Akanksha Antil is the Founder of ‘To Whom It May Concern’, an India-based legal talent management firm. She has over 10 years of experience in the recruitment, training and consulting space. Akanksha graduated from the National Academy of Legal Studies and Research (NALSAR) University in 2008 and found her calling in legal talent management space. She joined Rainmaker, a legal executive search firm, in 2009 and continued at Vahura until 2014. With this experience, she joined Cyril Amarchand Mangaldas (erstwhile AMSS) and help structure and manage their pan-India talent practice.
Q. You have extensive experience in the field of legal talent management. As a lawyer, what led you to decide that you want to focus on the areas of recruitment, training and consulting?
Joining the field of legal recruitment was not an immediate decision after college. I knew what I did not want to do viz. joining a corporate house or a law firm. Also, not so many career options were available at the time I graduated. I sat for judicial service coaching, spoke to people from different fields, worked with Central Information Commission for some time. In hindsight, meeting all these people from different backgrounds (students and professionals beyond the National Law School circuit) was instrumental in making me a good recruiter and a consultant. Then, one of my friends from law school told me about Rainmaker, a legal talent management company and it was love at the very first sound of it. I immediately knew what I wanted to do professionally. Working there was amazing and among other things, mentoring law students was very fascinating.. Rainmaker then (later Vahura) was a start-up led by a bunch of national law school students and HR professionals offering legal recruitment services. Working at Rainmaker and Vahura (in their formative years) was a fantastic and an enriching experience.
Q. During the Covid-19 pandemic, everyone’s mental state has been significantly affected. How would you recommend that candidates cope with the current situation and what factors should be considered while preparing for an online interview?
Firstly, one should not consider that the pandemic is a unique situation affecting only an individual, it’s a universal phenomenon. These difficult times are a good reminder of our privilege and we should be extremely thankful for them. Everything else is manageable. Of course, the pandemic is going to impact hiring for the next couple of years, especially those looking to join the workforce. Therefore, it is also the right time to prepare for interviews and hone one’s skills to come out as a better candidate. Students should think long term and acquire skills and knowledge to prepare themselves for the future. This includes writing research papers, brushing up on the basics of legal subjects, taking up extra courses and remote internships, networking, etc. It is also important to take a step back and relax and spend time with your loved ones and pursue some hobbies and interest which one couldn’t while being at law school.
An online interview is still an interview with the same format and criteria to select a candidate. The only difference in case of an online interview is that the recruiter is not available in person and that might just be the future of recruitment for a lot of campuses who are not in metro cities. [BASIC THINGS – INTERNET CONNECTION, PRESENTATION, EVERYTHING ELSE IS THE SAME]
Q. What are the aspects that you consider during legal recruitment? What is different about the recruitment process for individual employers and law firms?
There are a lot of factors that are vital to the legal recruitment process. The major factors remain your academic record, internships undertaken, participation in co-curricular and extra-curricular activities. All these collectively give a recruiter a clear picture about the candidate, about their seriousness towards their career, their personality, cultural fitment, future plans, etc. Among these factors, technical soundness and knowledge of basics are non-negotiable. The difference in recruitment for individual employers and law firms is very simple – a candidate is only required to fit in with a small set of people in case of former. While in a law firm, other than being the right fit for the team that you are hired for, one has to be the right cultural fit for the firm at large.
Q. You have headed the pan India talent management vertical at Cyril Amarchand Mangaldas (CAM). How was your experience different at CAM in comparison to that at Vahura?
Vahura trained me to be a top recruiter by giving me opportunity to hire for the top law firms and corporate houses in the county. As a recruiter, I guided candidates by quipping them with industry knowledge, helping them with their resumes, training them for the interviews and eventually negotiating their offers. At CAM, I moved to the client side and managed the hiring from fresher to Partner level. This helped me in understanding and experiencing client’s expectations from the prospective hires. It also helped me to understand the internship and hiring process for law students. I was part of the Day Zero interview panel from CAM at all major law schools during my tenure there. In a way, CAM completed my experience as a recruiter and a trainer.
Q. At CAM, how did you distinguish an interview of a fresher with that of a partner? What other factors do you consider during the latter’s recruitment? Further, what is the difference between questions asked for an internship interview and a fresher’s interview for a job?
In both cases, there are a few common things that you look for in a candidate – personality, attitude, cultural fitment, long term plans etc. The difference comes in the way you assess them on the technical grounds. For a fresher, you will look at their academics, knowledge of law, internships, co & extra-curricular activities. For a senior professional, clients look at the pedigree, work experience, technical soundness, business case and past track record on transactions and relationships with previous clients.
In case of an internship interview, the assessment is less complicated and quite basic as it involves assessing a candidate for a 4-week period. A lot of firms, as you would have seen, don’t necessarily have an internship interview. Typically, a candidate is shortlisted on the basis of his resume itself.
However, in case of a fresher, it’s a different ball game altogether. You have to understand that this is where the transition from a student to a professional is accomplished. As a fresher becomes the part of the firm involving a long-term commitment, a detailed interview is conducted so that the right decision can be taken.
Q. You are the founder of ‘To Whom It May Concern’. What led to the discovery of your own start up? How’s working at your own start up different from your previous experience of handling legal recruitment at CAM, Vahura & Rainmaker?
At CAM, I felt there was a dire need for quality recruiters who would spend time getting to know their clients and candidates and accordingly make the right match. Also, in the law school space, after sitting for innumerable PPO and day zero interviews at CAM, I realized there is no training option available for students which will equip them with not only resume writing, interview skills but also with the right industry knowledge. At Vahura, I was trained by the best in the industry, Mr. Lee Ignatius and Mr. Ritvik Lukose. At CAM, I had the wonderful opportunity to work closely with Mrs. & Mr. Shroff and was trained by Dr. Jay Narayanan. Combining both the experiences at prestigious institutions like Vahura & CAM, I started ‘To Whom It May Concern’ (TWIMC).
Working for myself has given me the independence to be a quality oriented and not a target orient professional. It has also given me the flexibility to pursue my interests, training law school students being a big part of it.
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Akanksha Antil was interviewed by Sandeep Golani, a campus ambassador at LegitQuest. Sandeep is a third year BA. LLB student at the National Law School, Odisha.
Ish Jain is a Senior Partner at Regius Legal LLP. He is one of the youngest Advocates to complete his LLB (5 years programme) along with 2 Masters (LLM) and 4 Diploma courses in different fields of law by the age of 23 and has a diversified and strong foundation of technical knowledge and research in his fields of expertise. He possesses expertise in litigation & arbitration, advisory and regulatory across diversified areas Real Estate, Corporate & Commercial transactions, Technology, Aviation law, Space Law and Private Equity & Project Financing. He is also practicing as an Independent Arbitrator since 2016 and has been appointed as an Arbitrator in more than 18 cases. Mr Jain is a member of the Space Generation Advisory Council, working for the (a) Space and Cyber Security Project group and and (b) Space Technologies for Earth Applications project group. He is also an Independent Expert Council at International Academy of Space Law, Russia.
Q. Could you tell us about Regius Legal and the firm’s key practice areas?
Regius Legal LLP is a multi-service law firm with a special focus on litigation (civil and criminal) and Arbitration. Mr. Kiran Jain laid the foundation of his legal practice in 1991 by establishing Kiran Jain & Co. with litigation and Arbitration resolution at the heart of its practice. As part of its growth initiatives, the firm moved from a sole proprietorship structure to a partnership by on-boarding me as a Senior Partner and forming Regius Legal LLP in 2018. The firm today is reckoned as a specialized law firm that combines the meticulous approach of a heritage legal practice with cutting-edge technology and a focus to provide legal assistance towards newly evolving laws and growing industry sectors of the economy.
Besides proven expertise in the Litigation and Arbitration practice, the firm has progressively been handling several high-profile and complex work, both on transactional and contentious side, in the areas of Corporate Laws, Real-Estate, Banking & Finance, Aviation, Arbitration, Technology Law, Space Tech Law, While-collar Crime, Private Equity and Corporate disputes.
Q. What is the scope of International Arbitration in India?
India is currently on a pro-arbitration trend, given the legislative and judicial measures being adopted in the recent past including the amendments in the year 2015 and 2019 to the Indian Arbitration Act. The Amendment of 2019, particularly paved way towards promotion of institutional arbitration in India and fast-track the resolution of commercial disputes by arbitration. Most importantly, the time limit for issuance of an award will most certainly bring about efficiency and institutionalization in arbitration proceedings. Further, the appointment of ‘Arbitral Institutions’ by the Supreme Court and the High Courts and establishment of Arbitration Council of India are necessary steps towards accreditation of arbitrators and laying transparent criteria with respect to the qualifications, experience and norms for accreditation of arbitrators. I feel that the amendments have really been brought to make arbitration process aligned with international best practices and will lay a strong foundation to make India a hub for domestic and international arbitration.
Q. Do we need more well-trained arbitration specialists?
As in any industry, the technical know-how and human capital will form an essential component which would determine the success of India being made an Arbitration Hub. An Arbitrator needs to also qualify as an industry expert and needs to be groomed in order to ensure matters are handled in a professional and competent manner, similar to skills available in countries such as Singapore. As mentioned above, after the 2019 amendment, instead of the court appointing arbitrator(s), now designated graded arbitral institutions will be undertaking this role. Quality of arbitrators will be a key determining factor for International organizations opting to put their stakes in arbitrations which have a seat in India.
Q. Are we as a country equipped, in terms of IP laws, for a future of growth in innovations in the field of manufacturing as well as in the tech and e-commerce spaces?
I would say we are not fully-equipped, but we are on our way and the journey is fast-paced. India improved its ranking in the Global Innovation Index (issued by WIPO) by five places to 52nd in 2019 (from 57th in 2018). Last year, the Government released the first draft of India’s National E-Commerce Policy, and a second draft has been shared earlier this month by the Department for Promotion of Industry and Internal Trade (DPIIT).
Another significant progress has been made by way of introduction of draft guidelines on the implementation of IPR policy for Academic Institutions, prepared by the Cell for IPR Promotion & Management (CIPAM). These guidelines have floated with an objective to foster innovation and creativity in the areas of technology, sciences, and humanities by nurturing new ideas and research, in an ethical environment.
The Ministry of Consumer Affairs, Food and Public Distribution (Department of Consumer Affairs) has also released Consumer Protection (E-Commerce) Rules, 2020, on July 23, 2020, which are a step further in the direction of ensuring that consumers’ interests are taken care of in the world of ecommerce and technology.
These developments are indicative of the awareness that the country is progressing towards innovation and e-commerce.
Q. We are in the midst of an Artificial Intelligence (AI) boom. What are some of the challenges that AI is posing for the legal system?
The complexities of legal matters are increasing and as technology moves in diverse directions of growth, the laws applicable a few years ago may need to evolve with time. There will be a need for continuous updates in the laws to regulate issues which arise through AI. Various countries are experiencing evolving laws in the field of intellectual property protection of AI-generated works, since AI does not have legal personhood.
Artificial Intelligence will, of course, change the landscape of the legal industry. Rote tasks are eventually becoming redundant and replaced by Artificial Intelligence. Also, while I agree that AI could be game-changer in the way legal practices are run, I don’t think AI can replace the human intelligence, strategy and craft. There is a tacit knowledge every lawyer possesses, which comes from years of experience and dealing with real life matters and transactions. AI will definitely ease operations and may be used in better delivery to clients, but I do feel the replacement of legal acumen of lawyer cannot be done by AI.
Q. Air & Space Law is a highly niche field. In a nutshell, how would you describe your practice in this field?
The firm’s practice in areas like Aviation Law comprises of a wide range of legal services to the sector, right from leasing negotiations to drafting of contracts, aircraft sale agreements and sector-specific matters concerning maintenance/ground handling, liability and insurance. We understand sector’s commercial ecosystem, the structure and business nuances. Apart from handling the disputes and commercial litigation in the sector, we frequently advise banks, financing institutions, leasing companies, as well as NSOPs in commercial transactions, acquisitions and financing matters.
The firm’s practice in the space law has developed since I have personally worked as a consultant to companies in this sector and I am also a member of the Space Generation Advisory Council (SGAC), working on ‘Space and Cyber Security’ Project Group and ‘Space Technologies for Earth Applications’ Project Group. With developments across the globe in last few months, there will be several challenges that both these sectors will need to overcome but the Indian Government has recently announced to boost private participation in space activities, allowing a level playing field for private Space-Tech companies.
Q. You pursued your LL.B. from India and LL.M. from the UK. What was different about reading law in the UK than in India?
I am of the view that legal education in India is very sound in terms of academic relevance. We have some of the best colleges and the education can be compared to international standards. However, the perspective of our education system is more intrinsic and focused on Indian cases. Further, our education system is developed on the classroom teaching and assessment model, whereas education in UK was more research-oriented and has more international content. The depth of research and the amount of time invested in research is much more in UK curriculum. It gave me an insight of the different perspectives of students of other European Countries and also taught me to compare laws of various nations (including UK, US, Switzerland, Netherlands, Germany, France, etc.). More importantly, it taught me to critically evaluate various problems in a variety of practice areas beyond the curriculum of both LLM Programme.
Q. Do you feel that there is a need to introduce reforms in the Indian legal education system?
I am of the view that we need to introduce more practical aspects to our legal education system. I’ve always said that law is ‘applied science’ and can’t be practiced in isolation from business and commerce. We need to equip our law students with business acumen and nuances specific to different industry sectors as well. It is important to incorporate the mandatory post-LLB articleship of one/two years before being allowed to appear for the Bar Council Criminal Exams, a route followed in several common law countries.
Also, the curriculum needs to be revised to keep up with evolving laws in the fields, example: data protection, sports laws, crypto-currencies, etc.
Q. By the age of just 23, you had already achieved a lot academically. How would you describe your professional journey so far?
You are right, my journey in Law began in the year 2004, when I was admitted to the dual degree programme, Bachelors in Legal Science (BLS) and LL.B. – 5 years integrated two degree programme and before I began practice at the age of 23, I already completed two Bachelors degree, 2 Masters programme and several diploma courses certificate courses relating to the various legal fields.
It is with this academic background that my professional journey began and I worked with couple of best law firms in India. In 2012, I started my practice as a Counsel & Legal Advisor and exploring fields where I could further achieve specialization and create a niche for my service offerings. In this process, I developed a diverse legal practice in Real Estate, Arbitration, Corporate & Commercial, and Technology Law. Soon I was introduced to the field of aviation as well, helping clients with disputes and Arbitration. Over the years that practice led me to the Space-tech industry in India. The peculiarities of both the sectors kindled my flame to learn more about it and after spending considerable amount of time in research and knowledge exchange with several industry players, I had taken the lead to establish the Air & Space Law practice. We are now amongst the very few specialized firms that have developed a niche in the Aviation and Space sector, with my involvement in advising and assisting several companies in the these sectors; and my involvement with international organizations that have committed themselves towards growth and upliftment of these sectors.
Q. What are your future plans?
I am a firm believer in constantly upgrading one’s skill-set to remain ahead of the curve and maintain a competitive edge. As someone who has always propagated the concept of synergy, I feel that when we conjoin and interact with industry experts and stalwarts, we build a community where the whole is larger than the sum of its parts. I intend to, in addition to managing my practice, build a forum of like-minded individuals, with one prime interest – furtherance of justice at national, international and global levels.
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Shruti Bedi is Professor of Law at the University Institute of Legal Studies, Panjab University. She teaches the core course on Indian Constitution Law and elective course on Internal Security Law in addition to the Master’s course on Comparative Public Law (LL.M). Her areas of research are constitutional law, counter-terrorism law and comparative public law. She has been a gold medalist for eight consecutive years in her B.Com (Hons), LL.B and LL.M. Her doctoral work was on counter-terror law. She has authored two books and co-authored four books.
Q. In addition to being a Professor of Law, you are Director at the Centre for Constitution & Public Policy at Panjab University. Could you tell our readers about the Centre and its functions?
At the heart of the Indian legal regime lies the Constitution of India, which promises justice, liberty and equality to its people. With the intention to lead research in contemporary issues of constitutional law and public policy, CCPP engages with the academia, advocates, professionals, policy makers, legislators, researchers etc. It seeks to develop interdisciplinary interests in issues concerning constitutionalism, constitutional philosophy, comparative public law and law in general including diverse concerns on justice, equality and accountability. To further the same the Centre conducts national/international conferences, seminars, webinars, discussions in addition to publication of research work. It is a forum for the faculty, scholars and public intellectuals to pursue assorted interests in relevant areas concerning constitutional law.
Q. You have co-authored a book titled Law and Media. ‘Trial by media’ has been a topic of critical contention for many years now. Would you agree that the media’s invasive gaze, especially in sensitive cases, tends to put pressure on law enforcement agencies and causes unfair negative public perception of the legal system? What can be done to prevent this?
It is a proven fact that ‘trial by media’ results in prejudice being caused to sub judice matters and interferes with the administration of justice. In a time when free speech rights need to be zealously guarded, there is also a commensurate requirement for regulating media speech in view of the accused’s right to a fair trial. Undoubtedly, media has played a significant role ensuring justice. Some examples for cases where the guilty would have gone unpunished but for media intervention are Priyadarshini Mattoo case, Jessica Lal case, Nitish Katara murder case etc. As opposed to this an instance where the media had an adverse impact is the reporting of the Aarushi Talwar case.
Except for the restrictions imposed on the fundamental freedom of speech and expression under Article 19(2) of the Indian Constitution, there is no specific legislation in India for regulating media trials. A legislation which has been used obliquely in this regard is the Contempt of Courts Act, 1971. Under this Act, pre-trial publications are sheltered against contempt proceedings. Any publication that interferes with or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding, which is actually ‘pending’, only then it constitutes contempt of court under the Act. The Law Commission in its 200th report, Trial by Media: Free Speech versus Fair Trial Under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971), has recommended a law to debar the media from reporting anything prejudicial to the rights of the accused in criminal cases, from the time of arrest to investigation and trial.
Additionally, the Press Council Act, 1978 has established a set of suggested norms for journalistic conduct. These norms emphasize the importance of accuracy and fairness and encourage the press to “eschew publication of inaccurate, baseless, graceless, misleading or distorted material.” The norms urge that any criticism of the judiciary should be published with great caution. But significantly, these norms cannot be legally enforced, and are largely observed in breach. Lastly, the PCI also has criminal contempt powers to restrict the publication of prejudicial media reports. However, the PCI can only exercise its contempt powers with respect to pending civil or criminal cases. This limitation does not consider the extent to which pre-trial reporting can impact the administration of justice. Therefore, the legal norms regulating journalistic conduct remain ineffective till the time we have a specific legislation on the issue.
Q. You recently wrote an article ‘Bail Jurisprudence remains a Blurred Legal Arena’. Could you briefly elaborate on the topic?
The law of bail seeks to harmonize two conflicting demands, one the necessity of society to be shielded against the dangerous propensities of an accused and second, the fundamental canon of criminal jurisprudence – the presumption of innocence. Clarifying the law, the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs (1973), observed that “in a barbaric society you can hardly ask for bail; in a civilised society you can hardly refuse it are more than an epigram, subject only to the tests of considerations laid down from time to time by the imprimatur of judicial decisions…”
Questions, therefore, arise as to the circumstances of denial of bail. Is it to prevent flight from justice, tampering of evidence, protection of society from further crime or to inflict pre-trial punishment? The legal framework within which the judges must operate, is ambiguous. The large variance in the decisions remains unexplained. Since the jurisdiction of the courts in matters of bail is discretionary, there are conflicting opinions given by the Supreme Court on whether reasons are to be provided by the lower courts for grant/refusal of bail. Granting of bail, once a routine matter is now subjected to magnified judicial scrutiny coupled with the mounting fear of justifying the grant of bail with valid reasons. Care and caution must be exercised by balancing the valuable right of liberty of an individual and the interest of the society in general.
Q. Alternate Dispute Resolution is definitely the way forward. There has been a huge emphasis on mediation and arbitration in the recent times and for good reason. But the Arbitration scenario in India faces criticism for not being up to the mark especially in comparison to some other countries. What do you have to say about the Arbitration mechanism in India and its comparisons to countries like Singapore, London, etc.?
Arbitration in India has gained significance as a preferred mode of dispute settlement. However. in comparison to other countries India may not be the preferred international arbitration destination. This is due to factors such as the time taken in resolution, considerable judicial intervention, cost factor, difficulty in enforcing both domestic and international awards, and the subjective grounds for appeals based on public policy. These are major issues that deter foreign investors and parties from choosing India as an international arbitration destination. The 1996 Act specifically prohibits judicial intervention in Indian arbitration. Despite this, the courts in India frequently intervene with arbitrations, from adjournments to appeals. This acts as a huge deterrent and makes India an unenviable option for arbitration.
Q. Counter terror laws across the world are often criticised for causing rights violations (such as keeping suspects in detention without charges or trial for long periods of time; making security and probe agencies less accountably for unlawful behaviours towards suspects/accused, etc). Since terrorism is a crucial issue, how can a balance be maintained in anti-terror laws to ensure that the human rights of suspects and accused persons are not violated?
In an age where threat to security and safety of citizens of the world is at its highest peak, the enactment of anti-terror laws is inevitable. However, in the process of securing individuals and offering them protection, governments often take liberty with the rule of law in a democracy. However, if we do not protect democracy, democracy will not protect us. Accordingly, we must exercise caution and legislations which violate the non-derogable rights should not be enacted. Laws which allow shoot to kill powers, or those which enable confessions obtained through the use of torture or cruel, inhuman or degrading treatment to be admitted as evidence, should not make it to the drafting table. Additionally, respecting the role of an independent judiciary along with incorporating mechanisms for periodic review of the operation of counter-terror legislations is an essentiality. Introducing stronger human rights protections will sustain the vigil for democracy and rule of law, which will be a resilient move towards achieving the balance between liberty and security.
Q. You often interact with faculties at law schools and other institutes abroad, especially in the UK. Do you think there is a difference between the way academics in the legal profession function in India and the West?
As a result of my interactions with international academics, I have come to appreciate the existence of a sagacious work culture and certain work ethics amongst the faculty abroad. There is a high level of dedication towards work in these institutions, which is an expected norm amongst the academic world in general. The quality of education being imparted is not compromised for any reason, and this attitude helps in sustaining the desired standards. Further, the level of competitiveness present amongst the academia ensures an increased level of efficiency.
Producing quality research work in any area is a reflection of the rank and level achieved by any institution. In UK, the faculty is provided with clear dedicated hours during the week for research work. The institution divides the faculty time into teaching hours and research hours. Most importantly, the faculty cannot be disturbed during research hours and this allocation of devoted time for research is a part of their schedule. This is a significant factor in ensuring quality research. As opposed to this, in India the faculty members are required to juggle regular teaching along with inane administrative work which may not even be a part of the job structure, but it falls on their shoulders on account of the inefficiency of the administrative staff. Any research undertaken by academics in India, is carried only during their personal time. This resultantly impacts the quality of work produced and leaves the faculty with a feeling of dissatisfaction.
Q. The coronavirus pandemic has changed the way we live and work, and the change has probably hit educational institutions the most. How have you adapted to the lifestyle changes, both personally and professionally, that have been brought about by the pandemic?
It is an accepted fact that change is the only constant. The pandemic has left the world grappling with the destruction of life and lifestyle. It is time to wake up and proactively participate in resolving the evils that the virus leaves behind. The state and society must join hands to combat the new challenges. At a professional level, I have tried to meet new goals of quality research work accompanied by academic reading and writing. The advantage that the pandemic has brought is the easy accessibility to the international academia. It is easy to publicly participate and reach out to the citizens of the world through online platforms. I have been fortunate to interact and share knowledge with academics from 16 different countries during this time. At the personal level, there has been a pleasant increase in time spent with family and helping different members achieve distinct targets. Waking up as usual at 5 a.m., followed by exercise and work has helped me to meet my mission with ease and enthusiasm.
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Anant Sharma is Advocate & Managing Partner at K & S Legal L.L.P and Co-Founder & Convenor at My Lawyers Advice. His key areas of practice include General Litigation, Arbitration & ADR, Drafting & Preparation of Agreements & Covenants, General Corporate Advisory, Recovery of Debts & Loans, Due Diligence & Legal Audit and IPR Solutions.
Q. Could you tell us more about My Lawyers Advice, which is a unique web-based full service boutique firm. How does online delivery of legal services work and how does your firm handle the workflow?
The most unique part of My Lawyers Advice is that not even a single work is outsourced outside the core team and it caters to Individuals, Start-ups, SMEs, MSMEs and big size Corporates across the globe. The online delivery of legal system is very simple and both cost effective and time efficient. Clients can do video consultation and can send their documents online while using different web tools and the lawyers can also deliver the results at a much faster pace. Our firm is well equipped and we have a dedicated IT team to handle the entire issue which includes setting up video calls or conferences with the clients, data security, data privacy, e-filing of documents, sending regular updates by way of e-mails, SMSs and Whatsapp messages. The IT team works in close liaison with the lawyers and clients and bridges all the technological gaps and maintains a 100% secure network.
Q. You have worked with some renowned law firms in the past and then you started My Lawyers Advice. What was the reason behind this shift?
Yes, I have worked with the top notch law firms of this country and have handled big ticket clients which include national as well as international clients, but there was neither recognition nor job satisfaction. I always wanted to start something of my own and thus My Lawyers Advice (www.mylawyersadvice.com) came into the picture. It feels good to have something of your own and gives you the best satisfaction when your work is recognized with your name.
Q. What kind of cases do you generally handle?
Our firm specializes in the following areas:
Q. What are the benefits and challenges of a virtual law office?
The benefits of a virtual law office is/are manifold as it saves a lot of time, it saves a lot of costs of both the lawyers and the clients, it is beyond the territorial limits, it can be made flexible as per the world clock, is easy to maintain and many more.
The biggest challenge of virtual law office is that it is still not welcomed in India and even today people feel the need for having personal meetings. Furthermore, there are certain cases where it was found that the deliverables were poor and the client was dissatisfied with the work quality.
Having said that, the concept is picking up but the final destination seems to be far away.
Q. Do you think Artificial intelligence and machine learning can transform the legal industry? If so then in what ways?
Yes, times have changed and Artificial Intelligence (AI) and machine learning have become the new tool in the hands of mankind which is widely used in other industries and professions, however, the legal profession is still lacking the transformation.
Technology can be used to fasten the functioning of the courts and revamp the entire justice system. Further, technology can be well used to streamline documents and case files. It can be well used to co-ordinate with clients in a more proficient way. It can also bring positive changes in the legal education system also.
The legal professionals irrespective of their age and experience should endeavour to adapt to the technological revolution and evolve themselves in the 21st century.
Q. Do you have any message for young lawyers?
Young lawyers should bring more innovation in this legal field and should not run only after money. History has proved that innovative ideas always sell and have better acceptance and outreach over the primitive ones.
Young lawyers should definitely concentrate on evolving the legal profession while using technology as the key source.
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Anandaday Misshra is the Founder & Managing Partner, AMLEGALS, a multi-specialized law firm. He is a practising High Court Advocate with two decades of experience in litigation and arbitration. He specializes in GST, Contractual Laws, Arbitration, Business Laws & Insolvency Laws. Mr Misshra has authored a book on GST- Law & Procedure (Taxmann). His other two upcoming books are on Insolvency & Bankruptcy Code and Arbitration.
Q. Tell us about AMLEGALS, the areas of practice and your clientele.
AMLEGALS is a highly research driven specialized Law Firm with offices in Ahmedabad, Mumbai, Bengaluru & Kolkata.
Our clients are basically from India and almost 50% of the clients are from abroad. We cater to the requirements of clients from diversified industries.
Q. What is a typical day like for you as a Managing Partner of AMLEGALS?
Learning, encouraging team members, meeting clients and attending hearings where I am required by the client or a matter requires me to do so.
I am a team player so always there for my team as another team member rather than a managing partner. But, I always ensure in the evening that my quota of learning is well taken care of in my daily schedule.
Q. You started your own firm way back in 2005 and it is now doing really well. Initially, I am sure you would’ve had apprehensions. What hurdles did you face and most importantly, what kept you going?
I started my firm after having a brief instinct as an in-house counsel for 5 years in the well-known brands of India.
Thereafter, I worked at my own independently in the areas of arbitration, contract and indirect taxation from day one when hardly any person of my age would even take indirect tax and arbitration as a career choice.
Initially, clients were very reluctant whether to hire me or not for big matters in indirect taxation as my age acted as a hurdle. But, results led to some good word of mouth publicity and we evolved gradually as a multi-disciplinary specialized law firm.
Many a times, clients confessed that due to my age they could not believe me & even after hiring were afraid, but after the results they started advocating for me. Those moments are still quite refreshing and encouraging for me as an advocate having gone through such phase.
I took everything in a positive manner as their apprehensions were natural and my quest was to justify my standing and learning. It always worked.
Q. Your firm is known as strategists in law. How imperative do you think it is to form a strategic dimension of the law?
In Court, both the sides study, read and refer to the same provisions of law, what differentiates is the strategy.
It is the strategy which matters the most in every dispute or litigation. Companies have strategy for business, finance, sales, production, marketing, branding, etc., then why not legal strategy for dispute or litigation.
Strategy in any business transaction is at par with deploying strategy in any dispute or litigation.
Q. How do you keep yourself updated with the latest legal developments?
As a student of law, it is as normal as breathing to learn on a daily and constant basis. Reading relevant case laws and research in matters where I have to deliver, helps immensely to update myself.
Further, our law firm being highly research driven, we release maximum white papers on diversified laws and this also makes every team member including myself learn on a regular basis while sharing knowledge in law with our clients.
Above all, I am passionate about law and hence, learning is a natural process to me without any extra effort put at any given point of time.
Being an academic first, when GST was being introduced, I had my first book released on GST in August, 2017. Further, IBC and Arbitration always fascinated me and it also resulted in authoring on these areas of laws which are awaiting publication after the Covid-19 pandemic ends.
Q. You have a lot of publications in your name. LegitEye has also been publishing your columns. How do you pick a specific topic to write?
We attempt (to write) on new laws and cases besides what can be useful for businesses at large. We never write merely for the sake of it but what we can learn and also make others learn. This is the main motto behind every paper we publish in diversified areas of law.
We published on force majeure on 1st March, 2020 when no one was even whispering on the same. We have released approx. 70 white papers on various laws during Covid-19 as we felt the need to educate our clients on those issues.
Q. Do you think the coronavirus-induced lockdown has been a blessing in disguise for the initiation of bringing technology into courts, which could in the long run make the judicial system more efficient?
Yes, it is going to be a game changer. Evolution of new system, jurisprudence, mindset, technology, procedure, etc. is part of any judicial system.
The challenge of Covid-19 has brought compulsions of making judiciary move and we all have got to bank upon technology to take the baton of justice ahead.
It will take time for all of us to adjust and move with it. Over the years, it will be an additional or optional way of attending hearings at least where voluminous documents are not to be referred or where procedural or regular orders are to be passed, but no one knows how it can shape for the betterment of the judiciary at large.
Q. These days, a lot of young lawyers are starting their own practice/law firms. Is there any piece of advice for them?
Everything takes its own time. There is no short cut. The process has to be passed with best ethical practice. Believe in yourself and learn on regular basis, success will come at its own pace.
Enjoy work and handle every assignment with 100% heart and never attempt anything just for attempting. You should be passionate for learning and working in law otherwise law is not meant for anyone.
“Simplicity” is the evergreen golden rule to enjoy the professional life as a lawyer.
Q. How would you describe your professional journey so far? What motivated you to choose Law as a career?
I enrolled myself for a dental course after clearing the All India CBSE PMT but could not convince myself for pursuing it as I always wanted to do something where creativity or challenge lies ahead. Had I got myself enrolled for a course in medicine then I would have gone abroad for some research rather.
Finally, I did not join the dental course and opted for the legal profession. My father is a lawyer and at that time he was with the Ministry of Mines, Government of India. So somewhere in the back of the mind, it always pushed me for a legal career.
I visited the Supreme Court with my father for the first time when I was hardly 8 years old. I still remember, while my father was discussing with Mr. P. Chidambaram, Sr. Advocate, I was asked to sit quietly outside his chamber.
While people there were staring at me, my eyes were curious to see different books and files everywhere. It was a strange world at that time but now I see things as an academic person first and then a lawyer.
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V.C. Mathews is a Managing Associate – Trademarks, Copyright & Designs Prosecution at Inttl Advocare Intellectual Property Consultants & Attorneys. He handles matters related to trademark prosecution, copyright prosecution and design prosecution. Mathews was also an adjunct professor for Intellectual Property laws at Symbiosis Law School, Noida and is a speaker with CIPAM and FICCI IP Cell.
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?
Though each company is spending a lot on R& D to develop a vaccine to combat Covid-19, I do not believe that IPR would be a hinderance. The IP laws provide the owner of the vaccine a level of protection, however, Covid-19 has reached levels unparalleled as far as deaths and those affected are concerned. Additionally, IP laws of numerous countries do have provisions to ensure that such an essential vaccine’s process are regulated to allow its reach to the masses. I believe, it is the IP laws that will spurn researchers on to find the cure to help millions across the world.
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?
AI is a very interesting technology. It has far reaching consequences and there does not seem to be a limit to its technological development.
There have been numerous articles on how AI will replace the role of lawyers, para legals and so on and so forth. However, I believe that AI will act as a tool to help lawyers, law firms and the like to increase their efficiency and provide much superior services. If one goes back in time, at the advent of the internet, similar skepticism was there. The same proved to be there for 3D printing as well. AI is the future and its here to stay. WIPO (World Intellectual Property Organization) recently launched an initiative to bring forth an AI-based tool to analyze the distinctiveness of a trademark. Now that is a very useful tool indeed. Imagine, the kind of results that we would be able to generate when advising clients as to trademarks if AI was used as a first layer of analysis.
As it is relatively new, the laws of various countries are proving to be redundant to find a mechanism to be able to accept and protect the AI technology. This seems to be the biggest challenge that we are facing. IP laws across the world need to be relooked at to incorporate the use of AI as a tool and as a protectable IP. If we are able to do this, we will be able to overcome the challenge posed by the incorporation and use of AI in our day to day working.
Q. You have been a member of the sub-committee on Middle East, Africa and South Asia, and became the sub-committee chair and are currently a member of the Trade Marks Office Practice Sub-Committee. Tell us about your role here and the workings/ importance of these sub-committees.
The INTA sub-committees have proved to be a wonderful experience. Having joined the Middle East, Africa and South Asia sub-committee of the MEASA sub-committee as it is commonly known helped me understand the nuances of Non-Traditional Trademarks across the region. This greatly helped enhance my knowledge which I was able to use when I looked at such marks in the Indian scenario. Being a sub-committee chair taught me how to interact virtually and coordinate successfully with professionals across the world, many of whom were much older to me.
With the Trade Mark Office Practice sub-committee or the TOPC committee, the work is more India centric with the work being focused to the problems and challenges being faced in India. This too has proved to be a wonderful experience as I have been involved in more policy related work and a deeper examination of the laws to tackle or address the various challenges.
The INTA sub committees were something to be honest that I did not know much about till one of my mentors encouraged me to become a part of it. However, today, I would encourage and urge others to take part and play an active role in it. If you are active, you will indeed learn much from your participation in these sub committees.
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 realized. 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?
She is quite right in her assessment. Today, we are breaching topics like art law, sports law, AI and its impact and so on. Each of these will prove to test the copyright law and jurisprudence regarding it in the years to come. Copyright law is still in its infancy, I would say and there is much more especially in India that can be realized as far as the law regarding to copyrights are concerned.
Q. You were also an adjunct professor for IP laws at your alma mater. What has changed today in terms of legal education pertaining to IP laws since the time you were pursuing your degree there? And what kind of improvements would you recommend to law schools in India in terms of infrastructure or curriculum?
I am what one calls an accidental professor. I never intended to take it up at all but was encouraged do so by one of my erstwhile professors, Dr. Chandrasekar Rawandale, the current Director of Symbiosis Law School, Noida.
Legal education has changed a lot since I stepped foot into law school many years ago. I still can recollect how we used to take turns to be able to access Manupatra or even SCC online which were the only two softwares available at that time. Today, I see the students so well versed with the manner of use of these softwares and how technology has impacted the sphere of legal education. IP laws during my time in Law School was not a sought after field of law at all. I was only one of four students who took it up during the year I passed out. Everyone wanted to go into litigation practice or the corporate practice. This basically meant that I had to fend for myself as far as getting a job was concerned which to be honest I did get finally. It was not easy as many things did not work out as I would have wanted to at that time. Today, I see so many taking IPR as their field of practice that it amazes me how a field of law that no one wanted many years ago is now front and center as one of the most sought after fields. This shows the evolution of both the mindset as well as the value that IP laws has currently.
Indian law firms have come a long way in terms of both infrastructure as well as curriculum. However, the one area where I feel we need to improve on is the practical learning which requires to be imparted at the college level for each of the laws that a student learns. To enable this, the bringing in of practicing attorneys to impart their learning to the students will greatly help prepare them for the practical working of the law.
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?
Well the lockdown has been tough and working from home is indeed a new thing. I did do a bit of work from home prior to the lockdown but not on a daily basis.
Being tech savvy has helped me to seamlessly manage with my colleagues and we have adapted quite well to the new forms of working. Though, each day throws up new challenges.
When I am not working, playing my guitar is something that I do. I do love playing outdoor sports and games. So, that did take a hit in the initial days. Though, I have found new ways to stay fit as well as go for my long runs. Cycling is something I have taken up again now with lesser vehicles on the roads. So, all in all, though conditions are tough, I have managed professionally with some great colleagues supporting me.
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Abhishek Sinha was Partner with the Corporate Teams at Khaitan & Co, Mumbai and Shardul Amarchand Mangaldas. He is a dual qualified (England & Wales and India) corporate lawyer with a post-qualification experience of more than 14 years. He started his career at a leading law firm in Mumbai (DSK Legal) and later joined the Mumbai office of AZB & Partners. Abhishek has also worked as an ‘International Visiting Attorney’ at Morrison & Foerster, Tokyo. Last year he resigned from the partnership at Khaitan and founded NotJustLex (www.notjustlex.com).
Q. You are a dual qualified corporate lawyer with experience of more than 14 years. Could you describe to us your professional journey so far?
The professional growth I have experienced over the last 14 years has been incredible. In fact, ‘growth’ has always been one of my most cherished values. As Sherlock Holmes says, “My mind rebels at stagnation”.
Just like many, I also used to measure ‘growth’ by the archaic definition of success, i.e. wealth and fame. Now, have realised (and it’s a happy realisation!) that ‘growth’ has many facets: (i) having a better work-life balance, (ii) spending more time and energy in doing things which you love, (iii) continuous learning, “learn, unlearn, and relearn”; and (iv) being innovative and having a greater risk-appetite. Fear of failure stops the process of growth. I strongly believe that it’s ok to fail, provided you are ready to learn from it and try again. Just to give a quick flavour, my journey from being a law student to a partner (of two leading law firms in India, Khaitan & SAM), and now having founded NotJustLex, has been exciting, adventurous and many a times stressful.
Instead of re-writing my resume here, I will take this opportunity to highlight a few of my learnings, which may be helpful for someone struggling to find a place at their work-space:
Q. You had long stints as Partner at Shardul Amarchand Mangaldas & Co. and Khaitan & Co, both top leading law firms in India, and then you decided to quit corporate life. What was the reason behind this decision?
Many of us live our life which is set for us. Either we are too content or afraid to explore any other option. To me it’s all about following my heart and passion. I have always derived pleasure and satisfaction in teaching. In fact, even during my associate days, I used teach at ILS Law College (Corporate Law), KC Law College (Law of Contracts), Government Law College (Securities Law).
For the last 14 years, I was mentored by several seniors (the list is too long!) and was given unconditional support and guidance. This allowed me to have the career path I have had. Its not a hidden secret that there exists a huge gap between what law students learn in college and what is expected out of them once they graduate. I always wanted to do something about it but was not sure about the approach. After a lot of thought and research, the idea of exploring the ‘participatory learning approach’ in legal education came to my mind and I decided to resign from my partnership, to give complete time and energy to explore the same. Right after resigning, I founded NotJustLex.
Many didn’t appreciate the logic behind me leaving the mainstream legal consultancy, at the age and position I held, and when my life was comfortable and highly rewarding. Well, everyone is entitled to have their own views and opinion.
Not trying to explain, but on a lighter note just citing one of the dialogues from the movie- Inception: “What is the most resilient parasite? Bacteria? A virus? An intestinal worm? An idea. Resilient… highly contagious. Once an idea has taken hold of the brain it’s almost impossible to eradicate. An idea that is fully formed–fully understood–that sticks.”
Without any arguments, I will leave you with this thought:
“Exploring your passion is often a triumph of heart over logic”.
Q. You have recently started NotJustLex, offering specialised moderated classroom and online programmes for law students and young lawyers. Please tell us more about it — the idea behind the platform and what kind of programmes it offers.
NotJustLex is a platform for young lawyers and law students to learn and express. It is committed to: (i) providing accessible, quality legal learning, and (ii) bridging the gap between theoretical learning and practical applicability.
It offers certain specialised moderated classroom programmes and online programmes, with the intent to bridge the gap between theoretical learning and expectations of law firms, corporates, and clients. Focus is primarily on participatory learning. All courses have been designed based on participatory learning approach. Idea is to provide the learners a distinct professional edge in this competitive corporate environment.
At NotJutLex, we focus more on actual learning through moderated discussions, actual and real-time participation, deal analysis: all through live-sessions and not recorded videos or reading materials.
The true meaning of ‘participatory learning in legal education’ is not well understood by many. Our courses and the way of teaching is very different and unique.
Presently we are offering the following courses:
Besides these courses, NotJustLex also offers a lot of zero cost events, like live webinars, college specific live-learning sessions, competitions and more.
We also have a blogging platform (NJL Blog), specially for law students and legal professionals.
Q. There is a notion that law schools in India prepare law students for a legal career but do not prepare them for the practicalities of legal practice. What are your views on this? And what are your suggestions for reforming the Indian legal education system to combat the challenges that young lawyers face?
I don’t think, it will be a fair assessment to say that the law colleges don’t prepare the students for the practicalities of legal practice at all. They certainly do to some extent, but the question/issue is about the degree of it. We all have to acknowledge that a huge gap exists and this gap needs to be bridged. I believe that this construct not only applies to the law students but also to practicing lawyers. The Ministry of Law & Justice and the Bar Council of India have time and again acknowledged the importance and need for a mandatory continued legal education, yet it is only found in the reports.
The gap can only be bridged by the collective efforts of all the stakeholders, including the law students themselves. Some of the critical considerations are:
(i) Revamping the entire curriculum at law colleges to make it more relevant to the practice area;
(ii) Just changing the curriculum will not help, if you don’t have experts delivering the sessions. In my view, just a LL.M degree is not good enough to be a lecturer/professor at a law college. There should be a mandatory CLE requirement for all the lecturers and professors They should also be trained to understand the newer approaches to teach and moderate sessions;
(iii) Focus should be more on participatory learning and clinical legal education;
(iv) Assessment pattern must be changed;
(v) The present ‘internship model’ needs to change. For this, the law firms, companies, independent practitioners, etc, which are taking interns have to play a major role. More of hand-holding, actual learning, and inclusiveness is required;
(vi) Most importantly, the law students have to also change their thought process. Focus has to be more on learning rather collecting certificates. I am appalled by the concept of “immediate gratification” amongst the law students. Not generalising but this is the trend I have been witnessing lately.
Q. In light of the prevalent pandemic, technology has posed challenges as well as opportunities to the earlier system of law and justice, and legal education. Do you feel the pandemic-induced disruption would actually accelerate the much needed change in the legal education, Indian legal system and judiciary in terms of technology?
It’s a welcome change and definitely the future, but every change comes with its own challenges. Unless the issues are fixed effectively and the required technology is put in place, the change is going to remain superficial.
Legal Education:
The e-learning model in legal education has started mushrooming after the outbreak of the ongoing pandemic. Many law colleges have also started providing normal classes online. Many law firms, private players, law colleges and even some companies are hosting webinars as if there’s no tomorrow.
While it’s a favourable change, but is alarming at the same time. I don’t see a problem with the number and frequency of webinars, but the real challenge is to have a quality webinars. If the webinars lack quality then it is totally ineffective. Therefore, both the organisers and the participants have to be mindful. To me, attending a below average webinar is a waste of time. In this rat-race of hosting webinars, we should not forget/dilute the purpose behind it. Also, every second person intends to start an online law school in India. I am just keeping my fingers crossed that what happened to the engineering colleges 15 years back, should not repeat for legal education in India. It will be a disaster.
Also, we need to be mindful about the reach of such online programs. Today, not every student is privileged to have an intent connection (forget about high speed connectivity).
I strongly believe that until the issues of quality and reach can be sorted, e-learning can’t be an effective alternative to the traditional classroom approach, which caters to all segments and not only the privileged ones.
Legal System & Judiciary:
Everyone is aware how the ongoing pandemic has affected the legal system and judiciary, not only in India, but across all jurisdictions. Even though the courts are shut, urgent matters are being heard through virtual techniques.
In respect of both imparting legal education and the Indian judiciary, we need to acknowledge the fact that use of technology is not a low-hanging fruit. A lot of work has to be done in setting up the right digital infrastructure to make it effective. Therefore, in my view, at this point of time, it cannot be considered to be an effective alternative.
Until and unless planned and executed properly with state-of-art technology, which is comprehensive and capable enough; it can only be treated as a stop-gap arrangement and not an alternative.
Q. What are your views on the role of artificial intelligence and legal technology being adopted to enhance the legal future?
There is no doubt that in the coming years, artificial intelligence is going to transform the entire legal industry. The process is already underway and it’s just a matter of time.
There are several products and services already available in the Indian market today, which are promising and also stand-out in terms of their offering, effectiveness and speed.
However, I believe that not everything is conducive to AI and machine learning in the legal industry, for e.g. structuring a commerical transaction, where there are a lot of moving pieces and endless considerations, or advising a client basis complex facts and legal issues. For such practices, human interface cannot be negated completely. Wherever, action points are process orientated, AI and machine learning is surely going to have a huge impact. For e.g. contract review, contract analysis, legal research, and contract management, are very promising to fit the bill.
The change is just around the corner, so it’s already time for law firms and other stakeholders to be AI-ready. They have to start committing to the new technology and start training and developing AI practices. You may be aware that a few law firms in India have already started the process and will definitely have the first-mover advantage over others.
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Chirag Madan is a practicing advocate and a former junior associate of Mr. Ram Jethmalani.
Q. You have had the opportunity of working under Mr. Ram Jethmalani, India’s finest criminal lawyer. What did you get to learn from him, professionally as well as in personal life? Please share with us your experience.
Ram Sir is a legend, I consider him to be the god of this profession. When Ram sir was alive, the opportunity of working under his guidance was a dream come true for anyone who aspired to be a lawyer and especially in the branch of criminal law. He was the greatest lawyer but even a better human being. Though we all are familiar with wit, sharpness and knowledge, I have learnt a lot of things from him and have tried to incorporate them in my life.
The most enriching experience was when I observed and assisted him when he used to cross-examine a witness. He would go through the brief word by word, even the smallest of the documents were diligently scrutinized by him. He would never depend on his briefing counsel or junior, he would himself go through everything no matter what.
I was amazed to see his focus and concentration towards work and was ashamed at the same time that I didn’t have an ounce of it. He would sit for hours and read the brief without a break. With him I learnt how to read briefs, write articles and be disciplined in life. He taught his juniors to enjoy life no matter how hard the circumstances are. He would always wear a smile on his face.
Q. Tell us about some interesting cases that you have worked on.
Though all cases are interesting in one manner or the other. One of the most interesting cases was the Defamation case of Mr. Arun Jaitley against Mr. Arvind Kejriwal. It was a thorough learning experience. I am also representing a number of clients accused of corruption in the trial courts, one of the cases being the Antrix – Devas scam. It is probably the first time ever that an accused has moved an application for perjury against the CBI.
I am also representing a gangster before the Punjab and Haryana High Court who has about 54 FIRs against him. I also filed a PIL before the High Court of Delhi in the recent case where a doctor was raped in Hyderabad; the said PIL sought directions for not disclosing the identity of the rape victim as well as the accused.
Q. What do you think is lacking in our legal system and what can be done to strengthen it?
Our legal system is one of the oldest legal systems. The Constitution is the most important organ. The essential element lacking in our legal system is efficient and speedy adjudication of disputes before the judicial forums. A common man when s/he reaches the court for enforcement of rights or for adjudication of a dispute, s/he is not aware of when such a right would be enforced or adjudicated. So the first and foremost need is to create a mechanism which provides speedy disposal of cases. Appointment of more judges at the district level can resolve this issue.
Q. Due to Covid-19, the world is going through a bizarre phase and the end of it is not known. Do you think that the Indian judiciary is in a position to deal with the challenge of technology and will be able to conduct virtual hearings at all levels, i.e. District Court, Tribunals, Forums, etc.
Unfortunately, the Indian judiciary is not in a position to hold virtual hearings at all fora. One of the drawbacks is the lack of technology not in Courts but also with the lawyers. Not all are well equipped and conversant with the technology. Moreover the virtual hearings raise concerns over privacy, the issue of bulky documents etc. Though in my view we should consider this as an opportunity and improve the system, as life after Covid-19 will not be the same. If the system is improved urgent hearings at night or a holiday can also take place via video conferencing.
Q. How are you utilizing this lockdown period?
I have been reading, writing, watching webinars / movies and spending time with family. As a litigation lawyer you don’t get to spend time with family so I am making the most of it.
Q. You pursued your LL.B right after finishing your schooling. What made you choose law as a career?
Since my childhood I was somehow intrigued towards the profession of law, it always fascinated me. I always wanted to become a lawyer and just followed my instinct and fortunately my friends and family always supported me.
Q. Any advice for the young students who aspire to litigate.
With the little experience I have, firstly I would point out that litigation is interesting but very challenging in the very initial stages. The first initial years are more for learning and less for earning. For a litigation lawyer it is very important to be patient, hardworking and dedicated towards work. Students should start interning in different branches of law and make it a habit to read the latest judgments and books including non-legal ones. They should always start their career on the original side/ trial courts as it gives you more basic knowledge and experience and quoting former Justice Vazifdar, “Only a trial court lawyer is a complete lawyer. A trial court lawyer is an artist, while an appeal court lawyer is an art critic.”
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Saurabh Malhotra is GM Legal, Risk & Compliance at Intertek, a British multinational assurance, inspection, product testing and certification company headquartered in London. He has experience in the areas of Corporate-Commercial, Competition Law, Legal & Regulatory Compliance, Contracting, Legal Policy, HR legal, Litigation strategy, Compliance and Risk Management, Investigations, General Legal Advisory, Legal Trainings among others. He is alumnus of the University of Warwick and the National Law School of India University (NLSIU).
Q. You have worked as legal & compliance counsel with several well reputed companies. For the benefit of our readers, what does a compliance counsel’s job involve?
While doing business in today’s world, there are various laws and regulations at local, state, national and international/ cross border level, which apply to businesses especially those having presence in multiple jurisdictions. Furthermore, the administration and executions of these laws and regulations have also become more stringent, multijurisdictional and at times complicated, with higher penalties on businesses and individuals including civil and criminal implications.
A Legal and Compliance professional’s role in a company involves being a trusted advisor giving timely counselling and advising business partners internally from time to time to do the business in the right way, other than dealing with the external authorities from time to time whenever required. Translating and interpreting the compliance requirement into business-friendly advice and helping the business teams understand them and adhere to them is a daily affair, which in result helps the company and its employees in keeping the risk levels at the lowest.
Legal and compliance role has emerged as a niche practice area in the last decade or two where the need for having dedicated resources for legal and compliance internally by businesses has emerged strongly. I think for an in-house legal and compliance counsel, what success looks like is when he/ she is able to bridge the gaps between internal business practices and compliance requirement in a timely, cost effective and efficient manner with collaboration of all the business partners.
Q. You undertook an executive education program at IIM, Bangalore. What are the other ways for corporate lawyers to enhance their knowledge and skills as time progresses?
Learning and unlearning is a continuous process of life and profession. Things which seem relevant today may not be so relevant in future, and to remain relevant and viable it is of utmost importance that we continue to learn and keep pace with latest developments.
Executive education at IIMB was an enriching experience in learning and updating about latest developments in business practices, financing models and negotiations skills. Networking with like minded professionals and exchanging ideas with them was an icing on the cake, I made friends who are in touch and we bounce off ideas on various matters from time to time.
However, to regularly enhance knowledge and skills in recent times, I find digital platforms very useful as they are easily accessible with well-researched reading material.
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?
Indeed! In today’s world, corporate industry is all about creating and implementing ever better innovative processes, and AI / digitalization of legal processes internally is also part of process. In the short term, it might appear to be an additional cost to various businesses depending upon their budgets, maturity levels and risk appetite, but in the long run, it is going to be the mantra for doing business in the right way. As the business expands and enters cross border territories, there will be more need for legal processes to keep the risk levels of the company low. I believe AI and digitalization in legal processes can bring far better efficiencies and transparency for businesses with legal and compliance counsels implementing it.
Q. You have also briefly practiced as an independent counsel. Could you talk about what were your practice areas then?
Commercial and corporate advisory with strategic litigation was my main focus area during my independent practice.
Q. Based on our telephonic conversation, you have a lot of interest in reading about what’s happening in the corporate and business world in general. What are some of your other areas of interest?
Being a general counsel/ in house counsel/ compliance counsel/ etc., one needs to be continuously updated with developments in all aspects of corporate world be it relevant markets, legal, economic, social, political, etc. To be a strategic and trusted advisor, one needs to strive for having the correct information at the right time and right place is the key.
I believe in the Latin phrase ‘Mens sana in corpore sano’ which is usually translated as ‘a healthy mind in a healthy body’. I try my best to do some kind of physical exercise every day be it walking, jogging, playing any sports.
Q. What advice would you like to give to young lawyers and law students who may want to get into your line of work?
I think today’s law students and young lawyers are very smart and bright. They have very good research skills as well. My advice would be to grasp the practicality and practice of law and compliance as much as possible.
Legal and compliance profession is a very dynamic and demanding profession, so have patience and learn to be a student for life. Maintain a diary and learn to organize yourself. There is no substitute to hard work, so be persistent and keep learning and improving yourself. Believe in the power of team work, learn to appreciate and respect others, and lead the way whenever opportunity is available. Enjoy the beautiful journey of this profession! My best wishes to them.
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Yashvardhan Rana is an Intellectual Property Lawyer with a particular focus on IP prosecution – from registrability analysis and risk management to providing legal opinion on the use, adoption and registrability of trademarks to be launched by Fortune 500 companies as well as top FMCG’s in India. He is a part of the Trademarks, Copyright and Design Prosecution team at Inttl Advocare, Noida, India. He is based out of New Delhi and is a member of Bar Council of Delhi, Delhi High Court Bar Association, APAA and INTA. In January, 2020 he was appointed as a Member of INTA sub-committee – The Trade Mark Reporter Committee and in 2019, he was listed in the Top 50 Emerging IP Players Award worldwide by The IPR Gorilla, 2nd Edition held in Dubai. His educational qualification includes an LL.M. in Intellectual Property Law from the Queen Mary University of London (2015-16).
Q. You have expertise in the field of Intellectual Property. What are your areas of practice within the ambit of IPR laws?
I deal with having a particular focus on IP prosecution comprising of Trademarks, Copyright and Design Law – from registrability analysis and risk management to providing legal opinion on the availability of use, adoption and registrability of trademarks to be launched by Fortune 500 companies as well as top FMCG’s in India. Still in the process of learning and imbibing from the very best – But I tend to also advise on trade mark protection strategies, copyright issues and specific assignments relating to Design Law, certain aspects of strategic brand management and advisory, IP auditing and due diligence to portfolio management, transactional advice and agreement drafting, permitted user/registered user recordals and other procedural compliances.
I have expertise (which I’ll assume that I have) in conducting searches and providing clearance opinions for the availability for use and registration of trademarks, services marks, geographical indications, trade-names, domain names, gTLDs, ccTLDs and industrial designs, based on searches at the TM Office database, WIPO database, WhoIs search, MCA database search, online investigations, market enquiries and surveys, common law sources, searches for International Non-proprietary Names (INNs) and INN stems, etc. Still a long way to go and expand my knowledge in the areas that also interest me such as Data Protection, Cyber Laws, IT Law – Artificial Intelligence and the likes.
Q. Could you specify and briefly explain some India-specific problems pertaining to IPR?
Well, there are many – but to cut the long story short, few of the specific problems that have arisen over the past few years pertain to but are not limited to having IP specialists/experts at specialized benches/forums which should be well co-ordinated and centralized, stricter penal provisions, liberal approach to registration of generic names, appointment and disposal of matters still take time, should develop a mechanism in ensuring that further infringement of rights does not occur while a the lawsuit proceeds through different stages, quick seizures of counterfeit goods through a criminal action, streamlining of formalities, long timelines to be shortened, incorporation of AI, Blockchain Technology and other technological advancements post COVID era etc. at a warfooting.
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 IPR laws?
We have all the laws in place in our statutory books, courts and judges are well equipped having the necessary expertise in hearing and dealing with IP specific matters (changed drastically over the past decade), but what bothers me is the attitudinal aspect/mindset and implementation of progressive laws which I still feel lack in our system in the sense in conducting regulatory compliances and bringing about awareness at grass-roots level involving IP Law. We have all the facilities in the world, have forums being set up to bring about awareness, a decent amount of workforce that is propelling various initiatives at different levels at different forums – but, as a country which forecasts itself to be a 5 trillion dollar economy in the near future, a lot has to be done and achieved in the foreseeable future.
Q. Do you think the Intellectual Property Appellate Board is rightly teethed to deal with the various issues?
Glad that you’ve touched upon this topic. This has been a controversial topic for a few years now. Currently – No, but it should be revamped with the finest state of the art machinery in place and appointment of an IP expert, a technical member and a former judge who has experience in dealing with IP matters (to be scrutinised thoroughly), hearing of matters in a time-bound manner should be done on a war footing – if we as a country are to become a global superpower. If we can build statues, roads and highways in a time-bound manner – then why can’t we build world class infrastructure in setting up of IPAB benches in four major cities in India delivering justice and ensuring timely disposal of matters that in turn would lead to building an ecosystem encouraging better innovation leading to technological advancements and growth as an economic superpower. Also, IPAB can hear select urgent matters wherein the High Courts are over-burdened to assist and supplement its functioning to deal with IP matters.
If the above cannot be achieved, let’s say in the next one or two years, then the best option would be to scrap the IPAB.
Q. On the personal front, why did you choose to specialise in IPR?
The world of brands and logos has always fascinated me since my childhood as I’ve seen my father patronising various well-known brands from multifarious departmental stores from every nook and corner all over the world on our summer vacations. This routine was followed on every vacation that he took us to and I accidentally got immersed and it had further captivated me to dwell into the world of brands like never before. On another note, I also used to read up his case files at night in our house chamber of high-stake matters pertaining to Trade Mark Law almost twice or thrice a week during my college holidays. Since I also had an inclination to become a lawyer from my boyhood days and Intellectual Property Law was and has been booming in India, I chose IPR as my specialisation and further wanted to create a niche for myself in this ever-intriguing field of law.
Q . Having studied both in India and the UK, what kind of difference have you observed between Indian and Western educational institutions, in general, as far as education in the legal field is concerned?
I applied to LSE, UCL, Kings College London and QMUL as I had always wanted to study in London being the commercial hub of the world (and also being familiar with the place since childhood). Luckily, I got through all of them. However, I chose to pursue an LL.M. in Intellectual Property Law from Queen Mary as the IP modules they offered catered to my needs and were being taught by the most renowned IP professors in the world back then. We also had joint classes for our Trade Mark Law module being taught by renowned professors and practicing lawyers along with the students from UCL, LSE and Kings at the Centre for Commercial Law Studies, Lincoln Inn Fields (belongs to QMUL) all under one roof.
All I can say is there is world of a difference when it comes to the teaching methods adopted by law schools abroad as compared to Indian law schools – they are much more engaging and involve a Socratic way of teaching rather than emphasising on theoretical rote learning which is sadly the case here in India. There is much more emphasis on dealing with problems analytically to situation-based real life practical world problems in foreign law schools which in turn equips the lawyer to face the legal world with much more panache and the required skill set. Law schools here in India are soon catching up but to be the front runners in this case, a lot has to be achieved before we compete with foreign law schools or call ourselves world class institutions.
Q. What kind of advise will you give to law students in India who are keen to pursue a higher education abroad?
One should opt for further studies once an individual amasses adequate knowledge about the rudiments of law in his/her area of interest or has gained at least a limited amount of experience in the area one needs to specialize in. One should realise that they should aim to build up a sense of intellectual ability and arm themselves with the various techniques of analysis and develop a sense of multi-disciplinary approach in a diverse environment that would in turn help them grow and broaden their perspective. That is what they should yearn to happen and become a part of a university to encounter the best minds engaged in immutable discussions whilst intrigued in understanding not just the theoretical foundations of law and society but also its new and emerging trends.
Prior practical experience along with an LL.M. degree does make it much more smooth and gives you an edge in interviews (largely depends on the policy and outlook of the firm that you’re applying to). However, I tend to believe that if you’ve got the rigour, discipline, right amount of attitude, persistence, certain skill sets that are in demand and the willingness to learn and unlearn – nothing can stop you from achieving your goal.
Don’t chase people. Be yourself, do your own thing and work hard. Everything will follow. Your degree is just a piece of paper, your education is seen in your behaviour. Keep a positive mind and find and surround yourself with the people out there who have the same mission as you.
Ananth Padmanabhan serves as Dean at Daksha Fellowship and as a visiting fellow at the Centre for Policy Research. His research interests are in the fields of technology policy, intellectual property rights, and innovation scholarship. He has authored a leading treatise, Intellectual Property Rights: Infringement and Remedies (LexisNexis, 2012), and co-edited an important volume, India as a Pioneer of Innovation (OUP, 2017).
His co-authored chapter on Big Data in a recent volume on Regulation in India: Design, Capacity, Performance (Hart Publishing, 2019), is part of a continuing initiative to examine the public law and regulatory dimensions of new technologies. It builds on his understanding of the Indian State and the Supreme Court within the constitutional context, explored through chapters in Rethinking Public Institutions in India (OUP, 2017), and the Oxford Handbook of the Indian Constitution (OUP, 2016). He engages in broader public conversations on the impact of technology through his opinion pieces in Hindustan Times, ThePrint, Livemint, Indian Express, and other print / new media.
Ananth holds masters and doctoral degrees from the University of Pennsylvania Law School.
Q. Let’s start with some of the most relevant issues in today’s times. You have researched extensively on data governance. As the world is increasingly getting entwined with technology, do you think control of citizens’ data is likely to be used as a political tool by governments? Such questions have been raised across the globe including in India in the context of Aadhaar and the Aarogya Setu app.
Control over citizen data is already being relied on as a political tool, be it for election campaigning or for policy appeasement and/or exclusion. Some of these outcomes may be unintended or the result of technology failures, but there is increasing evidence to indicate that many such outcomes are on account of plain neglect or even worse, pre-determined through active connivance of state authorities. For instance, with Aadhaar, what was the rationale behind linking this requirement with every service potentially offered by the State? How did a body like the UIDAI, essentially a data custodian, also become the quasi-regulator and even rule-maker of privacy norms? Why did certain private companies benefit from the stack built on top of the Aadhaar database through early API access, and not others? Frankly, answers to each of these questions and many more can be traced to clear political choices by those in power. Many of these questions linger in the case of Aarogya Setu as well: for how long will the collected data be stored, and for what purposes would it be put to use; will private actors be provided access to this data over time for commercial gains; will the data be accessible to multiple Ministries and government departments, and if so, would it enable the creation of a surveillance state?
Q. Coming to the private sector on this same issue of data privacy, one of the big four tech firms — Facebook — not only has access to but controls enormous amounts of private data of a large part of the world’s population. This heavy dependence on a singular entity could have catastrophic consequences for individual and group privacy. Do you think it’s even possible to ‘ensure’ that such a scenario does not arise, and that we can ever start feeling completely secure that data breaches will not, or rather cannot, happen? What kind of human intervention do we need for this in terms of laws?
The reality we live in is such that we can never fully prevent data breaches. A robust regulatory response is the only workable solution put forth so far that optimally draws the balance between efficacy, business autonomy and trust. When it comes to faulty data processing practices, the right response is broadly along the lines of a data protection law. Whether such law should be modelled on the EU’s General Data Protection Regulation or not is a separate debate. But some kind of legal clarity is required in terms of how these private actors handle our data. The major downside of course is that a regulatory response is only as good as the regulator. For instance, the Personal Data Protection Bill, 2019 in India mandates creating a Data Protection Authority with extensive powers ranging from norm-setting to technical standards-setting to adjudication to penalties. The undesirability of this model notwithstanding, it appears like a poorly thought out design on first glance because of a strong likelihood of unworkability.
When it comes to rogue actors who hack into databases, the answer is more complex. Many of these incidents, especially high-profile ones such as the Sony, Equifax and Zynga hacks, were orchestrated by transborder actors. It is almost impossible to bring them to justice. In an increasingly polarized world, power struggles between nation states will play out in the form of attacks on each other’s corporations. In this scenario, individuals are going to suffer more attacks on, and loss of, personal data and privacy. I do not see any workable solution in sight. The two leading powers of our day – US and China – do not see eye to eye on foundational norms of internet governance, a clear stumbling block in the formation of any international coalition to meaningfully address these high-level attacks.
Q. In continuation of the above two questions, do you think data breaches can have detrimental effects, either directly or indirectly, on civil and human rights and on the democratic value system in the long run?
Yes, in two distinct ways. One, because opponent states will keep targeting electoral processes, critical infrastructure, information channels and all other resources to disrupt normal public life as well as deprive individuals of their civic and political freedoms. Second, because host states will use these attacks and other forms of attacks as a justification or a ruse to further clamp down on these freedoms, especially over the internet. A good example of the former is the Russian hack that may or may not have led to Trump’s victory but certainly made many people lose faith in the democratic process. An example of the latter is the Ministry of Electronics and Information Technology’s proposed amendment to the Information Technology (Intermediaries Guidelines) Rules, 2011 which attempts to use sledgehammers to crack nuts. In other words, extremely disproportionate responses that put privacy-friendly technology solutions such as encryption at risk!
Q. Talking about another tech giant — Amazon — that runs a monopoly. Amazon has been facing antitrust scrutiny even in the US but is still ruling the roost. What kind of competition laws do countries need in order to correct the kind of imbalance that has been created by a massive firm like Amazon?
The most important element of this reform of competition law should be centered on data and how tech companies like Amazon can use data dominance to stop innovation from happening. There are several limbs to any such reform: i) creating data sharing models, voluntary or otherwise, that ensure possibilities for new innovators to mushroom; ii) reimagining abuse of dominant position in a manner where the regulator is as much focused on data dominance as it would be on the traditional metric of market dominance; iii) mapping some of the common types of abuse that rely on data dominance for execution of the same; and iv) merger controls to ensure that there is no one master that controls all data through a series of acquisitions.
Q. How about competition laws in India, where e-commerce operations are expected to multiply in the near future and a lot of indigenous startups are also vying for tech space. Does India have the right kind of laws to ensure a level playing field for all such stakeholders?
Terms like “level-playing field” often contain very little analytical content for us to frame policy around the same. The real question should be whether anti-competitive harms are caused in the marketplace. If we respect the consumer and their welfare, for instance, it should not be the business of policy makers to micromanage deep discounting. If businesses behave irrationally through such practices, they are bound to fail at some point. The policy conversations we are witnessing at present are a violent reaction to some of the venture capital-backed practices of the 2013-16 period. Let the market correct course rather than we turning to the State to play arbitrator between different kinds of business models. And in that journey, a lot of positive innovation will come through. Of course, if it is centralized innovation, we can take remedial steps to rectify the same through competition law reform of the kind flagged in my response to the earlier question.
Q. Your doctoral thesis was on digital copyright, and you have also critically examined from a policy perspective ‘innovating/ innovations’ in India. Could you briefly explain the challenges faced by innovators in India on the policy front as well as the IPR front?
On the policy front, the real issue is that fundamental research is not taken seriously in India. We keep talking, and hosting innumerable conferences, on digital India and the like. We also have some very committed and well-meaning thought leaders like the Principal Scientific Advisor and the Secretary, Department of Science and Technology who understand the gaps as well as the need to promote scientific thinking and foundational research. But for the cup to meet the lip, a lot of financial commitment must be made to such research without too many questions asked or interference in the direction of such research, setting of agenda etc. That freedom is quite absent, thereby making innovation a centralized process that hinges on who you know and who can open doors for you.
From an IPR perspective, legal enforcement must be geared towards protecting real innovation. Currently a lot of our pending cases are trademark suits, copyright infringement action etc. The number of cases where cutting edge innovation is sought to be protected through patent action are still limited. The Intellectual Property Appellate Board has come under criticism for its limited sittings and inability to cope with the workload. A broken patent enforcement system will naturally result in much less patenting happening in India, as well as limited faith in our legal system to protect R&D invested in pioneering inventions.
Q. You earned your doctorate from the University of Pennsylvania. You are also an alumnus of the NLSIU, Bangalore. What kind of difference have you observed between Indian and Western educational institutions, in general, as far as education in the legal field is concerned?
The difference is really one arising from an emphasis on applied theory. For the first time, I understood foundations of jurisprudence when taught by my doctoral advisor Prof. Shyam Balganesh. Though the readings were heavy, the pedagogic manner focused on neatly placing even complex theoretical ideas into categories, exceptions and sub-categories of thought. In some sense, what they taught me at UPenn was simply how to think. Even the senior professors there are aware that many of us come with years of work experience in our respective jurisdictions and they wouldn’t perhaps be able to teach us more of our domestic laws. Yet, the program (both masters and a doctorate) carry great value for the conceptual way in which a subject is approached.
The other big positive, and this is more common to US legal academia, is the emphasis on policy outcomes and consequences when teaching us legal doctrine. US is indeed the birthplace of legal realism, and that shows in the way professors approach law teaching. I had the good fortune to learn technology policy from Prof. Christopher Yoo and Prof. Jonathan Smith, one a leading legal academic and the other an expert in computer science. Recreating this model of learning is going to be tough in India, but something all law teachers and legal education administrators must aspire for.
Q. The Daksha Fellowship for young and mid-career lawyers that you are heading as Dean, Academic Affairs, is cross sectoral and futuristic in nature as it provides a platform for legal practitioners to learn how to link their work with technology-related policy, regulations pertaining to domains such as energy, infrastructure, food, green economy, and alternate dispute resolution — specialisations that are the need of the hour with a lot of potential in the near future. Could you tell us more about the Fellowship, as it is new? And how can more such avenues be built in India to enable lawyers to broaden their horizons and at the same time engage with the evolving needs of a changing world?
The Daksha Fellowship is a one-year residential program run out of Chennai. It is similar to an LL.M degree program but places greater emphasis on skills over theoretical knowledge. Students will be taught by highly qualified core and visiting faculty, drawn from India and overseas. They will also participate in a variety of workshops and bootcamps to burnish their skills. In a nutshell, the fellowship aims to replicate what the Indian School of Business did for B-school education in India.
There are three pillars guiding our academic vision and pedagogic approach at the Daksha Fellowship: knowledge, expertise, and skills. As part of the knowledge pillar, all our fellows will be trained in finance, accounting, data and decision-making, and in public policy – areas that significantly interact with legal practice. They will also undertake a full course on research methods.
The expertise pillar will train them in their chosen area of specialization. The technology law and policy specialization will include a wide range of courses from data protection to information technology, and intellectual property rights in the digital age to telecom. The law and regulation specialization will provide a conceptual and historical understanding of regulation, as well as deep-dive into regulatory zones such as energy and infrastructure, real estate, bankruptcy, and the green economy. The disputes resolution specialization will aim to equip our students with both knowledge required to excel as a litigator, and an understanding of emerging trends in this area such as online dispute resolution, arbitration, and mediation and conciliation strategies.
The skills pillar uses a combination of activities to ensure that Daksha Fellows are well-trained to stand out in the world of work. We will have a Communications Lab running through the year to help them with their writing skills, as well as expression in the digital medium. The Work and Well-being Lab will address other aspects such as leadership qualities, managing the self, critical thinking, and working in teams. In short, our curriculum is designed to enable students go beyond policy and legal frameworks to understanding technology, business practices, and communication in the digital age.
Personally, I would like to see many more such initiatives, not just in legal education, which scrutinize teaching methods that have unquestioningly lingered for several decades. Such critical evaluation is an essential pre-requisite for any student-centric model that guides them to become better problem solvers.
Q. Do you think artificial intelligence and data analytics can be used in the legal field to bring about more efficiency? If so, then how?
For sure. A big part of our work as lawyers and legal educators is to conduct research. And AI and data analytics can make this process so much more efficient, offer more accurate results as well as compress huge volumes of material into easily comprehensible information. Disputes resolution is another area where pattern analysis can help provide adjudicators with a lot of deep insights, including on case management strategies, reducing delays and even doling out substantive justice. Finally, transactional lawyers have as always been at the forefront of adopting many of these technologies. The results are already there for us to see: conducting due diligence and other time intensive activities have become way more efficient with augmentation and support offered by similar natural language processing solutions.
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.
Right to Disclosure – Importance & Challenges in Criminal Justice System – By Manu Sharma
Personal liberty is the most cherished value of human life which thrives on the anvil of Articles 14 and 21 of the Constitution of India (“the Constitution”). Once a person is named an accused, he faces the spectre of deprivation of his personal liberty and criminal trial. This threat is balanced by Constitutional safeguards which mandate adherence to the rule of law by the investigating agencies as well as the Court. Thus, any procedure which seeks to impinge on personal liberty must also be fair and reasonable. The right to life and personal liberty enshrined under article 21 of the Constitution, expanded in scope post Maneka Gandhi[1], yields the right to a fair trial and fair investigation. Fairness demands disclosure of anything relevant that may be of benefit to an accused. Further, the all-pervading principles of natural justice envisage the right to a fair hearing, which entails the right to a full defence. The right to a fair defence stems from full disclosure. Therefore, the right of an accused to disclosure emanates from this Constitutional philosophy embellished by the principles of natural justice and is codified under the Code of Criminal Procedure, 1973 (“Code”).
Under English jurisprudence, the duty of disclosure is delineated in the Criminal Procedure and Investigations Act, 1996, which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, except if such disclosure undermines public interest.[2] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.[3] The duty of disclosure under common law contemplates disclosure of anything which might assist the defence[4], even if such material was not to be used as evidence[5]. Under Indian criminal jurisprudence, which has borrowed liberally from common law, the duty of disclosure is embodied in sections 170(2), 173, 207 and 208 of the Code, which entail the forwarding of material to the Court and supply of copies thereof to the accused, subject to statutory exceptions.
II. Challenges in Enforcement
The right to disclosure is a salient feature of criminal justice, but its provenance and significance appear to be lost on the Indian criminal justice system. The woes of investigative bias and prosecutorial misconduct threaten to render this right otiose. That is not to say that the right of an accused to disclosure is indefeasible, as certain exceptions are cast in the Code itself, chief among them being public interest immunity under section 173(6). However, it is the mischief of the concept of ‘relied upon’ emerging from section 173(5) of the Code, which is wreaking havoc on the right to disclosure and is the central focus of this article. The rampant misuse of the words “on which the prosecution proposes to rely’ appearing in section 173(5) of the Code, to suppress material favourable to the accused or unfavourable to the prosecution in the garb of ‘un-relied documents’ has clogged criminal courts with avoidable litigation at the very nascent stage of supply of copies of documents under section 207 of the Code. The erosion of the right of an accused to disclosure through such subterfuge is exacerbated by the limited and restrictive validation of this right by criminal Courts. The dominant issues highlighted in the article, which stifle the right to disclosure are; tainted investigation, unscrupulous withholding of material beneficial to the accused by the prosecution, narrow interpretation by Courts of section 207 of the Code, and denial of the right to an accused to bring material on record in the pre-charge stage.
A. Tainted Investigation
Fair investigation is concomitant to the preservation of the right to fair disclosure and fair trial. It envisages collection of all material, irrespective of its inculpatory or exculpatory nature. However, investigation is often vitiated by the tendencies of overzealous investigating officers who detract from the ultimate objective of unearthing truth, with the aim of establishing guilt. Such proclivities result in collecting only incriminating material during investigation or ignoring the material favourable to the accused. This leads to suppression of material and scuttles the right of the accused to disclosure at the very inception. A tainted investigation leads to miscarriage of justice. Fortunately, the Courts are not bereft of power to supervise investigation and ensure that the right of an accused to fair disclosure remains protected. The Magistrate is conferred with wide amplitude of powers under section 156(3) of the Code to monitor investigation, and inheres all such powers which are incidental or implied to ensure proper investigation. This power can be exercised suo moto by the Magistrate at all stages of a criminal proceeding prior to the commencement of trial, so that an innocent person is not wrongly arraigned or a prima facie guilty person is not left out.[6]
B. Suppression of Material
Indian courts commonly witness that the prosecution is partisan while conducting the trial and is invariably driven by the lust for concluding in conviction. Such predisposition impels the prosecution to take advantage by selectively picking up words from the Code and excluding material favouring the accused or negating the prosecution case, with the aid of the concept of ‘relied upon’ within section 173(5) of the Code. However, the power of the prosecution to withhold material is not unbridled as the Constitutional mandate and statutory rights given to an accused place an implied obligation on the prosecution to make fair disclosure.[7] If the prosecution withholds vital evidence from the Court, it is liable to adverse inference flowing from section 114 of the Indian Evidence Act, 1872 (“Evidence Act). The prosecutor is expected to be guided by the Bar Council of India Rules which prescribe that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment of the innocence of the accused shall be scrupulously avoided. [8]
C. Scope of S. 207
The scope of disclosure under section 207 has been the subject of fierce challenge in Indian Courts on account of the prosecution selectively supplying documents under the garb of ‘relied upon’ documents, to the prejudice of the defence of an accused. The earlier judicial trend had been to limit the supply of documents under section 207 of the Code to only those documents which were proposed to be relied upon by the prosecution. This view acquiesced the exclusion of documents which were seized during investigation, but not filed before the Court along with the charge sheet, rendering the right to disclosure a farce. This restrictive sweep fails to reconcile with the objective of a fair trial viz. discovery of truth. The scheme of the code discloses that Courts have been vested with extensive powers inter alia under sections 91, 156(3) and 311 to elicit the truth. Towards the same end, Courts are also empowered under Section 165 of the Evidence Act. Thus, the principle of harmonious construction warrants a more purposive interpretation of section 207 of the code. The Hon’ble Supreme Court expounded on the scope of Section 207 of the Code in the case of Manu Sharma[9] and held that documents submitted to the Magistrate under section 173(5) would deem to include the documents which have to be sent to the magistrate during the course of investigation under section 170(2). A document which has been obtained bona fide and has a bearing on the case of the prosecution should be disclosed to the accused and furnished to him to enable him to prepare a fair defence, particularly when non production or disclosure would affect administration of justice or prejudice the defence of the accused. It is not for the prosecution or the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop on reasonable basis.[10] Manu Sharma’s [supra] case has been relied upon in Sasikala [11] wherein it was held that the Court must concede a right to the accused to have access to the documents which were forwarded to the Court but not exhibited by the prosecution as they favoured the accused. These judgments seem more in consonance with the true spirit of fair disclosure and fair trial. However, despite such clear statements of law, courts are grappling with the judicial propensity of deviating from this expansive interpretation and regressing to the concept of relied upon. The same is evident from a recent pronouncement of the Delhi High Court where the ratios laid down in Manu Sharma & Sasikala [supra] were not followed by erroneously distinguishing from those cases.[12] Such “per incuriam” aberrations by High Court not only undermine the supremacy of the Apex Court, but also adversely impact the functioning of the district courts over which they exercise supervisory jurisdiction. Hopefully in future Judges shall be more circumspect and strictly follow the law declared by the Apex Court.
D. Pre-Charge Embargo
Another obstacle encountered in the enforcement of the right to disclosure is the earlier judicial approach to stave off production or consideration of any additional documents not filed alongwith the charge sheet at the pre-charge stage, as the right to file such material was available to the accused only upon the commencement of trial after framing of charge.[13] At the pre-charge stage, Court could not direct the prosecution to furnish copies of other documents[14] It was for the accused to do so during trial or at the time of entering his defence. However, the evolution of law has seen that at the stage of framing charge, Courts can rely upon the material which has been withheld by the prosecutor, even if such material is not part of the charge sheet, but is of such sterling quality demolishing the case of the prosecution.[15] Courts are not handicapped to consider relevant material at the stage of framing charge, which is not relied upon by the prosecution. It is no argument that the accused can ask for the documents withheld at the time of entering his defence.[16] The framing of charge is a serious matter in a criminal trial as it ordains an accused to face a long and arduous trial affecting his liberty. Therefore, the Court must have all relevant material before the stage of framing charge to ascertain if grave suspicion is made out or not. Full disclosure at the stage of section 207 of the code, which immediately precedes discharging or charging an accused, enables an accused to seek a discharge, if the documents, including those not relied upon by the prosecution, create an equally possible view in favour of the accused.[17] On the other hand, delaying the reception of documents postpones the vindication of the accused in an unworthy trial and causes injustice by subjecting him to the trauma of trial. There is no gainsaying that justice delayed is justice denied, therefore, such an approach ought not to receive judicial consent. A timely discharge also travels a long way in saving precious time of the judiciary, which is already overburdened by the burgeoning pendency of cases. Thus, delayed or piecemeal disclosure not only prejudices the defence of the accused, but also protracts the trial and occasions travesty of justice.
III. Duties of the stakeholders in criminal justice system
The foregoing analysis reveals that participation of the investigating agency, the prosecution and the Court is inextricably linked to the enforcement of the right to disclosure. The duties cast on these three stakeholders in the criminal justice system, are critical to the protection of this right. It is incumbent upon the investigating agencies to investigate cases fairly and to place on record all the material irrespective of its implication on the case of prosecution case. Investigation must be carried out with equal alacrity and fairness irrespective of status of accused or complainant.[18] An onerous duty is cast on the prosecution as an independent statutory officer, to conduct the trial with the objective of determination of truth and to ensure that material favourable to the defence is supplied to the accused. Ultimately, it is the overarching duty of the Court to ensure a fair trial towards the administration of justice for all parties. The principles of fair trial require the Court to strike a delicate balance between competing interests in a system of adversarial advocacy. Therefore, the court ought to exercise its power under section 156(3) of the Code to monitor investigation and ensure that all material, including that which enures to the benefit of the accused, is brought on record. Even at the stage of supply of copies of police report and documents under section 207 of the Code, it is the duty of the Court to give effect to the law laid down by the Hon’ble Supreme Court in Manu Sharma (supra) and Sasikala (supra), and ensure that all such material is supplied to the accused irrespective of whether it is “relied upon” by the prosecution or not.
IV. Alternate Remedy
The conundrum of supply of copies under section 207 of the code abounds criminal trials. Fairness is an evolving concept. There is no doubt that disclosure of all material which goes to establish the innocence of an accused is the sine qua non of a fair trial.[19] Effort is evidently underway to expand the concept in alignment with English jurisprudence. In the meanwhile, does the right of an accused to disclosure have another limb to stand on? Section 91 of the Code comes to the rescue of an accused, which confers wide discretionary powers on the Court, independent of section 173 of the Code, to summon the production of things or documents, relevant for the just adjudication of the case. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the Court, it can legitimately use its power under section 91 of the Code to discover the truth and to do complete justice to the accused.[20]
V. Conclusion
A society’s progress and advancement are judged on many parameters, an important one among them being the manner in which it administers criminal justice. Conversely, the ironic sacrilege of the core virtues of criminal jurisprudence in the temples of justice evinces social decadence. The Indian legislature of the twenty first century has given birth to several draconian statutes which place iron shackles on personal liberty, evoking widespread fear of police abuses and malicious prosecution. These statutes not only entail presumptions which reverse the burden of proof, but also include impediments to the grant of bail. Thus, a very heavy burden to dislodge the prosecution case is imposed on the accused, rendering the right to disclosure of paramount importance. It is the duty of the Court to keep vigil over this Constitutional and statutory right conferred on an accused by repudiating any procedure which prejudices his defence. Notable advancement has been made by the Apex Court in interpreting section 207 of the Code in conformity with the Constitutional mandate, including the right to disclosure. Strict adherence to the afore-noted principles will go a long way in ensuring real and substantial justice. Any departure will not only lead to judicial anarchy, but also further diminish the already dwindling faith of the public in the justice delivery system.
**
Advocate Manu Sharma has been practising at the bar for over sixteen years. He specialises in Criminal Defence. Some of the high profile cases he has represented are – the 2G scam case for former Union minister A Raja; the Religare/Fortis case for Malvinder Singh; Peter Mukerjee in the P Chidambaram/ INX Media case; Devas Multimedia in ISRO corruption act case; Om Prakash Chautala in PMLA case; Aditya Talwar in the aviation scam case; Dilip Ray, former Coal Minister in one of the coal scam cases; Suhaib Illyasi case.
**
Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
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)
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