Category: Interviews

  • Vivek Narayan Sharma, Advocate, Joint Secretary of Supreme Court Advocates on Record Association discusses the Challenging moment of his Career till date

    Vivek Narayan Sharma, Advocate, Joint Secretary of Supreme Court Advocates on Record Association discusses the Challenging moment of his Career till date

    Vivek Narayan Sharma is a Socio-Politico-Constitution expert and renowned advocate practising at Supreme Court of India. He is the Joint Secretary of Supreme Court Advocates on Record Association. He is the President of Society for Criminal Justice and National Advisor, Consultant & Convenor for eminent social, political outfits and law journals in India. He is Advisor (Legal) to Indo-Canada Chambre De Commerce (ICCC) (India Chapter). He is one of the most popular, most discussed and most-read Columnist for Times of India (TOI) and Economic Times (ET). He has authored “Electionomics”, a book published by world’s top publishers Thomson Reuters.

    Apart from catering to his opulent clients, He feels compelled to satisfy his philanthropic & social ennoblement urges. He has filed & contested cases of public importance to improve the hues and spectrum of society. He has advised Ministers and Political parties. He envisions strategic improvements in Democratic, Electioneering & Criminal Justice Delivery system in India.

    Enrolled as an advocate with the Bar Council of Delhi in the year 1999, He has handled litigation pertaining to politics, corporate, constitution, energy, consumer, environment, property, real estate apart from dealing in conventional civil, criminal and indirect tax appellate practice at Supreme Court, High Court of Delhi and Tribunals and Commissions. He has appeared and argued before numerous High Courts including Punjab & Haryana, Himachal Pradesh, U.P. & Karnataka etc.

    He is Senior Counsel on the panel of UOI and State of UP. Vivek is counsel for several Public Corporations like Coal India Ltd. and its subsidiaries, NHPC, UP Power Corporation (UPPCL) etc.

    In this interview he talked to us about:

    • Challenging moments of his career till date
    • He talks about his book “Electionomics”
    • Wins that he cherish till date
    • The secret of never losing a case as a trial lawyer.

    What were the three most challenging moments in your career as an advocate till date? How did you handle them?

    Challenges are inevitable when you have the grit to push against the wave. I have a strong conscience and hence, once I take up a case, I take it forward with all my being. Having said that, sometimes, the facts of the case, the legal position of the case and the moral appeal of the case, all deserve to be answered with justice but there may be unfortunate episodes when Courts appear prejudiced or pre-meditated and do not afford opportunities to even present the case properly. At times, even before the presentation of your case, you find yourself totally compressed between the push of your conscience and formal decorum that you cannot overstep as an advocate. I would briefly tell you the three top tight situations: 

    Ganga Action Plan case (2003)

    The Supreme Court Bench seemed prejudiced towards the seniority and paid heed to the arguments of the Solicitor General of India Mr. Harish Salve, irrespective of mention of incorrect relevant facts, in the face of the record. With 4 years of experience at the bar, I was extremely prepared with all facts on fingertips, case laws cited, legal position drawn.  

    But no matter what I said, Judges’ eyes and minds stayed fixed on the senior gown. The Court showed no interest to my best documents in the paper-books, which would have proven the SG wrong and I eventually ended up shutting my files and telling the Court, “What is the point in arguing before your Lordships, if your Lordships can’t appreciate what I am arguing?”. I was loud, clear, harsh and my voice enveloped the Court in silence. Though I had raised a valid point, but I was arrogant. The Bench irked, “What did you say?”, and I repeated with the same penchant. Mr. Gopal Subramanium, a Senior Advocate, who was sitting beside me to represent another party in the same case, pulled my gown and told me something which I don’t remember, but consequently I repeated my words with care, caution and respect and pleaded to the Court that I was trying my best to assist and sought proper attention of the Court to the relevant facts of the case. The bench pretended to hear me after my objection but nothing fruitful came out during that session of Court. However, later I could drive the outcome in a favourable position for my clients, who were fighting for cleaning of Ganges and to stop misutilisation of hundreds of crores of tax-payers money.

    Interestingly, I had written a letter for the presiding Judge of the Bench on the very same night at around 2 am and posted the very next day and conveyed that I was wrong in my arrogance before the court. The impact of that letter was seen 4 months’ after that when the case again came for hearing and the Presiding Judge remembered what I had argued on that day and provided relief in our favour.

    PIL in Nirbhaya’s Case (2013)

    This was another hard and unfair situation of early 2013 when the entire country was perturbed with the cruelty of the Delhi Gang Rape. Chief Justice Altamas Kabir’s wife worked for the welfare of Juveniles and kept themselves at the side of the culprit Juvenile in the Nirbhaya’s case irrespective of his gruesome animalism with Nirbhaya and accused the media as unbiased towards the juvenile victim. I had filed the PIL for the Juvenile to be tried as ‘Major’ in the Delhi Gang Rape and for seeking his clinical examination as to whether he was a Psychopath and a danger to the society if freed! Several other PILs were clubbed together for hearing. 

    The cases were being dealt by the bench of Justice S. Radhakrishnan and Justice Dipak Misra. But surprisingly, after several hearing, the cases were moved to Chief Justice Altamas’s bench, by way of an administrative order passed by Chief Justice. I knew he had a conflict of interest as he had already given a public statement to favour the culprit, Juvenile. My PIL was clubbed with other PILs filed, feeling responsible for my fellow advocates, I stayed quiet and didn’t raise an objection. All the cases were dismissed. 

    I had to pick an alternative route of drafting my proposal for amending Section 16 of the Juvenile Justice Act, thereby bringing the juveniles to ordinary criminal trials in serious crimes. I used to advise certain union ministers in the Parliament, I pushed my proposal through one of them.  Consequently, Central Govt. brought an amendment in Section 16 of the JJ Act. Things went well and ultimately the law was changed. But that psychopath juvenile was released from the child home after he completed his detention of 3 years and that appeared the biggest injustice to the daughter of our country, Nirbhaya. 

    Case against Delhi Golf Course (2019)

    I was issued contempt notice in this matter by the Chief Justice of Delhi High Court! The issue again was a conflict of interest, I knew that the Chief Judge is an honorary member of the Delhi Golf Club (GGC), yet he didn’t refuse to hear the petition. But I didn’t possess the document to prove the same. The injustice began to unfold, he asked me to withdraw my petition or dilute my prayers to notional pleadings. Somehow, I felt, the matter that had all the law, facts and moral appeal for the underprivileged sportspersons, who bring laurels to the Nation, going down the drain for the wealthy and powerful. I felt the gush of my conscience, this was a pro-bono case and the financial situation of the sportspersons flashed in front of my eyes. I wanted to bring the opportunity of unhindered entry, right to play on public land(Gold Course) and respect for these sport-persons at DGC.

    With all due respect, I pleaded before the court to grant me hearing before making up their mind on anything. The Bench asserted that they would allow me to argue if I would remove certain prayers. I respectfully told the Bench, “These are material prayers in the case based on cogent and well-founded grounds. With due respects, I would not withdraw them, but this Hon’ble Court may always dismiss them after hearing my arguments on the same.” The Bench told me that it would not hear arguments on those prayers but dismiss the petition. Under a spot, I responded to the Bench, “The Courts can’t pre-empt the arguments of a counsel. Because if the counsels won’t argue then what would they do? I think in such a situation, we should just put down our gowns and stop practising.” I further added, “You are sitting here to hear us and so you must!” Then the bench gave me a hearing for some time, but this again was not an effective hearing and chose to dismiss the petition. So, in the end, I stated, “I knew this outcome!”, on which, I was issued contempt notice.

    The same evening, the contempt notice was served at my residence at 10.30 in the night. Notice named 3 of my juniors as well along with all the petitioners. However, on the day of hearing of contempt, at around 10.20am, the Chief Justice called me inside his chamber and expressed sorry for having issued the contempt notice and withdrew the same and restored the petition too, on the ground of conflict of interest and that he wasn’t aware of such conflict of interest. I was relieved and felt greatly happy in the gesture of the Chief, who also gave me a warm hug and consoled me beyond my imagination. I would always treasure those moments in my memories. 

    My recollection of this event won’t be complete without mentioning the gratitude to Mr. Tushar Mehta (Solicitor General of India), Mr. Shyam Diwan (Sr. Advocate), Mr. KC Mittal (Chairman, Bar Council of Delhi), Mr. Rakesh Khanna (President, Supreme Court Bar Association), Mr. Kirti Uppal (President, Delhi High Court Bar Association) and my very close friend Mr. Ajayinder Sangwan (Member, Bar Council of Delhi) and so many other advocate  friends, judges, well-wishers; whose blessings and good wishes have always enlightened my path.

    Tell us about the 3 wins that you really cherish till date?

    For me, the genesis of intention to win has substantial weight. An advocate may win by hook and crook for wealthy clients adding to the litter in the bin of social filth. For me, winning in the right perspective is fulfilling and adds to the contentment of my persona.  

    Each case taken up by me is important to me. I reckon the pains and investment a client takes to reach till High Court or Supreme Court, hence, winning and keep winning every day on principles is the character of my lawyering. Let me still try to pick some of the extraordinary and unique wins awarding me satisfaction, which are peacefully settled in the corners of my mind:

    Saraswati Kunj Society Case (2007)

    My client was an elderly widow, supporting herself by teaching even after she had retired. Like all real estate matters, my client had deposited the money with the Saraswati Kunj Society, Gurgaon for allotment of plot. She was brought to me by another senior citizen client, who selflessly helped her. The three of us would leave at 4 am and drive to the Chandigarh High Court for months for the hearing. I was worried about the cost effect on my client due to recurring hearings without any result. On a preceding night of the case listing, I could not sleep and just keep on pondering over the case. I would lie down, close my eyes and would get up and write some point and I kept on doing this ordeal till 3 am. It was in my mind that I must take the order in this hearing. I did not sleep that night and entire way also I was awake and pensive. During the hearing, I used the arguments, I had prepared during the previous night and forced myself strategically over the division bench of Chandigarh High Court. As is the saying, “God favours the Brave!”, I returned with an unprecedented verdict in my favour. Why I say, “unprecedented”, because prior and after that verdict, no one could ever obtain that verdict in the case of Saraswati Kunj society. Even years after that order, I was contacted by hundreds of people, including judges, bureaucrats etc. to take their cases and repeat my kind of success. But I had stopped going to Chandigarh High Court those days as I was too busy in Delhi and my mood had changed due to an incident. I avoided Chandigarh High Court though I went to argue before other high courts like Shimla, Bangalore, Cuttack, Allahabad, Kolkata & Mumbai etc.

    What was that incident which changed your mood?

    It’s still a vivid memory! After the order, the society lost it’s an appeal in Supreme Court too. I filed contempt and during this contempt hearing, the presiding Judge of the division bench wasn’t favouring the judgment arrived at by his predecessor on the bench. While many other similar cases were clubbed together and pending at the same time. The Judge would keep on giving adjournments on the request made at the behest of a well-known counsel of Chandigarh Mr. Atma Ram, Sr. Advocate (as I recollect), who was representing the Society. Mind it, there were 4 continuous adjournments each week and I used to travel to Chandigarh along with 2 senior citizens and for that, all of us used to get up at 3 am followed by a total of 10-12 hours of car travel each time. And we used to just get adjournments. When the ritual was repeated during the 5th hearing, I raised a serious objection and pleaded before the bench, “My lords may hear the case today, as I come from Delhi and the case is getting adjourned since last 4 occasions!” The Judge snapped at me, “Who has asked you to come here?” This was indeed an offensive statement.

    For a moment, I didn’t realize what to answer and I tried to weigh the situation in its correct perspective. I only said, “Mylords may consider my request.” The case was though not adjourned, but passed over, I could perceive something hard is going to come my way. During the arguments, the judge snapped at me again, “They don’t have plots, where would they give you plot from? Even the Supreme Court order can’t help your client!”. The Judge also said that he would pass rule in the main matter (which would then come in 5-7 years) and dispose of the contempt on society’s plea that they don’t have plots to allot.

    There were multiple complications in the case, and I am not going into those, but the impact would have been that all that was achieved, in the past, in favour of the client, would have been lost. This was one of the trickiest and testing moments of that time. I bought a minute’s time from the bench to talk to my clients, while in effect, I sought time to think a little more (…laughingly). Coming back to the bench, I requested the bench, “Mylords may pass an order, as they deem fit, I have one very small request to make, ‘whenever the society start executing registry (sale document), the first registry is executed in the name of my client.” (In effect this was my trap for the judges, as in reverse, I was seeking to bind the society so that they can never execute any registry, without first giving the plot to me). My speech delivery, carefully chosen words and positive attitude changed the context of things there. The bench accepted this contention of mine. And after a year or so, we filed another contempt and consequently, the registry was done in favour of my client. From the date of filing of this case in 2006 and till date, my client had been perhaps the sole beneficiary out of so many thousand people, who had bought a plot in Saraswati Kunj society, just opposite to Gurgaon Golf Course, and got possession thereof in consequence of a court order. 

    Love Jihad case for RSS (2003-04)

    This was one of my first pro-bono that I fought in my early career days. A 10th fail 45-year-old man, who was already having 2 wives and working in the Waqf Board, alleged that he was legally married to a highly educated professional Hindu Women of 28 years from Ambala from a family of intellectual and well-settled parents. The issue was boiling in the region for around 6 months and consequently, several cross cases reached at the door of Supreme Court, including the cases filed by the parents of the girl, for whom I was arguing.

    The parents were in greatest distress about the welfare of their daughter, who was earlier married to a Hindu boy in Delhi and was removed from his company, while the couple was going to Vaishno Devi, by the Muslim Man. For seeking her release from the abduction, parents had filed Habeas Corpus petition before the Chandigarh High Court. The Muslim man and the Hindu girl had jointly filed Writ Petition for seeking protection and a separate petition for seeking quashing of FIR against Muslim man. A couple of other petitions from Muslim Priest (Maulvi) and Hindu Support groups were also filed. Both Central & State governments belonged to different parties, so the battle was really heated up on this count too.

    The High Court granted protection to Muslim boy and Hindu girl and dismissed parents’ petition, but declined to quash the FIR against Muslim man and directed him to appear before concerned Magistrate’s court for obtaining bail.

    Before the Supreme Court, there was a lot of drama and the entire courtroom was filled with people on either side of spectators came to watch this case. The Jethmalani clan with a battery of support lawyers were representing the Muslim man and a Hindu girl.  Heated arguments took place for long. At the conclusion of the long hearing, the SC bench called the Hindu girl for seeking her statement in open court. The girl gave a statement in favour of a Muslim man. But I was vigilant like an eagle and watched her body movements and words’ delivery very closely. I somehow sensed the tension in her body and observed a minute of detail. While she spoke her name she was confident and looked into the eyes of Judge. But when she said that she wanted to live with a Muslim man, she became a different person. She sounded low and spoke face down without eye contact. The bench was quick enough to retort, “It is totally clear that she wants to live with….!.”, and I snapped just at that moment and very softly spoke, “Mylords may I request to take her statement inside Mylords’ chamber privately!” I repeated, Mylords heard it clearly now, they paused and within few moments directed that they would take her statement in Chamber during lunchtime.

    This changed the outcome of this case later. When the truth was revealed to the court privately by the Hindu girl, the Court denied relief to the Muslim man, who in fact ran away from the court premises during the hearing itself, apprehending his arrest. I still remember the girl’s overwhelmed parents lied down on their stomach and touched my feet outside Court, bringing tears to even my eyes.

    CRPF/BSF Pension Pay-parity case (2019)

    One of my very close friend, who is a senior officer in the CAPFs services, brought this case to me with an appeal from thousands of service personals. There was a long legal struggle which they had adhered, and the matter had finally reached the Supreme Court. I had to work on deriving the legal position to achieve positive results. It was extremely challenging, I had to spend substantial time on research, discussions and building the case. Eventually, we achieved the desired. It was a landmark judgment that brought organised status to CAPFs services (BSF, CRPF, ITBP etc.) and provided financial parity to officers similarly situated therefore benefitting lakhs of families of officers. I received hundreds of calls and messages on social media to express gratitude for this win.

    As a trial lawyer, you have a record of never losing a case. What is the secret?

    One develops one’s skill of lawyering with time. While each to his own, I have my own grasp of human psychology apart from in-depth legal acumen. The trial incorporates building case strategy based on the court process, the examination of evidence, cross-examination of witnesses, facts’ penetration and presentation. All these skills applied together help in winning each case.

    You started your career in the chamber of late Mr. Dipankar P. Gupta, formerly Solicitor General of India. Tell us about your biggest takeaways as an advocate during this time.

    Since I was fresh out of college, his mentoring was critical and left lasting impressions on my persona. His meticulousness impressed me, and I adapted it as a penchant. There were other commonalities between us, we both liked, believed and had read Swami Vivekanand and we both were tall and handsome (…laughingly).

    You are the Joint Secretary of the Supreme Court Bar Association. What are your plans to make things better for the lawyers practising at the Supreme Court and what all have you achieved so far?

    I see SCAORA body as a possible engine that could drive the judiciary culture to a futuristic vision comprising of no pending cases, quick and fair trial, technological advancement to aid speed and awareness and taking care of the legal fraternity in the best way. 

    To make all this possible, we need the right kind of people on board along with supportive infrastructure, staff and resources. 

    I would say, each member of the committee brings their intention for the upliftment of fellow advocates. I too, add up to the committee with my previous experiences of intention, planning and execution but where we all fail to achieve our vision is the lack of staff, resources and infrastructure, basically, the funding and formation of SCAORA machinery as a functioning body must be maturely established in order to achieve its goals. 

    For example, since last one and a half year of my tenure, I could push some of the important executions through the SCAORA committee, like medical schemes for advocates, SCAORA e-journal that provides the platform to the fellow advocates to speak up through articles, we also formalized delivery of lectures by Judges and senior advocates for the benefit of bar members to prepare for their AOR examination. All this and more, I have a strong inclination for technology and so, apart from bringing e-journal, I also pushed all possible resources for these lectures to be made available online. Having made all this effort, I want to stress upon that all of this could have gone a long way if there was more support available in terms infrastructure and resources to SCAORA, for which our request to the Chief Justice of India is pending consideration. The CJI has assured us for providing supportive infrastructure to SCAORA soon and has also agreed to resolve the necessary issues of a registry, which advocates are facing for years. I am happy to say that some of the issues have already been resolved. I am happy to say that the present SCAORA Committee is progressive and mindful and is a pleasure to work with.

    I am happy to say that we could also add a feather in the cap of the SCAORA committee by organizing an elite “National Conference on ‘Technology, Training and Infrastructure: Keys for Speedy Justice’; and ‘The Changing Face of Legal Education in India’ held at Vigyan Bhawan in Sep’ 2018”. This was the first time in the history of Supreme Court that the SCAORA Committee organized such a successful and valuable program that the whole legal fraternity could take pride. My previous exposure of successful huge social events enabled me to drive the planning and execution of the National Conference against all odds and challenges. I had in mind that we had to ensure the smooth flow of the event since it was prestigious and being inaugurated by the President of India and under the chairmanship of Chief Justice of India and attended by all the other Judges of the Supreme Court of India. I am so grateful for the whole team members who worked extremely hard for it.

    Basically, I feel we need innovation, pragmatism and zeal to implement various episodes to uplift fellow lawyers. I wish to execute much more and seek the blessings of Almighty, to be in the position to achieve more in the field of health, fitness and financial security of my legal fraternity.

    What are your thoughts on pro bono legal work? You are known to do a lot of pro bono matters. Tell us about the three most important pro bono matters you are working on currently?

    Being humans, we are blessed with the capability to think and use limbs in the best possible manner, as compared to other living bodies on earth. What animals are incapable of, humans are capable of! One such capability is ‘to help’. Humans are best built to help, with their minds, limbs and ability to communicate. So I believe, whatever we do, there should always be an element of pro-bono. I bear it as a recurring habit. Society is best served, when more and more able minds provide pro-bono services in different fields, be it law, medical, education etc. The culture is fast developing in India, but a lot is required to be done yet.

      

    When you ask about 3 ongoing important pro-bono litigations, I would say,

    (i) Muslim Women – Halala & Polygamy case – pending before the Supreme Court; 

    (ii) Permanent Commission for women in Armed Forces – pending before Supreme Court of India & 

    (iii) Illegal Sand Mining case – pending before National Green Tribunal (NGT), however, in this case, serious observations and directions have been issued to stop illegal mining from the riverbed.

    You write frequently. You often write for various media houses and also recently published a book called Electionomics. How do you find time to write despite busy schedules?

    Your question has the answer itself, ‘..you find time..’. We all have the same twenty-four hours in the day, it is about disciplining oneself to do what one has to do. Sometimes, when a lot is at stake for my clients, the cases take most of my mental space, those are the days, I do not write much although subconsciously if I have decided on a topic, my mind keeps gathering information and begins its analysis.

    The day comes, when my mind is relatively free and all prepared to flush all my thoughts on my laptop, then it’s a matter of just a few hours. The actual writing is just a result of my thought-process that I cannot quantify in the unit of time, that’s how my mind works as far as articles are concerned. 

    Writing a book especially one like ‘Electionomics’ is a different story, a lot is already covered in the Author’s note of the book, briefly, it can be said, that it is a huge commitment to come up with a book. A book like this has lot of research and analysis into it combined with my knowledge of Bhagwad Geeta of tender years. Surprisingly, Shlokas that I had read in my early youngsters’ days, came out to ripen with deep understanding when I began compiling them for the book. I think the habit of daily meditation helps me a lot in my mental agility. 

    Tell us about Electionomics. Why did you want to write a book like this? What is the idea behind this book?

    Election machinery of the largest democracy of the world is complex beyond imagination. The book attempts to define the Election process in a very simple way so every common person can understand it. I have used the ancientness and spiritualism of King Dhritrashthra as a satire to describe our current Election process along with its legal fabric. The book is not just the economics of the election but it’s a comprehensive Election Science (चुनाव शास्त्र). 

    The book presents the complications of Indian Democracy and elections through the anecdotes, statistics, the legal provisions, position of courts and any resultant discomfort of the readers have been offered solace by way of 24 shlokas from Shrimad Bhagvad Gita. The wisdom of Krishna is used to advise the young generation on how to survive in the adverse times, the book “Electionomics” comes out as a Mythological Satire on the complex Election scenario in India. It’s a fusion of reality and fiction awarding wisdom and ease to the readers to deal with harsh life. The book has attracted accolades like the only book of its kind, an accompaniment of Bhagwad Geeta, Mythological Satire, the tale of elections from the eyes of Sanjay and ears of Dhritrashtra etc.

      

    I wrote this kind of book because I have all what it takes to write it. 

    Mental and physical fitness is very important, but most lawyers fail to take care of themselves in this regard. Tell us about your self-care routine?

    Self-care, cannot have a special routine removed from my professional routine. Everything is engrained within the one and only one time-seed of the day. Whatever we sow each day, reaps out and shows. Here, read between the lines from the outline of my daily routine. Life is not easy and with the demanding professional life, I cannot live with a fixation on the clock. Each day is a different day. The two intrinsic things are I open my day with few minutes of meditation and finish my day at home with my family and everything else remain an on-spot decision based on energy level inside me at that moment. 

    My fitness routine varies as per my court schedule, there are days I need to rush for the court early, preceded with overnight case preparation and I reduce or skip my fitness regime in the morning. Sometimes I sneak out during the evenings when I feel the need to burn the calories is imminent. I listen to my body and head out for my food and activities accordingly. Its mix of cardio, callisthenics, weight training and stretches at the gym; yoga with my wife, lawn tennis with friends or merely golfing with my close buddies or kids. 

    My breakfast is usually fruits salad mixed with curd and turmeric. I carry the home-cooked meal to court. The court proceedings usually occupy me till midday on working days, followed by client meetings or public events. I usually have early dinner between 6:30-7:00 pm sitting at my home office. Usually, it’s a bowl of Lotus Seeds (Makhanas) or two besan cheellas, or single sandwich or a bowl of salad, as I am fond of home-cooked food. 

    Evenings are usually spent with case preparation, writing articles and other important meetings, when I close my day, I make sure that I speak to my kids about their daily routine, achievements, challenges. I love to parent them. I usually keep Saturdays for pro-bono meetings and beyond that I prefer to keep weekend for activities with my family & close friends, like sports, get-togethers, excursions or watching good movies, only except for urgent client meetings, as you can see a lawyers life cannot be guided by fixation, as I talk about it, I know, how tricky it is, the idea is to try to optimize and not to lose on anything. In addition, many of my lectures & speeches happen during weekends and that provides me inroads to social interaction with the youths, which I love very much.  

    According to you what are the ten most important skills one should cultivate in order to succeed as a brilliant litigator?

    That’s easy! (…laughingly) 

    A brilliant litigator should be very good at reading, writing & oratory. Strategic, clever & mighty minds do best for their clients! Positivity in attitude, good work and timely delivery are a must for fruitful future references in work. And that’s only nine! (…laughingly)

    What’s the tenth?

    The tenth is, a brilliant litigator should always have some surprises up his sleeves, which he should never share even with his team.

    The legal profession is very stressful, how do you unwind yourself?

    I always begin my day with 10-15 minutes of meditation, it energises me for the day. It is extremely important to take care of personal life and the relationships that we cherish. I am a family man and my home is the best place for me to destress myself. I and my wife take extreme pleasure in raising our two children, I think it’s crucial to spend time with the children, impart our experiences to them and also, see the world through their fresh eyes, it keeps us upbeat and modernised. My mother passed away a few years back and I try to speak to my father every 2nd or 3rd day, I enjoy a very fond relationship with him. 

    You have built a great brand for yourself as a lawyer in a relatively short time. What are your thoughts on how a lawyer should go about building their brand as a practitioner?

    Correct Practice, Right approach, vision, presentation, commitment, genuine concerns for the fraternity and clients, honesty, integrity and connect. Just be yourself, honest and genuine, do not get affected due to the rat race of the world. I have a better sense of duty towards others and that also entices others to think about me. I am always careful about my duty towards others with the least nuisance value.

    Do you have a personal code of ethics about which kind of matters you will accept or refuse? What according to you are the 3 most important ethical principles that you personally adhere to?

    When in doubt, I ask my conscience, if that permits me, I take the case, else either I refuse or discourage such a client to opt for me. Sometimes I have to refuse because of a shortage of time or when the attitude of a client appears extremely unreasonable. 

  • Siddharth Marwah, Senior Associate, Khaitan & Co, on student politics, the art of delivering lectures & writing, and his experience in commercial law

    Siddharth Marwah, Senior Associate, Khaitan & Co, on student politics, the art of delivering lectures & writing, and his experience in commercial law

    Siddharth Marwah is a corporate-commercial lawyer and is currently working as a Senior Associate with Khaitan & Co. His area of practice involves mergers and acquisitions, joint ventures, foreign investment and general corporate and commercial matters. He also serves as a guest lecturer with certain law schools mostly being involved with his alma mater Campus Law Centre, University of Delhi, where he also sits on Governing Body of the Campus Law Centre Alumni Association. He was recently appointed as a sole arbitrator in a corporate-commercial dispute.

    Siddharth is a graduate in law from Campus Law Centre, Delhi University, batch of 2015. He was the Vice-President of the Campus Law Centre Students’ Union, established the Legal Aid Cell in his college and was declared the best paralegal by DLSA. During his time in law school, he was actively involved in the Delhi University student politics and legal aid and was awarded a 100% scholarship by the University of St.Thomas, Minnesota.

    In this interview he talks to us about:

    • Being convener of the Legal Aid Society in his college and his continued involvement with legal aid
    • His experience in corporate-commercial law
    • His involvement in student politics
    • His continued involvement with his alma mater
    • His many accomplishments as paralegal, writer, lecturer, etc.

     

    HOW WAS LIFE AT CAMPUS LAW CENTRE?

    Life at CLC was a rollercoaster ride to me. From managing the scores to being the part of the Students’ Union was fun and taught me various aspects of law and gave an insight into politics. My involvement with the legal aid society helped me realise how difficult the access to legal justice was for people and it’s a realisation that has stayed with me. The best part about studying at Delhi University was that I got to interact with people from different walks of life and from all over India. That exposure helped me to grow as an individual and that experience has helped me in my legal career as well.

    You talk about your involvement with legal aid during law school, and we see that it’s something you continue your involvement with. HOW WAS YOUR EXPERIENCE WORKING AS A PARALEGAL?

    (DLSA awarded him as the best paralegal volunteer 2014 and he was also the Student Convener of the Legal Aid Cell at his college)

    Legal Aid in our country still needs a helping hand from the authorities to enhance the justice system. Being the student convener of the Legal Aid Cell, I helped establish the Legal Aid Clinic in our college. I was involved in organizing legal awareness drive in slums and informing people about their basic rights, organising legal aid camps and conducting PLV training sessions. Working as a paralegal made me question conventions that we had unquestioningly come to accept. DLSA, on seeing my zeal towards the work awarded me as the best Paralegal in 2014.

    Continuing my association with legal aid, we at the Campus Law Centre Alumni Association are planning to organise large scale Legal Aid camps throughout Delhi to help as many underprivileged people as we can. We already have 500+ lawyers willing to support us in this cause. I would personally like to focus on cases of domestic violence and child abuse.

    Tell us more about your work with the Campus law centre alumni association? We understand that you are planning to raise funds for the renovation of The law school?

    (Siddharth is the Treasurer of the Campus Law Centre Alumni Association, and is the youngest member of the governing body of the association)

    CLC is one of the oldest law schools in the country and has an alumni base of 10000+ lawyers across the country. The idea was to provide a common platform for the alumni to meet and for the students to interact with them. Unlike the other law schools, Campus Law Centre didn’t pamper us. We did not get much institutional support for internships and placement. We were left completely on our own – and it was up to us to make the most of the time and resources we had. Keeping that in mind, my aim ever since college has been to provide every student with an equal opportunity when it comes to getting internships and placements and through the alumni association, I hope to achieve it. We are blessed with an enviable alumni network and we aim to provide a platform that will increase the accessibility for the students. We have Senior Advocates like Mr Mohan Parasaran, Mr Sidharth Luthra, and Mr Rakesh Munjal as part of our governing body. The advisory body of the association is headed by the Chief Justice of India, Justice Gogoi as our Patron-in-Chief.

    The renovation of the college infrastructure is one of our primary goals, so that the students can have access to world-class infrastructure and better learning facilities. We have started reaching out to all our senior alumni and many of the alumni have also offered their assistance to help renovate the entire college infrastructure, which is what we will be working towards it in the coming months.

    DO YOU HAVE PLANS NOW FOR AN LL.M?

    I always had a plan to work for some time in India before going for further studies. St. Thomas School of Law awarded me a 100% scholarship to pursue LL.M but I chose to practise law in India first. My family supported my decision and IndusLaw (where I started my legal career) provided me with an opportunity to work with them as an associate in their corporate team. Yes, I do have plans to study further and may seek LL.M. opportunities in business and corporate laws in the future. Having said that, I do firmly believe that nothing can replace actual practical experience.

    HOW DOES ONE GO ABOUT THE ART OF delivering lectures and WRITING?

    (Siddharth delivers guest lectures on corporate laws at various law schools throughout the country. MONDAQ awarded his article on GST as the “Most popular article in India”.)

    I feel blessed to have gotten the opportunity to deliver lectures at such prestigious universities so early in my career. Both delivering lectures and article writing requires in-depth research on the topic and one should use simple as well as classic vocabulary in order to make both the lecture and the article attractive and understandable even to a layman. Article writing plays an important role in improving your research skills and it adds stars to your CV if published. The whole experience of interacting with students while delivering lectures and answering their queries helps you grow as a person. I now understand how it feels to be on the other side of the table. While preparing for a lecture you have to do an in-depth analysis of the topic and be ready to answer any questions which the students might have. This is very different from writing an article where even if the article is detailed its more or less a monologue.

    IN WHAT WAY DO INTERNSHIPS HELP A STUDENT? IS THERE ANY SPECIFIC ANECDOTE regarding your internships, WHICH YOU WOULD LIKE TO SHARE WITH OUR READERS?

    (Siddharth has interned with the likes of Trilegal, Luthra&Luthra, and Senior Advocate Mr. Amarjeet Singh Chandhiok in the past.)

    Internships are very important for a law student as they provide practical exposure to the student and help him to analysis knowledge of books in real life. Working under Chandhiok sir was a thrilling experience and made me follow a concept of love what you do and do what you love. Internships play a vital role for a law student and one must try to get an exposure of all fields through internships in order to evaluate his interest before graduation.

    However, there is an interesting anecdote which I always like to share with students when it comes to internships. During my entire student life, I only did litigation-based internships. Even my internships at Trilegal and L&L Partners (then Luthra & Luthra) were all in litigation. But today its been more than 4 years that I have been practising corporate law. So, I think what matters most is that you develop your research skills, the interpretation of legal statutes, and try to inculcate a sense of professionalism through your internships. If you excel in these areas, then you can practice in any field of law. While law school and internships do help lay a good foundation, I truly believe that education for a lawyer begins when he/she starts practicing law professionally. Everybody starts with a clean slate upon graduation. And from all that helps you is your hard work, dedication, sincerity, and your ability to learn on the job.

    Coming from a family of litigators, HOW DID YOU CHOOSE CORPORATE LAW AS YOUR SPECIALISATION? WHAT COURSES WOULD YOU SUGGEST TO YOUNG LAW STUDENTS LOOKING TO SPECIALISE IN CORPORATE LAW?

    Well yes, that’s a question I get asked a lot. My grand-father was a Senior Advocate in the High Court of Delhi and specialised in Criminal law. All the other lawyers in my family who practice law are also into litigation. So yes, me venturing into Corporate Law was a first for the family. To begin with, my grand-father wasn’t too pleased at the prospect of me not visiting the court regularly!

    To be honest, Corporate Law for me began mostly as an experiment. Something to try before I ventured into litigation. But like they say destiny takes you where it has to. My initial months in Corporate Law and being involved in private equity deals made me realise that this is where my interest and passion lay. During my first job, I mostly represented start-ups in their funding rounds. The thrill of helping a new business raise funds to expand while helping the promoters retain contractual control over the company they created really got my interest. This was also the time when our government was promoting the Make-in-India campaign and helping start-ups raise funds to expand and contribute to the country’s economy felt like the right thing to do.

    However, I would advise students to make well-informed choices based on their area of interest. The first and foremost aspect which a student should take care of is deciding an area of interest. Once that step is complete, it becomes easier to work towards making a career out of that interest area. Looking at the Indian market, courses on Private Equity, Competition Law, Capital Markets and Finance would give students background and basic knowledge of the legal structure. The Insolvency and Bankruptcy Code is also something whose knowledge will prove very helpful to students in today’s scenario.

    WHAT DOES YOUR WORK AT KHAITAN & Co ENTAIL?

     

    My area of work at Khaitan & Co includes mergers and acquisitions, joint ventures, foreign investment, and general corporate and commercial matters. Working in a law firm like Khaitan & Co is a great learning curve for me and I’m happy doing it. We at Khaitan & Co work on some of the most marque and high-value deals which helps broaden your horizons as a professional. With the government’s push for Make-in-India, we have seen a marked increase in the number of private equity and venture capital deals in the country and I am blessed to have worked on a number of such deals. The main element in a law firm is its working environment and Khaitan & Co in this aspect is the best place to work. They say that it is not your job but your boss which shapes your career, and in this regard, I find myself have been lucky. I started my career under Mr Avimukt Dar (Senior Partner, IndusLaw) who really helped shape my interest in private equity and M&A, and now I’m working under Mr Bharat Anand (Senior Partner, Khaitan & Co) who is an institution in himself when it comes to corporate and commercial law. His work ethic and zeal for work are unparalleled.

    TELL US ABOUT YOUR TRYST WITH STUDENT POLITICS. HOW EASY OR DIFFICULT WAS IT TO MANAGE YOUR COLLEGE GRADES AND YOUR RESPONSIBILITIES AS A MEMBER OF THE STUDENTS’ UNION?  

    (Siddharth served as the Vice president of Campus Law Centre Student’s Union 2013.)

    Law and politics have always been intertwined. We lawyers make our living by analysing, arguing, and counter-arguing our interpretations of the legislations which the elected politicians and representatives make. Growing up I always thought of politics as a medium for change and Campus Law Centre provided me with my first tryst with politics. One of the many issues close to my heart was that I always wanted to help students who face problems on entering an English institution from a vernacular background. The sole purpose in contesting elections was to uplift the conditions of students in the college and to provide various opportunities to strengthen the students’ interest. Another issue of providing equal internship and placement opportunities to all students including those from non-legal backgrounds in one which remains close to my heart even today and is something which I am trying to push for through the Campus Law Centre Alumni Association. Student politics gave a lesson that one should be happy to help others in order to achieve the desired mark in politics. The students I helped out back then are still in touch with me and it gives me immense pleasure to see them do well in life. It also serves as a driving force to continue social engagement and help people especially students out in whatever way possible.

    As far as managing my college grades and my responsibilities as a member of the Students’ Union is concerned, that was never a problem. I always believe in focusing on the work in hand and to divide your time appropriately. So, no matter how pressing my other commitments were, I always made it a point to attend all my classes and study regularly.

    WHAT WOULD YOU LIKE TO SAY TO THE UPCOMING LAWYERS?

    Work in an area of your interest. Enjoy your days in college and study for good scores too. In the field of law, you can achieve success only by hard work and once you attain that position, sky is the limit for your prosperity and fame.

  • Sonia Sahijwani Saini, Assistant Manager Law, Maharatna Enterprise shares about the challenges of working as a legal advisor at a PSU

    Sonia Sahijwani Saini, Assistant Manager Law, Maharatna Enterprise shares about the challenges of working as a legal advisor at a PSU

    Sonia Sahijwani Saini is a law graduate from Campus Law Centre, University of Delhi (2007-2010) batch.  She comes from a commerce background and pursued journalism at IIMC New Delhi before making the digression to the field of law. With Masters in Business Laws degree from NLSIU, Bangalore, instead of opting for a law firm/ litigation or a private company, she rather chose the non-conventional route and got an opportunity to work for a job in a public sector in 2010 as a law officer through campus placement. Her first stint was at a Miniratna public sector enterprise under the Ministry of Commerce. In 2014, she got selected in a Maharatna enterprise in the oil sector as a Law Officer With approx 9 years of experience as an in house legal counsel for a semi-govt set up, currently, she is working as Assistant Manager Law at its Marketing Office at Chandigarh.

    Her debut novel ‘Yours Legally-a collection of short stories’ has recently been published by becomeshakespeare.com and is available online on Amazon, etc. In the interview, she has shared about the challenges of working as a legal advisor at a PSU, common mistakes made by people while drafting contracts and how law students can prepare for PSU jobs. 

    What are the challenges of working as a legal advisor at a PSU? What is different from working at a private company as an in-house counsel?  What are the kinds of legal issues faced by you on a regular day?

    To be honest and on a lighter note to start with, I never ever imagined that I will end up in a PSU! Though my father retired from State Bank of India, but like all ambitious young boys and girls my age, I always thought I would be either working in a private company or would be self-employed. However, to everyone’s and my own surprise, during the fag end of my LLB Degree, while I was applying for the campus placements, I willingly and voluntarily chose a lesser known public sector which was a ‘Miniratna’ enterprise under Ministry of Commerce based in New Delhi. I started out as a Management Trainee in 2010, got promoted to Probationary Manager and before being selected in my current job, I was last working as Dy Legal Manager with my previous employer. In 2014, I shifted to a different organization as a Law Officer and currently, I am working as Assistant Manager Law.

    Experience of working in a PSU: Before I talk about my transition to a Maharatna enterprise and the challenges of working in a PSU especially in a mammoth organization such as mine, I would like to state why personally I feel,  I made the right decision by starting out from a small company. The biggest benefit I gained from working in my first company was the amount of direct involvement and interaction we had with the Top/Senior Management including the Chairman and Directors almost on a daily basis based out of the Head Office. It was amazing to see the amount of detailed attention that was given to the legal issues faced by the company by the Management and what impressed me most about the organization that there was no rigid hierarchy. Being a mere fresher with only a few months of experience, the seniors never made us feel any less and treated us at par with them. From civil writs to complaints under the Negotiable Instruments Act, from Arbitration claims to labour law matters, in my first job, I got exposed to diversified litigation and attended courts on an almost daily basis.  My experience and exposure in my first job definitely laid the foundation for my next assignment.

    PSU vis a vis Pvt Sector:

    Let me talk about working as an in house counsel of a public sector vis a vis a private sector. It is normally assumed that as an in-house counsel semi govt/govt set up, you are reduced to being a mere link or better said a liasoning officer between the company and the advocates on its panel who act as the real counsels. But for all those of you who still have these notions and assumptions, out of my own experience I would like to tell you that it is infact not true. With first-hand knowledge and information about the company affairs and its working and policies, I was and still not only given the freedom to brief and prepare our advocates for our cases but very often given the critical tasks of drafting and finalising the applications, petitions, notices on my own.

    In a private set up, either you work as a corporate lawyer or as a litigating lawyer representing your clients in the courts, but being in the legal department of a public sector, you get to see the best of both the worlds. You not only get to deal with the company’s cases at hand but also learn to develop an expertise in a particular field for eg. being in the oil sector has given me immense knowledge of the kinds of issues an oil company faces and also made me acquire certain expertise in its agreements and policies. In a private sector, though one advantage is that with different clients/companies, you get to experience a variety of litigation, but I feel in the current set up, one needs to have a competitive advantage in a particular segment and excel in it if one is to thrive and grow in its career path. While on one hand there will definitely be a lot of flexibility in the procedures and work culture in a private company, a public sector on the other hand works and is based on well established set procedures, rules, guidelines and protocols which one is bound to follow.  But with recent innovative HR practices and much more critical roles being given to young officers, even the public sector companies are re-organising themselves to enhance the productivity of their employees.

    I strongly feel that at present, the public sector companies have completely turnaround, undergone a facelift as you could say and with the number of professionals like me opting for them these days, they are definitely now most sought after. And let me tell you, it is not just about the job stability, fixed income, job security and the perks associated with it. True, those are definitely add on benefits which act as great incentive to apply for a govt/semi-govt job, but being in a public sector myself now for past 9 years, I can easily say that the job responsibilities and work pressure is no less than in a private sector company.

    My current company is spread across the length and breadth of the country and is a popular and known name to all. In my current role, I feel an elevation not just in terms of the magnitude of the organisation and the number of people we deal with on a daily basis, but also in the critical nature of the legal cases involved which affects not just my company but the general public indirectly as well.  

    Challenges and issues: Coming to the challenges being faced by us, they are umpteen: with respect to the litigation aspect, we have to multi-task a lot of issues; handling hundreds of cases pending before various forums on a daily basis and engaging counsels for proper representation, ensuring no case goes unrepresented, getting replies/counter affidavits filed on time without any delays and most importantly to make rigorous efforts to not have any adverse order passed against the corporation which may act detrimental to its commercial interests. In cases where such orders are passed which do happen frequently, utmost priority is given to such cases by the legal department. For us to be able to defend the corporation and to make sure our advocates are well briefed and aware, it is imperative for us to be also thorough and well versed with the company’s various policies, guidelines and rules and regulations. That is a huge challenge in itself and requires being up to date all the time.

    To add to the above, as in house legal officers of the company, we not just take care of all the legal cases filed by and against our company for our respective locations but also perform a much more critical role that is of giving our legal opinions to the multiple legal issues we deal with on a daily basis.  With the increasing litigation and active litigants, each company these days strives to protect itself and its commercial interests by way of inserting suitable and appropriate legal clauses in their contracts and agreements to safeguard itself. Whether it is vetting of such agreements, drafting suitable bonds, undertakings, deeds on a case to case basis, handling RTI issues to giving our opinions in land-related matters, the role of law department in a public sector company cannot be undermined.

    I urge all of you law graduates out there to definitely give PSUs a chance. It will be worth it.

    You studied strategy for a year at IIM Kozhikode. What did you learn? How do you apply that at your work? What are the 3 most valuable things about the strategy that you can share with your readers so they can benefit from that?

    Well, let me begin by saying, strategy is a common word, and all of us are using it all the very time in our personal and professional lives both. We just don’t realise it. While I was in school and college, I always devised a strategy on how to prepare for my examinations. Nothing was ever random or unplanned. Each day before the exam was well planned as to what shall be studied on which day and it was always my endeavour to finish everything 1- 2 days in advance. Even writing an exam was and continues to be a strategy. From how to frame my answer on how to highlight the most critical points, from how to go step by step in a maths paper so to say on what sequence to choose while answering the questions, everything required strategy. While I was into sports, there was always a plan on how to outperform my opponent. From using his/her weakness to my advantage and on using my own strength against her, the strategy was and is very much a part of each sport being played in the world. And while we are in the professional world, don’t you think we are always following some mechanism, some process, approach and plan?

    Hence while in 2017 I was browsing through the courses at IIM, I could apply to, the course on Strategy Management caught my attention. My interview wasn’t easy though. It took me a while to convince the professors why a journalism cum law graduate is interested in this management subject. Once selected, I felt completely out of place since I was one of the youngest in my batch consisting of VPs and senior executives. And without a doubt, I was the only lawyer. But the course and the time and resources we invested in it was definitely worth it.

    Coming to what I learn there and how do I apply it into work well to sum up in the one year course, we studied strategy management in detail, from analysis to implementation, from evaluation to modification, we were apprised of the phases of strategy management. With the help of interesting articles, readings and real-life case studies, it opened my mind immensely. Since I am working in a mammoth organization and for me to be able to grow professionally and academically it is imperative for me to understand how companies work, how they make decisions, how big companies sometimes unexpectedly fail and what kind of strategies companies use to outperform others.

    From strategies on creating and sustaining competitive advantage i..e. business strategy to moving ahead to corporate strategy, from factors guiding companies on decisions as to make, buy or borrow to choosing whether to go for horizontal or vertical integration or related or unrelated diversification, we were given a detailed insight into all these topics and more which really opened up our minds to how companies really become successful and retain their competitive advantage.

    Though there is a lot I can talk about which I found relevant to my personal as well as professional life, coming to what I apply to my work are the following three valuable insights which I took out of the entire course and which I feel each one can relate to in their life as well.

    • To raise your Core Effectiveness

    core effectiveness/core competency in general means the main strengths of a particular enterprise, a company, a department or an individual which helps it to distinguish itself from others. In the context of law dept, it may imply the main strengths of the dept, the skills and resources it has which helps it to add value to the Corporation as a whole and gives the law dept a unique identity due to its critical importance to the organisation. In terms of an individual, I can say that one must try to look within and identify your strengths and weaknesses, do a SWOT analysis and identify your biggest competencies so that you can stand out from others in that particular expertise, area, the domain of work.  

    To recognize your core capabilities (and constraints), enabling optimal utilization of resources: As a lawyer, one can use this regularly while applying our mind to the legal cases and identifying whether we have a strong case in our favour or not. We can work upon the constraints i.e. where policy/law is silent, where documents are not available and try to strategically use the points which work for us.  

    • Resource leverage

    To have an effective strategy for leveraging resources and to ensure its positive impact on the organization

    Resource leverage is a means to close the gap between an organisation or department’s resources, capabilities, competencies on one hand and its aspirations aims and objectives on the other hand. In the context of a law dept of any organisation or a self-employed lawyer, it may mean how to effectively utilise the resources available with the dept in order to have an effective functioning and obtain positive results for the Corporation. For closing this gap, the law dept needs to frame/define a strategic intent, a sense of direction about its long term strategic position which it wishes to achieve. Hence it means to leverage/effectively utilise its resources and competencies to achieve its aspirations/goals

    • Develop a competitive advantage

    Therefore, strategies form an essential part of an organization’s effort(s) to achieve its long-term goals and objectives, having developed an understanding of the current business scenario, therefore, in this era of globalization where change is the only constant, the success of a business and of an individual too depends by and large on its ability to develop a strategy and implement it tactfully. At a time when we have hundreds of lawyers enrolling with the Bar each day, each lawyer has to act as a strategist in order to distinguish himself from others and to have a competitive advantage which is unique to itself. The work of a strategist does not simply end with identifying the long-term goals and formulating strategies accordingly. Instead, these strategies must be designed and redesigned and modified from time to time, in order to adjust to the dynamic external environment.

    In your experience, what are the five most common mistakes people make while drafting contracts?

    Law of contracts has been one of my fav subjects since my commerce graduation days at Delhi University. Most litigation in our country I have seen arises from poorly drafted contracts. If our agreements were clear, non-ambiguous, precise containing the suitable legal clauses, half of the lawyers would run out of jobs!!! Coming to the five most common mistakes people make while drafting contracts are as follows:

    • Leaving the date of execution or place of execution blank or incorrect dates surprising but true. I have often seen that private parties or companies for some reason make an error in this regard. At the time of execution, it is very important that the agreement is dated, even while signing the persons signing it must put a date on it. secondly, it is critical to know where the agreement is being executed as it helps in deciding the question of jurisdiction if and when any dispute arises. Either party gets an advantage in this regard wherein the date of execution which could imply the validity of the contract (5 years from the date of execution for eg) or the place of execution is ambiguous or simply left blank. I urge you all to avoid making this mistake.
    •  Unnecessarily long contracts having irrelevant clauses: it’s not the quantity but the quality that matters. While drafting contracts, sometimes they are so lengthy and running into so many pages that the essence of the particular contract goes missing and haywire. While it is important to ensure that no relevant clause is missed out on, what’s more, important to see is that clauses which have no relevance and are unrelated to the scope of the agreement are removed and a crisp agreement is executed which is easy to refer to and implement.
    • Omitting to have a dispute resolution clause: many times while vetting agreements, I have been faced with a perennial question, ‘madam, we doubt if any dispute will arise what’s the need of such a long dispute resolution clause? I only reply with mostly a smile first. I wish to explain that the aim of having a comprehensive contract is to safeguard us not just with the current scenario when everything looks positive and bright but to also protect us for any sort of eventuality wherein a dispute MAY or is likely to arise in the future. Please remember that a dispute resolution clause survives the termination of an agreement as well and if god forbid the other party stakes any claim, then having a well defined structured dispute resolution mechanism preferably arbitration with the clear defined procedure will help the parties from wasting unnecessary time and resources on litigation in courts.
    • Not choosing the right jurisdiction/no jurisdiction/multiple jurisdictions in a single contract: sometimes it has come to our notice that parties incorporate the jurisdiction clause but leave the place as blank. Or they do not have a jurisdiction clause at all. Even furthermore, they may execute the agreement say in Delhi, the parties may be in Delhi and Chandigarh (either party) and due to some error or having resorted to previous agreements, the jurisdiction clause is chosen as say Gujrat. This serves no purpose whatsoever. Always make sure that the jurisdiction clause is either mutually agreed upon or in standard contracts, it is the place where the party’s head office/ regional office/registered office is located. Or it could be the place where the contract is being performed. Having a well-established place of jurisdiction in the agreement itself can be extremely helpful in the event any legal proceeding is to be instituted or defended.

    While there may be many more such common errors, the above I feel must be taken care of by individual/companies while finalizing and executing contracts.

    If I want to work in a public sector as a legal advisor and I am just a law student now, how should I prepare myself and go about things?

    Well as of now, most public sectors either have their in-house written exam or opt for a score of CLAT (Common Law Admission Test) for LLM exam. You need to enroll for the written exam and the company shall obtain the score automatically (if it is taking the CLAT score). Past years papers of CLAT or of the concerned organization if it’s conducting an in house exam should be easily available online.

    A minimum of 1-2 years experience is generally preferred by most PSUs (albeit some which may also allow freshers without any experience to apply). At my time, my company asked for an experience of two years. After being shortlisted through the written exam follows the Group discussion and personal interview for which one must be thorough with the basic laws like CPC, CrPC, Contract Law, Company Law etc and procedures and the latest Acts which have come into force. Since most public sectors have an all India transfer policy you must be ready and willing to take up the post wherever it is offered and not be resistant to it. You will start as a Law Officer/Legal Manager/ Assistant Manager and promotions happen as per usual practice in approx 4-5 years time.  Once selected, be assured you have made the right choice.

    You managed to write a novel. Tell us about it. It is very difficult for most to have the discipline to finish one. How did you manage to stay on track? Did you follow a routine? Many people think of writing a novel but never manage to. what is the secret of you actually being able to finish it? Tell us something we don’t know and can learn from.

    Ahh, finally my novel. “Yours Legally” is something which is closest to my heart after my son and husband since it has been published in February recently after my son was born. It is my first novel whose draft was written years ago only to be modified and re-modified with my new and challenging experiences with the legal profession. Writing is my hobby, my passion and a form of meditation for me and I have been into it since school life. The idea to write a book was being nurtured since I was young and I truly feel when you are doing what you love, you put your heart and soul into it. Publishing a book with managing my infant was a tough task as I was sailing in two different boats at the same time. However, it was my sheer passion and dedication to see myself as an author which kept me going even after spending most nights awake with feeding and diaper changing sessions on the go. We all have a story to tell but most of us are rather scared of picking up that pen or laptop and penning down our thoughts. Perhaps we are just too lazy. As far as my journey is concerned, I was a habitual writer from diary writing, to writing articles, poems, working on my blog and once a week I always dedicated some time to express my thoughts and opinions. While working on this book, I made sure I write when my mind is free from any disturbance and it was mostly in the wee hours of the morning. The secret perhaps to me being able to get my book out in the literary world is my hunger to become an author and the fact that I never lost hope and patience.

    Another thing which I wish to state is that one must write from the heart and the soul and not from the mind. I write what I feel deserves to be written not just to please and attract any particular reader segment. I write with a lot of heart and emotion, perhaps I am too emotional once I start writing but I feel that’s what it actually takes to be able to become a good writer at least as per my standards.

    My book Yours Legally is a collection of six short stories inspired by true events related to the legal profession. Check it out on Amazon and Become Shakespeare.com.  If the back cover interests you, do buy it and give it a read.

  • Nitsimar Guliani, Associate, Chadha & Chadha Intellectual Property Law Firm shares about the work young IP lawyers have to do in the beginning

    Nitsimar Guliani, Associate, Chadha & Chadha Intellectual Property Law Firm shares about the work young IP lawyers have to do in the beginning

    Nitsimar Guliani graduated from Symbiosis Law School, Noida in 2018. She is currently an Associate with Chadha & Chadha Intellectual Property Law Firm, and specialises in trademarks, copyrights, and domain name disputes. She has been doing some interesting work around trademark and IP Law, and recently Ramanuj interviewed her about

    • Kind of work young IP lawyers have to do in the beginning
    • What kind of internships are more useful
    • Is Symbiosis Noida a good option?
    • Counterfeiting of goods in e-commerce platforms
    • Trademark law and using your competitors trademark for keyword advertising
    • Laws that govern domain name disputes in India
    • Her experience of doing a course with our own LawSikho

    What can I do in college to get into an IP law firm as a fresher? What kind of work do first year IP lawyers do?

    First, I suggest that you have your basics about the law clear i.e. the act, procedure, landmark judgments, etc., as it will just make it a little bit easier when you start working and won’t have to spend time looking for the law. Second, internships. As a law student, I pursued a lot of internships, 13 in total, and those internships helped me understand what I liked, and didn’t like. Internships are very important as they help you eliminate the fields you don’t like, so you can focus on what you do. When you are interning, always be willing (maybe even, pushy) to do more kinds of work. Since doing that work during internships will give you a head start on what your actual work is going to be like.

    Also, I recommend interning in smaller setups because it will give you a lot of exposure to different kinds of work, more responsibility and you get the chance to have seniors to review your performance closely. Interning at smaller firms matters even more in IP law, because most IPR firms (and I only speak for the trademark and copyrights team) are divided into prosecution, opposition, and litigation departments. So, essentially one ends up doing one thing only. However, if you are in a smaller setup, this divide will not really exist. I have been very lucky to have been exposed to different kinds of work at my law firm, Chadha & Chadha. I have done prosecution, opposition, litigation, domain name disputes, matters in neighboring countries, etc. Most of my work includes drafting and dealing with client queries. As a first-year lawyer, you are basically doing all the groundwork, which gets reviewed by your seniors. So, you should be the one knowing the matter inside-out. While you always have your seniors, you must always try to take as much ownership of your work as you can.

    What are the pros and cons of studying in Symbiosis Law School, Noida? How did your college help you in getting recruited?

    There are more pros, than cons of studying in Symbiosis, Noida. The pros being, my college really helped us prepare to fit into the real world. Our curriculum was designed to not focus on rote learning, so our internal examinations were usually application-based questions. Our college greatly focused on the importance of internships from Semester I. So, doing one internship per semester during the semester breaks was mandatory. And in the fourth and fifth year of college, we had the liberty to intern during the semester as well. Our classes were spaced out in such a way that we would have a couple of hours of college in the morning for 3-4 days from Monday to Friday. So, one was free to focus on what they wanted to pursue after college, like an internship if they wanted to land a job, prepare for judiciary, LLM, etc. Sundays, we usually had college from morning to evening, which got really tiring but was all worth it in the end. Our college was also extremely strict in terms of dress code. Formals meant you could not roll up your sleeves, could not wear leggings (for girls) and could not have a shaggy hairstyle. Those five years groomed us and we now understand the importance of dressing well in our profession.

    Cons of studying in Symbiosis, Noida – our campus is small, so we didn’t really have a “campus life” but we had our fair share of fun, outside the campus.

    The placement cell at college was really good. Fourth and fifth year onwards, we had recruitment offers from law firms, senior advocates and companies. Though I chose a placement off campus since I wanted to pursue IPR & the campus placements didn’t have a lot of IPR firms coming that year. But our college prepared us in such a way, that we had developed the skills and the experience, especially in the fourth and fifth year, to look for a job on our own. And that’s what I did.

    Counterfeiting is a massive problem in e-commerce. Tell us about the legal position in India with respect to this.

    Internet is largely an unregulated platform, so it’s easier than ever before to sell counterfeit goods online. A bare look at the products on the screen, makes it difficult (and sometimes, impossible) to tell whether its fake or real. So, the customer ends up buying the product, as a physical inspection of the goods only occurs on delivery.

    The Indian courts have been dealing with the issue of counterfeiting since a while now. But there is no specific law governing counterfeiting in India. Therefore, the existing statute is interpreted.

    The Trade Marks Act, 1999 defines counterfeiting in terms of “falsification” and “false application” of a trademark and the same is a cognizable offence.

    The Information Technology Act, 2000 has defined the term “intermediary” to include entities as varied as internet service providers (ISPs), social media companies, e-commerce apps, and even cyber cafes. Intermediaries are the backbone of commerce, but quite often abettors to counterfeiting and trademark infringement. IT Act provides “safe harbour protection” to intermediaries against any liability for third-party provided it had no knowledge of its illegality or exercised due diligence.

    However, this does not mean that all e-commerce marketplaces are “intermediaries” and entitled to the exemption. The Delhi High Court had recently pronounced a landmark judgment on the issue of trademark infringement and counterfeiting online. The Court held that any active contribution by the platform or online marketplace removes the ring of protection available to intermediaries under the IT Act. Therefore, when an e-commerce website actively participates and allows storing of counterfeit goods, they are liable for action.

    How does trademark infringement occur through keyword advertising? Tell us more about the legal position in India.

    The system of Keyword Advertising is such that it enables any economic operator to obtain placement for advertisement by selection of one or more “keywords.” This means that any person can also buy a “keyword” which is someone else’s trademark. Quite often, it is a tactic used by competitors to divert the rival’s customers to themselves. The display of a Sponsored Link on searching a particular term when leads to confusion in the minds of the consumer as to the origin of the goods amount to trademark infringement and/or passing off.

    In India, there is no legislation which expressly restricts the use of trademarks in a search engine. Therefore, the existing statute is interpreted. Section 29(8) of the Trademarks Act includes infringement by advertising.

    The Indian Courts have dealt with a few instances of Keyword advertising disputes. However, they have only looked into the concept of “likelihood of confusion.”

    The issue of whether keyword-triggered advertisements constitute trademark infringement by the search engines yet to be decided conclusively, worldwide.

    Google’s Advertising policy prohibits intellectual property infringement. One can submit a complaint regarding trademark infringement. While Google investigates such complaints, it, however, does not aid in dispute resolution. The resolution is left to the parties. Furthermore, Google allows the “fair use” of trademark in ad texts if it is used by a reseller or the trademark is used for informational purposes. Google’s Ad Text Policy specifically exempts from investigation ad text that uses the term descriptively in its ordinary meaning rather than in reference to the trademark. This essentially means that a lot of competitors work around the loopholes.

    You have worked on domain name disputes. Tell us about the resolution of domain name disputes in India.

    As we know, anyone can buy a domain name on the internet, which makes it an easy platform for infringers to violate someone else’s rights. In order to specifically deal with disputes relating to .IN domain names, the Government of India has formulated the .IN Domain name Resolution Policy (INDRP). The policy is in line with the international policy (UDRP) for domain names dispute resolution. INDRP deals with registered domain names which are identical and/or confusingly similar to that of another.

    The disputes filed under INDRP are referred to the .IN Registry which is NIXI (National Internet Exchange of India) and are resolved through Arbitration. The Arbitration and Conciliation Act, INDRP, Rules of Procedure and any bye-laws apply.

    The procedure is fairly simple. The aggrieved party submits a Complaint against the Registrant of the Domain name in the prescribed format. A statement of defence is filed by the other side followed by a statement of Rebuttal (by the Complainant) and a Counter-reply (by the Registrant) after which the award is passed by the appointed arbitrator.

    Three conditions are required to be satisfied in order to obtain a favourable award in an INDRP dispute:

    1. The domain name in question is identical and confusingly similar to a name, trademark or service mark in which the Complainant has rights
    2. The Registrant of that domain name has no rights in the domain name;
    3. The Registrant has registered or is using the domain name in bad faith.

    The INDRP resolution mechanism is very efficient. The case, I worked on, the award was passed in favour of the Complainant and against the Registrant of the domain name within 5 months. After the award is passed, the Registrant is given 3 months for the execution of the award i.e. to transfer the domain name. If the Registrant doesn’t comply, NIXI is very pro-active in assisting in execution. Communications are done over e-mail, and the response time is also pretty efficient. Also, like any arbitration, if the Registrant is unsatisfied with the award, he has 90 days to appeal the decision.

    Why did you take a course from LawSikho? How was your experience and how did it help?

    I was in my fourth year at Law School and found about the LawSikho courses over the internet. When I read about the curriculum, I enrolled for it without a second thought because I knew that LawSikho courses go beyond what is taught in the classrooms. The best part was that we were all assigned a mentor, who we could call, chat with and learn from. The classes were held online, and remain uploaded, so you can also keep going back to them or take them as per your own convenience.

    The LawSikho courses are designed in a way to really expand your learning, because you learn from professionals who have an expertise in a particular area of law. Also, the course developed a community of learners, who share knowledge and help each other with queries, till date!

  • Bhavin Patel, Freelance Legal Advisor and Legal-tech Enthusiast shares about the E-ADR challenge

    Bhavin Patel, Freelance Legal Advisor and Legal-tech Enthusiast shares about the E-ADR challenge

    Bhavin Patel is a graduate of NLSIU, Bangalore, having sixteen years’ experience across the legal, technology, and education industries.

    He is an integral part of the E-ADR challenge which has been conceptualised by ICICI Bank and co-organised by HumLab and Vayam.  In  the interview he speaks about the E-ADR challenge, how will the E-ADR institutions be set up and  what will be the mode of operation.

    Please tell us in brief what is the E-ADR challenge?

    Disputes are a healthy and essential aspect of a functioning democracy and market, but our current platforms of dispute resolution, most notably the courts, are not able to serve our needs due to huge pendency of cases.

    Issues of pendency, the cost of arbitration, and misconceptions around mediation are derailing both business and society. Even as we work to unclog the courts, we need large-scale, expedient, cost-effective, and trusted mechanisms of alternate dispute resolution.

    The E-Alternate Dispute Resolution Challenge 2019, which has been conceptualised by ICICI Bank and co-organised by HumLab and Vayam, invites innovators, practitioners, and social and business leaders to constitute teams and propose comprehensive solutions for the creation of an E-ADR Institution that can resolve millions of disputes online through technology and mechanisms of alternate dispute resolution such as arbitration and mediation. More details on the Challenge and how one may apply to it are available at: https://www.agamiprize.org/eadrchallenge

    What is your vision with this competition?

    We hope that the establishment of the E-ADR Institution that emerges from the Challenge will be able to help in some substantial measure towards the reduction of pendency in the court system, even as it provides a cost- and time-efficient mechanism for resolving large volumes of disputes. The Institution could provide a trusted mechanism that would enable consumers and citizens to resolve disputes easily and effectivily as well as improve the degree of contract enforceability in India, thereby boosting the nation’s position in the Doing Business

    How do you plan to set up the E-ADR institution?

    Applicants to the Challenge must respond to a detailed set of Specifications, which are available here. The Challenge organisers understand that no one applicant – and especially no one individual – may be able to fulfil all the requirements of the Specifications, and are therefore encouraging applicants to form consortia with other applicants who may be able to complement their skill sets and abilities. All consortia applications, once received, would be subject to a thorough screening process before being presented to a jury of eminent and qualified persons, who would deliberate upon, and then identify, one winning consortium that would be provided the mandate to establish and operate the E-ADR Institution.

    The winning consortium would then be supported in its endeavour by the Challenge organisers and a panel of leading practitioners in the field of alternate dispute resolution as it commences work on establishing the E-ADR Institution.

    ICICI Bank as the Conceptualist and Challenge Partner will be one of the first users of this institution and intends to utilise the E-ADR Institution for dealing with disputes arising in its products and services that are offered online and will consider extending the platform to its retail liabilities and retail assets businesses, which would supplement the other dispute resolution mechanisms available to the customers of ICICI Bank. Further, ICICI Bank has also agreed to provide suitable incentive at the inception stage of the E-ADR Institution established by the successful Challenge participant, by prepaying the institutional fee (adjustable in future) for a given number of matters that it would refer to the E-ADR Institution over a period of time, thereby making available to the E-ADR Institution, suitable sums of money in advance for utilisation towards the E-ADR Institution realising its objectives. Such a prepayment would go a long way towards easing the capital requirements of the E-ADR Institution in its early stages.

    Please do note that the financial incentives do not take the nature of prize money or any equity stake in the E-ADR Institution, as ICICI Bank intends to be a user of the E-ADR Institution that meets the specifications of the Challenge.

    How have you planned the mode of operation of electronic dispute resolution? What will be the Modus operandi?

    The proposal for the E-ADR Institution is that it would be able to provide a cost- and time-efficient mechanism for dispute resolution by providing a means of resolving such matters in an online medium, and through the use of technology. The time and cost associated with traditional mechanisms of alternate dispute resolution, including, for example, the costs of travelling to another location, may often dissuade a genuine grievant from being able to present their matter to a dispute resolution mechanism. Through mechanisms such as electronic submission of pleadings, video conferencing for trial proceedings, and systems that keep parties informed at each stage of proceedings, we trust the E-ADR Institution would be able to provide not only a quick and inexpensive means of dispute resolution, but also a fair and transparent one.

    How do you plan to have arbitrators, mediators and conciliators handling Multi-party discussions in electronic mode? Do you believe India has the infrastructure to execute E-ADR?

    While means such as video conferencing systems can be deployed to provide a mechanism for multi-party hearings, the Challenge organisers recognise that significant hurdles still exist in the country, which may pose problems for such a mechanism. That said, the winning Consortium may well be able to provide certain facilities from where Parties could participate in proceedings; additionally, we hope to create a Coalition that would include organisations who would consider using the E-ADR Institution to resolve their high-volume disputes. Such users may also have physical facilities spread out across the country, with good access to the Internet, and may be willing to provide access to these facilities for the use of the E-ADR Institution. Where, however, the requirement for verbal hearings is not felt to be necessary – such as in high-volume, ‘templatised’ matters of a low order of complexity, matters may well be resolved purely through the submission and consideration of pleadings, without the need for hearings and arguments.

    Furthermore, we believe that an Institution such as this could trigger and nurture the creation of a large number of trained dispute resolution professionals who can resolve a large volume of small and medium sized matters on a daily basis and develop their careers as such. In the first few months this may involve retraining existing professionals, such as retired judges and practicing professionals, but, subsequently, this could include the training and certification of a whole new generation of professionals, not limited to lawyers.

  • Aditya Manubarwala, Law Clerk – Cum- Research Assistant, Supreme Court, shares his experience as the youngest Global Peace Ambassador to India

    Aditya Manubarwala, Law Clerk – Cum- Research Assistant, Supreme Court, shares his experience as the youngest Global Peace Ambassador to India

     

    Aditya Manubarwala is an Indian attorney and columnist on issues of law and public policy. He is serving as Law Clerk – Cum- Research Assistant at the Supreme Court of India (2018- 19) having been appointed by the Chief Justice of India and deputed to Hon. Mr. Justice Vineet Saran, Judge, Supreme Court of India.

    He is also the incumbent Global Peace Ambassador to India (2018-19) appointed by the Centre for Peace Studies, Sri Lanka.  He has previously served as Special Advisor on International Law & Affairs to Najibullah Azad, the then Spokesman to President of Afghanistan. He has also served as an Attaché to the Office of the Speaker of the Lok Sabha and is one of the youngest Indians to depose before a committee of Parliament in Indian Legislative History at the age of nineteen. In March 2018, the Kathmandu Tribune Nepal described Manubarwala as ‘Asia’s emerging youth leader. He is also the 2nd youngest Indian to have deposed before any Committee of Parliament in Indian Legislative History.

    In August 2016, he was selected as an Indian Delegate at the Harvard Asia Conference, Hong Kong. Whilst at Hong Kong he also received the Chinese General Chambers of Commerce (CGCC) HPAIR Scholarship. The CGCC Scholarship is awarded to youth leaders across the globe who have shown commitment and enthusiasm towards empowering their country, community and Asia at large.

    In the interview we speak about

    • Experience of working at the Supreme Court
    • His research on article 72 of the Indian Constitution
    • His vision on the future of India’s engagement with the international law regime
    • Experience as the youngest Global Peace Ambassador to India

     

    Please share your experience of working at the Supreme Court of India as a Law clerk-cum- research assistant? Does this experience help you with your public policy reform work?

    Working in the Supreme Court of India has been one of the most enriching experiences of my life. The multi-dimensional approach that one acquires while working on a wide array of matters across different fields and areas of law is rewarding in every way.  Every year the Chief Justice of India appoints Law Clerks (who are generally fresh law graduates). These Law Clerks are selected from one of the most competitive exams in India conducted by the Supreme Court of India.

    It’s been close to 6 months since I have been appointed as a Law Clerk – cum- Research Assistant and these 6 months have been a time of immense learning. One tends to appreciate the nuances of law as well as get acquainted with the inner workings of the Apex Court of our country in an unprecedented manner. I am close to completing the 500th matter in the court. Law clerks often provide significant research on ongoing cases up for final hearing. As a Law Clerk, amongst other things, I am expected to prepare a short briefing note which essentially summarizes the entire Special Leave Petition in 1 or a maximum of 2 pages. My ability to grasp, process and interpret vast, diverse and often complicated propositions of law has expanded significantly. One of the Judges of the Supreme Court of India once told me early in my tenure, that a lawyer, who can write well, is a lawyer who can speak well. I couldn’t agree more with this. As a law clerk, a vast amount of time is devoted towards reading paper books related to concerned cases which is ultimately processed and churned out into succinct notes; a logical corollary of this is improved writing skills and this in turn, significantly enhances verbal communication. A clerkship serves as a great prepping experience for a lawyer attempting to build his/her life in litigation, especially as an arguing counsel.

    Of the many diverse cases that come up before the Supreme Court, the most interesting ones are the public interest litigation cases which question the Government of the day to account for omissions or commissions concerning implementation of the policy framed by it. While working on such cases, it is but natural that the genesis of the public policy has to be looked into as well the legal and practical creases and flaws in them.  Working on such cases naturally helps get a more holistic picture of the workings of public policy and I feel blessed to have gotten this kind of exposure.

    You recently did a detailed study on ‘Article 72 of the Constitution of India’ that highlights the overlapping of powers between the Governor and the President pertaining to the commutation of death penalty. Tell us a little more about the research. Why did you undertake this and why is this important? How do you intend to take this forward?

    The seeds of this discussion were sowed in my mind while I was watching the news on a rather interesting day when the entire nation had their eyes glued on whether Yakub Menon would be sent to the gallows or not. While the news bulletin ticker showed President Pranab Mukherji having rejected the mercy petition of Menon, my eyes got fixated on a rather small ticker showing Yakub Menon now approaching the Governor of Maharashtra with his mercy petition. It got me curious to understand how Menon was even doing what he was doing. I perused the Constitution of India looking for answers and at the end of it, I was even more perplexed and disturbed than ever before. Article 72 (2) of the Constitution of India provides the President of India the power to commute a death sentence into life imprisonment (popularly called as the power to grant mercy). However, this power of the President is enjoyed by the Governor of the States, in the sense that the power of the Governor is equal to, and not inferior to the President of India in terms of commuting a death sentence down to life imprisonment. There exists no hierarchical division where the President is considered a superior authority to the Governor. This can perfectly emanate a situation wherein the President after rejecting the mercy petition of an anti-social element is overturned by the Governor of a State. Even if the Governor pocket vetoes the mercy petition (under advisement of the Central Government), the death sentence can be suspended on account of want of consideration, the moment the governor is approached. Interestingly, all these concerns were pointed out by Mr. Tajjamul Hussain, a member of the Constituent Assembly of India to Dr. B. R. Ambedkar during the drafting of the Indian Constitution.

    My research on the aforesaid won the best essay prize at the 10th DD Basu Constitutional Law Essay Competition organized by NUJS Kolkata, whilst I was still a law student. Subsequently, I placed my findings on record before the Lok Sabha Speakers Research Initiative as well as discussed the same with Shri Pranab Mukherji, the Former President of India. My concerns have been patiently considered by senior political and legal functionaries but I believe that unless the highest offices of the country are sensitized about the massive constitutional crisis that this can bring about, there won’t be any tangible action. I have already sought an appointment with the President of India and I plan to petition the Prime Minister of India as well.

    We understand that apart from public policy and law, you are also very active in the SAARC region and the international arena. Kindly share with our readers some notable experiences you have had. How did this journey begin and what’s your vision on the future of India’s engagement with the international law regime?

    I represented India at the Harvard Asia Conference, Hong Kong, 2016. During the conference, I got acquainted with like-minded and socially driven individuals from 90 nations.  After the conference, the interconnectedness of the global order dawned upon me and I started viewing domestic issues from an international perspective. Paying a closer emphasis to SAARC nations was the logical corollary for me. I am very passionate towards bettering the human rights regime in India and with my new found interest towards international relations, I started looking at SAARC as a holistic block. Drawing inspiration from the ECHR and other regional international human rights conventions, I along with my friend Shooha Tabil (a noted environmentalist from Bangladesh) drafted a draft SAARC convention on human rights. While lobbying for the enactment of this at the office of the President of Afghanistan, I came in touch with the Spokesman to the President, Mr. Najibullah Azad. Mr. Azad had previously read some of the articles I had published in Kabul Times and was thus well acquainted with my work. While the SAARC draft convention did not take off, due to instability in the SAARC grouping and Pakistan’s objections, Azad and I formed a deep bond. Subsequently, Azad appointed me as his Special Advisor and I prepared assets for Afghanistan’s National Water Policy Framework, with a special focus on leveraging Afghanistan’s Water Potential (I have also published an article in this regard in Modern Diplomacy Europe).  Additionally, I worked on drafting a white paper towards reforming Afghanistan’s Courts and Administrative system.

    Apart from Afghanistan, I also work closely with prominent civil society members of Bangladesh and Nepal on bringing to the fore issues of larger relevance before the international community.

    In the international law arena, I see this to be a time of great opportunity as India is placed in the best position it has ever been in her 70 year history. India has always led from the front and shown immense respect to the international law regime right since her independence. However, with its rising stature as a global super power, India’s engagement with multi-lateral commercial dispute resolution bodies, the international arbitration regime apart from International Court of Justice, and other forums is only bound to rise. These are interesting times for young attorneys.

    You were also recently appointed as the youngest Global Peace Ambassador to India by the Centre of Peace Studies in Srilanka (affiliated to the UN). How did that happen and tell us a little about your role as Global Peace Ambassador.

    My increasing role in SAARC affairs led me to forging important relations in Sri Lanka. One such person is Mr. Shiraz Yoonus, who is a close aid of Mr. Mahinda Rajapaksa, the former President and former Prime Minister of Sri Lanka. I, in fact even served as Special Advisor to Mr. Yoonus on matters of International law and affairs for a brief period. Given my experience in the international law and public policy arena, including SAARC affairs and Sri Lankan affairs, the Centre for Peace Studies Sri Lanka (affiliated to the UN) decided to nominate me as their Global Peace Ambassador to India for 2018- 19. My role as Peace Ambassador has no defined terms, with me being given a wide landscape to operate on. Amongst other things, I have worked hard towards establishing a forum which serves as a connecting pod between the rising youth of India and Sri Lanka. I have also coordinated the international outreach efforts of Mr. Rajapaksa towards bridging the element of distrust existing between India and Sri Lanka on account of the Chinese influence in the region. My role has therefore been to ensure that the collective interests of India and Sri Lanka are not compromised by a resurgent China, which is trying its best in stifling the relevance of smaller countries with its economic bulldozer diplomacy.

    I have also leveraged my position towards spreading awareness in India about the international law regime and the dispute resolution mechanisms available in the international arena.

    What are your future plans? Is there any other significant research work that you have undertaken domestically or internationally in the area of public reform or towards bettering the global human rights regime?

    I am currently working towards the enactment of the SAARC convention on human rights as well as the enactment of the SAARC Water Dispute Settlement Board.

    The genesis behind my endeavor towards the SAARC Convention on Human Rights is the very fact that major international groups – be it the European Union or the Organization of American States, have a regional human rights convention setting basic standards of human rights enshrined and considered sacrosanct by them. However, an all encompassing human rights convention for SAARC is conspicuously absent. It must be understood that SAARC is a major international group of states, all of which are very closely connected by common history, cultural ethos, societal values and family values. For a better part of history, most of the countries in this group were governed by the same administrative systems. Having said this, it is but natural that the commonality of their value systems is synchronized into a holistic treaty.

    To this end, the first step towards this project has been to create a group of likeminded individuals from SAARC nations who are busy imploring upon their governments to take this treaty forward. My team and I have made some significant headway in countries like Bangladesh, Sri Lanka, Nepal and Bhutan. However, the process is admittedly still a long way off . With regard to my work towards establishing a SAARC Water Dispute Resolution Board, the idea is still in a nascent stage. Currently, I am working and co-coordinating with a few international – trans-boundary water experts to arrive at a common ground on the principles which ought to govern this board. Once drafted, the next step would be to get Government support officially. This endeavor of mine is being supported informally by certain ministers from SAARC countries (who don’t wished to be named at this stage). However, work is still underway at a government-to- government level and I will be able to share more details once significant progress has been made.

    I ultimately aim to be a litigating lawyer bringing to the fore often neglected issues of law, public policy and human rights while also maintaining a commercially lucrative practice. I hope to hold an elected public office in India someday in the future.

    In the short run, I aim to pursue masters in law (LL.M) from a reputed institute abroad in the area of Constitutional Law and public policy.

  • Amrit Subhadarsi, Assistant Professor, KIIT University, on experience in academia and legal education system of India

    Amrit Subhadarsi, Assistant Professor, KIIT University, on experience in academia and legal education system of India

    Amrit Subhadarsi is currently an assistant professor at KIIT University. He completed his BA LLB from School of Law, KIIT Deemed to be University, and his masters in Corporate Law from National Law University, Odisha in 2017 and was nominated as LLM student representative to Prof G.V Ajappa, a leading expert on jurisprudence in India. He has written a book on Standard Essential Patents and abuse of dominance in the global telecommunication industry, which has been published by Laxmi Book Publications. He regularly engages with institutions and regulators alike to provide a platform for students to learn practical insights into the workings in a particular industry in corporate law. Before joining the academia, He has also worked as a trademark analyst in legal consultancy wherein, He has engaged extensively in analyzing and preparing reports on trademark case laws from the European Union and Commonwealth.

    In this interview we speak to him about:

    • His interest in academia
    • His opinion on the Indian legal education system; and
    • His experience as an Assistant Professor at KIIT University.

     

     

    HOW WOULD YOU LIKE TO INTRODUCE YOURSELF TO OUR READERS? PLEASE TELL US SOMETHING ABOUT YOUR PRE-COLLEGE LIFE?

    I am a soft-spoken and amicable person, with a passion for reading and writing. I am a native of Odisha and belong to a non-legal background. During my higher secondary schooling in Kolkata, I was a shy kid, a major obstacle in a society which considers shyness as a demerit. I was fortunate enough that I had good friends to guide me during my tough days. I was and still am a voracious reader. I never had much inclination towards pursuing commerce or science and I felt like I had a calling for arts subjects. Particularly, subjects like political science and sociology became my favourite. While reading newspapers, often I came across legal articles and interviews which I used to read with great interest and thus began the quest for having legal knowledge.

    YOU HAVE DONE YOUR MASTERS IN LAW. HOW WAS YOUR LLM EXPERIENCE AT NLU ORISSA. WHAT ARE THE CHALLENGES YOU HAD FACED WHILE STUDYING AT NLU ORISSA?

    The introduction of one year LLM has turned out to be a bane. One year LLM does not allow the student to explore research avenues effectively. For instance, if a person wishes to be a member of a research center, or take part in moot courts, then such avenues are not there. Further, it does not allow the student to make any one particular area as a specialization because many subjects have to be studied in such a short span of time. There are few institutes that encourage LLM students to take part in moots. But, this needs to be institutionalized, because more than mooting skills, research in moot courts can help the LLM student to make it a specialization later. I was fortunate enough, that despite the one year LLM, I managed to be an active member of the Center for Corporate Law, be nominated to represent the institution in a lecture series by Professor G.V Ajappa, a leading authority on jurisprudence in India. Also, my dissertation secured the highest marks which I have converted into a book slated for a release in March.

    WHAT IS YOUR OPINION ON THE INDIAN LEGAL EDUCATION SYSTEM?

    At the moment there is a large vacuum in the Indian legal education system. Systematic changes need to happen across three levels: students, parents and institution. At the student level, they need to understand that five years of legal education is not to just to train them with skills for the corporate sector but to equip them with analytical skills prerequisite for the legal profession. This brings me to the other two levels: parents and institutions. It is here that a paradigm shift is required. Many parents look forward to a well-paying job after graduation, but not necessarily quality education. In India therefore, the focus is on to generate placements and not delivering quality education. Fortunately, KIIT School of Law has emerged as an exception to this trend as among other laurels it has now secured the most innovative law school award in 2018.

    HOW HAS LEGAL EDUCATION SYSTEM CHANGED OVER THE YEARS AND WHAT ARE THE ADVANTAGES AS WELL AS DISADVANTAGES OF THIS CHANGE? WHAT CAN STUDENTS OF TODAY LEARN FROM THE OLD SYSTEM OF LEGAL EDUCATION?

    The legal education system has undergone a sea change over the years. Some advantages include many institutions like KIIT School of Law and a few others providing excellent infrastructure and resources to students. The new legal education system is also incorporating emerging trends in society, through classroom innovation, developing legal clinics, practical training for mock trials and moot courts, corporate and business laws being part of the curriculum more frequently. The advantage is that the students get the opportunity to learn practical aspects apart from theory at a very young stage, unlike in the earlier system, where such skills were taught only in the final years. Besides these advantages, the demerit is that students are no longer researching from books and journals as they used to before and this is inhibiting their development of analytical skills. Students must go beyond the ‘Google it’ mentality to ‘original research’ mentality.

    WHAT PROMPTED YOU TO CHOOSE TEACHING AS A CAREER?

    I always had an inclination for reading, writing and researching on my areas of interest. I never found research as boring as many in their student days often complain. Quite frankly, I was confused for quite some time even in my final year as well and still remember how my friends tolerated my constant changes in decisions. Eventually, as I was delivering a demo lecture during one of my post graduation classes, I realized this is something I could do passionately, not feel like work and not be bored. When you come out of class fully satisfied, that is when you know that you are in the right profession. These coupled with my patience for research and writing help cement my decision for academia.

    TELL US ABOUT YOUR TEACHING METHODOLOGY.

    Depending upon the subject, the teaching method varies. For instance, a paper having a mix of theoretical and practical knowledge ensures that I adopt lecture and Socratic Method along with practical training such as classroom simulations, or activity based class assignments, etc. For theory subjects, I usually adopt a mix of lecture and Socratic dialogue method. Before beginning the class, I regularly ask the students about the discussions in the previous class so the next class commences from where we left off. Reading assignments for the next class are also given.

    HOW IMPORTANT A ROLE DO YOU THINK LAW SCHOOL PLAYS IN SHAPING ONE’S CAREER?

    It is common knowledge in legal fraternity that teaching standards in Indian law schools have come down drastically. That does not mean all law schools should be painted with the same brush. Both the institution and student complement each other for laying down the foundation for future development. The current crop of students comes with a ‘fixed mindset’, whereas what is needed is a ‘growth mindset’. The same standard for any law school also. Based on their mindset, the student shapes his or her formative years at law school.

    All law schools may not be perfectly equipped to provide practical training, but they do provide opportunities for learning them through moot courts, internships, training courses, among others. Law schools are platforms for a vibrant mix of theoretical and practical training. But to learn them, the student has to navigate his way through networking. It is not a one-way street. Both students and institutions when complement each other, it leads to holistic development. What is needed therefore is a way to engage with students and institutions holistically. For instance, KIIT School of Law is one of the few institutions where because of engagement; many of our students have excelled in national and international moots, publications, higher academic research, among others.

    YOU ARE NOW WORKING AS AN ASSISTANT PROFESSOR AT KIIT UNIVERSITY. HOW IS YOUR WORK EXPERIENCE SO FAR?

    The experience of working at the school of law, KIIT Deemed to be University has been very comforting. When you start working at a place that is unfamiliar to you, there are some challenges you need to encounter, for instance, blending in with new people, with the work culture. But KIIT has been special for me for a number of reasons. Firstly, working at your alumnus provides me with a sense of pride when viewed from the other side of the table and working alongside many of my faculties who are always there to guide me. This helps increase your productivity manifold and sense of belongingness. Secondly, KIIT School of Law has been awarded the most innovative law school in India for 2018 and KIIT University has also earned a place in the Times Higher Education rankings. Working at a prestigious institution like this has given me exposure like never before and has definitely added to my professionalism traits.

    COULD YOU GIVE OUR YOUNG READERS CERTAIN TIPS ON EXCELLING IN ACADEMICS?

    Firstly, it is imperative for the faculty to reach class not on time but five minutes before time as it allows the faculty to prepare mentally. Students also would know that time must be maintained and consequently, the flow of teaching will not be disturbed. One should understand that excelling in academics not only means being a good teacher, but also a good guide, a good writer and researcher. If writing, lecturing and researching fascinate a student, then academics can be given a shot. Hence, prioritization is critical.

    Preparing the agenda of the class a day before leaves room for actual preparation for class. One should also accept the fact that not all students will have equal levels of aptitude and curiosity which is why regurgitating whatever preparation was made before class is not going to be enough. Students expect innovativeness in teaching and hence the teacher must be updated about subject content (hard skills) and an effective orator and communicator (soft skills). Also just like the student, once in academics, the individual must not stop reading. Effort must be made to make the teaching as interdisciplinary as possible so that both students and teachers have scope to add value to classroom discussions. Lastly, research and writing must be at the highest level. For instance, I have successfully converted my dissertation, which secured the highest marks, into a book which is slated for release this March.

     

    WHAT IS YOUR ADVICE TO STUDENTS WHO WISH TO PURSUE CAREER IN ACADEMICS BUT ARE CONFUSED BETWEEN LITIGATION AND ACADEMICS?

    Both litigation and academics have their own set of desired skill sets and perks. There is a common misconception that a job in academia means a comfortable lifestyle. This fallacious attitude leads many to take up academics as well. But I believe, as a student, one should first prepare a list of do’s and don’ts. For instance, the latter can include not succumbing to peer pressure and herd mentality. This will allow the student to take a realistic approach.

    The former can include watching out for signs where the student can develop skills. If the student has the inclination to research, write, loves to speak on a platform, and just loves to read, teaching is ideal. However, if the idea is to use the aforesaid to practice and argue before a judge, he or she must be prepared to struggle for years in litigation before making decent money. Of course, such choices do get affected by scenarios like mounting student loans or other financial burdens, in which case choosing litigation instead of a well-paid job is a pursuit in a fool’s paradise.

    HOW DID YOU DECIDE TO WRITE YOUR FIRST BOOK COMPARATIVE LAW RELATING TO PATENTS AND ABUSE OF DOMINANCE IN THE GLOBAL TELECOMMUNICATION INDUSTRY? WHAT WERE THE CHALLENGES YOU FACED AS A FIRST-TIME WRITER?

    I was already interested in this topic during my LL.B and got familiar with this topic when our team secured the approval for participation in our second moot court after clearing the intra moot court stage. However, at the same time, our final year placements were about to commence and I did not want to miss my shot at placements. So I had to leave this opportunity. But, I knew someday I would engage in research in this area, though not definitely knowing that I would publish a book on it someday. Broadly there are two sets of challenges for a first time writer like me. The first is to not get carried away by believing that merely because one is skilled at writing a good journal article, one should also be equally good when writing a book. The time invested, the patience utilized and the numerous proofreads that goes into one chapter for a book is a herculean task. A seasoned writer will, of course, know how to vary his or her strategy regarding publication in a journal and a publication as a book. The second challenge is that in a topic as specific as Standard Essential Patents in Telecom Industry and Competition Law, where the scope in India is ever increasing, it is very difficult to write within established regulatory rules, as the same is changing very quickly. Plus, due to lack of jurisprudence in India, I compared US, EU, UK, China and Japan, which are the other jurisdictions where such cases have had the most prominent impact during my research, and have written India’s first of a kind book on linkages between Intellectual Property and competition law in the telecom industries in major jurisdictions.

    HOW DOES ONE GET THEIR BOOK PUBLISHED?

    Being a first-time writer, I did not have contacts with established publication houses. However, I took my chances and made contact with few big publication houses, where my work was rejected because the market demand is for books catering to general subjects like Intellectual Property or Competition Law, but not an amalgamation of both. This is understandable because of the demand by students and also the fact that with a first time author the publication houses will be a little apprehensive. It’s important therefore that one uses professional networking sites such as Linkedin to use it to find and connect with publishers who can take a chance with first time choices. In other words, an open mind has to be kept. So, I approached another publication house as I believe that one needs to start somewhere regardless of the size of the publication house. I was initially apprehensive but I must give credit to them as they did their job professionally and meticulously changed the content, the font, the footnote font, page borders, book design and covers.

     

    HOW DID YOU MANAGE THE TIME TO WRITE A BOOK?

    Frankly speaking, this book is actually my dissertation in corporate law, which secured the highest marks during my post graduation. I never started with the intention to write a book, but I knew I had to give it all. So instead of working on projects which were given to us, I started working on my dissertation, a herculean task when six jurisdictions had to be comparatively analysed. I knew I had to maintain attendance for exams and could not pull all-nighters (which personally I love). So, I skipped some of my classes, sat throughout the whole day, and engaged in back-breaking research work and compilation. But, I am glad it was worth it and the hard work paid off.

     

    WHERE DO YOU WANT TO SEE YOURSELF FIVE TO TEN YEARS DOWN THE LINE?

    Legal academia is no longer confined to just imparting quality education. Faculties are also engaged in consultancy and advisory work. So in five to ten years, I would love for myself to be an established academician in my chosen field of specialization and create value through new avenues. It could be through publishing books and papers, value generation through consultancy for the institution and most importantly creating a conducive classroom learning atmosphere where students yearn for my lectures.

    WHAT WOULD BE YOUR PARTING MESSAGE TO OUR READERS WHO ARE PRIMARILY LAW STUDENTS AND YOUNG LAWYERS?

    My advice would be to never stop exploring. There is a no bigger teacher than one’s own curiosity. One should always be on the lookout for ‘unlearning’ as it helps to widen understanding of how a system works. And lastly, students must accept that the legal job market is not what it used to be decades ago. There are tons of options and it is but obvious that they will be confused. So trust your instincts and find avenues which match your desired skill sets. The path will follow.

     

  • Pavan Duggal, Advocate, Supreme Court, shares his views on protecting privacy, cyber security issues and enforcement of cyber laws in India

    Pavan Duggal, Advocate, Supreme Court, shares his views on protecting privacy, cyber security issues and enforcement of cyber laws in India

    Pavan Duggal is an Advocate specialising in the field of cyberlaw and e-commerce. He has been recognised as one of best cyber lawyers around the world. He has made a tremendous impact with an international reputation as an expert and authority on Cyberlaw, Cyber Security Law and e-Commerce law.

    His empanelment as a consultant to UNCTAD and UNESCAP on Cyberlaw and Cyber crime respectively, membership of the AFACT Legal Working Group of the UN / CEFAT, consulting as an expert with the Council of Europe on Cyber crime, inclusion in the Board of Experts of European Commission’s Dr. E-Commerce and his work as an expert authority on a Cyberlaw primer for e-ASEAN Task Force and as a reviewer for Asian Development Bank speaks volumes of his worldwide acceptance as an authority. He is the President of Cyberlaw Asia, Asia’s pioneering organisation committed to the passing of dynamic Cyber laws in the Asian continent. He is also a member of the WIPO Arbitration and Mediation Center Panel of Neutrals.

    He has been associated with the Ministry of Communication and Information Technology, Government of India on Cyberlaw and Electronic Governance legal issues. He is a member of Advisory Committee on E-Governance in Karnataka constituted by the Government of Karnataka. Pavan is a member of Information Forensic Working Group on e-Information Systems, Security and Audit Association.

    He heads his niche law firm Pavan Duggal Associates, which has practice areas, amongst others, in Cyberlaw, Business Process Outsourcing Law, Intellectual Property Rights and Information Technology Law, Information Security Law, Defence, Biotech and Corporate Law.

     

    HOW WOULD YOU LIKE TO INTRODUCE YOURSELF TO OUR READERS? PLEASE TELL US SOMETHING ABOUT YOUR PRE-COLLEGE LIFE?

    I would like to introduce myself as a student of Cyberlaw.  A person who is constantly trying to discover new nuances pertaining to legal, policy and regulatory aspects pertaining to the Internet, Cyberspace and the newly emerging technologies.  A scholar who has dedicated more than 23 years of his life in this space and who still believes that he is at the outside periphery of knowledge.  A person who believes that the Internet is a game-changing paradigm, which is potentially the most significant, that human civilization has seen after the advent of fire.  I have been working on various issues on the intersection of law and technology.  Hence, my path has not been like traditional lawyers.  I have chosen to create my own path on the road to discovery.  In fact, it is strange that you could never even think while in school what you will ultimately land up doing in life.  I have been the student of Delhi Public School, Mathura Road, New Delhi and did my entire schooling from that school, excelled in academics and topped the school in Humanities and was also in the merit list.  As a student, I was extremely active in extra-curricular activities including debating, music, theatre, dance, essay writing, quizzes and various other kinds of extra-curricular activities.  I won a record number of prizes in school.

     

    YOU ARE FAMOUS AS A CYBER LAW EXPERT. WHAT KIND OF WORK DO YOU CURRENTLY DO?

    It is true that today I am known as a Cyberlaw expert.  This is primarily so because of the kind of super specialization that I have acquired the area of Cyberlaw. I have worked for more than the last 2 decades in this space. I have been extensively working on the intersection of law and technology. Currently, I do various kinds of works. I advise clients on nuances pertaining to cyberspace transactions, compliances under the applicable provisions of the Indian Cyberlaw, advise on cyber/electronic transactions and the legal nuances, help companies to protect and preserve their domain names and their web presence online, do litigation for variety of clients so as to protect their legal interests, whether in the form of plaintiffs or defendants.  I write extensively and have written 102 books on various aspects of Cyberlaw and connected nuances.  I teach extensively in select law colleges and international and national institutions including the National Police Academy, National Judicial Academy, Delhi Judicial Academy and various state judicial academies.  I extensively interact with various international stakeholders on the nuances of cyberspace.

    I had been contributing a column entitled “Brief Facts” for 8 years in the Economic Times. I have extensively featured in various international and national media.  My different columns published in various media, news portals and columns include The Economic Times, The Hindustan Times, The Business Standard, The Pioneer, The Deccan Chronicle, and The Mint etc.  I have launched a Course on Cyber Security Law last year, which today has more than 9750 students from 157 countries.  I speak at various conferences, seminars and workshops.

    I am the Conference Director of the International Conference on Cyberlaw, Cybercrime &Cybersecurity which is the world’s unique Conference looking at the intersection of Cyberlaw, Cybercrime &Cybersecurity.  I am chairing the International Commission on Cyber Security Law which is looking at collating legal principles governing cybersecurity at a global level.  I am also heading the Artificial Intelligence Law Hub which is looking at the examination of cutting-edge nuances concerning Artificial Intelligence.  I am also heading the Blockchain Law Epicentre which is also looking at legalities concerning Blockchain. I am extensively working with international organizations including UNESCO, ITU, ICANN, Council of Europe, INTERPOL and many other organizations so as to contribute to the evolving jurisprudence on Cyberlaw, Cybercrime &Cybersecurity. In my humble manner, I have been trying to contribute my small inputs to pushing the envelope of evolving jurisprudence on Cyberlaw, Cybercrime and Cybersecurity.  In a nut-shell, I try to do the variety of activities all surrounding the Internet, cyberspace and legal, policy and regulatory issues connected therewith.   I advise the Government of India and its various Ministries especially the Ministry of Electronics & Information Technology, Government of India on various issues concerning Cyberlaw and am part of various governmental bodies.  I have also been part of G Gopalakrishna Working Group on Electronic Banking formed by the Reserve Bank of India which determined and set the cybersecurity standards for Banks in India.

     

    WHAT SORT OF CASES DO YOU USUALLY HANDLE?

      I handle a variety of cases on diverse issues. These cases invariably involve data thefts in the corporate sector, unauthorized transmission of data, violation of trade secrets, breach of privacy of individuals, disputes concerning electronic contracts, cybercrime prosecution and defence. I also do cases pertaining to liability arising from contravention under the law.  I advise on domain name disputes and try to get domain names back from the squatters.  I do a lot of cases for protection of reputation.  I do cases concerning cyber defamation, cyber nuisance, cyber harassment, cyberstalking and trolling and help affected persons and provide advisories.  I also do various cases pertaining to breaches of cybersecurity and the potential ramifications emerging therefrom.  I also advice intermediaries, in terms of their respective compliances on how they can limit their liability for third-party data.  I do cases pertaining to abuse of Over The Top Applications and also the social platforms like Facebook, Twitter, Instagram etc.   I also do cases for protecting and preserving digital rights of netizens.  I also file Public Interest Litigations (PIL) on legal aspects concerning cyberspace which impact the public interest at a broader level.

     

    HOW IS CYBER LAW AND ENFORCEMENT SYSTEM IN INDIA? IS IT ADDING TO THE CHALLENGES OF TIME?

    The Cyberlaw system in India has been put in place by virtue of the Information Technology Act, 2000.  India enacted this law, keeping in mind the UNCITRAL Model Law on Electronic Commerce.  The said legislation is indeed historic as it not only legalized the electronic format but also paved the way for the growth of electronic commerce and electronic governance in the country.  It also sought to cover various cybercrimes.  This law also elaborated the liabilities of intermediaries. However, in the year 2000, this law did not specifically cover the mobiles, despite the fact that mobiles had already emerged as a major factor in mainstream society.  The Information Technology Act, 2000 was amended by the Information Technology (Amendment) Act, 2008, after 26/11 Mumbai attacks.  The said amendments sought to enhance the scope and applicability of the Indian Cyberlaw to be applicable to all kinds of mobiles and communication devices. Various new cybercrimes were added and also the concept of intermediaries and their liability was more specifically well defined. Cybersecurity as a concept was distinctly added in the said law and various provisions concerning the same were also adequately put in the same.  It has been for the last more than 10 years since the amendments have taken place. However, when one looks at the cyber legal regime in the country, one finds that it has not been effectively implemented.  First and foremost, it needs to be understood that the Information Technology (Amendment) Act, 2008 effectively watered down the deterrent effect of the previous law.  This is so because, barring few cybercrimes, almost all cybercrimes were transformed into bailable offences where the accused is entitled to bail.  I was the counsel for the complainant in India’s first cybercrime conviction in the year 2003.  We had hoped that this first conviction could be the precursor of more convictions to follow. However, with the change of law and given the sloppy enforcement of the law, cybercrime convictions have effectively dried up. Today, India is seeing a famine of cybercrime convictions.  This is also primarily so because enforcement of provisions of law has not been very effective.  The way the Police is detecting, investigating and prosecuting cyber crimes, leaves a lot of potential gaps.

    Electronic evidence is not given the right kind of legal treatment, as is mandated by the Hon’ble Supreme Court of India in its various judgments. Consequently, there is a big gap between the registration of such cybercrimes and final prosecution. Majority of electronic evidence has not been able to be put in the right manner that further complicates the entire scenario.   Further, it needs to be understood that technology is a constantly growing target and technology invariably leaves the law 10 steps behind.  The problem in the Indian Cyberlaw is that despite various shortcomings, it is not effectively amended, given the newly emerging challenges that have already come up, which have not been appropriately addressed under the law.  Social media as a paradigm has not been adequately addressed.  Further, issues like cyber stalking, cyber trolling and cyber harassment are not effectively detailed in the said law.  The advent of Over The Top Applications has brought forward new challenges, which are not adequately covered under the law.  Further, the coming of new technologies like Blockchains, Artificial Intelligence and the Internet of Things have further highlighted the inadequacy of the Indian Cyberlaw. There is a need for appropriate amendments in the same so as to make it topical and relevant to the requirements of today’s times.  While it is indeed laudable that the Indian Cyberlaw has provided the legal framework for the legal validity, sanction and growth of electronic commerce and electronic governance, the fact remains that there is lot more work that is required to be done.  India as a country needs to provide utmost focus and priority to Cyberlaw frameworks since the Indian Information Technology Act, 2000 is special legislation and it supersedes any other law prevailing for the time being in force.  Currently, I do feel that due to the advent of emerging technologies, the inadequacy of the Indian Cyberlaw has not been effectively brought forward. It is high time to make the Indian Cyberlaw more topical and relevant, by updating it and incorporating new offences so as to deal with new technological challenges.

     

    HOW DID YOU BUILD YOUR PRACTICE? THREE STEPS YOU HAVE TAKEN THAT MADE THE DIFFERENCE.

     I began as a civil and corporate lawyer.  I started practice in Tis Hazari Court, Delhi and then moved on to the High Court and Supreme Court.  I was initially interested in technology. In the early 1990s, I got certain software clients and that retriggered my interest in technology.  The advent of the Internet provided a completely new game-changing moment in my life.  After being overwhelmed by the media in the first couple of months, I quickly realised that there are a lot of legal, policy and regulatory issues that need to be appropriately addressed and I started working on the same.  At that time, there was not much work happening in India and I started working with the international players.

    Towards the end of 1990s, the Government of India was preparing the Information Equipment Bill, 1999.  I got active and started working with various stakeholders including the Parliamentarians and the Government of India so as to give inputs on the Bill.  I also started working with the Ministry of Electronics & Information Technology, Government of India on Cyberlaw issues.  All this time, I had started doing work on domain name disputes.  The coming of the Information Technology Act, 2000 provided a new area to focus on, where I focused. As time passed by, clients came back and said that they wanted us to expand the scope of services that we were providing. So, I swam with time and kept on expanding the bouquet of services that were provided to clients and slowly, the practice grew. Today, I am primarily known because of my super-specialization in Cyberlaw, Cybercrime and Cybersecurity.  My law firm PavanDuggal Associates, Advocates also does commercial and civil litigations as well.

    As regards three steps that I have taken that made the difference, I believe that Almighty has got its own ways of getting work done from us. I distinctly believe that we all are puppets on the stage of life, for whom all work has been predetermined.  Looking back, the three steps that made the difference for me would include the following:

    I was driven with my passion for technology and its intersection of law and technology.  I followed my passion and my heart and landed up where I am currently standing.

    My perseverance and hard work.  A lot of people only try to see the glossy side of legal career.  However, it takes a huge volume of untiring effort to make one’s position and contribution.  I have been extensively doing hard work which potentially could also be a contributing factor to my current position.

    Patience is also one factor that has helped me. A lot of people often run out of patience and do not have the patience to pursue their passion for their dreams, if they don’t get early success. There were numerous hiccups and massive earlier failures that I actually experienced but I felt that cyber is the next domain of the future and I need to focus. I patiently waited and kept on working silently in this space.

     

    COULD YOU TELL OUR READERS ABOUT THE FIRST TIME THAT YOU APPEARED IN COURT?

     I remember the first time when I appeared in the Court. That was immediately after passing out from LL.B. My first appearance was in the Tis Hazari Court, Delhi.  I was nervous.  I was appearing before a Trial Judge and while I was reading the case, I was slightly confused as to how to address the Judge, whether the Judge should be addressed as Your Honour or My Lord.  I had done a lot of preparations for the case and ultimately, when the hearing of the case happened, it took a couple of minutes.  I did fail initially because of the slight nervousness but as the case began, I confidently stated what I had to state and the Judge also asked the other side about the proposition and thereafter proceeded to pass an order.  That particular appearance is still vivid in my mind.  It was a completely different experience from the traditionally filmy legal appearances that we are used to seeing in the Bollywood and Hollywood films.  However, I distinctly remember extensively reading the file prior to my first appearance. I also told myself that I need to be most updated with all the aspects of the file, and worked towards that direction. It was my very interesting first appearance.

     

    WHY DID YOU CHOOSE CYBER LAW AS YOUR SPECIALISATION?

     I chose Cyberlaw as my specialisation because I felt that cyberspace is the paradigm of the future.  I was very clear that the world is increasingly going more and more digital and therefore if I have to look in the future, I must be fully prepared for the same. Hence, I chose Cyberlaw as my specialisation since I felt that over a period of time, my specialisation will increasingly have to grow very significantly and will even land up having a large impact, on other specialisation as well.

     

    MANY LAWYERS ARE INTERESTED IN CYBER LAW. WHAT WOULD BE YOUR ADVICE TO THOSE WORKING AS CYBER LAWYERS?

     My advice to lawyers who are interested in working as cyber lawyers is that there is a lot of scope in Cyberlaw in the coming times.  However, everything is not as rosy, as it appears.  There is a lot of hard work, required before one can achieve the desired destination.  There is an increasing need for cyber lawyers as more and more stakeholders are increasingly using the digital format and are using cyberspace as a central theme point for all their operations, activities and initiatives.  As time passes by, the volume of work is constantly going to increase. So if you are interested in Cyberlaw, this is the right time to get started and be involved in this area.

     

    HOW IMPORTANT IS IT TO HAVE MENTORS FOR A YOUNG LAWYER IN STARTING HIS CAREER? WHO WERE YOUR MENTORS AT THE START OF YOUR CAREER?

     It is very important for a young lawyer in starting his career to have mentors.  Mentors are not just pillars of strength but also inspiration, encouragement and source of advice.  One should not believe that one knows everything in the starting of the career. On the contrary, after passing out from the law college, it is very important to unlearn what you have learnt and then relearn aspects in the profession.  Mentors help guide and supervise young lawyers and also put them in the right direction.  The brilliant aspect about mentors is that mentors can use their lifetime experience to guide youngsters to reach their best potential.  My mentor in the starting of my career was my father and he still continues to be my mentor.  My father is a practicing Advocate.  I looked upto him as my hero, as my idol and as my mentor.  Consequently, I started looking up to him for all advice and inputs to get started and what to do in important cases that I am doing. My father still plays a very significant and invaluable role in my evolution as a lawyer. He is the rock-solid pillar to whom I always go back in the event of any challenge.  He appropriately guided me in the right direction and also warned me on how to face various challenges that lie ahead in my legal practice.

     

    PRIVACY HAS BECOME VERY FRAGILE. HOW INDIA SHOULD PROTECT PRIVACY OF CITIZENS?

     Privacy is an integral part of our human existence.  No wonder, when the Hon’ble Supreme Court has declared the right to privacy as an integral part of the fundamental right to life, it is effectively ventilating the hopes and aspirations of millions of Indians.  India needs to do extensive homework to protect and preserve the privacy of its citizens.  Currently, India does not have a dedicated law on privacy.  The Indian Information Technology Act, 2000 is not a law on privacy and only has provided lip service to privacy.  There is a need for a dedicated law on privacy that would help define the roles, duties and responsibilities of various stakeholders. Personal and data privacy needs to be adequately specifically addressed.

    As a nation, we should not confuse privacy with data protection. Data protection is important but privacy is critical to human existence, human dignity and human life.  As a nation goes forward, we need to have specific courts who only look at privacy related violations so that privacy violation matters are handled with utmost care in a very gentle manner and with distinctive victim friendly approach. With now increasingly the Government being straddled with the duty to ensure that the right to privacy is effectively implemented, the Government has also a lot of work to do.   India is currently in the process of coming up with a new Personal Data Protection Bill. While that could address some aspects of privacy, but India needs to do far more. Privacy would require the adoption of distinctive new approaches for the purposes of adequately addressing it.  Also, stringent, effective and efficacious remedies need to be provided to victims whose privacy, both data privacy and personal privacy is infringed or violated.  India needs to provide for a regime of exemplary damages so as to give a right message to all stakeholders, that privacy of citizens cannot be taken for granted and is a value of human dignity that needs to be respected and handled with utmost care, caution and regard.

     

    WHAT IS THE CURRENT STATE OF CYBER SECURITY IN INDIA?

     Today, India as a nation has not been giving its best efforts to the cause of cybersecurity. In fact, India as a nation is giving only lip service to cybersecurity.  India did come across with its National Cyber Security Policy, 2013 which was a remarkable document containing good motherly statements and the Policy of the Indian nation on cybersecurity. However, the last 5 years have shown that the National Cyber Security Policy of 2013 has only remained as a paper-tiger. In addition, we need to appreciate that India does not have dedicated legislation on cybersecurity, in comparison to a large number of other countries.  The Indian Information Technology Act, 2000 is not a cybersecurity legislation.  This is despite the fact that cybersecurity as a concept has been defined and introduced under the Indian Information Technology Act, 2000 by virtue of the Information Technology (Amendment) Act, 2008.

    At a time when countries like China, Singapore, Vietnam, Egypt etc. are racing miles ahead in terms of coming up with detailed and elaborate cyber security legislation, India as a nation has been left behind.  Further, as a nation, we are also not clear as to whose responsibility is cyber security.  A large number of people in India believe that cyber security is a governmental responsibility, without realising that it is not a correct picture. Cyber security is a collectively shared responsibility for all stakeholders. The Government has to play an important role in cyber security, but other shareholders have to increasingly also play a very significant role in this direction.  India as a nation needs to define the rights, duties and responsibilities of various stakeholders. Indian networks and systems are constantly under attack and as a nation, we have not been very effective in terms of repelling those attacks.  There is a need for a dedicated cyber army in India who can actually protect and preserve cyber security attacks, both in the actual world and also in cyberspace on a 24/7 basis.   We still don’t have a dedicated cyber security authority in the country.  Cyber security is a shared baby and is a subject of turf war amongst various ministries.  India as a nation needs to quickly realise that in case if we are not effectively working on protecting and preserving cyber security, it could potentially start adversely affecting the sovereignty, security and integrity of India in the coming times.

     

    WHAT IS YOUR OPINION IS ON ONLINE DISPUTE RESOLUTION. DO YOU THINK IT WILL BECOME REALITY ANYTIME SOON IN INDIA.

     I feel online dispute resolution is the way going forward.  We have seen the success of online dispute resolution for protection of domain names with the effective implementation of Uniform Domain Name Dispute Resolution Policy (UDRP) of the Internet Corporation for Assigned Names & Numbers (ICANN).  We have also started seeing the beta use of online dispute resolution. It will become a reality very soon with the coming of a few years in India.  In fact, cyber arbitration should be an important element in online dispute resolution in the coming times.

     

    WHAT IS THAT ONE CASE THAT HAS LEFT A LASTING IMPACT ON YOU?

     The one case that has left a lasting impact on me is the case that I did for an online card processing company. The company suffered a cybersecurity breach and the said breach was extremely complicated and sophisticated. The breach led to not just theft of data but also subsequent cloning of credit cards of some high net worth individuals. The said cards were subsequently cloned and sent to different countries. In more than 2 dozen countries, the said cards were used in massive global operations all aimed to physically withdraw millions of dollars from ATMs across the world.  Our client lost millions of dollars. The client was however insured. This case demonstrated to me the enormity of cybercrimes through various highly professionally organised and ultra sophisticated cybercrime gangs.  It also showed the inadequacy of organisations and companies to deal with cybersecurity breaches and new challenges of cybercrimes. This case brought to my attention the enormous manipulations of ATMs and planning done by cyber criminal gangs and also showed me the ground reality that in the present and in the coming future, there is nothing known as complete security and that nobody is secure. This case further sensitised that everybody is capable of being hacked and therefore now the new norm has to be to accept the fact that breaches of cybersecurity will be a part of our day-to-day lives. How can we concentrate on cyber resilience and how can we be up and about after being breached by the cyber attack, has to be the new focus area.  This case has been an important case which made me understand the impermanence of today’s present scenario.  Just because everything is going fine, there is no guarantee that these things will keep on going fine tomorrow. On the contrary, change is constant and will be so, in the lives and times of stakeholders in the digital and mobile ecosystem.

     

    HOW CAN A JUNIOR WISHING TO WORK UNDER YOU GET IN TOUCH WITH YOU? WHAT QUALITIES WILL YOU LOOK FOR HIRING A JUNIOR?

     Any junior who wishes to work under me could get in touch with my law firm PavanDuggal Associates, Advocates.   He/she could contact us at email ID info@pavanduggalassociates.com or could also reach out to me personally at my email ID pavan@pavanduggal.com and pduggal@vsnl.com.  I am looking for the hunger and passion to learn as important qualities of any junior that could work for me. A lot of juniors today are not willing to learn.  They come out under the presumption that they know everything and due to overconfidence, often land-up missing important milestones.  Hard work, perseverance, patience, dedication, discipline and good interpersonal relations are important attributes and qualities that I look forward to while hiring a junior.

     

     WHAT INSPIRES YOU TO WRITE? HOW DOES BEING AN AUTHOR OF NUMEROUS BOOKS AND ARTICLES HELP YOU IN YOUR CAREER?

     I believe that life is short.  We will all be dead and gone tomorrow. Hence, it is very important to write your thoughts and express them in print so that they can be your contribution to society.  I get inspired to write because I believe that my thoughts must be well captured and communicated to other stakeholders.  I have had a flair for writing from the very beginning.  I love to write as I feel that writing is the best way of sharing experience, knowledge, perspectives and opinions.  I write rigorously and regularly. Over the last more than 2 decades, I have authored 102 books on different aspects of Cyberlaw, Cybercrime &Cybersecurity and connected legalities.  In addition, I have written a number of articles that have appeared in various newspapers, online media platforms, websites and other publications.

    Being an author of articles and books will help you in your career. People see you with a different perspective and in a different light, once you become an author.  They start giving you more respect and regard and also your books then become ambassadors of your capacities and capabilities. Also, writing books demonstrates your authoritative command on your subject and hence contributes to your career.

     

     YOU ARE A PROLIFIC WRITER. DOES IT HELP A LAWYER TO WRITE ARTICLES AND BOOKS?

    As a prolific writer, I believe that it does help a lawyer to write articles and books.  We have to traditionally change our mindsets about the legal profession. The perception that lawyer must only go and argue matters in courts is an old perception and needs to be slightly changed with the times. Today, lawyers are expected to do multi-dimensional roles. Hence, they must not only have people friendly soft skills but also have appropriate contributions to give back to society. Writing books and articles is one such contribution that one can make in terms of giving back to society.  Your books and articles could get read by members of the public who will then become your potential clients and will start forming an opinion about you.  In the event of any challenge and issue, they would come back and seek your opinion.  So over a period of time, a lawyer which writes books and articles not only tends to enhance his/her capability but also tends to contribute to the growth of evolving jurisprudence.  Having authored 102 books and numerous articles, I believe that it definitely helps lawyers to write articles and books.

    In the end, I would just like to say that the world is a constantly changing paradigm. Everything is in a constant state of flux. Hence, the focus of any lawyer has to be to try to update his/her skill-sets. We must unlearn, relearn, unlearn, relearn all the time.  This is so because the coming times are very challenging times ahead. The advent of new technologies will bring in, not only new challenges but far more opportunities as well. It requires a vision to understand and identify some key opportunities that the coming future will bring across. The legal profession has been one of the best professions in the world. I believe that with the advent of technology and cyberspace, it will continue to grow by leaps and bounds.  Cyberlaw, as a discipline, will increasingly contribute in the evolving digital law jurisprudence at global and national levels.

     

     

     

  • Pratik Bakshi, Business Development Associate, J. Sagar Associates, on launching World Law Forum, and resolving Business and Human Rights disputes through arbitration

    Pratik Bakshi, Business Development Associate, J. Sagar Associates, on launching World Law Forum, and resolving Business and Human Rights disputes through arbitration

    Pratik Bakshi graduated from National University of Advanced Legal Studies (NUALS), Kochi in the year 2018. He is currently working as a Business Development Associate with J. Sagar Associates, Gurugram. He has founded several organisations, such as World Law Forum, the Network for International Law Students, and The Union Debates (previously, Indian Union Debate Forum). He is one of the few people working extensively on Business & Human Rights in India and is a member of the Sounding Board of the Hague Rules on Business and Human Rights International Arbitration, a committee working on establishing a system to adjudicate business and human rights disputes through arbitration.

    In the past, he has worked with Ram Jethmalani as his PR/Social Media Manager; and advises various law-focused start-ups, including The Negotiation Academy, The European Centre for Career Education etc. Through his latest venture, World Law Forum, he aims to bring a transformation in the world through law. World Law Forum has since its foundation worked on crucial and niche areas, such as Modern Slavery in Australia and Anti-SLAPP Legislation in India.

    In this interview, he talks to us about-

    • His law school experience at NUALS;
    • His internship experiences with Mr Mahesh Jethmalani, Khaitan & Co. and J. Sagar Associates;
    • His experience as the founder of Network for International Law Students and World Law Forum;
    • Prioritising works in law school;
    • His appointment experience as a Business Development Associate with J. Sagar Associates; and
    • His opinion about resolving human rights disputes through arbitration.

     

    HOW WOULD YOU LIKE TO INTRODUCE YOURSELF TO OUR READERS? PLEASE SHARE YOUR ACADEMIC AND PROFESSIONAL BACKGROUND.

    I like to introduce myself as a lawyer by profession and an entrepreneur by passion. I graduated earlier this year from the National University of Advanced Legal Studies (Kochi) and I am currently working at J. Sagar Associates. Since my first year at law school, I have founded six organisations, half of them were successful and the other half not-so-successful. But I guess, that’s part of being an entrepreneur.

    WHY DIDN’T YOU OPT FOR CONVENTIONAL DEGREES IN ENGINEERING OR MEDICINE?

    To begin with, I wanted to be an automobile engineer and had made up my mind to develop the next cutting-edge car design and technology. I remember being super-excited when we were about to start our Physics lesson on ‘Torque’ in school. Almost needless to say, I didn’t understand anything, and after a few weeks, I made a conscious decision that it was not my thing. Well then, like many others, I chose law because I didn’t fit in elsewhere. I also heard that law graduates made good money compared to other graduates, so that helped me make my mind a bit as well. Looking back, I would say that it was one of the best decisions that I have ever made in my life.

     

    TELL US A BIT ABOUT YOUR TIME STUDYING LAW AS AN UNDERGRADUATE AT NUALS, COCHIN. ARE THERE ANY MEMORABLE MOMENTS OF LAW SCHOOL, WHICH YOU WOULD LIKE TO SHARE?

    When I started law school, there was absolutely nothing to do there. We had classes for six hours till 04:30 in the evening; and the library would shut at about 06:30 if I remember correctly. There was barely any time and resource for the students to take on any extra-curricular or extramural activities. Things changed and became better after a year or so with some positive reforms coming in, but personally, I had already lost hope/interest in whatever goes on in law school. By then I had already started the Network for International Law Students (NILS), which kept me busy. It was a new organisation then, and I was excited to work with students and lawyers from across the world. Then during my third year, I contested for being the Debate Secretary of the law school and lost (by a huge margin, I remember). I was the most experienced in organising debates, or would I believe, but then you know how things work in an election. So, I started another organisation called the Indian Union Debate Forum along with a classmate of mine, who was equally frustrated with the whole high-drama politics that was going on. The idea was to introduce the Oxford/Cambridge Union-styled debates in India. We had our first debate three to four months later and were thrilled by the response that we got. We got Ram Jethmalani, Subramanian Swamy, Manish Tewari, Madhu Kishwar, KTS Tulsi, Pinky Anand among others as speakers and debate against each other – a never seen before the scene in India. So, it was probably the most engaging and exciting period of my law school life.

    INTERNSHIPS PROVIDE STUDENTS WITH THEIR FIRST EXPOSURE TO THE PRACTICAL ASPECTS OF THE LEGAL PROFESSION. COULD YOU TELL US ABOUT THE INTERNSHIPS YOU TOOK UP, AND WHAT YOU LEARNT FROM THOSE EXPERIENCES?

    Internships are helpful because they help you realise what you are made for. For me, it made me realise that I am certainly not made for transactional law. Of all the internships that I have done, I have enjoyed three of them thoroughly – Mahesh Jethmalani, Khaitan & Co, and J. Sagar Associates. When I was an intern under Mahesh Jethmalani, there wasn’t a lot of work for the interns to be honest, but the aura of watching Jethmalani Jr. in the court and see him argue made up for it. Plus, you got to be involved in all the cases that you see every day in the news, so it was all very exciting. Next up, Khaitan & Co, I was with a great bunch of people and enjoyed all the work that was given to me – primarily disputes matters. And lastly, JSA because it introduced me to the area of business development for law firms in which I am currently involved now.

     

    YOU ARE THE FOUNDER OF THE NETWORK FOR INTERNATIONAL LAW STUDENTS (NILS), A STUDENT-RUN BODY WHICH HAS ITS PRESENCE IN 26 COUNTRIES. COULD YOU PLEASE TELL US A BIT ABOUT THIS ORGANISATION AND WHAT MOTIVATED YOU TO ESTABLISH THIS ORGANISATION?

    As said earlier, when I joined law school I always felt that one has to take a lot of his/her own initiative to keep herself engaged. I believe it’s the same with most law schools in India and other developing countries. I started NILS with a focus to provide something to students especially from developing countries to farther the exposure and engaging themselves in activities which otherwise they wouldn’t in their law schools. We did some interesting events and exchange programmes which were highly praised and received wide attention. I was fortunate to come across a bunch of enthusiastic students who believed in my idea and took it to the next level; and as you said correctly, currently we have over 5000 members in 26 countries across all continents, except Antarctica of course.

     

    LATELY, YOU CO-FOUND WORLD LAW FORUM. WHAT STIRRED YOU TO LAUNCH THIS ORGANISATION AND CAN YOU TELL US A BIT ABOUT ITS GOALS?

    I was set to retire from NILS in 2018. Many people advised me not to retire as it was my baby, but then I wanted NILS to grow as a democratic organisation, run by and for law students. Therefore, it did not make sense for me to stay there forever, after ceasing to be a law student. I wanted to take my experience to the next level and founded World Law Forum, along with a colleague of mine who I worked briefly in NILS. The idea behind World Law Forum is to engage people in discussions on areas of law which are rarely discussed upon, either because people are not aware of them or because they think they are not important enough. Therefore, the core-topics that we work on are cutting-edge and will be the most relevant topics in the next decade. We organised the first-ever conference on Modern Slavery in Sydney earlier this year, after the Modern Slavery Act coming into force in the New South Wales. In India, we organised India’s first-ever conference on Strategic Lawsuits Against Public Participation (SLAPP), with over 620 participants. Therefore, the areas of our work are generally the “first-ever” or “among the firsts”, and we try to promote such areas of law, which would be relevant in the future. So far we have got a really good response, with eminent people including Head of States, Noble Laureates, Judges and the most eminent lawyers, journalists and academics having attended our event.

    Another thing that led to the foundation of World Law Forum is that we felt that the legal profession is a bit isolated and most events organised in the legal sector involve mostly members of the profession and barely from other professions or walks of life. However, the law is something which affects everyone and therefore ours is a platform for people from all walks of life to come together and discuss the law.

     

    WAS IT DIFFICULT FOR YOU TO RUN THESE ORGANISATIONS CONCURRENTLY WITH YOUR LAW SCHOOL WORK? HOW DID YOU MANAGE TO HANDLE BOTH THE WORK SWIFTLY? DID YOU EVER PRIORITISE THESE WORKS OVER YOUR ASSIGNMENTS AT LAW SCHOOL?

    It was not difficult at all. Rather, it was the most fun part of my law school. You have to prioritise your work and that’s what I did. There were some subjects in our curriculum that I was not interested in, so they were low on my priority list. While, there were some subjects and professors I really liked, and I focussed on them. And most students in India cover most of the curriculum a couple of nights before the exam, I was part of the same gang. So, it was all good. At least it helped me learn the skill of multitasking which is very essential.

     

    DO YOU FEEL THAT HUMAN RIGHT DISPUTES ACROSS THE GLOBE CAN BE RESOLVED THROUGH ARBITRATION INSTEAD OF COURTS? IS ARBITRATION THE PROPER ADJUDICATORY MECHANISM TO RESOLVE THESE DISPUTES?

    I am a member of the Sounding Board of The Hague Rules on Business and Human Rights Arbitration. The Working Group is working on developing this system where Business and Human Rights disputes can be solved via International Arbitration. The Drafting Committee is chaired by Bruno Simma, a former Judge of the International Court of Justice.

    So, most of the Business and Human Rights cases arises from countries or regions where the courts and other mechanisms have failed to deliver justice, which can be because of lack of courts or corrupt courts etc. Even where competent courts are available, Arbitration offers an attractive alternative with speedier procedure and awards that are potentially enforceable throughout the world under the New York Convention.

    We are often asked why businesses would who are accused of human rights abuses chose to submit the disputes to arbitration. We must understand that today, the consumers have started looking into the business ethics of companies before buying products and have in the recent past seen boycotting of products of companies accused of human rights abuses. Therefore, when a corporation’s reputation is questioned, the management might prefer speedy resolution of the dispute, rather than a lengthy litigation in court. In the case of arbitration, the parties may also choose judges with expertise in Business and Human Rights, rather than submitting the matter to the court where the judge is chosen by “the luck of the draw”. An expeditious and fair hearing would limit the reputation damage and can also help the victims in accessing justice faster and more conveniently.

     

    YOU HAVE WORKED AS PUBLIC RELATIONSHIP MANAGER WITH THE OFFICE OF RAM JETHMALANI AND HAVE BEEN ADVISING THE NEGOTIATION ACADEMY ON ITS BUSINESS EXPANSION. WHEN DID YOU DEVELOP YOUR INTERESTS TOWARDS THESE SORT OF BUSINESS DEVELOPMENT WORKS?

    I have known Mr Jethmalani for a while now, as he was the first Patron of NILS. When he resigned from his own newspaper, The Sunday Guardian after an editorial dispute, I suggested that he should consider having his own blog, considering he already has a mass following. He agreed to the idea and I started running his blog/website, and slowly was assigned the task to handle his media accounts. As far as the Negotiation Academy is concerned, I had invited Claudia Winkler to India for a series of workshops on negotiation targeted at law students. Until then, she had mostly trained lawyers; but after seeing the potential in the student market, we decided that an academy on negotiation with a focus on training students would be great. And so, I’ve been involved with the Negotiation Academy from the scratch and advise on the business strategy.

    For most of the last five years of my life, I’ve been doing business strategy and development for the different organisations I have been involved with – so my interest in it evolved over the years.

     

    HOW DID YOUR RECRUITMENT TAKE PLACE AT J. SAGAR ASSOCIATES? WHAT DOES A TYPICAL WORKING DAY LOOK LIKE FOR YOU?

    I interned with J. Sagar Associates during the final year of my law school and it seemed to be a great place to work for. As I was deciding on what career path should I choose after law school, JSA seemed to be a great stepping stone as I had always admired the principles on which the firm has been founded – of being democratic and providing equal opportunity to everyone; which is a rare sight in the legal industry in India. And so, I showed my interest to have a permanent position in the firm and after sending my CV etc, and I was selected to work for the firm.

    I am responsible for the submissions that the firm makes to different journals, improving market-visibility, working on proposals and pitches, analysing the business of peer law firms, identifying conferences and events which the firm can participate in, and forming other marketing and branding strategies.

     

    DO YOU THINK YOU LAW DEGREE PROVIDES YOU WITH AN EDGE IN PURSUING YOUR WORK AT J. SAGAR ASSOCIATES?

    The work at the firm is not directly related to law, but then having studied law always provides you with an edge, since it takes you considerably lesser effort in understanding how a law firm works, what visibility is essential for a law firm and what do the clients look for.

     

    PLEASE SHARE SOME ADVICE TO YOUNG LAW STUDENTS WHO WISH TO HAVE A CAREER IN ENTREPRENEURSHIP?

    I have always followed the principle of ‘Zero to One’ by Peter Theil, which basically means that to be successful in entrepreneurship, you must be the first in the market. If you are just copying someone else or trying to do what already exists in the market, you are only one in the ‘n’ number of competitors. While if you’re coming with an innovative product or service, you are the only one in the market, you get the first-movers advantage and almost enjoy a monopoly till someone else comes up. Therefore, to be successful in long-term, you must be innovative and work on something which is missing in the market; or provide an out-of-the-world perspective/angle to an existing product or service. This applies to all sectors. Even for law firms, one must show how one’s firm is different from its peer law firms. So, you need to find your USP and start working on it at the earliest. Don’t overthink – just go with the flow. You may want to make your Plan A and Plan B, but in entrepreneurship, mere Plan B is not enough, and you might need to plan yourself until Plan Z or even further. But as you start working on it, you learn to improvise and move on. Patience is supremely important. Don’t worry about funding because if you have a solid plan/idea, money would come in from one side or the other. And the best time to start working on it is while you are studying because there’s not much at stake, you have more time and can take risks.

     

    WHERE DO YOU SEE YOURSELF TEN YEARS FROM NOW?

    It’s a tough question. I don’t generally think that far away. But I would say I see myself as an entrepreneur who has brought at least something valuable to the world. Ticked off my bucket list. Maybe, politics? But I know that I would be a really bad fit in there.

     

    WHAT WOULD BE YOUR PARTING MESSAGE TO OUR READERS WHO ARE PRIMARILY LAW STUDENTS AND YOUNG LAWYERS?

    Work towards what defines you. Just because you went to law school does not mean you have to be a lawyer. There are so many more opportunities out there if you can convince yourself that it is worth that tiny risk. Parents are always harder to convince, but then they will be convinced in a few months if they see you making a living and happy with what you are doing.

     

  • Bivas Chatterjee, Special Public Prosecutor, Govt of WB, on challenges in cyber law and skills to become a good cyber lawyer

    Bivas Chatterjee, Special Public Prosecutor, Govt of WB, on challenges in cyber law and skills to become a good cyber lawyer

    Bivas Chatterjee qualified in Law from University of Calcutta in the year 1997, thereafter he pursued his Masters in Law from the Kakatia University.  He is currently Special Public Prosecutor in Cyber Laws and Electronic evidence related cases, engaged by Government of West Bengal. He has over sixteen years of professional experience and has experience of working in cyber law. He deals with major Information Technology, telecom and infrastructure companies. He is also the author of Electronic  Evidence, Cyber Criminal Manual, Cyber Security and The Law, Cyber Contract(Legal Analysis), Dense Cloud( Legal Analysis of Cloud), Information Technology Manual, Your Ultimate Protection Guide, Cyber Adjudication. CID, West Bengal got its first conviction in the case where he was the special public prosecutor. He shares the challenges and experiences being a cyber lawyer in India.

    In this interview, he talks to us about:

    • Challenges faced in cyber law
    • The importance of cyber awareness in the digital world.
    • The skills to develop to become a good cyber lawyer
    • Combining technology with cyber law

     

    PLEASE EXPLAIN TO OUR READERS: WHAT IS CYBER LAW? DOES THIS INCLUDE TECHNOLOGY LAW?

    Summarily law, which governs the cyber/virtual world, is cyber law in common parlance. As cyber world has taken an unprecedented proportion, it has now various sub-structures. For example, people say that today it is a data world and to govern the data world, especially in this big data world, we have in USA, ECPA or other legislations to govern various data-breaches.

    In my opinion it is purely a technology law or it can be coined as techno-legal subject. We know technology runs much faster than appropriate legislation to come and that is why there is a clear constrain between law and technology and hence the present subject requires a thorough techno-legal-experimental attitude and flair to solve various legal issues or problems.

     

    WHAT KIND OF WORK DO CYBER LAWYERS DO?

    The areas of works are limitless and also unexplored till date. A cyber lawyer can fight the cyber crime related cases (be in defence side or as prosecutor, in prosecution side). Actually specking every modern day lawyer should have a fare bit of understanding on cyber related matters. Even in civil suit, namely matrimonial suits, etc., the litigants are coming with Facebook pages or other various types of electronic evidences. The application of electronic documents in every spheres of legal world is now inevitable.

     

    ARE THERE DIFFERENT KINDS OF CYBER LAWYERS WHO DO DIFFERENT KIND OF WORK LIKE THERE ARE DEAL LAWYERS WHO SPECIALISE IN DIFFERENT KIND OF DEALS?

    Cyber lawyers can practise in various civil as well as in criminal cases. Cyber lawyers can also give advice to the lawyers in various fields and can also share their knowledge with various LEA, academies etc. The prospect is growing everyday.

     

    IS A CAREER IN CYBER LAW VIABLE? WHAT KIND OF OPPORTUNITY IS THERE FOR YOUNG LAWYERS IN CYBER LAW?

    I have already discussed that present day lawyers can not proceed with their jobs without a fair bit of knowledge in this techno-legal field. The next generation legal fields require huge number of cyber-lawyers who will assist the judicial system in various ways in Courts apart from various in house legal jobs.

     

    HOW DID YOU MAKE A CAREER IN CYBER LAW?

    Being a first generation practitioner, when I started my career, I started with telecom industries. In the year 2002 I was engaged as a lawyer in a very famous telecom company in West Bengal and lateran one by one other telecom companies engaged me as their lawyer. In the year 2008 I have dealt with one of the first case of cyber corporate espionage between two very famous telecom company and later in the year 2010, I single-handedly dealt with one of the famous defacement case of a world renowned telecom company, spreading entire India, on behalf of the company. It was one of the first and biggest success in cyber crime related cases in the eastern India. Then onwards, I simply fall in love with this subject and it has become rather passion than to only profession. That time I could foresee the potential of this subject and since 2012, I have been engaged with all the various prestigious academies in India, I used to speak in those classes or seminars, that the future lies in the digital/electronic cases. I love to see that what I have thought and predicted years before, has actually proved to be truth. Though I was from the science background but not from information technology background, I have to upgrade and update myself to the present day changes in this filed. Actually technology moves mush faster than law or legislative changes or amendments. Even today, everyday I have to learn new changes taking place in this world.

     

    WHAT WERE THE FIVE BIGGEST CHALLENGES YOU FACED ALONG THE WAY? HOW DID YOU OVERCOME THEM?

    From day one I have faced various challenges in this field and I have to make over them in various ways. The following will make things clear:

    • In the yearly days, dealing with only cyber laws would not suffice for my living and I had to do other conventional cases along with the same to sustain my family. It was very tough and struggling period.
    • The law-enforcement machineries in the beginning was not ready, which they are now, to welcome the changes in the legal and other related fields. In various cases, there was lacuna in investigation for want of sufficient knowledge to collect, preserve and present digital/electronic evidences. For the last five years or so, I have trained more than thousands law enforcement officers in India, written books on how to solve and investigate various types of cases so that the evidence can be presented before the Learned Court.
    • The application of E-evidence in the existing conventional fields, like paper-oriented court system, was and still is a challenge. To make things uncomplicated, I have started to file written argument in details highlighting the recent development in these fields. I have been taking various classes covering the entire area/domain for learned judicial officers and public prosecutors.
    • To make things easier I have also written various books covering various areas of this techno-legal field. I have my blog/page under Facebook under title, “Cyber Crime Awareness Campaign”, through which time to time I post and share various articles, so that people specially the legal friends get help.
    • Finally, as I am the only Special Public Prosecutor in cyber-crime and electronic evidence related cases in Bengal today, I have very hectic schedule in everyday life and I have to continue my study in various related fields, which I have to do in my way to various Ld Courts sitting in vehicles through mobile or laptop. Everyday I have to work 16 to 18 hours to keep up with my hectic schedule.

     

    WHAT COURSES, BOOKS WOULD YOU RECOMMEND FOR A LAW STUDENT LOOKING TO SPECIALISE IN CYBER LAW?

    There are lot of books but students have to go through the contents and look into books which contain the practical-approach-oriented materials before purchasing. The best way to learn is to look into the various resources available in the internet but they should verify them and if possible cross-check with other resources. The student should have interest in technology, specially software development. I love to code everyday in my favourite languages like python, javascript etc.

     

    IS IT IMPORTANT TO GET A DEGREE OR DIPLOMA IN CYBER LAW?

    In my opinion there is no need to get a degree or diploma, rather a law degree is enough. The online certifications on various new fields are more useful than any diploma. The fundamental concept matters most.

     

    HOW DO YOU KEEP YOURSELF UPDATED GIVEN THAT CYBER AND TECHNOLOGY LAW IS AN ALWAYS EVOLVING FIELD?

    It is an ever-changing world. The platform or technology in buzz today may be obsolete tomorrow. I am sure the knowledge, which I acquire today after a lot of arduous efforts, is of no use tomorrow. Technology moves much faster than legal amendments. Everyday I dedicate at least three to four hours to study technology and sometimes I felt frustrated that my study-hours cover more technology study than law. I think law is more interpretation than only the statues and hence for those areas I need to allocate times to study. I have to allocate more time on real life problem-solving issues, like how the security breaches occur, the technique of hacking, the data-breaches etc.

     

    WHAT BLOGS, JOURNALS OR WEBSITES DO YOU FOLLOW?

    Various online website / blog of USA, Canada and European Union etc. dealing with this techno-legal world.

    I have mentioned details of the url/links in my books, students can follow those links.

    Study through you tube or Google article related to this field.

     

    IF I AM INTERESTED IN CYBER LAW, WHOM SHOULD I FOLLOW ON TWITTER AND LINKEDIN IN YOUR OPINION?

    You go through works of various persons and can follow one you think credible. You can follow me at:

    https://www.linkedin.com/in/bivaschatterjee/

    bivas.chatterjee@gmail.com

    https://twitter.com/cybercrimemanua

    https://www.facebook.com/bivas.chatterjee.5

    https://www.facebook.com/awarenesstocyber/

     

    WHAT ARE THE TOP FIVE SKILLS TO DEVELOP IF I WANT TO BE A GOOD CYBER LAWYER?

    The following top 5 skills are desirable from a cyber lawyer:

    • Tenacity and eagerness to learn new things everyday, specially new development in this field.
    • A little bit thorough knowledge of computer system specially hardware details of computer, mobile, IOT devices etc.
    • A little bit thorough knowledge of operating software, other computer software especially in depth knowledge of at least the grammar of a single computer language i.e knowledge of coding.
    • A little bit thorough knowledge of networking system specially web-development, network protocols, various frameworks and at least one server-side and one client-side language, namely php, javascript, nodejs etc.
    • A little bit thorough knowledge of cyber and electronic evidence related laws in India and beyond India, various case studies, case laws related to that.

     

    WHO ACCORDING TO YOU ARE THE BIGGEST INFLUENCERS IN CYBER LAW IN 2018?

    There are various stake-holders who have the biggest influences in cyber laws and some of them are as follows:

    •  Law enforcement agencies that can ethically hack and solve the cyber crime related cases.
    • Intermediaries i.e. various online service providers as defined in section 2(w) of Information Technology Act,2000, as amended.
    • Technical experts who have thorough knowledge on the ins and out of a system.
    • Banking sector companies, online wallets companies etc. who provide online money transactions platforms.
    • NGOs working in this field(though the number is meagre), public prosecutors, lawyers and judges.

    UNDERSTANDING CYBER LAW – DOES IT ALSO REQUIRE A DETAILED UNDERSTANDING OF TECHNOLOGY?

    The obvious answer is yes. If practising lawyers does not know the practical details of ins and outs of the technology, how can he find the actual problem and provide solution which is admissible and acceptable by Ld. Courts and society at larger.

     

    SHOULD ENGINEERS AND CYBER SECURITY EXPERTS LEARN CYBER LAW? HOW CAN IT POSSIBLY HELP THEM?

    If a fire-tender does not know how to deal with fire, how can he make himself safe from being burnt and more so how can he make other safe. For example, person dealing with private, secure, sensitive data or electronic systems may at any point of time implicate himself or herself in unnecessary legal binding / litigation. (Say for example after the GDPR, in European Union, huge compliances are required, otherwise stringent actions may follow). In every sphere, the knowledge of cyber laws around the world is a prerequisite for engineers and cyber expert and the knowledge will provide a safety-valve to them.

     

    WHAT IS THE EARNING POTENTIAL OF A SUCCESSFUL CYBER LAWYER?

    Earning potential as a profession cyber lawyer is good in my opinion. The number of Cyber lawyers are numbered and crimes and contraventions are on increase in virtual world.

     

    IS IT BETTER TO PRACTICE INDEPENDENTLY OR TO WORK WITH A LAW FIRM OR COMPANY?

    It depends on person to person. But for the newly-started professionals, it is better to have one guide, though being the pioneer in this field, I never felt the urge to have someone. If someone has the highest level of passion, zeal, dedication, honesty and integrity, he or she will surely succeed.

     

    HOW DOES ONE GET STARTED IN CYBER LAW PRACTICE?

    In my opinion to start in legal professional, one should not be very choosy, and in the early stages he or she should do or put his head into various issues and as the cyber-law related issues are everywhere, one who wants to pursue the career in cyber law can start only specialisation work after at least 5 years of his or her practice years.

     

    DO YOU THINK INDIAN CYBER LAW REGIME NEEDS AN UPGRADE? WHAT ARE THE AREAS THAT NEED ATTENTION OF LAWMAKERS?

    After the amendment has been made by way of Information Technology Amendment Act, 2008, some of the famous judgements been pronounced, and lot of technological changes took place, especially in arena of Data-science, cloud-computing, Artificial Intelligence and its predictive algorithm, Blockchain etc., Indian Cyber laws should require upgradation. The following areas need attention:

    • Getting evidences from the intermediaries, especially from WhatsApp and other Instant messenger services.
    • Appointment of Examiners of Electronic evidence.
    • Laws relating to forensics evidences, especially incorporating chain of evidence in Indian law.
    • Details of laws clarifying the process of collection, preservation and presentation of electronic evidence.
    • Clarifying the status of the cyber security personnel and IT- security audit or ethical hacking.
    • Strong data-protecting laws (We already got the Personal Data Privacy Law Bill, 2018)
    • Changes in procedural laws in cyber crime investigation,
    • Laws dealing in details on Child pornography and Online-Trafficking.
    • Laws relating internet of things (now Internet of Everything)
    • Laws related to CCTV footage, etc

     

    WHAT ARE THE MOST PROMISING AREAS OF WORK WITHIN CYBER LAW IN THE NEXT DECADE?

    The most promising areas are:

    • Artificial Intelligence, Machine Learning and Deep Learning.
    • Cloud-computing
    • internet of things (now Internet of Everything)
    • Data privacy and security, specially big data, data-analytics and predictive and destructive logarithm.
    • Blockchain and crypto-currencies.
    • Dealing with digital/electronic evidence in non conventional and conventional fields.

     

    DOES IT MAKE SENSE FOR LAWYERS TO SUPER SPECIALISE WITHIN THE DOMAIN OF CYBER LAW?

    If any lawyer wants to specialise in cyber law arena, specialising within the domain is obviously required, specially regular and intensive study in technology and exploring its new areas is a must. Dedicated and passionate effort is a prerequisite in this domain.