He was the Advocate General of Maharashtra from 2012 to 2014, and before that, the Additional Solicitor General of India for three years. An LL.M. (Harvard), Senior Counsel DARIUS J. KHAMBATA practises before the Bombay High Court and the Supreme Court of India. LEGAL ERA speaks to him about his personal and professional journey, life, and everything in between
LE: You are fortunate to have started your career with Senior Advocate Iqbal Chagla. How was the experience and how has it helped to evolve as a lawyer?
It would not be an exaggeration for me to say that joining a senior like Iqbal Chagla and the years spent with him have been the defining moments of my professional career. He taught and led by example, and that is always the best way to mentor.
He radiates qualities such as a high sense of ethics, the will to do what was right although it might be unpopular, and great dedication to a cause. Couple all of this with a superb legal mind
and brilliant advocacy and you have in him a combination that carries all before it. I could not have asked for a better senior. I owe my career to his mentorship. But that was not all. For with Iqbal Chagla also came Chamber No. 1 led by redoubtable Khurshedji Bhabha, one of the great lawyers of the Bombay High Court (and himself senior to Fali Nariman, Soli Sorabjee, Iqbal Chagla, Avinash Rana), and also some very talented young lawyers such as Janak Dwarkadas, Fredun Devitre, Jimmy Avasia, and Erach Kotwal. All this in a chamber that also boasted of
future Justice Sam Variava, Justice Rohinton Nariman, Justice Niranjan Vyas, Justice Roshan Dalvi, and many others. It was a fantastic learning ground for things both legal and extra-legal! It was and remains a family.
LE: In your professional career, the time that you spent in the government – both at the Centre and in the state – was one when India witnessed possibly its worst policy paralysis in years. Do you think that phase could be returning, especially with respect to the IBC and its ordinance?
I cherish my years as Additional Solicitor General of India and then as Advocate General of Maharashtra as a period of great learning and experience. I believe that anyone who has the same opportunity must avail of it. It is a necessary process of evolution in the life of a lawyer to be able to defend the state and the Constitution. To appear as a law officer for the country or a state is very different from appearing for a particular government that is in power at the time. This is a very significant difference which is often overlooked. That said, I must say that I was not put under any pressure from anyone in the government to take a stand that did not conform to what I thought was correct in law. I was privileged to have as the Prime Minister during the years of my ASGship
Shri Manmohan Singh, who, I believe, history will judge as having had a huge and positive impact on post-Independence India. He is much underrated as a leader. Time and history will tell. I was also fortunate to have a superb leader in the form of Shri Prithviraj Chauhan as Chief Minister. Indeed, Maharashtra has been blessed to have two successive Chief Ministers who are so able and fair and present Chief Minister Devendra Fadnavis is also in that class.
I also had the good fortune of getting to know several outstanding IAS officers. That gave me great confidence in the governance of our country.
As a law officer, you defend not only the actions of governments
but also the constitutional standing of statutes. I found the latter of most interest. I had to undertake several complex cases such as the Adarsh case for the CBI, the NSG Commando case for the Defence Ministry, the challenge to the Urban Land Ceiling Repeal Act, and the challenge to various aspects of VAT laws and several others.
LE: Please tell us about your juniors.
I have been gifted with a particularly talented and loyal set of juniors. My first junior was (now) Justice Riyaz Chagla. It has given me the greatest pride and satisfaction to see him elevated to the bench of the Bombay High Court continuing the great legacy of his grandfather, Chief Justice Chagla. On all accounts, he is making a
I encourage my juniors to participate in conferences, to correct me where they see me going wrong, and to do it openly so that their competence is on full display for all to see. It makes for interactive and highly engaging chambers and an often irreverent atmosphere. I encourage that.
LE: What are your views on where the country is headed?
I rarely give interviews. The reason I’m giving this one is because there are two major areas that concern and trouble me. I have great optimism for the future of our country, but there are two dark clouds on the horizon.
The first is the looming spectre of intolerance of differing beliefs, opinions, customs, expressions,
and speech. We are a constitutional democracy and a proud one. There is no greater patriotism than giving constitutional freedoms their fullest expression. It is never unpatriotic to criticize or to express a view
different from that of the majority. In fact, that is the highest nationalism or patriotism. Yet, I see so many people preferring to lapse into the patriotism of flag and anthem and imposing their will on others. I wish that every citizen instead flies the flag of constitutionalism, and that means defending vocally the right of someone else to say or do something that you might strongly disagree with. As Justice Jackson, a great judge of the US Supreme Court, had said of freedom, “The test of its substance is the right to differ as to the things that touch the heart of the established order.”
The other dark cloud is that of the breakdown of the rule of law. Far too often, vigilantes, either guided or misguided, take the law into their own hands and often violently. That is no patriotism at all. It is in fact, to use the popular expression, “antinational” and should be condemned by all right-thinking citizens. It is here I feel that the government should be doing more and should be defending freedoms and liberty, for it is the government’s fundamental duty to protect our Constitution and our constitutional rights. We seem to have lost our way on fundamental principles in our overwhelming quest for growth. Economic development can only be sustained in a fair, just, and inclusive environment. Otherwise, it will be in danger of collapse. As a nation, we were gifted with leaders of the moral and intellectual stature of Mahatma Gandhi and Jawaharlal Nehru. Yet, we have forgotten them and some would even seek to erase their memory and legacy. I find that astounding and painful.
The role of constitutional sentinel is left to our judiciary and how well it has risen to the challenge. The recent judgments in the triple talaq case and the fundamental right to privacy case have given democracy, constitutionalism, and indeed real nationalism a great big shot in the arm.
LE: With globalization cutting across most barriers, what is your take on the changing face of the Indian legal industry? What do you foresee for the legal industry in India?
I think as lawyers, we must face up to the fact that with several worthy exceptions, the services that services that we offer are sometimes lacking in professionalism and integrity, when compared to the professional legal services on offer across the world. That is not to say an Indian lawyer is not among the most competent and effective lawyers in the world. Give any Indian lawyer proper infrastructure, training, and environment and
he will be as good as the best. But for some reason, we do not always perform to that standard at home.
Times out of number, you see an Indian lawyer performing brilliantly in a foreign setting or arbitration and the same lawyer adopting a very different standard domestically. With the huge burden on courts, despite the gallant job that Judges are doing—and some of them are working overtime under great pressure and stress to clear arrears—unless lawyers step up to the challenge, I do not see any solution. Working extra time or extra days is not the answer. A more professional approach is. Why do we lawyers feel that we are entitled to an unlimited amount of time for arguments when there is so much pressure on the system and where time is so precious? In systems where filings are not even 10% of the level in India, the legal systems are acutely conscious of the wastage of judicial time. Open-ended and long-winded arguments, spending precious judicial time doing effectively administrative work, or adjourning matters since lawyers are not ready are certain things that we must swiftly purge from our system.
I feel that this is a fundamental duty of all Bar Associations. This change must come from within. It should not be imposed from outside. But change will come, I assure you, as our economy grows, develops, and globalizes, and it will be impossible to resist.
There are several ways in which we can improve. First, we must emphasize on the written word. It is amazing how concise and cogent an argument can get if a lawyer first puts it down on paper. It helps the lawyer, it helps the Judge, it helps the opponent, and it is much better for the system as a whole. Yet, lawyers in India perceive it as a mark of their ability to
delay as long as possible putting down their submissions in writing as if it were a game of poker and you shouldn’t let your opponent know until the last possible moment what you are going to cite or submit. This approach has to end.
Second, some broad time limits/estimates should be taken at the start of a heavy matter. Even if they are not adhered to meticulously, there should be some general impetus to keep up with them. In international arbitration, every minute has to be accounted for, and that puts immense pressure on the lawyers, but it enables the disposal of the matter swiftly and in a time-bound manner. Think of the saving of cost by doing this.
Third, I think it is time to introduce on a large scale real-time transcription of evidence and arguments not only in domestic arbitrations but also in our courts. It will cut down the judicial time spent by at least 50 percent if not more and will encourage quicker trials. When everything you say is recorded faithfully, you will be careful about what you say—there is no scope for repetitious or contradictory submissions.
Fourth, courts must start imposing realistic costs. It must be made expensive to file frivolous applications and waste judicial time on unworthy causes. The capacity of a litigant to pay can be a relevant factor in awarding costs, but costs
must be awarded large or small. It is all too easy for a lawyer to advise an application without regard to any consequences following if that advice had no legal basis.
LE: You served as Vice President of the London Court of International Arbitration and are currently Member of the Court of the Singapore International Arbitration Centre. Do you see India becoming an international destination for commercial arbitration?
Certainly. Consider this. India combines all essential ingredients for a successful arbitration seat: a great and long-standing common law tradition, one of the most innovative and independent judiciaries in the world, a large workforce of lawyers who are skilled at trial and evidence actions and have expertise in commercial law, cheap skilled stenographers and support staff, great airports, good hotels, good telecommunications, etc. Yet, why is it that India is not a favored arbitration seat, and in fact, is avoided by parties? I think our practices have dragged arbitration in India into a morass. I do not leave out retired Judges who must share part of the responsibility for the inertia in Indian arbitration. The entire mindset and approach have to change.
The ‘software’ and ‘hardware’ has now been upgraded in the form of extensive amendments in the year 2015 to the
Indian Arbitration and Conciliation Act, 1996. The hardware of arbitration practice and more pro-enforcement judgments are now the need of the hour. Signs of these changes are already in the air. Arbitration is one very effective way of relieving the court system from the vast burden of commercial dispute cases.
LE: As Additional Solicitor General, you played a crucial role in the Adarsh scam. What was your mandate appearing for the CBI?
I never talk about any pending matters, and since the Adarsh matter is currently pending appeal before the Supreme Court, it is best that I say nothing about it. All I can say is that successive Central Governments approached the matter with the same level of integrity and independence and I found no difference in the approach between the previous Central Government and the present one. I had appeared as ASG instructed by the previous Central Government and as a private lawyer instructed by the present one.
LE: In the recent FTIL–NSCL merger, you represented the government. FTIL said that it will challenge the order in the Supreme Court. What is your take on this?
As I said, I do not speak about pending matters. All I can say is that the stand of the Central Government has been vindicated.
LE: You also represented Madhu Kapoor and her daughter Shagun Gogia in the Yes Bank case and convinced the court that Kapoor had the right to jointly nominate directors on the board of Yes Bank. What according to you was the most challenging aspect about this case?
Again, I must say that I cannot speak about this matter since it is pending appeal. All three judgments in each of these cases were superbly written, I might add.
LE: With so many policy reforms taking place, do you think that the performance and growth of MNCs will be affected? Moreover, what will be the impact of policy reforms on trade, finance, and privatization?
I think the first thing that we lawyers must realize, and often we don’t, is that we are not competent to speak on matters of finance and economics. There are very few of us (sterling exceptions are Shri Arun Jaitley and Shri P Chidambaram) who have acquired expertise in these areas. All I can say is that the present government, both Central and state, is making the most determined effort I have seen in years to structurally change our economy and governance. Some initiatives may work, some may not, and some may not work as expected, but I think that
the atmosphere is one of optimism and change. I hope the legal system will abide by its own judgments that emphasize the narrowness of judicial review in matters of economic policy. The legal system must become more pro-enforcement of Contract. We give far too much importance to all technical and legal objections to granting specific performance of contracts and are always anxious to find that damages are an adequate remedy. But in fact, they are not. A businessman who has contracted wants that contract enforced. He is not interested in waiting
several years to get an award of damages, and damages are often difficult to prove. Quick, matter of fact, and commonsense judgments and justice are the order of the day. Easier said than done, I know, but as lawyers, we have to assist significantly in that process.
LE: How do you maintain work–life balance?
I maintain it very well in fact. Less work and more life is the objective. That often doesn’t happen, but that certainly remains my goal. There is so much more to life than work. I am passionate about Western classical music and history, and I try to find time for both. Both I believe help me in my life and even in my thought processes. It always amazes me how history is ignored as a critical subject. I think it is one of the most important subjects to be taught, for you will find that most of what we’re saying and doing today has been done before and often has failed. But as they say, we never learn from the lessons of the past. Music, according to me, is the greatest intellectual and emotional exercise anyone can engage in, and I could go on for hours listening to it and talking about it. I don’t have a favorite book, but I do have favorite sections of history, such as Roman history, Persian
history, World War II, the Russian Revolution, the Indian Freedom Struggle, etc.
LE: Your success mantra?
The secret of my life has been my family. My wife and children keep me firmly rooted and down-to-earth. They are my first and fairest critics and great sounding boards. What I do is for them. I would have floundered without them. My parents were wonderful genuine people who gave me the greatest childhood and upbringing that one could hope for, and their legacy lives in their having left behind a united family, including wonderful sisters as well.
LE: What is your advice to young lawyers?
Believe in yourself but don’t take yourself seriously. Don’t listen to praise, listen only to criticism and take it in the right spirit. Work as hard as you can, but always remember that working hard is not for the goal of making money or procuring fame. Everyone, whatever his/her station in life, has to work honestly and diligently and ensure that there is dignity in the work that he/she does. Believe in God. He’s always there to guide and help
you, provided you take your decisions based on truth and what is right. Often, when one makes mistakes, the best thing to do is not to cry over spilt milk but pick yourself up, dust yourself off, and move on. Remember the words of Sir Walter Scott: “Without courage there cannot be truth, and without truth there can be no other virtue.”