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October 7, 2021 0Comments 140Views

The Narcotic Drugs and Psychotropic Substances (Amendment) Ordinance, 2021

LE Staff October 1, 2021 The Narcotic Drugs and Psychotropic Substances (Amendment) Ordinance, 2021 was...

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The Limited Liability Partnership (Amendment) Act, 2021

August 10, 2021 Read Act The Limited Liability Partnership (Amendment) Bill, 2021 was introduced in...

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August 7, 2021 0Comments 172Views

THE TAXATION LAWS (AMENDMENT) BILL, 2021

Read THE TAXATION LAWS (AMENDMENT) BILL, 2021 Pankaj Bajpai New Delhi, August 7, 2021: In...

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July 29, 2021 0Comments 145Views

Deposit Insurance Credit Guarantee Corporation (Amendment) Bill, 2021

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July 23, 2021 0Comments 241Views

The Inland Vessels Bill, 2021

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The Essential Defence Services Ordinance, 2021

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The Model Tenancy Act, 2021

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The Enforceability Quandary – To Grant Extension or Not? – By Anant Garg & Sreejita Mitra

5 days ago 0Comments 267Views

January 21, 2022

The Hon’ble Supreme Court of India on March 23, 2020(“Order”) took suo moto cognizance of the pandemic due to Covid-19 in Suo Moto Writ Petition (Civil) No. 3/2020) and passed an order vide which the period of limitation in filing petitions, applications, suits, appeals and all other proceedings, irrespective of the period of limitation prescribed under the general or special laws was extended with effect from March 15, 2020 till further orders. Thereafter, on March 8, 2021, it was noticed that the country was returning to normalcy and since all the courts and tribunals had started functioning either physically or virtually, extension of limitation was brought to an end by the Supreme Court in March, 2021.However, on an application being filed by the Supreme Court Advocate on Record Association vide Miscellaneous Application No. 665/2021 in SMW(C) No. 3/2020, the Apex Court restored the Order till further orders, on April 27, 2021.Thereafter, on September 23, 2021 the Miscellaneous Application No. 665/2021was disposed of by the Hon’ble Supreme Court with the order that with effect from October 2, 2021, the limitation period will not be extended any further, due to imminent normalcy. Presently, the Hon’ble Apex Court has again restored the Order, on January 10, 2022 passed in Miscellaneous Application No. 21 of 2022 in Miscellaneous Application No. 665/2021 in SMW(C) No. 3/2020, by virtue of which the period from March 15, 2020 to February 28, 2022 shall stand excluded for the purpose of limitation in respect of all judicial or quasi-judicial proceedings.

The bone of contention here is the impact of this Order on the Arbitration & Conciliation Act, 1996 (“Act”), which is a special statute, especially on the timelines envisaged under Sections 34(3) and 36 of the Act. Section 34(3) of the Act provides that an application for setting aside an Arbitral Award has to be preferred within a period of three months from the date the award was received or if an application for correction or modification of an award has been preferred, three months from the period on which such application was disposed of by the Arbitral Tribunal. The proviso to Section 34(3) furnishes an additional 30 days to challenge an award provided the applicant shows reasonable cause.

Section 36 of the Act deals with enforcement of arbitral awards passed in India. As per Section 36(1) of the Act, after the time prescribed for making an application to set aside an award under Section 34 has elapsed, an award is to be enforced as a decree of a court. From a conjoint reading of Sections 34 and 36 of the Act, it clearly emerges that an arbitral award is to be enforced as a decree of the civil court upon the expiration of three months or in the event the proviso has been invoked, 120 days from the date the award was received. Sections 34 and 36 are set out hereunder for the sake of convenience:

“Section 34 – Application for setting aside arbitral award

Recourse to a Court against an arbitral award may be made only by an application forsetting aside such award in accordance with sub-section (2) and sub-section (3).

…………………..

An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.

……………

An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.”

“Section 36 – Enforcement

Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court.

Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.

Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:

Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).

Provided further that where the Court is satisfied that a prima facie case is made out that,-

the arbitration agreement or contract which is the basis of the award; or

the making of the award, was induced or effected by fraud or corruption, it shall stay the award unconditionally pending disposal of the challenge under section 34 to the award.

Explanation.–For the removal of doubts, it is hereby clarified that the above proviso shall apply to all court cases arising out of or in relation to arbitral proceedings, irrespective of whether the arbitral or court proceedings were commenced prior to or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015 (3 of 2016).”

The Supreme Court had explained the importance of Section 34(3), while interpreting it strictly and had held in Dakshin Haryana Bijli Vitran Nigam Ltd. Vs Navigant Technologies Pvt. Ltd. that the phrase “but not thereafter” used in the proviso to Section 34(3) would amount to an express bar on the application of Section 5 of the Limitation Act, 1960. The Apex Court also held that –

“To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose.”

The Court further referred to its decision in Simplex Infrastructure Vs Union of India wherein it had held that “the phrase “but not thereafter” provided under Section 34(3) of the Act makes it evident that the statutory period of limitation for filing an application for setting aside is three months, which is extendable by thirty days, if sufficient cause is made out. No further period of time can be granted for the filing of an application under Section 34.”

In simple words, the period of enforcement of an Award commences as soon as the period for filing objections provided under Section 34(3) is over. Even a mere petition under Section 34(2) for setting aside the arbitral award shall per se not render the award unenforceable, unless the court grants an order of stay of the operation of the arbitral award in accordance with Section 36(3)on a separate application made for such purpose. This was enunciated by the Calcutta High Court in Kolkata Metropolitan Development Authority Vs South City Projects (Kolkata) Ltd. and Ors. while expounding that, “…Sub-Section (2) of Section 36 has recognised that, an application for setting aside of the arbitral award by itself shall not render the award unenforceable, unless the Courts grants an order of stay of the operation of the arbitral award in accordance with the provisions of sub-section (3) of Section 36 of the Act of 1996, on a separate application made for such purpose. …”

However, the pandemic, and the subsequent ruling of the Supreme Court, have left parties befuddled about whether to file an application for enforcement after 90/120 days are over or whether to wait for further orders of the Apex Court. There is not much precedential basis to take a stand on this, although the Calcutta High Court in SREI Equipment Finance Limited Vs Marg Limited has adopted the Supreme Court’s order stricto sensu. The High Court held that an award cannot be enforced until the period of limitation for filing a Section 34 application has not expired in the following terms:

“11. The question in the present case is whether the time for the award-debtor to apply under Section 34 for setting aside of the award has elapsed or continues to run. The answer to the question then must entirely turn on the effect of the order of the Supreme Court dated 27th April, 2021. The portion set out above makes it clear that the earlier order of 23rd March, 2020 was being restored as an extraordinary measure to lessen the difficulties faced by litigants in the upsurge of the pandemic. The order clarifies that the period of limitation whether under general or special laws or in respect of judicial/quasi judicial proceedings, shall stand extended till further orders. The intention of the Supreme Court is to preserve the rights of litigants who would otherwise have missed the statutory deadlines for instituting proceedings in the courts. The applicant’s time to file the Section 34 expired on 7th December, 2020 and the applicant hence comes within the zone of benefit given to litigants commenced from 15th March, 2020 and continued to run as on the date of filing the present application – 21st June, 2021. Simply put, the time to apply for setting aside of the award dated 31st August, 2020 has still not expired.

12. Any other interpretation of the orders passed by the Supreme Court would lead to an absurd result. If the Supreme Court orders were construed as not limiting an award holder from enforcing the award under Section 36(1) and (2) of the Act, it would in effect take away the benefit given to litigants who failed to institute proceedings within the period of limitation. It would lead to a scenario akin to opening a window but drawing the curtains to prevent the sunlight from coming in; a more topical analogy would be lifting of travel curbs but shutting down places where people may visit. This surely cannot be what the Supreme Court intended.”

As such, the award cannot be enforced. However, the Calcutta High Court’s decision was not unconditional. While applying the Supreme Court’s decision to extend the limitation periods to challenging an arbitral award under Section 34, the High Court also added that the rights of the award holder cannot be kept in abeyance indefinitely and thus, the award debtor was directed to take requisite steps under the Act within 10 days from the date of the judgment, as the law protects litigants who are vigilant and not those who take their rights for granted indefinitely.

The authorsdo not completely concur with this decision of the Hon’ble Calcutta High Court, as Section 36 enables a party to apply for enforcement of award when the period for challenging an award under Section 34 has expired and it cannot be deemed that the period would stand extended for an uncertain period by the orders of the Hon’ble Supreme Court. It is essential to note that the Supreme Court’s intent was to pass a welfare ruling to diminish the inconvenience of the stringent limitation periods. But if the Calcutta High Court’s proposition were to be accepted, then enforcement of an arbitral award can be delayed by an award debtor taking recourse to the order of the Supreme Court, thereby, defeating the ethos of speedy alternative dispute redressal enshrined in the Act.

This is reinforced by a recent decision of the Hon’ble Delhi High Court in Bharat Kalra Vs Raj Kishan Chabra wherein the following observation was made with respect to the Order:

“13. While it is true that the power to condone delay is intended to advance substantive justice, nevertheless, procedure cannot be given a complete go by. The powers of the court to condone delay is to be used in appropriate cases. No litigant can assume that, as a matter of right, the delay in taking steps would be condoned, because procedure is the handmaiden of substantive justice. Rights accruing to the opposite party on account of the delayed action need to be also kept in mind. The reasons given for explaining the delay are of paramount importance and not the length of the delay. The shortness of delay alone ought not to suffice for exercise of discretion to condone it. Cogent and clear explanations have led the courts to condone the delay, even of five years in filing the pleadings. …

…15. It was thus made clear that the benefit of the order dated 23^rd March, 2020 would be available only to those who were vigilant of their rights and not lethargic.”

Although the Hon’ble Supreme Court expressly mentioned in its order dated July 10, 2020 (Cognizance for extension of limitation, In Re) that all periods of limitation under the Act shall stand extended as the Order will be deemed applicable to the Act as well, however, the dubiety regarding the enforcement of award is still an open-ended question and is yet to be decided finally by the Hon’ble Supreme Court but until then, in the humble submission of the Authors, the perk of the Hon’ble Supreme Court’s order should not be misused to cause inconvenience to award holders.

Anant Garg is Partner, and Sreejita Mitra is Associate, at L&L Partners Law Offices.

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White-Collar Crimes: A Broad Overview and Legislations- By Nitesh Rana

January 13, 2022 0Comments 173Views

January 13, 2022

A crime is an act or omission declared to be crime by the State. A crime or offence is hazardous not only to an individual but also to the society at large or the state. In recent years, the crimes, based on their nature, objective, modus operandi and consequences, have been classified as ‘blue-collar crimes and ‘white-collar crimes’.

Blue-Collar Crime:

General cluster of crimes is widely referred to and categorized as ‘blue-collar crime’, though that is not an official legal classification. For the ease of understanding, a crime which is committed for immediate benefit or gain to the individual or a group involved is referred to as blue-collar crime.

The term ‘blue-collar crimes’ was originally coined to loosely define those crimes committed by someone from the working or lower echelons of society. It is understood that generally the people belonging to the lower-echelons of society are more likely to be pushed into crime due to their quest of survival than for greed or power. During the1910s in America, manual laborers who were from society’s lower-segment often opted for blue shirts so that stains gained from days at work were less visible. The term ‘blue-collar workers’ was attributed to them as defining low income earners.

Mostly blue-collar crimes are those crimes that are considered to be triggered by passion, rage or other emotions, unemployment etc. Crimes that cause injury to people or property, such as burglary, property crimes, theft, murder and other violent crimes, assault, sex crimes, breaking and entering and drug crimes are considered to be blue-collar crimes.

White-Collar Crimes:

In contrast to blue-collar crimes, ‘white-collar felony’ refers to financial shenanigans, non-violent crimes committed by persons who, often by virtue of their occupations, exploit social, economic, or technological power for personal or corporate gain. Typically, it includes fraud, bribery, ponzi schemes, insider trading, embezzlement, cybercrime, copyright violation, money laundering, forgery, corruption etc.

A white-collar criminal belongs to the upper socio-economic class who is skirting the law for economic gain while performing his professional assignments. White-collar crimes are committed with a cool mind, planned calculation and deliberate design. In general, the fundamental cause of white-collar crime is economic greed. It is often said “white-collar crimes are committed for greed, not for need”.

There are other contributory causes as well, such as opportunity to commit crime, situational pressure on the individual etc. Some offenders, in fact, do not really consider it a crime because the acts involved do not resemble street crimes. Some business people feel justified in committing white-collar crimes because they believe that government regulations do not really understand the business world or their activities or the problems of competing in the free enterprise system. These crimes are committed by persons who are socially, economically and occupationally well established as well as influential in society. Usually common people cannot make out these types of crimes, although they can perceive the effect of such crimes on them.

One of the prime causes of white-collar crime is ignorance of people about such crimes as their nature is totally different from traditional blue-collar crimes. Rationalizing greed is a common trait of white-collar criminals. Some white-collar criminals believe that everyone violates business laws, so it is not so bad if they also do so. Most white-collar crimes are, directly or indirectly, connected with distribution of wealth, encouraging growth of monopolies, the rise of a managerial class and intricate institutional mechanism.

The concept of white-collar crimes has seen phenomenal growth after colonization and industrialization in the eighteenth century. White-collar criminality has become a global manifestation with advancement of commerce and technology and the reason for its monumental growth is a meteoric rise in economies and industries in past decenniums.

White-collar crimes are dangerous to wider sections of society as these crimes directly affect the financial condition of the country itself by putting the nation into great financial hardship.They have a serious impact on society and thus they are serious offences. The methods by which taxes are evaded or black money is floated in the market and money laundered are all examples of such offences, which are committed purely for personal gains at the cost of heavy loss to the State.

White-collar crimes’ cause economic misbalance, which impacts society in the form of poverty, unemployment, economic slowdown, inflation etc. As a result, there is an artificial economic crisis in the market and the price of goods ultimately rises. When white-collar criminals evade taxes, partially or as a whole, the entire fiscal policy of the Government is disturbed. Therefore, due to the malpractice, the society is affected in many ways.

Legislations on White-Collar Crimes:

The Parliament from time to time brought legislations to deal with white-collar crimes and it has proved to be deterrent to an extent.

The Criminal Law (Amendment) Ordinance, 1944 (XXXVIII of 1944) was brought to prevent the disposal and concealment of properties procured by means of corruption, breach of trust and cheating. However, not all crimes under the Indian Penal Code are covered by the said Law.

The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 covers penalty of illegally acquired properties of smugglers and foreign exchange manipulators and for matters connected therewith and incidental thereto.

The Narcotic Drugs and Psychotropic Substances Act, 1985 provides for the penalty of property derived from, or used in illegal traffic in narcotic drugs.

The Prevention of Corruption Act, 1988 and The Lokpal and Lokayuktas Act, 2013 are also legislations aimed at curbing white-collar crimes, though in a specific categories of persons.

The Fugitive Economic Offenders Act, 2018 covers the acquisition of properties, in India and abroad, which are Benami in nature or are covered under the concept of Benami transactions. The act works in coherence with the Prevention of Money Laundering Act, 2002 since the enforcing agency is the Enforcement Directorate. It lays down that a person would be qualified to become a fugitive economic offender only when a non-bailable warrant has been issued with regard to the scheduled offences as mentioned in the Act against the individual and in order to avoid criminal prosecution, the aforesaid individual has left India; or he is refusing to return to India to face the criminal prosecution. The Act has been accompanied by a schedule which provides a list of exhaustive offences under which a Fugitive Economic Offender can be booked. Further, the Fugitive Economic Offender must have committed a fraud or a crime of over Rs 100 crores to be booked under this Act. Lately, the Special courts have declared as fugitives Vijay Mally, Nirav Modi, Asif Iqbal Menon, Junaid Iqbal Menon and Hajra Iqbal Menon (Late Iqbal Mirch’sf amily), Nitin Sandesara, Chetan Sandesara, Dipti Sandesara and Hitesh Patel (Directors of M/s Sterling Biotech Ltd) among others.

The Prevention of Money Laundering Act, 2002 (PMLA) forms the core of the legal framework put in place by India to combat money laundering and obviate white-collar crimes. It has dual parallel provisions: firstly, provision for attachment and confiscation of property, secondly prosecution before the criminal court which has a maximum sentence of 7 years and in exceptional cases it is 10 years.

The Enforcement Directorate (ED) is a law enforcement agency responsible for enforcing economic laws and fighting economic crime in India. One of the main functions of the Enforcement Directorate is to investigate offences of money laundering under the provisions of PMLA and to take actions like attachment of property if the same is determined to be proceeds of crime derived from a Scheduled Offence under PMLA, and to prosecute the person involved in the offence of money laundering. India is a full-fledged member of the Financial Action Task Force and follows the guidelines of the same.

The evolving threats of white-collar crime and money laundering supported by the emerging technologies need to be addressed with equally advanced anti-money laundering mechanisms and laws.

Nitesh Rana is Counsel for the Enforcement Directorate.

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ON THE BACKFOOT ! – By Chirag Madan

January 3, 2022 0Comments 61Views

January 3, 2022

Since the era of the barons in England, the legal profession and legal education have come a long way. Lawyers, usually classified in the common law system as advocates, solicitors and barristers, face a host of challenges in the profession. Amongst the umpteen number of challenges which lawyers face, the one that stands out the most is not just their specialization in a particular field but their super-specialization, that has become imperative for their survival as professionals. However, the crucial element to achieving specialization is to have a strong rudimentary understanding of the law and how it works in the real world.

After practising on the criminal side for almost a decade, I have witnessed and fairly understood the systematic functioning of our criminal justice system. The defence side is the most challenging one, where the defence lawyer lays down the basic foundation of the case’s defence and the strategy which is to be adopted at the appellate stage, where need be. The defence strategy adopted by a lawyer at the trial stage becomes a bedrock which cannot be flustered with and therefore the job of a defence counsel is the most crucial while determining the path towards obtaining relief for the client.

The working of the legal profession and court proceedings, in particular, are substantially different from how they are portrayed in movies or television shows which are mostly far from reality. The life of a defence lawyer is way more tiring, time consuming and mostly aggressive (rather than defensive).Being a defence lawyer is a twenty four hour job and we are always on our toes.

Although there is potential for higher pay and considerable job autonomy, defence lawyers face a number of challenges in their roles, including negative public perceptions, demanding clients, lack of proper instructions, uncooperative prosecution, overwhelming evidence records, high expectation of clients, anxiety of the family members of the clients, impractical timelines, professional commitments, etc. With the advancement of technology, insurmountable amounts of information has been made easily accessible to everyone, which poses a new challenge for the defence lawyers in dealing with their clients and the public at large.

INITIAL YEARS

The first few years in litigation, particularly as a budding defence lawyer, are often time consuming and involve less remuneration which becomes a concern for many young lawyers who contemplate shifting their area of practice to the corporate sector. While the corporate sector/law firms do provide good salary packages to fresh graduates, the work often gets monotonous and involves less to minimal client interaction. All this, of course, is subject to the setup or firm one is in. In criminal litigation, on the other hand, one has to dedicate her/himself to understanding and learning the procedure in the formative years without expecting an attractive pay cheque or returns whatsoever.

WORK-LIFE BALANCE

Every line of work demands some sacrifice but in a defence lawyer’s life most of his time is spent doing work and one’s relationship with family and friends often suffers. The workload coupled with extensive hours makes forming and maintaining relationships quite cumbersome. Be it a trial strategy, a bail or a cross-examination, one has to put long hours for preparing the same. If one doesn’t totally dedicate her/himself in this tangent of the profession then this not the right career path.

NEGATIVE PUBLIC PERCEPTION

Due to the widespread access to social media and new media, the public at large often have a wrong perception about lawyers practising on the criminal side. The public, after viewing any article or news piece about a matter, may question the lawyer, his client and his ethics or morals – without being sure of the veracity of the message, which is further circulated causing irreparable damage. People forget that an accused is innocent unless proven guilty and the Advocates Act, 1961 casts a duty upon the Advocate to defend a person whether in his opinion he is guilty or not.

CLIENT HANDLING

A lawyer deals with numerous people but in this profession one has to keep himself/herself apart from their clients emotionally. No matter how stressed a defence lawyer is, emotions should not reflect on one’s professionalism and the quality of work must not be compromised. When clients lie or withhold information from their lawyer, they harm no one but themselves. Additionally, some clients commit crimes that are symptomatic of a deeper problem, such as lack of parental oversight, personal accountability or regard for people. One must not forget that ignorance of law is no defence. Ignorantia juris non excusat. Clients may sometimes also have demands and expectations from their defence attorney that are unrealistic given the facts of the case. At the start of a criminal case, the clients often change lawyers for quick relief which is disheartening.

PRESSURE AND STRESS

Defence lawyers may also experience ethical and moral dilemmas. They may experience a burnout if they consistently find themselves preparing for court at the last minute and staying up late to research. This accentuation is usually compounded when new evidence is presented. Lawyers may spend hours in the evening after a day in court researching and preparing notes for the next day. If an innocent client is railroaded and found guilty, it not only impacts the lives of the client and his family and the reputation of the attorney representing them as well.

THREATS / SECURITY

A defence lawyer may often deal with defending an accused having a relatively different background, association or belonging from a different community. There are instances which may pose a threat to his life. Often, when a lawyer is unable to secure a desired result for his client, such accused or their associates may cause harm or attack the lawyer. Depending on the threat level, prominent lawyers handling high profile matters are often given security by the local /state police.

Though there may be some downsides to practising as a defence lawyer as briefly explained above, there are no shortcuts to success and one needs to burn the midnight oil to see the shining light on the brighter side of this profession. At the end of the day you know that you are responsible for one’s personal liberty, rights, liabilities etc, therefore, one should be focussed and work hard. I am certain that success maybe delayed but it would not be denied.

As his lordship Justice Shiavax Jal Vazifdar rightly stated, “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”.

The author is a defence lawyer based in Delhi and is the Founding partner of MS Law Chambers.

Disclaimer: This article was first published by Legitquest in partnership with Forbes magazine at https://www.forbesindia.com/legalpowerlist2021/

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Navigating The Law Firm Technology Landscape – Assessing the Transforming Role of Technology in Law Firms

December 29, 2021 0Comments 106Views

By Bithika Anand & Nipun Bhatia

December 29, 2021

When we use the word ‘technology’ in the context of law firms, we relate it to virtual courts, paperless offices, a seamless work-from-home environment, and the use of software to streamline the operations. However, in this article, we move a step beyond these aspects of technology and discuss the pervasive adoption of technology in the functioning of law firms.

Today, technology has acquired the role of digital revolution, whereby law firms are envisioning how several aspects of working of a law firm can be transformed with the use of technology. In other words, the true essence of technology in law firm management is the amalgamation of disruption with resources, efficiency, and ability to adapt to the changing commercial-legal environment in which law firms are operating.

While technology started making inroads in the law firm operations at least a couple of decades back, its role was limited to automating operations that were prone to human error. These primarily included time-keeping, deadline monitoring, document management, and the likes. This gradually paved the way, not only for more sophisticated management software systems like Client Relationship Management (CRM) software, Managing Partner Dashboards, but also software that eases the practice of law by facilitating access to court judgments and allowing triggers/reminders related to the court cause lists.

The dependence on technology, however, saw an all-time high once the world came to a halt due to the Covid-19 pandemic. For the first time, law firmshad to fall back on technology and adopt an altogether new way of conducting their operations, with technology playing an integral part of this makeover. While traditionally, law firms are able to leverage their goodwill to continue to attract clients, they realised that lack of technology could severely hamper them permanently, pushing them out of service. Technology acquired the status of a ‘necessity’ from a ‘luxury’.

It inspired the law firms to look for alternate and long-term solutions, rather than relying on available resources. In the midst of crisis, the adoption of new technology became critical to survival and success of law firms. Right from remote workplaces, e-filing to conducting technology-based research and virtual hearings, the role of technology in streamlining the functioning of law firms enhanced manifold. Today, technology has assisted in minimizing the amount of time required to handle cases, the cost of providing legal services, and the probability of human errors. It has also streamlined communication with clients and is fostering the use of Artificial Intelligence (AI) for improvising and innovating legal services and ensuring compliances.

Perhaps, it’s important to highlight here that the biggest advantage of technology is the efficiency it lends to the management of law firm operations. As you read this article, several law firms have already adopted software that works on algorithms to automate repetitive tasks, scrutinize users’ behaviour, and drafting style to create drafts using AI. Analytical tools are being combined with user behaviour to optimize the time spent on basic factual research. AI is also increasingly being considered to scrutinize documents and automate other mundane work, allowing lawyers more time to practice law and work on matters that require their core legal expertise. Ultimately, it enhances the value proposition of the legal service provided by law firms.

However, we can’t just focus on the silver lining and must also understand that while navigating the law firm technology landscape, there are challenges that need to be addressed as well. The three challenges that are key to imbibing technology in law firm management are the security threats, the cost of creating a digital environment, and most importantly, the acceptance by human resources.

Security and confidentiality remain at the top of the possible concerns of digitization. When the pandemic hit the world in 2019-20, most Indian law firms were swift to announce that they are available 24/7 and that their teams are equipped to work from home. However, not many of them realised that without adequate security systems in place, their data is prone to serious threats. A few law firms had to incur considerable costs in getting their IT systems audited for security and obtain certification to convince their multi-national clients. Law firms handle sensitive information and there is zero-tolerance for any compromise on confidentiality. Firms must adhere to security best practices on all devices used by their resources, whether at workplace or home. Most breaches can, however, be prevented by technical security measures deployed by the company (for instance, firewalls). However, law firms must ensure that digital security is as much a priority as digitization, to enhance clients’ confidence in the firm.

The second limitation is cost. Setting up a tech-based environment could appear to be expensive, especially in cases where the initial outlay is large. However, most of the technology or software providers now offer ways in which the investment is spread over a long-time. Of course, costs incurred towards maintenance, upgrade and security will be of recurring nature and require a financial commitment from the firm. However, if the firms have capital to make the initial investment, the switch to technology is profitable in the long term.The Return on Investment (RoI) on technology is not just positive, but massive in most cases and cannot be achieved through any other alternative when evaluated over a period of time.

Lastly, the adoption of technology can neither be done because ‘others are doing it’, nor because it’s the ‘in thing’. It’s a shift of mindset to move to a more seamless working environment and the willingness to adopt the change whole-heartedly, even if it entails initial teething issues. The focal point of imbibing technology in your law firm has to be twofold – the clients and the human resources. The technology must operate for the benefit of the client and must make your human resources more ‘enabled’. The initial human reaction to every change is aversion, but with the right dialogue and messaging,human resources can be made to understand that technology can also be to their aid by addressing mundane and repetitive tasks. This also enhances lawyer satisfaction as they can be engaged in more meaningful and high-end tasks.

To sum up, technology has had an impact on every aspect of legal industry – from corporate practice to law firms and courtroom proceedings. With ever-increasing competition and to ensure that India’s law firms walk shoulder to shoulder with their foreign counterparts, law firms cannot function oblivious of technology. Technology can upgrade the operations and efficiency of law firms, provided the challenges are addressed. Today, technology is forward-thinking, solution-oriented, and is changing the face of the way law firms are being managed and run.

The article has been authored by the team of Legal League Consulting comprising of Bithika Anand, Founder & CEO and Nipun Bhatia, President – Strategic Legal Management. The research has been contributed by Tejas Khurana, Consultant and Kashish Grover, Knowledge Intern.

Disclaimer: This article was first published by Legitquest in partnership with Forbes magazine at https://www.forbesindia.com/legalpowerlist2021/

Columns

M&A Activity in India on a high: What has worked well and how can this rhythm be maintained

December 27, 2021 0Comments 126Views

By Kunal Doshi & Somrita Chatterji

December 27, 2021

For about the last two years while we have all become accustomed to the news being dominated byCOVID-19 and its effects, there is another important story that has perhaps not been getting the recognition that it should – that investments and deal making in India are at all-time highs despite the pandemic. While there have undoubtedly been ill-effects on the economy on account of the pandemic, a closer look at the numbers reveals that there has been a flurry of M&A activity at the same time.

Industry reports and Government databases alike suggest a continual growth in investments in India, and M&A activity in India in 2020 excelled and surpassed expectations. The year 2021 seems to be following the trend. Ata time when people had to adapt to unique working conditions, India recorded its highest value of foreign investment received. This, however, is not an unexpected or erratic peak in the graph. It is the result of systematic reforms and policy changes, geo-political shifts and the inherent nature of the Indian demographic.

In order to facilitate higher levels of overseas investment into India, the legislative policy in recent years has seen further liberalization and rationalization of investment norms, permitting investments in a large number of sectors without many regulatory hurdles while simplifying investments in many others. A good example of this is the streamlining of the regime for single-and multi-brand retail trading, which has undergone multiple revisions in the recent past. This has made it easier for the likes of not just Amazon and Walmart, but a number of other players to make investments into India. Where approvals are needed, the process has been rationalized with approvals now being required from sectoral regulators.

In addition, the Indian antitrust and competition law regime is also among the most evolved in the world, and has also facilitated quicker transactions by prescribing certain exemptions which, if applicable, do not require specific approvals. In addition, where an approval is needed, the CCI has recently introduced a ‘Green Channel’ route which provides for automatic approval of certain transactions immediately, which has resulted in fast tracking of a considerable number of transactions.

It is also worth highlighting that key regulators in India dealing with M&A activities such as the Reserve Bank of India (RBI), the Securities and Exchange Board of India (SEBI) and the Competition Commission of India(CCI), are sophisticated institutions and informed market administrators who have adopted a commercial and constructive approach in the discharge of their duties.

There have also been significant and far ranging changes made to disputes laws in India, with the introduction of designated ‘Commercial Courts’ and a thorough reworking of arbitration law, all designed to lead to quicker outcomes for commercial disputes. This has translated into the M&A space, resulting in increased investor confidence and a general fillip to investments.

This increased investment activity is also apparent at a global level. Based on published figures, India’s inbound investment for the first quarter of 2021 (USD 15.4bn across 42 deals) is half of the total inbound deal value in the whole South Asia region, and outpaces investments into China (USD 9.4bn across 18 deals). Given recent geo-political realities, more and more investors are increasingly looking to India as an avenue for opportunities, and it is apparent that India is benefiting from the reduced levels of investment into its neighbours.

India’s large population is also a key factor driving investments, with rising urban disposable incomes and internet connectivity, among other things, making India the final frontier for many international companies. It also doesn’t hurt that the average age of the Indian populace is 29 years, making it one of the youngest national populations globally.[1]Apart from being a huge consumer base, access to a large, young, English-speaking workforce, who are increasingly tech-savvy, India is an ideal pick for many international companies who are looking to grow or base their operations. This is perfectly illustrated by the tremendous growth of IT-based businesses in India, with massive investments being made into start-ups founded by young, skilled founders. Ultimately, though, the bottom line is the real clincher. There has been a spate of hugely successful IPOs of private equity backed companies like Zomato, Nykaa, and Policy Bazaar, to name a few, with big returns to investors.

While these along with other economic and social reasons have contributed to the growth of M&A activity in India, the journey isn’t over, and there are many more steps to take to improve the landscape further. Work needs to be done to spread investments more evenly (currently it is largely concentrated in a few states), not to mention creating more opportunities in manufacturing and supply chain activities, and other under-invested sectors. Policy makers must continue the process which has been well begun to maintain these levels of investment and activity.

The authors are both Partners at Veritas Legal Advocates & Solicitors, Mumbai.

Disclaimer: This article was first published by Legitquest in partnership with Forbes magazine at https://www.forbesindia.com/legalpowerlist2021/

[1]https://indbiz.gov.in/one-of-the-youngest-populations-in-the-world-indias-most-valuable-asset/#:~:text=India’s%201.3%20billion%20people%20make,create%20a%20’demographic%20dividend‘.

Interviews

Interviews, Trending

Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur

February 3, 2020 0Comments 1584Views

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.

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