Role of the Legal Profession for Viksit Bharat

On 11th December, 2024 Vivekananda International Foundation organized a talk on “Role of the Legal Profession for Viksit Bharat”. Opening and welcome remarks were made by Dr Arvind Gupta, Director VIF, during which he introduced the speaker and gave his brief point of view on the subject.

Introduction to the Speaker and Opening Remarks

In his introductory address, Dr Gupta welcomed Mr. Anand Desai, Managing Partner at DSK Legal. Dr Gupta highlighted that Mr. Desai was recognized as a leading practitioner in India and has over 30 years of extensive domestic and international experience, being a trusted counsel to several large multinational and Indian corporates and celebrities. Dr Gupta further mentioned that Mr. Desai was appointed by the Government of India, Ministry of Law and Justice, as Chairman of a Committee to recommend amendments to the Specific Relief Act, 1963 and has been featured in the book titled “100 Legal Luminaries of India”, published by Lexis Nexis. Dr Gupta also stressed that Mr. Desai has been selected as President of TiE Mumbai from April 2016, and is currently involved with several well-known NGOs.

After introducing the speaker, Dr Gupta delivered his brief point of view on the subject.
Dr Gupta stated that the vision of a Viksit Bharat is inspiring, but it requires solid policies and strategies based on legal frameworks. Law forms the foundation of all activities, and understanding its role is crucial for the country’s growth. International law, in particular, is gaining importance, yet many policymakers lack a clear understanding of it. Despite the presence of lawyers in politics and leadership, there is often a disconnect. The legal profession plays a key role in realizing the vision of Viksit Bharat, particularly in shaping governance and ensuring legal frameworks align with the country’s growth aspirations.

Address by the Speaker

In the next one hour, the speaker touched upon many important points on role of the legal profession in India. The speaker started off by saying that law serves as a tool to address socio-economic needs and bring about necessary changes. Developed nations have successfully utilized laws to achieve this. The United States legal framework is in sync with the nation’s commercial objectives. For example:

1. USA did not protect copyright of foreign publishers under the manufacturing clause in America. Only if printing took place in America would copyright be accorded to the printed material.
2. USA introduced TRIPs under GATT/WTO when it became a net exporter of intellectual property, and then took action against non-compliant countries.

The U.S. copyright law evolved as follows:

• 1790- the first federal copyright law provided protection for 14 years, with a 14-year renewal if the author survived.
• 1909- the law was amended to 28 years with a 28-year renewal.
• 1984- ‘Steamboat Willie’ (Disney’s first animated film) should have gone out of copyright.
• 1976- pursuant to Disney’s efforts (lobbying) to further amend the Law and extend the expiration duration, Congress enacted the Copyright Act of 1976, which allowed published works to be under copyright for the whole life of the author plus half a century more, or 75 years if the said work was owned by corporations.
• 1998- as 2003 came closer Disney again lobbied for further extension, and congress enacted the Copyright Term Extension Act, which allowed protection for 95 years from the work’s original publication or 120 years from the creation, whichever expires first. It is derisively called ‘The Mickey Mouse Protection Act’.

Law should facilitate and act as a catalyst toward its objectives. Laws that don’t serve their intended purpose are ineffective. Policymakers and regulators must ensure that regulations and policies align with the legal framework for effective implementation and to avoid legal challenges. Simply establishing legal principles unrelated to the objective, or creating rushed or overly prescriptive laws, will not help achieve Viksit Bharat.

Recent initiatives, such as the Specific Relief Act amendments, Commercial Courts, Arbitration Law amendments, and faceless tax assessments, involve both substantive and procedural changes. A continuing dialogue between key stakeholders, including the judiciary and legal profession, is essential to achieving the objectives of these reforms.

The speaker during his address focussed on few questions which are as follows:

• Civil suit for recovery of Rs. 10 lakhs filed in a Commercial Court in Mumbai?
• Oppression case filed by a shareholder of a company with a turnover of Rs 1 crore filed before the National Company Law Tribunal (NCLT)?
• A criminal case filed under the Prevention of Money Laundering Act (PMLA) before any Bench in India?
• An Income Tax demand of Rs. 10 crores that is challenged by the assessee?

Few additional questions include:

• How long will it take for the following to be finally disposed off and implemented in India?
• Application for execution of an International Arbitration Award for Rs. 300 crores?
• Application for execution of a money decree for Rs. 10 lakhs?
• Application for execution of a decree granting title to land in Karnataka?

The Supreme Court of the USA reviews about 100-150 cases annually from over 7000 requests. Similarly, the UK and Singapore Supreme Courts hear a comparable number of cases. In contrast, the Indian Supreme Court hears this many cases every miscellaneous day (Monday to Friday) each week. While population is a factor, the key issue is empowering Courts and Tribunals and improving their efficiency to address the case backlog.

The law on subjects under Section 138 of the Negotiable Instruments Act and the Insolvency Code constantly evolves through judicial decisions. Regulators such as SEBI, RBI, Income Tax, GST etc. issue circulars/notifications/amendments almost daily. Often, even knowing the prevailing law/regulation is a difficult exercise even for professional advocates and accountants. A “Doing Business in India Guide” would be outdated even before it is published.

To speed up the judicial process, several measures can be introduced:

• Forms for pleadings, making them machine readable
• Limiting the size of pleadings, and time/size for arguments
• Putting an onus on advocates to point out the prevailing law.
• Using technology to i) club cases ii) throw up applicable law iii) prevent conflicting judgements by lower courts/tribunals
• Using transcripts
• Limiting adjournments
• Limiting appeals being entertained
• Government/PSUs not filing appeals

Quasi-judicial and judicial bodies should avoid interfering with the commercial aspects of laws like the Insolvency and Bankruptcy Code (IBC), which is focussed on economic objectives. The IBC marks a shift from the social rationale of the Sick Industrial Companies Act (SICA), which aimed to prevent the closure of manufacturing units. However, delays and uncertainty in its implementation, despite settled legal positions, harm the time value of money and undermine the law’s goals. Predictability in commercial contracts boosts investor confidence, attracts a broader investor base, and ensures better pricing. While amendments to the Specific Relief Act were a positive step, the time taken to resolve cases still acts as a disincentive.

While concerns about misuse of the system by a few are valid, they should not overshadow the broader perspective. Regulators and policymakers can drive positive change by implementing effective actions that not only bring about efficiency but also influence the behavior of those attempting to exploit the legal system.

Few suggestions for improvement include specialization, accountability (similar to auditors), and adherence to international best practices. Addressing skill gaps in the judiciary and legal profession through training and specialization is crucial. Digitalizing the legal system, with tools like digital offices and online dispute resolution, can provide a more streamlined, accessible, quick, and cost-effective way to resolve disputes. Additionally, technology can enhance enforcement and record-keeping, as seen in TRAI’s use of distributed ledger technology to manage unsolicited commercial communication.

The Cabinet has approved e-Courts Phase III for four years, with a financial allocation of Rs. 7210 crores. This initiative aims to digitize and modernize the legal system, similar to how other sectors like hotel bookings, airline reservations, money transfers, passport processing, and faceless tax assessments have embraced digital technologies. Despite the widespread use of technology in various fields, the legal system has lagged behind. E-Courts Phase III is set to address this gap, enabling more efficient and accessible judicial processes through judicial transformation.

The talk then proceeded with a question-and-answer session.