Sonam Gupta is Partner at Bharucha and Partners. She is also an Advocate on Record, Supreme Court. Her practice areas include Laws of Crime, Governance, Ethics and Anti-Corruption, International and Domestic Arbitration, Real Estate and Commercial Litigation.
Q. When did you decide to focus your practice on white-collar crimes? What motivated this decision?
My first internship was in an office where the practice was mostly on the criminal side and more focused on the Supreme Court with some cases at the trial court. I got to work on SLPs arising out of criminal prosecutions under different statues like the Indian Penal Code, 1860, Prevention of Corruption Act, 1988, Narcotic Drugs and Psychotropic Substances Act, 1985, Arms Act, 1959 etc. The law of crimes was my introduction to legal practice and, as a law student setting foot in the industry, there was nothing more exciting to me than the criminal side of legal practice. My decision to practice criminal law was made then and there. So much so, that I even did small courses in forensic science, forensic medicine, ballistics, etc., just out of sheer excitement and curiosity to get deeper into the field of criminal law. I used to take leaves from college to attend court hearings of matters on which I had worked during my internship days. I even ended up doing most of my internships at the same office.
I joined the Bar after a small stint of law clerkship at the Delhi High Court. My initial years of practice were divided between the Supreme Court and the trial court. While I was drafting SLPs and assisting in the hearings, my focus was on what went amiss at trials; and thus, in trials, I focused more on the procedural and evidentiary law, and its implementation in practice.
The 2G scam trial (a white-collar prosecution based on documentary evidence, as against SLPs arising out of offences affecting the human body) was my first full-fledged trial assignment.
Criminal trials are indeed fascinating, requiring a lot of hard work and round the clock dedication. At the appellate stages you have to work with the case record that is handed to you, but a trial is a clean slate – an opportunity to strategize from the very inception and knit together your case.
While focusing my practice on criminal trials was a conscious decision, the choice of white-collar crimes was gradual and driven by increasing number of white-collar crime mandates coming my way. More than me, it was the clients who led me to the decision to focus my practice on white-collar crimes. There was lot on my plate, ranging from small trials to bigger ones.
Q. What are the major challenges that lawyers usually face in cases pertaining to white collar crime and commercial litigation in India?
Most legislations under which white-collar crimes are prosecuted in India are relatively new or have undergone significant amendments lately. There are still grey areas in the interpretation of provisions, both procedural and substantive. Recently, investigating agencies have started adopting a belligerent approach and in this zeal of the investigating agencies, these grey areas come to the fore and have been highlighted. A lot of these questions of interpretation remain pending before the High Courts and the Supreme Court. And while these questions remain pending, the investigating agencies operate unimpeded in a juridical void, with personal liberty and the rule of law continuing to take hits repeatedly.
White-collar crimes and commercial litigation are closely related when it comes to statutes, industry regulations, etc. Another challenge faced by lawyers dealing in these practice areas is the need to have an in-depth knowledge of the industry and sector to which the case pertains. For instance, the coal scam trial would require the lawyer to have an in-depth knowledge of the process of how coal sector functions, mining leases are granted, etc. Similarly, any commercial dispute with respect to coal mining would require the knowledge of the state specific mining leases, relevant laws, etc. While lawyers do take out the time to go into such depth, the judiciary, which is already over-burdened with cases, is unable to dedicate sufficient time to hear each case at length and spend considerable time to appreciate its nuances. Comprehending vast knowledge in limited time is a big challenge. In this context, I believe that setting up of special courts for the 2G scam and coal scam trials is a welcome step, and so is the increasing number of arbitrations in commercial disputes.
Though there are principles in law that guide the exercise of judicial discretion, of late, we have seen a growing trend of unfettered exercise of discretion. The disregard of the guiding principles results in arbitrariness creeping into the system that prevents uniformity in application of law and in judicial decisions. Consequently, the position of law is such that there are strong precedents supporting contrary positions, while rendering the system in a state where one bench is preferred over another.
Lastly, one of the biggest challenges is the public perception of white-collar crimes. As white-collar crimes have lately become the center of public and political discourse, even mere allegation of the commission of such offences gets overenthusiastic coverage in the media and the accused end up facing media trials. This prejudices the populace, which inevitably includes even the legal fraternity. The principle of ‘bail, not jail’, is often seen to be turning on its head. Due to a lack of defined parameters for the grant of bail, judicial discretion carries immense weight, and the perception of the judge hearing the case has a heavier bearing on the outcome than the facts of that case. Not only do media trials affect all concerned in a case but also leave their impact on lawyers. We, as defense counsels often find ourselves facing moral dilemmas, while at other times our conscience, morality, and even patriotism (to say the least) are questioned by the society, including our own families, relatives, and friends from non-law backgrounds. Whenever anybody gets to know about our white-collar crimes practice, the first question, inevitably, is whether our practice focuses on the prosecution side or the defence. The expressions we often see in response to our answer are quite telling of the popular perception.
Q. What sets the white-collar practice at Bharucha & Partners apart from other law firms?
Bharucha & Partners is one of the few firms in India with a standalone Governance, Ethics, & Anti-corruption practice (which also covers our white-collar crime practice). Our clients often approach us specifically for this sensitive subject.
We are engaged by our clients at the very inception of the case, at a time when the client is anticipating some action by an investigating agency and prior to a chargesheet being filed. We help clients provide complete information to investigators and preclude a charge being framed. Should prosecution nonetheless progress, our clients’ defence progresses on a robust foundation.
Given that these matters are high publicity-inviting, our quick turnaround times, coupled with a high-quality output, make us a convenient point of call for our clients. We help the client navigate the complexities of investigation, which are becoming increasingly differentiated and dynamic.
We are regularly involved in the market-leading high-stake matters and are one of the few law firms that assist in all aspects of this practice area. Our key differentiator is holistic lawyering and minimal reliance on external counsels.
Q. What has been the impact of COVID-19 on criminal procedure and law? Are there any key legislative changes? Do you believe that these changes will impact how courts, investigating authorities, and enforcement authorities approach criminal trials?
Although the pandemic has highlighted the need for the legal system to modernize and adopt technological advances, there have not been any legislative changes. The pandemic did affect the administration of justice substantially but the measures taken by the judiciary in response seem to be short-termed and based on the premise that, at some point, sooner rather than later, normal functioning will resume. Meanwhile, trials have come to a halt with no mechanisms in place for recording of evidence through audio–visual modes. The wheels of the criminal justice system, infamously, turn slow, and the pandemic has now exacerbated the delays.
For the time being, no physical hearings are taking place, no evidence is being recorded and, even through the virtual mode, only urgent matters are being heard. The virtual court system so far seems to be unsustainable on its own as it has limited the access of the bar to the bench and has placed limitations on the way arguments are made. Additionally, lawyers and litigants who do not have access to infrastructure to attend such hearings are left with no recourse. Although the pandemic will speed up the digitization of courts, but, in my opinion, virtual hearings cannot replace but can only supplement physical hearings.
Other than the issues of accessing courts, the pandemic has also raised significant concerns about the rights of people. While the pandemic continues to spread, movement and congregation of people are either prohibited or discouraged. In the midst of all this, prisons remain overcrowded. With the growing number of people being incarcerated, it is practically impossible to enforce social distancing in prisons. Although the High-Powered Committee has taken measures to decongest prisons, the measures do not seem enough. The criteria adopted by the High-Powered Committee to grant emergency paroles or interim bails was based on the gravity of the offence committed by the inmate as opposed to the medical exigencies or specifications of an inmate.
Undertrial prisoners who do not fall under the criteria laid down by the High Powered Committee can still attempt to seek bail from the court on the merits of their own case; but such attempts are usually met by the standard ‘investigation is ongoing’ response from the investigating agencies. Although investigating agencies have been operating throughout the pandemic and have even been filing charge sheets, they have not shied away from using the pandemic as a shield for lack of progress in an investigation. Consequently, bail continues to be denied on the ground that investigation is in process.
It is strange that while the High-Powered Committee has been expanding the criteria to decongest prisons, the investigation agencies have continued to make arrests during the pandemic on grounds of lack of cooperation. In fact, during the unlocking period, there was a sudden spurt of summons for personal appearances before the agencies while travel restrictions were still in place.
Q. In your opinion, is negligent spreading of COVID-19 a crime under Indian law? What are the laws that lay down obligations of citizens to prevent the spread of COVID-19? What are the repercussions in cases of non-conformity?
Negligent spreading of COVID-19 should and is a crime under the Indian Law. Governments, at both the central and the state level, have taken various measures throughout this pandemic to ensure that the spread of COVID-19 is controlled, and the curve is flattened. To enforce these measures, governments have invoked provisions of the Disaster Management Act, 2005, the Epidemic Diseases Act, 1897, and the Code of Criminal Procedure, 1973. Such measures have been of a varied nature ranging from placing restrictions on people’s movement to avoiding congregations.
The orders of the above nature are invariably promulgated by public servants and disobedience of such orders can expose a person to prosecution under Section 188 of the Indian Penal Code. Given the capacity of this virus to spread and the seriousness of the disease, such disobedience leads to a danger to human life, health, and safety, which can be punished by imprisonment of up to 6 months. For similar orders promulgated under the Disaster Management Act, as the stakes are higher, so is the punishment. If the refusal to comply with an order under the Disaster Management Act leads to loss of lives or risk thereof, it is punishable by imprisonment of up to 2 years.
It is not just the disobedience of such orders that may lead to prosecution, but even without any such orders in place and even without the violation of such orders, if an act has been committed which is likely to spread the infection of a disease that is dangerous to life, it can be punished under Sections 269 and 270 of the Indian Penal Code. While Section 269 applies to negligent acts, Section 270 is applicable to malignant acts; for which reason imprisonment under Section 269 is subject to an upper limit of 6 months while for Section 270 it is 2 years.
With the penal provisions being what they are, individual realization of civic responsibilities is the only way to check further spread of the infection.