June 30, 2021
Abhir Datt is a lawyer practicing in Delhi, mainly in the areas of General Criminal Law, White Collar Crime, cases under the Prevention of Money Laundering Act and the Negotiable Instruments Act. He is associated with Atharva Law Chambers, a boutique law firm that has offices in New Delhi and Chandigarh.
Q. What are the qualities that a lawyer should have in order to practice criminal litigation?
In my opinion, anyone intending to have a career in criminal litigation must firstly hone the qualities of being meticulous and patient – the former for absorbing, understanding and mastering the facts of a case and researching the legal propositions involved, and the latter because sometimes results are delayed.
One never knows how any day in court will play out, and this is true across the litigation spectrum. While it is important to navigate through a case with a broad strategy in mind, it is equally important to be flexible and open to a change in direction, as the case evolves.
The contours of criminal litigation traverse many stages, with the trial being at its heart. The markers of an effective criminal trial lawyer are (a) a detailed mastery of the facts of the case, (b) a knowledge of the procedural and substantive legal aspects of the case, and (c) a grasp of this nebulous concept of “court craft”, which only comes with practice. It is needless, therefore, but important to say that one must be persistent, against all odds.
Regardless of which side you speak for, criminal lawyers inevitably work in close proximity with real life questions regarding constitutional rights to life, liberty, dignity, reputation and speech and expression. And so, it is crucial, perhaps above all else, to find something to ground us. Personally, I like to read. It helps to make better sense of the world I live and practice in.
Q. Do you follow any specific strategies when it comes to criminal defense? Maybe you could talk about the art of cross-examination in criminal cases.
The primary task I undertake with any brief is reading and re-reading it several times over in order to (a) master the facts, (b) identify the allegations against my Client, and (c) carve out the issues involved. The practice of this first fundamental task was inculcated in me by my senior, Mr. Manu Sharma, and it has shaped how I approach any case. Over the course of my experience, I have also learnt the importance of conducting independent investigations to understand the context in which the circumstances of any given case are set.
Finally, I cannot stress more here than I do with my junior colleagues, always start your legal research in the library, with the books. The time spent meditating over the brief eventually manifests in the strategy that is adopted at the stage of arguments on charge or cross-examination.
Strategy in criminal defence litigation largely depends on issues and circumstances identified during this process, which if left unchallenged may lead to unwarranted convictions, arrests or detentions. Although there may be different approaches to the manner in which a trial may be conducted, at the end of the day it is inevitable that as a defence lawyer one must bite away at the prosecution’s case, one circumstance or allegation at a time – there are no short cuts in this regard, fortunately.
Q. What are the major challenges that lawyers usually face in cases pertaining to White Collar Crime in India?
I think the major challenge is Perception and Prejudice, which has come to surround individuals accused of White-Collar Crimes. I often find that unsubstantiated and ludicrous figures are projected as having been cheated or laundered thereby making it seemingly a very “serious” offence or an offence of a “large magnitude”. This Perception makes it difficult for an accused to secure basic reliefs like bail or any other relief, at least until the chargesheet is filed and while investigation is undergoing, even in cases where otherwise the accused is likely to have secured such interim protections.
The other challenge, I find, is with respect to technical aspects of White-Collar Crimes, which sometimes require at least a first principle understanding of the nuances of accounting, core concepts of company law and economic policies.
Q. What has been the impact of COVID-19 on criminal procedure and law? Are there any key legislative changes? Do you believe these changes will impact how courts, investigating authorities, and enforcement authorities approach criminal trials?
It is difficult to respond to this question and avoid saying the word “unprecedented” for the umpteenth time since the COVID-19 pandemic arrived. That difficulty is insignificant in contrast to the frightening lack of accessibility that the pandemic brought with it. The Code of Criminal Procedure dates back to a time when neither today’s crisis nor conditions could have been imagined. Our Courts have tried to adapt quickly to a new mode of hearing cases.
Hearings conducted through the virtual mode have been effective in a metropolis like Delhi, and over time we have been able to establish a system for filing, mentioning, coordination, appearances, and arguments. However, a system is yet to be developed to carry out the recording of evidence, in a manner that ensures transparency and fair play, through the virtual mode. The major brunt of this lacuna has been faced by those undertrials who have been accused of serious offences, which matters are at the stage of recording of evidence, and have not seen any progress in their case. Similarly, investigation agencies also need to develop virtual modes of conducting interviews and investigations, in cases where the accused in unable to travel to the office(s) of the authorities.
The initiative of the Bench and the Bar in the decongestion of prisons by granting interim bail in light of the unique circumstance of the pandemic is one step that has been effective in retaining and recasting our constitutional ideals of fairness and due process. For the time to come, if we are to see the evolution of the e-filing and e-courts system to uniformly meet demands of access across the country, legislative intent will undoubtedly be key.
Q. In your opinion, is negligent spreading of COVID-19 a crime under Indian law? What are the laws that lay down obligations of citizens to prevent the spread of COVID-19? What are the repercussions in cases of non-conformity?
Where notionally in certain cases negligence may be made out, tortious jurisprudence has been minimal in Indian Courts. So, it is unlikely that we will actually see any such cases play out.
Q. Tell us about your law firm and what sets it apart from other firms.
We, at Atharva Law Partners, are a small multi-specialty boutique law firm that offer our retainer services, including in the areas of criminal defence litigation, civil/commercial litigation, matrimonial matters, property disputes, arbitrations and mediations, across a variety of fora such as the Supreme Court of India, the High Courts of Delhi, Allahabad and Punjab & Haryana, various tribunals and Trial Courts in Delhi NCR. We have a team of young and ambitious advocates who work together to provide our clients with a holistic approach to any case.
Q. Considering the disruption caused by the COVID-19 pandemic in the functioning of courts, in your opinion what kind of technological upgrade is required to ensure uninterrupted and efficient functioning of the courts and of lawyers’ practice in the country?
The digital transitioning of all our systems is inevitable, and the pandemic has hastened litigation into that process. Given that the shift to a digital interface does not appear reversible, it becomes imperative to invest in infrastructure that can support a virtual future for our judicial system.
Presently, there is some digital infrastructure in place which allows citizens to access public documents like orders or judgments passed by the Supreme Court of India, various High Courts across the country and some trial courts and tribunals. With respect to FIRs, in my experience, there is a scattered availability of these public records on government websites. As a primary step, these gaps in access to information need to be streamlined. For this purpose, it is crucial to establish dedicated IT departments in our Courts to (a) support the registry and the court staff, and (b) develop websites, software and applications to magnify the access to information about the cases that are pending in the judicial system. A similar department is crucial to support investigating agencies in adapting to digital tools, applications and software.
It would also be crucial to have investment going into (a) creating public spaces where virtual courts can be accessed and observed, (b) cloud storage for public records and documents and (c) development of applications that act as intermediaries between advocates and clerks, typists, translators, notaries and other support staff that work behind the scenes.
Q. Do you think Artificial Intelligence and legal technology in legal research can be helpful in improving the efficiency of the judicial system?
Absolutely. There is no doubt anymore that AI is the future of technology, as we know it. The market for IT products in the legal field is fairly young and rapidly expanding. In the past decade alone, there have been significant changes in the manner in which drafting, research and (now) hearings are being conducted. It goes without saying that these upgrades have helped make it easier to process copious amounts of information. I must admit, though, on a lighter note that I cannot help but fear the day that we see an AI algorithm designated as a senior!
Q. How has the pandemic affected you personally and professionally? How are you dealing with the changes brought about by lockdowns?
The pandemic has affected me both professionally and personally. Professionally, at the start of the pandemic, there was always an apprehension regarding how work would be conducted, whether the fact that we would not physically be present in office would impact work and if the judicial system was equipped to handle an online platform.
Professionally, we as a firm, have grown from strength to strength and adapted to the various challenges posed by the pandemic with dynamism and tenacity. Each and every person in the firm has stepped up to do their part to ensure that work runs smoothly. The fact that courts are now virtual has also been a blessing in disguise in some ways since it has moved everything online and the long commute to and fro the courts, which was previously a struggle, has been completely done away with.
On a personal front as well, the pandemic has been challenging. Being away from family and friends for long periods of time and being in constant fear for their well-being and safety has been difficult and has had a lasting psychological effect not just on me, but on everyone. I also got married in a small ceremony during the pandemic, which was a personal achievement for me, but definitely missed all my friends and loved ones who could not make it due to the situation.
That said, the Indian population is a resilient bunch and I have no doubt that we will all get through this together very soon. I am looking forward to interacting with each other in person on both a personal and professional level and am sure the future is bright!