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

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.

My 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.

Janak 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.

Janak 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.