There Is Not A Single Day Where I Haven’t Learnt Something New

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LEGAL ERA in conversation with one of the most successful lawyers the Bombay Bar has ever produced, the essentially old-school JANAK DWARKADAS...

Legal Era (LE): You come from a family of lawyers. Was that the main reason for you to take up law as a career?

Janak Dwarkadas: Anyone knowing my background would be justified in thinking so. But the truth is otherwise.

janakdwarkadas1My father, who was a Counsel specializing in Income Tax, was very keen that I take up law as my profession. However, I never subscribed to this view. A large part of this aversion to the profession stemmed from the fact that I was an absolute introvert, reticent and shy as a child. Throughout my school and college life, I had never participated in any activity like elocution, dramatics or debating where the spotlight would be on me. Being a back-bencher and a very average student, academics was certainly not my forte. What also frightened me most about the profession was the extremely long hours which I had seen my father devote.

While pursuing a Commerce degree, I befriended a fellow student who wielded a significant amount of influence over me. After he convinced me that the profession of Chartered Accountancy was the way to go, we both began preparing for the entrance examination, which had to be cleared before one could enroll for the CA course.

Whilst we were studying for the entrance examination, he insisted we attend a speech on the Union Budget, delivered by one of the greatest orators and lawyers of the time - Nani Palkhivala. In those days, Mr. Palkhivala used to speak to a rather modest audience of people gathered on the East Lawns of the CCI Club at Churchgate, Bombay. Similarly, my friend once dragged me to the High Court to hear Mr. Ram Jethmalani argue a case. These two events inspired both my friend and me so much, that he convinced me that we should abandon midway the CA Entrance Examination and instead, enroll ourselves at the Government Law College. The irony of it all was that the friend who goaded me into the profession, left law college in the first year itself. The rest, as they say, is history.

LE: You’ve been practicing as a Senior Advocate in the Bombay High Court from October 1997 till date. How has the experience been?

Janak Dwarkadas: I have never had a dull moment in all these years. I am convinced that the profession can be as interesting or as dull as you make it out to be. Intellectually, it is the most challenging of professions since no two cases are ever the same. A doctor deals with the human body. A lawyer deals with the human mind and human emotions. Even corporate litigations are ultimately driven by human agents, whether they are promoters or shareholders or business rivals. To be a good lawyer, understanding the underlying dispute is of paramount importance. Very often, the client is his own biggest enemy. It often happens that the client will present the facts of a case in the way he wants them to be, rather than what they actually are. Oftentimes, the client will omit those facts that he considers may prejudice your mind against him or the case. One has to have the intuition to know where the truth lies and where the shoe is pinching.

This, unfortunately, comes only with years of experience and is not found in the law books. But it is also where the thrill and the challenge of problem-solving lies and is only one half of what the profession demands. The other half lies in applying the correct law to the facts and convincing the judge or judges, as the case may be, that the justice of the case lies on the side of your client. Our role is more of a psychologist than an advocate. Of course, it would not be correct for me to say it has all been smooth sailing. It’s been a journey of self-discovery, falling and learning, and constantly working on oneself. There is not a single day, including today, when I can say I have not learnt something new. Experience has taught me that there is no time to rest on one’s laurels. You are as good as your last case.

As far as I am concerned, therefore, I have absolutely no regrets about joining the profession. It has helped me grow not only as a professional but even as a human being. After having spent over 40 years in the profession, more than fees, a word of appreciation from my clients and even more from rival clients for a job well done is my biggest reward.

LE: Your areas of expertise, broadly speaking, are corporate law, intellectual property rights and commercial litigation. Have there been particularly challenging cases in either of these areas of law that you’d like to elucidate?

Janak Dwarkadas: I have appeared in a variety of cases covering these subjects as well as other subjects of law. However, there are two cases which I consider both rewarding as well as lifechanging for me in my professional journey.

The first was a case which began sometime in the year 1984/5 in the Ahmedabad City Civil Court. It was filed by Reliance Industries, a licensee of an Indian Patent registered in the name of the multinational giant, DuPont, against its business rival Orkay Industries Ltd. I was engaged by Orkay. The case involved a charge by RIL that Orkay was infringing the DuPont Patent by manufacturing High-Speed-Spun Polyester Filament Yarn which RIL alone had a license from DuPont to manufacture in India. Initially, my role was to assist my senior, Mr. Iqbal Chagla, in drafting a defense statement on behalf of Orkay. Subsequently, I was requested to travel to Ahmedabad to assist Mr. Bharat Shelat, a counsel practicing in the Ahmedabad High Court. The reason why the matter was transferred from the City Civil Court to the High Court was because Orkay had challenged the very grant of the Patent in favor of DuPont as not being eligible to be called a new and original invention that could be registered as a Patent. Such cases could only be tried by the High Court.

The case lingered on in the Ahmedabad High Court throughout the year 1985 and early 1986. I was required to travel to Ahmedabad almost every week. I became an almost indispensable part of the case, since I was involved with all the niceties of fact and law. Thus, around March 1986, when the judge decided that he would require expert evidence to be brought in by both sides in support of their respective cases, the Solicitors found me to be the best choice to assist the experts to prepare their affidavits of evidence. As it happened, except for one, all the remaining experts on the subject were located in different parts of the world. I thus got an opportunity to travel out of India to several different countries, at a time when traveling out of India for professional work was a rarity.

This case not only kept me busy for almost three years but also gave me the opportunity to learn a lot about the Law of Patents, a lot about court craft, and to meet a lot of experts who were at the top of their fields, located in different parts of the world. What was very rewarding was that Reliance finally withdrew the case against Orkay.

The other landmark case that I consider significant in my professional career arose out of the 1992 Harshad Mehta Securities Scam. This case was a game-changer not only for me but for the legal profession as a whole. Prior to 1992, there were hardly any cases in any Indian courts where the stakes were beyond a few crores. In fact, in those days, even the most successful of lawyers were filing Income Tax Returns of a few lakhs of Rupees. It was the first time that we heard of Harshad Mehta, a stock broker, who obtained cheques from the National Housing Bank, a subsidiary of the RBI, running into hundreds of crores of Rupees and deposited them into his account with the ANZ Bank. I was one of the junior counsel engaged by ANZ. Leading me were my own seniors, Mr. Iqbal Chagla from Bombay and Mr. K.K. Venugopal, the current Attorney General for India, from New Delhi.

This is the longest case that I have attended to in my legal career. The dispute began in the year 1992 when ANZ was called upon by the Reserve Bank of India to return to NHB a sum of approximately `506 crores. This amount had been deposited by Harshad Mehta in the form of cheques drawn by NHB in favor of ANZ into his personal account with the ANZ Bank. ANZ agreed to do so, provided NHB agreed to have the dispute, as to whether the monies belonged to NHB or HSM, resolved through Arbitration. The arbitration proceedings and the proceedings arising out of the award went on for almost a decade. Even though NHB and ANZ ultimately settled their disputes when the case reached the Supreme Court, the amount is still being litigated in the Special Court set up in the year 1992 for speedy disposal of cases arising out of the Securities scam. This is because the Income Tax department is claiming a higher priority to retain this amount. It is more than 26 years since I got involved in this case and it is still not over. However, for me, it has been a huge lesson in studying and applying the provisions of the Banking Regulation Act, Contract Act, Negotiable Instruments Act, Evidence Act and Arbitration Act.

LE: You appeared for Reliance Industries Limited against SEBI’s move to initiate penalty proceedings against the company with regard to alleged unlawful gains in the trading of Reliance Petroleum futures in 2007. Please elaborate.

janakdwarkadas2Janak Dwarkadas: This case is currently sub judice before the Securities Appellate Tribunal. Hence, I would not like to comment on the case much, save for highlighting the legal issues which arise for consideration in the case:

  • The case pertains to a decision which RIL took to raise money by the sale of approximately 5% of the share capital held by it in Reliance Petroleum, its own subsidiary.
  • Before selling the shares in the cash market, RIL, through 12 entities, sold around half the quantity of the shares in the futures/derivative segment as a hedge against the possible fall in the price of the shares of Reliance Petroleum. The hedge/futures transaction is a perfectly legal transaction done on the floor of the Exchange at the then prevailing price on the Exchange.
  • As RIL kept offloading the shares in the cash segment, the price of the shares of Reliance Petroleum kept falling as expected.
  • Ultimately, on the last day of the settlement period, the derivatives/futures transaction was squared off. As a result, the difference in the price on the date of the settlement and the date on which the futures transaction was struck was received by the 12 entities. The loss on account of the drop in the price of the physical shares sold by Reliance in the cash market was set off against the gain made in future transactions.

These are the bare facts. SEBI claims that this was not a genuine hedge and the gain was unlawful and RIL is liable to disgorge the profits and also liable to be penalised. But not a single transaction either in the cash segment or in the future/ derivative segment was done except on the Exchange, that too at prevailing prices on the Exchange.

LE: You appeared for GoAir’s former MD, Prock-Schauer, when the airline sued him for stealing data. Please elaborate.

Janak Dwarkadas: This is yet another case which is currently pending not only in the Bombay High Court but also is the subject matter of a criminal complaint. I would, therefore, not like to comment on it. All that I can say is it is the former MD’s case that he has not stolen any data belonging to GoAir.

LE: You appeared for Aircel in the case where the National Company Law Tribunal had admitted Aircel’s bankruptcy petition and ordered that directors, promoters, and the chairman and managing director of the company not leave the country without permission till further orders. Please elaborate.

Janak Dwarkadas: Aircel, being the Corporate Debtor, had filed the Insolvency proceedings against itself under Section 10 of the Insolvency & Bankruptcy Code, 2016. The prayer for the appointment of the Interim Resolution Professional was also made as there was a genuine apprehension that if an Interim Resolution Professional was not appointed, the company would have no option but to shut down its business. This could result in its telecommunication license being suspended or canceled by the telecom authority. NCLT held that the two conditions required for admission of the Petition were: i) the presence of a debt; and ii) the existence of a default in payment of the debt and accordingly, admitted the petition. One of the questions which the NCLT had to consider was whether it could pass an order restraining the termination of contracts in respect of supply of essential goods and services to Aircel during the period of moratorium. At the same time, an apprehension was expressed as to whether any supplier would be willing to do business with the company which was undergoing a resolution process.

This issue was resolved by relying on certain rules and regulations, which confer upon such suppliers of essential goods and services the highest priority, over and above secured creditors and statutory dues. Such a rule ensures that suppliers of essential goods and services get paid on priority to all other creditors. The NCLT, accordingly, passed an order restraining the termination of essential goods and services to Aircel during the insolvency process.

LE: In one of the most talked about cases in recent times, you represented Cyrus Mistry in his legal battle against the Tata Group. Please elaborate.

janakdwarkadas3Janak Dwarkadas: Since this matter is currently sub judice, I would not like to talk about the case. In fact, Cyrus Mistry has filed his own independent Appeal against the order of the NCLT dated July 9, 2018. This Appeal has been admitted by the Appellate Tribunal and is likely to be heard on October 31, 2018 along with the Appeal filed by the investment companies of the Shapoorji Pallonji Group, who had filed the original petition.

The case of the Shapoorji Pallonji Group in the original petition is that Tata Sons, the flagship company of the Tata Group, is being mismanaged on account of the illegal interference by the representative of the Tata Trusts on the Board of Directors of Tata Sons. One of the reliefs which has been sought in the petition is that certain articles in the Articles of Association of Tata Sons which provide for veto rights in favor of the Tata Trusts ought to be deleted as they are in conflict with the provisions of corporate governance as incorporated into the Companies Act, 2013.

LE: In another widely publicized case of the FTIL and NSEL forced merger, you represented FTIL (now known as 63 Moons). Please share your viewpoint on the forced merger and a director’s liability.

Janak Dwarkadas: I would not like to offer any comment as the case is currently pending in the Hon’ble Supreme Court. 63 Moons, which is a profit-making company whose shares are listed on the Stock Exchanges and in which, the members of the public have a vital financial stake, has been ordered to absorb its own defunct subsidiary, NSEL, which has been defrauded to the extent of approximately `5,600/- crores. It is the case of the Government that this forced merger is essential in the public interest as large amount of depositors and traders who claim to have traded in commodities on the Spot Commodities Exchange set up by NSEL purportedly lost `5,600/- crores. Since NSEL did not have the financial wherewithal to recover these monies from the wrongdoers, its parent 63 Moons (formerly known as FTIL) should take over the subsidiary with all its assets and liabilities. This will be a test case, since in the 60-year history of the Companies Act, 1956, the Government has never invoked this power to force a merger upon two companies in the private sector.

It is FTIL’s case that such an order of forced merger is a double whammy in as much as its subsidiary NSEL was firstly a victim of a fraud which led to the untimely closure of its business, and secondly by forcing it to merge with its subsidiary, the shareholders and creditors of FTIL would be burdened with a potential liability which was not its own. Such a move, according to FTIL, destroys the well-recognized and wellsettled legal principle of a wholly-owned subsidiary being an independent corporate entity from its Holding Company.

LE: Please comment on the case where the HC denied relief to Zee against Sony.

Janak Dwarkadas: This was a very interesting case where Zee Entertainment Enterprises Ltd. had filed a suit for copyright infringement and for passing off against Sony, alleging that Sony had illegally copied its popular show “India’s Best Drammebaz”. This is a televised talent hunt for child actors in the age group of 5-12 years. The talent hunt, which was about to be aired by Sony, was based on a similar concept/theme where the acting talent of children was to be judged.

The Bombay High Court held that Zee cannot claim a monopoly in the concept of a talent hunt for children. The High Court further observed the fact that both the shows have a similar common feature would not entitle Zee to claim a copyright.

The High Court further held that Zee could claim a copyright in the concept of a talent show only when it is able to show that the production bible or the concept note of the show produced by Zee is a work of original skill and labor.

LE: You’ve taken keen interest in public interest litigations, especially those concerning the environment. Please elaborate.

Janak Dwarkadas: I have appeared, pro bono, in several public interest litigations concerning the environment. Amongst them are the following:

i) Petition filed to remove encroachments from the Sanjay Gandhi National Park;

ii) Petition challenging the constitutional validity of the conferment of the benefit of a private Hill Station City granted to Amby Valley in Lonavala;

iii) Petition filed to prevent pollution of the Mithi river;

iv) Petition challenging the en masse permissions granted for cutting of thousands of trees for setting up the Metro III Project in Mumbai;

v) Petition challenging the conversion of an area of the Aarey Milk Colony, from a green belt to an area reserved for setting up of a car-shed for the Metro III Project.

My experience of appearing in these matters is that both citizens and the Government alike are treating Environmental Laws as a hindrance or a roadblock to progress and development. This is a country which, on paper, is rich in enacted laws but poor in enforcement of these laws. But for the active and affirmative action taken by the courts, these laws meant to preserve and protect the Environment would become dead letters. The general approach on the part of citizens, developers, industrialists, hoteliers and businessmen alike is to either completely ignore or bypass the laws/ regulations or acquire permissions by any means, fair or foul. The approach of the Government and its agencies is to treat the laws as a tool or a weapon to extort monies. Neither party actually respects either the law or the environment. The cardinal rule that the State is in the position of a public trustee of the environment is very often forgotten. Economic progress at the cost of sustainable development has assumed priority. There is a famous native American saying: “When the last tree has been cut down, the last fish caught, the last river poisoned, only then will we realize that we cannot eat money”. The pollution of our air, land and our waters – including lakes, rivers and seas – is going on unabated despite adequate laws in place to safeguard all three.

Our approach to development generally is – ‘build first, plan later’. That is why we have haphazard residential and industrial constructions, lack of adequate roads, sewage, drainage and garbage disposal systems. Statistics available in the public domain reveal that India has 14 perennial rivers, but not one of them has water which is either potable or fit for agriculture. In my view, the solution lies in making the subject of Environment/Nature a compulsory subject right from Standard I and taking students out of the classroom into the midst of Nature, to truly understand and appreciate the importance of conservation. It is only when we learn about the importance of Nature and how to live alongside it rather than destroy it, that we will learn to respect the environment.

LE: You’ve also represented Indian and foreign companies in international arbitration proceedings held under the rules of institutionalized arbitration centers in India, Bahrain, London and Singapore. How does arbitration in India compare to that abroad?

Janak Dwarkadas: In India, most Arbitrations are conducted by what is known as “Ad-hoc Arbitrators” or Arbitration panels, as opposed to Institutional Arbitrations which is the practice followed in many other international jurisdictions.

In an Institutional Arbitration, the advantages are that the Institution under whose aegis the Arbitration is conducted will have its own rules of procedure which are codified and available to the parties beforehand. This brings about a great deal of fairness, certainty and uniformity in the conduct of Arbitral proceedings. The Institution will provide a choice of Arbitrators, with their fee structure. The Institution also ensures that the proceedings are conducted expeditiously and in a time-bound manner, by making the Arbitrators on their panel accountable to the Institute. Some of the wellknown Arbitration Institutes such as the LCIA, SIAC and ICC are extremely circumspect in enrolling Arbitrators on their panel. The Arbitrators are also judged on their performance, i.e., time taken to complete the Arbitration, feedback of the parties who appeared before them, conduct of the Arbitration proceedings, time taken to write the award and the number of awards upheld/set aside by the courts when challenged.

All these factors ensure that the parties to the dispute are assured an effective, fair and speedy disposal of their cases/ disputes.

On the other hand, in Ad-hoc Arbitrations, the conduct of the proceedings, the procedure to be followed – the timings of the actual proceedings, the fees to be charged, and the time taken to render the award can differ from case to case. This does not result in a satisfactory manner of an alternative dispute resolution.

LE: Your thoughts on the book that chronicles the life and times of your family named Our Legacy - the Dwarkadas Family of Bombay?

Janak Dwarkadas: As Toni Morrison – an author, has said:

“If there is a book that you want to read, but it hasn’t been written yet, then you must be the one to write it.”

There were so many stories about the achievement of my forefathers which I had heard in my childhood and had taken for granted. I realized that these stories needed to be told and documented, so that future generations of the family could learn about the legacy they had inherited. With this in mind, I approached Sifra Lentin, a renowned historian. Under her supervision, the book, which has been well researched by two research scholars, traces from available archival record the migration of my great grandfather way back in 1853 from the arid lands in Kutch, Gujarat, to Bombay. It also seeks to delve into the History of the Bhatia Community to which I belong. A chapter is devoted to each of my forefathers, ending with my youngest grand-uncle Jairaj. It is a fascinating account put together by the author – Sifra Lentin of the achievements of each of these gentlemen in shaping the history and development not only of the city of Bombay, but also the struggle for India’s Independence. The book ends with a chapter on the joint family in which I grew up comprising 26 members and the selfless sacrifices and contributions made by the members of the family to keep it together under one roof for several decades.

LE: You’ve often spoken about your good friend and colleague, the late Goolam Vahanvati. Tell us more about the kind of rapport you shared with him.

Janak Dwarkadas: Goolam was one of the most competent lawyers and advocates that the Bombay High Court has produced. As a junior counsel, he was in great demand on account of his drafting skills. He was precise, brief and to the point. His mastery over virtually every branch of law made him one of the most sought-after counsel by Advocates on Record and Solicitors alike. The assistance he rendered to his senior colleagues was invaluable. Later, when he himself became a Senior Counsel, he expected the same high quality of drafting and assistance he was used to providing whilst being a junior. He laid great stress on pleadings, going through every draft meticulously to avoid any ambiguity or incorrect statement on the facts or the law. He enjoyed a great deal of respect from the judges who could be assured that Goolam would not misstate facts or mislead them on the law. There was hardly any matter of importance, whether commercial, corporate, intellectual property, banking, Arbitration – both domestic and international, or concerning constitutional law and the law of writs that Goolam would not have featured in either on one side or the other. His painstaking efforts and his sharp legal skills ultimately earned him the reward of being appointed the Advocate General of Maharashtra and later the Attorney General for India. In both these roles, he did an exemplary job. Unfortunately, he died an untimely death when he was only 65.

I knew Goolam, both professionally as well as personally. I had the good fortune of working with him on several matters which gave me the benefit of learning quite a few skills from him. His most profound advice when he wanted me to slow down was the one he received from the great lawyer Mr. Nani Palkhiwala. He quoted Nani to me and reiterated often, “Learn to say NO”.

As a person, Goolam was as versatile in his interests as he was in his practice of the law. He was fond of music of several different genres and had quite an enviable collection of music. He was in fact a collector of many objects of value and good taste such as writing instruments, watches, paintings, artefacts and later, even vintage cars. He was a keen racegoer, having deep knowledge of equine flesh. At one time, he owned a string of race horses, which he later sold after he became involved in the administration of the affairs of the Racing Club, RWITC. He was fond of gardening and had selected and planted exotic plants at his Pune Farm House which had beautiful and well-maintained landscaped gardens and trees, each of which he could identify by name.

All in all, Goolam was a multi-faceted personality and a man of refined taste. In his untimely death, the Bombay Bar and the entire legal fraternity has lost a valuable member of the profession.

LE: The year 2017 has seen a slew of iconic judgments with respect to fugitive economic offenders, rape of minors, passive euthanasia, triple TALAQ, right to privacy and so on. Please share your views on the same.

Janak Dwarkadas: 2017 and 2018 thus far have indeed been a period of landmark judgments, all of which individually and together demonstrate a ringing and powerful message that the Supreme Court of India continues to be the bastion and protector of human and constitutional rights in India.

While the judgments mentioned in the question pertain to different issues of fact and law, the manner in which the Apex Court has dealt with these disparate issues displays a common theme viz. the purposive manner in which Article 21 of the Constitution of India, in which the right to life is enshrined, is to be interpreted. As has been said by the Supreme Court in earlier decisions, Article 21 is organic and evolutionary in character and is not static in interpretation.

The unanimous decision of a 9-Judge Constitution Bench in the case of Justice K.S. Puttaswamy vs. Union of India upholding the right to privacy as a fundamental right marks a seminal moment in our legal and judicial history. The Apex Court in this magnum opus has held that privacy is intrinsic to life, liberty, freedom and dignity and therefore is an inalienable natural right. This judgment delves into privacy as both a legal and philosophical construct, holding that “life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian constitution…” The cascading effect of this judgment is already being felt, in that a mere year after its passage, it has been one of the driving forces behind the decision of a Constitution Bench of the Supreme Court to strike down Section 377 of the Indian Penal Code vis-à-vis consenting adults. In all likelihood, the effects of declaring that privacy is a fundamental right will be seen in the Supreme Court’s pending judgment on the validity of Aadhaar.

In considering the issue of passive euthanasia and living wills in Common Cause vs. Union of India, the Supreme Court held that the right to live with dignity would also extend to dignity in death and to easing the process of death in cases where a patient is found to be in a permanent vegetative state or afflicted with a terminable illness with no hope of a cure. In such cases, it was held that the fundamental right to live and die with dignity was sufficient to justify passive euthanasia, subject to certain safeguards. While the issue of passive euthanasia in certain exceptional circumstances had been previously considered in the case of Aruna Shanbaug, in approving the use of living wills or advance medical directives, i.e., a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent, the Supreme Court has touched upon and protected another key ingredient of the right to life, the right to selfdetermination and not leaving such a personal decision to the State.

While considering the issue of rape of minors, particularly minor girls who were married, the Supreme Court was forced to consider and balance the impact of practices like child marriage. The Court rightly held that the fact that child marriage was still socially prevalent would not mean that the minor girl is legally capable of giving consent. Accordingly, it opined that the provision in the Indian Penal Code that carves out marital rape as an exception ought not and cannot apply in the case of minors. The Bench of Justices Madan Lokur and Deepak Gupta, JJ, observe that the State was acting inconsistently. On one hand, it had enacted various laws that protect rights of minors such as the Protection of Children From Sexual Offenses (POCSO) Act, but on the other hand it was attempting to justify this provision. The Supreme Court relied on established legal precedents that classify rape as not only a crime but also a violation of the right to life and an act that “degrades one’s soul”, once again offering an expansive interpretation of Article 21.

In so far as the judgment on triple talaq is concerned, it is interesting to note that although the majority of three judges by two concurring judgments agreed on the conclusion that triple talaq is not legally valid, both the judgments took different routes to reach the same destination. The judgment of Justice Kurien Joseph is based on the Quranic sanctity of the practice and does not delve into the aspect of its constitutional validity. However, the judgment authored by Justice Rohinton Nariman on behalf of himself and Justice U. U. Lalit examines the validity of the practice on the touchstone of Article 14. Having found the same to be arbitrary, triple talaq was struck down. The judgment of Justice Nariman is illuminating in its discussion on arbitrariness as an anathema to the fundamental right of equality.

Finally, in relation to economic offenders, the Supreme Court in October 2017 while deciding the case of Parbatbhai Aahir vs. Supreme Court of India demonstrated that economic offenses and persons who perpetrate them will face the full rigors of the law because “economic offenses involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants.” The Apex Court upheld the ruling of the High Court whereby compounding/quashing of a criminal complaint was not permitted on the grounds that if prosecutions against the economic offenders are not allowed to continue, the entire community is aggrieved.

The Fugitive Economic Offenders Act, 2018 has taken the matter one step further from the Apex Court’s ruling in Parbatbhai Aahir’s case. Whereas in Parbatbhai Aahir (supra), the court did not permit compounding/quashing where an economic offense involves fraud, misdemeanor and loss to the public exchequer, the Fugitive Economic Offenders Act is meant to compel, at the pain of confiscation of the offender’s property, the offender to subject himself to the justice system and to ensure due satisfaction of claims.

LE: Has the legal profession changed considerably over the past few decades? Please elaborate.

Janak Dwarkadas: The legal profession has undergone many changes in the recent past. When I joined the profession, one could either be a Counsel conducting trials and litigation in court or be a Solicitor engaged in what was then referred to as ‘a conveyancing practice’, i.e., preparing documents for sale, purchase or other dealings in land or property. Over the years, however, a large and lucrative branch of a lawyers’ practice, called the M & A practice (Mergers & Acquisitions), has developed. Another area of practice which has developed is the Securities Law practice relating to laws regulating the securities market. What was the old Monopolies & Restrictive Trade Practices Act has been replaced by the Competition Commission Law, which too offers lawyers an area to specialize. Other areas of practice which provide lawyers with an alternative are the National Green Tribunal for Environmental laws, the Telecom Dispute Resolution Tribunal and the Telecom Regulatory Authority of India for laws relating to the telecom Industry. The Adjudicatory Authority set up under the Insolvency and Bankruptcy Code, Debt Recovery Tribunal, the National Company Law Tribunal and the respective Appellate Authorities set up to hear appeals from orders passed by the tribunals offer a wide choice to lawyers to specialize in these fields. Besides, domestic and international arbitrations have also created a niche area of practice for many. Similarly, intellectual property laws and Boards set up to hear cases arising under those laws are another field of law in which one can specialize. Many lawyers, especially women, have taken up the practice of appearing in matrimonial and disputes relating to custody of children before the Family Courts. Even laws such as the Consumer Protection Act and Consumer Courts and Appellate Courts set up to resolve Consumer Disputes are offering one more option to lawyers. Over and above these, several large and mid-sized domestic and multinational corporate entities often have an inhouse legal department to ensure compliance with the myriad laws which are in place and which carry with it penal consequences for failure to abide by such laws. There is thus a sea change in the practice of law, from the time we started practicing law.

LE: What is your view on the liberalization of the Indian legal sector?

Janak Dwarkadas: The Supreme Court of India in a landmark judgment in Bar Council of India vs. A.K. Balaji decided the question on whether foreign law firms can practice in India. The Supreme Court has held that the practice of law includes both litigation and non-litigation work. Thus, only advocates enrolled with the Bar Council of India can practice. Foreign law firms cannot set up an office in India even for non-litigation purpose or for the purpose of consultancy, advisory, etc. on questions of foreign law.

However, the Supreme Court has ruled that foreign lawyers or foreign law firms can render advice on foreign law on what is called a “fly in and fly out” basis, which includes casual visits not amounting to regular “practice”. The Supreme Court has conferred a discretionary power upon the Bar Council of India to decide what amounts to casual visits and to make appropriate Rules in this regard, which may include a Code of Ethics being applicable to such cases.

The Supreme Court has clarified that there is no bar on foreign lawyers or law firms in conducting arbitrations in India if the matter is governed by an International Commercial Arbitration Agreement. However, even in this regard, the Bar Council of India and the Central Government have been asked to make appropriate rules to regulate this practice.

As regards the question whether liberalization should be allowed in the legal field or not, in my view, foreign lawyers should be allowed to practice in India only if there is a reciprocal arrangement between India and the other state, permitting Indian lawyers to practice in such other country and vice versa. Given the complex nature of international commercial transactions that often involve the legal systems of various countries, I feel that the participation of foreign lawyers/firms, on a “fly in and fly out” basis, is both valuable and necessary on issues of foreign law in order for litigants to be best represented before a court or arbitral tribunal.

LE: What is your advice to students of law and young lawyers looking to make a mark in this profession?

Janak Dwarkadas: Having spent 40 years in the profession, the one big lesson I have learnt is that experience is the best teacher. The practice of law is all about gaining from the experience of practicing law. In the legal profession, as in all others, it is only a handful that achieve great success, which brings with it the necessary benefit of fame and fortune. My earnest advice to new entrants and budding lawyers is not to miss the wood for the trees. One cannot join the profession to become great, to become famous, or become wealthy. These are by products of a job well done. The goal has to be – to practice the profession, as is expected of a professional. A professional will be sought-after only if he displays certain qualities and a certain temperament. To develop these qualities and this temperament, one has to lay a strong foundation. It does not come with the law degree, else, everyone would be successful. There are no elevators, escalators or bullet trains to success. It comes with years of toil, discipline, dedication, hard work and lots and lots of patience. Those who take shortcuts invariably fail. Those who join with the wrong goals of acquiring fame and fortune, without being willing to put in the hours, get frustrated. Those who are not disciplined, get distracted. Those who believe in luck and destiny are clearly betting on the wrong horse. The right attitude is to have good mentors and try hard to imbibe and adopt the right techniques.

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