We Should Get All Our Brilliant Lawyers Abroad Back To India

Legal Era (LE): If the bankruptcy code is sanctioned as a law, do you foresee a massive change in the legal infrastructure of the country?

T. K. Viswanathan: Yes, of course. This is a landmark legislation of the century because we have consolidated all the laws relating to the resolution of firms and corporates and limited liability partnership. It is a very ambitious legislation which we have undertaken and it is a great tribute to the Parliament which has enacted the Insolvency and Bankruptcy Code, 2016. It is going to be a landmark legislation because the credit market is going to flourish and most of the problems that we are facing now on the NPA will vanish as the Code starts functioning in full speed. Difficulties experienced in the working of the IBC are transitory problems. Legacy problems are bound to arise when we move from one legal order to another legal order. Till now, we have been using a net worth erosion test to find out whether a company is sick or can be revived or not. So, 51 percent net worth erosion test is not an ideal test to facilitate a revival scheme to revive a sick company. And till now, the legal system favored those who can delay the repayment of their debts, but now, we have changed the whole legal landscape. This also enables the entrepreneurs to shift their focus from bank-based finance to market-based finance; when credit markets will flourish, bond markets will flourish, and entrepreneurs need not depend upon banks and financial institutions for raising money. At present, there is an undue emphasis upon secured credit which is posing great risk for promoters and that is not really good for our economy. So, we tried to change the whole legal scenario and this is going to change the entire economy of the country in this century.

LE: As per the IBC Ordinance, scheduled banks, asset reconstruction companies, and alternate investment funds have been excluded from the definition of “connected person”. Kindly outline your views on the same.

T. K. Viswanathan: We have tried an ambitious law reform. So, when we start working on it, it’s very difficult to foresee what sort of problems we might envisage. These are all transitory problems which work out in the long run, and we expect the adjudicating authorities, the National Company Law Tribunal, the Appellate Tribunal, and the Judiciary, to come out with a robust jurisprudence and this should be sorted out sooner or later, but you should not expect the law to do micromanagement; we never envisaged that. But since there were initial problems, we tried to make some amendments, but I don’t think that these are all really major hurdles in the implementation of the Code.

LE: In terms of the current cyber law, what major steps could be implemented for protecting people, especially women, from online abuse?

T. K. Viswanathan: I have chaired a committee on cyber law and we had made certain recommendations under the Indian Penal Code (IPC). We have given very good suggestions and the government

is examining the various proposals. I’m very sure that if they are implemented, that will take care of all concerns, and we also made sure that individuals using social media are not unduly harassed. At the same time, it’s also not possible to abuse the social media to the detriment of women and also to create law

and order situations or anti-national activities. And, we have also suggested safeguards to protect the innocent users when they exercise their free speech.

The Committee felt that to prevent the abuse of powers by the investigation agencies and to safeguard innocent users of social media, it will be worth emulating the practice of the U.K. Crown Prosecution Service, which follows certain Guidelines viz. the Code for Crown Prosecutors which is issued by the Director

of Public Prosecutions (DPP)1 under Section 10 of the Prosecution of Offences Act 1985. It has been noted that law enforcement agencies face several challenges during investigation and prosecution of harmful online conduct due to the dearth of technically trained police personnel, lack of access to expert advice, procedural hurdles in conducting cross-jurisdictional investigations, absence of comprehensive data on the

crimes reported, and the lack of a quick and streamlined procedure for takedown of malicious online content. In an attempt to address some of these issues, the Committee has proposed the insertion of two new provisions, namely, Sections 25B and 25C in the Code of Criminal Procedure 1973, thereby creating the post of a State Cyber Crime Coordinator and establishing a District Cyber Crime Cell, respectively. The details pertaining to the State Cyber Crime Coordinator visà-vis his qualifications, appointment, and functions along with the role, composition,

¹sup> The DPP is the head of the Crown Prosecution Service (CPS), which is the principal public prosecution service for England and Wales. The DPP operates independently, under the superintendence of the Attorney General who is accountable to Parliament for the work of the CPS; See supra n.43 and conditions of service of the members of the District Cyber Crime Cell, respectively, have been mentioned in these sections. The goal of these provisions is to create a cadre of trained cyber experts, both from within the police force and experts in the fields of information technology, digital forensics, cyber law, etc. to ensure the effective investigation and management of cyber offences.

These recommendations are based on the UK model and we also suggested that all state governments should set up centers where there will be higher level of scrutiny before cases initiated under the Information Technology Act, 2000 and also to go in for more capacity building for the law enforcement agencies for capturing evidence and prosecuting effectively the wrongdoers in cyberspace.

Kindly provide your views on crossborder insolvency.

In fact, provisions to deal with cross-border insolvency could not be included in the Code for the simple reason that cross-border insolvency pre-supposes the existence of an ecosystem, the insolvency resolution

professionals and dedicated bankruptcy courts and also the cooperation between courts of different countries

dealing with concurrent insolvency proceedings and expertise for leading evidence; since we didn’t have the

required ecosystem when we drafted the Code, the Code did not deal with cross-border insolvency. Right now, with the IBC in position, the necessary ecosystem is counterpace. Ideally, the UNCITRAL Model Law on cross-border insolvency is the ideal model law because that is accepted by many countries and it is easy to have cooperation with other countries. But this will require the adjudicating authorities in one country

to have a dialogue with the adjudicating authorities of another country where cross-border issues are

involved. And, we have suggested that we should adopt the UNCITRAL Model Law, which the government is considering. Hopefully, it will be completed within the current session. Not only our companies will be

benefited, we also need to get information about our companies which have assets abroad. So, that will be hampered if you don’t have or can’t have cooperation agreements with an individual country or bilateral agreements which will be cumbersome and it will be very difficult to manage. So, the UNCITRAL Model Law is readily available, and where other countries have agreed to, we should also adopt that. And, we are also exploring how to implement the UNCITRAL Model Law.

LE: Recently, the Supreme Court reserved its verdict in the case related to entry of Foreign Law Firms into India. What are your thoughts on the liberalization of legal services?

T. K. Viswanathan: With globalization and with the breaking up of borders, knowledge knows no borders, and professionals move from one country to another country. In the UK and US, Indian lawyers are doing exceedingly well. Our 5-year law students are everywhere; in the UK, many of them are waiting for the Indian legal sector to open up so that they can return. Indian Bar is diffident about allowing

foreign law firms, and I’m very sure that this threat is something which we can manage. I agree that foreign

law firms should not be allowed to practice in the Indian Courts; they are not aiming for that sector, but their interest is in legal advice on issues involving multinational jurisdictions. But in India, we don’t have a regulatory authority to govern law firms. The Bar Council is not effectively regulating the law firms as such; they are regulating only the lawyers in their individual capacity, unlike the UK where there is a society of law firms which regulates and hears complaints against law firms. In the UK and in other jurisdictions, the law firms have to subject themselves to rigorous regulatory oversight; w e don’t have that type of oversight in India. I think we should have that kind of regulatory oversight over law firms in position. We should have a regulatory infrastructure to govern law firms for then, it becomes easy for regulating the foreign law firms. Even now, we have surrogate firms operating in India; many foreign law firms are operating in India. So, that should be brought out in the open, and then, it should be made legalized licence. Moreover, the Bar Council will also earn a lot of revenue if it charges fees for regulating them. So, I think that this is a step which should be taken, and I think that the Bar will open up. It’s not the question of lawyers being deprived of their right to livelihood; in fact, it will open up

new avenues for our lawyers. So, it should not be projected like that.

LE: if it charges fees for regulating them. So, I think that this is a step which should be taken, and I think that the Bar will open up. It’s not the question of lawyers being deprived of their right to livelihood; in fact, it will open up new avenues for our lawyers. So, it should not be projected like that.

T. K. Viswanathan: Law is a knowledge-intensive profession and the obsolescence of law knowledge is rapid. Overnight your knowledge becomes out-of-date and you have to always keep pace with new developments. I started my career as an Advocate, then I moved on as a full-time Law Professor (I was dealing with Law and Books), for 12 years I taught, and subsequently, I shifted to the Government in the Legislative Department where drafting of laws takes place. From Law and Books, I moved into Law in the Making, where you draft laws. Thereafter, I became Member-Secretary in the Law Commission of India, and then, I became Secretary of the Legislative Department in-charge of drafting. Following that, I moved out as Law Secretary of the Government of India, where I saw Law in Action. Then, I was in the Ministry of Law & Justice for

more than 8-9 years dealing with the most complicated problems. I handled many sensitive legislations as a

draftsman, including The Information Technology Act, 2000, which laid the basis for cyberlaw in India, and then, the Right to Information Act, 2005; there are a lot of acts and enactments that I have drafted. Then, I moved on as Secretary General of Lok Sabha, where Parliament enacts a law. As Secretary General, I was there at the heart of Parliament where laws were made and enacted, etc. Ultimately, I became Advisor to then President Pranab Mukherjee. There also, before the President granting his assent to Bills and Ordinances, my views were sought by the President. So, my life has been revolving 360 degrees around law. As Law Secretary, what I felt was that overnight, my knowledge was out-of-date and I had to be always on the tenterhooks because I had to answer questions on the phone. When your political masters ask you legal doubts on the phone, you can’t tell them that “I’ll get back to you with the answer”. You have to answer instantly because your credibility is lost if you say that you will have to consult some authority; if you drag your feet,

then you are finished. So, it was a great challenge at that point of time to continuously update my knowledge. The current youngsters are doing very well, but they have to explore more avenues and concentrate more on litigation because that is where the real growth of law lies in. I found it extremely difficult to get competent lawyers in criminal cases because we had to service the Central Bureau of Investigation and most of the enforcement agencies. We had many important criminal cases and we had difficulty because the best legal brains were on the other side. So, the government had a difficult time prosecuting criminal cases.

Therefore, we need to have competence among young lawyers. Criminal law is one area which is being neglected

by lawyers. Today, younger lawyers are always going in for law firms. I think that more and more of them should opt to go into litigation because conduct of trial, proficiency in the Evidence Act, and the Code of Criminal Procedure are essential for becoming a successful lawyer; these are all the most important things in the field of law and these are the areas which are neglected. The real worth of a lawyer lies in conducting cross-examination, examination, and how to bring facts, and how to link the facts of a case and the legal material; this is where the challenge lies. When I started teaching law, we only had a 3-year law course, but

later, the 5-year law course was introduced. And the 5-year law course was one of the best things that happened for the legal education in India. The youngsters passing under the 5-year law course are brilliant and are really up to the global standards and are continuously winning laurels all over the world. I have travelled all over the world and I have seen them, especially in the UK, and I was greatly impressed by their confidence and competence. We should all get them back here and that will be a really great event for India.

LE: You were also Member of the Committee to Frame Guidelines on Government Advertising Campaigns constituted by the Supreme Court. Kindly share your views on the same.

T. K. Viswanathan: I think the Guidelines have already been implemented; there is an ombudsman for that. I think it is working well.

LE: When it comes to the quality of insolvency professionals in India, how will the recommendations ensure

that there is no oversight on the part of these professionals? Are there any provisions for individual insolvency? How will it be resolved?

T. K. Viswanathan: The Bankruptcy Board is capable of doing that. Dr. MS Sahoo, Chairperson of the Insolvency and Bankruptcy Board of India, is a very competent person. He has very wide exposure in different financial sectors. He has been in SEBI and then in the Competition Commission. He is doing exceedingly well. When the Code was being examined by the Joint Committee, I was the first person to give evidence before the Joint Committee. The Committee asked the same question, “You are thinking of a new profession; where are you going to get the people from? Are you going to get them from the sky?” I said, “No sir, we already have people and the profession has evolved; it has evolved very rapidly. And it is fine.” You see, the quality will improve with the course of time. The Bankruptcy Board is doing exceedingly well within a short time, with limited resources. This is a very complex subject. It has no well-defined borders because

it is not confined to any single profession or expertise. A resolution professional can be a chartered accountant or a lawyer or an engineer or a banker, and so on. So, the borders are too broad and the Board is doing exceedingly well, given the limitations under which it is functioning. I’m very sure that within another 6-7 months, you will see a rapid rise in the quality of resolution professionals.

LE: How do you maintain a work-life balance?

T. K. Viswanathan: In the initial stages of my career, it was difficult to maintain this balance because Law is knowledge-intensive and is extremely stressful, demanding your attention 24/7, 365 days. With the advent of information revolution, obsolescence of knowledge occurs at a phenomenal speed,

and if a legal expert would like to remain relevant in his expertise, he has to update his knowledge on a daily basis. So, there was very little time for me to pursue meta-legal interests till I demitted full-time assignments in my career in 2013. Thereafter, I have had more freedom to choose between work and other passions in life which I could not pursue due to the pressure of work.

But Music, Prayers, and Exercise have helped me to attain this delicate balance.

Music
I am fond of Western music. I belong to the age of The Beatles, Elvis, The Shadows, and The Ventures. Music elevated my soul and always kept me in high spirits.

Prayers
I am a deeply religious person. I strongly believe that the Almighty has reasons which we do not readily understand, but whatever happens is always better than what we aspired for.

Exercise
Though I was exercising in my younger days, due to career building, I gave up. But I revived and started exercising rigorously later in life, and I am now addicted to it because 60 minutes daily at the gym rejuvenates and recharges my mood and sense of well-being.

LE: Could you briefly share with us any peculiar case that you have witnessed throughout your journey in law?

Judicial Impact Assessment

T. K. Viswanathan: Like Banquo’s ghost haunting Macbeth, the problem of judicial arrears engages the Government continuously and remains one of the problems which needs to be addressed. The Supreme Court in the Salem Bar Advocates Association case directed the Government to implement Judicial Impact Assessment to facilitate earmarking of funds to the courts which are likely to be burdened with additional workload due to the enactment of new legislations at the time of passing of the legislations itself. There is no progress on this front. This has to be taken forward.

Electoral Reforms Long Overdue
Not much progress has been made on this front. As a result of the freezing of the allocation of seats on the basis of the 1971 population figures, the allocation of seats done on the basis of the 1971 census continues to hold good for the present population figures. According to the 2010 census, the present population of our country stands at 121 crores, with a registered electorate of 83.41 crores. Basing the 1971 census figure of 54.81 crores to represent today’s population of 121 crores presents a distorted version of our democratic polity and is contrary to what is mandated under Article 81 of the Constitution. So, when the first census figure will be available after 2026, which will be in 2031, a fresh delimitation will have to be done which will dramatically alter the present arrangement of seat allocation to the states in Parliament. We are fast approaching 2026 when the constitutional freeze on Article 81 will be lifted. This will require a fresh delimitation when the population figures of the 2031 census are made available. This is bound to increase the number of seats in Parliament and legislatures,

and concerns expressed by the states in 1976 which necessitated the freezing of seat allocation on the basis of 1971 population figures would appear to hold good even today and have to be addressed to the satisfaction of all stakeholders.

Repeal Of Obsolete Laws - Need For “Law In Action” Studies
Repealing obsolete laws is only the first step towards law reform. What is more important is to undertake the impact analysis of laws in action. There is no systematic exercise undertaken by the Ministries to undertake the impact analysis of Acts administered by them. In other words, there is no systematic law reform in place. Attempts to reform laws

are triggered by public outcry on individual cases or due to difficulties experienced in the implementation of law caused by judicial interpretation. What is required is an exercise undertaken by every department of the Government to review the Acts administered by them to find out how relevant or effective they are in their operation. These types of “law in action” studies will require field studies in which the law students of National Law Universities can play a vital role.

Reform Of The Indian Penal Code Long Overdue
Though the IPC has been the mainstay of our Criminal Justice System, it requires to be reviewed. When the IPC was enacted, it was based on the morals and behavior patterns of people who lived at that point of time. The Code provided for 4 types of punishments, starting with death penalty to life imprisonment. Now, only imprisonment, and in rare cases, death penalty remain. With the Constitution coming into force, the IPC requires to be reviewed according

to the changing social mores and conditions. There is a need to explore newer forms of punishments which will

deter deviant behavior. Since every law is an infraction of liberty, resort to criminal sanction for technical violations must be avoided.

Data Analytics In Judiciary
Lastly, the Judiciary should extensively use data analytics to prioritize the allocation of manpower and judicial time, which will lead to more efficient judicial resources. With the National Judicial Data Grid in place, it will be easy to apply data analytics to the Judiciary.

Need to shift focus from Doctrinal Research towards Empirical Research
The quest for scientific methods of study led to the birth of Jurimetrics as a separate discipline in law. Lee Loevinger,

the founder of Jurimetrics, called upon lawyers to develop new skills. He stressed the importance of scientific and therefore statistical methods for lawyers. He saw a number of possibilities for using these applications in the law. He maintained that:

“The next step forward in the path of man’s progress must be from jurisprudence, which is mere speculation about law to Jurimetrics, which is scientific investigation of legal problems”.
Jurimetrics bears the same relationship with Jurisprudence just as economics and econometrics stand to each

other. Jurimetrics research employs scientific methods to investigate legal problems. We have to shift the focus of legal research from dry legal doctrines to law in action studies with emphasis on empirical research in law, which is the crying need of the hour.