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No Matter How Hard, The Court Has To Decide Every Case

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Anand Pathak

One of the senior-most Judges of the Supreme Court, known for some path-breaking judgments this country has seen, Hon’ble Justice Arjan Sikri in an exclusive interview with Legal Era...

Justice A.K. Sikri was elevated as Judge of the Supreme Court of India on April 12, 2013. Prior to that, he served as the Chief Justice of the Punjab and Haryana High Court, a position he was elevated to on September 23, 2012. Before that, he was made the Acting Chief Justice of the Delhi High Court on October 10, 2011.

Justice Sikri has heard cases on arbitration, commercial matters, Constitutional matters, and labor (service) matters. As a Judge, he has dealt with all kinds of jurisdictions and sat on the commercial, IPR, and insolvency benches for several years, giving landmark judgments.

Justice Sikri was appointed Judge of the Delhi High Court on July 7, 1999; Senior Advocate, Delhi High Court, on September 30, 1997; and Vice-President, Delhi High Court Bar Association, in 1994-95. He was Counsel for numerous public-sector undertakings, banks and financial institutions, educational institutions, and private-sector corporations.

He also served as part-time lecturer at Campus Law Centre, Delhi University, from 1984 to 1989 and as member of the governing bodies of various colleges from time to time. Someone with an excellent academic record, Justice Sikri in 2007 was chosen as one of the 50 most influential persons in Intellectual Property in the world by a leading international organization as recognition of his contribution to the growth of Intellectual Property Laws via his judgments.

 

Legal Era (LE): With globalization cutting across most barriers, what do you foresee for the legal industry?


Hon’ble Justice Arjan Sikri: You see, it’s a very general question; there can be so many facets to it. One facet would relate to the nature of cases that are emerging because of globalization and how it is changing the landscape of the legal profession. Globalization cutting across most barriers has led to cross-border ramifications in so many areas, like intellectual property matters, international arbitration, cross-border insolvency matters, etc. with free flow of capital and technical know-how from one country to another and entities in two different countries collaborating. If there are disputes, it may lead to patent disputes or disputes over capital know-how. If there are commercial disputes which are to be resolved through arbitration, it will lead to international commercial arbitration. Likewise, any multinational company which has headquarters in one country would have set up its business in other countries as well. If such a company becomes insolvent, it will have crossborder ramifications. Thus, insofar as legal nature is concerned, its phase is changing and totally new types of disputes at international level are emerging.

anandpathakThe other facet is that globalization is leading to the convergence of laws. In order to avoid the conflict of laws, countries are to have uniform laws and it is more particular in the aforesaid category of cases which I mentioned such as intellectual property laws including patents, arbitration laws, contract laws, insolvency laws, etc.

Yet another aspect of globalization is, especially since we are speaking of the legal profession, the question of whether foreign lawyers or foreign law firms should be allowed to practice in this country or not. So, this becomes another facet of globalization insofar as the legal industry is concerned.

The fourth aspect is technology like artificial intelligence. Many questions are now being raised and they have in fact become very pertinent questions like how far is it going to affect the legal profession. Because it is said that if you have some problem and you go to a lawyer, the lawyer would have some knowledge about that subject, he/ she may study that subject a little more and come to a conclusion, and give you some advice on what you should do and what you should not do. However, if a computer is programmed and finetuned, an algorithm is developed on that basis, the feeling is that it may provide more precise and more predictable solutions than what a human mind can do. Notably, in America, it has already started, in a sense that many companies, and particularly big companies, when they have problems, they don’t go to lawyers for advise, especially where corporate practice is concerned, not necessarily that they approach lawyers now because this artificial intelligence has taken it to a level where one gets more predictable results. Otherwise, there is always uncertainty regarding legal outcomes. Where a particular dispute has arisen, how a court will ultimately take it, you never know. Even when there are precedents, the outcome may not be in the same direction. In a given situation, how the court will react nobody can predict. By contrast, it is felt that through artificial intelligence, we may get more predictable results.

So, these are some aspects which I can think of in terms of globalization and the legal profession: First, the cross-border ramifications of disputes which are making disputes more complex; second, about the convergence of laws; and third, artificial intelligence.

LE: Our second question is about t e c h n o l o g y and artificial intelligence. You said that in America, they have reached a stage where they don’t approach lawyers and rely on artificial intelligence, at least when they are looking for predictable answers. Do you see that happening in a country as vast and complex as India?


Hon’ble Justice A.K. Sikri: You see, in India, litigation is of a different kind; we talk of corporate litigation. However, commercial litigation may be miniscule in comparison with the total number of cases of varied nature. We have almost 3 crore cases pending in Indian courts. So, if we say commercial cases in the context of globalization or in the context of ease of doing business, etc., commercial cases may become important from that point of view. But then, large numbers of cases pending are criminal cases and they affect the relationship as far as law and society are concerned. For example, we are confronted with so many rape cases, sexual harassment of women at workplaces, child rape and even gang rape, cases of chain snatching, etc. As far as the Indian legal system is concerned and particularly for a commoner, this is also one of the important areas. Artificial intelligence has nothing to do with that. Otherwise, artificial intelligence may be important when we talk of economic progress of the country, ease of doing business, FDI, setting up more companies, Make in India, and all that.

In the large majority of cases, however, i.e., disputes between tenants and landlords, disputes between brothers and sisters, disputes at the grassroots level or at the magisterial level or at magistrates’ courts or of a civil nature, AI may not be that important.

"Globalization is leading to the convergence of laws. In order to avoid the conflict of laws, countries are to have uniform laws and it is more particular in the aforesaid category of case which I mentioned such as intellectual property laws including patents, arbitration laws, contract laws, insolvency laws, etc.

Commercial cases may make headlines, but the commoner is more concerned with these other kinds of cases. So, as far as the Indian legal profession is concerned, AI may not be a threat to the extent it is being perceived in Western countries. But at the same time, when we come to commercial disputes and such disputes of international character and talk of law firms which are mainly catering to these kinds of disputes, there may be some dent in due course of time, say in five or seven years, when higher technology permeates India as well. That is possible because with globalization, what happens elsewhere is transported to India and other thirdworld countries soon.

Hence, business companies that are developing this type of artificial intelligence would like to have a wider market. Yes, AI might create a dent in future in corporate law practice. But then, the challenge here is technology and artificial intelligence, whether we allow it to substitute human intelligence or whether human intelligence only takes the aid of AI as a supplement instead of substitute. If we are able to supplement it, then it becomes our asset, it becomes our strength. That’s a challenge.

LE: We hear of the pendency of cases where the judiciary is beyond overburdened. In that aspect, do you feel technology can help?


Hon’ble Justice A.K. Sikri: Yes, exactly. When I spoke of substitute versus supplement, in the latter, technology can come to our aid. I’ll give you a simple example, without getting into the details of technology or computerization, etc.

It will facilitate case management and court management, and therefore, a case which today takes say 3 years, we can make an attempt with the aid of technology to complete it in two years or one-and-a-half years, which is the international standard.

Then, the use of technology can help us in bunching or grouping of cases. Many times, we find that a similar legal issue is involved in so many cases. However, one case is taken up and the issue is even decided. Still, other cases keep pending and it leads to arrears. If bunching takes place, then with the decision in one case, all other cases on the same legal issues will also stand resolved/decided. This has now started happening in the High Courts and Supreme Court, which is helping a lot insofar as the disposal of cases is concerned.

LE: There is a lot of time lapse between hearings. How is continuity maintained?


Hon’ble Justice A.K. Sikri: Apart from case management and time management, how case management should proceed from the first to the second to the third stage is all there in our Civil Procedure Code. But then, with technology, we can scientifically monitor it and do it and keep the system going, avoiding unnecessary adjournments. Case history of each case from its inception is available on computer. One can readily find out as to how much time was taken in filing replies or documents, etc. or how many adjournments have been made in a case. Thus, litigants can know everything from the day a case is filed to the date the case is over or even when it is pending or even everything in between such as filing of notice, objections raised, removal of notice, refilling of notice, date of receipt by the other party, date of appearance of the other party, date when the state files a return statement, etc. Thus, everything would be available at the click of the mouse, and if you want to conduct research, you can find out. These are the advantages of bringing in such transparency. And, it has already started happening.

LE: I believe the present government is pushing for digitalization and is very ambitious about it. So, I believe that the judiciary is getting that kind of support, too, from the government.

Anand Pathak

Hon’ble Justice A.K. Sikri: Yes. The good thing is that for the last number of years, governments have been encouraging digitalization. This government has also done a lot. They are ready to pump in the money into the judiciary. Let there be digitalization, let there be computerization. So, we are trying to achieve all these, and another advantage of technology is that all high courts will be connected with each other as well as with the Supreme Court. So, if one high court has decided on one issue, another on a different issue, all judgments are available and can be collated, consolidated at one place.

Suppose the Bombay High Court has given one judgment and a similar issue has come up before the Delhi High Court. People may not know about the Bombay High Court order. However, with technology, it can be accessed and even connected at one place where it is there for all to see.

Secondly, this facilitates research on particular topics. In earlier times, when the SC would decide a particular issue or even high courts decided, it would be known only if and when it was published in a book or a journal, but now, the judgment is uploaded within an hour of its pronouncement and is there for everyone to refer to.

There is also a move to connect all libraries of all high courts and district courts; so, district courts which don’t have sufficient books will be able to access the libraries of any of the high courts and even the Supreme Court. These are some of the areas where digitalization will help.

I’ll give you a small example on how it cuts down time. An issue is being argued before a district court or even before a high court and the Judge may go on listening for two to three hours, but if he/she is told that just a day before, the Supreme Court had already given a verdict on the same question of law, the Judge can just follow the verdict and decide the case. This will save a lot of time. This time is then available to decide other cases. These are some of the advantages.

LE: The SC recently gave a fly in, fly out judgment on the entry of foreign law firms and lawyers. What are your comments on this?


Hon’ble Justice A.K. Sikri: Personally speaking, I would say that fly in, fly out as far as advisory work is concerned can be done, but they cannot appear in courts. Yes, we should not have a complete ban on it, but with one condition of “reciprocity”. So, I should allow, say, lawyers coming from England, they should be allowed to practice and appear in courts here provided our lawyers are permitted in English courts. Likewise, if there is reciprocity between any two countries, it should be encouraged because once we talk of globalization, our lawyers too would want to appear in other courts. There is a very famous case going on in the Singapore Supreme Court on the Daiichi Sankyo matter; on one side, the lawyer is Gopal Subramanium and on the other side is Harish Salve. There, the high court had refused permission, but the Supreme Court granted permission. So, two Indian lawyers will be arguing in the Supreme Court of Singapore. On the basis of reciprocity, suppose a lawyer from Singapore wants to come and argue in an Indian court, we, too, should permit it.

LE: Do you think that a section of the legal fraternity is skeptical about it [fly in, fly out judgment]?


Hon’ble Justice A.K. Sikri: Yes, there is skepticism. On the corporate side, however, insofar as advisory work is concerned, the judgment has permitted fly in and fly out. That is allowed. We are now talking about appearance in courts.

LE: In the case of Daiichi Sankyo and the two Singh Brothers of Ranbaxy, the Supreme Court said that it cannot change what the Singapore Tribunal has said. Please comment.


Hon’ble Justice A.K. Sikri: Frankly speaking, I have not gone deep into the merits of that case, so I won’t be able to make much comment. But then, generally speaking, this is a matter which can be argued on both sides. I have read the debates in newspapers. The Singh Brothers of Ranbaxy feel that there were very important issues which went to the root of the matter, and therefore, in order to give complete justice, the court should have looked into it. But then, the other side is that the matter has already gone to the Singapore Court and it is for that Court to decide such issues, which has the necessary jurisdiction, and we should honor the doctrine of comity of courts, i.e., one court should give respect to the decisions of the other court. This is a common law principle.

LE: Please comment on the perceived conflict of interest between the right to privacy as a fundamental right and the Aadhaar issue.


Hon’ble Justice A.K. Sikri: I won’t be able to comment because the matter is going on and I am a part of the bench. We can’t comment on pending matters.

LE: You were part of the historic judgment on passive euthanasia. Kindly provide your thoughts on this.

Anand Pathak

Hon’ble Justice A.K. Sikri: As I said, in that case, there are certain issues which fall in the category of hard cases and they become challenging for the judiciary to decide because if a case comes before a court, the court has to take it up; the court can’t say “sorry, we are not deciding it”. We have to decide it one way or the other. Now, euthanasia is one issue which has moral and ethical tones; this is one issue which has philosophical aspects as well, and when we look at the matter from the moral or ethical or philosophical or even religious point of view, no person has the right to take his/her own life. We don’t say that suicide should be permitted at all. There is no right to die, but right to die in a dignified manner is there. Human dignity gives a person right to choice, i.e., persons have the right to lead their life in the manner they want. The question is to what extent this right should be allowed when it comes to a situation where a person is in a vegetative state and is brain dead. Here, the issue of euthanasia comes. Though active euthanasia is not permitted, the issue in the said case was as to whether passive euthanasia should be allowed, namely, choice is given to the person or his/her relatives not to take aid of machines to keep such a patient alive artificially. As I said, such cases fall in the category of hard cases. So therefore, now the question is “when we discuss a matter from morality, ethical, or philosophical point of view, I have discussed in the judgment as well that these are issues where there would be two opposite views and both would appear to be equally strong. One view on certain moral standards would be that passive euthanasia be permitted, whereas another view, adopting different morality standards, would say that it should not be permitted. Now, in this process, therefore, whatever decision you give, there are going to be two viewpoints. In such cases, what are Judges supposed to do? A Judge is supposed to decide even such cases on the application of some legal or constitutional principles. Therefore, what we held in that case was that if one looks into the issue from the morality or philosophical angle, the decision may go either way. However, the legal norm was formulated on the application of Article 21 of the Constitution which ensures the right to life and liberty. The Court held that human dignity is a part of that right; even right to privacy is a part of right to life. And when we talk of dignity, dignity includes, as I said, the right to die with dignity. And once we expanded this legal norm of dignity, it was easy to lean in favor of euthanasia. On that very basis, we could expand the idea of passive euthanasia by giving the right to write a ‘living will’ ‘advance directive’ as per which a person when he/she is in good health can always express his/her desire not to have the aid of life-prolonging machines like ventilators, etc., when he/she is declared brain dead or is in a vegetative state. This amounts to giving him a right to allow nature to take its own course so that he/she can die peacefully. Of course, there may be a possibility of misuse. However, the Court has tried to take due care by laying down guidelines and procedures to avoid such misuse.

LE: What is your advice to up-andcoming lawyers?


Hon’ble Justice A.K. Sikri: There are many youngsters who are joining corporate practice. My first advice is to take up litigation. I always say that litigation is more challenging, more exciting, more adventurous than corporate; corporate may in the beginning attract the younger generation because of the higher starting salary, remuneration, etc. and you may not earn the same kind of money in the beginning in litigation. But if a person is hardworking and has studied his/her subject properly and acquired good knowledge and has the requisite skills of oratory and writing, etc. which are required to become a good lawyer, then in the long run, litigation practice is much better. After four or five years, you will find corporate work monotonous, where you are doing the same thing every day. Besides, with computerization, they would have to take a draft of any particular agreement, tweak it here and there as per their specific needs. So, it’s the same work like a robot. On the other hand, every day is a challenge in litigation. When you get a particular order from a court in favor of your client, you feel so elated. And secondly, we have those marginalized sections of society and those who are the victims of crime and if you are able to get justice for such persons, the sense of fulfillment is something which money can never buy. Even if you do that case for free, you will find that it is more important and gives you more satisfaction than the case where you have charged lakhs of rupees.

So, this kind of excitement, adventure, sense of fulfillment, and every day doing something for society I would say is what litigation is all about. My other advice is to work hard, work with honesty, and never try to take short-cuts. With hard work and honesty of purpose, success would knock your door ultimately.

 


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