Kapil Sankhla founded Sankhla & Associates nearly 20 years ago and is currently the Managing Partner of the firm. He has been in practise since 1999. His experience covers a broad range of areas relating to dispute advisory, litigation and arbitration, corporate and commercial matters, white collar crimes, employment, infrastructure and aspects of public policy and administration, governance and ethics. He has been listed as one of the leading lawyers in India in various publications from time to time. Mr Sankhla has been the empanelled counsel for various government departments and the major representative clients include DDA, DSIDC, DJB, Waqf Board (Chandigarh), Life Insurance Corporation of India and various private organisations like Sriram Life Insurance Company Ltd., SpiceJet Ltd., CH2M Hill, DHI India Water & Environment Ltd., Alchemist Group, MDLR Group of Companies, Era Infra Engg. Ltd.
Q. Could you share with us the journey of Sankhla and Associates and apprise us about the firm’s key practice areas?
As a first-generation lawyer, my journey hasn’t been easy, but very eventful.
Right from the beginning, I realized that I have a natural affiliation towards criminal law, arguments, and strategy. And right from my humble beginning when I was pushed by my friends to get out of Tis Hazari District Courts to Appellate Courts, I’ve handled more criminal work.
And today, as a bouquet firm, we have gone beyond criminal practice and have extensive civil, commercial, corporate advisory, arbitration, and consumer practice. Interestingly, most of these verticals have grown either while handling criminal work for companies or advising them in potential litigation!
We have two offices in Delhi and many offices/ tie-ups all over India. One wing of the firm handles corporate and commercial law, arbitration, consumer and insurance work while the other handles litigation and strategy for our clients. The advantage we have with two offices in Delhi is that we are closer to clients in Vasant Vihar and Gurgaon region and Central and South Delhi. As arbitration lawyers, we have handled many national and foreign arbitrations, including for the so-called dirty dozen as per RBI, petroleum matters upward of 390 million dollars for the Govt of India amongst others. For the aviation industry we’ve handled and negotiated contracts and structuring; and for the education sector, we have been instrumental in British Education Centre and invited to India some of the premier colleges based in the UK and also handled various disputes pertaining to educational institutes.
Deep within, we are happiest Litigating, arguing in Courts, while offering extensive and vast corporate advisory services to our clients and are very proud of all spheres of our work. The civil and criminal practice caters to everyone from Chief/ Home Ministers/top businessmen and all strata of the society. We enjoy our work and always try to challenge ourselves by thinking out of the box. Being a lawyer involves not only patience but tremendous hard work. One must never forget to acknowledge the constant support of fellow lawyers, the impressive network of other professionals who help you, and join you whenever the need arises. In that respect, I must say I have been extremely lucky!
Q. You recently spoke on ‘How to conduct a criminal trial’ in one of the webinars. What would be your suggestions for mastering the art of cross-examination?
Cross-examination is an exploration of truth. Cross-examination is to find and poke holes in the other party’s’ case. Cross-examination is also pointing out contradictions or omissions and undermining witness credibility. It’s said, the art of cross-examination is the most effective weapon for the discovery of truth, provided the aim is not to confound a truthful witness but to extract the truth from an unwilling witness. I’ll just add that there are various versions of the truth as it gets filtered by experiences, visibility, and focus of the witness. And if there is no pure truth, your job is ensuring that your version of the truth is extracted from the witness in cross-examination.
Over the years I’ve been engaged by various counsels specifically to take the lead and cross-examine witnesses. However, to my mind, there is no secret to cross-examination. Cross is a science and an art. The science can be learnt, and we will discuss it here. The art however is developed through experience and the best way is to learn is by watching others and learning from their experience. Someone rightly said, “If you want to learn it faster, learn from the master”, so go to the trial Court and observe the masters at work. It’ll teach you the art of cross-examination.
As far as the science of cross-examination goes, I’ve had the opportunity of teaching the same at various occasions and so I’ll give a few pointers here:
Remember that cross-examination is both facts-based, and law-based, and so the first thing you should do is- Master your facts. Visit the site of occurrence if possible and absorb whatever you can about the facts to gain an advantage over the other side. I’ve won more matters because I had visited the site of occurrence or researched it on the net.
- You must master the law; first the general law, i.e. law of evidence, etc. and then the special law applicable to your case.
- Never commit to memory, put everything down in black and white, make notes, make charts, cross-reference everything.
- First, write what you should never ask. Now you know what to ask. Write that down. Then write the probable answers. Create a loop to bring the client to the answers you are looking for.
- Write down the documents the witness can or cannot exhibit.
- Learn the law of exhibiting documents — primary evidence and secondary evidence. Know about electronic records — read Section 62 of Indian Evidence Act (IEA).
- Write down your suggestions. They are equally important as they tell your story.
- Always keep your questions short and to the point. And never let the witness ramble, allow him to explain something and you will open the Pandora’s box.
- The essential technique of cross-examination is witness control. Since the object of cross-examination is to cull out the truth in favour of your client, it is imperative that you set the agenda for the examination, that you determine the flow of information, and that you require the witness to answer your questions. In short, you must always be in control of the witness and the testimony.
- Always control the pace of the cross, so you can control the story, let the story ramble, and you’ll end up confusing the Court during final arguments.
- Cross-examination is not a fact-finding nor a fishing expedition. It is not a roving enquiry.
- Know what you want from the witness, and when you’ve got it, don’t go into a fishing and roving enquiry. Many inexperienced lawyers believe there can never be too much cross-examination.
- One shouldn’t cross-examine a witness merely because he is on the stand. Always ask – “Why am I going to cross?” if you don’t have an answer, let the witness go.
- Never ask a question you don’t already know the answer to. Whatever you do, don’t set yourself up for a surprise from an opposite party’s witness.
- Always know what the other side admits or what they give up because touching that would be a hara-kiri
- Be vigilant during chief, equally read the affidavit in chief – The other side is always trying to sneak one on you and trying to get a document wrongly exhibited as the witness may not be the author or the document may be a photocopy. Raise objections immediately.
- You can’t ask leading questions from your witness — prosecution loves to, don’t let them. Read Section 141 and Section 142 IEA.
- You have the right to put questions to the witness, if the Court thinks they are irrelevant or time-consuming, insist that they be noted and disallowed.
- Plan your cross-examination with the end in mind: what do you need to get out of this witness so that you can make your closing argument? Ask those questions and nothing more.
- Read Read Read. General Knowledge is never wasted – You must know the area covered by the testimony as you cannot cross-examine in a vacuum. You must maintain contact with the evolving practices within the industry.
Q. Covid-19 has had a colossal impact around the world. As per you, what can the legal industry learn from this pandemic?
I think this crisis has evolved our legal practice and helped us embrace technology. We’ve also understood and appreciated that distance, time and space don’t matter, work can be done from boundaries of your home, conferences can be conducted virtually, and Court doesn’t lose respect merely because it’s on your screen and not physically in front of you. I think it’ll be easier for all of us now to accept virtual Courts, recording of proceedings, and even cameras in the courtroom. Where this pandemic has shut us in our homes, it’s opened us to accepting technology.
Also, the major cost of any business is real estate, take that away and you substantially reduce the cost of the deliverables. Thus, space and size no longer matter. What matters is your ability to adapt and accept the present.
This lockdown may also have been a boon for many interns, as virtual internships are not only doable, but better and can accommodate many more interns.
This pandemic and lockdown has also taught the entire legal industry that we can have a cleaner, more environmentally friendly practice without wasting reams of paper and ink. E-service, e-dockets/ files are the future, they are better for their environment; they are better for service, bookmarking, and storage and frankly have helped us practice much better.
I was thrilled to have handled matters in three different forums – Hon’ble High Court, National Green Tribunal, and National Consumer Disputes Redressal Commission on a single day without having to face the rush on Delhi roads and sitting happily in the comfort of my office.
Q. Have you faced any glitches in the Indian Judicial system as a lawyer? What do you think should be the way forward to dispense speedy justice in India?
First and foremost, let’s stop blaming the accused and defence for delays, its wrong and looks good only in theory. What delays matters in Court is the sheer volume of cases and the burden on the judicial system. And this burden isn’t from trial — from cross-examination, from taking unnecessary dates etc. but comes predominantly from the administration of cases, the pretrial stage, the pre evidence stage, service, exchange of documents, and pleadings et al. Imagine, the Court can save time and hearings in all those requirements. Now, lockdown has taught us that service through email and WhatsApp is a valid service. You don’t need a hearing in Court for that, now do you? These pre “effective trial”, predominantly procedural requirements which can be done even before the case comes up before the judge. I believe the Judge should be free to adjudicate, not waste time as an administrator of proceedings. Imagine all minor administrative applications, pretrial evidence, etc. take place even before the matter comes up in Court. Imagine in a criminal matter you can negotiate a settlement with the prosecution before the matter sees its light of the day in Court. How many matters are we talking about? So, to conclude, pretrial administration of a case should not waste the time of the Court, let’s speed it up, and let’s put to good use what we’ve learnt during this lockdown. All issues like service, exchange of documents, and minor administrative applications can either be handled out of Court, or we can have virtual Courts handling such issues.
Now the other part, many many matters, on the criminal side, end up in acquittal. And it’s easy to blame the defence, to claim that the witnesses had been won over, that the defence could get the best lawyer money can buy, etc. etc. Let’s see, what if the investigating officer was made responsible for the matter, starting with filing an accurate, proper, and complete evidence discovered by him during investigation before the Court in form of charge sheet. What if the Courts start taking a strict view and punish the IO if the witnesses or evidence are trumped up? You’ll be shocked to know that the investigating officer is not bound to present all evidence that comes to his knowledge in the Court. The charge sheet that he files enabling the Court to take judicial notice or cognizance of the matter is not an honest representation of his efforts. It is just a compilation of evidence that he wishes to rely on. There is no concept of fair disclosure in our criminal’s judicial system. The IO may choose to ignore evidence, documentary or otherwise, that does not take his case forward, even if that one evidence would show that the accrued is innocent. So, you waste the precious time of the Court; you waste precious resources, our taxes in perusing a matter which you (IO) knows is trumped up. And a good defence will find that out and bring it to fore and secure an acquittal. Can you honestly say that the witnesses brought by the prosecution are all genuine? There are so many matters in which the witnesses have broken down in the Court, and informed that they were threatened by the investigating agencies to tow their line, that they have been asked to embellish the truth, and then you blame the defence. That’s unfortunate, no that’s dangerous, because you are ignoring the malice, the illness, because it doesn’t suit the popular narrative. Concept of fair disclosure where investigating agency is duty-bound to hand over all documents and evidence that may come to their knowledge during investigation enabling the Courts to truly apply their mind. This is again ensuring precious time of the Court and resources are not wasted in matters which will subsequently end up in acquittal. In criminal matters, there should be a pretrial settlement and negotiation as a must. It’ll save precious time of the Court. We can also look at punishments that do not mar the life of the accused and are designed to rehabilitate them, probably systems of community service as punishment, open jails, etc.
Lastly, I am a big fan of virtual Courts, not for final arguments, substantial hearings and Supreme Court (because honesty I believe that Hon’ble Supreme Court is the last hope for any litigant and he deserves the respect of having his moment in the court) but all minor applications and day-to-day proceedings can very well be done virtually.
Q. What are your views on the role of artificial intelligence for a sustainable and effective justice delivery system?
Technology in any form comes with the good and the bad. In defence of technology though, I believe the good outweighs the bad. When online judgments research and such software were launched, I remember there was a lot of resistance. Today you can carry an entire library in your mobile. Similarly, AI for lawyers comes with many advantages. Surely, it is a big help in the IPR sector, as AI and search on various parameters and combinations to prior art search. Similarly, it is a boon having the search engines to crawl the judgments without knowledge of proper keywords while doing legal research, taking the benefit of Natural Linguistic Processing tools, and further having the software showing judgments on similar issues, etc. Thus AI substantially reduces time and effort and speeds up mundane tasks.
Similarly, AI can advise on boilerplate clauses while drafting documents and conveyances to cross-referencing dates and other details which usually require a senior partner to do that last quality check. This again is a tremendous boon for lawyers.
I’ve been told that there are AI systems in place that can help you draft pleadings better and advise you on law points and judgments as you type; if this is truly the case I’ll be thrilled.
But now the downside, unless you are careful, these systems designed to ease your life will dumb you down. Let me give you an example that was given by a very senior, a very respected lawyer. He said when you open a law digest and you start your research you may come across a point that may be important or applicable for some other matter that you are doing but not researching on at that moment. This discovery by chance is something that you will miss out on when you use your software, etc. So, remember to use the time you save judicially, they are aids; they are supposed to ease your work, not to do your work!
Q. You are an alumnus of Sri Ram College of Commerce and then you pursued your LL.B from Faculty of Law, Delhi University, both top grade institutions. In your opinion, does the school/college brand name really matter in someone’s career?
Well, the school you’ve been to, the college you’ve passed out from, the senior you’ve worked with, and even your surname, as harsh as it may sound, does give you some advantage. I know it sounds contrary to what you may wish to hear, but it’s better to know the facts and deal with them than ignore them and wish them away.
It would be foolish to pretend your school, college or institute doesn’t matter, sure it does. But it would only take you to a certain distance, till a certain period of time, thereafter your merit must shine through. Your school/ college also helps you associate and form networks with the right people, doesn’t it. The first wave of clients may come from your school/ college referrals; the first wave of prospects would want to know where you are from, your school, your college, etc.
Then there is another aspect, your education. A college or school may have a certain strategy, a certain structure of education. My school emphasised conversing in English during school hours; the emphasis being that we should be comfortable conversing in English. I am not aggrandising English here, language is merely a vessel for the thought, but you do like what you hear when it’s eloquently said.
The fact that one manages to get through some of the premier institutes also gives a certain confidence. And then why just the brand name of your school or college, doesn’t the senior you’ve worked with matters as well? Which stable does the horse belong to, it is claimed, talks of his/ her pedigree.
But as I said, that is only one side of the coin, flip it and your merit shines through. The brand name of your school/ college may open the doors for you in the beginning, but then it’s time to shine and show your merit. And so inversely, it doesn’t really matter which college or school you are from, what matters is your grit, your determination and your merit. It doesn’t matter if your English is flowery and Shakespearian, what would matter is how well you’ve prepared your brief, how quick you are on your feet. It would help if you have the right school/ college/ surname or stable, but success would be determined by your determination to succeed, the tenacious resolve to win despite odds, and a fair bit of luck.
Here I have to tell you something that I’ve observed, especially now, during this lockdown. It’s the so-called Tier 2 law colleges that have upped their game. While tier 1 are still living in their high castles, dreaming the dream of cushy corporate jobs, the Tier 2 colleges have utilized this time to advance the practical knowledge of their students. Just see the number of webinars that these so called Tier 2 students are conducting, it’s amazing! I’ve had the pleasure of teaching hundreds of students from different colleges on everything from criminal law procedure, cross-examination, legal drafting pitfalls, Court craft, nuances of handling matters which are suffering trial by media. And another thing I’ve noticed is the “out of the box” thinking and entrepreneurial skills of students from these colleges. Many have started podcasts, teaching channels, leadership interview programs et al.. They are personally, step by step, one step at a time bringing their college to the forefront.
So answering your question, your school/ college and all that may be important, but at the end of the day-Merit Trumps Everything.
Q. How would you describe your professional journey so far? What are your future plans?
Eventful. That’s how I will describe my journey in the profession.
Over two decades back, I remember wondering if I could ever buy a chamber in the civil side of Tis Hazari Courts. Today, we have offices in India and abroad. In all honesty, I can’t attribute whatever little success I’ve had in the profession to hard work or dedication. I think the most important thing to succeed in this profession apart from an immense amount of luck is persistence, tenacious resolve and ‘a never say die spirit’. There are so many things beyond our control or power, beyond hard work and preparedness. Make no mistake — all this is vital, your hard work, your preparation, your being ready when opportunity knocks; remember — Victory Loves Preparation. But what’s most important is to stick around, to be there, to not give up, to get up when you’ve fallen, get your game face on, and be ready for the next battle.
I believe that the profession has given me a lot, and it is time for me to give back. I have always been interested in doing pro bono work and have been representing the marginalized, the underdogs, and many NGOs that represent issues that need advocacy but unfortunately are not highlighted in mainstream media, probably because they are not TRP worthy. We as a firm plan to increase our pro bono practice and fight for issues pertaining to environmental laws, agriculture, the marginalized section of the society that we have already been doing. I have been fortunate to be invited to various forums and television channels for the work that we have done. I have, and plan to use my presence in the media space to bring to fore important issues that affect us but are not spoken about.
We were fortunate to represent a vast number of Oriya tribals in issues pertaining to mining and their rights in the Hon’ble NCLAT. We have also successfully got directions from the Hon’ble Court to get vehicles with CNG retro fitment registered in Delhi and further get the entire system online to reduce corruption and Inspector Raj. As lawyers, we are now seeking directions from NGT to ensure proper disposal and scrapping of vehicles which have reached the end of life, as we have noticed that improper disposal and scrapping of these end-of-life vehicles causes even more pollution, and poisons the soil and water. Beyond this, as a spokesperson, I have been currently advocating changes in CrPC and Criminal Procedure so it is more in tune with the facts and realities of today. You cannot get justice in a badly investigated matter or in a matter where the investigation is tainted.
We hope to reduce the pendency in Courts not by increasing the infrastructure or making laws stricter for the accused, but by policing the policeman and making them responsible for a fair, scientific and impartial investigation, honest disclosure of all evidences and sensitizing them to have empathy to the complainant, accused and society at large. Trust me, we probably have one of the best judicial systems, but we have to clean the stream that feeds it with evidence. Similarly, on the civil side, I have extensively spoken about getting the procedural aspect and administration of the cases/ suits out of the day-to-day appearances in the physical Court leaving the Court and the judge to import justice, because that is the true duty of the Judge. And the lockdown has taught us that this is possible.