Interviews

Nitin Sarin specialises in asset / aircraft, finance / leasing / repossession & is a qualified lawyer (in both India & England and Wales) and also the Managing Partner of Sarin and Co.; Nitin completed his B.A.; LL.B from the Army Institute of Law, Mohali . He has also completed his Advanced LL.M. in Air and Space Law from Leiden University, Leiden, the Netherlands. 

He has been interviewed by EBC/SCC Online Student Ambassador, Nritika Sangwan who is currently pursuing law from AIL, Mohali.

 

1. Where did this love for planes begin and what is it that you find most fascinating about them?

It does surprisingly have a link with law. My father was always a busy lawyer and we spent most of our childhood seeing him always in office – weekends or weekdays. The only escape he had was to leave the country else clients would find some way or the other to reach him. At that point domestic travel did not have many options so every June we would be flying out somewhere overseas and that is where the passion really stems from. It used to be the most exciting part of the year – the smell, the feel and the “abroad” factor. The places we visited may not seem very exotic now as we as a nation are travelling so much more than in the early 1990s, but at that time my parents had to work very hard to take their three children on these international holidays. That is how I became fascinated with planes and even now I am constantly fascinated by the ability that we can fly, it is unlike any other mode of transportation we have.

2. Give us a snapshot of your journey from being a student at Army Institute of Law, Mohali (AIL) to being ranked highly in the Legal 500 lawyers and law firm list in the aviation category.

I do not feel I deserve any of it because my journey has just begun. As a student, I was not a very interested student – I never enjoyed studying or participating in moot courts even though ironically, we run one now. I was more focused on my own life and did not really want to conform to the norm, I barely scraped through. I graduated in 2008 and immediately went to Netherlands for my masters where we ended up being a class of only 3 as the economic downturn had just started. I developed close relationships with my professors and got individual attention at that point.

Overseas education that one receives is very different from what one receives here in India. I specialised in Aircraft Finance which was a very small part of the curriculum. After my masters, I came back and practised in the Punjab and Haryana High Court. I had an understanding with my father that if I got any aviation work that would take priority over court work.

My first break was when Kingfisher Airlines went bankrupt, and I advised an American aircraft leasing company on how to take their planes back – that is when I really learnt on the job. I put in all my time to get this right.  Eventually, the balance tipped in my favour and I began to get more aviation work. I went out there and “marketed” myself by introducing myself, sending out emails, attending conferences and so on. It was primarily luck as at times, I was found through a Google search.  The rest is all totally up to you to utilise an opportunity. Now we are in a situation where large companies having trillion-dollar market caps are engaging us specifically for their aviation work in India. That is how we have carved out a niche for ourselves.

3. Do you believe that mooting as an activity is essential for a law student?

Definitely very important from the point of view that the student can gauge whether they enjoy litigation or not. That is the starting point to see whether you enjoy arguing in court or prefer being the brains behind the magic by carrying out the backend research. It sort of enables you to decide that for yourself.

4. The Sarin-McGill Annual Student Essay Contest on Aircraft Finance and Leasing was launched in 2020. Do you believe that academic writing is important for law students even if they do not want to pursue a career in academia?

The aim of these competitions is not really academic but rather to encourage students to do the research and learn about what the subject is. I can read those articles and gauge who has understood the law and who has not. Talking specifically on aircraft finance, it is such a niche subject that we need more discussions and research to take place, the essay contest is aimed to encourage just that.

5. Air law is a niche practice area and students do not get easy opportunities to explore the field, what are the avenues available for students to explore this field and figure out if they are interested in the aviation law or not?

There are essentially three aspects to aviation law – you have the financial side of it i.e. leasing and financing aircraft; you have the regulatory side of it where you are dealing with bilateral rights with countries and regulators; and the third one is where you are dealing with passenger rights and claims. For students of law, getting that exposure is difficult because most firms say they do aviation work but it only goes so far. The kind of work you get will depend on which aspect you choose. For exposure, airlines are a good option to intern and gain such experience. Law firms may not be able to give a holistic approach because not everyone has the bandwidth and workstream to provide that kind of training.

6. Do you place importance on a masters /LLM degree?

I think so, and I am talking specifically about an LLM overseas. I think they are very important for a number of reasons; you learn how other systems work which is very important and those systems are different from ours. They promote a more open book culture which is opposite to the rote learning culture we follow here (at least till when I was a student, hopefully that is changing). If a student has a particular interest, I believe they must go and do a masters in that. It is simply the next step – you know like a teenager growing up and becoming an adult.

7. Are there any courses or colleges in India that impart the same quality of education as any college overseas?

I have not had any first-hand experience but I think some of the newer institutions that have international teachers coming to teach are giving that kind of experience. I do foresee a changing atmosphere in the sense that we will find more international universities partnering with local universities in India to give students that kind of exposure. By no means am I implying that our educational institutions are by any means any less competent, its small things like style of teaching, openness with your teachers and equality between student and teacher which make a difference.

8. What are the job opportunities for someone choosing the aviation field?

It really depends on which part of aviation you want to be in. If the student is interested in the finance part of it – they are a better off doing a finance LLM and qualifying somewhere overseas where they can work with a law firm which specialises in general financing of assets because aviation will usually always come under that. There are huge prospects even in India because there are very few law firms that manage all the work. They are short on staff so yes, the scope is large. Opportunities are great – we are going to be the largest aviation industry in the world in the next couple of years and the amount of work at the end of the tunnel is massive.

9. What do you look for in students and professionals while hiring them at Sarin & Co.?

It is very old school but I look for individuals who are interested in the work and are doing it because they want to do it. Dedication and hard work are what I look for. All this may sound cliché but it is difficult to find people like that. We try to look for people who will happily give up a weekend to work (we respect our teams off time, but I learned early on that “assuming” that you get a weekend off is really living in a fool’s paradise). Also, I look for persons wanting to grab work, an associate sitting around waiting for work to be assigned to him or her is just not what we are looking for. We have the work, come, and take it and do your best.

10. Do you think India has enough regulations to tackle the massive environmental impact of the aviation industry or do you see some change happening?

I see changes coming in very rapidly the world over. The thing with aviation is that, firstly, airlines want machines that burn the least amount of fuel so automatically the industry is pushing itself towards becoming a greener industry. Airbus, Boeing, Embraer and other manufacturers thus have an incentive to make aircraft as efficient as possible. Secondly, it cannot  be that one jurisdiction has more stringent laws than the other, it has to be a global change since the distribution of asset is also such – the aircraft are going to travel across jurisdictions, so the laws need to be aligned. Yes, aviation will be one of the industries to step up to the mark whether it is the use of bio-fuel or other things.

11. What is your opinion on carbon offsetting? Do you think it is a legit solution or do you think there is a better alternative to it?

As long as the money is going towards properly offsetting the pollution, that is justified. But in our country, is it really going there? We have to be very conscious of our carbon footprint. We are going through the so-called industrial revolution wherein people are making so much money but are blinded by the environmental damage being caused. We will regret this in the future and think of how much better we could have done. The EU went through that cycle where they started off with their clean and green phases, went through their industrial revolution, polluted everything and eventually realised the gravity of their pollution. While their realisation finally arrived, they have used the last many decades to clean up while we in India have not reached that stage yet where we realise the impact that our plundering the environment is going to have on us.

12. How has Covid impacted aviation lawyers?

It depends on who you work for. If you work for airlines then you are one of the directly affected parties. However, we at the firm have been busier than before. There are so many matters due to the current situation – a lot of default has been happening. Almost all airlines in the world have defaulted in their obligations and in some cases renegotiation of aircraft lease agreements has been going on as a consequence thereof. We have seen a lot of negotiations happening to take aircraft back and prevent bankruptcy. We are also seeing a lot of people and corporate houses investing huge amounts of money in private jets which is very interesting.

13. What does a typical work day for an aviation lawyer look like?

The first four hours of the day are important. I get to work by about 7 a.m. and I work till 11 a.m. and I am done with 90% of my work. The kind of clients you have also guides your daily schedule. If you have international clients, you function according to their timings and so you make time for your other activities accordingly. There is no structure as such, you just go with the flow. You work whenever the work comes. Every day can look different. Some days I have several hours to myself and some days are so busy I have no time.

14. What is the most challenging part of your job?

To keep my clients, both new and old happy, consistently. Especially clients who have been with us for a while. The longer our association becomes, the more challenging it gets, in my opinion, to ensure we continue to be their go-to law firm in India. That is what keeps you going and that is what keeps you on top of the game.

15. If not a lawyer, what would you have done?

Sometimes I actually wonder what I am doing here. If not a lawyer, I would definitely have loved to cook or have a piece land and done something there. I realised very early in my career that work should only be a tool to do what you want to do and life should be enjoyed because you never know when it will end.

Case BriefsHigh Courts

Delhi High Court: C. Hari Shankar, J., after a wholesome discussion, rejected the idea of the constitution of a “two-tier” Confidentiality Club proposed by InterDigital Technology Corporation, and instead suggested the terms for constitution of a single-tier Confidentiality Club.

Factual Background

Xiaomi Corporation has been sued by Interdigital Technology Corporation alleging infringement of Indian Patents Nos 262910, 295912, 298719, 313036 and 320182.

Standard Essential Patents (SEPs)

Xiaomi has been using the technology contained in Standard Essential Patents (SEPs) without obtaining the license from Interdigital.

Hence in view of the above, Interdigital has sought a permanent injunction against Xiaomi from manufacturing, selling, assembling, distributing, advertising, exporting, importing or using, in their devices, technology which infringes the SEPs.

In the alternative, a direction has also been sought to XIAOMI, to take a license from Interdigital, for usage of its SEPs, on fair reasonable and non-discriminatory (FRAND) terms to be fixed by this Court.

InterDigital filed IA’s under Oder XXXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 and Chapter VII Rule 17 of the Delhi High Court (Original Side) Rule, 2018.

Chapter VII Rule 17 of the Original Side Rules reads thus:

“17. Confidentiality Club. – When parties to a commercial suit wish to rely on documents/information that are commercially or otherwise confidential in nature, the Court may constitute a Confidentiality Club so as to allow limited access to such documents/information. In doing so, the Court may set up a structure/protocol, for the establishment and functioning of such Club, as it may deem appropriate. An illustrative structure/protocol of the Confidentiality Club is provided in Annexure F. The Court may appropriately mould the structure/protocol of the Club, based upon the facts and circumstances of each case.”

Confidentiality Club Regime is standard protocol, especially while dealing with litigations involving allegation of patent infringement.

Bench in the instant case is concerned whether the Confidentiality Club could be set up in the manner sought by InterDigital.

What kind of Confidentiality Club does Interdigital seeks to be set up?

It seeks setting up of a “two-tier” Confidentiality Club, comprising an “outer tier” and an “inner tier”. The documents which would be open to the members of the “outer tier”, are denoted, in the application of InterDigital, as “Confidential Information”, whereas the documents, to which members of the “inner tier” alone would have access, had been denoted as “Legal Eyes Only (LEO) Confidential Information”.

Parties, as well as their officials and employees, would have no access to the “inner tier” documents.

Mr Parvin Anand has stated that the exclusion of representatives of the parties, from having access to the inner tier documents is non-negotiable.

Bench posed two queries to Mr Parvin Anand, which were as follows:

  • How an advocate could be expected to be appropriately instructed, if he is unable to share, with his clients, the material on which the OP seeks to rely?
  • How the Court could come between the advocate and his client, insofar as the “inner tier” documents were concerned, and injunct the advocate from disclosing the documents to his client?

Wouldn’t the above-stated amount to an unwelcome and unjustified, incursion by the Court into the sacred space that exists between the client and counsel?

Mr Anand submitted that no occasion would arise for the Court to come in between the client and counsel as, if this Court were to accede to the prayer, of InterDigital, for setting up of the “two-tier” Confidentiality Club, it would be for Xiaomi to instruct its Counsel not to disclose, to it, the “inner tier” documents.

Court was befuddled with the above response and expressed that it does not understand how the Court could insist on Xiaomi contracting with its counsel to keep documents shown to its counsel and on which InterDigital relies against Xiaomi, undisclosed to Xiaomi itself.

Hence, the Court held that it cannot by judicial fiat, impose any such contractual dispensation between Xiaomi and its Counsel.

Bench’s opinion on setting up of ‘Confidentiality Club’

Bench in very clear words opined that the mere fact that Courts, overseas, may have acquiesced to the setting up of such Confidentiality Clubs cannot be of any substantial significance, in deciding the present application of InterDigital.

Bench relied on the decision of this Court in M. Sivasamy v. Vestergaard Frandsen A/S, 2009 (113) DRJ 820 (DB), wherein the following was the Court’s observation:

“…with respect to the litigation in India, the Courts in this country would be guided by the provisions of the Laws as applicable in this country and the pleadings in the suit in this court and not by any orders or decisions of the foreign court, unless, the decision of the foreign Court becomes final and so that it can operate as res judicata between the parties and operate in the parameters of Section 13 and Section 44-A of the Code of Civil Procedure, 1908.

No useful purpose will be served in making reference to various orders of the Courts in the different countries as one does not know what are the ingredients/requirements of causes of action of the different laws of those countries and what were the pleadings of the cases in the foreign courts.”

Bench needs to decide on whether “comparable patent licence agreement” could be justifiably included in an ‘inner tier’ of confidential documents, to be kept away from the eyes of the defendant, as well as all its officers and employees?

Court denied the prayer for keeping certain documents, and information, inaccessible to Xiaomi and its personnel, and allow access, thereto, only to the advocates and experts nominated by Xiaomi.

Whether “two tier” Confidentiality Club legally palatable in the mind of the Court or not?

In case the Court finds the request, of InterDigital, for setting up of a “two-tier” Confidentiality Club, to be acceptable, the benefit thereof would, naturally, ensure to Xiaomi as well. The question, therefore, is not whether Xiaomi would also get the benefit of such an arrangement, but of whether such an arrangement is, to the mind of the Court, legally palatable or not.

No civil suit, be it for enforcement of rights relating to intellectual property, or any other right, can claim innocence to the rigour and discipline of the CPC and the Specific Relief Act, 1963.

Further, the Court observed:

Whether either of the parties, to litigation, needs, or does not need, to see a particular document, would be a decision which essentially rests with the party itself.

Can InterDigital, simply put, assert that Xiaomi does not need to see a document on which InterDigital places reliance, to contest the case initiated by it against Xiaomi?

For the above-stated Court’s opinion was in negative and bench relied on the observations in the decision of Transformative Learning Solutions v. Pawajot Kaur Baweja, 2019 SCC OnLine Del 9229, in paras 23 and 24.

Adding to its observations Court also stated that:

Patent infringement, in the case of SEPs, has, however, a unique feature. A holder of a SEP is not entitled, of right, to seek an injunction against infringement of its SEP, merely on making out a case of such infringement. This, essentially, means that every holder of a SEP is required, in law, to agree to the licensing of its SEP to willing licensees.

Court noted that the plaintiff desires to include the license agreements in the ‘inner tier’ to be kept away from the eyes of the defendants as well as all their officers and employees.

Bench found the above suggestion to be completely antithetical to, and destructive of, the most fundamental notions of natural justice and fair play.

Court again stressed upon the fact that while penning this judgment, it is only addressing the prayer of InterDigital, for the constitution of a two-tier Confidentiality Club, consisting of “inner tier” and “outer tier” documents.

In line of the above position, Court remarked:

Permitting the constitution of such a Club would amount to granting blanket permission, to InterDigital, to keep certain documents away from Xiaomi, its officers and its employees.

Adding to the above, Court also stated that in case the parties are able to agree and arrive at a level playing field, then this judgment shall not come in the way of their doing so.

As the Bench is only concerned with the issue of whether such an arrangement as being discussed can, against its wishes be imposed on Xiaomi.

Court further dealt with the Annexure-F to the Original Side Rules which is cited as “an illustrative structure/protocol of the Confidentiality Club” which may be “appropriately moulded” by the Court.

Membership of the Confidentiality Club, constituted in the manner envisaged by Annexure F is, clearly, limited to three advocates and not more than two external experts. Mr Anand submitted, relying on this Annexure, that the parties, and their officials and representatives, may legitimately be excluded from the Confidentiality Club constituted by the Court.

Bench asserted that, if InterDigital can come to terms with Xiaomi, and they agree, ad idem, to the constitution of such a Confidentiality Club, in which “inner tier” documents would remain away from the prying eyes of InterDigital and Xiaomi, as well as their officers and employees, this order shall not stand in their way. As of today, however, Xiaomi is not agreeable to such an arrangement.

Client-Lawyer Relationship 

Further, stating that the client-lawyer relationship in Indian Law, has its own distinct incidents, Bench relied on the Supreme Court decision in Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373.

Supreme Court in its’ decision of An Advocate v. B.B. Haradara, 1989 (1) ARC 72 (SC) and Om Prakash v. Suresh Kumar, 2020 SCC OnLine SC 100, iterated that the duty of advocates to act, at all times, under instructions from their clients.

SEP infringement litigation cannot be treated as a category sui generis, to which the principles enunciated in these decisions, as well as the Bar Council of India Rules, would not apply.

Court cannot trust such arrangements discussed above upon Xiaomi, without its consent, in the absence of any clear right having been established by InterDigital, for the imposition, on Xiaomi, of such an arrangement.

During the course of the hearing, the thought came to the Court several times that – What if XIAOMI is unwilling — as it is, in the present case – for the 3rd party license agreements, on which InterDigital relies, to be shown only to its advocates and experts, and not its own officials of personnel?

What if Xiaomi says that it is not willing to contract, with its counsel, to keep undisclosed, from Xiaomi, the documents which have been shown to him?

To the above, Mr Pravin Anand submitted that, having involved Xiaomi in a litigative exercise, by filing the present suit against it, InterDigital can insist on Xiaomi prosecuting the suit, and defending itself against InterDigital, without being shown the documents on which InterDigital proposes to rely.

Bench on hearing the above submission summarily rejected it.

Further, in Court’s view, there can be no question of this Court lending its approval to any arrangement in which the third-party license agreements, constituting the very basis of the case set up by InterDigital against Xiaomi, remain undisclosed to Xiaomi, as well as its officials and personnel and are shown only to advocates (who are not in-house counsel) and experts. Any such arrangement would violate the provisions of the Bar Council Rules as well as the law laid down in various decisions including, inter alia, Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373.

No setting up of a “two-tier” Confidentiality Club

While concluding its decision, Court held that there is substance in Mr Pravin Anand’s submission that InterDigital cannot, very well, disclose details, in third-party license agreements which, as agreed between InterDigital and such third parties, are required to remain confidential. At the same time, InterDigital cannot, rely on such material against Xiaomi, holding the material back from the representatives of Xiaomi on the plea of confidentiality. InterDigital is, therefore, at liberty to redact, from the documents being treated as confidential, any such detail which, according to it, cannot be disclosed to any third party, including the representatives of Xiaomi.

Though if, Xiaomi agrees to the constitution of such a Club, then this Order would not stand in its way.

Bench held that instead of a “two-tier” Confidentiality club, a single-tier Confidentiality Club can be constituted in the following terms:

(i) Each party shall nominate four advocates, six representatives and two experts, who would constitute the confidentiality club.

(ii) The members of the confidentiality club alone shall be entitled to inspect the confidential information. In the case of the advocates and experts, such inspection would be to the extent such inspection is required in order to perform their professional duties in relation to the present proceedings on behalf of the party by whom they are engaged.

 (iii) The documents, regarded as “confidential information” would be filed in sealed cover, to be retained with the Registrar General of this Court under seal and in safe custody.

(iv) The members of the confidentiality club shall be entitled to inspect the confidential information before the Registrar General and, after the inspection is over, the documents and information shall be resealed and returned to the Registrar General.

 (v) The members of the confidentiality club shall be bound by confidentiality orders passed by this Court and will not be allowed to make copies, disclose or publish the contents of the confidential information or documents anywhere else or to any individuals who are not privy to the confidential information, including in other legal proceedings or oral and written communications to the press, etc.

(vi) During the recording of evidence and other proceedings of this Court with respect to the confidential information, or when the confidential information is being looked at, only members of the confidentiality club shall be allowed to remain present. Such proceedings will be conducted in camera.

  (vii) Any evidence, by way of affidavit or witness statement, containing confidential information shall also be kept in a sealed cover reflecting the confidential and designation, with the learned Registrar General, and would be accessible only to the members of the confidentiality club.

(viii) Neither party would be permitted to rely on any material which is not disclosed to the nominated representatives (as opposed to advocates and experts) of the opposite party. Should either party feel that any details, contained in any document, cannot be shown to the nominated representatives of the opposite party, it is at liberty to redact such details or particulars from the document(s) in question. Needless to say, the party that redacts any particular is, in any document or evidence, shall not be permitted to rely on such a redacted particulars. It shall, however, be open to the opposite party to plead that disclosure of such redacted material is necessary for its defence. In such a case, the court would decide, on a document-to-document basis, whether redacting of the “confidential” details, in the document, should, or should not, be allowed. This, in Court’s opinion, is the maximum extent to which the plea, of InterDigital, for keeping away, from the representatives of Xiaomi, “confidential” details and documents, can be accommodated.

(ix) The confidential documents/information shall not be available for inspection after disposal of the matter, except to the parties producing the same.

Hence, the application stands disposed of in the above terms. [Interdigital Technology Corpn. v. Xiaomi Corpn., 2020 SCC OnLine Del 1633, decided on 16-12-2020]


Advocates for the parties:

For the plaintiffs: Pravin Anand, Vaishali Mittal, Siddhant Chamola and . Pallavi Bhatnagar, Advocates.

For the Defendants: Saikrishna Rajagopal, Siddharth Chopra, Sneha Jain, Garima Sahney, Anu Paarcha, Dr Victor Vaibhav Tandon, Arjun Gadhoke and Charu Grover, Advocates.

Case BriefsHigh Courts

Punjab & Haryana High Court: In an interesting order, Arun Monga, J acknowledged a lawyer’s commitment towards discharging his duty to his client as he had kept his Doli ceremony on hold to appear in a matter through video conferencing. The lawyer had got married a day before the hearing.

The Order read,

“At this stage, learned counsel for the petitioner opposes the adjournment and submits that he has been sitting since morning waiting for this matter to be heard. Notwithstanding his personal difficulty, as he got married only yesterday night, and morning ceremony of Doli has been on the hold due to him, since he has been throughout sitting in the video conference, waiting for his turn in the larger interest of discharging his duty to his client. This court wishes him a blissful and happy married life.”

The matter related to delay in filing of challan. Adjourning the matter to December 15, 2020, the Court, considering the inordinate delay in filing the challan by the prosecution, granted interim anticipatory bail to the petitioner, subject  to filing a report qua the conduct/antecedents of the petitioner.

[Angrej Singh v. State of Punjab, CRM-M-23046 of 2020, order dated 28.10.2020]

Case BriefsHigh Courts

Madras High Court: G.K. Ilathiraiyan, J., observed that, Section 500 of the Penal Code, 1860 cannot be attracted wherein an advocate acts professionally on the instructions of his or her client.

The reason for present criminal original petitions was to quash the proceedings of Metropolitan Magistrate having been taken cognizance for the offences under Sections 500, 192 read with 34 of the Penal Code, 1860.

Five accused persons are there in the present petition, in which the petitioners are arrayed as A1 to A5. The second accused is an Advocate who appeared on behalf of other accused persons.

A1 to A5 are members of the Committee of Creditors. Respondent was initially appointed as the Insolvency Resolution Professional of Oceanic Edibles International Limited which is undergoing Corporate Insolvency Resolution Process by the National Company Law Tribunal, Chennai.

In light of several allegations against the respondent, accused persons filed an application seeking appointment of another Resolution Professional, after which the respondent was removed and another person was appointed as Resolution Professional.

Respondent stated that petitioners made statements which were defamatory in nature resulting in defaming his reputation.

Statements like:

a) Resolution Professional “is not up to the expected standard” (para 21)

b) “He is only keen on entering into the brawl with everyone, thus undermining the judicial process, if he is allowed to continue the interest of COC will be jeopardized”(para 21)

c) COC had already lost precious 50 days from the date of his appointment, no effective business has been conducted to evolve the resolution process in a forward-moving directions (para 22)

d) Resolution professional has misrepresented to media violating the code of conduct (para 23)

e) seeking amendments in IBC is beyond the Rps scope(para 18)

f) resolution professional again sent mails to the top executives wherein he had made statements to the top executives in a very unethical manner and uncalled for (para 19)

Petitioner Counsel submitted that the petitioners were members of COC vested with statutory powers under the IBC to replace the Resolution Professional in the manner provided under IBC. Accordingly, they instructed their counsel namely the second accused to filed an application before the NCLT.

In view of the above, Court stated that it would not attract offence under Section 499 IPC.

Section 499 IPC:

Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Bench stated that the statements of the petitioners do not attract Section 499 of IPC. A2 was an advocate for other accused persons and filed an application on the instruction of COC before the NCLT to remove the respondent.

Petitioners Counsel relied on the decision in Ayeasha Bi v. Peerkhan Sahib,1953 SCC OnLine Mad 3, wherein it was held that,

“…a lawyer is an advocate, one who speaks for another.Naturally beyond what his client tells him the lawyer has no opportunity to test the truth or falsity of the story put forward by the client.”

Kerala High Court in K. Daniel v. T. Hymavathy Amma, 1985 SCC OnLine Ker 110, held that the English Courts have reiterated the view during last four hundred years that the statements made by Judges, Juries, counsel, parties and witnesses in the course of judicial proceedings are not actionable in civil law for defamation as the occasion is absolutely privileged. 

Supreme Court along with various High Courts repeatedly held that,

an advocate who acted professionally as per the instruction of his or her client cannot be made criminally liable for offence of defamation under Section 500 unless contrary is alleged and established.

Hence, the Court allowed the criminal original petitions and the entire proceedings on the file of the Metropolitan Magistrate Court, Chennai. [M.L. Ganesh v. CA V. Venkata Siva Kumar, 2020 SCC OnLine Mad 2732, decided on 30-09-2020]

OP. ED.SCC Journal Section Archives

Mahatma Gandhi has been recognised throughout the world as a glorious symbol of truth and non-violence. He laid great emphasis on the purity of means for achievement of noble ends. Truth is as old as the Himalayas. Everyone knows its value and strength but Gandhiji applied it in every aspect of his life and proved that one could achieve success even in the most difficult areas of his activities by sticking to truth. There is an erroneous belief that to be a successful lawyer one has to twist facts and sometimes present certain facts which are not wholly true. But this was not so with Gandhiji. He had been in search of truth from his early life. There are a number of incidents in his life which go to show that he followed the path of truth even in the face of numerous difficulties. He disproved the theory that without using untruth no one could be a successful lawyer. He held that ‘it was not impossible to practice law without compromising truth’.

He had expressed that in England and South Africa lawyers were consciously or unconsciously led into untruth for the sake of their clients. He vehemently opposed an English lawyer when he advocated that the duty of a lawyer was to defend a client even if he knew that he was guilty. Gandhi on the other hand was emphatic that the duty of a lawyer was to place correct facts before the judge and to help him to arrive at the truth, and not to prove the guilty as innocent.

Barrister in the making.—Gandhiji passed his Matriculation examination in 1887. Some well-wishers of the family suggested that he should go in for medical profession, while others desired him to join the service of Porbandar State, but on the suggestion of Joshiji, a well-wisher and adviser of the family, it was decided to send Gandhiji to England to study law. His father was dead. Initially his mother was opposed to the idea of sending him to England for such a long period, but ultimately she permitted him to go, on his taking a vow not to touch wine, women and meat. Gandhiji himself was hesitant to go in for law in England because of his poor knowledge of English and secondly he was afraid of studying Latin, which was so essential to an understanding of law books. In spite of all these considerations he decided to study law in England. After passing his law examination he was called to the Bar on June 10, 1891 and was enrolled as Barrister the next day in the High Court. His first reaction after his enrolment was “It was easy to be called, but it was difficult to practice at the Bar. I had read the laws but not learnt how to practice law”.

On his return from England he settled at Bombay and started practice. In the profession he had to face another difficulty. In England he was taught Roman Law and Common Law, but this was of no use in India. If he was to practise in India, he had to study Indian Law. Civil Procedure Code and Evidence Act appeared to him very difficult. Finding a Gandhi somewhat pertured, a leading Barrister of Bombay at the time, Mr Frederick Pincutt, advised Gandhi: “I understand your trouble. Your general reading is meagre. You have no knowledge of world, a ‘sine quanon’ for a Vakil. You have not even read the History of India. A Vakil should know human nature. He should be able to read a man’s character from his face”. Mr Pincutt said all this in good faith, but he himself could not read in the face of Gandhi that one day he was going to be the greatest leader of India, who will be respected all the world over.

First case—A failure.—When he got his first case in the Small Causes Court, he was asked to part with a portion of his income for the tout, who had brought the case. He refused to pay the tout, because he felt it was a sort of bribery. Even after accepting this case he had no courage to conduct it. In his own words he describes the experience of his first case as follows: “I stood up, but my heart sank into by boots. My head was reeling and I felt as though the whole Court was doing likewise. I could think of no question to ask. The judge must have laughed, and the Vakils no doubt enjoyed the spectacle. But I was past seeing anything. I sat down and told the agent that I could not conduct the case, that he had better engage Patel and have the fee back from him”. During his short stay of six months at Bombay, in spite of his hard labour, his income was so meagre that he could not afford to go to Court in a conveyance. He used to walk the distance from his residence to Court and back. But he regularly attended the High Court in order to watch the senior lawyers conducting difficult cases. Because of his failure in his first case he lost confidence in himself and decided not to appear in any case in a law Court in future. He felt that a Barrister’s profession was a bad job. He thought of joining a school as a teacher. Something unexpected happened at this time. He was asked by a senior counsel to draft a memorial pertaining to confiscation of land. His draft was not only approved, but was appreciated by other lawyers. This helped him to regain the lost confidence.

First shock.—From Bombay Gandhiji shifted to Rajkot, where he could manage to earn about Rs 300 a month. Here he came to know that a certain percentage of the fee was to be given to the Vakil who sent work to him, but he did not remember to have given money to any Vakil on this account. Here too circumstances did not permit him to practise for a long time. His elder brother persuaded him to recommend to the Political Agent certain official matter concerning his brother which was pending before him. The Political Agent did not like this interference and he got Gandhi out of his office through a peon. Gandhi threatened the Political Agent to take legal action against him for his misbehaviour, but had to abandon this idea on the advice of Sir Feroz Shah Mehta, a leading lawyer practising there. He described this incident as the first shock of his life.

Coolie Barrister.—Because of the above incident, it became difficult for Gandhiji to appear before the Political Agent in any case. He, therefore, wanted to leave the place and God helped him. He was offered a job by Messrs. Dada Abdulla & Co. to go to South Africa to help the Company in it’s litigation there. Gandhiji accepted the offer. When he reached Natal, he found Indians were not given proper treatment by the English. Most of the Indians worked there as coolies. The Indian merchants were also known as coolie merchants. So Gandhiji was nicknamed as ‘Coolie Barrister’. From Natal he went to Pretoria, where he acquired some knowledge of legal practice. Mr Leonard, a leading Barrister, told Gandhiji that in the preparation of each case ‘if he took care of the facts of a case, the law will take care of itself’. Gandhiji acted on this advice and later observed: “Facts mean truth, and once we adhere to truth, the law comes to our aid naturally”.

Gandhiji always liked cases to be settled amicably out of Court, and this is how he thought about it: ‘I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realised that the true function of a lawyer was to unite parties driven as under’. He followed this practice throughout his legal career for about 20 years and was instrumental in settling hundreds of cases out of Court. An advocate of ordinary morals could rarely have such lofty ideas.

After finishing his legal work in South Africa, he decided to return to India, but his friends persuaded him to stay there, as in him they found a person who could give leadership to fight against the highhandedness of the people of the country and insults thrust upon Indians living there by them. Gandhiji himself had been a subject of such insults on a number of occasions. On the pursuation of his friends he applied for enrolment as an Advocate of the Supreme Court at Natal. A number of objections were raised by the local Law Society against his application only to discriminate him on the basis of colour. In spite of all this, he was enrolled as an advocate. Gandhiji gained wide publicity in South Africa because of this episode.

In 1901 Gandhiji returned to India and started his practice in Mufassil Courts, where he won a number of cases, which gave him encouragement and confidence. He was pursuaded by his well-wishers to settle in Bombay and practise at the High Court, where he got some cases, most of which he won. He could now give better performance, and observed: “I prospered in my profession better than I had expected”. He, however, could not stick to the profession for long as he was called to South Africa again, and this time to lead an agitation there.

While practising law, Gandhiji never resorted to untruth. He used to say, “In my heart of hearts I always wished that I should win only if my client’s case was right”. He accepted minimum possible fees, which would help him to make both the ends meet. He was not happy over heavy fees charged by Indian lawyers. In his opinion an Indian lawyer was comparatively the most extravagant and bears no relation to general economic condition of the people. He once said: “The best South African lawyers—and they are lawyers of great ability—dare not charge the fees the lawyers of India do. Fifteen guineas is almost a top fee for legal opinion. Several thousand rupees have been known to have been charged in India. There is something sinful in a system under which it is possible for a lawyer to earn from fifty thousand to one lakh rupees per month”. He was of the view that the best legal talent must be available to the poorest at reasonable rates. While discussing the qualities of a true lawyer Mahatma Gandhi expressed the opinion that he is one who gives truth and service the first place and emoluments the next. Regarding the cheap and speedy administration of justice Gandhi was of the view that to get justice in Indian Courts was an expensive luxury and it was often the longest purse that won. Gandhiji’s principle to follow truth in the profession was put to test a number of times. When any new case was brought to him, he frankly told his client that he would not take up a false case or tutor hired witnesses. This practice made him known in the legal profession as the most honest lawyer. The Courts also gave him much respect and honour. His words carried weight in Courts. It was generally known that the parties having true facts would engage him and win the case. To have such a reputation for a junior lawyer in a foreign country was really creditable. It would be of interest to relate a case here. He was conducting a case which involved complicated account work. The award of arbitrator was in favour of Gandhiji’s client, but there was a serious mistake in the accounts which could have affected the award itself. The senior lawyer engaged in the case was of the opinion that the mistake need not be pointed out to the Court, but Gandhiji vehemently opposed the idea and offered to argue the case himself even in the absence of the senior lawyer. He convinced the judges that the mistake had crept into the accounts inadvertently. The mistake was corrected and the award was modified without any loss to his client. Gandhiji’s reaction on his success was: “I was delighted, so were my client and senior counsel; and I was confirmed in my conviction that it was not impossible to practise law without compromising with truth”.

It will not be out of place to mention here one more instance to show how he stuck to truth in the profession of law. While conducting a case in Johannesburg, he discovered that his client had given him false facts. He requested the Court to dismiss his case. The counsel appearing on behalf of the other side was astonished, but the presiding officer of the of the Court appreciated his moral character. The client was scolded by Gandhiji. In fact he had brought this false case to Gandhiji in the hope to win it on the basis of his reputation, which had spread far and wide, that he accepted only those cases which were based on true facts.

Gandhiji was not only honest and true in accepting genuine cases, he was honest to his clients also. He never tried to conceal his ignorance of any particular aspect of law to his clients and colleagues. Whenever he saw that he required the guidance of a senior counsel, he never hesitated in asking his client to pay extra fee to the senior for his advice. He often discussed his difficulties in law with his colleagues only to gain more knowledge. He was never ashamed of admitting his meagre knowledge on a particular branch of law. The path of truth adopted by Gandhi helped him to increase his clientele and after some time it became difficult for him to cope with his legal work single handed. He, therefore, invited Mr Polak to join him in his profession. He engaged Miss Schlesin also as his Secretary.

The path of ‘Truth’ followed by Mahatmaji saved his intimate and trusted friend Rustamji of South Africa from imprisonment. Rustamji was so near to him that he used to consult Gandhiji even in his domestic and private affairs. He had, however, not informed Gandhiji that he was carrying on smuggling business. When this was detected by Government authorities, it was evident that he will be sent to jail. It was at this stage that he broke the news to Gandhiji and requested him to save him. Gandhiji persuaded him to accept his guilt and he would exercise his utmost influence to save him. He met the Attorney General and Customs authorities and made them to agree to impose fine on his friend and not to take up the case in law Court. This incident saved his friend from going to jail, but for Gandhiji it was a victory of truth and honesty. His faith in truth became all the more sublime.

****

[We wish to add to the above saga of truth—Gandhiji as a Lawyer—an epistle as an epitome which would demonstrably show how this apostle of truth was Truth cent per cent even when he was arraigned as an accused for the offence of sedition under Section 124-A of the Penal Code, 1860. We pen down a short sketch of what has been called ‘The Trial of Mahatma Gandhi’, written some years ago by me—Hony. Editor].

THE TRIAL OF MAHATMA GANDHI

Mahatma Gandhi had faced many a prosecution in his crusade of non-violence and disobedience against foreign yoke. But the very first trial he had to face after he returned from South Africa is a memorable one insofar as it highlighted how Indian patriotism fought against British Imperialism. The modus operandi of Mahatma Gandhi was unique, admirable and truthful.

Gandhiji’s arrest on March 8, 1921, stirred the nation to its depths. He was so venerated that the people of India associated his acts with DHARMA while the act of the bureaucracy was considered as ADHARMA.

Gandhiji was taken to Sabarmati jail along with Banker, the printer, and later they both were produced before Mr Allen Brown, I.C.S. The trial was before Mr C.N. Broomfield, District and Sessions Judge of Ahmedabad. The offences consisted in publishing three articles in YOUNG INDIA under captions, “Tampering with Loyalty”, “The Puzzle and Its Solution”, and “Shaking the Manes”. The charge was that by these articles Gandhiji brought into hatred and excited disaffection towards His Majesty’s Government and thus committed the offence of sedition under Section 124-A of the Penal Code, 1860.

The Court was crowded with anxious people. When the charges were read and explained, Gandhiji instead of claiming to be tried pleaded guilty.

Gandhiji: I plead guilty to all the charges. I observe that King’s name has been omitted from the charge and it has been properly omitted.

Judge: Mr Banker, do you plead guilty or claim to be tried?

Banker: I plead guilty.

This took the wind out of the prosecution. Sir J. Strangman desired that despite this plea, the trial be proceeded with. The bureaucracy wanted to proclaim how serious was the charge and publicity would mar Gandhiji’s reputation.

Judge: No. The plea of guilty is clear. The mere recording of evidence would make no difference one way or the other. I, therefore, propose to accept the plea.

This suited Gandhiji and he smiled. The Court called upon both sides to state what will be the proper sentence to be passed.

Strangman: A full trial can help in assessing the evidence and the sentence to be passed. In view of Your Lordship’s attitude, I can only draw on the proceedings before the Committing Magistrate for demanding a heavy sentence. The matter which is the subject of the present charges formed part of the campaign to spread disaffection openly and systematically to overthrow the Government. The articles in question published in YOUNG INDIA were not isolated but formed part of an organised campaign from its inception in 1921.

The Advocate General then read out the offending passages and pressed for severe sentence.

Judge: Mr Gandhi, do you wish to make a statement on the question of sentence?

Gandhiji: I would like to make a statement.

Judge: Could you give it to me in writing to put it on record?

Gandhiji: I shall give it as soon as I finish reading it. I have, however, a few introductory remarks to make. I entirely endorse the learned Advocate General’s remarks in connection with my humble self. I think that he was entirely fair to me in all the statements he has made because it is very true and I have no desire whatever to conceal from this Court the fact that to preach disaffection towards the existing system of Government has become almost a passion with me, and the learned Advocate General is also entirely in the right when he says, that my preaching of disaffection did not commence with my connection with YOUNG INDIA but that it commenced much earlier; and in the statement that I am about to read, it will be my painful duty to admit before this court that it commenced much earlier ……….. I wish to endorse all the blame that the learned Advocate General has thrown on my shoulders in connection with the Bombay occurrences, Madras occurrences, and the Chauri Chaura occurrences ……….. He is quite right when he says that as a man of responsibility, a man having received a fair share of education, having had a fair share of experience of the world, I should have known the consequences of everyone of my acts. I know that I was playing with fire. I ran the risk and if I am set free, I will still do the same. I have felt this morning that I would have failed in my duty, if did not say what I said here just now. I want to avoid violence. Non violence is the first article of faith. It is the last article of my creed. But I had to make my choice. I had either submit to a system which I have considered had done an irreparable harm to my country, or incur the risk of the mad fury of my people bursting forth, when they understood the truth from my lips. I know that my people have sometimes gone mad. I am deeply sorry for it and I am therefore here to submit not to a light penalty but to the highest penalty. I do not ask for mercy. I do not plead any extenuating act. I am here, therefore, to invite and cheerfully submit to the highest penalty that can be inflicted on me for what in law is a deliberate crime and what appears to me to be the highest duty of a citizen. THE ONLY COURSE OPEN TO YOU, THE JUDGE, IS, AS I AM GOING TO SAY IN MY STATEMENT EITHER TO RESIGN YOUR POST OR TO INFLICT ON ME THE SEVEREST PENALTY IF YOU BELIEVE THAT THE SYSTEM AND LAW YOU ARE ASSISTING TO ADMINISTER ARE GOOD TO THE PEOPLE.

Gandhiji then read a lengthy statement which concluded thus: “In fact, I believe that I have rendered a service to India and England by showing in non-cooperation the way out of the unnatural state in which both are living. In my humble opinion, non-cooperation with evil is as much a duty as is co-operation with the good”.

The Judge: Mr Broomfield passed the judgment addressing Gandhiji thus:

“Mr Gandhi, you have made my task easy in one way by pleading guilty to the charge ……… The law is no respector of persons. Nevertheless it will be impossible to ignore the fact that you are in a different category from any person I have ever tried or am likely to have to try. It would be impossible to ignore the fact that in the eyes of the millions of your countrymen you are a great patriot and a great leader. Even those who differ from you in politics look upon you as a man of high ideals and of noble and even of saintly life ……….. It is my duty to judge you as a man subject to the law, who by his own admission, has broken the law and committed what to an ordinary man must appear to be grave offence against the State. I do not forget that you consistently preached against violence and that you have on many occasions, as I am willing to believe, done much to prevent violence. But having regard to the nature of your political teaching and the nature of many of those to whom it was addressed, how you could have continued to believe that violence wouldn’t be the inevitable consequence, it passes my capacity to understand …… You will not consider it as unreasonable,. I think, that you should be classed with Mr Balagangadhar Tilak, i.e., a sentence of two years’ imprisonment on each count of the charge, six years in all, which I feel it my duty to pass upon you.”

As to Banker he was sentenced to one and a half years as he was deemed to have acted under the influence of his chief. Gandhiji prayed for leave to say a few words which Judge Broomfield allowed.

Gandhiji stated:

“I just want to say that I consider it to be the proudest privilege and honour to be associated with the name of Lokamanya Balagangadhar Tilak. So far as the sentence itself is concerned I certainly consider it as light as any Judge would inflict on me and so far as the whole proceedings are concerned I must say that I could not have expected greater courtesy.”

So ended the trial which created quite a sensation at the time.


* Research Officer, (Law) U.P. Government

**  This Article was first published in Supreme Court Cases 1970) 1 SCC J-7. It has been reproduced with the kind permission of Eastern Book Company

IDIA

Here’s the story of Biswajit Shil, an IDIA Scholar:

Background

My name is Biswajit Shil and I am studying at the WB National University of Juridical Sciences. I did my schooling from Ramakrishna Mission Blind Boys Academy. I belong to the South Dinajpur district of West Bengal. I belong to a middle-class Bengali family.

My father is a farmer and a small businessman and my mother is a housewife. We are three brothers and one sister. Two of us are visually challenged. From my childhood, I am fighting against my physical disability and because of this, I had to face various kinds of problems in my life. Due to my disability, I also felt sad at times. From the beginning of my educational life, I was in a boarding school. After leaving home, I learned, socializing, how to overcome my disability, how to adjust with the other people and how to present myself in front of the society.

I can recall that I was neglected by some people before starting my education but they also appreciate me at present. Now I feel proud of myself because I am more eligible than many people of the society in spite of being physically disabled.

Preparation for CLAT

I am fond of listening to and playing music. I learned to play the violin in my school. I am fond of reading stories and novels as well. The role of IDIA in my life is incomparable and it is like a blessing of God on me. A sensitization programme was conducted by IDIA in our school. I was impressed by law as a meaningful career option and therefore I attended INAT for becoming an IDIA trainee. I did not do well in the first attempt and I was disappointed. I appeared again the second time and I got selected as an IDIA trainee. For preparing for CLAT, IDIA provided me training through admission to a coaching center. The IDIA members of NUJS also guided me with great care. Then I appeared for CLAT and got admission to the WB National University of Juridical Sciences.

Law School & the Hurdles

After coming to law school, I faced many kinds of problems. For instance, I come from a Bengali medium school and as such, the English language is a big issue for me. I do not know English well. For being a good lawyer, writing skills must be good, but I feel that my writing skills are very poor. I am determined to improve the same. My communication skills are not so good, as a result, I feel difficult to participate in the class properly. I cannot complete my everyday lessons in time. I face difficulties in doing my projects work as well. Apart from this, I cannot access the online database independently because I have low knowledge of computers. So, I am unable to do research work properly. As I cannot use hard copy material, I have to take the help of technology. Therefore, I feel I must take computer training.

IDIA Volunteers

After the classes, if I feel any difficulties, IDIA volunteers are eager to help me as much as they can. After coming to law school my confidence level has increased a lot. I hope that I can improve myself and I will be able to reach my goals in life of becoming a good lawyer and most importantly, a good human being.


About IDIA:

IDIA is a pan-India movement to train underprivileged students and help transform them into leading lawyers and community advocates. IDIA is premised on the notion that access to premier legal education empowers marginalized communities and helps them help themselves. IDIA selects and trains students from underprivileged backgrounds (IDIA Trainees) to crack top law entrance examinations in India. Once they are admitted to top law colleges, it provides a scholarship to these students (IDIA Scholars) that comprises financial support, training and mentorship among other things.

Read more about IDIA here: https://www.idialaw.org/

Get in touch with them here: info@idialaw.org


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Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Attau Rahman Masoodi and Rajeev Singh, JJ., addressed the matter wherein the Government Counsel who has been alleged for raping a young practicing lawyer, has challenged the FIR lodged against him and sought a direction to police to not arrest him.

Present matter is pertaining to a complaint filed by a Lawyer against a Government Counsel who raped the lawyer in her chamber.

Counsel for the informant prayed for a week’s time to file counter affidavit, to which Court granted the said time.

A.G.A. pointed out that the contents of the FIR reflect that some relevant material was left at the place of occurrence i.e. chamber of the petitioner(accused). In the fitness of things, he prayed that such material may also be taken into custody by the investigating agency as the chamber of the petitioner(accused) is sealed.

Hence, in view of the above, Court in view of being satisfied that a case for intervention is made held that the petitioner (accused) may not be arrested under Sections 328, 354(A), 376 IPC till next date of listing.

Court also directed that petitioner shall co-operate with the investigation by making available as and when called for. He may also not indulge in any activity subjecting the complainant to any intimidation or causing any threat to her life or property. [Shailendra Singh Chauhan v. State of U.P., 2020 SCC OnLine All 890, decided on 31-07-2020]

High Courts

Kerala High Court: While dealing with a matter before the Court where a State Brief, who was appointed for the appellant to prosecute the Criminal Appeal filed by him against conviction and sentence under Section 302 of the Penal Code, expressed his desire to withdraw from the case as he is facing difficulty to conduct the case “by telling lies in the Court”, a division bench of K. T. Sankaran and Babu Mathew JJ, opined that the State Brief cannot express his view to the Court about the falsity or otherwise of the case of the accused.

The Court stated that it is not the duty of the State Brief or any lawyer to tell lies before Court while defending an accused, infact he is duty bound to present the case for and on behalf of the accused with reference to the materials on record and bring to the notice of the Court the facts which will go to the benefit of the accused. The Court added that an advocate should fearlessly defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.

However, in the instant case, the Court directed the Registry to appoint another State Brief to deal with the matter, as the present State Brief has expressed his unwillingness to appear in the case. The Court further directed that the name of the State Brief shall not be mentioned in the judgment and in law journals to avoid embarrassment to the counsel and also not to discourage him. Chandran v. State of Kerala2015 SCC OnLine Ker 9499 decided on 17.03.2015