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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Kangan Roda is Partner at IlluminIP, an IP boutique firm offering a complete range of services in India relating to contentious and non-contentious Intellectual Property (IP) issues. The key areas of Kangan’s practice include Intellectual Property Rights – trade marks, copyright and designs. She has represented acclaimed companies from sectors like Fast Moving Consumer Goods (FMCG), Pharmaceuticals, Food & Beverages (F&B), Information Technology, Banking and others.
Q. On the personal front, why did you choose to specialise in IPR?
After having wet my feet in mostly all streams of the legal profession during law school and after that, I found myself drawn towards IPR the most.
Since something new is being penned every day, taking the world forward through innovation, protecting the innovation and the innovators’ interest is something that intrigued me — the back-end process, you know. Because of IPR relevance in today’s time specially in promotion and protection of research, innovation, and start-ups, I strongly believe that it plays an important role in any country’s economic development.
Unlike other statutes and streams of laws that are mostly bound or specific to our country, IPR thanks to provisions of the Madrid protocol also opened doors for the Indian IP experts to provide their services not just in domestic ambit but almost to all countries world-wide. The vast international field of play was one of the main reasons I chose to specialize in it.
Having said that, and having realized that IPR not only touches the higher end of the economy but also each and every fragment of the economy, I firmly believe that India is yet to realize IP’s full potential.
Here I would like to refer to a quote by Shakespeare, which was quoted in one of the judgments and it completely changed the way I look at IPR:
“Good name in man and woman, dear my lord, Is the immediate jewel of their souls: Who steals my purse steals trash; ’tis something, nothing; ‘Twas mine, ’tis his, and has been slave to thousands: But he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed.”
Q. During the COVID-19 pandemic situation, there are some essential innovations taking place across the world in the tech and medical spaces to provide much-needed relief to populations. Do you think IPR can be a hindrance to more and more people getting access to such essential products?
Well, this is a tricky one. It’s sort of a double-edged sword. With the innovations taking place around the world in especially medical space due to COVID and the pace with which it is happening, I think that IPR while playing an important role in more than one way also acts as a hindrance in getting those innovations out in the open for the public to utilise.
Having said that, it is extremely important that the intellectual property is protected but there are always ways to regulate it better in special circumstances such as this one.
The protection of the Research & Development/process involved in the making of the medicine/drug one, takes time and two, increases the cost of the drug for procuring such protections.
I believe for the pharmaceutical industry, these aspects must be taken care of by way of strategic policies and laws in the field of IP, which may help public to access the essential products faster and at a cheaper price.
Q. We are in the midst of an Artificial Intelligence boom. What are some of the challenges that AI is posing for the IP system?
The answer can be two-fold.
One, since we see AI already taking over basic jobs from humans and us seeing software advancement every day to try to cut on human errors and taking over their roles in certain industries. I don’t see that happening in IP system anytime soon. I am sure that the registration process and filings will soon be flawlessly atomized but when it comes to expertise and advisory no form of AI can take over the human mind. We IP experts have trained ourselves to find the right method, means and form to help another human protect its creation or concept by using the prevailing law in various shapes and structure, which only a human can comprehend.
On the other hand, ironically, there is another challenge posed by Artificial Intelligence for the IP system which is to distinguish between work created by humans and work created by machines itself. The current IP framework helps humans protect their IP rights which includes patents, copyright, industrial designs, and trade secrets but does not include extension of such protection to the machines. It is therefore going to be a need for the future to device a framework for protection of work created by an Artificial Intelligence mechanism itself.
Having said that, who knows that one day I will work on protecting such a technology unknowingly that may one day take over my job, as there are no limits to innovation. Hope it does not come to that though.
Q. We recently held a webinar during which the chief speaker, Hon’ble 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 indeed like “space” which has no limitations. Copyright subsists in a work as soon as the original work is created, which means that as soon as you type words (literary work), click the shutter on your camera or mobile phone (photography), apply paint to canvas or paper (artistic work) or lay down tracks for your next hit (musical/cinematographic work), you have acquired a copyright.
Most people are not aware of their own rights and therefore, the works are exploited both commercially and otherwise without the knowledge of its rightful owner. It is for this reason that better enforcement laws pertaining to copyright, to protect one’s copyright should be added both in India and internationally.
Q. As a young lawyer, have you experienced any India-specific problems pertaining to IPR?
Yes, in India, there is a tremendous problem pertaining to IPR which is the lack of knowledge among people regarding their own rights to protect their Intellectual Property, which at times leads to the exploitation of their work/research and innovations. There is a substantial gap in this system.
Though now our government is taking extensive steps in this directions and introducing multiple opportunities for start-ups and small enterprises to support them in protecting their IPR.
Q. The pandemic has forced shopping malls to shut down and most businesses are transitioning to online models as customers seek to get everything at their doorsteps. What relevance would IPR have in this major transition of businesses?
We have seen an exponential increase in e-commerce during the COVID and is expected to increase post COVID period as well.
I cannot say if IPR’s relevance has increased any more than it already was apart from every business whether small or big getting their IP registered, there has been an increase in the number of trade mark applications for sure but more than that this transition in business model has had a very interesting and relevant impact on enforcement of IPR.
Specifically, territorial jurisdiction pertaining to trade mark and copyright infringement suits. With the landmark judgment delivered by the Delhi High Court in the suit titled Ultra Homes Construction Private Limited Vs. Purushottam Kumar Chaubey and Ors. (commonly referred to as “Ultra Homes Judgment”), there has been a major shift in the territorial jurisdictions in IP infringement suits.
Our judicial precedents have established that every click made by a costumer for purchase is an acceptance of a contract. Applying the said principle, each click/purchase made by any person shall give rise for an independent cause of action to the holder of trade mark or copyright, in case of any violation of their rights. This opens a pandora box of forums, having jurisdiction to entertain suits for infringements especially with the mass reach of the e-commerce industry.
Another interesting aspect to the entire gamut of territorial justification, especially in the COVID-19 era is a shift towards digital courts from physical courts. While complete digitization of the Indian judicial system is a distant dream however, a movement in the said path has also opened a lot of other possibilities.
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?
On a personal level I have come to realize that as unprecedented as the times are right now, we all at some-point needed this break that the pandemic forced us to take allowing us to contemplate and review our choices on personal and professional front. Personally post the first month of complete lockdown and when things started to get back on track and work commenced, I felt more energetic, encouraged and had a new perspective on a lot of things which I would have done differently say if I did not have the contemplation time forcefully handed to me by COVID-19.
On a more professional front, we operate a paper-less office, which has been a blessing for us in the times of the pandemic and the lockdown. All our files are electronically maintained which makes accessing the records effortless and efficient. Honestly, I am amazed to see how well technology can be utilized to cater to one’s everyday functioning, when properly equipped. Having said that, adapting to the professional environmental changes has been smooth for me.
I am a strong believer of “Necessity is the mother of invention”, and therefore, adapting to the changing times is need of the hour.
To answer the second part of your question, when I am not working, I love to go out for nature walks and I am quite passionate about photography. I try to catch up on what’s trending in terms of movies/ web series and spend as much time as I can with my loved ones and my dog Noddy, a Labrador.
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Namit Saxena is an Advocate on Record at the Supreme Court, who secured the second position in the AOR exam. He is the revising author of The Code of Civil Procedure (Mulla) and The Code of Criminal Procedure (Ratanlal and Dheerajlal). He is an alumnus of the Dr Ram Manohar Lohiya National Law University, Lucknow.
Q. What are the practice areas that you specialise in?
While the practice areas are diverse, I work more on the criminal side. We also work on various constitutional law issues.
Q. You often write for various publications on different subjects pertaining to the laws. What are the issues of jurisprudence and legal theory that you find to be the most interesting, especially as a practicing lawyer who may come across some of them while researching?
Criminal law and constitutional law are the most attractive fields. While researching on a few issues, I have found the background of Supreme Court judges and their personal beliefs or understanding of various laws, the most interesting. For example – Justice Rohinton Nariman has had a strong fascination towards the ‘manifestly arbitrary doctrine’ which says that even parliamentary enactments can be nullified for being manifestly arbitrary. He argued this as a lawyer in McDowells case (1996). Later when he became a judge, he has used the same in multiple judgments. I strongly believe that study of a judgment is incomplete without studying the judge behind it.
Q. Have you faced any systemic problems as a lawyer? What kind of changes/improvements would you like to see in the Indian justice delivery system?
Lawyers face multiple systematic problems. These range from client handling, accepting fees, mode of accepting fees, assuring timely payment of fees, drafting and approaching the court timely, extracting useful documents from the bunch of documents clients handover to you, re-filing the case by curing defects, dealing with registry officials, getting the case timely listed, serving an advance copy (except in Supreme Court), updating the client, briefing a senior advocate if the client insists, arguments, process fees/spare copies, maintaining records and dates, follow up with the client, etc. All of these carry different problems at all levels.
The best change would be to prescribe time limits for everything – Eg. duration for presentation of chargesheet by the investigating agencies after completion of investigation should be defined.
Similarly, time should be fixed for each matter for hearings. Advocates waste a lot of time while waiting for matters to reach the hearing from the cause list. If all matters have fixed time for hearing, eg if it is fixed that item 47 will be taken up at 03:15pm in a court, a lot of time will be saved and can be utilized better by lawyers.
Q. You were among the top two when the AOR exam results were announced earlier this year. It’s a big achievement. What advice would you like to give to lawyers preparing for the AOR exam?
Supreme Court Rules, 2013 and relevant provisions of the Constitution should be thoroughly learnt. For Drafting paper, one must be thorough with the formats. For the examination on Leading Cases, the background and follow-up of all cases must be well known.
Q. Do you think the coronavirus-induced lockdown has been a blessing in disguise for the initiation of bringing technology into courts? Can legal technology, based on Artificial Intelligence and data analysis, in the long run, make the judicial system more efficient?
It is both a boon and a bane. For young lawyers, lockdown has made it difficult to sustain themselves. Use of technology will be better if the Courts also adapt to it. E-filing and virtual hearings have been a boon. It relaxes the travel time for lawyers. I think AI is already in use to a certain extent in the field of practice of law. It can be developed better.
Q. How do you like to unwind when you are not working?
I have been investing time into learning gardening. That is very relaxing.
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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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Attached to the Chambers of Ketan D. Parikh (Senior Advocate), Hussain Somji is an Advocate with experience and focus on Dispute Resolution and practices as Counsel in civil and commercial dispute cases. He also accepts appointments as Arbitrator and Mediator.
Currently, he is enrolled for the Executive LLM from the London School of Economics and Political Science (LSE). He already holds an LLM (Arbitration and Dispute Resolution) from the University of Hong Kong (HKU).
He is admitted as a Fellow and as Faculty with the Chartered Institute of Arbitrators (CIArb) and has undergone formal 40 hours training in Mediation from the Accord Group in Australia.
He was a Member of the First Young MCIA Steering Committee, is a Core Committee Member of the Young Members Group (YMG) with the CIArb India Branch and a Founder Member of the Association of Mediation Practitioners (AMP) in Mumbai, India.
Q. As a Counsel at the Chambers of Ketan D. Parikh (Senior Advocate), what are your practice areas, and could you talk about some interesting or noteworthy cases that you have worked on?
Following the chamber tradition, my practice area is civil and commercial disputes with focus on arbitration as a procedural mechanism to resolve those disputes. I am instructed by law firms / independent advocates to appear as counsel in arbitration proceedings. In addition, I accept appointments as arbitrator and as mediator.
The second part of the question would be difficult to answer considering that I must maintain attorney-client privilege. Be that as it may, some of my recent cases involve disputes arising from joint venture in the telecommunications industry, development agreements in the real estate sector, partnership disputes, disputes arising from works / services contracts issued by public sector / government bodies and disputes in the construction industry with contractor(s), sub-contractor(s) and similar.
Q. You are a Faculty with the Chartered Institute of Arbitrators (CIArb). Could you tell us more about this Institute and how could one become a member of CIArb?
CIArb, headquartered in London, is one of the oldest and most reputable body engaged in the training and accreditation of arbitrators. They have branches all over the world and those holding membership with CIArb are part of various professions and industries. Recently, they have introduced mediation courses and accreditation pathways. For more details, one could visit ‘https://www.ciarb.org/’.
In India, there is an active CIArb India Branch with some of the most prominent arbitration practitioners on its Board of Directors. There is also a CIArb YMG Group (of which, I am a part) in India that spreads awareness about the body as also its courses amongst students, practitioners and all those interested below the age of 40 years in its training and accreditation courses.
The website above contains the details of how one can be associated with the CIArb and its course pathways. If anyone is interested in connecting with the India Branch to learn about its courses and accreditation pathways, they could write to me and I would be happy to pass on that inquiry to the concerned officials.
I would also like to add that in my experience of academia thus far, CIArb course content and training pathways are of highest quality. I can say this because not only have I attended and completed the pathway in arbitration till the ‘Fellowship’ level, but also lecture for CIArb courses (when called upon to do so) conducted in India as ‘Faculty’.
Q. What do you have to say about the Arbitration mechanism in India and its comparisons to countries like Singapore, London, etc.?
This question has many aspects and it would only be fair to say that one would need to dedicate an entire book on it. In recent years, with support from the Judiciary and the Government(s) (both Central and States), there has been a push for resorting to arbitration (and mediation) as dispute resolution mechanisms, atleast in civil and commercial disputes that are arbitrable. As a result, keen interest has been shown by disputes practitioners towards arbitration including the academic / educational institutions resulting in continuous improvement and adoption of best practices followed around the world.
When it comes to domestic arbitrations, there is diversity in the practices followed in different parts of the Country as also within a State / City. The reason being that the culture of arbitration practice develops over a period with the procedure and guiding principles followed by arbitrators in that region. Whilst I am aware of enormous criticism of delays / expense involved in domestic arbitrations, my experience has been completely different. The 2015 amendments to arbitration law were criticized because timelines were introduced for the first time and was perceived as an interference in party autonomy and an additional procedural burden. However, many will agree that it has had the effect of making arbitrators conscious about timelines and that frequent extensions from Courts will not reflect well upon the arbitration tribunal and its members. There is constant improvement with non-judge arbitrators now being appointed by the courts. However, to steers domestic arbitration culture in the right direction, what is needed is a shift in the mindset of disputes practitioners and remain committed to the schedule and timelines laid down by the statute as also the arbitral tribunal / institutions. Arbitrations administered by arbitral institutions is a rather recent phenomenon that is still in its early stages of adoption by parties in India. Institutions like the Mumbai Centre for International Arbitration (MCIA) are doing remarkable work in this area and are receiving recognition around the world. Even educational institutions in India are now taking keen interest and focusing on developing academia in this branch of law.
International Arbitrations seated in India or involving Indian Parties have the benefit of international best practices available for it to be adopted because of foreign elements already involved in such proceedings. The culture itself is quite different forcing parties to behave and act in a particular way. Complaints of delay / expenses is relatively less than domestic arbitrations.
When it comes to arbitration law and practice, every country has its own characteristics that define the success of the practice of arbitration in that region. All popular international arbitrations seats such as London, Paris, Singapore, Hong Kong, Stockholm etc have not only had a head start in terms of support from the Judiciary, the Government, Educational Institutions, Lawyers, Parties and other actors involved but also on account of volume of international trade, infrastructure, geographical location and an established legal industry in that region making it a popular choice for parties. It is difficult to compare jurisdictions such as India with the rest of the world because it is not only unfair but also that there is a cultural difference in each jurisdiction. Be that as it may, it would be wrong on my part if I didn’t point out that there is a long way to go for India when it comes to arbitration practice and though there is movement in the right direction, we can only hope that all actors involved in the process adhere to the professional standards and ethics needed to help resolve disputes using the arbitral mechanism.
Q. You hold an LLM (Arbitration and Dispute Resolution) from the University of Hong Kong and have enrolled for the Executive LLM from the London School of Economics and Political Science. From the legal education point of view, what do you think is the difference between reading law abroad and in India?
Funding of educational institutions in India is a big concern. If the educational institutions are not adequately funded, they cannot deploy more resources to conduct research in areas that demand it, and which ultimately results in a stagnant branch of law only dependent upon judges and precedents. This makes dependent on journals / commentaries written by foreign authors. If educational institutions are not considered to be an important part of the entire eco system for improving the making as also enforcement of law, improvement will stop. This is one of the most important differences in education in India as opposed to outside of India. Change is seen lately but there is an urgent need to involve educational institutions and leading academicians in major policy decision making process. It will not only aid the judicial function but also have a positive impact on every industry / society that is dependent on the judicial system for its efficient functioning.
From a learning standpoint, one of the major differences (based on my experience alone) was that there is little emphasis on classroom training but more emphasis on independent research and creative thinking. There is also a lot of flexibility in terms of how the assessment for each course / subject is done. For instance, for each course during my LLM at HKU, there was a different mode of assessment ranging from an essay of 8000 words to an 8-hour open book exam to in-class handwritten 4-hour exam to role play assessments and so on. There are also opportunities for students to apply for and accept (if offered), paid engagements with Professors and assist / aid in research projects involving contribution to academic journals. We may have the required infrastructure, but we lack in providing students with access to international databases and law journals. Another thing noticed is that the targeted audience is not just students but also practitioners and an attempt is also made to bring together a mix of the two so that learning by sharing becomes a reality. There is also focus on diversity in the classroom that attracts students with varied experiences and practices which adds to the overall learning experience.
Since I have only read law abroad during my masters, I would not be competent to comment on the difference between reading law as an undergraduate in India and outside of India.
Q. Due to this pandemic and the consequent lockdown, the Courts in India have been functioning through video conferencing. Do you think that technology in the long run could make the judicial system more dynamic and readily approachable?
Since my practice requires me to attend courts very sparingly, from what I have learnt, the experience of attending Courts through video conferencing has been pleasant and more systematic.
With the success of deployment of technology in every industry, it can hardly be said that its deployment to aid judicial functions in Courts in India will prove otherwise. However, with the diversity in experience and exposure levels of Parties and especially Advocates to using technology, some investment in infrastructure within Courts and in training would become essential if one were to reap its advantages in the long run.
I am confident that with deployment of technology and adequate training, not only will the Courts become approachable for parties but also that it would make disposal rates quicker thereby reducing overall costs.
Q. According to you, what does the future hold for Online Dispute Resolution?
There is often confusion between what this term ‘ODR’ means. Is it the traditional dispute resolution mechanism adopting electronic modes of communication or resolving disputes entirely in an online environment where the role of technology is more than just facilitating communication. In my view, it ought to be the latter.
Whilst the former was always a possibility considering that video conferencing technology and similar was always available, it has become more prominent and widely used during the present pandemic.
In so far as technology facilitated dispute resolution mechanism is concerned, it is still early days to predict its future in any part of the world. This is because unlike the traditional mechanism where there still exists human involvement and judgment in resolving disputes, the latter would entail relying upon technology to predict / suggest outcomes. Whilst AI technology has been received positively by law firms around the world, when it comes to disputes, only time will tell how researchers around the world develop this further.
Q. What do you like to do in your free time?
Playing with our 17-month-old son, reading books (not related to law), listening to music and time permitting, gaming.
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An Associate Partner at P&A Law Offices (Mumbai), Vijay Purohit is a Dispute Resolution Lawyer with around 11 years of experience. Vijay’s practice areas include contractual and commercial disputes, civil litigation, insolvency & bankruptcy and white-collar crimes. He has represented clients from India and overseas, as well as Public Sector Undertaking (PSUs) in a wide range of disputes in the oil & gas, energy and power sectors. Vijay has conducted domestic & international commercial arbitrations (both ad-hoc and institutional). He is a member of the Chartered Institute of Arbitrators (CIArb).
Q. Could you tell us about P & A Law Offices and the firm’s key practice areas?
P&A Law Offices assists and advises clients in India and internationally on a wide range of corporate commercial transactions as well as on dispute resolution matters. The industry areas where the firm has advised and appeared for clients include power, infrastructure & mining, healthcare, pharmaceuticals & chemicals, TMT & IT, Real Estate, Consumer Goods & Services, E-Commerce. The firm has a robust dispute resolution practice and the team has been a part of notable commercial arbitrations and investment treaty arbitrations. The dispute resolution team has also been a part of some landmark judgments in the domain of insolvency and bankruptcy.
Q. What do you have to say about the Arbitration mechanism in India and its comparisons to countries like Singapore, London, etc.?
With the 2015 (and certain subsequent) amendments, significant steps have been taken to make India an arbitration friendly seat. While there is still room for improvement in order to match or come at par with the arbitration regimes in the jurisdictions you have mentioned, a lot is being done by all the stake holders i.e. the government, judiciary, arbitration practitioners and importantly, businesses to make arbitration a desired mode of dispute resolution in India.
Take for instance, the issue of enforcement of a foreign award in India. The recent trends have shown a pro-enforcement approach by the courts, including the Supreme Court. Similarly, the approach of courts as far as interference in arbitration proceedings is concerned, is becoming minimalistic. We have seen homegrown arbitral institutions (such as MCIA) coming up in India to make the arbitration ecosystem more robust. So yes, the future looks bright.
Q. Do you think AI and machine learning can enhance the legal industry?
Innovation and technology are good for any industry, if productivity and the quality of deliverables are enhanced. AI can act as a support to the legal industry, particularly with respect to legal research. It can reduce the time spent by lawyers in doing research manually. Lawyers can in turn spend the time thus saved by using AI in activities which require focused attention and deliberations.
Q. The outbreak of Covid-19 has forced Indian courts to go online. Do you think this virtual/digital system of courts can become an integral part of the judiciary?
Definitely. While I think that it is not possible to do away with physical hearings completely, the system of virtual hearings can certainly act as an aid in hearing matters which do not require adducing of evidence. For example, first appeals or second appeals where the courts have to rely on the existing record and oral hearings, can be heard through video conferencing. We have seen courts even hear final arguments through virtual hearings during the pandemic. Likewise, a lot of arbitrations are taking place through virtual media.
While there are a lot of positives from this, factors such as internet connectivity/access to internet, remoteness of a location, training the staff as well as lawyers (particularly in Tier-II and Tier-III cities) are also required to be considered before virtual hearings become a norm. Once these issues are addressed, virtual hearings can surely be a value addition to our justice delivery system.
Q. You have been practicing for over a decade now. What has been your biggest takeaway from this profession?
The journey (which is now a little over 11 years) has been an enriching one. As it is in every profession, the formative years are very important. In that sense, my initial years in the legal profession were full of learning. I have been, and continue to be, mentored by some great seniors. In this profession, you deal with people from diverse sectors and businesses. You learn about these businesses (some of which are very technical) and business models. As a lawyer, you are (and ought to be) always aware of the social, economical and political developments as these developments in some way or the other coincide with the legal profession. Therefore, it is also very important to develop a reading habit as a lawyer. These are some of my takeaways thus far.
Q. During your college days, you participated in a lot of moot court competitions. In fact, in 2009, you were a Coach for the Philip C. Jessup International Moot Court Competition (Indian regional Round). How important do you think is mooting for law students? Also, if you could share some tips for acing the art of mooting, that could be beneficial for students.
Mooting is an extremely helpful activity in developing research, articulation and oratory skills. It also helps in developing/improving analytical and problem-solving skills. To be good at it, one needs to carefully dissect a moot problem and identify the research points; strategically divide the research point amongst team members and finally, identify the relevant material to be put in a memorial. As for the oratory skills required for mooting are concerned, one can improve gradually by taking part in moot court competitions regularly. Having said which, it is equally important to focus on your academics and other activities such as writing research papers, paper presentations, internships etc.
Q. What skills have you found vital to become a successful lawyer?
It is very difficult to put these skills in a straight-jacketed formula because as a lawyer the learning never stops, and one learns daily. However, to answer your question, and based on my observation of those who have made a mark in this field:
(a) It is very important to develop a reading habit [right from the law school days], as I said at the outset.
(b) While one must do as much hands-on work as one can, it is important to be a team player.
(c) Keeping one’s self updated about one’s practice domain is a must.
(d) Understanding a client’s requirements and suggesting the best legal strategy to meet such requirements is an important skill, which one develops over a period of time.
(e) Lastly, one needs to be extremely patient in challenging situations as this is a very intense profession.
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Dr. Amar Kumar Pandey, is an IPS officer and Additional Director General of Police (Law and Order), Karnataka. He has a PhD from the National Law School of India University (NLSIU), Bangalore, in refugee studies.
In Bosnia and Herzegovina, Dr. Pandey has served as Human Rights Officer in Banja Luka and as Human Rights Coordinator in Doboj region as a peacekeeper in the United Nations Mission. In Sierra Leone, he has served as Police Monitor in Makeni and as Police Advisor to the National Police in Freetown in the United Nations Mission.
Dr. Pandey has been awarded the Police Medal for Gallantry by the Government of India, and decorated with the President of India Medal for Distinguished Service and the President of India Medal for Meritorious Service. He has been awarded the Medals of Service for International Peacekeeping Service in the conflict zones of Bosnia Herzegovina and Sierra Leone by the United Nations. He is the recipient of the prestigious Zachman Award in the field of Enterprise Architecture.
Q. What are the problems that the police force is facing, in Karnataka specifically or generally pan-India, in dealing with the law and order situation during the Covid-19 pandemic?
The pandemic is universal and hasn’t spared the policemen or the medical fraternity. Both the entities were the first line of public defence which encountered the gradual onslaught of Covid-19. Across the country, more policemen have laid down their lives, going beyond the call of duty braving the pandemic than in any ‘Law and Order’ or ‘insurgency’ problems. Policemen have proven to be the true saviours as the last sentinel against the deadly virus.
The pandemic came to the country in waves – first came the foreigners from some of the affected countries and spread the virus absolutely unknowingly. The next wave happened with Tablighi Jamaat Markaz where a few infected persons from abroad also participated and it spread to local members of the Jamaat. The third wave happened with large scale migration of ‘shramic’ to different parts of the country which made the traceability impossible .
The policemen were in the forefront in all the management issues of the three waves of spread of the virus. Police traced the foreigners, Tablighi Jamaat members spread across the country and ensured food, shelter and safe movement of ‘shramic’ across the nation .
The duties at public places, arranging safe passage of essential commodities across the country while ensuring effective lockdown over a long period posed unthinkable problems to police which were overcome with unprecedented unity, commitment, dedication, superb coordination across the different states and manning the inter-state and inter-district check posts effectively .
The police rose to the unimaginable challenges with zeal, enthusiasm and sincerity never experienced by the nation before and which brought tears to the eyes of sensitive people. The Indian Police reflected the true meaning of unity and integrity before the country.
Q. You headed the team that recently got underworld don Ravi Pujari extradited from Senegal. Were there any problems in terms of international law that you faced in achieving this feat?
Ravi Pujari is the country’s most feared underworld don absconding since 1994 after committing numerous murders in Mumbai, Karnataka, Gujarat, Kerala and other parts of the country. There are over 200 cases against him ranging from murders, attempts to murder, extortions and Arms Act cases. He was with Dawood Ibrahim Kaskar for ten years as a key gangster and separated with him over the Mumbai Blast of 1993. Chota Rajan (now in jail) another dreaded gangster made a deadly underworld company with Ravi Pujari. Together the duo eliminated a dozen key operatives of Dawood Ibrahim Kaskar or the D – Company. Dawood has escaped to Dubai and is now said to be hiding there in the protection of governmental elements of enemy nations.
Ravi Pujari left Chota Rajan over a serious misunderstanding and went with a dreaded toughie Guru Satam and formed his own company of gangsters with hardcore and lethal sharpshooters. He bent entire Bollywood to its knees. The businessmen, politicians and professionals including lawyers did not escape his ire. He got everything done in India what he wanted while sitting abroad.
For the last 24 years all were gunning for him – India’s agencies, Dawood gangs and Chota Rajan gangs besides police forces of Maharastra, Mumbai, Karnataka, Delhi, Gujarat, Kerala and other states. In fact, hundreds of cases were closed as untraceable against him .
In this background one has to understand the international effort made by me singlehandedly. The ‘singlehand’ sobriquet was given to me by DGP Karnataka after the successful arrest of Ravi Pujari in Senegal.
There was absolute understanding between the two countries – the requesting country India and requested country Senegal. The two countries don’t have any extradition treaty which was an issue in the beginning. But we made a request under the bilateral treaty under the Treaty on Prevention of Organised Crime (UNTOC) Art. 16 which was agreed upon immediately. Besides, we made a request based on ‘principal of reciprocity’ in good faith which Senegal Government consented to as an international gesture between friendly countries.
The gangster Ravi Pujari also got to exercise his full legal rights through the various courts by hiring the most expensive lawyer in Senegal. He fought for his rights not to be extradited in the Supreme Court of Senegal which finally rejected his request on February 19 this year on the grounds of agreement between sovereigns and sufficiency of evidence submitted before the honourable Supreme Court of Senegal with all due processes complied with.
In fact, in case of extradition of another gangster Abu Salem from Portugal, due to certain procedural lapses the extradition request was first rejected and the government of India had to explore several alternative mechanisms to finally extradite him.
However, with my personal observance and appropriate support from National Crime Bureau (NCB) India, Ministry of Home Affairs and Ministry of External Affairs for all procedures being complied in time, the dreaded don Ravi Pujari got extradited without any trouble which is a matter of national pride and personal satisfaction for me.
Q. Your book ‘The Architecture of Return in Civil War’ provides a very detailed analysis of the return of refugees in post-civil war situations, with special references to Bosnia Herzegovina and Sierra Leone. Your PhD thesis was on refugee law. What makes you so interested in the issue of refugees?
I was deputed by the Government of India as part of the Peace Keeping Operations to Bosnia – Herzegovina (1998-99) and to Sierra Leone ( 2004-05). I was part of the International Peacekeepers as United Nations Civil Police ( CIVPOL). In Bosnia I headed the Doboj Region Human Rights unit as the Regional Coordinator and in Sierra Leone I served as the Advisor to the Sierra Leone Police.
I extensively toured the two war ravaged countries where the people had fled during the civil wars and were returning to the countries after the peace agreements had made provisions for return.
I directly addressed the problems of refugee return in Bosnia starting from the moment intent of return was expressed by the refugees through physical appearance in my office or by letters written until the refugees settled on the property which belonged to them before the civil war.
I have personally dealt with the entire gamut of issues connected with the return of refugees in Bosnia and it changed me a great deal to personally experience the hardships of refugees.
In Sierra Leone, though I did not directly deal with the subject of return but due to my interest in the issue from my Bosnia experience, I visited refugee camps and interacted with refugees who were staying in camps during civil wars and those returning from returning countries, as the UN peacekeeping monitor in Makeni and other parts of the country.
The experiences in both the countries motivated me to acquire better knowledge and understanding of the issues of the refugees’ return and I enrolled for a Ph D programme at the National Law School of India University, Bangalore under Prof. Vijayakumar, UNHCR Chair at the university, on the thesis of refugees’ return .
Q. You have received the prestigious John Zachman Award for Enterprise Architecture. How important is enterprise architecture in aiding the police in doing its job more smoothly and should there be training for officers on this subject?
The Zachman Framework of Enterprise Architecture was developed by leading philosopher John Zachman in the 1950s. This is a very important framework taught, discussed, debated and commented upon in all leading universities to the students of Computer Science, Information Technology and Industrial Management .
Zachman Framework is a very complex framework which deals with the complexities of millions of variables which interact with each other sequentially and simultaneously to decide the destiny of an enterprise’s creation, sustainability, continuity and longevity.
Most fortune listed and billion dollars businesses and industries have been making best efforts to comprehend the Zachman Framework and to adopt it in their functioning to ensure longevity of their enterprises. But many have given up on the framework due to lack of comprehension and inability to integrate the variable in their own enterprises. There have been questions raised regarding the existence of an all encompassing framework to explain the enterprise anatomy and its criticality and functionality. Many find the framework to be an utopia .
However, I have been a student of the framework since 2009. I always felt enormously awed by the imagination of a master crafter of the framework who could think of venturing into the area of integrating millions of variables of an enterprise.
The sheer audacity of thinking of a framework is akin to the ancient astrophysicist who would have said that there are billions and billions of galaxies in the universe. The truth is out now and we all believe it today as proven through our scientific research and findings.
I am a policeman. I feel naturally attracted to look for discovery of a fact through experimentation with vague suspicions or hypothesis. I began to validate with existing facts of investigation of crime and its superimposition with the Zachman Framework. I surprisingly found that the framework holds good specially with limited and controlled experimentations. Gradually I expanded the variables in the framework and found it to be still valid.
Hence, while doing my PhD I wished to validate the framework in the refugees’ return matrix. I found it works and provides a definite mechanism, schema and framework which can be worked upon by the planners and policy makers to save time and costs, to optimise the effectiveness of the goal, i.e. refugees’ return.
I feel it is a beautiful framework, unparalleled and the only one available to comprehend extreme complexities and unravel the mystery of system of systems. I feel the need to make Zachman Framework a part of more elaborate curriculum for future generations that would help the students and future citizens and academicians of the country think, plan and execute in a better manner .
Q. The police has to intrinsically deal with the judiciary and the laws on a regular basis. What are the systemic problems that cops usually face in dealing with the laws — in their investigations, filing FIRs, reports or chargesheets, etc. — and how can they be fixed?
The Police and the Judiciary are part of the country’s Criminal Justice system. The end goal or maxim of both the institutions are the same ‘ aut punier aut dedere ‘ – offender must be punished .
The police has myriad problems while investigating the cases in terms of collection of evidences and present before the courts. The laws don’t pose problems, the situation does, in the sense of the enormity of cases, volume of cases, technological issues and shortage of staff and so on, do create problems for police.
The police actually needs more technology, better integrations of data, highly trained experts to support investigations and uniform formatting of flow of information. The Zachman Framework can be a very useful framework to reorganise situations in this area to make a better policing infrastructure.
Q. Do you think that police personnel lack training in dealing with collection of forensic evidences during investigations?
Forensic training is an integral part of police training. The collection of physical evidence is not such a problem. But when it comes to cyber forensics, financial forensics, material forensics and such other very specialised criminal pattern then the police feels the inadequacies. In fact, a more holistic and integrated training in all aspects of forensics is the need of the hour.
Q. Last month your Personal Assistant had tested positive for coronavirus following which you and your family had to go into quarantine. Thankfully you and everyone in your family tested negative for Covid. You’re an officer with immense responsibilities but ultimately you’re human. What kind of emotions or apprehensions did you have when you underwent the test?
Yes. It is a fact. My PA had no symptoms except the fever and backache. She informed me and went for a check up. The test results came as positive and being a primary contact I quarantined myself and my family too as a precaution. She recovered well. I was worried for a while for my family and my own self. It was also being covered in the media which had huge impact on the mind as being something too terrible, which it is actually for some unfortunate people who are not amidst us today. However I exhibited no sign of internal turmoil lest it disturbs the family and friends. I and my family went for the test separately and fortunately it turned out to be negative for us. Gratefully, it has gone off well so far.
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Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
Top of FormS
Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
Environment and Sustainable Development – A Balanced Approach - Nayan Chand Bihani
The debate between protection of the environment and sustainable development is an age old one and is growing in proportion with every passing day all over the world, in general and specifically with respect to developing countries like India, in particular.
The Stockholm Declaration on the Human Enviornment,1972 categorically stated that man is both the creator and the moulder of his environment, which gives him physical sustenance and affords him the opportunity of intellectual, moral, social and spiritual growth. In the long run and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspect of man’s environment, the natural and the man-made, are essential to his wellbeing and to the enjoyment of basic human rights-even the right to life itself. It also states that the protection and improvement of the human environment is a major issue which affects the wellbeing of peoples and economic development throughout the world, it is the urgent desire of the people of the whole world and the duty of all the Governments. The Declaration, in Principle 2, states that the natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural eco-systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. It further, in Principle 8, states that economic and social development is essential for ensuing a favourable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life.
A milestone in this field is the Rio Declaration on Environment and Development, 1992. It, interalia, states that human beings are at the centre of concern for sustainable development and that they are entitled to a healthy and productive life in harmony with nature. It also states that the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. It states that in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it and that to achieve sustainable development and a higher quality of life for their people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies. It contemplates that the States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. The Declaration states that in order to protect the environment, the precautionary approach shall be widely applied by the states according to their capabilities and that environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.
Initially, the trend was to use ‘Polluter Pays’ principle and punish the offending unit. Subsequently, vide judicial decisions, the principle of sustainable development was widely applied so as to balance the two principles.
The Polluter Pays principle talks about the liability of the polluter. With the increase in the industrial development what subsequently also increased is the waste emitted out of these industries and as a result of these wastes not only were the immediate surroundings adversely affected but also the environment at large. There is no specific definition of the Polluter Pays principle, rather it is a practice emphasising on the fact that one who pollutes the environment should be held accountable and responsible for the same with consequential steps to be taken. The principle not just focuses on punishing the polluter but its main criterion is to ensure that the polluted environment returns back to its original state. The reason behind it is to promote ‘Sustainable Development’. Thus it can be summed up that Polluter Pays principle is an essential element of sustainable development. Therefore, whosoever causes pollution to the environment will have to bear the cost of its management. The principle imposes a duty on every person to protect the natural environment from pollution or else he will be responsible for the cost of the damage caused to the environment. The main reason behind imposing a cost is two folds. Firstly, to refrain any person from polluting the environment and secondly, if in the case there is pollution then it is the polluter’s duty to undo the damage. Hence, both of the above ensures that there should be sustainable development. It is pertinent to mention that the Polluter Pays principle is not a new concept. It was first referred to in 1972 in a Council Recommendation on Guiding Principles Concerning the International Economic Aspects of Environmental Policies of the Organisation for Economic Co-operation and Development. The same is also enshrined in Principle 16 of the Rio Declaration, which states that ‘the polluter, in principle, bear the cost of pollution.’ The need of the hour is a demonstrable willingness to adhere to the essence of the principle in order to ensure that there is development, but not at the cost of causing environmental degradation.
The Hon’ble Supreme Court of India in the case of Indian Council for Enviro-legal Action vs Union of India reported in LQ/SC/1996/358, interalia, putthe absolute liability upon the polluter for the harm caused to the environment.
The Hon’ble Supreme Court of India in the case of Vellore Citizens Welfare Forum vs Union of India, reported in LQ/SC/1996/1368, interalia, accepted the Polluter Pays Principle as a part of the Article 21 of the Constitution of India and also emphasised Article 48A and Article 51A(g) of the Constitution of India.
The Hon’ble Supreme Court of India in the case of Amarnath Shrine reported in LQ/SC/2012/1121, has categorically stated the right to live with dignity, safety and in a clean environment.Article 21 of the Constitution of India, guaranteeing the right to life is ever widening and needs to maintain proper balance between socio-economic security and protection of the environment.
The Hon’ble Apex Court in the case of Bombay Dyeing and Manufacturing Co Ltd- vs – Bombay Environmental Action Group reported in LQ/SC/2006/206, interalia, states that the consideration of economic aspects by Courts cannot be one and it depends on the factors of each case. However, strict views ought to be taken in cases of town planning and user of urban land so as to balance the conflicting demands of economic development and a decent urban environment. Ecology is important but other factors are no less important and public interest will be a relevant factor.
The Hon’ble Supreme Court in the case of Dahanu Taluka Environment Protection Group –vs- Bombay Suburban Electricity Supply Company Ltd reported in LQ/SC/1991/157, has held that it is primary for the Government to consider importance of public projects for the betterment of the conditions of living of people on one hand and necessity for preservation of social and ecological balance, avoidance of deforestation and maintenance of purity of atmosphere and water from pollution and the role of the Courts is restricted to examine the whether the Government has taken into account all the relevant aspects and has not ignored any material condition.
The Hon’ble Supreme Court of India in the case of Narmada BachaoAndolan vs Union of India reported in LQ/SC/2000/1509, interalia, reiterated the Polluter Pay Principle.
A milestone case is that of M C Mehta vs Union of India reported in LQ/SC/2004/397, wherein the Hon’ble Supreme Court explained the Precautionary principle and the principle of Sustainable Development. It was, interalia, stated that the development needs have to be met but a balance has to be struck between such needs and the environment. The Hon’ble Supreme Court also reiterated similar views in a series of cases, some of which are stated hereinbelow;
LQ/SC/2007/1421
- M C Mehta vs Union of IndiaLQ/SC/2009/1231
- Tirpur Dyeing Factory Owners Association vs Noyyal River Ayacutdars Protection Association &Ors.LQ/SC/2009/1891
An interesting question came up before the Hon’ble Supreme Court with regard to the setting up of nuclear power plants with regard to the possibility of considerable economic development weighed against risk of feared radiological hazard. The Hon’ble Apex Court in the case of G.Sundarrajan –vs- Union of India reported in LQ/SC/2013/536, interalia, held that the Courts will be justified to look into the aspect as to the opinions of experts and the adequacy of safety measures and will be justified to look into the safety standards being followed by the Nuclear Power Plant.
The Hon’ble Supreme Court, in the case of Lal Bahadur vs State of UP reported in LQ/SC/2017/1384, interalia, emphasised the importance of striking a balance between the two principles.
An important development is the advent of the National Green Tribunal which has the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and relates to the Acts specified in Schedule I, namely the Water (Prevention and Control of Pollution) Act, 1974, the Water(Prevention and Control of Pollution) Cess Act, 1977, the Forest Conservation Act, 1980, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991 and the Biological Diversity Act, 2002. The National Green Tribunal, since its inception, has been looking into the aspects of environmental pollution and the mitigation thereof.
It can thus be said that both the environment and development are essential in the modern world for the betterment and living standards of the people. However, rampant and unplanned development at the cost of the environment is not to be entertained and the Courts will keep a close watch into the aspect of sustainable development, interalia, based on the criteria and guidelines, as specified.
Nayan Chand Bihani is a practising advocate at Calcutta High Court. Mr. Bihani pursued his LL.B from the Calcutta University College of Law, Hazra Campus and was enrolled as an Advocate in December,1998. Mr. Bihani deals mainly with Writ petitions, specially in Environmental laws, Election laws, Educational laws, Municipal laws, Service laws and Public Interest Litigations. He also represents several authorities like the West Bengal State Election Commission, the West Bengal Pollution Control Board, the State of West Bengal, several Educational Institutions and Universities and several Municipalities and Municipal Corporations and the Odisha Pollution Control Board. He can be contacted at nayanbihani@gmail.com.
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