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

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...

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.

The 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.

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.

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.

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.