
Q. Do you think Artificial Intelligence and legal technology can be helpful in improving the efficiency of the judicial system?
AI and other technology can be of immense help to the judicial system and to a great extent can help unburden the Indian Courts. There are experiments going on in other jurisdictions where aid of legal robots is being taken to write judicial orders. Advent of AI in legal research can immensely help the judges in writing their orders in India too. Similarly, even the lawyers can help litigants with efficient use of AI to cut down legal costs. Use of technology can also help in the efficient management of the procedural aspects of the functioning of the judicial system such as case listing, apportionment of Court’s time for each case, Court’s interface with the litigants and lawyers etc.
Q. The coronavirus pandemic has changed the way not only lawyers and judges work but the way the entire legal system functions. How have you adapted to the lifestyle changes, both personally and professionally, that have been brought about by the pandemic?
Work from home has become the new normal in this pandemic. We have been constrained to shut our offices in lockdowns so all our work is mostly done from home unless of course, there is a deadline where it becomes imperative for the team to meet in office physically. I am no exception to this trend and have adapted to this well. My days are packed with virtual calls and meetings and I am slowly getting used to reading longish documents also on my laptop which was not really something I was used to before the pandemic. It is a strain and yes, I do crave for my dog-eared and highlighted paper files but there is no option. The pandemic has thrust technology upon us in a rush and we are all grappling to be one up on it. However, I am so looking forward to a time when I will be able to meet my team and clients physically every day and greet each other with that warm handshake.
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Rahul Singh is a lawyer with 20 years of professional experience. Currently working as Head of Legal for CBRE India, he has had experience working for both national and international clients in the various roles he has undertaken such as heading operations for leading legal outsourcing industry companies such as CPA Global and Lexadigm. Rahul’s expertise lies in contract management, risk assessment & mitigation and regulatory compliance & legal advisory. Rahul is a graduate of the 2001 batch of Campus Law Centre, Faculty of Law, University of Delhi.
May 27, 2021
By LE Staff
I will answer the second part first. In my humble opinion every lawyer should start her/his career by working under a litigating lawyer for atleast 2 years, at various forums. This experience will provide any fresh lawyer a perspective of how any dispute is handled. Armed with this experience any lawyer can decide whether she/he wants to remain in litigation or join a law firm or a company as an in-house counsel.
The legal profession allows any lawyer a variety in terms of work at the different stages of a lawyer’s career and that is something I have benefitted from. I started my career in 2001 working under an AOR at various forums right from district courts to the Supreme Court of India. From 2004 till 2014 I dabbled with legal outsourcing operations, working for international law firms and clients, setting up companies, business divisions and handling P&L for outsourcing companies. Thereafter, I got an opportunity to work for CBRE as their head of legal and continue to do so till date.
Hence, I did not make a conscious decision to carve out a career as an in-house counsel but have simply gone in with the flow and opportunities arising, with an open mind to learn every day.
The most important aspect in my view is to keep learning every day irrespective of where your started or where you currently are. The legal profession will allow everyone an opportunity to shine provided you keep on learning.
CBRE is the world’s number one real estate services company with a Fortune ranking of 128 and working for it can be both challenging and interesting, from handling calls very early in the morning to reviewing a complex project management agreement. Any typical day is replete with helping internal stakeholders understand either the nuances of a particular contract or a statute or regulation and how it affects the Company and how can we protect the interest of the company. This manifests itself in the form of either negotiating a contract, sending out an advisory and having a discussion with the various teams within the company. The last half hour of the day is typically spent scribbling down the new learnings into my diary.
The pandemic has had a significant impact on businesses across industries therefore necessitating General Counsels to think out of box. During the first phase a major portion of our effort was to train business teams on interpretation and application of “force majeure” and helping them ward off push backs from clients and protect the bottom line of the company.
The second phase brings more challenges in terms of helping the company in its revenue generating efforts. Removing blockages in certain inherent contract negotiation processes, removing crept up biases in legal language interpretation, encouraging teams to adhere to SLA norms (we at CBRE have an internal legal team SLA of reverting with a completed task to a business request within 72 hours) etc which will help the company close contracts early and go live with services earlier than the norm, are some issues that demand attention.
Protecting the company’s reputation and bottom line are going to be issues that are going to remain major focus areas during next few years for all lawyers working as in-house counsels.
Technology is an integral part of our lives and we can only benefit from judicious utilization of the available technologies, even for our profession. Creating a central contract repository, availability of contract templates online, contract notification system, legal and regulation updation system developed in-house without purchasing expensive software is something we have undertaken at CBRE and is something I wholeheartedly endorse.
AI and for that matter any other technology will always be complementary. They will never be able to replace the lawyer’s experience and understanding of a legal issue and how to tackle the same, irrespective of the extent of inputs provided to any technology platform.
This was a humbling experience. Thank you to Forbes and the Jury. I never thought that I would be recognized as such and that too by Forbes within 20 years of my professional career. Everyone puts in hard work and specially in the legal profession, but being recognized by Forbes and that too by a jury comprising of such eminent personalities including retired Supreme Court judges does bring a sense of pride and satisfaction to the fact that maybe the path I chose was right and my service to clients as a legal professional was and is appreciated.
Always strive to learn from whatever you are doing, whether reviewing a contract, advising clients, negotiating a legal document, or appearing before a court of law. You will grow as a legal professional irrespective of roadblocks and lack of opportunity if you continue learning. Your learning and experience will remove all roadblocks and create opportunities for you and help you achieve success. Remember, always respect the contrarian view, it is a big learning opportunity.
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An Interview with Prof (Dr) Amit Jain, Pro- Vice Chancellor of Amity University, Rajasthan and Prof (Dr) Saroj Bohra, Director, Amity Law School, Jaipur. The Amity Law School, Jaipur was recently enlisted among the Top Laws Schools in India in the Legal Powerlist 2020 organised by Forbes India and Legitquest.
May 20, 2021
By LE Staff
Q. How does the teaching methodology practiced by your institute instill knowledge, skills and analytical thinking in students to prepare them for the challenges they may face as young professionals in the legal field?
Prof (Dr) Saroj Bohra: Law has always been taught with the help of theories, principles, their practices, and applications. Law, as it is invariably known, consists of multifarious areas each linked with the other. The task relevant for teaching these subjects is to bridge the gap existing between them. At Amity Law School, Jaipur, we follow a perfect blend of the lecture method, Socratic method, role-play, case studies and simulations, group discussions, tutorials, projects, seminar method, cafeteria model (teachers and students residing in campus holding discussions over a cup of tea or coffee is popular wherein everyone expresses their opinions freely), visits to courts, jails etc., special guest lectures, and technology-enabled blended learning using digital resources.
Prof (Dr) Amit Jain: We, at AUR, provide a supportive environment that facilitates creativity and innovation. Our well-structured and flexible curriculum allows students to master skills to face diverse challenges of the corporate world. To make our students industry ready, workshops, seminars and guest lectures are delivered by industry experts. The strong foundation provided to our students offers them an edge not only to face competition but also generate employment opportunities. Our state-of-the-art infrastructure and facilities complement our academic ecosystem and enhance teaching-learning processes. We encourage our students to discover new perspectives, see things differently and develop an entrepreneurial mindset. The faculty members interact constructively with each other and provide great learning opportunities for students. The students of AUR develop team building, leadership, communication, critical thinking, and problem-solving skills, all of which are suitable for a variety of fields of employment.
Q. Do you think the use of technology can support and enhance the education of your students? What kind of technology has your law school put to use for the benefit of students?
Prof (Dr) Amit Jain: Technology has proved to be a great enabler during the unprecedented time that we have faced due to the COVID-19 pandemic. The university has in-house intranet system ‘Amizone’ which provides a platform for easy connection between teachers and students and provides ready information about course-profiles, class schedule, and assessment plan.
In addition to Amizone, the university has also subscribed to secure and multi-function online delivery platforms for all its academic and administrative operations including regular teaching-learning and continuous assessment activities. This added to the smooth conduct of teaching-learning activities during the COVID 19 Pandemic.
Recorded video lectures, e-books, continuous assessments through digital tools, interaction with industry experts through webinars, online career guidance sessions, and mentor-mentee meetings ensured that the quality of academic delivery and routine activities are not compromised at all during the nationwide lockdown.
The faculties completed all academic activities through the virtual mode. All the assessments including end semester exams were also conducted online through pre-existing Intranet facility of the University.
Prof (Dr) Saroj Bohra: Today, knowledge recall systems are being automated by tools easily accessible on the market. Given the level of automation we are experiencing, efficiency dictates that repetitive routine tasks are going to go; analytical skills, strategy, ability to problem-solve are coming to the forefront and of course ability to interact with technology is becoming critical. Therefore, there are definitely changes to legal services and how students will deliver these services.
Answering the second part of question, Amity Law School (ALS), Jaipur is one of the first law schools in introducing legal technology training programmes. Its working pattern is as well automated through the use of Amizone (Amity Intranet Zone), which is the campus management system covering all academic administration related processes from admissions to alumni which can be accessed by keying in URL address https://amizone.net, operational since 2009. The course plans, assignments, lesson plans, study material, attendance, results all can be uploaded and downloaded by teachers and students.
During the lockdown, the IT department had organised workshops on online teaching platforms, which helped to swiftly switch academics from traditional classroom to online teaching-learning and assessments. On MS Teams platform teachers and students are connected with their institutional email id by IT department and online classes are conducted. Teachers can record their lectures which could be referred to by students in future. So, we have two effective platforms to connect online with our students Amizone & MS Teams where teachers could also conduct their class test, project or article or mooting presentations and take assignment submissions. Course plans are exhaustively prepared including the session plans and continuous assessment components. The continuous assessments are carried out across the semester and the components are planned based on learning objectives and learning outcomes of the course. Academic calendar is also shared with students on the commencement of the session. Everything is uploaded online for students’ ready reference and implementation.
Amity’s Jaipur campus established Amity Innovation Incubator and E- Cell to encourage and promote entrepreneurship skills among the students. We have partnered with the industry for better stakeholders connect for this we have established Industry Advisory Board too. We are excited and hope that learning opportunities of the future will reinforce, complement and to bring to life new and holistic experience for our students.
Q. Prof Jain, you often interact with faculties at educational institutes abroad. You have also been visiting faculty at universities in Australia and Europe. Do you think there is a difference between the way academics (specifically in the legal domain) function in India and in other countries? Where do you think India lacks or needs improvement as far as legal education is concerned?
Prof (Dr) Amit Jain: I believe we live in a globalized world and modern teaching methods are the same globally. However, in the western world it is observed that education is more practice oriented, and focus is more on skill development rather than knowledge dissemination. Indian legal education providers are also not behind their global counterparts. At Amity University Rajasthan we organize many competitions like Model United Nations, Moot Court Competition, Trial Advocacy Competition to provide a simulated environment to our students that helps them to practice and hone their skills. Internships play a vital role and industry academia collaboration is required to strengthen the curriculum in line with industry requirement. At AUR we have a very strong Industry Advisory Board that meets regularly to suggest improvements in our curriculum as well as pedagogy. Legal Education in India should provide opportunities to the students to work on real life problems with the support of industry mentors.
Q. The coronavirus pandemic has changed the way we live and work, and the change has probably hit educational institutions the most. What has been the impact of the pandemic-induced lockdowns on your institution?
Prof (Dr) Saroj Bohra: Well, due to the lockdown and even post-lockdown as precautionary measures education institutions are closed. It was an unprecedented situation and I consider the facilities of internet and technology as a blessing in disguise because of which we are connected with each other and engage ourselves productively in these trying times. Amity University Rajasthan has overcome all the difficulties by quickly adapting to the virtual online mode of teaching not only for the students of law school but also for the students of Amity organization as a whole in India and as well outside India.
In March 2020, immediately on lockdown ALS adapted to the online teaching. Besides regular, remedial classes were also conducted. Groups with students, teachers and staff on social platforms created so that all are connected all the time. Even End Term examinations for final year students were conducted online on Amizone platform. Thereafter, ALS took up the initiative of organizing webinars hosting successfully over a dozens of webinar inviting experts from the various domains of law and as well from legal firms
Students have been provided with remote access to online data resources. Corporate Resource Centre assisted the students in appearing for online interviews and students were placed in reputed national international companies like FHS, Nishith Desai Associates, Khaitan & Co., Amicus legal, and Innodata to name few.
Online Board of Studies meeting, Ph.D. viva of three research scholars of ALS, Student Research Advisory Committee presentations, Student Research Degree Committee meeting, departmental meeting, HOI’s meetings, Academic Council meeting, Online Farewell of final year students, Online Orientation of Freshers, online weekly Mentor- Mentee meetings etc. were conducted.
Overall ALS had given its best in making this COVID-19 time successful for its students and engaged them in online learning and initiated a sense of innovation to come up with new ideas. Modestly, pandemic has not changed the functionality of Amity Law School. Only the mode has changed from physical to virtual, rest all is same. Now even our new academic session is in full swing.
Prof (Dr) Amit Jain: The pandemic situation no doubt created challenges for almost every sector including education but at the same time as said, “in every adversity lies an opportunity”. Institutions were quick to respond and moved to online teaching and learning. Amity University Rajasthan was among the pioneers in country to implement an Online learning system to ensure continuous learning. Prompt action from faculty and staff helped students save precious time and kept them engaged in productive work. Removing the barrier of geographical boundaries and location an Online Learning system also helped to develop a sense of responsibility and discipline amongst students. No doubt, faculty and student missed the 152-acre state of the art lush green, eco-friendly campus of AUR but technology brought us closure to global resources and experts. We could organize webinars and expert lectures from global experts with the help of online platforms. Student also could connect at different occasions with 1,75,000 Amity students globally.
Q. How have you personally adapted to the lifestyle changes that have been brought about by the pandemic?
Prof (Dr) Saroj Bohra: To say that the novel coronavirus pandemic has changed the world would be an understatement. In less than a year since the virus emerged, it has upended day to day lives across the globe. The pandemic has changed how we work, learn and interact as social distancing guidelines have led to a more virtual existence, both personally and professionally. Now most of the time is spent before screen so I have tried to maintained regular routines as much as possible and retained a daily schedule for self-including sleeping, meals and activities. I have stayed socially connected by talking to near and dear ones using the telephone, video calls or messaging. Staying in university campus is an advantage as I could take regular walk and exercise, of course, following the govt. guidelines. Also now I could spend some quality time with my son. My role as an academician, administrator, mother keeps me almost entire day occupied, however, now find some time for my hobbies and to do my research work.
Prof (Dr) Amit Jain: Though It was a nationwide lockdown due to the pandemic, it was also an opportunity to read, reflect, revive, and rejuvenate oneself. The faculty and staff members including myself were not behind in terms of keeping themselves updated and self-develop. We undertook online courses and certifications available at online platforms. It was a time to build skills and sharpen the saw. The situation was full of chaos and confusion, but routines for faculty and students were made very structured beginning with online yoga session, pranayama, and meditation sessions during morning hours followed by regular classes in the afternoon and industry webinars during evening hours. In difficult times like this it is important to keep our immunity intact and keep oneself emotionally and physically fit. I ensured constant touch and communication with the team through online meetings to ensure that they stay motivated and do not get perturbed by environmental changes. I personally wrote appreciation letters to team members for their dedication and contribution during the pandemic.
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Prof. (Dr.) Amit Jain is Currently Pro-Vice Chancellor at Amity University Rajasthan. He holds a Ph.D from Sardar Patel University and has completed FDP from IIM Ahmedabad.
Prof (Dr) Saroj Bohra is Director, Amity Law School, Jaipur. Her qualifications include B.A.,LL.B (Gold Medalist), LL.M., Ph.D.
Satyam Thareja is a post-graduate of Indian Law Institute, New Delhi (2015) & graduate of National Law University, Jodhpur (2012), practicing as an independent legal professional in Delhi. He is also an Advocate-on-Record at the Supreme Court of India.
Q. What are the practice areas that you specialise in? Could you talk about some interesting cases that you have worked on?
Immediately after graduation in 2012, I got to work as a Law Clerk-cum-Research Assistant at the Supreme Court of India in the office of Retd. Justice R. M. Lodha, who later became the Chief Justice of India. Thereafter, I got an opportunity to work as an associate in the Chamber of Mr. Sidharth Luthra, Senior Advocate & Former Additional Solicitor General of India. Since 2016, I have been working independently on matters pertaining to criminal law with focus on criminal trials. Apart from that, I have been rendering assistance to my father Mr. GP Thareja who retired as a Judge and now actively practices in Delhi. My experience with him gave me additional exposure to criminal law, apart from exposure to nuances of the Delhi Rent Control Act and the Code of Civil Procedure.
During this time, I also got an opportunity to assist the Hon’ble High Court of Delhi in matters titled Satya Prakash v. State (Crl. Rev. Pet. No. 338/2009) & Rajesh Tyagi v. Jaibir Singh (FAO No. 842/2003) in which matters the Hon’ble High Court laid out the procedure to be followed by the Motor Accidents Claims Tribunals established in Delhi, providing inherent safeguards to keep a check on fraudulent claims.
Q. Last month, the Madurai bench of the Madras High Court observed that it is high time the stakeholders had a rethink on fixing the driver of the big vehicle as a tortfeasor in cases of road accidents involving big and small vehicles. The bench pointed out that it may not always be right to hold the driver of the big vehicle responsible for the accident. As a lawyer with expertise in cases pertaining to the Motor Vehicles Act, what is your reaction to this observation?
The issue identified by the Madras High Court is a pertinent institutional issue. In a case where death has occurred, the attitude of all stakeholders is influenced by the thought of a likely economic crisis which the family of deceased is likely to face. Since, it is a rarity that a bigger vehicle faces more damage, leave apart death, the issue identified by the Madras High Court comes into play. In fact, I have come across cases in which despite it being documented that deceased motorcycle rider had alcoholic breath and was not wearing a helmet, the driver of the car was prosecuted to give an opportunity to the family of deceased motorcycle rider to get compensation under the Motor Vehicles Act, 1988. The Supreme Court of India, in several matters, has identified and addressed the issue of non-prosecution of traffic violations but it is yet to give guidance for adopting a tougher stance qua issue of accountability for contributory negligence in motor accident cases by Courts.
Q. Recently, a plea was filed in the Delhi High Court challenging the constitutional validity of Section 14(1)(h) of Delhi Rent Control Act, 1958. It said the DRCA is biased in favour of tenants, and in the present day the tenant-landlord dynamics are not the same as they were in the years after independence. The HC issued notice on this plea. What is your opinion on the plea’s contention?
The Delhi Rent Control Act, 1958 (“DRCA”) was enacted to protect those tenants who were victim of partition and had to re-establish their family in Delhi. DRCA, as legislated, dealt only with residential properties. This position was, however, changed by the Supreme Court of India, by exercise of jurisdiction under Article 142 of Constitution of India, in Satyawati Sharma (Dead) By Lrs v. Union of India (Civil Appeal No. 1897 of 2003) in which the Supreme Court dealt with a challenge to Section 14(1)(e) of Delhi Rent Control Act in relation to a property which was residential in character but was rented for a commercial purpose. The plea qua Section 14(1)(h) of DRCA seeks an extension of the same principle as laid down in Satyawati Sharma (Supra). It would be wrong to state that DRCA is biased in favor of tenants, as protection of tenants was the very purpose of enactment of DRCA. It might be justified to say that DRCA has served its purpose.
Q. What advice would you give to lawyers who want to crack the AOR exam?
The AOR exam is very difficult to crack. On account of lapse of five years or more since graduation, one loses the ability to study and attempt / write lengthy examinations, which itself becomes a hurdle. I found it more difficult for myself since I was spending most of my time before the District Courts in Delhi. Since it needs weeks (if not months) to prepare, I would suggest to the aspirants to put technology to use and keep the reading material for AOR examinations on Kindle and / or I-pad or any other tablet, to read whenever they get time every now and then. Further, aspirants can consider copying relevant paragraphs from judgments on rough paper as it would not only help in creating a memory as to what the particular judgment states but also make their writing speed better.
Q. Considering the disruption caused by the Covid-19 pandemic in the functioning of courts, in your opinion what kind of technological upgrade is required to ensure uninterrupted and efficient functioning of the courts and of lawyers’ practice?
The pre-covid judicial system faced many issues which, inter-alia, included massive consumption of paper and ever-increasing footfall in Courts. This pandemic created a necessity which compelled the Courts to address both these issues. In my opinion, the hybrid system via VC hearing should be incorporated as part of the system as such, at least for basic miscellaneous hearings. Every day many matters are listed for miscellaneous work or procedural applications which can be easily addressed via VC hearing. As regards E-filing, it is an apposite step for a simple reason that at least the wastage of paper in effecting service via different modes is prevented. What is needed is an upgradation in IT infrastructure available with the District Courts to enable effective and smooth functioning of hybrid system via VC hearing.
Q. Do you think Artificial Intelligence and legal technology in legal research can be helpful in improving the efficiency of the judicial system?
Yes. Legal research is a time-consuming job. It is something every role-player i.e. lawyer, judge & academician, has to do independently. It is, therefore, imperative that every effort is made to reduce the time period taken to consume the same. Artificial Intelligence can go a long way in doing that.
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Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Exploring The Right To Be Forgotten & Its Relevance In India’s Digital Landscape
By Shivender Kumar Sharma
By Shivender Kumar Sharma
The "right to be forgotten" has emerged as a crucial legal right in the digital age. It refers to an individual's right to request the removal of their personal information from the internet. This right is based on the principle that individuals should have control over their personal data and the right to be able to move on from past mistakes or embarrassing incidents that are no longer relevant to their current life.
The right to be forgotten is particularly important in a world where social media, online search engines, and other digital platforms, hold vast amounts of personal data. In the absence of this right, individuals would have limited control over their personal information, leaving them vulnerable to identity theft, cyberstalking, and other forms of online harassment.
The European Union (EU) was one of the first governing bodies to recognise the importance of the right to be forgotten. In 2014, the EU's Court of Justice ruled that individuals have the right to request the removal of personal data from search engines if the information is inaccurate, irrelevant, or no longer necessary.
The EU's decision sparked a global debate about the right to be forgotten and its implications for freedom of expression and access to information. Some argued that the right to be forgotten could be used to censor legitimate journalism and limit the public's right to know about important issues.
However, the right to be forgotten is not an absolute right. It must be balanced against other fundamental rights, such as freedom of expression and access to information. For example, if information is of public interest, such as a public figure's criminal record, it may not be possible to remove it from search engines.
The right to be forgotten is also not a panacea for all digital privacy concerns. Individuals must still take steps to protect their personal data online, such as using strong passwords, avoiding public Wi-Fi, and being cautious about sharing personal information on social media.
The right to be forgotten is a legal concept that allows individuals to request the removal of their personal information from online platforms and search engines. This right is based on the idea that individuals should have control over their personal data and should be able to determine how it is used and shared.
The right to be forgotten is not an absolute right and must be balanced against other rights such as freedom of expression, public interest, and the right to access information. However, in certain circumstances, the right to be forgotten may be considered an essential right.
For example, if an individual’s personal information has been unlawfully obtained, used for fraudulent purposes, or is causing them harm or distress, the right to be forgotten may be essential to protect their privacy and personal safety. In these cases, the right to be forgotten can be a powerful tool for individuals to regain control over their personal data and protect themselves from harm.
Additionally, the right to be forgotten can be essential for individuals who have been the victim of cyberbullying, revenge porn, or other forms of online harassment. In these cases, the right to be forgotten can help individuals remove harmful and embarrassing information from the internet and prevent further harm to their reputation and mental wellbeing.
The right to be forgotten can also be essential for individuals who have made mistakes in the past and wish to move on with their lives. For example, a person who has a criminal record may find it difficult to obtain employment or housing due to their past mistakes. The right to be forgotten can allow individuals to have their past mistakes removed from the internet and start fresh without the burden of their past mistakes following them.
Another challenge is enforcing the right to be forgotten. Online platforms and search engines may be based in different countries, making it difficult to enforce the right to be forgotten globally. Additionally, online platforms and search engines may not have the resources to handle the large volume of requests they receive for the removal of personal information.
The right to be forgotten is an essential right in today’s digital age. It allows individuals to protect their privacy, personal safety, reputation, and mental wellbeing. While the right to be forgotten must be balanced against other rights, such as freedom of expression and the right to access information, in certain circumstances, it can be a powerful tool for individuals to regain control over their personal data and protect themselves from harm.
The right to be forgotten is a relatively new legal concept, and its status in India is currently unclear. India does not have a specific law that recognises the right to be forgotten, nor has any case law been established on the issue.
However, there have been several instances in India where individuals have sought the removal of their personal information from online platforms and search engines. In 2017, the Delhi High Court ordered Google and Facebook to remove content related to an individual's alleged extramarital affairs. The court held that the right to privacy was a fundamental right under the Indian Constitution, and that individuals have the right to control their personal information.
In 2019, the Madras High Court ordered the removal of a video that was allegedly defamatory towards a politician. The court held that individuals have the right to be forgotten, and that the removal of personal information from online platforms was necessary to protect an individual's privacy and reputation.
However, it is important to note that these cases do not establish a legal precedent for the right to be forgotten in India. The Indian government has not yet recognised the right to be forgotten in any law or policy.
In addition, India's approach to privacy and data protection is currently evolving. In 2017, the Indian Supreme Court recognised the right to privacy as a fundamental right under the Constitution. In 2018, the Justice BN Srikrishna Committee on Data Protection submitted its report to the government, which included recommendations on the right to be forgotten. The committee recommended that individuals should have the right to request the removal of their personal data from online platforms and search engines under certain circumstances, such as if the information is inaccurate or outdated. The Bill seeks to regulate the collection, storage, and processing of personal data. The Bill includes provisions related to the right to be forgotten, but it has not yet been enacted into law.
In conclusion, the right to be forgotten is an important right in today's digital age, and its recognition in India is still evolving. While there is no specific law governing the right to be forgotten in India, the courts have recognized it in some cases. It is important to strike a balance between the right to be forgotten and other fundamental rights such as freedom of speech and expression. As India continues to develop its laws and regulations on data protection and privacy, it will be interesting to see how the right to be forgotten is further recognized and protected.
Shivender Kumar Sharma is Managing Partner, SKS Law Chambers.
A Case For Mediation In Indian Insolvency Resolution Regime
By Ameya Vikram Mishra & Balram
Linguistic philosopher Buckminster Fuller famously observed that “synergy” is the only word in our language that means the behaviour of whole systems unpredicted by the separately observed behaviours of any of the system’s parts or sub-assembly of the system’s part. Insolvency resolution through mediation is an obvious context for giving meaning to this definition of “synergy” as it furthers commercial sense as opposed to expensive litigation, often followed by liquidation.
Mediation offers several advantages in the process of insolvency resolution. It is a structured process where the mediator is responsible for engaging with various stakeholders and sustaining discussions between them. It allows the stakeholders to share their specific concerns and expectations from the resolution plan. This, in turn, allows them to share their capacity and constraints to compromise in a voluntary and risk-free process.
Why does India need to mediate insolvency disputes?
The synergy of mediation assists the parties in shifting from a claim-based resolution to an interest-based resolution that accommodates the needs of a varied group of stakeholders. Mediation cuts through the formal categorization of classes of creditors. This identifies particular needs of vulnerable categories of creditors who may not be in a position to wait or suffer an impairment, such as small businesses for whom the debtor is their only customer.
As courts are not involved in a mediation process, it offers greater flexibility not only procedurally but also concerning substantive terms, combining informal and formal restructuring options [1]. This often leads to viable commercial arrangements between stakeholders, which increases the probability of value maximisation of the corporate debtor.
Similarly, mediation permits out-of-the-box remedies which facilitates a resolution plan which is more likely to be beneficial for all stakeholders than a conventional resolution/settlement plan comprising asset sales and business interest reconsolidation. Accordingly, a resolution plan reached through mediation (as opposed to an adversarial process) is often more likely to be enforced and complied with by the stakeholders.
As an illustration, under the Insolvency & Bankruptcy Code, 2016 (“IBC”), operational creditors do not form part of the committee of creditors and thus do not vote on resolution plans for the revival of the corporate debtor. However, they often comprise relevant groups such as suppliers and employees. Bringing their issues to mediation will allow them to be heard. The method, emphasizing compromise and win-win possibilities, can aid in relationship preservation instead of litigation. Even if mediation fails to result in a resolution, it can nevertheless promote communication and dialogue between disputing parties.
Mediation is already being used to settle post-resolution issues such as the distribution of a trust created for settlement of creditors in class action claims (such as allotment of property in a development project) and transnational claims—where courts in multiple jurisdictions are involved for settlement of claim and recovery of assets arising in liquidation for creditors located in their respective countries.
What can India borrow from global practices?
India is one of many jurisdictions to confront this issue. The case for mediation in insolvency resolution is apparent from its adoption in various jurisdictions such as the United States, Singapore, Spain, the United Kingdom, and the European Union. Regulations for insolvency resolution in these jurisdictions incorporate mediation at multiple stages and as part of an array of resolution tools that strengthen an effective insolvency resolution framework.
United States
Mediation in insolvency resolution has been used most extensively in the United States. Bankruptcy courts use their inherent powers under Section 105 of the Bankruptcy Code to make rules for mediation insolvency resolution. This effort was consolidated by the Alternative Dispute Resolution Act of 1998, which mandated rule-making by the federal and district courts to use ADR in "all civil actions including adversary proceedings in bankruptcy." Courts in the United States have set up court-annexed ADR programs in bankruptcy resolution, with mediator panels of experienced professionals. The court can mandate mediation under these rules. Mediation has been used for single creditor claims [2], large group claims [3], restructuring plan negotiations [4], and in resolving disputes arising from claims against the debtor [5], recovery of assets of the company [6], as well as in preference actions [7], future claims against the debtor[8], etc.
A provision similar to Section 105 of the Bankruptcy Code may also find a suitable place in India's insolvency law framework.
Singapore
Singapore endorsed mediation into the insolvency resolution process in 2017 to address the same problem. The committee constituted for this purpose had recommended that Judges encourage parties to consider mediation in insolvency disputes. To facilitate this process, existing institutional mediation centers should have a panel of mediators with experience in cross-border restructuring.
Singapore utilized the existing infrastructure at Singapore Mediation Centre (SMC) and Singapore International Mediation Centre (SIMC) to turn them into a global mediation hub. In the case of Re IM Skaugen SE[9], the Singapore High Court emphasized the importance of mediation in insolvency resolution[10]. Establishing a mediation center like the one in Singapore will transform insolvency resolution in India.
Spain
Under the Spanish Insolvency Act, 2013, an insolvency mediator can be appointed in a pre-insolvency resolution process to resolve claims between the creditor and the debtor through the negotiation of a payment plan. If the mediation does not reach a settlement in two months, or on breach of the agreed plan, the insolvency mediator can request the start of insolvency proceedings before a court. A similar mechanism has been designed for small enterprises as well.
The strict timelines for the mediation process must also be adopted in India to ensure that the sanctity of the process is not defeated.
United Kingdom
The United Kingdom has a general policy on mediation as an adjunct to resolving all litigation before courts, including insolvency resolution. The Chancery Court Guide 2016, which sets out the procedures for the Chancery Division of the High Court, including the Bankruptcy Courts, requires the courts to, where appropriate, 'encourage the parties to use alternative dispute resolution,' including mediation and early neutral evaluation (ENE) during insolvency resolution. To enable mediation[11], the courts grant a stay on the proceedings, and the consent of all the parties generally guides the lengths of the stay.
Such practices to promote mediation may also be considered to be adopted by Indian courts even in the absence of legislation.
European Union
In the EU, mediation is used in structuring pre-insolvency workout plans, which are court proceedings aiming to finalize a restructuring agreement negotiated voluntarily and privately ('workout') but did not find the support of all required creditors.
The European Commission Recommendations[12] on a New Approach to Business Failure and Insolvency also suggests that insolvency resolution should be undertaken through the use of a mediator on a case-by-case basis. The World Bank Principles for Effective Insolvency and Creditor Rights Systems[13] also urge mediation in the pre-insolvency resolution/ workout process.
In addition to the foregoing, mediation to resolve insolvency disputes is also prevalent in jurisdictions such as France[14] and Belgium[15].
What can be changed in the existing IBC regime?
Mediation may be availed at various stages in the insolvency process by including specific provisions in the IBC.
Recently, the Supreme Court of India, in Patil Automation Private Limited v. Rakheja Engineers Private Limited, held that the statutory pre-litigation mediation under Section 12A of the Commercial Courts Act of 2015 (“Act”) is mandatory. Any suit instituted violating the mandate of Section 12A must be visited with the rejection of the plaint under Order VII Rule 11 of the Civil Procedure Code, 1908. This power can even be exercised suo moto by the court.
The CIRP under IBC is initiated on a single default without demonstrating the corporate debtor’s commercial insolvency. Therefore, it is submitted that a similar mechanism as specified in Section 12A of the Act should be incorporated in the IBC where both upon notice for payment of debt and after the filing of the CIRP application, the corporate debtor and the creditor in question can work to resolve the claims and disputes, if any, through mediation. Mediation at this stage of the proceedings may help eliminate insolvency applications intended for debt recovery, and invoking the full-fledged machinery of CIRP can be avoided.
In order to strengthen the mediation framework within IBC, it is indispensable that the National Company Law Tribunal (“NCLT”) is conferred with powers to refer a matter to meditation. In exercise of this power, NCLT can direct the promoters and erstwhile management of the corporate debtor to settle through mediation by way of a scheme or plan that accommodates these claims and evaluate it through each creditor or class of creditors. Where the corporate debtor is able to address the multiple claims of creditors, mediation assists in this endeavor, thus ensuring that only genuine cases of insolvency proceed to the resolution process. Mediation at this stage helps renew communications between the debtor and the creditors, including addressing the creditors' resentment of the default and likely impairment and enabling forward-looking arrangements between them.
In circumstances where it is clear that the CIRP has been initiated on account of a lack of cooperation between parties, the NCLT must attempt to refer the parties to mediation. This may be permitted even at appellate stages of the proceedings if required. This is especially important when the corporate debtor is commercially viable and can be run as a going concern.
Further, efficiency and efficacy being the hallmarks of ADR, the mediation process mustn’t be frustrated by undue delays. Thus, provisions for strict timelines for the mediation process, akin to amendments brought (in 2015 and 2019) to the Arbitration & Conciliation Act, 1996 (“Arbitration Act”), may be incorporated. A fast-track procedure envisaged under Section 29B of the Arbitration Act can also go a long way in ensuring the success of mediation in insolvency.
Way Forward for India
India possesses the necessary legal mechanism to promote mediation in the form of Section 89 of the Code of Civil Procedure, 1908, which encourages the resolution of disputes through appropriate ADR methods, including mediation. Even the Companies Act 2013 specifies the establishment of a panel of mediators to which the NCLT may refer relevant matters.
Nevertheless, the inclusion of necessary changes within the IBC remains a crucial decisive step for the success of mediation in this area of disputes.
Besides legislative changes in the IBC, institutional capacity in terms of qualified mediators with experience in commercial disputes is equally necessary. Establishing the International Arbitration and Mediation Centre in Hyderabad is a welcome step. However, it is important that the government provides necessary administrative support to such initiatives. The market for insolvency experts has proliferated in India, and permitting mediation with the CIRP process will encourage many insolvency professionals to qualify as mediators and assume these responsibilities.
The authors are presently working as Associate(s) in the office of Justice A.K. Sikri, International Judge, Singapore International Commercial Court and former Judge of the Supreme Court of India. The views/opinions expressed in the transcript are personal and do not represent the views of our employer or any other firm.
[1] See European Law Institute—Rescue of Business in Insolvency Law (2014-17), Available at:
https://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/Publications/Instrument_INSOLVENCY.pdf
[2] In re Sacred Heart Hospital of Norristown, 190 B.R. 38 (Bankr. E.D. Penn. Dec. 20, 1995).
[3] The Lehman Brothers case. See also, Nancy A Welsh, 'Integrating Alternative Dispute Resolution into Bankruptcy: As Simple (and Pure) as Motherhood and Apple Pie?', Nevada Law Journal, Vol 11:397, Spring 2011, p. 397, on the difficult decisions arising in mass claims against the debtor in bankruptcy.
[4] In re Public Service Co. of New Hampshire, 99 B.R. 177 (Bankr. D.N.H. 1989).
[5] In re P.A. Bergner, Case Nos. 91-05501 to 05516, Order Approving Implementation of An Alternative Dispute Resolution Procedure Including Mandatory Mediation (Bankr. E.D. Wisc. Feb 11, 1993).
[6] See Dennis C. O'Donnell, Transnational Alternatives: Growing Role of Alternative Dispute Resolution in Transnational Insolvency Cases. This paper provides an account of using an Examiner as a mediator in the Eron bankruptcy and Lehman bankruptcy cases. Available at: https://www.iiiglobal.org/sites/default/files/transnationalalternativesgrowingrolesofalternativedisputeresolutionintransnationalinsolvencycases.pdf.
[7] In re Collins & Aikman Corp., 376 B.R. 815, 815-16 (Bankr. E.D. Mich. 2007).
[8] In re Piper Aircraft Corp., 376 B.R. 815, 815-16 (Bankr. S.D. Fla. 1994). Here future claims anticipated against the debtor company but not raised during the bankruptcy proceedings (that resulted in a resolution plan) were structured in trust. 100% of the claims that arose after the bankruptcy proceeding was settled through mediation.
[9] Re IM Skaugen SE, [2019] 3 SLR 979.
[10] The High Court held that, at para 98
"98. ….[T]he mediator can assist to iron out many of the wrinkles and creases that frequently erupt in a restructuring and which perhaps are not best resolved in the adversarial cauldron of the court. It is important that this be explored with vigour, as it seems to be as it seems to me to be self-evident that bridging differences and the trust divide is fundamental to a successful restructuring outcome…"
[11] Including settlement conferences by the Judges, who will thereafter cease to hear the matter unless all parties agree.
[12] European Commission Recommendations[12] on a New Approach to Business Failure and Insolvency, 12 March 2014, Vienna. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32014H0135, last accessed on 13 October 2022.
[13] Available at:https://www.worldbank.org/en/topic/financialsector/brief/the-world-bank-principles-for-effective-insolvency-and-creditor-rights, last accessed on 13 October 2022.
[14] The French Commercial Code has a three-stage process for insolvency resolution using mediation. Under 'Mandat ad hoc', a mediator is appointed by the court at the request of the corporate debtor.
[15] Under the Belgium Act on the Continuity of Companies, a company intermediary assists in negotiating between the company and creditors to restructure debts.
Yaksha Prashnas - The Vexed Questions of Caste and Sword Marriage: What the Madras High Court Said in the Judgment of 1924
By Jayant Mohan
In the case of Maharaja of Kolhapur Vs S Sunderam Ayyar, the following issues arose and were decided:
a) What is the status of the Raja's offspring by sword-wife mothers in this family? Are they legitimate or illegitimate? Are sword-wives a species of inferior wives or kind a of super concubines?
b) Is the family, to which the late Raja of Tanjore belonged, a family of Kshatriyas or Sudras?
1. ‘Yaksha Prashnas’ or the vexed and unanswerable questions as stated above arose for the Indian Judges in pre-independence India with the interplay of the Indian Princes and Rulers Religious Beliefs, Customs with History and Legal System regarding Succession and Marriage Laws of the Maharajas and Princes. It is most interesting as to how the said issues were dealt with and judgment rendered by Secular Court of Law regarding Questions of Religion and History .
‘Yaksha’ in Vedic Mythology denotes ‘the benevolent spirit’. In Mahabharata the story of Pandavas at the end of their 12 year exile occurs known as ‘Yaksha Prashna’ which is a question-answer dialogue between Yudhishthira and the ‘Yaksha’ or ‘Noble Spirit’.
The story goes that the Pandavas were very thirsty in the middle of wild forests. Nakul, Sahdev, Arjun and Bhima went in search of drinking water. They reached a beautiful lake, each one after the other, and died after drinking water from the lake. They had ignored the warnings of the White Crane guarding the lake to first answer the questions and only then drink water.
Finally, when Yudhishthir reached the beautiful lake looking for his brothers, the White Crane reiterated the warning that anyone drinking water from the lake must answer his questions beforehand otherwise they will die. Yudhishthira agreed to answer the questions of the White Crane.
Thereafter, the Crane turned into a ‘Yaksha’ or ‘Noble Spirit’ and started asking 125 questions on God, Religion, Philosophy and Dharma which Yudhishthira answered.
The Answers of Yudhishthira made the ‘Yaksha’ very happy and he revived all the Pandava brothers back to life.
Then, the Yaksha revealed his true form of Yama-Dharma or ‘God of Death’ being the father of Yudhishthira and blessed him that the Pandavas will be protected because the eldest Pandava follows the path of Dharma (righteousness) and deserves the title of ‘Dharma Raj’ or ‘Most Pious One’.
Similarly, ‘Yaksha Prashnas’ arose for adjudication before the Courts in colonial pre-independence India between Queens Proclamation in 1858 and 1947 when India became independent.
QUEEN VICTORIA’S PROCLAMATION OF 1858 AND RESPECT FOR LOCAL CUSTOMS
In the aftermath of the 1857 rebellion, the British Government passed the Government of India Act, taking over direct control of the administration in India from the East India Company.
Queen Victoria’s Proclamation held on 1st November, 1858 at Allahabad granted to ‘the natives of our Indian territories’ the same rights as ‘all our other subjects’ and, among other things, promised to support religious toleration, to recognize the ‘customs of India’, to end racial discrimination and to ensure that ‘all shall alike enjoy the equal impartial protection of the law’.
This respect for ‘Customs of India’ was a significant shift from the previous
policy of the doctrine of lapse being followed by Lord Dalhousie under the East
India Company Rule to annex the kingdoms of Indian Princes and Rulers who
did not have a proper male lineal heir to the Ruler.
Under the Policy the British annexed the state of Satara, Jaitpur, Sambhalpur, Nagpur and most importantly Awadh (Oudh) between 1849 to 1856 which was one of the main causes of the Rebellion of 1857 against the Company Rule resulting in widespread violence and deaths of English persons, which undermined British authority.
Therefore, under the direct rule of Queen Victoria, the British Officials and the Administrators were very careful in dealing with the succession rights of Indian Rulers and Princes and the matters of succession were inevitably settled through the intervention of Courts.
The interplay of the Indian Princes and Rulers’ religious beliefs and customs with the orders and proclamations issued by British administrators resulted in complicated legal status of the heirs and inheritance was always heavily contested in the Courts of Law.
The Law Courts were called upon to decide such complex historical, social and mythological questions like what is the ‘Caste’ or ‘Gotra’ of Rajas or ‘Validity of Sword Marriages’ etc.
THE CASE WHERE THE ISSUE WAS THE CASTE OF SHIVAJI THE GREAT
At the crossroads of history, law and religion was one such succession battle between various claimants to the private properties of the Raja of Tanjore which came to be decided by the Madras High Court in the case of Maharaja of Kolhapur Vs S Sunderam Ayyar decided on January 21,1924.
The decision was rendered on 21st January, 1924 by the Madras High Court regarding succession of the magnificent Tanjore Fort and personal properties of the last Maharaja of Tanjore who had passed away in 1855.
The said first appeal arose from the decision of Subordinate Judge-Tanjore dated 2nd July, 1918 where amongst the 72 issues decided by the Judge were the two questions mentioned in the beginning which stand out for their unique complexity;
Sword Marriage’ was a prevalent form of marriage amongst the ruling Maharajas and Princes of India where many women were married to the sword or the dagger of the Raja, sword representing the Raja or the King. Such form of marriage was prevalent amongst the Kshatriyas because the sword or dagger was representative of the Kshatriyas whose profession was of arms. There was no giving away of the bride to the groom, treated to be an essential feature of marriage.
‘Sword Marriages’ were treated by the Pandits to be ‘Gandharva Marriage’ (a marriage importing amorous connection found on reciprocal desire) form, being that there was no giving away of the bride.
Recently, a popular Hindi movie ‘Bajirao Mastani’ on the romance between Bajirao Peshwa (1700-1740), the Maratha King, with Mastani (1699-1740), daughter of Maharaja Chhatrasaal of Bundelkhand, has been portrayed on screen. Mastani was the second wife of Peshwa. Many historians are of the view that Mastani was married to the sword of Bajirao Peshwa in Bundelkhand and later on was brought to Pune, the seat of Peshwa, to cohabit with him as his second wife.
The Bench which decided the Appeal before the Madras High Court comprised of the officiating Chief Justice Charles Gordon Spencer and Justice Kumaraswami Sastri. The most fascinating aspect of the process is how a British Judge (the officiating Chief Justice) decided the complicated issues pertaining to Indian history, mythology and religious beliefs and customs. Remarkable erudition, research and scholarship is evident from the reading of the decision. Justice Kumaraswami Sastri agreed with the opinion of Justice Spencer but wrote a separate judgment detailing separate reasons and supporting the conclusions of officiating Chief Justice.
The Judgment of Charles Gordon Spencer starts with the following line
“In A.D. 1674 during the reign of the great Mogul Emperor Aurangzeb, Ekoji alias Venkaji took Tanjore from its Nayak Rulers without firing a shot.
….In 1677 the forces of Ekoji and those of his half brother Sivaji came into conflict but by a compromise the former was allowed to retain Tanjore. In 1680 Sivaji got Tanjore and other territories ceded to him by the Bijapur Government, but in the same year Sivaji died and Ekoji retained his-hold on Tanjore.”
With the aforesaid Words, the Judgment proceeds to narrate the factual background which was the subject matter of the case being the ‘suit property’ namely the magnificent Tanjore Fort and Lands which were the personal properties of the Maharaja of Tanjore.
FACTUAL BACKGROUND OF THE CASE
On one side was the successors of Sivaji the great - the founder of the Maratha Empire in Deccan India represented through Maharaja of Kolhapur claiming the suit property. On the other side were the Successors of Ekoji (half brother of Shivaji) and Maharaja of Tanjore claiming rights by succession in the personal property of Ekoji. The successor of Ekoji being Last Ruler of Tanjore (Sivaji) passed away in 1855.
Since the last Maharaja of Tanjore did not have a male heir, he married 17 women in one day through ‘Sword Marriage’ in 1851 in a desperate attempt to get male heirs.
On October 29th, 1855, he left 15 Ranis, two legitimate daughters, a mother, 60 women living in a seraglio called the Mangala Vilas, of whom 40 aspired to be called sword wives in distinction to the dancing girls who were ordinary concubines, and 17 natural children begotten by the Raja through sword wives, six of these children being males
The British Government declared the Raja of the Tanjore State to have lapsed and vested with the Government of India as he did not leave behind a male heir.
As far as the personal properties of the Raja of Tanjore, namely the Tanjore Fort and the lands and other properties of the Maharaja of Tanjore were concerned, the Government of Madras issued a Government Order in 1862 handing over the Estate to be managed by the Widow of Raja of Tanjore namely Kamakshi Bai for management and control. The Government Order also mandated that on the death of the last surviving widow the Property will devolve upon the daughter of the Raja or failing her the next legal heir of the Raja.
Kamakshi Bai, the widow of the last Raja of Tanjore, died in 1912.
The receiver on July 8th, 1912, instituted this interpleader suit to decide who was entitled to take the estate making the adopted son's sons, the daughter's adopted grandchild, the sons and grandsons of the Raja by his sword wives, distant agnates including the Maharaja of Kolhapur, the descendants of the last ruler of Satara and of the Patel of Jinti, and remote bandhus, in fact all possible claimants, parties to the suit. The trial commenced on July 2nd, 1917 before the Subordinate Judge, Tanjore and judgment was pronounced on July 1st, 1918, after voluminous evidence had been recorded and innumerable exhibits admitted.
How the issue of validity of Sword Marriages and rights of the Children born out of such marriages was decided
While deciding on the vexed issue of validity of sword marriage and legitimacy of children born out of sword marriages, the court considered the voluminous evidence as well as primary sources of information such as historical accounts, treatises by scholars and literary and official accounts regarding practices and customs of ‘Sword Marriages amongst the Ruling classes’ was taken into account;
In the aforesaid background the issue of Caste of Ruler of Tanjore from Ekoji being half brother of Shivaji the Great came to be decided by the High Court. The Court relied upon evidence and materials to conclude ‘Sword Marriages’ were in fact a valid form of marriage but only amongst the Kshatriyas.
The High Court disagreed with the finding that Sword Wives was a valid form of marriage in the family of Raja of Tanjore but the status of Sword Wives was that of inferior wives. Therefore, the children born out Sword Marriages are ‘illegitimate’ and only entitled to be given shares reserved for illegitimate sons as per Hindu law and held that Sword Marriages were a valid form of marriage amongst Kshatriyas.
The High Court disagreed with the approach of the Subordinate Judge and held that there cannot be a half-way house regarding legitimacy and illegitimacy. Therefore, it is necessary to find whether the Sword Wives were regularly married or they were concubines whose offspring are illegitimate.
How the Issue of Caste of Shivaji the Great became an issue to be decided by the High Court
The validity of Sword Marriages and the right to inherit for offspring born out of such Sword Marriages will depend on the finding whether the fact that Raja of Tanjore belongs to Kshatriya caste or not since the first Raja of Tanjore i.e. Ekoji was the half-brother of Shivaji and both had common ancestors. Therefore, the issue of caste of Shivaji the Great arose and had to be decided upon.
Historical accounts record that Shivaji the great was the most Powerful Maratha Ruler in the Deccan. He was anointed/initiated by Gaga Bhat, a Brahmin from Benaras, at the age of 47 years in a regal ceremony for coronation of Shivaji the Great held at 6th June, 1674 at Raigad.
While determining the caste issue, three historical facts had to be probed which had arisen from the material on record:
1. Gaga Bhat, a Brahmin from Benaras did the Upananyanam or thread ceremony thereby raising Shivaji to the rank of Kshatriya and conferring on him the title ’Chhatrpati” or “Chief, Head King of Kshatriyas”.
2. Origins of the Mahratta Clan who traced their lineage to the Rajput Rulers from Udaipur (Ranas of Mewar) and the Mahrathas’ claim that they descend from the Ranas of Mewar being the first 96 families who had initially migrated from Udaipur and settled in Deccan.
3. In performing the Upanayana Sanskar of Shivaji there was considerable opposition from other Brahmins and Pandits of the time who claimed that in Kaliyuga there are no kshatriyas because they were extinguished by the Sage Parshuram.
The Veracity of the aforesaid facts had to be ascertained from the proof and evidence on record which the court proceeded with in the following manner;
Upanayanam (Thread marriage) of Shivaji the Great
The Judgment notes from the Satara Gazetter and Kolhapur Gazeteer prepared by the Administrators recording the facts and history of the District and people regarding the Thread ceremony or Upanayanam of Shivaji the Great for which a Pandit from Benaras had been called and he raised Shivaji to the rank of Kshatriya after the Upanayana Ceremony.
“It is a matter of history that Sivaji paid four lakhs of rupees to Gaga Bhat, a Brahmin of Benares, in order to have his upanayanam (thread marriage) performed when he was 47 years of age, and to be raised to the rank of a Kshatriya at the time of his coronation. In the Kolhapur Gazetteer, page 72, it is stated that the descendants of Sivaji. claim to belong to the Kshatriya caste and say that their ceremonies are the same as those of Brahmins.”
The brilliance of the Judge is evident from the way this vexed issue of “Gaga Bhat – A Brahmin from Benaras having been prevailed upon to perform the Upanayam sanskar of Shivaji the Great Maratha Ruler has been dealt with. The Judge considers this one event has been described by three scholars from three different viewpoints in the judgment as follows;
1. As per J Sarkar’s "Shivaji," pages 240-246, that Shivaji underwent a public purification for having omitted to observe Kshatriya rites for long. Thereafter a meeting of Brahmins was held who opposed Gaga Bhat to initiate Shivaji as they asserted that in Kaliyuga there was no true Kshatriya as Sage Parashuram had extinguished them. Gaga Bhat then proceeded to initiate Shivaji in modified form with Vedic mantras overcoming opposition.
2. Mr. Ben in his recent book called Siva Chhatrapati, published while these appeals were awaiting a hearing, that the argument that there were many Sudra kings without any knowledge of Kshatriya rites, though urged for the space of a year and a half, had no effect on Gaga Bhat but that he was finally prevailed upon to crown Sivaji by the plea that he was kind to his subjects, and maintained the true religion (pages 241-242).
3. Subasat's Bakar, page 114, that Gaga Bhat was satisfied by means of an emissary sent to Rajputana that Sivaji's ancestors came from Kshatriya families and that he was a Suddha (proper) Kshatriya is correct.
Despite the three versions of the same event as described by scholars having been noted by the Court it was found unnecessary to give an opinion on the issue of caste of Shivaji on this much vexed question in the following words:
“assuming that Sivaji and his descendants are Kshatriyas, it does not follow that Ekoji, his half-brother, who did not go through the ceremonies of purification and coronation, as Sivaji did, and his descendants are anything more than Sudras”
Therefore, the Court refrained from giving a finding regarding the Caste of Shivaji the Great – Founder of the Maratha Empire.
ORIGINS OF ANCESTRY OF THE MARATHAS BEING 96 FAMILIES DESCENDED FROM THE RANAS OF UDAIPUR
The Court noted the historical claim that Marathas had Migrated from Udaipur and were the Descendants of the Rana of Udaipur from Mewar State in Rajputana :
“The highest class of Mahrattas is supposed to consist of ninety-six families, who profess to be of Rajput descent and to represent the Kshatriyas of the traditional system.”
This theory of the origins of Marathas was considered from the stand point of various historical and literary accounts. Also, voluminous evidence was led before the Subordinate Judge who had rejected the theory of origin of Marathas from Rajputana. The Court was of the view that there is no basis to prove that the descendants of Ranas of Mewar had come to so much distance to the south and found an empire and following finding regarding origins of the Marathas from the Ranas of Mewar regarding ancestors of Rulers of Mahratta Empire and Tanjore State
“On the whole it must be said that historically, genealogically, geographically, socially and ceremonially, the claim of this family to be classed as Kshatriyas has failed and the lower Court's finding on this point must be confirmed.”
In the aforesaid manner the Court affirmed the finding of the Subordinate Judge Tanjore that the Maharaja of Tanjore was not Kshatriya by caste and the claim of successors to inherit the property from Sword Marriage was rejected.
WHETHER NO KSHATRIYAS EXIST IN KALIYUGA BECAUSE SAGE PARSHURAM HAD DESTROYED THEM
In opposition to anointing Shivaji as a Kshatriya, some Brahmins and objected that in Kaliyuga no Kshatriyas exist because Parshuram a Sage had destroyed all Kshatriyas. The said theory is rejected by the Court and concludes that Kshatriyas continue to exist relying upon the decision of Privy Council in Ma Yait v. Maung Chit Maung A.I.R. 1922 P.C. 197 that concept of Caste is dynamic and notes the evolution of Hindu castes by occupation, migration and intermarriage, and new castes have been evolved among the descendants of Hindus are to be considered as having retained in the Hindu religion, and observes that the formation of new castes is a process which is constantly going on.
CONCLUSIONS AND LESSONS IN JUDICIAL WISDOM
In my opinion the remarkable decision shows judicial statesmanship, wisdom and scholarship wherein the Hon’ble Judges had considered the complicated issues of religion and history being ‘Yaksha Prashnas’.
The Court adjudicated with wisdom, logic and legal reasoning on the sensitive issue of ‘caste’ of one of the icons of India - Shivaji who was the founder of the Maratha Empire.
The Judges showed considerable respect and sensitivity of the issue of caste of Shivaji and the far reaching implications it may have on the descendants of Shivaji the Great . Therefore, the Court in its wisdom refrained from recording a finding on whether the caste of Shivaji was Kshatriya or not because the same may cause prejudice to the descendants of Shivaji, i.e. Maharaja of Kolhapur and Satara branches of the family of Shivaji who were parties in the case .
The Approach of the Court as observed from the decision is a shining example for Judges and Lawyers who are involved in deciding upon emotionally charged issues of life, religion and law with poise, dispassionate analysis based on logic and reasoning and most importantly keeping aware of the guiding light the golden words inscribed on the National Emblem of India - The Ashok Chakra with Three Lions namely:
Satyamev Jayate- Truth Always Prevails
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Jayant Mohan is an Advocate-on-Record in the Supreme Court. Practising since 2005, he has varied experience before the Apex Court in matters related to Constitutional and Criminal law, more particularly PILs related to the Environment, Mining Laws and Criminal Cases. He represents the State of Jharkhand before the Supreme Court.
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