Sonam Gupta is Partner at Bharucha and Partners. She is also an Advocate on Record, Supreme Court. Her practice areas include Laws of Crime, Governance, Ethics and Anti-Corruption, International and Domestic Arbitration, Real Estate and Commercial Litigation.

Q. When did you decide to focus your practice on white-collar crimes? What motivated this decision?

My first internship was in an office where the practice was mostly on the criminal side and more focused on the Supreme Court with some cases at the trial court. I got to work on SLPs arising out of criminal prosecutions under different statues like the Indian Penal Code, 1860, Prevention of Corruption Act, 1988, Narcotic Drugs and Psychotropic Substances Act, 1985, Arms Act, 1959 etc. The law of crimes was my introduction to legal practice and, as a law student setting foot in the industry, there was nothing more exciting to me than the criminal side of legal practice. My decision to practice criminal law was made then and there. So much so, that I even did small courses in forensic science, forensic medicine, ballistics, etc., just out of sheer excitement and curiosity to get deeper into the field of criminal law. I used to take leaves from college to attend court hearings of matters on which I had worked during my internship days. I even ended up doing most of my internships at the same office. 

I joined the Bar after a small stint of law clerkship at the Delhi High Court. My initial years of practice were divided between the Supreme Court and the trial court. While I was drafting SLPs and assisting in the hearings, my focus was on what went amiss at trials; and thus, in trials, I focused more on the procedural and evidentiary law, and its implementation in practice. 

The 2G scam trial (a white-collar prosecution based on documentary evidence, as against SLPs arising out of offences affecting the human body) was my first full-fledged trial assignment. 

Criminal trials are indeed fascinating, requiring a lot of hard work and round the clock dedication. At the appellate stages you have to work with the case record that is handed to you, but a trial is a clean slate – an opportunity to strategize from the very inception and knit together your case. 

While focusing my practice on criminal trials was a conscious decision, the choice of white-collar crimes was gradual and driven by increasing number of white-collar crime mandates coming my way. More than me, it was the clients who led me to the decision to focus my practice on white-collar crimes. There was lot on my plate, ranging from small trials to bigger ones.

Q. What are the major challenges that lawyers usually face in cases pertaining to white collar crime and commercial litigation in India?

Most legislations under which white-collar crimes are prosecuted in India are relatively new or have undergone significant amendments lately. There are still grey areas in the interpretation of provisions, both procedural and substantive. Recently, investigating agencies have started adopting a belligerent approach and in this zeal of the investigating agencies, these grey areas come to the fore and have been highlighted. A lot of these questions of interpretation remain pending before the High Courts and the Supreme Court. And while these questions remain pending, the investigating agencies operate unimpeded in a juridical void, with personal liberty and the rule of law continuing to take hits repeatedly.

White-collar crimes and commercial litigation are closely related when it comes to statutes, industry regulations, etc. Another challenge faced by lawyers dealing in these practice areas is the need to have an in-depth knowledge of the industry and sector to which the case pertains. For instance, the coal scam trial would require the lawyer to have an in-depth knowledge of the process of how coal sector functions, mining leases are granted, etc. Similarly, any commercial dispute with respect to coal mining would require the knowledge of the state specific mining leases, relevant laws, etc. While lawyers do take out the time to go into such depth, the judiciary, which is already over-burdened with cases, is unable to dedicate sufficient time to hear each case at length and spend considerable time to appreciate its nuances. Comprehending vast knowledge in limited time is a big challenge. In this context, I believe that setting up of special courts for the 2G scam and coal scam trials is a welcome step, and so is the increasing number of arbitrations in commercial disputes.

Though there are principles in law that guide the exercise of judicial discretion, of late, we have seen a growing trend of unfettered exercise of discretion. The disregard of the guiding principles results in arbitrariness creeping into the system that prevents uniformity in application of law and in judicial decisions. Consequently, the position of law is such that there are strong precedents supporting contrary positions, while rendering the system in a state where one bench is preferred over another.

Lastly, one of the biggest challenges is the public perception of white-collar crimes. As white-collar crimes have lately become the center of public and political discourse, even mere allegation of the commission of such offences gets overenthusiastic coverage in the media and the accused end up facing media trials. This prejudices the populace, which inevitably includes even the legal fraternity. The principle of ‘bail, not jail’, is often seen to be turning on its head. Due to a lack of defined parameters for the grant of bail, judicial discretion carries immense weight, and the perception of the judge hearing the case has a heavier bearing on the outcome than the facts of that case. Not only do media trials affect all concerned in a case but also leave their impact on lawyers. We, as defense counsels often find ourselves facing moral dilemmas, while at other times our conscience, morality, and even patriotism (to say the least) are questioned by the society, including our own families, relatives, and friends from non-law backgrounds. Whenever anybody gets to know about our white-collar crimes practice, the first question, inevitably, is whether our practice focuses on the prosecution side or the defence. The expressions we often see in response to our answer are quite telling of the popular perception.

Q. What sets the white-collar practice at Bharucha & Partners apart from other law firms?

Bharucha & Partners is one of the few firms in India with a standalone Governance, Ethics, & Anti-corruption practice (which also covers our white-collar crime practice). Our clients often approach us specifically for this sensitive subject. 

We are engaged by our clients at the very inception of the case, at a time when the client is anticipating some action by an investigating agency and prior to a chargesheet being filed. We help clients provide complete information to investigators and preclude a charge being framed. Should prosecution nonetheless progress, our clients’ defence progresses on a robust foundation. 

Given that these matters are high publicity-inviting, our quick turnaround times, coupled with a high-quality output, make us a convenient point of call for our clients. We help the client navigate the complexities of investigation, which are becoming increasingly differentiated and dynamic. 

We are regularly involved in the market-leading high-stake matters and are one of the few law firms that assist in all aspects of this practice area. Our key differentiator is holistic lawyering and minimal reliance on external counsels.

Q. What has been the impact of COVID-19 on criminal procedure and law? Are there any key legislative changes? Do you believe that these changes will impact how courts, investigating authorities, and enforcement authorities approach criminal trials?

Although the pandemic has highlighted the need for the legal system to modernize and adopt technological advances, there have not been any legislative changes. The pandemic did affect the administration of justice substantially but the measures taken by the judiciary in response seem to be short-termed and based on the premise that, at some point, sooner rather than later, normal functioning will resume. Meanwhile, trials have come to a halt with no mechanisms in place for recording of evidence through audio–visual modes. The wheels of the criminal justice system, infamously, turn slow, and the pandemic has now exacerbated the delays. 

For the time being, no physical hearings are taking place, no evidence is being recorded and, even through the virtual mode, only urgent matters are being heard. The virtual court system so far seems to be unsustainable on its own as it has limited the access of the bar to the bench and has placed limitations on the way arguments are made. Additionally, lawyers and litigants who do not have access to infrastructure to attend such hearings are left with no recourse. Although the pandemic will speed up the digitization of courts, but, in my opinion, virtual hearings cannot replace but can only supplement physical hearings.

Other than the issues of accessing courts, the pandemic has also raised significant concerns about the rights of people. While the pandemic continues to spread, movement and congregation of people are either prohibited or discouraged. In the midst of all this, prisons remain overcrowded. With the growing number of people being incarcerated, it is practically impossible to enforce social distancing in prisons. Although the High-Powered Committee has taken measures to decongest prisons, the measures do not seem enough. The criteria adopted by the High-Powered Committee to grant emergency paroles or interim bails was based on the gravity of the offence committed by the inmate as opposed to the medical exigencies or specifications of an inmate.

Undertrial prisoners who do not fall under the criteria laid down by the High Powered Committee can still attempt to seek bail from the court on the merits of their own case; but such attempts are usually met by the standard ‘investigation is ongoing’ response from the investigating agencies. Although investigating agencies have been operating throughout the pandemic and have even been filing charge sheets, they have not shied away from using the pandemic as a shield for lack of progress in an investigation. Consequently, bail continues to be denied on the ground that investigation is in process.

It is strange that while the High-Powered Committee has been expanding the criteria to decongest prisons, the investigation agencies have continued to make arrests during the pandemic on grounds of lack of cooperation. In fact, during the unlocking period, there was a sudden spurt of summons for personal appearances before the agencies while travel restrictions were still in place.

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?

Negligent spreading of COVID-19 should and is a crime under the Indian Law. Governments, at both the central and the state level, have taken various measures throughout this pandemic to ensure that the spread of COVID-19 is controlled, and the curve is flattened. To enforce these measures, governments have invoked provisions of the Disaster Management Act, 2005, the Epidemic Diseases Act, 1897, and the Code of Criminal Procedure, 1973. Such measures have been of a varied nature ranging from placing restrictions on people’s movement to avoiding congregations. 

The orders of the above nature are invariably promulgated by public servants and disobedience of such orders can expose a person to prosecution under Section 188 of the Indian Penal Code. Given the capacity of this virus to spread and the seriousness of the disease, such disobedience leads to a danger to human life, health, and safety, which can be punished by imprisonment of up to 6 months. For similar orders promulgated under the Disaster Management Act, as the stakes are higher, so is the punishment. If the refusal to comply with an order under the Disaster Management Act leads to loss of lives or risk thereof, it is punishable by imprisonment of up to 2 years. 

It is not just the disobedience of such orders that may lead to prosecution, but even without any such orders in place and even without the violation of such orders, if an act has been committed which is likely to spread the infection of a disease that is dangerous to life, it can be punished under Sections 269 and 270 of the Indian Penal Code. While Section 269 applies to negligent acts, Section 270 is applicable to malignant acts; for which reason imprisonment under Section 269 is subject to an upper limit of 6 months while for Section 270 it is 2 years.

With the penal provisions being what they are, individual realization of civic responsibilities is the only way to check further spread of the infection. 

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Ms. Shivani Luthra Lohiya is a practicing Advocate in New Delhi. She graduated from Amity Law School, Delhi and then went on to do an LLM from the University of Pennsylvania Law School and an M.Phil in Criminology from the University of Cambridge. Ms. Lohiya has had an independent practice since 2018 and has recently started a Chamber by the name of Law Chambers of Saluja and Luthra Lohiya. She has a keen interest in criminal law, commercial litigation and arbitration along with other allied laws.

Ms Lohiya, along with other women lawyers, had on January 18 moved the Supreme Court challenging the resumption of physical hearings in the Delhi High Court contending that they were not given the choice to argue cases virtually. On January 22, the Delhi High Court said it has initiated steps for a hybrid system where a hearing can be joined through virtual as well as physical mode. The high court issued an administrative order stating that when a particular bench is conducting virtual hearing, a lawyer may opt for the virtual hearing of a matter by giving prior intimation. 

Q. Why did you decide to file this petition against resumption of physical hearings in the Delhi High Court?

The fact is that the threat of Covid is still very much there. A lot of us lawyers live with parents with comorbidities, many lawyers have children, some themselves live with comorbidities. We all know people who have lost their lives due to the pandemic. Schools are still not open and many lawyers have small children and someone has to be there at home with their children to help them with their virtual schooling. These were the major concerns.

Now that we have waited for nine months for the courts to reopen, another two or three months would not be the end of the world. We can’t at this point be asked to choose between our right to practice, and our duty towards our parents or our children. 

Looking at all these facts, the petition was filed. The larger reason was the health concerns. None of us chose litigation to sit behind computers and argue. We don’t want virtual hearings to become a permanent fixture unless it is procedural in the path of progress. But, at the same time, we need to be aware of the realities. Covid still does not have a cure, nor is the vaccine readily available.

Q. Some lawyers have claimed that virtual hearings are creating hurdles in their work and that they want physical hearings to resume so that they can earn a living. How would you respond to this argument?

Of course virtual hearings have created hurdles for many lawyers. A lot of people are not technologically savvy. Many of our senior lawyers had to learn how to use this technology. There are also many people who do not have access to such technology. That’s why we suggested a hybrid system, where lawyers can choose whether they want to argue virtually or by being physically present in the court room. 

Physical hearings are unnecessarily burdensome on the judges during these times as well, as they have to go (when many others are present in court). Many judges are also in the high-risk category. They may have comorbidities. While it is true that in the courts there are screens to protect the judges from any direct interaction, and the judges sit far away (from the others), however, there is some interaction of the public with the court staff, who in turn interact closely with judges. 

The Delhi High Court is hearing only urgent matters. I don’t understand at this point what physically opening up the High Court will achieve when you’re not increasing the number of matters that are being heard. Reverting to the physical system will not help lawyers who are not having sufficient work. If I have to file an application in a pending matter today, I have to show some urgency. It’s not that matters are getting listed or taken up in regular course like they were before. Consequently, the virtual hearing system being done away with without increasing the number of cases, I don’t see how it would improve the plight of the lawyers who want to go physically. 

Another concern, which is not part of the petition, was that a lot people were looking at virtual hearings as the way forward. The courts have come up with some technological advancement. There is a mechanism to conduct hearings via video conferencing and the platform has been working quite well for arguments. I don’t think it has been causing too much of a problem if you have access to the internet. The courts have also established areas within the court complexes itself where people can access this technology. Ultimately, we’re all doing our meetings over video conferencing as well. 

Virtual hearings may actually lead to a more efficient system of Courts’ function. For instance, under normal circumstances very often we have to take a date in one Court because we are physically appearing in another Court. Transport takes time. But this is something for the Courts to consider in the future. That’ll depend on the Court’s discretion. For now, the petition simply said that Covid has not gone. 

Q. A lot of subordinate courts in small cities and towns don’t have the technology that’s available in courts in the metro cities to hold virtual court functions. In a post-covid world, do you think virtual courts are sustainable in the long run?

In my opinion, sustainability (of virtual courts) in the long run is a question mark. It’s a way forward, I think. But whether or not it can be a permanent fixture… at this point there’s lack of (internet) connectivity as well. Not just lawyers, but litigants also may not have access to the technology. And many litigants physically go into the courts to find lawyers. 

There’s nothing wrong with virtual hearings. It’s not that we’re not getting relief, or that judges are not able to understand what’s going on, or that we’re not able to hear each other or understand each other. Yes, there are glitches. Sometimes there’s an internet problem that causes the voice to break, sometimes you’re not unmuted when you have to speak and you’re trying to frantically call the court master saying can you please unmute us. So, there are certain disadvantages as well. But there are advantages which cannot be overlooked. You have to weigh the two. And it’s for the Courts to decide if virtual hearings are sustainable or not in the long run. In my opinion, I think it could be worked out. But it would require a very phased manner of implementation. It just cannot happen overnight. Physical hearings for accused in custody for remand matters are important in the long run and for clients in custody to meet their lawyers when normalcy returns. We’ll have to keep all the realities of the country in check — the level of education, the technology, the support being given by the government. It’s a long-term goal.

In fact, virtual hearings have enabled a lot of people, especially women, to juggle their work and childcare or household responsibilities. I have met women who have had to leave practice temporarily after having children and rejoined after some years. Perhaps they wouldn’t have if there was the option of virtual hearings at that time. 

Q. So would you say that promoting technology in the courts especially virtual hearings can lead to gender inequality in the long run?

That’s an argument people are using, but I won’t go so far as to say gender equality. I think women in litigation have to prove themselves just like any other man. We may have certain additional obstacles, but that doesn’t mean men don’t have any obstacles and that it’s a cakewalk for them. 

Q. Do you think some kind of a gender bias exists in the legal profession, like in many other professions, and that women lawyers have to work harder than men to prove themselves, even though men may have their own share of problems?

I think to some extent, yes. But it’s also because of the role of women in society that exists in people’s minds. It’s less to do with the profession and more to do with the mindset of people. It’s not that the profession is not meant for women. 

Q. How has the pandemic affected you personally — as a lawyer, and as a woman?

I do a lot of criminal law, particularly criminal trials and trials have not been taking place, evidence was not being recorded. Professionally, it has greatly affected me in that sense. Personally, I have older people and senior citizens in my home so I’ve had to be extremely careful throughout the pandemic. Some of my close friends have lost family members to Covid. That, of course, is a hazard of this pandemic that everyone is facing. It has been a blessing to have the judiciary balance the needs of the lawyers as well as the litigants by introducing a system of virtual hearings in the first place and thereafter, by considering introducing a hybrid system, giving an option to lawyers to appear through virtual / physical hearing.

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Vibhanshu Srivastava specializes in dispute resolution and has diverse experience in handling a vast array of Litigation and Alternative Dispute Resolution matters arising out of corporate/commercial transactions, tender-preconditions and terms, winding up of a company, oppression and mismanagement, intellectual property disputes and real-estate dealings. He advises clients on formulating effective strategies for dispute resolution and appears frequently in the Supreme Court, various High Courts, Commercial and Arbitral Tribunals and Consumer Courts.

Q. Could you tell us about Risis Legal, the areas of practice and your clientele. 

The metro cities in India have come to a saturation point and in the past decade India has seen a rise of its state capitals which are becoming economically more prosperous and hence there is an increased demand for professional services. 

Risis Legal was conceived in 2016 with a vision to provide professional and reliable legal services to businesses and individuals not only in new and emerging areas of law but also in traditional practice areas. Since its conceptualization the firm has withstood the challenges and has also undergone structural changes and today the firm stands with three partners who work closely with each other and at the same time individually lead separate areas of practice for the firm—Service, Electricity and Real Estate Laws, Arbitration and Commercial Litigation and well as Traditional Civil Practice and advisory on emerging areas of law. With such a diverse practice the firm is uniquely placed to cater to clients with a range of legal needs. While the rules of conduct of bar council do not view kindly the disclosure of one’s clientele, however, we can certainly disclose that Government Corporations, major consumer electronics company, major FMCG manufacturers, Automobile companies, e-commerce company and high net worth individuals are all our clients.  

Q. What are the major challenges that lawyers usually face in cases pertaining to corporate and commercial litigation as well as white collar crime in India? 

This is not a question which is as straightforward as it looks. The challenges that lawyers face can vary from jurisdiction to jurisdiction. Again, in the past decade there have been frequent changes to commercial and corporate law, the new Companies Act has been introduced, the Arbitration Act has undergone huge amendments, the Taxation regime has changed, the commercial courts Act and the IBC have been introduced and therefore the whole practice of commercial litigation has changed considerably. This change has unfortunately not been properly absorbed in smaller metropolitan regions and the lawyers are still likely to face courts which are not exactly aware of these laws. Further, the courts where the seat of original civil jurisdiction still lies with the lower courts, the general delay in matters being heard and disposed of put up a real challenge before the lawyers.  Further, the execution of the awards/decrees in these matters still remain a challenge clearly because the execution still lies with the traditional district administration, dealing with which is a huge task. 

Q. Alternate Dispute Resolution is being perceived as being immensely helpful in lessening the judiciary’s burden. In your opinion, what is the future of ADR in India?

These are two questions in one. The judiciary in the country is so over-burdened that a single Act alone in not going to help it lessen its burden. What plagues the judiciary is not just the sheer volume of matters but also shortage of judges, lack of proper infrastructure, the ever reluctant executive,  and continuous creation of new laws by the legislature without realizing that every new law burdens the judiciary. This being said, I do believe that ADR has definitely sped up the system of resolving and adjudication commercial disputes. It has definitely brought in the much needed flexibility to the system. However, a lot of matters do get stuck at the execution stage but I believe there are some things that we have to live with. 

And yes, as far as the future of ADR in India is concerned, it is bright. A little more transparency would go a long way in making it widely acceptable.  

Q. The current pandemic has digitalised the legal proceedings. How was your experience of virtual litigation? What do you think are the positives and challenges in virtual hearings?

It has been a very mixed response! At times, the VC Court proceedings have helped me multitask. I’ve attended VC hearings while travelling, soon after rushing out from other Court/Tribunal (which would otherwise be difficult had both the Courts been working physically) and the likes. Besides, there have been days on which I waited whole day for single virtual appearance and the VC link for the same, but eventually got disheartened because of server errors. Seems like “server is down” is not only true for our banks but also our courts. But eventually I won’t complain as technology is prone to faulter and besides, arguing before the Judge over a phone call (made by the Bench Secretary of the Court) has its own share of fun.

Q. Lately, Media Trials have assumed great significance. Do you think that trial by media is a hindrance to fair investigation? If yes, then what role can the laws play to restrain the media from indulging in such trials?

Truly, at best they help scandalizing the whole affair and rest these cheap media trials are good for nothing! Media houses are calling to be regulated and there’s no better time to subject them to strict vigil.

Q. Do you think Artificial Intelligence and legal technology in legal research can reduce the burden of lawyers and improve the efficiency of the legal system? 

Artificial intelligence has become all pervasive. It is there in our daily lives and therefore the legal profession is not going to be untouched from it. Lawyers are already taking help of legal research tools that learn and adapt. There are also tools that sort the documents for you,  mark there relevant portions and such tools are already reducing the burden of clients. New technologies such as Blockchain will also ensure that manipulation at the level of the government is also reduced which means that the efficiency of legal system will improve. 

I can name a few tools but I guess that would be free promotion for them.  Also, I wish there is an AI system that can help lawyers get their legitimate fee from the Client.

Q. What advice would you like to give to young lawyers who are starting their own practice/law firms? 

There is a universal advice that applies to almost all walks of life and that is honesty and hard work. And by hard work I don’t mean mindless slogging but being dedicated to your work. And one more advice for the hardworking lawyers — Never take your personal life for granted; no client is worth giving up your peace of mind. 

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Dr Subhajit Basu, FRSA is Associate Professor in Information Technology Law (Cyberlaw) at the University of Leeds School of Law, UK. His areas of expertise are Regulation of Emerging Technologies and Cyberspace, Regulation of ‘Internet of Things’; AI, Big Data, Health Data, Autonomous System; Online Harm; Data Protection; Privacy, Freedom of Expression. He is a Fellow of the prestigious Royal Society of Arts, London. 

Q. You pursued your law from the Faculty of Law, Calcutta University and practised as an Advocate in India for sometime. Thereafter, you decided to get into academics. Was this a conscious decision? What was the reason behind this shift? 

Yes, it was, I had a rather enjoyable time while I practised in Calcutta, mostly at the High Court. I started working as a junior, even when I was a law student. I found everything about the profession quite satisfying, I was never bothered with the long hours, I spent endless hours either in my Senior’s Chamber or in conference with counsels. As you know, the legal profession requires dedication, it is demanding, and the pay is not always great when you start. But the profession can, at times, feel monotonous, and I felt everything moves at a snail’s pace most of the time. As I have written in articles, the Indian legal system is infamous for being clogged and overwhelmed, leading to lengthy and expensive delays; it can discourage even the innocent from fighting. We are taught in the Law Schools that justice delayed is justice denied, but precisely the opposite happens in our judicial system. Some of our laws are archaic, and procedures are overly complicated, making the legal redressal unnecessarily expensive out of reach for most of the people. I started feeling I was making a very limited contribution to the profession (not that anybody cared if I didn’t) and I could not see myself spending my whole life without trying to do something different. 

Technology, particularly computers (the Internet was a very new concept in India) at the time, always excited me. I love innovative technologies even now. I was spending more time in British Council Library reading about the Internet, what it is capable of doing, that it is the future and a concept called “Electronic Commerce” (please remember in those days it was still a very nascent concept even in Europe) and more I read about it, more I became interested in it. However, I also found that e-commerce was creating a legal minefield. Law is about enforcement, and e-commerce would have made enforcement nearly impossible in certain areas, particularly in the area of consumption taxation, resulting in inequitable sharing of tax bases between countries. I approached Prof Richard Jones of Liverpool John Moores University who was one of the few academics at that time in the UK who was keen to supervise students interested in research on Information and Technology Law. I was one of the very few students at that time researching Information and Technology Law and became one of the first to do a PhD on the broader subject area. In those early days, most of the academics working on IT Law were actually IP Law experts who developed an interest in IT Law (Cyberlaw as it is now commonly known). In fact, I exchanged several emails with the then IB Minister Late Shri Arun Jaitley discussing and raising my concerns about that time, India’s proposed Information and Technology Act 2000. Incidentally, my co-authored articles on the Indian legislation again were among the first written on the subject from an academic point of view, first one published in 2003 (https://works.bepress.com/subhajitbasu/9/) and the second one published in 2005 (https://works.bepress.com/subhajitbasu/4/). 

Q. You have done your Bachelors from India and PhD from Liverpool John Moores University. You are now an Associate Professor at the University of Leeds, teaching Information Technology Law (Cyberlaw). What significant difference do you experience in the field of legal education in India and in the UK? Where do you think India needs reforms, as far as legal education is concerned?

I am an Associate Professor in Cyberlaw. I am Chair, of British and Irish Law Education and Technology Association and Managing Editor of International Review of Law Computers and Technology (one of the oldest and perhaps the most reputed technology law journal in Europe) 

Once started doing my PhD, I was also supposed to do teaching as part of it, very soon I realised that it is something I really enjoy doing, would love to continue to do if I get an opportunity (getting an academic job in the UK was the burning issue, it was not easy then and it is not). The legal education during my Law School days and it continued for a long time even in the National Law Schools as I understand from my close connection with few of them focused (to some extent still focus) on spoon-feeding the legislations, learning them by hard so to say. It rarely inspired/ inspire students to be critical thinkers, question the law, think about the reasons behind the law, understand the policies (but there must be policy-driven legislations for that purpose). Not many law academics or students would read about parliamentary debates that went on during passage of a Bill or read committee reports. Then again, not many whitepapers or consultation papers get published before legislation (I would consider the Data Protection Bill to be an exception). 

Research-focused teaching or research-inspired teaching rarely happens in India, and where it happens, the academics are incredibly reluctant to push the boundaries. I have examined PhD thesis (a good few them over the years) from India, which I thought could have been a lot better if students had thought a bit outside the box. Indian policymakers and the government should ask itself why so many illustrious international Universities have academics of Indian origin shining and enriching the Global North instead of working in the reputed Indian Universities. Legal Education needs to promote rational and tolerant thinking. The delivery (teaching methods) of the education needs to change. The quality of research among academics needs to improve, and the multidisciplinary approach which the National Law Schools have developed needs to improve. 

Q. Since your core expertise is Information Technology Law (Cyberlaw), we would like to understand it from you, that technological innovation is reshaping the world, however, new developments provide new opportunities to offenders. New methods of committing frauds, cyber defamation, cyber terrorism, transnational organised crimes, frauds relating to intellectual property like copyright, domain names, copy theft etc., have come into existence. In your view, how can we modernise the legal framework for this new digital era and regulate cyberspace?

Technology itself is not the problem, rather it is the use of the technology. Some if not all of these deviant behaviours/crimes always existed in society, cyberspace made them for more efficient (for the lack of a better word). There is no question that new technologies do disrupt communities, families, and lives, but also that historically most of this disruption has been for the better. Most of the time law is reactionary, enforcement dependent. Instead of thinking a “law” as the only mean of regulation which should think about “regulatory framework” and a good regulatory framework will consider safety, explainability, fairness and accountability, for example, GDPR prescribes ‘privacy by design’. In this technology-driven, innovation-driven world law will always play the ‘catch-up’. The question is, how can regulators respond to both challenges and opportunities presented by this technologically driven space without compromising its effectiveness? I am always pro-innovation, and I always argue for the development of regulation which does not have a negative impact on innovation (this is why I like GDPR, legal frameworks need to flexible enough). 

I also think there is another problem we overlook, you know legal systems have been built to fit national boundaries, on the cyberspace, transitional is the ‘new normal’. Moreover, coping with this legal pluralism in the absence of appropriate cross-border frameworks is a challenge for developed and developing countries alike. The challenge is not necessarily how to establish the Rule of Law in Cyberspace but how to cope with simultaneous “Rule of Law”. For example, every country seems to have its own “idea” about regulating Facebook, Twitter. The problem is when Charlie Hebdo publishes a cartoon, its impact can be felt all around the world! So, in order to re-enforce sovereignty, we have faced a “legal arms race” in which new laws are passed in an uncoordinated manner around the world—and creates its dangers and the same time doing nothing is not an option also. However, as I said before, developing legislation will not solve much unless we find ways to enforce them. 

Q. Do you think Artificial Intelligence can transform the legal industry? 

The use of AI within the legal sector has grown significantly over the past decade, with AI tools and techniques being utilised in a plethora of different ways to aid the legal process. Such systems can be seen operating in a number of contexts and in myriad ways. These include the use of AI to facilitate traditional negotiations by allowing parties to weigh the value, monetary or otherwise of a presented resolution so as to quickly and automatically settle low-value disputes or otherwise provide information on similar past cases. It could even predict the outcome of any cases and help judges in the courtroom. 

As an example, some Chinese courts are piloting AI through the collection and comparison of cases for judges to use when drafting their decisions. In the USA, a study has been developed through the use of AI in the courtroom to identify ‘deception’. It is possible to argue that AI is a ‘disruptive legal technology’, but it will significantly contribute to a ‘shift in the legal paradigm’. However, the question then naturally arises concerning what potential adverse effects might be witnessed by applying AI to the judicial. Substantial questions exist regarding whether or not AI in legal systems can be employed in such a way that does not substantially disadvantage litigant parties. No technology can be employed without some inadvertent effect. This is particularly true in the context of AI: if it is accepted that AI system can reach the right decision faster and better than human judges, how could it be guaranteed that the data used by AI to draft a judgment is collected fairly and free of bias? The question then naturally arises in regards which remedies are available so as to ensure the litigant’s right are protected.

Q. When we talk about India, where free speech is not absolute, how do you think freedom of speech and expression can be protected in an age of social media?

The Indian government uses draconian laws such as the sedition provisions of the penal code, the criminal defamation law, and laws dealing with hate speech to silence dissent. These laws are vaguely worded, overly broad, and prone to misuse, and have been repeatedly used for political purposes against critics of the government. The existing laws in India fail to distinguish disinformation from freedom of expression. Also, the inability to differentiate between political opinion and deceit or political vindictiveness makes it challenging to regulate it. So far, instead of genuinely trying to restrict the dissemination of ‘disinformation,’ the hegemonic government is focused on restricting freedom of expression and has proposed laws aimed at undermining privacy and stifling the voices of dissent. 

Q. The coronavirus pandemic has probably hit educational institutions the most. How have you adapted to the lifestyle changes, both personally and professionally, that have been brought about by the pandemic? 

Incidentally apart from working-from-home nothing much has changed in my work life. UK Universities are well equipped to deliver courses online, and this capacity was built over a long period of time. At the start of the national lockdown in March, the University of Leeds moved its teaching online, and we are still following a hybrid module of delivery — that is, face to face where possible and otherwise online. It is not ideal, as an academic, the interaction with the students is essential and talking to a camera is not same as giving a lecture in a lecture-theatre or supervising PhD students over Microsoft teams or Skype. However, the quality of teaching or supervision has not suffered. We have tried our best to minimise the disruption, and we are providing all the help we can and is necessary for every student. We are keeping constant contact with students.

Interestingly I have attended several online conferences (a lot more than I would have), delivered more lectures around the world than I would have in this period. As Chair of British and Irish Law Education and Technology Association, we were one of the first organisations to move our Annual Conference online and run it for free for the delegates. 

I have submitted written evidence to the Science and Technology Committee and the Human rights committee of the UK Parliament. https://essl.leeds.ac.uk/law/news/article/1215/dr-subhajit-basu-submits-written-evidence-to-parliamentary-committees-to-answer-questions-relating-to-covid-19-policy.

I was also interviewed and also participated in a Webinar on COVID19 and BAME community. https://essl.leeds.ac.uk/law/news/article/1230/dr-subhajit-basu-interviewed-by-asian-voice-about-covid-19-and-the-bame-community. 

I was interviewed by CNN Bossiness on UK’s Contact Tracing App.  I have co-authored an article on COVID19 and International Law https://essl.leeds.ac.uk/law/news/article/1222/dr-subhajit-basu-and-phd-student-natasha-gooden-write-opinion-piece-on-the-role-of-international-law-in-relation-to-international-inquiry-on-covid-19

At a personal level, several of my friends and members of my family are affected by COVID19 and as you probably know in the UK the pandemic has hit the BAME community the hardest economically, socially and health-wise.  

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Faisal Sherwani is Advocate-on-Record, Supreme Court, and is currently a Partner in the Dispute Resolution practice at L&L Partners Law Offices, New Delhi. He graduated in 2009 from the Law Faculty, AMU as second in his class. He gained his LLM degree in 2010 from the George Washington University Law School, Washington DC, which he attended on a law school merit scholarship. 

Q. What are the practice areas that you specialise in? 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?

Well, my practice areas are all a bit broad. And so, in an attempt to justify the rather wide variety of work that I do, I take constant refuge in Lord Henry Brougham’s famous quote: ‘a lawyer must know everything about something and something about everything’. I am quite certain that he had a dispute resolution lawyer in mind, for the simple reason that despite our tastes for a particular area of law, more often circumstances deny us the luxury of solely concentrating on one subject. 

Nonetheless, I have no particular regrets and in many ways I find the quote to be an extremely apt exposition of how well-rounded a lawyer should be. While we are entitled to our preferences and inclinations, our duties as general litigation practitioners demand that we be equipped to speak and be able to advise on most issues rather than some.

So, as a dispute resolution specialist and a court-room practitioner, my responsibilities extend (or are confined, if you like) to advising and acting for clients on a range of issues and subjects such as constitutional law aspects, arbitration laws, corporate, commercial and insolvency laws, labour legislations, technology and gaming laws, white-collar crimes and penal laws. 

There are a number of matters that I have enjoyed working on, appearing in, advising on for one reason or the other. I wouldn’t want to mention all of these in extenso here. But for the record, I thoroughly enjoyed and fondly recall appearing before the Karnataka High Court in the constitutional challenge to the aggregator rules (framed under the Motor Vehicles Act, 1988). I had advanced lengthy arguments over multiple days where there was a battery of senior counsels opposing us. The experience was the first of its kind at that time for me and I had found the whole process intellectually stimulating and professionally satisfying.

Q. What are the major challenges that lawyers usually face in cases pertaining to corporate and commercial litigation? 

There are a number of real and pervasive flaws in our dispute resolution processes, I think that is no secret and we must be willing to accept these. Take for instance, the impulsive and almost reflex grant of injunctive directions in the adversarial process. This is a less than desirable approach, and in the context of disputes having a commercial flavor, it leads to a number of unwelcome consequences for business and commerce. Equally, this poses a challenge to lawyers who seek to attain a particular outcome for their clients in a speedy manner.  

To my mind, this approach by and of itself poses a huge disincentive to foreign investment – as delays in enforcement of commercial obligations signal irreparable losses in the form of lost time, money, energies, planning but most of all business opportunity. 

And if you look at it qualitatively, these issues have been left un-debated by the Indian legislator as well as unaddressed by the Commercial Courts Act, 2015. A look at the legislative history behind the Act reveals that the considerations which weighed with Parliament had more to do with attaining a higher ranking on the populist Ease of Doing Business Index, (now referred to as the Doing Business Reports of the World Bank)  rather than addressing the more overt issues that plague our system of justice dispensation. 

For me it is somewhat peculiar that a parliamentary legislation meant for the whole of the nation was to be designed – quite simply, to satisfy parameters on the DBR. The Act as also its implementation has only complimented the superficial intent behind the legislation. It is not surprising that the sclerosis that has set in the mechanism for commercial dispute resolution has been left unaddressed. After all, legislatures are expected to frame laws that address the real needs, desires and wants of the people. 

Any legislation, carefully tailored to attain a higher ranking on a notional policy indicator, is quite likely to fail us rather than not. There are a number of glaring gaps in the Act which are difficult to miss. Take for instance Order XX Rule 1 of Code of Civil Procedure, 1908 (“CPC”) (which mandates pronouncement of judgments within a period of 90 days from conclusion of arguments) or Order XVA Rules 1 to 8 of CPC (which prescribe timelines for case management hearings in commercial disputes), both as amended by the Schedule to the Act fail to indicate recourse in the event of failure to comply with their respective mandates. 

Then take for instance steps such as digitization of filing procedures or updating computer software for ease and convenience of the judges introduced by the Ease of Doing Business Reforms 2019. All of such steps, while laudable, have little to do with the root cause of the problem, which is the approach of our courts while adjudicating a commercial dispute. The somewhat mechanical fashion in which the average Indian court grants interim orders and injunctive relief pending adjudication is an obvious vice. Such an approach has not been uncommon in the context of commercial matters either.

The parameters considered by the commercial courts while adjudicating applications for grant of injunctive orders are derived from the principles laid down in the Order 39 Rule 1 and 2 of the CPC, which provide for a rather subjective criteria, and in turn make the application of the underlying principles susceptible to varying interpretations and results. Seasoned lawyers agree that more often than not, it is possible to argue a case either way on such parameters. This makes the system unpredictable.   

While you may argue that the said principles have stood the test of time, the applicability of the same to the modern commercial matter while granting interim relief like stay orders may cause quick disenchantment to a party that has invested time, money and energy in a commercial prospect. Needless to mention, commercial contracts and arrangements today are fiercely negotiated, and a party may rightly feel entitled to bear witness to the sum of the arrangement being implemented in the form bargained. 

For such reasons, ready judicial interference in business arrangements, which are subject to a commercial dispute by applying subjective criteria may itself result in harm, irreparable in many a sense. The common jurisprudential standpoint has been that injury and harm caused to an investor is compensable in monetary terms on final adjudication. Most businesses would fiercely disagree. The fact is monetary compensation often does not cover the opportunity costs, time and energy expended or even reputational damage. 

If we truly wish to make a difference, we must address issues we already know to be the source of the problem. And I say this with no false sense of humility – that the real flaws in the commercial dispute resolution mechanism lie in the overt issues, which the average Indian lawyer is a bit more familiar with than any international body that hands out rankings on artificial criteria. 

The first step may be to sensitize the judicial officer in what goes into making a business and how fragile a business environment indeed is. I don’t mean to suggest outright disinclination to interfere where necessary. But possibly, departing from the norm that is the ready interference with commercial transactions and commitments in the first instance often, ex parte and with little hope of such decisions being practically revisited till the time of final adjudication.

Q. What do you perceive as the major challenges in ensuring a more robust mechanism for the enforcement of law and punishment for white collar crimes in India?

Well if we talk about the practice of white-collar crime in India, there is an increasing realization among professionals that the system lacks the mechanism to grant a pardon or some form of leniency. For instance, if a responsible corporate were to conduct its own internal audits and checks and consequently were to come to a conclusion that certain irregularities may have been committed in a branch of its wide-ranging operations, the system must permit such frank and honest disclosures to be made, without fear of excessive prosecution. 

This is only possible if the system can intrinsically accommodate the possibility of a financial settlement while ruling out stringent prosecution and incarceration as a necessary and unavoidable consequence of such disclosure. In other words, we must have a mechanism that encourages private enterprise, high ranking officials, employees to come clean and admit corporate guilt. 

The penal process can certainly involve imposition of heavy penalties in order to ensure an element of future deterrence. Possibly, in many a case, deterrence, even retribution, may be accomplished by imposing a financial penalty which is a high multiple of the actual amount that is the subject matter of any supposed malfeasance or irregularity. In such scenarios, where there is an admission of guilt in some form or manner and a financial penalty has been imposed, the more stringent penalties such as incarceration ought not to be pressed further.

It should come as no surprise that today, a number of corporations have their own robust internal checks and carry out regular audits in order to verify and correct any issues, allegations or suspicions relating to fudging of accounts, corruption and any other financial offences or irregularities. Such a culture of internal investigations is really something that should be celebrated and encouraged.  

At the same time, such entities must be afforded the safe harbour of arriving at a possible resolution with financial consequences/ penalties with the investigating agencies and the prosecution, of course under the aegis of the State and the regulations that may be framed in this regard. We can learn from the example of the United States where the US Department of Justice (DoJ) as well as the Securities Exchange Commission (SEC) permit a private party to enter into an Agreement for Non-Prosecution i.e. subject to such a party arriving at a financial settlement.

Reality is, the existing mechanism, i.e. granting a pardon to an accused and plea bargaining under the Code of Criminal Procedure, 1973 are entirely incompatible with the scenario I have discussed. At the end of the day, we need to ensure that our penal laws are capable of effecting the right amount of deterrence without running to extremes and endangering liberties, particularly for offences such as these, i.e. where no blood has been shed and amends can be made in numbers, be it rather large sums.     

Q. The Arbitration scenario in India faces criticism for not being up to the mark especially in comparison to some other countries. What do you have to say about the Arbitration mechanism in India and its comparisons to countries like Singapore, London, etc.?

Of course, London has been an important destination for international commercial arbitration but the last decade has seen a rise in the importance of Singapore and even Hong Kong as coveted destinations and seats for international commercial arbitration. I understand that enforcement is more a matter of administrative procedure in these jurisdictions.

But I think the amendments in 2015 and 2019 to the Arbitration & Conciliation Act, 1996 in India too demonstrate the conviction of the legislature to make India an arbitration friendly jurisdiction. Apart from that there have been a range of pronouncements from various courts that mirror this theme. 

Also, there is some amount of legislative and judicial sympathy today towards the sentiment that there should be minimal judicial interference in the arbitral process. Further, there is an increasing realization that ‘party autonomy’ should play the pivotal role. Also, I think more importantly so, the expression itself has developed a more profound meaning over the past decade. Courts have exercised noticeable restraint while reviewing arbitral awards. 

Take for instance, the pronouncement of the Supreme Court in Vijay Karia v. Prysmian Cavi E. Sistemi SRL & Ors., earlier this year, where the court reiterated the limited grounds on which enforcement of a foreign award could be resisted and allowed enforcement even at the cost of supposed violation of the provisions of FEMA. It also clarified that for a foreign award to be unenforceable as being in contravention of the fundamental policy of Indian law, as stated in Renusagar Power v. General Electric Co. (1994), it must involve a breach of a legal principle or legislation that is so basic to Indian law that it is not susceptible to being compromised. 

So we have come a long way from the time of Phulchand Exports (2011), when the court had bestowed a broader meaning to the expression ‘public policy of India’ as used in Section 48(2)(b) of the Arbitration Act and had held that a foreign award could be set aside if it was patently illegal.  

That apart also, I think we can agree that the NY Convention and some other measures have brought a strong underlying uniformity to international arbitration law by providing a broad rule of enforceability of arbitration agreements and by standardizing the grounds for refusing recognition or enforcement of foreign arbitral awards.

Of course, there is room for improvement and further changes. After all, the convention did not provide an all-embracing regulation of international commercial arbitration. Instead, it preserves a substantial role for diverse national laws, such as on issues as to how those grounds are to be defined.  

You must make some room in your heart to digest the idea that forestalling enforcement of an award on grounds that it is contrary to ‘public policy’ of a nation is something that would, I think have to – necessarily be defined by the municipal laws, in line with the aspirations of the people of that nation. So some amount of leg-room in this regard is possibly necessary.

To begin with, it would be good if nations and the policy makers within those nations be ‘ad idem’ on the broad principles on which we can agree to refuse enforcement or recognition of an international award – mind you, there are countries that still disagree about this even today. India in that sense is far more uniform and ad idem with the other nations that follow the UNCITRAL model. 

Thus to my mind, if there is a general consensus on the basic principles, we can continue to learn from each other’s experiences and precedents also. And maybe on many a threshold, concepts such as ‘public policy’ can mean the same things to us. But on the few fine points that we disagree, we can continue to respect those diversities and move forward. 

Q. Also, Alternate Dispute Resolution is being perceived as being immensely helpful in lessening the judiciary’s burden. In your opinion, what is the future of ADR in India?

Indeed, alternative dispute resolution (ADR) mechanisms have numerous benefits and must continue to play an important role in the times to come. Reducing the burden of pending cases before the courts is certainly a well-documented and widely acknowledged by-product of the cultural acceptance and receptiveness to these mechanisms. 

After all, there can be nothing better if both parties to an adversarial process can leave satisfied (as far as practically possible), by reaching an amicable solution of sorts, say by a process of mediation or the like. The traditional process of court-room litigation often does not afford such happy outcomes, where more often than not, the result will serve as reason for satisfaction to (or vindication of the position of) one party alone. And therefore, to such an extent we must continue to bestow unflinching faith and hope in ADR mechanisms.

But I might add (particularly, since I laboured, quite a bit –  on the issue of commercial and corporate litigation above) that the adoption of ADR ought not to be on account of an inherent lack of faith and confidence of corporates, businesses or even the common man in our traditional courts of justice. If that be so, I would suggest it is a troubling trend.  

Our traditional justice delivery system must too, continue to offer a robust and dependable mechanism, and serve as the primary system of justice dispensation. Indeed, parties may continue to be at liberty to settle disputes that are of a private character between themselves by ADR, or for that matter – by any other method that suits their fancy! 

But sometimes the supposed reasons that are touted as justifications to opt for ADR (i.e. that these mechanisms furnish faster, more cost effective, easily accessible, and more receptive processes, and also, furnish brighter prospects for amicable resolution) – often end up sounding like somewhat of a hidden apology for the state of our traditional judicial system. In other words, if these mechanisms are to be taken as the only viable medium for dispute resolution, then that honestly does worry me. After all, any system of justice dispensation (the traditional courts included) should strive to inculcate the aforementioned virtues and attain such ideals. 

The reality is that many commercial enterprises and corporations elect to adopt ADR mechanisms as also to arbitrate their disputes on account of the intrinsic belief that the traditional judicial system would be ill-suited owing to its characteristic slow pace and cumbersome processes. There is something to reflect upon there, as also to be a little concerned about.  

Q. You have done LLB from India and LLM from US, both from premier institutions. What was different about reading law in the US than in India? What can law schools in both countries learn from each other’s education models?

In the final years of my studies at the Faculty of Law at Aligarh, the idea of studying further at the George Washington University presented an exciting proposition. While there were many differences, a student belongs in a university and a university, to a student. So transition wasn’t a problem, at least to my mind. 

But I suppose we can all learn from each other, and the same is true for universities and education. Many exciting changes are happening everywhere in the sphere of legal education. But, the one thing that I have learnt to admire is an age-old technique i.e. the Socratic method, where the classroom experience is a shared dialogue between the teacher and students, thereby ensuring that both are responsible for pushing the dialogue forward through questioning. Of course, this requires as a pre-requisite, some amount of reading and thought on the part of the student also, so that it can be an informed debate. 

In the larger scheme of things, the method has more particular benefits in the domain of law and legal studies. If you think about it, the practice of law is premised upon it – there is a constant exchange between the client and his advisor, an exchange between the lawyer and the Bench, an exchange between the legal expert and the media. So, you must learn to be communicative and expressive. And there has to be a continued emphasis on writing too. I confess that I have a personal prejudice in favour of those who write as it provides me the opportunity to see what your thoughts are and how you express them.  As long as these underlying principles and methods remain, you can always explore and adopt new modes of executing them and enhancing the experience.

Q. You often write for various publications on different subjects pertaining to the laws. What are the issues of jurisprudence that you find to be the most interesting, especially as a practicing lawyer who may come across some of them while researching?

Well, writing is certainly something that has been a passion. I think if you were to look closely, most of my works grapple with the realities of our times and ideals that we aspire to attain. You are right, as a practicing lawyer, you find yourself in a unique position to comment on legislation, precedent, the state of the justice delivery system, and more generally on issues that affect us citizens and as a polity. In fact, much of the thoughts that I have shared with you on commercial litigation and its future are quite well documented in an earlier published piece that I wrote with a colleague. I might add that I don’t consciously limit myself to any particular subject, but rather feel free to write on issues where I have noticed a problem, lack of clarity, or even hypocrisy. It is here that I seek to provide my own perspective. More recently, I have started to explore satire as a useful tool of communication. If something can make you think and laugh at the same time, in my view – that is a job well done! So, you will generally find me engaging on issues related to law, our polity and other socio-economic issues. 

Q. What do you like to do when you’re not working? Lawyers usually keep very busy. Have the pandemic-induced restrictions given you the opportunity to relax and unwind more often? 

Primarily I enjoy reading. It follows, I think, a somewhat indiscriminate yet eclectic pattern. My earliest recollections of being hungry to read was in order to develop and inculcate a critical and analytical approach. Quite simply, this is my approach to law and life itself. And in very many ways if you choose to develop it, this interest will form the basis of your capability to frame and hopefully thereafter, formulate your own judgments and opinions. I can speak for myself. It has very much been so. 

That apart, I have always had a taste for travelling. However, the current pandemic has seen the introduction of a ‘monkey-wrench’ in most of my more recent plans. 

But not all is lost. Circumstances have generously furnished abundant time and opportunity to write as I mentioned above. 

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Tania Ahlawat is Co-Managing Partner, Ahlawat & Associates. She is a corporate generalist who leads employment and corporate compliance practice at A&A. With an experience of working with different regulators in India, she regularly advises clients on entry strategies and on various aspects of doing business in the country. She also advises clients on general corporate matters, cross border transactions including amalgamation, corporate documentation, slump sale, formation of companies (public, private and foreign subsidiaries in India) and joint venture companies and conducting due diligence.

Q. What are the major challenges that lawyers usually face in cases pertaining to corporate and commercial litigation?

While there have been many changes that have been brought about as far as litigation practice is concerned, the one most consistent and challenging is that of time. Unfortunately, a lawyer can never give assurances of time-bound relief to a client, unless of course, the matter reaches the Supreme Court which can possibly take decades, even then there are no guarantees. This is also the very reason why people are wary of getting into any sort of litigation and prefer to settle out of court, if possible.

Corporate litigation can go on for years with negligible results, which can be both difficult and frustrating for a company, especially for a company looking to recover debts. A company is looking at a scenario where they have delivered the goods or services and thereafter have not been paid for years. To keep the morale of the client up and trying to convince them that there could be light at the end of the tunnel is another challenge faced by lawyers.

With the inception of IBC and the amendment to the Arbitration Act, the timelines have been reduced to quite an extent which has made the litigation process more approachable for corporates than it previously was, however, there is still immense scope for improvement on that front.

Q. What sets the practice at Ahlawat & Associates apart from other law firms?

All the initial Partners and a few of the newer ones at A&A have practised at the bigger law firms, therefore we have a fair idea of what is missing and leads to client disappointment. Collectively we make a conscious effort to grow the practice in a manner that provides each client with our undivided attention, primarily focus on the quality of work and never underestimating a clients’ need for urgency.

Also, we understand that clients do not want their lawyer to sugar coat facts and provide idealistic advice or lead them on a wild goose chase. When providing legal services, we give practical and realistic solutions, it might not be what a client would like to hear but at the end of the day, it is far more appreciated than giving them false hope which may lead to problems in the future. A&A would like to be known for avoiding problems to start with, not creating them and then helping you solve them. Our aim is not to increase our client base for the sake of optics, but to retain clients and gain their confidence in the quality of our advice and work for the long term. This has worked for us so far and we see no reason to change our ways.

Q. Has your work been affected by the Covid-19 pandemic? If so, then how are you dealing with such changes?

You will not find one business, service or industry that has not been impacted by the pandemic. I don’t think anyone could have predicted a slowdown which is so widespread but I think lawyers, possibly because of our training in the practice, are quick to adapt and have learnt to weather such storms. Whilst the corporate matters have not really seen a decline and companies have required legal advice and structuring more than ever now, the pandemic or the lockdown has been and in a way continues to be a challenging phase for the litigation team. 

With most courts still not taking up regular matters and IBC literally being suspended completely for this year, we have tried to ensure that no one is laid off during this period. Cases are still being heard via video conferencing but just like online classes for children, teaching sports via electronic mediums and seeing your relatives through an app, there are some communications that are best left to and need a person’s physical presence to be most effective.

To keep our litigation team productively engaged, we have asked our lawyers to be resourceful and support our other practice areas to be able to tide this time and luckily for us they have been more than willing to do so. This has also brought about a certain synergy amongst all the lawyers and A&A, which we are hoping will prove beneficial when everyone does return to the office.

Q. From a lawyer’s perspective, what are the specific challenges that foreign businesses and companies face while investing in India or setting up businesses here?

The biggest hurdle foreign businesses still face is obtaining licenses. Depending on the stage which the licensing process is at, it can sometimes take months and the complexity involved at the local level in obtaining those licenses can be quite a deterrent for foreign investors. However, things are changing slowly. A lot of states have now started introducing single-window clearances for licenses which is definitely a step in the right direction. Apart from that many states are also setting up grievance redressal portals for the investors wherein they can lodge their grievances directly with the chief ministers’ office in case they face any issues.

There are a number of other processes which have also been simplified now such as the company incorporation process and the time taken for setting up a company has drastically reduced, moreover majority of the registrations that a company requires for starting operations such as PAN, TAN, etc are all provided at the time of incorporation rather than applying for each of them separately after incorporation.

Q. Do you think Artificial Intelligence and machine learning can be helpful in assisting lawyers in the corporate industry? If so, then in what ways?

There is no doubt, technology or A.I. has enabled many professionals or business services to serve their customer base faster and with greater precision. However, as far as the legal profession is concerned, as I mentioned earlier, there are certain communications that require a physical presence, human interaction. Our profession, besides our ability to apply our knowledge base, is all about our communication skills. Providing clients with the confidence to take that leap to invest 50 crores in a project or resolve a situation which they feel are doomed to face or enter a joint venture which will reap immense benefits, are situations that are most successful only with physical human interaction. Every client has their unique situation or a different set of problems which are specific to him/her and they want their lawyer to provide them with that relief and guide them in the best possible manner which a machine would not be able to provide.

Even during the pandemic, there is no doubt that the various virtual conferencing platforms have provided us with much relief to be able to see each other on a screen and discuss matters with our clients, but for execution purposes, the process can be extremely time consuming and team discussions and brainstorming is best at an office space.

Possibly the only area I wish the machine learning or A.I. could ease functionalities in the legal profession would be billing!

Q. How have you adapted to the lifestyle changes that have been brought about by the pandemic? How do you like to unwind when you are not working?

There has been less adapting and more re-organizing. The changes that have been brought about actually were much needed, someone hit the much-required reset button! Even though we all wish the pandemic had never happened, it has forced us to slow down and re-think about our priorities. We all push doing certain things to the back burner because we feel this is the time to focus on working hard 24×7 or giving up on your sleep to finish that project or justifying sacrificed time with your family for work, but you realize that we can have the best-laid plans but none of it will matter if you do not take care of your health and have your loved ones around you.

Making health and the mental well-being of not just myself and my family, but also of my co-workers has become imperative. Sitting at home for such a long duration can have a major impact, both physically and mentally, on everyone. Therefore, physical and mental health has become an extremely important focus area which was not a priority for anyone before the lock-down. In addition, trying to provide everyone with a work-life balance has also become essential. 

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Kunal R. Sarpal is an award-winning practising Company Secretary and Lawyer. One of the youngest in India to clear the CS course at the age of 20 alongside his commerce graduation, he secured an All India Rank and immediately started practising. He is the Founder & Managing Partner of White Collar Legal LLP, a boutique Corporate, Cyber, Intellectual Property Rights Law firm, started in 2013 and now has branches in Mumbai, Delhi, Surat and Pune. He also serves as a faculty, advisor and mentor at many renowned institutions such as IIM Ahmedabad, Tata Institute of Social Sciences, Flame University, Symbiosis International University. He’s a TEDx speaker and has also been appointed as an ambassador by the Ministry of Youth Affairs and Sports.

Q. From a legal perspective, could you talk about the challenges faced by start-up clients and how do you deal with them?

Start-ups are unstructured and are person/people driven. The knowledge of law, financial and legal frameworks and scalable entity modelling & compliance is missing. We fill these gaps by providing consulting, training, drafting and compliance services like a seasoned in house counsel dedicated in fin-legal plug in. 

Q. You started your own firm in 2014 and so far, it has won many awards and recognition. What challenges did you face in setting up your independent firm?

Getting clients and establishing trust initially was tough. Getting ourselves structured and setting up SoPs and tech enablers was new and took a lot of time and learning. Since I did not have any prior experience before starting, it was learning on the client’s live assignments. The pressure to deliver well was immense. Building depth and getting high value work took a few years.

Q. What sets the practice at White Collar Legal apart from other law firms/law consultants?

We are RoI driven. For us, legal is something that enables businesses and does not stifle them. 

We are also processes driven. This value and ethos is present in everything we do and in everyone who works with us. The way we merge legal-fin-business acumen is unique and our clients love us for it. It is sorely missing in many in our fraternity wherein professionals operate in silos and like horses with blinds. 

Q. Often entrepreneurs are not really sure of the different types of IP rights available to them. What are the basic IP types that entrepreneurs can look into?

Primarily, there are 5 common to most businesses:

1. Their name/logo/brand/tagline/identity, which needs to be trademarked.

2. The unique content/processes/software/other tech they create they need to copyright.

3. The products/drug/utility/design they invent, which needs to be patented.

4. The beautiful aesthetic of their product which needs to be registered under design.

5. A combination of all above, as to how it interacts with each other to produce a brilliant result and also which helps them procure, store and analyze data. 

Q. You are a TEDx speaker. What previous TED talk has been most meaningful to you?

‘How schools kill creativity’ by Sir Ken Robinson. For its simplicity, humor, depth and style of delivery. 

Q. Covid-19 has had a colossal impact around the world. What do you think are the post Covid entrepreneurship opportunities and challenges? 

Anything that makes a product or a service cheaper, faster, more convenient, better experience…is welcome. What is important is to focus on solving a specific problem and then being the best solution provider for it. 

Business or entrepreneurship is pretty simple if you understand its fundamentals. Robust folks who understood this were least impacted by the pandemic or any other externality.

Q. Do you think Artificial Intelligence and machine learning in legal technology can be helpful in assisting lawyers in the corporate industry? If so then in what ways?

It will supplement us. Assist us. Make us better lawyers, not only in corporate but in litigation, in terms of:

a. Giving us better research tools for us to achieve depth and width at the same time, cheaply and fast.

b. Make a lot of admin work, repeat advisory, procedural work, non-application of mind work redundant and help us focus on our main competence of thinking of solving the problem at hand.

c. Clean the industry by making many old, outdated, ill-informed professionals redundant. 

Q. What advice would you like to give to young lawyers and law students who may want to get into your line of work?

Build foundational theoretical depth and strength. Know everything that is out there and try filling the gaps.

Next, get hands on work experience through internships or low paid jobs. Next, build the skill of getting a job or better still, getting work, else all of the above is useless. (RoI mindset). Understand deeply that the client cares for a solution that’s best to solve his problem and he/she absolutely doesn’t care where it comes from or who gives it. 

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Debanshu Khettry is a Principal Associate of the law firm Leslie & Khettry.

Q. There is a common perception that first generation lawyers have to struggle more than those who come from a family of legal professionals. Could you give us a glimpse into the other side of the story. Being a fourth generation lawyer, have you faced challenges in your legal career? Do you think there is always a benchmark against which your performance is evaluated? 

It is probable that first generation lawyers struggle more than those who come from a family of legal professionals. However, coming from a family of lawyers has its own inhibitions. You are always compared to your forefathers or seniors in the family. The base or the standard with which you start is already raised. If you are evaluated against a set benchmark, the stakes are higher because you not only have to aspire to rise to the expectations but also ensure that you protect the reputation generated by your forefathers. Compare this to a person who is starting afresh, has very little to lose. The next generation has to ensure that not only do they protect the downside (what the previous generation achieved) but grow further. I feel that it is always more difficult for the next generation.

In addition, each generation has to prove himself / herself since the laws are ever changing and so is the work pattern along with outlook and requirement of businesses / clients.

Q. You graduated from NUJS, Kolkata and thereafter you pursued your LLM from UCL. How different is the legal education system in the UK as compared to India?

It may not be fair to do a comparison as I did my undergraduate from India and postgraduate from UK. The teaching methodologies may differ with the nature of the degree / programme being taught. Having said that, I noticed that in India there is a great deal of focus on lecture method whilst in UK the emphasis is more on the Socratic method.

Q. Being the co-founder of P-PIL, with a vision to promote practical advocacy among law students, do you feel that there is a lack of practical training in law schools in India? How can this gap between learning law and its practice be bridged? 

There is definitely a gap between learning law and its practice in law schools in India. To some extent the gap is bridged by focus on internships and platforms such as P-PIL. There are many practical courses these days (within or outside the university) which students can consider taking based on their interest areas. Law schools should also encourage inclusion of practical modules apart from theory-based modules in their course structure. 

Q. You are the founding member of IDIA and founding executive editor of Journal of Telecommunication and Broadcasting Law. You are also the co-founder of P-PIL, SILC and Lawctopus. What has been the decision factors behind the creation of these ventures? 

Each of these ventures is the result of efforts of several others and a gap in the industry that needed to be filled. The Increasing Diversity by Increasing Access (IDIA) project was the brainchild of Late Prof. Dr. Shamnad Basheer. The emphasis is to promote diversity in law schools by uplifting the under-privileged. The Journal of Telecommunication and Broadcasting Law (JTBL) was the result of lack of any journals devoted to the ever-growing, vital and complex field of telecommunication and broadcasting laws. 

Similarly, for Promoting Public Interest Lawyering (P-PIL), we wanted to create a platform from where students can get an experience of practical advocacy which unfortunately is not fully achieved with the current system of mooting in law schools. The Standard Indian Legal Citation (SILC) was also conceptualised due to the absence of any indigenous citation methodology designed to cater to the reference of Indian legal sources.

When we started Lawctopus, there was no website that offered information on the various opportunities available to students or an insight into how their internship experiences at various places have been. The portal helps law students and aspirants make informed choices.

One of the major inspirations behind these ventures was Mahatma Gandhi’s oft-quoted phrase ‘Be the change you want to see in the world’. It is easy to remark that there is a problem or there is a lack of a better solution, nevertheless, each problem or the lack of a better solution is an opportunity that can be seized.

Q. You are part of your family’s legacy firm, Leslie & Khettry, which was established in the year 1944. Could you share with us the history behind this extraordinary journey of 76 years?

If one sees our Firm, Leslie & Khettry’s logo, there are 3 rising stars followed by the words practising since 1944. This was carefully thought out because we want to indicate that there is something before 1944. The Firm was started by my grandfather (Sreenath Khettry) in 1944, however my great grandfather (Golap Khettry) was also a lawyer at Calcutta. 

Q. Technology has revolutionised the way the law firms and how lawyers work. How do you see the development of technology in the future affecting your work?

Technology is both a boon and a bane for lawyers. On one hand, it brings in efficiencies and creates new opportunities. For instance, the adaptation of e-courts will help lawyers who have multiple hearings in a day and it also opens the door for making appearances in courts at different cities or locations. However, technology is making a lot of legal skill sets redundant. For instance, you can get due diligence done by bots instead of lawyers. We may also have bots who will predict the outcome of a case on the basis of precedents and various other inputs. 

Q. What are your future plans professionally? Do you plan to expand Leslie & Khettry?

Yes, we are already expanding organically and will not shy from looking at inorganic growth opportunities. Our plan is to grow our practice and cater to the needs of those requiring legal assistance to the best of our ability. We do not call ourselves experts of anything and we are always students / practitioners as law changes its shape on a daily basis. 

Q. What are your other interests, other than law?

I have deep interest in finance and how the financial markets across the globe function / react to various events. I also devote some amount of time in doing angel investments and meeting entrepreneurs and understanding their needs. I also enjoy engaging in new activities, be it learning a new language or an instrument or taking up a sport.

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Nandini Gore is Advocate on Record, Supreme Court and Partner, Karanjawala & Company Advocates. She has been practicing since 1988 and has an experience of more than 30 years at the Bar specializing in Litigation, Arbitration, Corporate practice and Mediation practice.

Q. Being an expert mediator, where do you think India stands in the field of Mediation in the corporate/private sector or private mediations, especially as alternate dispute resolution is being encouraged across the world?

For many years, especially in the Indian context, we have observed the reluctance of litigants to embrace mediation as an effective means to dispute resolution. Even though the progress experienced in this regard may not have been at the desirable pace, it is indisputable that improvements have been made specially qua matters relating to family and matrimonial disputes. The benefits that mediations bring have been slow to reach the realm of commercial matters. There has been, however, a concerted effort to make the legal environment more favourable, with many courts finding it increasingly convenient to refer commercial disputes matters to mediation to iron out an amicable settlement rather than resort to the traditional court litigation to resolve the ever-increasing complexity of business disputes. The inherent flexibility of mediation proceedings are a real advantage over traditional court centric litigation.

The outbreak of the Covid-19 pandemic has brought about unimaginable worldwide commercial disruptions, and as businesses suffer through this crisis, it is more important than ever that disputes get resolved in a timely and efficient way. It is high time that all stakeholders discuss the legal impact of the Covid-19 pandemic and the changes it will usher in in the legal field and how India can be more accepting of the Alternate Dispute Redressal (“ADR”) mechanisms in the days to come.

Looking at the present scenario, many are anticipating a surge in the need for resorting to alternate means of dispute redressal all over the world. The end of the lockdown has seen an inevitable surge of new claims, which shall arise out of the commercial disruptions owing to lockdown being put in place. A majority of the claims will emanate from the delays or cancelations in inter alia the construction business, shipping industry, international transit, energy and power sector etc. In the world order post the pandemic, “Mediations” should be one of the most preferred modes for dispute redressal in these cases.

The pendency of cases, the ever-increasing number of statutory Appeals and most importantly the increasingly alarming rate at which disputes are being taken up for litigation in our country, is I believe one of the biggest hurdles in the administration of justice. As a practising Supreme Court Counsel, I have witnessed the very increasing number of cases and litigants that approach the Hon’ble Supreme Court for effective adjudication of the dispute having gone through the hierarchy of the courts in our country.

I have always firmly believed that where justice is administered at a belated stage is as good as the denial of justice, and therefore the most important and biggest hurdle that has to be overcome is to bring down the pendency of cases before various courts of India. It is extremely pertinent to mention here that the founding father of our nation and subsequent legislators have anticipated this and sought to remedy these by the establishments of alternative disputes redressal mechanism in our country. Mediation, Arbitration, Conciliation and establishments of Lok Adalats etc. are the various ways by which the problem of pendency of cases was sought to be tackled by the Indian State. However, over the years in my personal experience as a Certified Mediator and practising Supreme Court Advocate I have personally noticed that these avenues have not been utilized to the best of their capabilities.

Q. You have been a lawyer for over 30 years. Could you talk about some interesting cases you have worked on that turned out to be great learning experiences or turning points in your career?

Two extremely enriching learning experiences come to mind. As a young lawyer briefing the celebrated Justice (Retd.) Late V.M. Tarkunde, Senior Advocate and former Judge of the Bombay High Court, he told me that the key to becoming a good lawyer lay in the efficient and in-depth understanding of the Code of Civil Procedure. He also used to tell us that to truly understand the working of the legal system, every lawyer should spend some part of his career in the Trial Court. Another valuable lesson I learnt was when I was briefing Mr Fali S. Nariman, Senior Advocate. His conferences taught me that one should never hesitate in putting across valid legal arguments despite one’s young age. Mr Nariman has always recognized and appreciated any hard work put in by young lawyers and this is one advice I will always pass on to the younger lawyers.

Q. Did you face any difficulties because of being a woman, especially 30 years back when mindsets in the legal profession may not have been in favour of gender equality? Do you think gender based challenges still exist today for women in the profession?

I wouldn’t really call it a struggle but rather an enriching experience. I agree that the number of Advocates practicing is slightly skewed (gender wise) but this trend is changing. I have always believed that it’s your calibre and not your gender that will take you places in the profession. If I talk about my office, I take immense pride in the fact that extremely intelligent and outstanding female lawyers have been and are part of my team.

The legal fraternity has definitely become more inclusive. The overall scenario, especially in regard to the litigation field has seen a massive shift from work being concentrated in the hands of a few Counsel to the present day scenario. The new avenues and specialized forums have led to greater specialization by counsel resulting in better and essentially more organized service delivery to the clients. The litigation scenario, especially in Delhi, has massively benefited from this with the city attracting the best young legal minds.

Q. You have filed a PIL before the Supreme Court for implementation of guidelines for installing CCTV cameras in all buses and public transport for the benefit of women. According to you, where do the laws in India lack in preventing crimes against women such as sexual violence?

I firmly believe that the issue is not with the absence of laws but rather the effective implementation thereof. A genuine consciousness that aims at ensuring protection of rights of women is what is essentially required. Violence against women and girls take many forms, including domestic violence, sexual assault, human trafficking, so called ‘honour killings’ and the traditional custom of female genital mutilation prevalent in some religions. This is rooted in the gender inequality that women face throughout their lives from childhood till old age. Given the devastating effect violence has on women, efforts have mainly focused on responses and services for survivors. However, the best way to end violence against women and girls is to prevent it from happening in the first place by addressing its root and structural causes.

Prevention should start early in life, by educating and working with young boys and girls promoting respectful relationships and gender equality. Working with youth is the best bet for faster, sustained progress on preventing and eradicating gender-based violence. While public policies and interventions often overlook this stage of life, it is a critical time when values and norms around gender equality are forged. 

A strong focus on prevention through the promotion of gender equality, women’s empowerment and their enjoyment of human rights is the need of the hour. It also means making the home and public spaces safer for women and girls, ensuring women’s economic autonomy and security, and increasing women’s participation and decision-making powers—in the home and relationships, as well as in public life and politics. Working with men and boys helps accelerate progress in preventing and ending violence against women and girls. They can begin to challenge the deeply rooted inequalities and social norms that perpetuate men’s control and power over women and reinforce tolerance for violence against women and girls.

Awareness-raising and community mobilization, including through media and social media, is another important component of an effective prevention strategy. 

Q. What role do you think Artificial Intelligence and legal technology can play in improving the efficiency of the legal profession?

The Indian legal sector has seen very little innovation in terms of technology and lawyers have for long been comfortable and relying on the methods and solutions that were designed years ago. Artificial Intelligence can play a big role in changing the way lawyers operate and how the law is looked at in India. 

We live in a world ceaselessly immersed in technology. The use of technology accounts for the evolutionary shifts in human activity, not only at the individual and the societal level, but has also driven immense changes in various professions. Entire industries and professional fields have risen or disappeared as a result of technological developments. There is no doubt that technology tools permeate all parts of our lives, and the outbreak of the Covid-19 pandemic has ushered in a revolution of sorts where traditional litigation has been forced to make use of IT tools such as video conferencing to ensure that the dispensation of justice does not suffer during these testing times. 

The traditional litigation is still a fully in-person session (or series of sessions) while the parties and their counsel and the field suffers to cope up with the need of the present times. Despite most of us having become more familiar, comfortable, and adept with incorporating technology into elements of our personal lives, the domain of utilizing technology to bring about effective dispute redressal is still a distant dream.

It would not be an understatement to say that a vast majority of legal institutions have ignored technology. Protracted reliance on heavy briefs and papers should have been at the forefront during these times, when the use of technology has been rather forced. A lack of institutional framework which could promote use of technology is primarily responsible for the same. Whereas the commercial world has readily accepted and utilized the role of technology to make arbitrations more effective, with specific protocols and institutional framework having been put in place, the other forums, whether its traditional litigation or mediations etc. have been left behind.

In this regard, a useful guide will be to study the leaps taken in incorporating IT tools in the field of International Commercial Arbitrations. As a step in the direction to facilitate online conduct of proceedings, the Korean Commercial Arbitration Board (KCAB) published the “Seoul Protocol on Video Conferencing in International Commercial Arbitrations”. The Protocol addresses all aspects of conducting video-conference hearings in international arbitrations, from witness examination to technical specifications. These and other resources can help guide arbitrators and parties as they continue to resolve disputes under present restrictions. It is pertinent here to understand that the protocol is not a hasty reaction to the present outbreak of the Covid-19 pandemic and has rather been in active deliberations since 2018, and has been designed to be a comprehensive guide to conducting arbitral proceedings remotely, and therefore, presents itself as a rather important tool in these times. A cohesive study of the protocol, and how the same can be adapted to suit the needs of a mediation is the need of the hour.  

The growing relevance of information security is an unavoidable feature of modern-day legal practice and the increase in electronical filings and use of videoconferencing in proceedings would lead to heightened concerns of cybersecurity and privacy protections. It is, therefore, incumbent on the Government to provide adequate mechanism to guard against the said issues with strengthened legal provisions and mechanisms. A substantive chapter in penal laws can go a long way in allaying these fears. 

It is pertinent here to mention the 2020 Protocol on Cyber Security in International Arbitration, published by a working group established by the International Council for Commercial Arbitration, the New York City Bar Association and the International Institute for Conflict Prevention and Resolution. Although the Protocol has been drafted keeping in mind international commercial arbitrations, it may also be a useful reference for outlining and establishing an effective protocol for litigation proceedings as well.

Q. How would you describe your professional journey so far? And what career advice would you like to give to young lawyers and law students? 

In one word, rewarding. An element of ensuring public service was part of my life and was one of the main motivational factors that led me to pursue law as my career. I was always inclined towards debating in school and college and was inclined to appear for the Civil Services examination and therefore, a natural step in that direction was to pursue law. It started off as a subject that I intended to be part of my optional paper in the civil services examination but soon became my true calling.

I would say that one of the most enriching experiences of my life was my time at the University of Delhi. My alma mater, Campus Law Centre, Faculty of Law of the University of Delhi is where I received the holistic understanding of the subject and, coupled with the guidance I received from my professors there, is what helped in shaping the lawyer I am today. Having grown listening to the lectures of Prof. Madhav Menon on Constitutional Law, Prof. Kubba for Torts, Mr Rajiv Khanna on Contract, and Hon’ble Mr Justice A.K. Sikri who used to teach us the Code of Civil Procedure, their education is possibly my life’s biggest lessons.

My advice to the young lawyers has been the same through these years. Do what makes you happy is the advice I give everyone joining the profession. It doesn’t really matter if you work as a litigation counsel in the district courts or be part of a Tier-I law firm handling the most talked about matters or join the corporate side of law as long as one stays committed to providing the best legal advice and stays true to integrity and honesty that this profession demands. For a young lawyer the avenues as on date in the field of law are immense and the whole wide world its open and waiting for them. However, I strongly recommend that every lawyer, whether a fresher or an experienced one, should always do some pro bono work and give back to the society. This experience is particularly enriching.

I still remember the time when I had approached two eminent lawyers of the Hon’ble Supreme Court of India, Mr. Fali S. Nariman and Mr. Harish N. Salve, Learned Senior Advocates to appear in a case seeking relief for a rape victim (Nari Raksha Samiti case) before the Hon’ble Supreme Court of India. There is much to be learnt from them, who not only appeared pro bono in the matter but were also instrumental in ensuring that effective guidelines are laid down to ensure that the heinous crime does not happen to anyone else.

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Naveen Varma is a practicing Patent Attorney in India. He is a qualified Mechanical Engineer and an advocate enrolled with the Bar Council of Delhi. He has extensive experience for more than sixteen years in the domain of Intellectual Property (IP) and specializes in counselling on protection, enforcement and management of IP assets. His core areas in IP include patents, designs and trademarks. 

Q. Could you specify and briefly explain some India-specific problems pertaining to IPR?

IPR Adjudication: On the administrative front, delays are a major problem at the IP Offices.  Be it the Patent Office, Trademark Office or the Designs Office.  Some efforts have been taken up in the last few years to minimize the delays. However, I personally feel the approach is not very structured.  No doubt new applications are being prosecuted quickly, however old cases in terms of pending examinations or opposition proceedings are still lying as they were.  

Yet to pave way to new IPR Regimes: In the domain of Computer Related Inventions (CRIs), and specifically for inventions having software and algorithms, the space is still not clear as to how the Patent Office interprets and reacts to the protection sought. More often than not the Office bearers (Controllers) at the Patent Offices interpret the inventions in a very narrow manner and tend to drag all innovations under the realm of Section 3 (k) – grounds of non-patentability for inventions pertaining to software per se or algorithms. Meaning thereby, innovations in the domain of CRIs including Internet of Things (IoTs), Artificial Intelligence (AI), Machine Learnings (MLs), Blockchain etc. which are inevitable in the near future, will find challenges to be protected. 

Narrow Interpretation of Existing Provisions under the Act:

Designs:  On many occasions, the definitions under the Designs Act and specifically with respect to “article” and “design” are being interpreted and implemented to a wide range of innovations wherein such direct interpretations may not be applicable. Graphical User Interfaces (GUIs) is one such area wherein the exact creativity/ innovation may not directly fit under the said definition of “article” or “design”.

Q. In the foreseeable future, there is likely to be growth in innovations in India in the field of manufacturing as well as in the tech and e-commerce spaces. Are we as a country equipped for such a future in terms of IP laws?

From the manufacturing perspective, Yes – the IP laws of India are equipped to cater to the requirement.  Our Patent and Design laws have all requisite provisions to protect the innovations in the manufacturing domain.

Innovations from the E-Commerce domain have to be looked at from the perspective of Computer Related Inventions (CRIs). As already stated, we have some limitations in terms of business methods, software per se and algorithms being protected as patentable inventions in India. Innovations in the domain of E-Commerce have to be gauged minutely to understand the exact nature of invention and accordingly evaluated rather than merely applying Section 3(k) as a limitation.

Q. The world is in the midst of an Artificial Intelligence boom. What are some of the challenges that AI is posing for the IP system? 

Intellectual Property (IP) is meant for protecting the rights of the innovators or creators i.e. the ownership rights being safeguarded before the same being assigned.  

One important challenge that AI is posing on the IP system is with regard to inventorship. IP is designed to protect the creations of intellect of a human mind.  For AI, the major issue being, the creations are possibly by computers rather than human mind.  This is an interesting sphere of debate worldwide and we will have to wait and watch where it leads to in terms of interpretation. 

Over and above, the limitations in many jurisdictions in terms of non-patentability of Computer Related Inventions (CRIs), is another challenge to innovations in the domain of AI.

Q. What are the practice areas of Zeus IP within the ambit of IP laws and what sets it apart from other law firms that also specialize in the same field?

At Zeus IP, we cover all areas of IP including Patents, Trademarks, Designs, Copyrights, Geographical Indications, Plant Variety, etc..  What sets us apart is the manner in which we approach each IP issue.  The same cannot always be seen in isolation and every member at ZeusIP is trained to see each IP issues from multiple dimensions to develop a holistic approach and advice clients accordingly.  The approach during the advisory is not merely academic but instead the solutions are practical and are customized keeping in view the client’s commercial business interests.  Registrations and Grants cannot be considered as an isolated academic exercise whereas the same needs to be looked at from the perspective of future enforcement and commercialization and accordingly strategies and approaches are structured. 

Q. We recently held a webinar during which the chief speaker, Honb’le Justice Prathiba Singh of the Delhi High Court, described copyright law as similar to “space”, saying that copyright law has no limitations and that its full potential has not been realised. In your opinion, in a nutshell, what are the further additions that can be made to the copyright laws in India and maybe in the international context too?  

Copyright law is very vast.  Yes, it may be considered that said law has not been explored to the fullest extent.  More specifically, copyright being an inherent right and registration of copyright being non-mandatory, various facets of enforcements are not fully explored.  

In the current era of Information Technology, the main challenge regarding copyright and the enforcement is with regard to defining creative content and pin pointing the violation. Specially, musical works, sound recording etc.. are subtle areas wherein the evaluation and interpretation has to penetrate few deeper layers while enforcement. 

Q. The coronavirus pandemic has changed the way not only lawyers and judges work but the way the entire legal system works. How have you adapted to the lifestyle changes, both personally and professionally, that have been brought about by the pandemic? 

Indeed, the pandemic has unveiled a new modus operandi for working.  The first few days were a bit difficult to adjust, but then once the approach and the operations are structured, things fell in place. On the professional front, with the technology support that we have in the present day, the transition was seamless. Structured protocols were developed for team interactions to discuss projects, work allocations, review and communications and things settled quickly and every team member pitched in. Holding group video calls (zoom calls etc.) to connect with each member during the lockdown to keep a watch on their physical as well as mental health certainly helped to maintain the connect. Additionally, few collective activities were structured by the Office which kept the whole team engaged on specific occasions. 

On the personal front, the lockdown and work from home certainly allowed for more time to be spent with family.  Family time was accordingly structured to have quality involvement with family members and led to doing a lot of collective activities together. 

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Gunjan Paharia is a qualified attorney and a Registered Patent Agent. She has nearly two decades of experience in pure IP law and cognate laws. Her expertise, in particular, extends to Patents, Trademark, Copyright and Industrial designs, and includes obtaining registrations, counselling on protection, enforcement and management of Intellectual Property assets with a special focus on enforcement of Intellectual Property, conducting detailed due diligence projects, representing clients in Intellectual Property litigation in various courts across India. She also has extensive experience in prosecuting trade mark and patent applications, and managing clients’ portfolio in India and the neighbouring countries of Pakistan, Bangladesh, Nepal, Sri Lanka and Bhutan.

Q. What are the major challenges that lawyers usually face in IP-related practice/litigation in India?

The dynamic nature of the practice is the biggest challenge. While the Act is fairly clear, the interpretation of the law by various courts and tribunals remains dynamic and it takes creativity to understand the true nature of the conflict or the issue. In addition to the same, the practice directions of the IP Office to its examiners etc  makes the prosecution practice challenging as these make arguments and reasoning with the IP office almost redundant. 

Q. Amid the COVID-19 pandemic scenario, 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 IPR can be a hindrance to more and more people getting access to such essential products?  

Not really! The law in India is robust enough to ensure that the public interest will always be paramount. As an example, the Government can take over a patent if it believes that the innovation is necessary for the public and the patentee may not be making it available to the public at large at a reasonable/affordable cost. 

Q. What sets the Intellectual Property practice at ZeusIP apart from other law firms that also deal in patents, trademarks, copyrights, etc.?

The quality of service as well as the commercially viable strategy and approaches that we offer the clients to maximize their legal budgets for the best possible protection and enforcement. We pride ourselves as being the client’s partners rather than just legal counsels.

Q. Do you think the Intellectual Property Appellate Board is rightly teethed to deal with the various issues?

I do believe so! The intention of the legislature behind setting up of the IPAB was to have an authority focused on the intellectual property matters. The IPAB was fully empowered with all the authority as that of any High Court in the country and it offers a much speedier disposal of the IP matters than the IP owner would have to face before a High Court. The fact that it also eases the burden on the High Courts should also not be missed. 

Q. You are co-chair of the INTA’s India initiative to collaborate with the Indian Government (DIPP) for the spread of IP awareness amongst school going children. Could you tell us more about this initiative? Why is it essential for school students to learn about IPR?

Counterfeiting is a major menace in many ways. Studies show that in addition to revenue loss to the IP holder, it also contributes to the drug lobby as well as organized crimes. The idea behind educating children about the pitfalls of counterfeiting is creating awareness to not drive the demand for counterfeiting as well as contributing to bringing up an entire generation of legally aware and responsible citizens of the future. 

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?

With the infrastructure available today, working from home has become very easy. The teams have access to almost all resources as they had while in office. The culture is now setting in and working remotely is becoming seamless and painless. The only thing that is compromised is the team building which can only happen by way of interpersonal interaction. This is being addressed by us through various other channels like team meetings on various platforms, doing various group activities online, becoming an online community etc. We also actively mentor our people through weekly sessions which not only focuses on work related education but also acquiring life skills and a focus on mental and emotional health of our people has been very high on the agenda during this time.

Like everyone else, the time spent with family has been the greatest win of the lockdown. The opportunity to pursue hobbies like gardening, reading, painting has also been on the forefront. 

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