India Legal - 09 September 2019

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WHERETHEBEST
LEGALMINDS
CONVERGE
LEGAL
LEADERSHIP
CONCLAVE
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S P E C I A L I S S U E
September 9, 2019

VER since the Indian judici-
ary was formally established
in 1949 as one of the four pil-
lars of Indian democracy, it
has, inevitably, faced daunt-
ing challenges. These are
mostly to do with the evolv-
ing nature of Indian society
and the complexities of law,
the introduction of Public
Interest Litigation (PIL) in 1979, and the interface
between the government and the Supreme
Court in the context of what is known as the
Collegium system. Today, the courts are facing an
unprecedented crisis to do with a severe backlog
of cases, or pendency, and in more recent times,
involving the Insolvency & Bankruptcy Code
(IBC) which also faces many challenges which
were not anticipated at the time of its drafting in
2016. The pendency issue has sought to be partly
eased by the introduction of the arbitration and
mediation process, but here too, handicaps remain.
In all this, the key question remains what the
founding fathers of this great nation envisaged in
the Constitution—access to justice for the poor and
the deprived.
It is in that context that the ENC Group
involved itself seriously in independent judicial
review and a search for solutions to the many vex-
ing problems facing the Indian judiciary. The
Group launched India Legal, a politico-legal mag-
azine which focused on issues of law, prominent
cases in court and invited prominent legal minds
to contribute. The Group also started the India
Legal Research Foundation (ILRF), a non-profit
organisation which provides free legal services to
those who cannot afford it. The television arm,
APN, carries regular features on issues of law and
invites legal luminaries to the studio to discuss and
debate issues of contemporary interest.
As a natural extension of such efforts, in 2016,
the Group came up with the idea of a Legal
Leadership Conclave, intended as a series of dis-
cussions across the country where the best legal
minds of India would gather in a convivial atmos-
phere to ideate, debate and ruminate on pressing
judicial issues. The first-ever conclave was held in
Ranchi, an appropriate region to take a critical
look at the reasons why access to justice still eludes
the poor and the powerless. Held in 2016, it was an
unexpected success and attended by the governor
of Jharkhand, the then chief justice of the Jhar-
khand High Court and other luminaries, including
bureaucrats and lawyers. As Governor Droupadi
Murmu explained: “There is a link between pover-
ty and lack of knowledge of law. Law education
should be part of our curriculum so that justice
becomes accessible to all.”
The success of the Jharkhand event inspired the
Group to increase the frequency of the conclaves so
that the series of discussions on a wide range of
contemporary legal issues with the participation of
sitting and retired judges, including former chief
justices and other thought leaders, was accessible
to law students and society at large. Interaction
between the judges was a fascinating exercise,
largely because it brought up subjects generally
discussed in private chambers. No one can deny
that the judiciary faces many crises and the
Conclave is a platform where these can be brought
out in the open for discussion and solutions found.
As one of our regular contributors and chief guests,
Legal Leadership Conclave:
A Unique Initiative
E
4 September 9, 2019

gence, would become the driving force behind
all institutions, including the administration
of justice.
The value of such conclaves is that they expose
law students, invitees and the general public to the
exchange of ideas and problems associated with
the topic and offer them the opportunity to listen
to words of wisdom and experience from an array
of the best legal minds in the country. Former
Chief Justice of India TS Thakur did a remarkable
job of appraising the assembled guests about the
existing scenario of arbitration in India. He
emphasised that it must be accessible to people,
regardless of wealth and status, and also stressed
the importance of judges being trained and sensi-
tised towards arbitral awards.
Another key suggestion came from Justice
Srikrishna who headed the high-level committee
that gave official shape to the existing arbitration
process in India. He avowed that the autonomy of
parties was extremely critical and that state
authorities needed to take a
back seat. All the legal lumi-
naries present welcomed the
changes to the Arbitration and
Conciliation (Amendment)
Bill, 2019, but also agreed that
it was a baby step. Summing
up the deliberations, Justice P
Vishwanath Shetty, Karnataka
Lokayukta, urged everyone
present to ponder the future course of action. He
suggested new thinking and training among medi-
ators since no dispute was the same. He urged
them to leave their egos aside and use their persua-
sive skills to earn the goodwill and confidence of
the litigants. Perhaps it was time, he said, that
mediation is treated as a profession with attractive
remuneration.
In that sense, the Legal Leadership Conclave
offers a unique opportunity for erudite and experi-
enced minds to discuss and debate a burning con-
temporary issue with their peers in front of a live
audience which can also ask questions of the panel,
as many did.
Our next conclave is scheduled for Hyderabad
in a few weeks but till then, it is pertinent to note
that the underlying Conclave message reflects the
words of the late civil rights icon, Martin Luther
King: “The moral arc of the universe is long but it
bends towards justice.”
Prof Upendra Baxi, the internationally known
legal scholar, remarked: “The judiciary has perma-
nently been in crisis. …there should be a crisis in
any organisation for it to be saved, or else there
would be no renovation.”
W
ith that in mind, the Group launched its
Western Chapter at the St. Regis Hotel
in Mumbai with a subject that was in
keeping with the city’s status as India’s financial
capital. The Mumbai Conclave decoded the Insol-
vency & Bankruptcy Code, an ambitious piece of
economic reform in India’s history which came
into being in May 2016. It has been adopted by
both creditors and debtors. From real estate devel-
opers to financial institutions to home buyers, IBC
concerns everyone. The inaugural speech by
Justice NV Ramana was peppered with gems from
literature, law and history, but his concluding
analysis was that IBC did not just impact stake-
holders but the economy as a whole. Others who
lent their wisdom, experience
and expertise included Justice
BN Srikrishna, former judge
of the Supreme Court, Justice
Pradeep Nandrajog, chief jus-
tice of the Bombay High Court
and former law secretary PK
Malhotra. None of this would
have been possible without
our sponsors and the tireless
efforts of Rajshri Rai, editor-in-chief of APN,
Pradeep Rai, senior Supreme Court advocate and
chairman of the ILRF, and Inderjit Badhwar, edi-
tor-in-chief, India Legal.
Within three months, the third Legal Leader-
ship Conclave inaugurated its Southern Chapter in
the thriving IT capital of Bengaluru, where the
subject was once again of contemporary relevance.
Held at the Taj West End, the theme was
“Challenges and Future of Arbitration and
Mediation in India”. It is, again, a subject that is so
crucial considering the huge backlog of cases clog-
ging our courts, leading to delayed justice.
Arbitration and mediation are increasingly becom-
ing a credible and alternative means of dispute res-
olution but it is still beset with problems. Former
Chief Justice of India MN Venkatachaliah opined
that arbitration and mediation must become the
new “mantras” for judicial salvation. His core belief
was that technology, including Artificial Intelli-
| INDIA LEGAL | September 9, 2019 5
TheConclavesexposelawstudents,
inviteesandthegeneralpublictothe
exchangeofideasandproblemsassoc-
iatedwiththetopicandofferthemthe
chancetolistentowordsofwisdomand
experiencefromthebestlegalminds.

ContentsVOLUME XII ISSUE43
SEPTEMBER9,2019
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8Reaching Out, Reaching All
The first-ever conclave of India Legal Research Foundation held in Ranchi took a long, hard look
at the reason “access to justice” still eludes the poor and powerless
12IBC Decoded
The Legal Leadership Conclave deliberated on issues affecting the Insolvency and Bankruptcy
Code and brought the best of legal minds together
6 September 9, 2019
JharkhandConclave
MumbaiConclave

Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Former Supreme Court
judge Justice Santosh
Hegde said that judges
should speak inside the
court, not outside, and
public discussion of the
judiciary is unwelcome
Words of
wisdom 28
BengaluruConclave
18Arbitration and Mediation: Need of the Hour
The two popular forms of Alternative Dispute Resolution are important for the judiciary, struggling
to tackle pendency. The Conclave discussed how to make them more popular and effective
StudioConclaves
Former NGT chairman
Justice Swatanter
Kumar who handed
out many memorable
verdicts said that it was
the duty of a judge to
withstand pressure
Pressure
is the key 32
International law
scholar Prof Upendra
Baxi dwelt at length on
the challenges facing
the Indian judicial
system in a captivating
discussion
Touching
lives 40
The father of modern
legal education in India
and Padma Shri, the
late Prof NR Madhava
Menon was felicitated
by the India Legal
Research Foundation
The need
to learn 44
Former Supreme
Court judge and
noted jurist Justice
VS Sirpurkar spoke
eloquently on many
issues facing the
judiciary and India
Faith in
democracy 36

Reaching Out,
Reaching All
Thefirst-everconclaveoftheIndiaLegalResearchFoundation,heldinRanchiinAugust
2016,tookalong,hardlookatwhyaccesstojusticestilleludesthepoorandpowerless.
AddressingthisvexedquestionwasandcontinuestobethemissionofIndiaLegal maga-
zinewhichhasraisedthisissueinallmajorcitiesinIndia,involving judges,lawyers,
bureaucrats,lawstudentsandothersinfindingasolution
BySuchetaDasguptaandSandeepSharmainRanchi
India Legal Conclave/ Jharkhand
AUGUST GATHERING (L-R) Editor-in-chief, India Legal, Inderjit Badhwar; the then chief justice of Jharkhand High Court, Justice Virender Singh; Governor of
Jharkhand Droupadi Murmu; senior advocate, Supreme Court, Pradeep Rai; and senior advocate, Supreme Court, Pravin Parekh, at the Conclave
8 September 9, 2019

services authorities across the country with this
objective in sight, he said.
“It is a matter of great satisfaction for us that
the Jharkhand Legal Services Authority (JHALSA)
and the District Legal Services Authorities are
playing a tremendous role towards giving the citi-
zens access to justice. Apart from enhancing legal
literacy among common people, conflicts are being
resolved through the Alternative Dispute
Resolution (ADR) mechanism in large numbers.
At present, the success rate of mediation in
Jharkhand is 49 percent,” Singh said.
JHALSA and DLSAs are also playing an impor-
tant role in extending a helping hand to victims
of crime, he noted. After an amendment was
HE first-ever conclave
of India Legal on Access
to Justice held in
Ranchi was a resound-
ing success as it was
attended by Droupadi
Murmu, the governor of
Jharkhand, Justice
Virender Singh, then
chief justice of the High
Court of Jharkhand, Justice Anant Bijay Singh,
Justice Apresh Singh, Justice Harish Chandra
Mishra, Pravin H Parekh, former president of the
Supreme Court Bar Association, and other lumi-
naries, including bureaucrats and lawyers. The
conclave discussed how justice for all was a must as
it was a fundamental right but it was not reaching
many of those who needed it most.
There are various causes of unequal justice.
These include lack of infrastructure, shortage of
judges, rising pendency, administrative lapses like
shoddy police investigation, a criminal-politician
nexus, undertrial prisoners not being able to
secure bail even after many years in jail and
so on.
Droupadi Murmu, Jharkhand’s first woman
governor, said that access to justice as a human
rights concept based on dharma was familiar in
ancient India. The State in ancient India was nei-
ther sacerdotal, nor paternalistic. The concept of
dharma was multi-dimensional. It was embraced
and sustained in a compassionate sweep. It gave
birth to both human rights and laws to safeguard
them, she said.
Stressing the link between poverty and lack of
knowledge of law, she said law education should
become part of our curriculum so that justice
becomes accessible for all. She congratulated the
India Legal Research Foundation (ILRF) for its
bold initiative to make justice accessible for all
(see box).
CREATIVE ALTERNATIVES
Making use of the alternative dispute resolution
mechanism is one way to provide access to justice.
Justice Virender Singh noted the importance of
this method of case disposal in jurisprudence and
underscored how it would go a long way in reduc-
ing the already humongous case load on India’s
judges and pave the way for speedy justice.
Enactment of the Legal Services Authorities Act
on the strength of Article 39A of the Constitution
of India opened the way for establishment of legal
T
“It is a matter of great satis-
faction for us that the
Jharkhand Legal Services
Authority and the District
Legal Services Authorities are
playing a tremendous role
towards giving citizens access
to justice. Apart from enhanc-
ing legal literacy among com-
mon people, conflicts are
being resolved through the
Alternative Dispute
Resolution mechanism in
large numbers. At present, the
success rate of mediation in
Jharkhand is 49 percent.”
—Justice Virender Singh
“The mission of the newly-formed
ILRF was to wipe every tear from
every eye. As early as in 1956, the
apex court, while interpreting
Article 14, decided that our
Constitution is not meant only for
the elite, but is also for the butcher,
the baker and the candlestick
maker....A judiciary where access is
gagged and the institutions which
are responsible do nothing to
remove the obstacles ceases to be an
independent system.”
—Pradeep Rai, senior advocate,
Supreme Court, and chairman ILRF

10 September 9, 2019
nicely performing its role as the fourth pillar of
democracy.” He said he agreed with all the issues
that India Legal had raised on concerns like pen-
dency and the reach of justice to all.
WHAT AILS THE SYSTEM
Justice Anant Bijay Singh led an interactive session
with lawyers, NGO representatives, media-persons
and law students. Questions were asked regarding
the ambit of the Right to Information Act, delay in
court hearings, predominance of the English lan-
guage in the conduct of hearings which was a
handicap for the poorest of the poor as well as
other pertinent topics relating to access to justice.
A panel of experts who took part in the conclave
comprised the judge himself, as well as National
Law University Registrar Prof GS Bajpai and sen-
ior advocate with the Supreme Court Pravin
Parekh, among others.
Parekh said the Constitution had ensured jus-
tice and fundamental rights for all, which was
interpreted by our courts in a purposive way. “It is
important that the lowest of the low in the country
get justice at a reasonable cost. Unfortunately,
many clients have to shell out lakhs of rupees today
to get justice,” Parekh said.
Senior advocate Pradeep Rai said that the mis-
sion of the newly-formed ILRF was to wipe every
tear from every eye. He said that as early as in 1956
the apex court, while interpreting Article 14, decid-
ed that our Constitution is not meant only for the
elite, but is also for “the butcher, the baker and the
candlestick maker”. “In subsequent years, it incor-
porated access to justice in Article 21 by various
judicial interpretations. Articles 22(1) and 22(2)
brought in in Section 357A, CrPC, victim compen-
sation schemes were formulated by state govern-
ments. Till June 2016, a sum of `81,061,000 was
disbursed to victims under the Jharkhand Welfare
Scheme 2012 and `13 lakh given out under the
Victim Welfare Fund Rules 2014 as interim com-
pensation to victims, he said.
“Awareness of ADR, coupled with the contribu-
tions of the legal services authorities and organisa-
tions such as the ILRF, are effective means for
combatting the menace of huge numbers of pend-
ing cases and increasing litigation. I feel that
adhering to them will help us reach the ultimate
goal of access to justice for all,” Singh stated.
Justice Singh said it was noteworthy that India
Legal was holding up the legal issues of the day
before society. “Its excellent analysis of our legal
system to strengthen our democracy adds remark-
able value to it. I can say that India Legal has been
Administration of justice was one of the
paramount functions of the State, Droupadi
Murmu, governor of Jharkhand, said, adding that
it was the duty of the State to promote justice on
the basis of equal opportunity and provide legal
aid to all citizens of the country. “The Supreme
Court has emphasised, while interpreting Article
21 in the light of Article 39A, that legal assistance
to the accused who is arrested with jeopardy of
“Jailsarefull
ofpoorpeople”
India Legal Conclave/ Jharkhand
The India Legal Research Foundation (ILRF) is India’s unique legal
aid foundation which provides high-quality legal aid to those unable to
afford it. It is a one-of-a-kind endeavour, which uses various media plat-
forms as well as seminars and events to focus on current issues of con-
sumer affairs, governance, law and policy. ILRF’s media outlets, backed
by a research team of 2,500 lawyers, cover day-to-day court proceed-
ings across India and provide in-depth analyses by legal experts featur-
ing judges, senior advocates and luminaries like the late Madhava
Menon and Upendra Baxi. It has also partnered with prime law colleges
like NLU Delhi, and NALSAR, Hyderabad, for research as well as prime
time media shows.
Two of ILRF’s most popular legal programmes are the India Legal
Show and Legal Helpline. India Legal
Show, aired during prime time on TV, is
a current affairs-based discussion pro-
gramme featuring the nation’s top legal
minds. Legal Helpline is broadcast live
from ILRF’s studio at Noida. It is a Q&A format in which legal associ-
ates provide answers to several queries from viewers and help them
take their cases to litigation. It also provides free legal assistance,
through a network of lawyers, to the needy and campaigns actively to
promote the rights of working women and operates a popular pro bono
monitoring programme in which successful women from across plat-
forms share their experiences and wisdom to eliminate gender bias.
ILRF is backed by a strong and efficient team of writers, contributors,
technicians and journalists who are guided by luminaries of journalism
in India. The Legal Leadership Conclave is another path-breaking initia-
tive of ILRF. It offers a unique platform for discussions held on contem-
porary legal issues involving sitting judges of the Supreme Court and
High Courts and several other legal luminaries and thought-leaders.
Interactive in nature, the Conclave offers the opportunity to ideate,
debate and ruminate with the best legal minds in India.
Auniquepublicserviceinitiative

cases were pending in the Supreme Court. In the
high courts, the figure has crossed a staggering 42
lakh and in the lower courts it is nearly 2.65 crore!
There are only 16,438 judges currently operating in
the lower courts. In the 24 high courts of the coun-
try, there are 621 judges against a sanctioned figure
of 1,079. In the Supreme Court there are 29 judges
while the sanctioned strength is 31.
There are about 80,000 cases pending in
the Jharkhand High Court itself of which more
than half have been pending for over a year. But
there is a silver lining. In the year 2015, the
Supreme Court cleared over 47,000 cases. In 2013,
it was 40,000 cases in which the judges reached a
verdict and in 2014, the judges dispensed with
45,000 cases.
Clearly, we have a long way to go to ensure that
justice reaches the litigant faster, but a beginning
has been made.
specifically ensure access to justice for persons who
are arrested and detained in custody.... A judiciary
where access is gagged and the institutions which
are responsible do nothing to remove the obstacles
ceases to be an independent system,” he said.
Vimal Kirti Singh, former principal secretary,
energy, Jharkhand, pointed out that authorities
should be alert enough to protect the rights of cit-
izens so that they do not have to go to court to
secure them. He also advised automation and digi-
tisation wherever possible to promote efficient
governance. “Karnataka has made sure that the
number of property disputes there goes down. It
has computerised records, making it easy for peo-
ple to access them and confirm which piece of land
belongs to whom.... In comparison, the people of
Jharkhand still take ages to figure out the same
thing,” he said.
INDIA LEGAL’S JOURNEY
India Legal editor-in-chief Inderjit Badhwar said
that soon after launching India Legal it attracted
some of the finest writers, reporters and editors in
the country, many of whom were legends in their
own lifetime.
A short film by APN TV was shown at the
Conclave, highlighting the infrastructural prob-
lems currently plaguing our judiciary.
The film brought home the point that justice
delayed is justice denied. At present, there is only
one judge for 73,000 people or, 17 judges for 10
lakh people. Transpose this with the Law
Commission recommendation saying there should
be 50 judges per 10 lakh people. Pendency of cases
is a serious issue. Till June this year, about 60,000
his life or personal liberty, is a constitutional
imperative mandated not only by Article 39A but
also by Articles 14 and 21. In the absence of
legal assistance, injustice may result and every
act of injustice corrodes the foundations of
democracy,” she said.
She said: “Gaon ke log teen jagah jane se
hichkichate hain—thana, doctor khana aur court.
Sochte hai jo bacha khucha hai, woh bhi chala
jayega.” (People in villages are scared of visiting
three places—police station, doctor’s clinic and
court. They are apprehensive that they will lose
whatever they have.)
“I am aware of these facts as I also come
from the poorest among the poor families,”
she said.
Murmu said that when she visited jails, she
always found them full of poor people who had
no knowledge of the law. It is therefore important
that law education should be included in the
academic curriculum to make justice accessible
for all, she stressed.
She praised the effort of the India Legal
Research Foundation (ILRF) in addressing this
need. “Considering all those important aspects
and the challenges ahead, I express my best
wishes for ILRF. I also commend them for taking
up a bold initiative which will go a long way in
realising the cherished goals enshrined in
our Constitution.”
MOMENTS TO
CHERISH
(Above, L-R)
Registrar
(Establishment),
Jharkhand HC, SK
Singh, Registrar
General Anil Kumar
Choudhary, and
Justices Harish
Chandra Mishra,
Anant Bijay Singh and
Aparesh Singh of the
Jharkhand High Court

ONCLAVES and seminars
are nothing new in India.
But a legal one, that too on a
subject as niche as the
Insolvency and Bankruptcy
Code (IBC), is an altogether
new idea. But then, India
Legal as the only politico-
legal magazine in India and
ENC as a media group, have
always endeavoured and succeeded to a great
extent, to create awareness about various legal
issues that not only affect the common man but the
country at large.
IBC is an ambitious piece of economic reform
in India and provides for a time-bound insolvency
IBC DecodedThefirst-of-its-kindlegalconclave,heldinAprilthisyear,deliberatedonissuesaffectingthe
InsolvencyandBankruptcyCodeandbroughtthebestoflegalmindstogether
ByIndiaLegalBureau
CMEMORABLE OCCASION
Justice NV Ramana of the Supreme Court lighting the
ceremonial lamp at the Legal Leadership Conclave. Also seen
are Chief Justice of the Bombay High Court Pradeep
Nandrajog (extreme right); former Supreme Court judge
Justice BN Srikrishna (extreme left); editor-in-chief, APN,
Rajshri Rai (second from left); editor-in-chief, India Legal,
Inderjit Badhwar (second from right); and former law secretary
PK Malhotra (third from right)
Legal Leadership Conclave/ Mumbai

A majority of SCBA executive committee mem-
bers were also present at the event. They included
Vikrant Yadav, secretary, SCBA; Vikas Bansal,
treasurer, SCBA, and Bhim Singh and Jana Kalyan
Das, both senior executive members.
The Conclave was partnered by India Legal
Research Foundation (ILRF), a non-profit organi-
sation committed to bringing justice to those who
deserve it but cannot afford it, APN and Nepal 1
and presented by ENC.
resolution process. The law, enacted in 2016, has
been adopted by both creditors and debtors. From
real estate developers to financial institutions to
home buyers, IBC concerns everyone, thus impact-
ing the Indian economy and citizen welfare.
It is against this backdrop that the first-of-its-
kind Legal Leadership Conclave becomes impor-
tant. Held at The St. Regis Mumbai on April 27
this year, it brought the best of legal minds togeth-
er to deliberate on issues affecting IBC. Such was
the response that the Astor Ballroom of the hotel—
where the event was held—was chock-a-block with
lawyers, technocrats, industry experts, builders,
law students and others who were either affected
by IBC or wanted to educate themselves about
this unique law.
The Conclave had two technical sessions deal-
ing with subjects, such as “Opportunities and chal-
lenges for IBC” and “Impact of IBC on business
establishments and the real estate sector”. Both the
sessions saw judges from the High Courts, senior
advocates and members of the National Company
Law Tribunals and corporate professionals sharing
their views with the audience.
“IBC is considered a landmark
reform in the area of ease of doing
business. It helps in the resolution
of insolvency issues and helps
refloat a company which is in
financial distress. IBC has reduced
the time taken to wind up a compa-
ny. It will accelerate India’s econo-
my, promote entrepreneurship.
People believe it is a game changer
and will usher in achhe din.”
—Justice BN Srikrishna
AUGUST GATHERING Members of NCLT and SCBA with Justice Ramana (ninth from right, back row), Justice Pradeep Nandrajog (eighth from right, back row),
Justice BR Gavai, then Bombay HC judge and now SC judge (sixth from right, back row), and Justice BN Srikrishna (eighth from left, back row)

B
efore starting my inaugural
speech, I must quote Lord Mish-
con who said that “Insolvency is
not a very thrilling or amusing subject”.
However, as Edward Jenks, the noted
English jurist, said, uninteresting as it
may be, it is nevertheless a very impor-
tant subject area. Insolvency and bank-
ruptcy are subject areas which impact
not only the stakeholders involved direct-
ly but also the economy as a whole.
Laws are essentially crystalised
norms that have emanated out of ideas.
These ideas keep on changing, and so
do our laws. Lawmaking, and interpreta-
tion of the same, is an organic process.
To keep up with this organic process, the
exchange of ideas is pivotal. In light of
this, a leadership summit and conclave,
particularly of a niche area of law, like the
Insolvency and Bankruptcy Code, 2016
(“IBC”), is a welcome move. The
Insolvency and Bankruptcy Code is a
recent legislation and is facing its own
novel challenges. This legal conclave,
organised by India Legal in collaboration
with the Supreme Court Bar Association,
the Maharashtra National Law University,
Mumbai, and the India Legal Research
Foundation, is a phenomenal opportunity
for all of us to discuss, debate and delib-
erate on various issues concerning the
Insolvency and Bankruptcy Code and to
contribute towards the discourse which
will eventually charter the way for this
new legislation.
In recent times, non-performing
assets have threatened to cripple our
banking system and have taken the wind
out of the sails of our economic growth.
To deal with this crisis, the Insolvency
and Bankruptcy Code was enacted as a
comprehensive legislation, reflecting best
practices from across the globe, to pro-
vide for a time-bound insolvency resolu-
tion mechanism. Few would disagree that
the IBC has been a major reform for the
Indian economy. In the three years since
its enactment, 12,000 insolvency cases
have been filed under it and around one
lakh crore rupees have been recovered
through insolvency proceedings. Now
that the Insolvency and Bankruptcy Code
is three years young, it is high time for us
to reflect on its journey and discuss ways
to smoothen its functioning.
IBC is one of the key reforms in the
field of commercial law undertaken in the
last two decades. Earlier, there were sev-
eral mechanisms under various enact-
ments which dealt with insolvency and
bankruptcy in their own limited way, such
as the Recovery of Debts Due to Banks
& Financial Institutions Act, 1993, SAR-
FAESI Act, 2002, the Sick Industrial
Companies (Special Provisions) Act,
1985, the Presidency Town Insolvency
Act, 1909 and the Preferential Insolvency
Act, 1920. In addition, there were also
several RBI mechanisms to deal with
recovery of money including the Cor-
porate Debt Restructure, Strategy Debt
Restructuring for recovery of money.
The object behind enacting the IBC
was to consolidate the existing frame-
work by creating a single law for insol-
vency and bankruptcy. IBC has replaced
some of these mechanisms, while others
continue to exist. For instance, the SAR-
“IBC bypasses High Courts and
was created to deal with insol-
vency and bankruptcy. One of
the issues affecting IBC was the
role of insolvency professionals
who generally lack the ability to
comprehend hardcore business
issues. The 180-day waiting
period is a double-edged sword
and the resolution process can
extend beyond a year.”
—Justice Pradeep Nandrajog
“IBC has the poten-
tial to bring solace
to creditors. It has
considerably
improved the way
we do business and
India today is
admired the world
over for this. The
Leadership Conclave
will go a long way in
improving the way
IBC functions.”
—Justice BR Gavai
Supreme Court judge Justice NV
Ramana spoke at length on IBC in
his inaugural address at the
Conclave. Excerpts from his speech:
IBC–Theroadahead

The Conclave started with the lighting of
the lamp by Justice NV Ramana of the Supreme
Court. Others at the ceremony were Justice BN
Srikrishna, former judge of the Supreme Court;
Justice Pradeep Nandrajog, chief justice of the
Bombay High Court; Rajshri Rai, editor-in-chief
APN and ENC group; former law secretary, PK
Malhotra; and Inderjit Badhwar, editor-in-chief,
India Legal.
In his welcome address, PK Malhotra said:
“IBC is a commendable initiative. It has helped
India leapfrog into the list of countries known for
the ease of doing business. Such is the impact of
IBC today that there is hardly a day where
developments related to it do not get reported in
FAESI Act is an avenue to seek individual
action, whereas IBC is the avenue for col-
lective action.
IBC was also enacted with the object
of ensuring speedy resolution of corpo-
rate insolvency and bankruptcy. The delay
in winding up cases under the
Companies Act had led to destruction of
the value of assets. The doctrine of sepa-
rate corporate identity and limited liability
as propounded in Salomon v. Salomon,
House of Lords (1897), had prevented the
creditors from taking any decisive steps in
the reorganisation of corporate entities
which were controlled only by the direc-
tors, promoters and equity shareholders.
The debtor-creditor relationship in the ear-
lier regime was skewed in favour of the
debtor. This made our country unpopular
to investors, except with respect to a few
companies which had a probability of fail-
ure close to nil. This power imbalance
was noted by the Bankruptcy Law
Reforms Committee in its Report of
November 2015 stating that “the limited
liability company is a contract between
equity and debt. As long as debt obliga-
tions are met, equity owners have com-
plete control, and creditors have no say in
how the business is run. When default
takes place, control is supposed to trans-
fer to the creditors, equity owners have no
say.” Earlier position was therefore much
like what was jokingly suggested by Blake
Odgers wherein he said, “Bankruptcy is
the state of things which exists when, a
man being unable to pay his debts, his
solicitor and an accountant divide all his
property between them.” It was to do
away with this that the IBC was enacted.
IBC reflects a fundamental change in the
basic premise of a “debtor in possession”
to a “creditor in possession”, wherein the
resolution process is market-driven and
primacy is given to commercial decisions.
Thus, IBC has brought about a monu-
mental shift in the resolution process of
corporate debtors by putting the creditor
in control of the company and the existing
board ceding control of the company to
corporate professionals. IBC brings about
a central change in the way distress com-
panies were managed, turning the entire
process upside down. Earlier the man-
agement which led the company to bank-
ruptcy used to retain operational and fin-
ancial control of the distressed company.
As a company judge, I witnessed how the
management of the distressed company
by its promoter often led to significant
deterioration of its assets.
IBC seeks maximisation of the value of
assets, striking a balance between liqui-
dation and reorganisation, ensuring equi-
table treatment of similarly situated credi-
tors, provision of timely efficiency and
impartial resolution. The distinctive feature
of the IBC is that it has created time-
bound resolution process. The statute has
prescribed that the entire insolvency pro-
cess should be completed in 180 days
which would be extended up to 270 days.
The creditors have now direct visibility in
the resolution process. As per the latest
statistics available as on February 28,
2019, 1,683 cases have come under IBC.
Out of these 1,683 cases, 351 have
resulted in liquidation, 88 have been
resolved and 1,019 are undergoing cor-
porate resolution insolvency process.
Overall, in 47 percent of the cases where
the insolvency proceedings have been
concluded, the distressed business con-
tinued to operate as a going concern. The
total realisable amount till February 28,
2019, was `68,766 crore. Since then,
three major resolutions have happened in
three big cases, which resulted in an
additional realisation of `51,267 crore.
Therefore, the total realisable amount
through resolution currently stands at
`1,20,033 crore as on April 3, 2019. This
data clearly shows the growing influence
of the IBC in the Indian insolvency land-
scape as compared to the previous legal
framework of recovery through various
mechanisms like DRT and others. I under-
stand that it has also affected the behav-
iour of promoters, who are eager to pay
off loans to avoid a case being referred to
the IBC. The Supreme Court in the matter
of Swiss Ribbons upheld the constitution-
al validity of the IBC.... Every legislation
requires a continuous review based on
how it is being implemented on the
ground. This is particularly true for a legis-
lation like the IBC.... It is not just the gov-
ernment which should be involved in this
process, but even other stakeholders im-
pacted by this law should constitute a
permanent task force involving experts to
make suggestions to the government. It is
the duty of the government to consider
these changes....
“Three years have passed
since IBC was introduced
in India. The scenario
looks happy and the law
has yielded results.
However, some creases still
need to be ironed out. It is
good to see national law
universities’ students at
this gathering. After all,
they are the future judges
of India.”
—Justice J Bharati
Dangre

the area of ease of doing business. It helps in the
resolution of insolvency issues and helps refloat a
company which is in financial distress. IBC has
reduced the time taken to wind up a company. It
has gone a long way in improving India’s ranking
in the ease of doing business. IBC will accelerate
India’s economy, promote entrepreneurship.
People believe it is a game changer and will usher
in ‘achhe din’.”
P
anellists in the first technical session were
Mukulita Vijayawargiya, member, Insolven-
cy and Bankruptcy Board of India; VP
Singh, NCLT member; Mohan Bhaskar Pantulu,
NCLT member; TK Viswanathan, former secre-
tary-general, Lok Sabha; and Som Sekhar Sunda-
resan, advocate. Justice BR Gavai of the Bombay
High Court, who is now a judge of the Supreme
Court, chaired the panel.
Those on the panel of the second session were
Ravi Kumar Duraisamy, member, NCLT; Justice J
Bharati Dangre of the Bombay High Court; Justice
V Nallasenapathy, member, NCLT; OP Bhatt, dire-
ctor, ONGC, and ex-chairman, Indian Banking
Association; Jana Kalyan Das; and former SCBA
president PH Parekh. Justice Dangre was the
chairperson of the session.
Justice Gavai said that “IBC has the potential to
the press.”
Justice Ramana too acknowledged the impor-
tance of such a Conclave on IBC (see box). He
said: “As a company judge for several years in the
Andhra Pradesh High Court and having heard
company matters in the Supreme Court, I have
been able to witness several challenges faced by
various stakeholders in cases of companies in dis-
tress. After the IBC came into effect, I was
involved in recruiting members for NCLT, which
now hears cases under IBC.”
Justice BN Srikrishna was lavish in his praise of
the IBC. “IBC is considered a landmark reform in
In RERA, home buyers can form an asso-
ciation and complete the unfinished hous-
ing project. In IBC, there can be a com-
mittee of creditors which can be formed
to oversee the plans. Which will be given
priority, as after the 2018 amendment,
allottees have become financial creditors?
V Nallasenapathy: The Supreme Court in
the JP case has observed that it is better
to bring an amendment. On that ground,
an amendment was brought in 2018, say-
ing that allottees have to be treated as
financial creditors. If you want to go to
RERA with a complaint, you can do that,
or else approach NCLT under IBC. The
remedy is almost the same in both.
Jana Kalyan Das: In the JP case, home
buyers were given the status of financial
creditors. It is clearly mentioned in the
judgment that all other forums are avail-
able for redressal. You can also go to the
consumer court.
In the resolution plan, there is a value
called Resolution Plan Value, which is
more or less comparable to the Liqui-
dation Value. The Code does not talk
about comparing Resolution Value with
the Enterprise Value. Liquidation is fallout,
but my objective is resolution. Should
there be an Enterprise Value so that we
can attain the objective of maximisation
of value?
Justice J Bharati Dangre: The resolution
first aims at restructuring and liquidation
is only to be taken as a last resort. The
Code itself provides an insight into all
these objectives but it is necessarily a
resolution mechanism which is to be
adopted, going into liquidation at a later
stage when the resolution is not possible.
It is up to the body of creditors to see
how the value is adjusted. It is discre-
tionary. There is no hard and fast rule.
RK Duraisamy: There is something
called a fair value. This is nothing but
your Enterprise Value. IBC provides that.
The bankers should take a conscious call
as to the value that needs to be adopted,
whether anything between Fair and
Liquidation Values can be considered. A
“Homebuyersgiventhestatusoffinancialcreditors”
The Mumbai Conclave, which decoded the Insolvency and Bankruptcy Code, brought the best of legal minds
together, leading to many questions from the audience. Here are some of them:
EXPERT OPINION
(L-R) TK Viswanathan,
former secretary-
general, Lok Sabha;
Mohan Bhaskar
Pantulu, NCLT
member; OP Bhatt,
director, ONGC, and
ex-chairman, Indian
Banking Association,
sharing their thoughts
at the IBC Conclave

of the issues affecting IBC was the role of insolven-
cy professionals who generally lack the ability to
comprehend hardcore business issues as they do
not have hands-on business experience.
He also said that the existing waiting period is a
double-edged sword and the resolution process
can extend beyond a year as seen in several western
countries. He said that the issues which ultimately
make a company bankrupt should be sorted out
when they germinate.
Justice Ramana concluded the Valedictory
Session, and this was followed by a vote of thanks
by Inderjit Badhwar.
bring solace to creditors. It has considerably
improved the way we do business and India today
is admired the world over for this. The Leadership
Conclave will go a long way in improving the way
IBC functions.”
Justice Dangre said: “Three years have passed
since IBC was introduced in India. The scenario
looks happy and the law has yielded results.
However, some creases still need to be ironed out. It
is good to see national law universities’ students at
this gathering. After all, they are the future judges
of India. The subject of this session, real estate, is
important. Many developments have taken place in
this sector with the advent of RERA. It was in 2018
that the IBC brought in the home buyer as a ‘finan-
cial creditor’ which is praiseworthy.”
The Valedictory Session had Justice Ramana,
Justice Nandrajog and senior advocate Janak
Dwarka Das addressing the audience. Das said
that the IBC had brought back money into the
banking system. It is a game changer and its
principal objective is to revive and maximise the
value of creditors, he said. He dealt at length with
the legal provisions of Section 29A and Section
12A and pointed out the contradictions between
the two.
Justice Nandrajog said that IBC was created to
deal with insolvency and bankruptcy. He said one
call can be taken by COC on any value
that falls between the Liquidation Value
and the Fair Value.
V Nallasenapathy: Whatever the nomen-
clature—Liquidation Value, Fair Value or
Enterprise Value—the markets should
accept it. If there is competition and
many bidders, you will get the price. But
if you insist only on Enterprise Value, you
may end up going to liquidation.
Do the members feel that a limited time
should be allotted to make submissions
because of the pendency of cases in
the NCLT?
RK Duraisamy: See, even though there
is a timeframe, most of the people do not
obey that. We want to give a fair hearing.
If we hear a case for five minutes and 70
cases are listed, you will feel aggrieved.
We are following the process of natural
justice. We often sit late too for hearing
cases.
CRITICAL INPUTS
(L-R) Senior
advocate Janak
Dwarka Das, Ravi
Kumar Duraisamy,
member, NCLT, and
Justice V
Nallasenapathy,
member, NCLT, raising
important issues at
the Conclave

Legal Leadership Conclave/ Bengaluru
Arbitration and
Mediation: Need
of the HourThesetwoformsofalternativedisputeresolutionareimportantforthejudiciarystruggling
totacklependency.Thebestoflegalmindsdiscussedhowtomakethemmorepopular
ByIndiaLegalBureau
AUSPICIOUS BEGINNING (From left) Justice Shivraj V Patil, former judge, SC; PK Malhotra, former law secretary; Justice TS Thakur, former chief justice of India;
Rajshri Rai, editor-in-chief, APN; Inderjit Badhwar, editor-in-chief, India Legal; and Justice MN Venkatachaliah, former chief justice of India, at the lamp lighting
ceremony of the Legal Leadership Conclave

J
ustice MN Venkatachaliah,
former chief justice of India,
in his inaugural address at
the Legal Leadership Conclave in
Bengaluru said: “There are about
34 million cases in the 22,600
subordinate courts in India. Ten
percent of that is in the high
courts, about 60,000 in the
Supreme Court. The World Jus-
tice Report 2019 (Rule of Law
Index) gave India 68th place am-
ongst 126 nations on an evalua-
tion of eight criteria. ‘Civil justice’
is one of them.... In India, the
solution is possible if there is
some authority that owns the
problem. It is too serious a matter
to be left alone to the judges….”
He further said that the mone-
tary loss due to delays in solving
cases was significant and reiter-
ated that institutions, administra-
tion of justice and their methods
need a strong second look. “Law
is said to be one generation be-
hind the needs of the times; the
courts are two generations be-
hind and the judges three!”
he said.
Justice Venkatachaliah
emphasised that arbitration and
mediation must become the new
“mantras” for judicial salvation.
He said this would help in reduc-
ing pendency. Just allocating five
percent of the money spent on
the judiciary for arbitration and
mediation would benefit people
enormously, he said.
Emphasising the maximum
use of technology and its new
tools in the dispute resolution
mechanism, he said that Artificial
Intelligence (AI) would be extre-
mely beneficial and influence all
spheres of life. Technology would
become the driving force behind
all institutions, he said, including
the administration of justice.
Drawing the attention of legal
luminaries present at the event,
Justice Venkatachaliah said that
this technology would also be
the driving force behind the
administration of justice and
would need a new category of
judges who are well-versed in the
technological domain.
Highlighting the importance
of the Conclave, Justice
Venkatachaliah said that “emi-
nent men of law had assembled
at the event to bestow serious
thought on one of the vexed
issues of how traditional legal
methods should be supplement-
ed by more civilised and humane
philosophy of conflict resolution
in India”.
“Arbitration,mediationnew
mantrasforjudicialsalvation”
NEW
PERSPECTIVE
Justice
Venkatachaliah at
the inaugural
session of the
Conclave
FTER the successful
completion of the west-
ern chapter of the Legal
Leadership Conclave in
Mumbai in April this
year, its southern chap-
ter was held in Benga-
luru on August 17 with a
subject that was impor-
tant and relevant for the
judiciary today—“Challenges and Future of
Arbitration and Mediation in India”.
These conclaves are a series of discussions and
events held on a wide range of contemporary legal
issues where judges, legal luminaries and other
thought leaders exchange views. The Bengaluru
Conclave was presented by India Legal Research
Foundation, a non-profit organisation committed
to bringing justice to those who deserve it but can-
not afford it, and was partnered by the ENC Group
along with APN and Nepal 1 as media partners.
Arbitration and mediation could not be more
appropriate subjects for the Conclave considering
the staggering number of cases that the judiciary is
burdened with. Both are the most popular forms of
Alternative Dispute Resolution (ADR) and have
become a credible alternative to the system of cases
being decided by courts.
Justice MN Venkatachaliah, former chief jus-
tice of India, in his inaugural address referred to
the backlog of cases at different levels of the judici-
ary. He said that the institutions of administration
of justice and their methods need a strong second
look (see box). Drawing attention of all to the
power of mediation, he said that it will find pride
of place as a human tool to allay injustice and pro-
mote harmony.
Former Chief Justice of India TS Thakur, who
was the Chairperson of Technical Session I,
“Arbitration — Journey from 1940 to 2019”, app-
rised everyone about the existing scenario of arbi-
tration in India. His insightful comments were a
candid take on the arbitration scenario in India.
He summarised the observations of each speaker,
showing his mastery over the subject (see box:
“Straight talk”).
Justice BN Srikrishna, a former judge of the
Supreme Court, who headed the high-level com-
mittee whose recommendations led to the
Arbitration and Conciliation (Amendment) Bill,
2019, said that the autonomy of parties in the arbi-
tration process was extremely critical and state
authorities should take a back seat. While
A

speaking on the sub-topic “Challenges and
Reforms in Indian Arbitration and Mediation
System — Way Forward” in Technical Session I, he
lamented the domination of judges in arbitration
and said that the less they interfered, the better it
would be for the spirit of arbitration in India. He
also called for more institutional arbitration in
India and said that the time has arrived for arbitra-
tion and mediation.
R
esponding to the use of Artificial
Intelligence in arbitration, Justice
Srikrishna said that natural intelligence
could still play an important role through its
human touch. While welcoming the amendments
in the new law, he said that issues still remain as
the government had not fully implemented the rec-
ommendations of the committee.
Justice Alok Aradhe of the Karnataka High
Court, while speaking on “Challenges to Arbitral
Awards — Commercial Courts and Need for
“The autonomy of parties in
the arbitration process is
extremely critical and state
authorities should take a
back seat….the less judges
interfere, the better it would
be for the spirit of arbitra-
tion in India.”
—Justice BN Srikrishna
The arbitration process must be made
accessible to people. Even a municipal
contractor should have access to it.
The whole system must respond to
and provide support to the arbitration
process.
Arbitration in places like Singapore,
London, Hong Kong and Malaysia is suc-
cessful not because there is already an
existing physical infrastructure and tech-
nology but because of the legal frame-
work, non-interference by courts, arbitra-
tion tribunals having a free hand and
awards being enforceable. The judicial
system is perfectly attuned to arbitration.
And this is where the report of the Sri-
krishna Committee is critical. The whole
idea, said Justice Thakur, was to upgrade
our legal framework to a level where we
can present an alternative to Singapore
and other well-known centres of arbitra-
tion in the world. It seems that the gov-
ernment has not fully endorsed the rec-
ommendations of the Committee and that
is not good news, he said. We will have
to wait and see how the situation unfolds.
The accreditation process in the new
arbitration law is unclear. Who are the
people who will accredit the arbitral insti-
tutions or the arbitrators? Government
interference still remains and that is a
major concern.
As arbitration awards are frequently
challenged in Indian courts, judges han-
dling these cases need to be trained.
More importantly, they must be trained to
pick up the right kind of cases for refer-
ring to arbitration tribunals. However,
there is no clarity on whether a civil court
can refer a case for arbitration.
Most of the arbitral awards are chal-
lenged on the ground that they are
against the “public policy of India”. But
there is no clear-cut definition of a public
policy in the statute. The grounds on
which awards are challenged in India are
confusing, to say the least.
Straighttalk
Former Chief Justice of India
TS Thakur’s observations on
arbitration were insightful and
illuminating. Some of the vital
points he touched upon:
“ADR is not only desirable
but inevitable considering
that pendency is increasing
at an alarming rate. Factors
like time, cost, simplicity of
procedures and an efficient
system are vital.”
—Justice Shivraj V Patil
“Arbitration in places like Singapore, London, Hong Kong and Malaysia
is successful not because there is already an existing physical infra-
structure and technology but because of the legal framework,
non-interference by courts, arbitration tribunals having a free hand
and awards which are enforceable. The judicial system is perfectly
attuned to arbitration. And this is where the report of the Srikrishna
Committee is critical.”
—Former Chief Justice of India TS Thakur

work for arbitration, advantages offered by arbi-
tration institutions, experienced and skilled panel
of arbitrators, institutional arbitration and less
interference from the judiciary. Judges should be
sensitised about the impact of their interference in
arbitration. The issue of judicial scrutiny of
awards needs to be resolved, he said. He said that
existing arbitration institutions had done well in
India and litigants now look forward to them.
India must show to the world that it is in sync with
the international perspective of resolving mat-
Training of Judges”, said that arbitration was not a
new concept for our country. Its reference could
be found even in the Upanishads. Today, it is a
dominant method to resolve disputes, including
commercial ones. He said that a key challenge is
that a new regime of alternative dispute resolution
is yet to be implemented and understood in spirit
and not just in law in India. This can be resolved
by learning from international practices. He too
emphasised training of judges at all levels, suffi-
cient government support, proper legal frame-
There is no professionalism, in general,
among judges and lawyers working in the
arbitration sector in India. This is important if
we have to compete with international stan-
dards.
Judges need to be sensitised and trained
towards arbitral awards.
Can AI be used in the current scenario
where we do not have uniformity in sentenc-
ing in criminal cases and can it bring about
uniformity? Judges may give different pun-
ishments for the same offence.
Regarding the address by Nitin Gadkari,
Justice Thakur said that the road transport
ministry which he heads was the biggest liti-
gant and has the largest number of claims,
running into maybe lakhs of crores. The
judge felt that Gadkari was the right person to
say how arbitration proceeds in his regime.
GREAT MINDS (L-R) Justice Thakur and Justice Srikrishna exchanging views during Technical
Session I on the journey of arbitration from 1940 to 2019
DISTINGUISHED
PANEL
(L-R) Justice BV
Nagarathna, judge,
Karnataka High Court;
Justice P Vishwanath
Shetty, Karnataka
Lokayukta; and senior
advocate Sriram
Panchu at Technical
Session II on mediation,
an effective tool of
dispute resolution

ularly for investors.
Uday Holla, former advocate general,
Karnataka High Court, spoke on “Global Trends in
Institutional Arbitration — Challenges and
Reforms in India”. He said that there was a need
for a change of mindset among judges as far as
arbitration was concerned. Time is of utmost
importance and arbitration cases can’t be allowed
to linger endlessly. Referring to global trends, he
said that technology must be used abundantly,
there was a need for institutional arbitration,
empowering tribunals and incorporating the best
practices in the world. The new amended
Arbitration and Conciliation (Amendment) Bill,
2019, was welcome, though it is a baby step, he
said.
A
vinash Amble, considered an expert on
Artificial Intelligence, while speaking on
“Use of Artificial Intelligence in Conflict
Resolution”, said that AI is actually three centuries
behind as far as conflict resolution is concerned. AI
doesn’t learn when presented with conflicting situ-
ations like the judicial system does. It can only
present a forward probability. So the AI of tomor-
row is coming up with “adversarial inference”.
However, he referred to a mock case where AI
was pitched against a parallel court judgment in a
ters expeditiously through ADR.
Justice V Jagannathan, a former judge of the
Karnataka High Court, while speaking on “Arbitra-
tion as an effective tool for ADR process”, said
India was moving towards arbitration revolution.
Arbitration as an ADR is a boon for the people of
India considering the backlog of cases and partic-
Online dispute resolution has become a
much sought after solution, but there is
a lack of qualified arbitrators. Should the
judiciary encourage non-judges also to
become arbitrators?
Justice Srikrishna: The idea is good
and I was even involved in selecting
some agency for that. The issue of whe-
ther non-judges can be appointed as
arbitrators has to be seen in the light of
the 2019 amendment which says that
the minimum qualification for an arbitra-
tor under the statue is either a lawyer of
a certain standing or an engineer, char-
tered accountant, company secretary or
government officer of a certain standing.
So, any arbitrator must fall into these
categories. The law has now made it into
a professional activity, not simply a mat-
ter of solving the problem informally.
It appears that cross-examination of wit-
nesses takes the maximum time in an
arbitration process. While we recognise
that the transcription method is an
accepted international norm, the time
spent in recording every question and
answer delays the process. Can it be
completely avoided?
Justice Thakur: My experience is that
transcript is a very expensive exercise.
There are no agencies in India who can
undertake that work. So transcript agen-
cies are flown in from places such as
Australia, Singapore, etc and they are
very expensive. However, if it can devel-
op here, it would be welcome as it
reduces time.
Parties can always agree if they do
not want a cross-examination or oral evi-
dence. There are lawyers who insist that
both the question and answer must be
recorded. That takes double the time.
There can’t be a straightforward answer
to this and I hope the process will gradu-
ate to a level where lawyers can be con-
fident enough to say that they do not
need any oral evidence.
Cannon-judgesbecomearbitrators?
The Bengaluru Conclave sessions on arbitration and mediation generated great interest in the audience which had
numerous questions for the learned panel
“There is a dire need for
persons committed to
mediation as it is they who
could bring in change and
success. For example,
nobody was aware of
Election Commission till
TN Seshan took over.
A section of mediators can
bring reforms in their own
way. As no dispute is the
same, new thinking is
required on the part of
mediators. There is also a
need to find out new tools
for effective mediation.”
—Justice P Vishwanath
Shetty

case and the punitive damages were almost the
same, even though both adopted different proce-
dures and methodology. He said AI was incapable
of “equitable distribution to all”, which an ADR
forum intends to achieve.
Justice Shivraj V Patil, former Supreme Court
judge and co-chairperson of the session, said that
ADR is not only desirable but inevitable consider-
ing that pendency is increasing at an alarming rate.
Factors like time, cost, simplicity of procedures
and an efficient system are vital, he said. The
question arises as to how to take it forward. He
Justice Srikrishna: My experience has
been that lawyers unnecessarily ask for
cross-examination. Let us look at the
document and sort it out. Why should
there be needless oral evidence? This
insistence is a matter of mindset. It has
to change amongst judges, lawyers
and litigants.
Can Artificial Intelligence be incorporated
in such a manner that stage-wise colla-
tion of data can take place so that arbi-
tration in ADR can be done in a scientific
manner and the decision-making
becomes faster?
Avinash Amble: I can’t say whether it is
judicially applicable or not. As regards
collation of data, I think the single biggest
problem that exists today in the Indian
context is that there is no legal lexical
which can be incorporated into the com-
puter. An AI researcher does not under-
stand legal language. It is lost in transla-
tion. The gaps in data collation between
what I understand as a lay person and
what you as a lawyer do are huge. The
need is to have a legal semantic diction-
ary that analyses legal words.
I suggest to advocates that parties go in
for mediation before the legal notice is
issued, especially in cases related to
Section 498A. My experience has borne
positive results.
Justice P Vishwanath Shetty: It is an
excellent suggestion. Parties must be
requested to go for mediation first to
solve their disputes. If that does not
work, legal process may commence. It
can be said in the legal notice itself.
Shiv Kumar: This is already in practice.
We issue a letter of invitation asking
them to participate in conciliation. If the
parties come forward, we use mediation
techniques, but convert it into a concilia-
tion agreement as per law.
When we take up dispute resolution
measures, how do we make them
authoritative or binding?
Justice Shetty: Mediation means minus
authority. It is voluntary. You only per-
suade and tell the parties that this is
advantageous for you.
Nowadays training is given for facilitative
mediation. In respect of family disputes,
evaluative mediation is sometimes nec-
essary. Please comment.
Sriram Panchu: I think both are needed
to resolve any dispute. Some disputes
can’t be resolved only with facilitative
mediation. You then have to use evalua-
tive mediation where you make people
look at their interests, engage with them,
come up with suggestions, etc.
So, training needs to be given for
both the methods. Also, training needs
to be given when to use the evaluative
method.
Timeiscriticalinarbitration:Gadkari
Nitin Gadkari, Union minister for road transport and highways,
who addressed the audience from Delhi, said that independent
and impartial arbitration was the need of the hour and time was the
most important factor. He lamented that contractors were being
affected hugely due to delays in litigation which take years to
resolve and they never get justice. “In many litigations which are
already going on in the country, intervention by an arbitrator is
really going to resolve the issue and create wealth for the country,”
he said.
ANOTHER PERSPECTIVE Union Minister for Road Transport and Highways Nitin Gadkari addressing the audience from New Delhi

importance for it. She said that along with provid-
ing the right climate and infrastructure, training of
persons taking up mediation was vital. This
includes imbibing legal knowledge and skills.
Lack of proper trainers and referrals, absence of
suitable legislation, resistance of judges and
lawyers towards mediation, low funds and the
unacceptable conduct of mediators are some of the
other challenges that need to be addressed. She
emphasised that a pre-arbitration mediation sce-
nario should be available wherein litigants could
be persuaded to try out mediation before opting for
arbitration.
She said that even the apex court encouraged
state governments and the central government to
take action for bringing into effect ADR. One of the
remedies found by the legislature to reduce “docket
said the deliberations at the Conclave must inspire
everyone to ponder these: What Next? What
More? What Else? Besides the law, the people who
implement it and the system are equally important
to make it effective, he said.
Justice P Vishwanath Shetty, the Karnataka
Lokayukta, while inaugurating Technical Session
II, “Mediation — An Effective Tool of Dispute
Resolution”, said that speakers on the panel were
all distinguished persons in their fields and their
thoughts would be valuable for all.
J
ustice BV Nagarathna, judge, Karnataka
High Court, while speaking on “Mediation:
Achievements and Challenges”, said that the
challenge lies in accepting mediation as a method
of solving disputes among litigants and sought due
VOTE OF THANKS
(L-R) Rajshri Rai, PK
Malhotra, former law
secretary, Justice
Rajendra Babu,former
chief justice of India,
Inderjit Badhwar and
Pradeep Rai at the
Conclave
(Below) Rajshri Rai
(extreme left) and
Pradeep Rai (second
from right) with legal
luminaries and other
distinguished speakers

Shetty urged everyone present at the Conclave to
ponder the views expressed by the speakers and
put on their thinking caps and chart the future
course of action. He said there was a dire need for
persons committed to mediation as it is they who
could bring in change and success. For example,
nobody was aware of the Election Commission till
TN Seshan took over.
A section of mediators can bring in reforms in
their own way. As no dispute is the same, new
thinking is required on the part of mediators.
There is also a need to find new tools for effective
mediation. But most of all, mediators must leave
their egos aside, exercise patience, use their per-
suasive skills, earn the goodwill and confidence of
litigants, command sound legal knowledge of their
domain and be accountable for their job.
Absolute trust among the litigants in mediators
is a must in helping to settle disputes, he said. He
also emphasised an ethical code for mediators just
like advocates. He also laid stress on the training
process and insisted there was a need for a large
number of trainers. He said that it was time that
mediation was taken up as a profession, with
attractive remuneration.
Justice Rajendra Babu, former CJI, while
speaking in the Valedictory Session, said that the
arbitration process never comes to an end when
taken up by retired judges. He wondered about the
success of the arbitration process in the light of
new amendments and suggestions. He asked
members of arbitration tribunals to not only decide
on the matter but to try and bring about rap-
prochement among parties and said that arbitra-
tors must fulfil the role assigned to them.
explosion” in courts is mediation, she said.
A well-known mediator and senior advocate,
Sriram Panchu, while speaking on “Arbitration and
Mediation: Strange Bedfellows or Harmonious
Partners”, said that mediation and arbitration
combine the best of both worlds. Highlighting the
merits of mediation, he said that the time and cost
involved are much less, the process in which a solu-
tion is sought is workable and most of all, relation-
ships are salvaged. He said that there was scope for
mediation even while the arbitration process was
on and awards yet to be granted by a tribunal. To
structure mediation is the need of the hour,
he said.
Panchu even suggested that mediation could be
taken up as a career option. That would instil ex-
pertise and commitment as there was a dearth of
experienced mediators. Paying them well was also
a major requirement. The need to generate faith
amongst litigants in mediators is vital, he said. But
mediators too must do their job properly and be
made accountable. Most of all, they should never
become arbitrators as confidentiality is breached.
S
hiv Kumar, senior advocate, while speaking
on “Med-Arb: Need for Statutory Reforms
and Training”, suggested various amend-
ments in current laws to provide importance and
recognition to Med-Arb. He lamented that there
was still no statutory definition of mediation or
arbitration in law books.
He demanded a comprehensive code on ADR
or Dispute Resolution Code and suggested an ADR
service on the lines of the Civil Services.
Summing up the Session, Justice P Vishwanath
MY PLEASURE
(Above left) Pradeep
Rai presenting a
bouquet to Justice
P Vishwanath Shetty
RESPONSIVE CROWD
The gathering at the
Conclave was not only
unprecedented but
also qualitative

Conclaves held at the studios of ENC are a popular
forum where legal luminaries are felicitated for their
immense contribution in the field of law. Listening to
the guests of honour has helped the legal as well as the
politico-legal audience to derive a deep insight into
little known perspectives on the subjects being dis-
cussed and an idea of the solutions at hand.
In fact, some of the luminaries such as the late
Professor NR Madhava Menon, considered the father
of modern legal education in India, and Professor
Upendra Baxi, a legal scholar of international
repute, had never visited a TV studio before they
attended the conclave dedicated to them. Other guests
of honour were Justice Swatanter Kumar, former
NGT chief; Justice Santosh Hegde, former Lokayukta
of Karnataka; and Justice VS Sirpurkar, a noted
jurist, who had just retired from the Supreme Court.
In the following pages, we revisit the deliberations
at these Studio Conclaves.
StudioConclaves
ANovelIdea

Studio Conclaves/ Justice Santosh Hegde
ORMER Supreme Court
judge Justice Santosh
Hegde stated that senior
judges had not set a good
precedent by voicing their
opinions against their col-
leagues in public. “There
are thousands of judges in
different high courts in
India. Many of them would
have differences of opinion and they would want to
come out and express these in public, but then,
what would become of institutional integrity?
Judiciary should never be in public at all. It is an
institution that has to work on its own. Every Tom,
Dick and Harry is discussing what’s happening in
the judiciary. This is not what was expected,” said
Justice Hegde, the former Karnataka Lokayukta,
while participating in the India Legal Show.
“When you are a judge, you should be seen talk-
ing only inside the court, not outside,” he said
about the rift in the judiciary. “There will be argu-
ments about the institution outside the institution
which is not expected. It had never happened in
the entire judicial history of India and consequent-
ly, the judiciary has become the talking point in
every nook and corner of society,” said
Justice Hegde.
“Judges Should Speak Inside
the Court, Not Outside”
TheformerSupremeCourtjudgefeelsnobodygainedorcameoutwiserintheepisodewhich
sawfourseniorapexcourtjudgesvirtuallyrevoltagainstthechiefjusticeofIndia
F28 September 9, 2019
LEGAL DISCOURSE
Former Karnataka
Lokayukta Justice
Santosh Hegde
(centre) with Pradeep
Rai, senior advocate,
Supreme Court
(second from left);
Rajshri Rai, editor-in-
chief, APN (second
from right); Inderjit
Badhwar, editor-in-
chief, India Legal
(extreme right) and
Dilip Bobb, senior
managing editor,
India Legal
(extreme left)
Photos: Anil Shakya

age to the judiciary, deal with it differently,” he said,
while asserting that some of the best lawyers in the
country are women.
He spoke about the changes in society. He said
society, years back, did not accept people who went
to jail but that has changed today. He referred to
the recently-concluded Karnataka elections. He
said that corruption and morality were not the
issues on which the elections were fought. “In the
recent Karnataka assembly elections, the BJP
fielded 224 candidates, out of whom 37 percent
had criminal records; the Congress fielded 27 per-
cent candidates with criminal records, and the
JD(S) had 25 percent defaulters. The Congress
fielded a minister who had to resign from his post
due to molestation charges. The BJP fielded a can-
didate against whom there was another charge
of molestation.”
That perhaps explains why Justice Hegde, as
much a democrat as anyone else, exercised the
NOTA option in the assembly elections.
Justice Hegde was part of the anti-corruption
movement led by veteran social activist Anna
Hazare. Asked about his association with the Aam
Aadmi Party (AAP), he said: “When I joined the
movement, it was India Against Corruption. Later,
I saw some of its people forming a political party.
I had thought that everybody in that group didn’t
like politics. I never joined them and soon after
AAP was founded, I resigned.”
On the Anna Hazare movement, Justice Hegde
explained that it was the support of the middle
class which made the movement successful but
there was a fatigue factor which later came into
He pointed out that public discussion of an
institution like the Judiciary is not good for the
system and the entire exercise reaped no benefit.
“They came out, they made allegations, but
what did they expect? Did they expect the viewers,
the government or someone else to give them
relief? Nobody could have given them relief at all,”
he said.
Justice Hegde, the son of former apex court
judge Justice KS Hegde, had served as the solicitor
general of India before taking over as a judge of the
highest court in the land at the age of 59.
Upon his retirement from the apex court, he was
appointed the Lokayukta of Karnataka—people’s
ombudsman—from 2006 to 2011, a period in his
life which he describes as the most fruitful of his
long career.
It was his report on the iron ore mining scandal
in Bellary in July 2011—a few days before his
retirement as Lokayukta—which led to the resig-
nation of the then Karnataka chief minister, BS
Yeddyurappa, the first chief minister to step down
after being indicted by a Lokayukta. Yeddyurappa
later went to jail.
I
t is perhaps a measure of Justice Hegde’s
impartiality that he named three chief minis-
ters from different political parties—BJP,
Congress and JD(S)—in his report. One of them
was, in fact, the very person who had appointed
Justice Hegde to the post.
His report also demanded action against the
influential Bellary brothers, also BJP members,
who were named in the mining scandal.
When Pradeep Rai, senior advocate of the
Supreme Court, pointed out to Justice Hegde that
thousands of crores were similarly being siphoned
off in Uttar Pradesh and Bihar by the sand mafia
and others and questioned why no action was
taken against them, Justice Hegde said that this
merely signified the lack of will on the part of gov-
ernment to tackle corruption and wrongdoing. “It
depends on the government of the day.
Unfortunately, it is in their interests not to appoint
a Lokayukta,” he said.
To a question from Rajshri Rai, the editor-in-
chief of APN, about the abysmal participation of
women in the judiciary, Justice Hegde said that the
Judiciary cannot function on the basis of reserva-
tion for women. The Judiciary brings in the best of
people, irrespective of which category they belong
to, he said. “Judiciary cannot function on the basis
of gender, caste or religion. Give that much lever-
“Judiciary
should never
be in the pub-
lic at all.
It is an insti-
tution that
must work on
its own.
Today, every
Tom, Dick
and Harry is
discussing
what is
happening in
the judiciary.
This is not
what was
expected.”

“The NJAC talks about two eminent persons
being its members. How will these eminent per-
sons be decided? They would possibly be politi-
cians; how will they have information on the per-
formance of a judge?” asked Justice Hegde.
He said that as the prime minister and the chief
minister have the freedom to choose their minis-
ters, likewise the collegium, with people well-con-
nected to the system, should decide the appoint-
ment of judges.
When Justice Hegde was asked whether the
office of the Lokayukta was devalued after he
stepped down, he referred to the appointment of
former Karnataka High Court Chief Justice
Bhaskar Rao. He said that the Karnataka Bar
Association had passed a resolution against him,
saying he was corrupt and yet he was appointed the
Lokayukta. Within a few months, his son got
access to the records in the Lokayukta office and he
started a racket by threatening people named in
the records and asking them for money for settling
those matters. “It was a clear case of dacoity,”
he said.
He criticised the lawmakers for not being
accountable to the public despite being the people’s
representatives. He referred to Hazare’s letter to
the prime minister which he had written during
the anti-corruption movement, in which, he had
referred to the then prime minister, Manmohan
Singh, as a public servant. The then railways min-
ister, Lalu Prasad Yadav, in one of his speeches in
Parliament, rebuked Hazare for calling the prime
minister a public servant. “This is the attitude of
the elected representatives today. A public repre-
sentative means he who draws any emolument
from the central or the state treasury. All these
elected representatives are public servants, not
masters,” said Justice Hegde.
When some law graduates asked Justice Hegde
if he had any message for them, he said his last
hope for society lay with its youth. He entrusted
the youth with the responsibility of transforming
society from what it has become of late.
Justice Hegde, who has addressed students
from over 1,000 educational institutions, recalled
that once, after his flight got cancelled, he travelled
600 km through the night by bus just to keep his
appointment with students of a faraway college in
Karnataka. His message to the young generation
was: “Change society, build one that respects hon-
esty, condemn those who go to jail.”
—Compiled by Lilly Paul
the picture. He recalled that the last time Hazare
had fasted, the government had to send a Marathi-
speaking minister to end his fast. But his later
protests did not garner any public attention and he
had to quit within three days. Justice Hegde said
that these kind of public movements, if they fail
once, cannot be continued the same way.
A
question was posed to Justice Hegde as to
why retired judges who are appointed as
arbitrators charge a hefty amount for every
appearance. Justice Hegde, who himself presides
over arbitration matters, said that the existing laws
for arbitration are not perfect in India.
He added that even after having presiding arbi-
trators, the award is tested before a civil judge.
Thereafter it goes to the high court, and then to the
Supreme Court. He said that considering that the
civil courts are so burdened, they can’t do much.
Justice Hegde said: “It is society that has made
these judges. High arbitration fees, adjournments
and delays are all true but rules are coming into
force where these matters are to be settled within
a year.”
Speaking on the collegium versus National
Judicial Appointments Commission (NJAC) issue,
Justice Hegde said that the Judiciary is not the
same as the Executive or the Legislature. He
strongly vouched for a collegium for appointment
of judges since in the Judiciary, the selection
is done by constantly watching an individual’s
performance.
“The NJAC
talks about
eminent
persons being
its members.
How will they
be decided?
They would
possibly be
politicians.
How will
they have
information
on the
performance
of a judge?”
Studio Conclaves/ Justice Santosh Hegde

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Studio Conclaves/ Justice Swatanter Kumar
HE delay in filling pend-
ing vacancies, of both
judicial and expert mem-
bers, in the National
Green Tribunal (NGT) is
affecting its work, former
chairman of the panel
Justice Swatanter Kumar
has stated. Appearing on
the India Legal Show in
2018, his first ever interaction with any media enti-
ty since he stepped down as the NGT chief in
December 2017, Justice Kumar answered ques-
tions on a wide array of subjects ranging from his
long career that included stints as a judge of the
Delhi, Punjab and Haryana, and Himachal High
Courts, chief justice of Bombay High Court and
judge of the Supreme Court to his most recent one
as head of the NGT.
Replying to a question by senior advocate,
Supreme Court, Pradeep Rai on vacancies being
left unfilled in the NGT, Justice Kumar said that
filling posts in NGT is a continuing process but
admitted that he had not kept track of the develop-
ments after retirement.
The green watchdog was founded in 2010 to
protect the environment and keep a check on pol-
lution. Justice Kumar took over as chairperson on
December 20, 2012, and for the next five years, he
was at its helm, leaving an indelible mark by hand-
ing down several path-breaking judgments. After
his retirement, the NGT functions with an acting
chief and the centre has shown no urgency in fill-
ing the many vacancies at the top and in zonal
benches. Consequently, litigants are put to much
hardship. Rai’s question centred around a general
perception that in the absence of a chairman, the
NGT, which had been hyperactive for the last five
years, was showing signs of floundering.
Among the remarkable judgments that Justice
Kumar delivered are the ban on old vehicles in
Delhi, the fine of `5 crore imposed on spiritual
guru Sri Sri Ravi Shankar for causing damage to
the Yamuna floodplains, ban on plastic bags, put-
ting a daily cap on pilgrims to Vaishno Devi and
restricting traffic to the Rohtang Pass.
Describing his role in the NGT, Justice Kumar
said it was very distinct from the other responsibil-
ities he had handled, although he had 20 years of
judgeship prior to joining the Tribunal. He said
that the one sense of satisfaction with which he left
office was that the green court was successful in
raising public consciousness and awareness about
the environment.
Although the apex court and the high courts
“It Is The Duty Of A Judge
To Withstand Pressure”
ThegreenpanelwhichwashyperactiveduringJusticeSwatanterKumar’stenurehasoflate
becomeatoothlesstigerwiththegovernmentshowingnourgencyinfillingvacancies
ByLillyPaul
T
Justice
Kumar said
that by the
time he had
come to the
NGT, he
already had
20 years of
judgeship
behind him.
So he never
felt any pres-
sure and
stood by his
conscience
and did what
the law said.
Photos: Bhavana Gaur

destroying the wetlands, protected lands on the
seas; you knew that they were people with
strengths. And, I think it is the duty of the judge to
withstand the strengths.”
Inderjit Badhwar, editor-in-chief of India Legal
magazine, asked him about the ongoing tussle in
the judiciary, to which Justice Kumar replied that a
chief justice should ensure that all the judges are
taken along as they represent an institution. “I was
the chief justice of the Bombay High Court. I found
no difficulty to run that court. I was able to do a lot
of infrastructure work, judicial dispensation
increased and all the judges deserve compliments.”
W
hen the NGT was founded, the narrative
prevalent was of development versus
conservation. But over the years, it
seems that subsequent governments have felt that
it has been vested with too many powers and there
have been constant attempts to weaken the
Tribunal, such as taking away certain powers, not
appointing people, and so on.
Justice Kumar was of the opinion that the NGT
is the only one of its kind in the world as environ-
mental courts in other countries are vested with a
few regulatory powers while this Tribunal has
sweeping powers including the power to take puni-
tive action.
One question put to Justice Kumar was that
though NGT orders were strong in themselves,
they were hardly implemented. An example cited
had passed several serious orders for protecting
the environment, it was the NGT which had played
a guiding role in environment conservation. He
counts it as one of the NGT’s primary achieve-
ments—it could make different sections of society
such as the government, industrialists, working
class and even schoolchildren conscious about pro-
tecting the environment. Justice Kumar said that
people may at times find NGT orders inconvenient
but what is important is that those judgments
could trigger a debate.
Justice Kumar highlighted the fact that envi-
ronment is a social subject and therefore a collec-
tive effort is needed to preserve it. He said that
society should think that it needs clean air and
water but at the same time the government should
not shift its responsibilities and these matters
should reach the court at last.
Rajshri Rai, editor-in-chief of APN (India
Legal’s sister concern) and the host of the show,
asked Justice Kumar about the many pressures
that he may have been subjected to from various
lobbies. To which he replied: “See, by the time I
came to NGT, I already had 20 years of judgeship
with me. So I never felt any pressure. I stood by my
conscience and what the law demanded. I didn’t
care who thinks what... how can you bother about
what people will think, what people want, what
parties want. There were many lobbies before
NGT, be it the welders’ lobby, mining lobby, forest
lobby, development lobby, people who were
GREEN CONCERNS
Justice Swatanter
Kumar (centre)
flanked by Pradeep
Rai, senior advocate,
Supreme Court (third
from left); Rajshri Rai,
editor-in-chief, APN
(third from right);
Inderjit Badhwar, edi-
tor-in-chief, India
Legal (second from
right), Shobha John,
deputy managing
editor, India Legal
(extreme right); Ashok
Damodaran, execu-
tive editor, India Legal
(second from left)

Studio Conclaves/ Justice Swatanter Kumar
the scrap must be recycled.
Speaking about the “odd-even rule” introduced
briefly in Delhi sometime back, Justice Kumar said
that he was of the personal opinion that the
scheme was ineffective. Rather, he had suggested a
much better alternative—to provide direct point-
to-point bus services from colonies such as Dwarka
and Rohini, where the majority of people are
office-goers and therefore would be happy to travel
in an economical, fast and more convenient way.
Justice Kumar was asked about his opinion on
the river linking project being contemplated by the
government, given that there was a scientific view
that it could lead to ecological degradation. “There
is a judgment of the Supreme Court permitting
interlinking of rivers. That was done after three
different, highly-placed technocrats and academi-
cians from the field of hydrology and other con-
nected sciences said there were consistent reports
that interlinking of rivers was one of the major
steps that can be taken to prevent droughts on the
one hand and floods on the other. However, despite
the judgment, there should be a proper study and
all precautions should be taken.”
Another question put to Justice Kumar was the
problem of illegal construction which he dealt with
during his tenure in the Himachal Pradesh High
Court and the current Delhi sealing drive, and the
problem of practical implementation associated
with such judgments. Justice Kumar responded by
giving an example of the unfortunate incident that
happened in Kasauli recently when a lady officer
who went for demolition of an illegal construction
was shot dead.
“In Kasauli, there was a person who was permit-
ted to build three rooms and he raised a five-storey
hotel. He has no system for disposal of municipal
solid waste, sewage, no pollution devices, no source
of water. If you are asking about demolition of that
particular construction, then I do not think the law
should worry about it. Because if you do not check
it now, it will have three repercussions—people will
take the law for granted; damage to nature and nat-
ural resources will be irreparable and thirdly, you
are risking the life of others. If you have invested in
violating the law, then you very well face the conse-
quences,” said Justice Kumar. When asked which of
his judgments satisfied him the most, Justice
Kumar said: “I will give preference to Yamuna and
Ganga. As a very ordinary citizen of this country, I
can say that the Ganga can be cleaned and the issue
is definitely resolvable. Ganga can be cleaned and it
must be cleaned.”
was the Art Of Living order, wherein
spiritual guru Sri Sri Ravi Shankar had gone to the
extent of saying that he would not pay the fine
imposed, implying that a court order was being
wilfully defied.
Justice Kumar, however, said that the organisa-
tion had to and did pay the fine. He repeated his
stance that execution is a problem all over the
world but people have started realising that efforts
should be made by them. However, he also said
that “change” would not be a correct word to use as
it would connote a total alteration, a stage which
“we haven’t reached. Rather, it would be appropri-
ate to say that there has been variation in the atti-
tude of people”.
Justice Kumar was asked about the NGT deci-
sion to ban decade-old diesel vehicles and 15-year-
old petrol vehicles in Delhi-NCR. Even if the
NGT’s order was aimed at solving the environmen-
tal crisis in Delhi-NCR, it created a new problem of
disposal of those banned vehicles. Even if they
were to be sold, they would create pollution in the
place they were sold in. Justice Kumar said that the
solution to the problem was already given in the
judgment itself, which unfortunately had gone
unnoticed as people usually fail to interpret a judg-
ment in its entirety.
J
ustice Kumar explained that the judgment
clearly states that an air quality analysis
needs to be done of the area in which these
vehicles will operate outside Delhi-NCR. The den-
sity of cars in that area also needs to be deter-
mined, he said. If both the things are within the
permitted scale of pollution, then the vehicle
should be sold in that place, otherwise not, he
clarified.
Referring to cars that will be disposed of, he
said that the NGT had clearly said that it will be
done only after providing incentives to owners and
When Justice
Kumar was
asked why the
NGT’s orders
were hardly
implemented,
he said that
execution is a
problem all
over the world
but people
have begun to
realise that
efforts should
be made.

Studio Conclaves/ Justice VS Sirpurkar
“Indian Constitution
and Democracy
Unshakeable”
TheformerSupremeCourtjudgespokeeloquentlyonmanyissuesfacingthejudiciaryandIndiaata
discussionorganisedbyIndiaLegalin2018
ALL EARS, SIR Justice VS Sirpurkar (centre), his wife, Kumkum (left), and Pradeep Rai, senior advocate, Supreme Court (right). The panel also included Inderjit
Badhwar, Editor-in-Chief, India Legal (second from right); Dilip Bobb, Sr Managing Editor, India Legal (second from left); Shobha John, Deputy Managing Editor,
India Legal (extreme left) and Abhishek Dixit, Commandant, TNSP, Tihar jail (extreme right)
Photos: Bhavana Gaur

as high court judges.
Kumkum added: “The patriarchal system still
prevails and that’s why, wherever I speak, I say that
more than the ladies, it is the males who should
be educated.”
CONSTITUTION IN PERIL?
Asked if the Constitution was in peril given recent
controversial statements by some ministers,
Justice Sirpurkar said: “The Indian Constitution
and Indian democracy are absolutely unshakeable;
it cannot be brought into peril.” He said the father
of the Indian Constitution, BR Ambedkar, had
taken all care while making it. “I consider him the
greatest person. He was the one who created the
bedrock,” said Justice Sirpurkar. “But even before
that, Gandhari was the first person who introduced
the idea of rule of law when she didn’t bless her
son, Duryodhan, for war. Instead, she said that the
ones who have justice by their side will be victo-
OR Justice VS Sirpurkar, a
former Supreme Court
judge and a noted jurist,
Baba Amte was a major
influence in his life. It was
Baba Amte who asked
Justice Sirpurkar’s father
to send him for practice as
he believed he could
become a judge. Baba
Amte’s advice to the young Sirpurkar was to go
behind the law and know everything about a given
provision and why it was brought in.
Ever since then, Justice Sirpurkar has followed
this principle and it has stood him in good stead.
He has served in many high courts in India. He be-
came a judge of the Bombay High Court in 1992
from where he was transferred to Madras High
Court. He served as chief justice in both the
Uttarakhand and Calcutta High Courts and in
January 2007, he was elevated as a Supreme Court
judge. Justice Sirpurkar retired on August 21, 2011.
Justice Sirpurkar was felicitated by India Legal
in 2018. He and his wife,
Kumkum, who is a senior advo-
cate, spoke on many subjects and
enlightened the audience about
various facets of the judiciary.
Both come from families with a
legal background and met in col-
lege and then in court where they
were handling cases of opposing
parties. Justice Sirpurkar won the
case and also the hand of his wife
after crossing caste hurdles.
WOMEN IN THE JUDICIARY
When Rajshri Rai, APN editor-in-chief, asked why
there was less participation of women in the judi-
ciary, Kumkum recalled how she was discouraged
by her colleagues when she joined the bar in 1970
but went on to become the president of the same
bar. However, she said that many women who join
law do not take up litigation and therefore are not
seen in courts. Justice Sirpurkar said the numbers
were much better at present and recalled a func-
tion in the Latur district court where lady judges
outnumbered male judges. However, the patriar-
chal mindset often comes in the way of women
lawyers.
Justice Sirpurkar recalled one incident when
his fellow judges got upset with him for recom-
mending the names of two women to be elevated
F
Justice Sirpurkar said that the
Indian Constitution and Indian
democracy are unshakeable. He
said that BR Ambedkar had
taken all care while making it
but it was Gandhari who
introduced the idea
of the rule of law.

Studio Conclaves/ Justice VS Sirpurkar
he said: “My first concern was that he was a
23-year-old boy, so age was on his side. He
was from a typical old UP family and his
sister had married a Keralite. So the daily
insults that he would have had to face from
society was what I considered. I wondered
what was the point in giving him a death
sentence. I decided that he should live for
at least 30 years in jail so that when he
comes out, he is a better person.”
LEGAL LITERACY
Kumkum reiterated what Netaji Subhas
Chandra Bose had once said: “No man is
complete unless he knows law.” As a mem-
ber of the Maharashtra Legal Service
Authority, she said that they conducted para
legal camps for social workers so that the
basic principles of law were disseminated.
She said that India Legal should continue
spreading legal literacy in remote areas.
Justice Sirpurkar said he had conducted
legal aid camps in remote areas of Uttara-
khand when he was the chief justice there
and said that people should know basic
facts. He said that a woman can’t be arrested at
night unless a lady constable is present. “Until and
unless these facts are known, the law-abiding sense
of the public will not increase,” said Justice
Sirpurkar.
Abhishek Dixit, commandant, TNSP, Tihar jail,
who was also a guest on the show, said there were
many incidents in his career where he knew who
the real culprit was but he couldn’t prove it be-
cause there was no evidence. He asked if Justice
Sirpurkar also faced such cases. He replied: “It is
quite one thing to say to the court that my client
has not done it when you know that your client has
done it but it is quite another to say my client doing
it has not been proved by legally admissible evi-
dence. Even if a person is the culprit and you are
aware of it, your task is to prove to the court that
his act is not proven beyond reasonable doubt by
legally admissible evidence. Once these two dis-
tinctions are realised, there is no question of it bit-
ing your conscience.”
Asked how important it was to understand the
psychology of a person while giving a judgment,
Justice Sirpurkar said that a judge has to be an all-
rounder and he cannot do justice unless he gets
into the psychology of that person. “Motive is dif-
ferent and intentions are different. It is important
to understand the intentions,” he said.
rious—‘Yato Dharma Tato Jaya’—which is also
inscribed in the logo of the Supreme Court.”
JUDICIARY IN GENERAL
Asked about regional representation in the
Supreme Court, Justice Sirpurkar said: “I do not
believe in regional representation. If you are
appointing a judge to the Supreme Court, the first
thing that you should see is whether he is compe-
tent enough, fearless and has integrity. And if there
is no judge from a particular region, then the best
judge must be brought in.” He refused to be drawn
in about the questionable merit of some judges,
saying: “Before being chosen to the Supreme
Court, everything is checked from your past, pres-
ent, to your probable future.”
When asked which judges and lawyers he
respected the most, he said: “All. Every lawyer is
entitled to be respected because you are not deal-
ing with the lawyer but the litigant. Whether you
like the lawyer or not matters the least because you
are concerned with doing justice to the litigant,”
said Justice Sirpurkar.
COMPASSION AND JUDICIARY
Asked by Pradeep Rai, senior advocate, Supreme
Court, about a judgment where he had reduced a
death sentence to life in a case of honour killing,
Kumkum
Sirpurkar,
wife of Justice
Sirpurkar,
said that
many women
who join law
do not take up
litigation and
are not seen
in courts. She
said that the
patriarchal
system
prevails in
the judiciary
and, more
than the
ladies, it is
the men who
should be
educated.

India Legal - 09 September 2019

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