Anmol Kohli speaks with Mr. Bharat Chugh, Partner at L&L and Former Judge on recent developments in the legal sphere in India, from AIJS and Virtual hearings, to Tech Law and ADR.

Mr. Chugh secured the first rank in the prestigious Delhi Judicial Service Examination in 2013 and joined as the youngest Civil Judge /Metropolitan Magistrate in his batch. He joined L&L in 2016. INBA awarded him the Young Lawyer of the Year Award in 2018.

LSPR: The government has prepared a plan for the creation of an All India Judicial Services (AIJS). What are your thoughts on this? Given this, how would you advise law students who are aspiring to enter the judiciary?

The idea of a uniform selection process for the Judiciary along the lines of the civil services examinations appeals to those in favour of uniformity and reform in our judicial system. The uniform selection criteria helps to remove some administrative hurdles affecting the Indian judiciary but also creates some significant issues, as raised by various High Courts.

A large section of the legal fraternity has opposed AIJS on the grounds that language will be a substantial barrier in effective disposal of cases. The 116^th Law Report had compared the proposed AIJS to the Indian Administrative or the Indian Police Service saying that officers in these services operate in different states. Recently, the incumbent Law and Justice Minister of India was also quoted saying the same. These comparisons ignore the fact that the role of a judge, especially at the level of District and Subordinate judiciary, is different. A judge at such levels deals directly with litigants, under-trials, and lawyers. Even a minor misinterpretation of the local language/dialect in recording evidence might result in a grave miscarriage of justice.

Addressing the issue of language, the Law and Justice Minister has stated that the AIJS will be divided into four zones – North, East, West, and South. Nevertheless, in states with deep-rooted cultural and societal norms, a judicial officer from outside the state might not be able to dispense proper justice. This was particularly highlighted by states like Arunachal Pradesh and Meghalaya. Further, failure to recognize acceptable norms/customs in society, particularly in cases concerning matrimonial disputes or property cases, might affect the result of such disputes.

Nevertheless, the AIJS does have its advantages. A uniform selection process will serve as an attractive employment opportunity for the talented pool of young lawyers. Also, unlike the current process, the AIJS will set a level playing field and ensure consistency in the manner of recruitment. Further, it would also help standardization of practices and help states adopt best practices that are consistent. This, in the longer run, would also ensure a more consistent evolution of law and principled decision making. The cross-fertilization of ideas across the country would help a great deal.

The first piece of advice that I give to any aspiring judge is to ask themselves why they want to be a judge in the first place.

To any aspiring judge reading this, please note that considerations such as the pursuit of power (for power’s sake) or desire of a ‘stable source of income’ and ‘societal heft’ are bad considerations. If you’re preparing, nothing would help you more than a belief in a higher purpose. A loftier ideal like the ‘the ability to dispense justice’ or ‘make a meaningful difference to people’s lives’ should be your anchor. A fine sense of justice and a heart that bleeds for the underdog should inform you at all times in your journey towards being a judge, and thereafter. Each injustice should rankle you and make you want to correct it. Always remember, no one in the entire judicial system has a bigger interface with the layperson than the Civil Judge/Metropolitan Magistrate at the nearest District Court. You are going to be the brand ambassador of the justice system for close to 90% of the population.

I must also add that this, by no means, is an exhortation for a judge to be a knight errant, pursuing his or her own sense of what is ‘just’, without the slightest regard to law and precedent; No need to do justice ‘though the heavens fall’. Let’s be fair – Justice would mean little if the heavens do fall. A sense of proportion and balance, therefore, is extremely crucial.

Preparing for the exam, on the other hand, is another task  altogether. A piece of advice I always impart to the aspirants is that of starting early and honing your understanding of the subject. Once you decide to give it your all and devote yourself to excelling at law, everything else will follow. Focus on grasping the essence of the law and read all the related laws to gain a comprehensive understanding of that issue.

The importance of learning to write like a judge cannot be emphasized enough. As someone said, “It is as much in the saying as it is in the said”. ‘Words’ are the first and foremost stock-in-trade of a great lawyer/judge. Command over language and understanding the nuances and subtleties of legal words is essential to excel at an examination or writing legal literature. Judicial services aspirants cannot be callous with the use of their words. Ultimately, a word is an idea. Having an expansive vocabulary means having a wider grasp of ideas and having more ideas. Each word carries a precise meaning and usually, no other word can replace it and do the trick.

LSPR: The number Sedition cases being filed have recently increased dramatically, particulary targeting members of the civil society. How does this impact freedom of speech in our country, according to you? How should the judiciary deal with this?

A democracy thrives on discourse and exchange of ideas, even if they are diametrically opposed to each other. It cherishes tolerance and openness. Subjecting freedom of speech to irrational and unreasonable restrictions is equivalent to killing a democracy softly. It is unfortunate that we are keeping a relic of the colonial era, despite having gained independence over 70 years ago.

Now as to what statements amount to sedition – one may safely turn to the locus classicus on the subject, that is, the decision in Kedar Nath Singh vs. State of Bihar 1962 AIR 955.  The Hon’ble Supreme Court held that “Section 124A of the IPC cannot be interpreted literally. If interpreted literally, it is bound to become constitutionally incompatible and violative of rights under Articles 19 and 21 of the Constitution”. The Court has held that S.124A of the IPC has to be interpreted in a manner consistent with the constitutional values of liberty.

The Court further went on to hold that the following two ingredients are required to establish sedition under Section 124A:

• The acts complained of must be intended to have the “effect of subverting the Government” by violent means; and
• The acts complained of must be intended, or have a tendency, to create disorder or disturbance of public peace/ law and order by resort to violence and must incite violence.

Therefore, the criticism of the State does not amount to sedition unless there is incitement to ‘imminent’ violence and taking up of arms by the people.

LSPR: As a partner at L&L, you frequently advise on issues pertaining to Artificial Intelligence, Big-Data, and Social media. What developments do you foresee or are aware of in Tech law?

Whether or not you are into tech, the way technology is poised to impact and change our lives cannot be ignored. 3D printing, IoT, driverless cars, AI are only some of the areas which are going to be game-changers in the coming years. The following list is not exhaustive by any means but provides an insight into some of these advancements.

Self-Driving Cars

Most accidents are caused due to human error. In light of this fact, we can argue that a driverless car is certainly better than a 16-year-old at the wheel, coming back from a party. But what if the autonomous vehicle causes an accident and people are hurt? Where should the liability lie in such a case? Would there be a difference as far as tortious and criminal liabilities respectively concerned? Would the engineer who programmed the car be made liable. Or the purchaser of the car is to be made liable if he chooses to have the car driven in ‘selfish/sports’ mode and not the ‘altruistic mode’. Or do you think liability should lie with the regulator who passed such a car as fit to be run on roads? These are vexing questions.

Alibi and GPS location:

For defense lawyers, the use of GPS location has already altered the law surrounding the plea of alibi and criminal conspiracy. For example, evidence from a person’s pacemaker, smartwatches are being used to determine a person’s location at a given time and place. In an interesting case in the US, a person was prosecuted for setting his own house on fire and making a false insurance claim. The insurance company proved that the claimant was never in danger, as claimed by him, by leading evidence of his pacemaker activity. The pacemaker did not show heightened activity at the time of the alleged incident.

Can an accused be compelled to share the passcode/face scan/fingerprint for his phone?

We have been confronted with questions of whether an accused has a right to silence qua passcode or to resist sharing face-scan to access their phone. These questions have been raised on constitutional grounds under Article 20. The law needs to evolve to address pressing issues concerning the right to privacy and the right against self-incrimination.

Virtual currency and law

The recent verdict of the Hon’ble Supreme Court reversed the two-year-old de facto ban on cryptocurrency. But the blockchain revolution is de hors any regulatory framework. Lawyers, judges, and legislators will need to regulate this technology.

In such a situation, it becomes absolutely necessary for budding lawyers and other stakeholders in the legal industry to be diligent and engage with these issues ardently, or face becoming irrelevant.

Genome-editing

The debate surrounding the emerging technology of CRISPR raises some pertinent legal questions within the ambit of even Constitutional Law. There are discussions about the ethical and legal implications of the right to have “designer babies”. These issues might require us to reconsider our perspective on the right to equality under Article 14. We may soon be grappling with the question of affirmative action to place ordinary and superhumans on the same level.

Questions surrounding the constitutionality and legality of bio-hacks, such as performance-enhancing drugs are being re-examined afresh.

Contracts

Take for instance: An AI system that can take and make calls on one’s behalf and act as an executive assistant. The AI system’s voice would be indistinguishable from that of a human. The possible issues that may arise may be: first, violation of parties’ consent to have their voice recorded to elicit a response from the AI. Second, the manner in which the voice is recorded, stored, and transmitted, the uses of the recorded audio, and any consequent privacy violations. Another probable question would be concerning the formation and enforceability of an oral contract that the AI undertakes on someone’s behalf. Can there, legally, be an agent-principal relationship between the AI programme and the human being? How would the existing scheme of the Indian Contract Act, 1872, be aligned with it? Can an AI system be an agent for the purposes of the Indian Contract Act, 1872?

On a larger point, how would the Indian Contract Act respond to the challenge of block-chain and self-executing smart contracts? These are the challenges that a lawyer/judge of tomorrow would be asked to defend/argue and resolve. It is an exciting time to be a tech-lawyer, for sure.

LSPR: The Honorable CJI Bobde recently commented that the time is ripe to devise legislation that contains “compulsory pre-litigation mediation”. Do you agree? What are your views on the emergence of ADR in India?

Mediation offers many advantages over the traditional justice delivery system in India. Particularly, in cases concerning strained relationships such as matrimonial disputes or cases where pre-existing relationships need to be maintained. It offers a quicker, less formal, and confidential alternative to litigation. It allows greater flexibility and control along with a chance of preserving the relationship between the parties.

Pre-litigation mediation was formally recognized by the Supreme Court in K. Srinivas Rao vs. D. A. Deepa (2013) 5 SCC 226. In addition to reducing the burden of courts, it also leads to swift justice. The idea is quickly catching up and pre-litigation mediation. The 2018 amendment to the Commercial Courts Act 2015 mandated parties to exhaust the remedy of pre-institution mediation under the Act before instituting a suit. The Commercial Courts (Pre-Institution Mediation and Settlement) Rules 2018 have been framed by the government. Settlements arrived at in this process are enforceable by law. Further, the Consumer Protection Act, 2019 also provides for parties to first refer the disputes to mediation.

There has been a huge emphasis on mediation in recent times for good reason. There are certain factors because of which mediation remains an alternative to adjudication. There is a need for a strong legislative push for a uniform law for mediation apart from amendments to existing legislation. The inadequacy of law coupled with a lack of well-defined mediation institutions has led to a dearth of affordable and quality training for mediators.

The mediation culture can be improved by generating awareness at the grass-roots level and imparting theoretical and practical training to law students. Efforts must be taken to promote the use of Online Dispute Resolution (ODR). Although there is no legislation governing ODR in India, it has seen progress in the form of the Online Consumer Mediation Centre (OCMC).

ADR is definitely the way forward. Earlier, people were not inclined to opt for mediation in big international commercial disputes because of substantial concerns regarding enforceability. The two-tier enforcement structure—a mediated settlement was considered a contract and taken to another country’s court to be enforced by decree—turned away parties from mediation. This is changing.

‘The United Nations Convention on International Settlement Agreements Resulting from Mediation’ (Singapore Mediation Convention) is a huge step forward. India is one of the initial signatories of this convention, having signed it in August 2019. The Convention gives legitimacy and sanctity to mediation settlements and makes them enforceable in the same way as an international commercial arbitration award. The Convention allows parties to a cross-border mediated settlement agreement to directly seek enforcement of the settlement agreement before the competent authority of a country. Thus, parties can avoid the challenges associated with incorporating the terms of settlement in an arbitral award or judgment.

It is envisaged that ratification of the Convention will be accompanied by the adoption of the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (the “Model Law on Mediation”). The Model Law on Mediation provides a template for national legislation through which the Model Law will be implemented. The success of the Model Law will depend considerably on its global adoption by India along with other countries. Countries will have to enact legislation and ensure effective implementation. This would prove to be a huge shot in the arm for international mediation settlements.

LSPR: As a former judge and member of the YSIAC Committee on Arbitration, what are your views on the  future of arbitration in India? What kind of encouragement should we expect from the government and the judiciary?

The 2019 Amendments to the Arbitration and Conciliation Act are a welcome change and addition to the existing law. There is some concern about the constitution of the Arbitration Council of India (ACI). The government is the biggest litigator and has a say in the accreditation of arbitral institutions and the gradation of arbitrators.

However, the move towards institutionalization is welcome. Indian arbitration has suffered from ‘ad hoc-ism’ for a long time which turns out to be costlier than institutional arbitration. Apart from providing a better framework, institutions would provide an impetus to the formation of a dedicated arbitration bar in India. SIAC statistics show that India is one of the biggest consumers of SIAC, and the amendment seeks to create a robust arbitral institution within the country. The legislature is successfully promoting ADR, with judicial intervention and activism becoming a thing of the past.

The 2019 Amendment Act seeks to replace the outdated International Centre for Alternative Dispute Resolution (ICADR) by establishing the New Delhi International Arbitration Centre (NDIAC). This lays a strong foundation in the institutional arbitration set up in India and is a step in the right direction. But for it to be a giant leap for institutional arbitration in India, further changes are required. An investor-friendly procedural framework must be adopted for these changes to happen. SIAC, LCIA, VIAC, even HKIAC, are giants in the field of international institutional arbitration.

NDIAC has the benefit of hindsight and can stand on the shoulder of giants like the SIAC and HKIAC. The latter have become hubs for international arbitration in a short period of time, especially in the economic landscape of Asia. However, the growth of any such institution in India is dependent on multiple complementary factors that foster the practice of arbitration. SIAC, for example, grew by leaps and bounds because of having a national policy of minimal intervention of the Courts. Courts support and facilitate arbitral tribunals and do not aim to displace them.

Further, courts in Singapore are highly competent in addressing complex questions of international law, treaty interpretation, and international arbitral jurisprudence. In fact, one of the recommendations in the B.N. Srikrishna HLC Report of 2017, was the creation of specialist arbitration benches. The report recommended training judges in arbitration law and practice, just as it is the case in Singapore, Hong Kong, and the UK.

The use of English as an official language is a huge advantage for India. The growth of HKIAC and SIAC is in part due to the prominent use of English in dispute resolution.

The Government must adopt policy measures to attract arbitrations to India’s jurisdiction. It also needs to adopt measures to incentivise foreign professionals to enter in international commercial and local arbitrations in India.

LSPR: The recent Corona Virus Outbreak saw the Supreme Court embracing technologies to limit physical interaction such as video conferencing and e-filing. What are your views on incorporating such assistive technology in courts on a permanent basis?

It depends on whether you see the glass half full or empty. Personally, I see it as half full as it has made us capable of working remotely, building technological infrastructures. We are becoming more efficient in doing things. It all depends on our approach to this – how we are taking and how willing we are to grow.

However, with the current technological setup, such measures might not be feasible in the long run. For instance, cross-examining someone virtually poses significant challenges. Demeanor is a very important element in the appreciation of evidence. Virtual hearing makes it very difficult to calculate factors such as sweaty palm, tapping of feet, etc. Another problem with the virtual cross-examination is the possibility of witnesses sitting in a jurisdiction where they may not be subject to the laws of perjury.

It is incumbent upon us to evolve more effective methods and make use of better technology such as well-defined cameras,  more oversight, etc. In any event Litigation/legal work will continue till the human species exists. The work form and nature may change but opportunities will always be there. We, lawyers, are a resilient species and are great at adapting and evolving.