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27 January 2011

Dear Legally India reader, I am sorry.

03 January 2011


Legally Drawn is created by Vasanth Sarathy and is published on his blog www.legallydrawn.com

And on that note, happy New Year from Legally India too, may all your professional and personal aspirations be binding and come true in 2011!

17 June 2010


For almost six months Legally India's law bloggers have surprised, educated, entertained, assisted, exposed and stretched the minds of this site's readers beyond everyone's wildest expectations. We now look at some of the best quality legal writing and writers in that half year, in the run-up to the final month of the Rs 1.2 lakh blogging competition.

27 January 2010

Legally-India-law-blogsLegally India is starting the first competition to find India's best legal blogger with a total prize fund of Rs 1 lakh, regular paid writing gigs and more for winners. Do you have what it takes?

16 January 2011

Just 4-6 articles sans spelling mistakes a week, rising instances of sensationalism, alleged sex and drinking amongst journalists, and indifference to journalists sucking up to the Radias in the world seems to suggest a serious decline in the standards of journalism.


This is the dismal state of affairs at the Times of India, one of India's premier news and media agencies, as painted by the many commenters that assessed the 168 year old group .


Observing that ToI has moved away from the phase of 'journalism and honesty' to 'sensationalism and yellow journalism', the commenters noted the drastic dilution injournalistic standards. "I think its time we filed a complaint with the Press Council of India. Its time these journos are taken to task. Fancy, printing such lies about a law school!" said commenter Darth Vader, on the ToI website, perhaps when noticing that certain portions added as quotes to a Times of India article on the National Law School of India University, Bangalore, were unattributed to any specific person or document.


The committee of students from the National Law School reviewing this media agency were quick to point out that the reporter in question was unable to even discern whether the body appointed to review the functioning of NLSIU was a committee or a commission, both of which are decidedly different entities.


The committee of students are posting their report and opinions of the agency in real time, pointing out that this is in direct contrast to the ToI publicising a report that was made about two years ago. They also feel that exclusive access be damned, they want people to know that the reporters at ToI are in the crossfires for not figuring out how to report properly and making such absurd statements as there being only 4-6 hours of classes a week - something which the students often feel they'd very much like to have. Or stating that teachers never turn up, which they often do (again, often against the wishes of the students).


The report states that ToI reporters are often ignorant of and most indifferent to the concept of 'context' and knowing how to read dates and know when it would be of relevance, when it comes to news reports submitted by staff reporters. Also, clearly editors don't love their job or are just plain terrible at them. Further, appointment of 4 year olds (of lowered intellectual ability and no journalistic experience) to handle reporting (journalists) and absence of a formal way to get them to check their facts before going to press has drawn flak.


PS: - 1. Based on the ToI article here - http://timesofindia.indiatimes.com/city/bangalore/Law-School-has-lowered-quality-says-CJI-committee/articleshow/7289201.cms


2. For excellent reasons to IGNORE the above article, see the amazing Legal Poet - //www.legallyindia.com/toi-report-lambasts-nlsiu-inaccurate-cursory-reporting-link-to-reservation-demands


3. This is obviously completely tongue in cheek. I mean, it seems obvious to me that ToI's standards are falling/fallen, but that's my opinion. And I'm expressing it. And yes, I know things are probably not perfect at NLSIU - but where are they perfect? And if someone has to point out the flaws, perhaps they wouldn't do it quite so stupidly next time?


06 January 2011

I am in a familiar territory! Hi! I came here long ago. Does anyone remember me? No one remembers a traitor you'd say. I turned a traitor to LegallyIndia blogs. I take the blame.

However, I thought I should come here; just for the kicks (hard ones at the right place). Here is something reproduced from here.


Lawctopus is not a blog. I cringe when people call it a blog. It’s a website and mind you we pay for the website hosting! :)


Now I’ll argue, with my left leg on a chair, that you should write a law blog instead of writing for a law journal. Why is the left leg on a chair? Well, I heard that some lawyer has his right leg on the chair and he argues really well. I wish to see how much truth is there in the legs doing the talking!


Here you go with the pointers.



1.  Autonomy- Autonomy, according to the three people who are better than me, the likes of Seth Godin, Dan Pink and a few others (that makes more than three, but who cares) is the first pre-requisite to be happy.


A law journal states “12 points, Times New Roman, 1.5 spacing”. What if the writer wants to shout and in 72 points? Hey! That curbs my fundamental right of expression and my autonomy.


A law journal states “3000-10,000 words, inclusive footnotes”. Well, brevity is the soul of wit. Law journals then, are soul-less pages stitched together (in bad glossy, supposedly professional covers).  Bad joke.


It states many other things. It puts many conditions. And it makes the writer and the readers unhappy. It is full of rules. It kills autonomy. So if you write art and not for one bullet point in your CV, a law blog is better.



2.  Faster, simple publication: You can publish a write-up on a blog while following the minute hand of the clock. People at law journals work while following two sets of calendar.


Everyone likes freshly baked eats; stale smells. And I wonder, in a six month time don’t many of the law journal write-ups become obsolete?


Moreover, you don't have to boot lick the publishers.  You are the master of your fate; you decide the title, the cover and the credits, not the publishers.


3.  Dull: Law journals can’t afford pictures and photos and mind maps. It is an uncreative workforce that does the writing, publishing and distribution. And hence most of the law journal articles are dull! If you aren’t dull, you should write a legal blog.



4.  More readers: SpicyIP, LAOT and ever LI blogs had dedicated readers. Lots of them. The figures sometimes touched nearly 500 per day. You can never expect it for a law journal article. And there are many reasons for this.


Readers ‘search’ for knowledge, revelation and other such noble things. When they ‘find’ they read your legal blog article. Google is the king of ‘search’ and no law journal can match it. And hence you get more readers.


Note: Oxygen and water and not the point of life, but without them there is no life. Readers are not the point of writing, but without readers there is not point writing. Just see how many print law journals are really read by sane people and you'll realize that there is no point writing for law journals.



5.  More impact and engagement: A blog is an automatic way of getting your article peer reviewed. The comments of a blog take care of the peer review. It can flame up a debate and flower insights. You listen to your readers; answer them, question them. You engage with them. This makes you and your writing grow.


And since a blog is on the world wide web and not in a ‘enclosed in an ugly glossy paper bundle of papers’ it has more readers (I said it before) and thus has more impact. Every writer wants more readers, more impact. Every writer needs readers to clap and slap.

PS- this is a one sided view.



More later. To recapitulate this post:


1. Autonomy.

2. Faster, simple publication.

3. You won't be dull.

4. More readers.

5. More impact and engagement.



Images from here, here, here, here and here.


18 November 2010

Deliberating on the need for initiating legal reforms in infrastructure, experts from the industry and legal profession are and have always been unequivocal on the need for a clearly defined legal and regulatory framework to improve the infrastructure sector in India. The prevailing system of administration of justice has, over the years, proved to be inadequate, for various reasons. On the theoretical plank it gives rise to certain fundamental jurisprudential issues, e.g. the adequacy and efficacy of the present adversary or accusatory system, and the damning dominance of form and procedure in the justice delivery process.

Apart from such basic issues, the system faces a grave crisis of notorious delays, procedural pitfalls and the credibility of the process and personnel involved: the judges, the lawyers and the ministerial apparatus. The experiments like Loknyayalaya and mediation-conciliation cannot claim to be the substitutes for the system. At best, they can be alleviating factors to help the harassed litigant.

India’s legal and judicial systems are highly sophisticated and well developed. Despite that, it has not kept pace with the changing needs arising from increasing population, increase in number of laws, increase in industrial activities and other changes resulting in inordinate delays in disposal of cases.

The present system owes its existence to the colonial rule. Since its inadequacy is thoroughly exposed, now is the time to go into the fundamental question of its compatibility with the Ethos of this country. Today, we find a dichotomy between the real ‘Truth’ and the ‘Truth as stated on Oath in a Court’. A litigant gets away with this in the present system. If the system is made inquisitory and the burden is on the authority to find the truth, truth will come out and the battle between assertions and denials ends. The old Nyaya Panchayat system needs to be revived and supported. For the purpose, an inquiry of the system that was in vogue in ancient-India is useful.

The backlog of millions of cases in all categories of courts is the most damning evidence of the inadequacy of the apparatus. Urgent resolution of the problems pertaining to all the factors must be sought within a time frame.

The number of judges reflects no reasonable equation with the growing population and litigation. Adequate funds, infrastructure and political will are necessary to provide for additional law courts and judges to match the pending and future litigation. The conditions of service should be such as would attract talent and ensure integrity. Training / workshop may help even the High Court judges.

The lawyers have a significant role. Their training in law as well as professional ethic is thoroughly inadequate. Law as a profession has deteriorated. Concrete steps are necessary to stem the rot and to lead a new path.

Efficient Administration and organization of the docket in courts would be able to avoid thoroughly unnecessary procedural delay. A little imagination and a pragmatic (as against the dogmatic) approach can lessen the burden on courts and litigants.

The procedure is termed as the ‘handmaid’ but in practice it rules. Drastic changes in the procedures to be followed in courts are urgently warranted. Every case must reach a time bound destination. The system today has developed a vested interest in delay. If necessary it should be dismantled without remorse.

Justice delivery system, particularly in criminal court needs complete review. The present system punishes the innocent and permits the criminal to go unpunished. Drastic changes in procedure are necessary.

By Hemant Batra, Lead Partner, Kaden Boriss Legal LLP, India; Vice President, SAARCLAW; Chairperson, IICLAM, Singapore; Advisory Board Member, OIC, USA

18 November 2010


Legally Drawn is created by Vasanth Sarathy and is published on his blog www.legallydrawn.com

15 November 2010

“I am never satisfied with the progress, I want things to move faster…” this was said by ASEAN Secretary General, H.E. Mr. Ong Keng Yong to the Business Standard, a business news publication, on the sidelines of a seminar organised by non-aligned Research and Information Systems and the Federation of Indian Chambers of Commerce and Industry (FICCI).

It is indispensable to appreciate the significance of intra-regional trade as it has a positive impact on the other countries, which forms the inter-regional trade. An important trend has been the growth of the intra-regional trade. Some people view world trade as consisting generally of intra-regional trade and the        inter-regional trade. There is also talk of regionalisation versus globalisation of world trade. In 1980s, the share of intra-regional trade in total world trade increased in Western Europe, North America and Asia. In 1990 intra-regional trade in goods accounted for 61% of total trade in goods of the European Community – 41% for Asia and 35% for North America. Over 60% of the trade of the Pacific rim nations stays within the area. Regional integration schemes tend to increase intra-regional trade. Trade between the 12 members of the European Community (EC) increased to 60% in 1990. Intra-regional trade increased in the European Free Trade Association (EFTA) and the Association of South East Asian Nations (ASEAN).

Now, coming to one of the most important economic grouping in Asia – ASEAN and its relation with India a burgeoning developing country.

This paper makes an attempt to describe the panorama of trade within ASEAN and outside it, with other countries. The Association of Southeast Asian Nations (ASEAN) is a political, economic, and cultural organization of countries located in Southeast Asia. Founded on August 8th 1967, its aim is to foster cooperation and mutual assistance among members. The member countries meet annually every November in summits. The current member countries of ASEAN are, Indonesia, Malaysia, Philippines, Singapore, Thailand, Brunei, Viet Nam, Laos, Myanmar and Cambodia. Papua New Guinea enjoys the status of an observer in the ASEAN. The first four countries as mentioned above are its founding members. ASEAN regularly conducts dialogue meetings with other countries and organizations, collectively known as the ASEAN dialogue partners. They are Australia, Canada, The People’s Republic of China, North Korea, South Korea, the United States, India, Japan, Mongolia, New Zealand, Russia, and the European Union. ASEAN Headquarters is located in Jakarta, Indonesia.

The ASEAN Regional Forum (ARF) is an informal multilateral dialogue of 23 members that seeks to address security issues in the Asia-Pacific region. The ARF met for the first time in 1994. The members include the 10 member states of the ASEAN, the observer Papua New Guinea, and the 12 ASEAN dialogue partners. The association includes about 8% of the world’s population and in 2003 it had a combined GDP of about US$700 billion (roughly equivalent to South Korea) and this GDP was growing at an average rate of around 4% p.a. The economies of member countries of ASEAN are diverse, although its major products include electronic goods, oil and wood. The ASEAN countries are culturally diverse and they include the third largest number of English speakers in any other geopolitical entity (after the US and UK), around 50 million, mostly in the Philippines. ASEAN also includes more Muslims than any other geopolitical entity — about a quarter of a billion, mostly in Indonesia and Malaysia. Other main religions of the various people in the region include large numbers of Buddhists in Thailand, Myanmar, Laos, Cambodia, Vietnam and Singapore and the predominantly Catholic Philippines. This simply proves that ASEAN is the only organisation with such diversity. ASEAN has governments with widely differing views on governance and political process, including practices in areas such as suffrage and representation. Government types range from democracy (capitalism) to communism and socialism. The level of corruption in ASEAN governments is also an area with large disparity.

ASEAN’s interest in India arises from two considerations. First, ASEAN has traditionally engaged all the major powers of the world. India’s rising economic and technological competence has the prospective to provide considerable opportunities for ASEAN countries. Second, ASEAN and India are working towards a free trade agreement, which leaders hope to make operational in a decade. This requires a considerably enhanced understanding of each other’s economic structures, institutions, and political systems.

ASEAN has been a hot topic in India for quite sometime now. There is a lot of talk about how ASEAN can boost Indian economy and how relations with ASEAN can boost India’s foreign trade. India’s engagement with the ASEAN started with its “Look East Policy” in the year 1991. ASEAN has a membership of 10 countries namely Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam. India became a Sectoral Dialogue Partner of ASEAN in 1992 and Full Dialogue Partner in 1996. In November 2001, the ASEAN-India relationship was upgraded to the summit level.

The 1st ASEAN Economic Ministers (AEM) – India Consultations were held on 15th September 2002 in Brunei Darussalam where the Ministers, after discussing the Joint Study Report decided to establish an ASEAN-India Economic Linkages Task Force (AIELTF). The AIELTF was asked to prepare a draft Framework Agreement to enhance the ASEAN-India trade and economic cooperation before the 2nd AEM – India Consultations. Subsequently, at the First ASEAN-India Summit held on 5th November 2002 in Phnom Penh, Cambodia, the former Prime Minister of India Mr. Atal Bihare Vajpayee made the following major announcements:-

·         India will extend special and differential trade treatment to ASEAN countries, based on their levels of development to improve their market access to India;

·         FTA within 10 years timeframe; and

·         India is committed to aligning its peak tariffs to East-Asian levels by 2005.

The Prime Minster of India and the Heads of Nation/Governments of ASEAN members signed a Framework-Agreement on Comprehensive Economic Cooperation between the ASEAN and India during the Second ASEAN – India Summit on 8th October 2003 in Bali, Indonesia. The key elements of the Framework Agreement on Comprehensive Economic Cooperation covered FTA in Goods, Services and Investment, as well as Areas of Economic Cooperation. The Agreement also provided for an Early Harvest Programme (EHP), which covers areas of Economic Cooperation and a common list of items for exchange of tariff concessions as a confidence building measure. The highlights of the Framework Agreement are as follows: -

 (I) FTA in Goods

·            The tariff reductions would start from 1st January, 2006 and Most Favoured Nations (MFN) tariff rates to be gradually eliminated. While India will eliminate tariffs in 2011 for Brunei Darussalam, Cambodia, Lao PDR, Indonesia, Malaysia, Myanmar, Singapore, Thailand and Vietnam; Brunei Darussalam, Indonesia, Malaysia, Singapore and Thailand will eliminate in 2011 and new ASEAN Member States i.e. CLMV will eliminate in 2016 for India. India and Philippines will eliminate tariffs for each other on a reciprocal basis by 2016.

(II) FTA in Services and Investments

·                       Negotiations to commence in 2005 and concluded by 2007.

·           The identification, liberalisation etc. of the sectors of services to be finalised for implementation subsequently.

(IV) Areas of Economic Cooperation

·            Areas of economic cooperation to include trade facilitation measures; sectors of cooperation; and trade & investment promotion measures.

 (V) Early Harvest Programme (EHP)

·          Based on the inter-Ministerial consultations and apex chambers of commerce, the items for EHP were finalised for exchange of concessions.

Referring from an economic report as made available by Mr P K Basu Managing Director, Robust Economic Analysis Pte Ltd (REAL); and Secretary, India Club, Singapore; he says that India is the fastest growing economies among world democracies.

Never in the history of mankind has a democracy with even 200 million people sustained annual real GDP (Gross Domestic Product) growth of 5.9% over a 24-year period. India’s achievement is unparalleled. In 2003, India had the world’s highest nominal GDP growth. Its because of these, India is closer to fulfilling one of its top priorities – forging stronger economic ties with the Association of Southeast Asian nations or ASEAN. India and the 10-member ASEAN group will sign deals for a plan of action and to promote “shared prosperity” at the annual summit.

It’s because of India’s strong seeking nature that economists and honchos of the trade-world believe that an FTA with ASEAN will give India an opportunity to look beyond trade. This will undoubtedly bring India closer to its target of achieving 2 per cent share in global trade. Geetanjali Nataraj, professor at the Indian Institute for Foreign Trade (IIFT), says “India is looking beyond its traditional trading partners in the West, and taking advantage of ASEAN’s increasing global trade and investment. India has set a target of achieving two-percent share in world trade, and to achieve this target we need to explore new markets, enter new markets, and ASEAN is a big market for India”. At first, ASEAN was slow to respond to Indian overtures, but that is slowly changing.

Asian countries struggled with the financial crisis of 1997, and India’s economy began showing signs of promise. Experts say ASEAN also began to see how India could balance out China’s power in Asia. The relationship has acquired momentum in the past two years. At the 2003 ASEAN summit, India and the Southeast Asian bloc agreed to create a free-trade area in goods, services and investment by 2011. Arvind Virmani, Director at the Indian Council for Research on International Economic Research, says much smaller ASEAN countries stand to gain from access to India’s market of more than one billion people, and in particular, its booming information technology sector.

 He also added that ASEAN has recognized India’s dexterity in IT and in service exports. This is the reason why more countries of the ASEAN who had a mental block to trade with India are slowly breaking out of it. International economists say that by wooing ASEAN, India ensures it is not isolated when regional trading arrangements are “en vogue”. This could include eventual economic integration with economically dynamic East Asia. In fact, New Delhi hopes closer links with ASEAN will help draw it into a larger economic community that includes China, Japan and South Korea. India’s need to build links with developing economies now is pressing as developed nations put up more trade barriers despite preaching liberalization.

 The developed countries are becoming highly protectionist and they are inflicting all sorts of barriers. Non-tariff barriers in the developed world are increasing rapidly which necessitates India to look beyond the developed world to expand its trade and ASEAN countries offer great opportunities to India. India is making better progress with some ASEAN members than with others. It has a free-trade pact with Thailand already, and, in the past year, greater investment from Malaysia and Singapore, with which it has a cooperation deal in the works.

 Still, two-way India-ASEAN trade is far lower than it could be. In 2002 it was about $10 billion, only one percent of overall ASEAN trade. Sceptics doubt India can move fast enough to change that. With Chinese goods flooding the region, India is its own worst enemy, raising tariff barriers higher than countries in East Asia. It has promised to reduce duties, but usually is slow to act. Transport and communication links with the region also need to be improved. However, as India’s economic profile grows, and its industry becomes more competitive globally, there is optimism the relationship will bear fruit.

 (Author PS: Though this article was written by me in 2005; but it does assume importance in the current scenario) 

 ……………………………………………… To Be Continued in Part II

By Hemant Batra, Lead Partner, Kaden Boriss Legal LLP, India; Vice President, SAARCLAW; Chairperson, IICLAM, Singapore; Advisory Board Member, OIC, USA


10 November 2010

It's just two years since I've enrolled,  and already my practice is growing by leaps and bounds.  I am losing track of the number of inquiries I get from potential clients. I've always had a flair for mergers & acquisitions, takeovers, international banking, and cross border transactions law.  Now the world is beginning to recognize my talent too. 


"It's quite amazing," I sometimes think.  "How fast word spreads." Is it the confidence with which I carry myself in the courts? Is it the assertive tone of my voice when I make my submissions? When you are good, you don't have to put in extra efforts to impress. Your natural flair carries the day.  No networking, no attending seminars and flashing visiting cards, no surrogate advertising - nothing.  People just get wind of your sheer talent and approach you.

And it's not just locally that you are noticed. In this age of technological advancement, word spreads like wildfire.  People from across the world have been writing, wanting me  to assist them in their high stakes business ventures.  I've begun to realize that there is a global dearth of good talent.

In the last 24 hours, I learned:

a) That Odafe Nbujara, Bank Manager at the Nigerian Overseas Bank, discovered  an abandoned sum of $12.5 million in an account that belonged to Thomas Sbarjanda, chief military advisor to the Nigerien Government, who was overthrown and killed in a military coup in 2006.  To my sheer good luck, I have been identified as Sbarjanda's next of kin and Nbujara needs my help in transferring the funds to me.  "All I have to do is pronounce Sbarjanda's name correctly," Nbujara said in his e-mail, and gave me a phone number at which to call.

b) That I am entitled to One Million, Five Hundred Thousand Dollars as charity/aid from the Royal Dutch Shell Foundation (NETHERLANDS) International donation scheme. "Wow," I thought, on reading the e-mail.  "Perhaps, this Foundation of international repute has heard of my growing prominence, and wants to honour me before anyone else does."


c) That my e-mail address was the lucky winner of 4.5 million dollars in an online lottery promoted by Microsoft.  "Indeed, why not." I said to myself, on reading the good news. "Fortune not only favours the brave, it favours the exceptionally talented too."

Another person wrote to me from Hong Kong.  I will not disclose his name here because he has requested confidentiality. Anyway, his mail started by saying "It is understandable that you might be a little bit apprehensive because you do not know me, Please forgive this unusual manner to contact you, but this particular letter/email is of exceptional and very private nature."

"How polite," I thought.  "A thorough gentleman indeed.  Not only does he want to engage my services, he also wants me to forgive him for contacting me!  Sheer humility.  You  just don't find people like him these days."  Anyway, this kind soul wants my assistance in executing a business project worth $25.5 million.  How can I ever refuse?

Another  unfortunate widow has written to me from Rwanda, informing that her husband died two months ago, leaving behind $50 million to her.  She fears that her greedy relatives are trying to grab the money and needs my urgent assistance in transferring the money to my account, and handing it over to her when she meets me in person.  She has promised me 25% as fees.  "Well," I thought. "She definitely needs someone trustworthy like me to help her."   Only someone with in depth knowledge of foreign exchange laws, transnational contracts, international banking, and inheritance laws can help her.  No wonder she has written to me. Perhaps, she made her own discreet inquiries and launched an international search for the right person to assist her.  I feel proud to be the chosen one.


Success can really be intoxicating, you see.  Now,  I really get worried when I don't receive such client inquiries regularly. Anyway, I'm not going to rest on my laurels.  Sweat, toil, and hard work  are stepping stones to even more sweat, toil, and hard work.

10 November 2010

Martian Law

Legally Drawn is created by Vasanth Sarathy and is published on his blog www.legallydrawn.com

09 November 2010

By: Kartik Dawar – Associate Advocate, Kaden Boriss Legal LLP


Partnership is one of the oldest forms of business relationships that continues to be relevant in the present era as well. In India, even though limited liability companies have substituted partnership firms in large businesses, partnership continues to be the dominant business model for professionals and small business enterprises, often due to legal necessity and implications rather than choice.


The Indian Partnership Act, 1932 provides for a traditional form of partnership which is simple to form and easily dissolved and requires very little regulatory compliance. An important feature of this kind of partnership is the unlimited liability of the partners for the acts of the firm; in fact the firm does not have a separate legal identity from the partners and for this very reason it is also difficult to induct and retire partners as any change in the constitution of firm gives rise to a new firm. To overcome the shortfalls of this kind of traditional partnership, a need was felt by both the legislators and the business community to create an alternate business structure that would combine the positive points of traditional partnership and the limited liability company; and such a structure has come to be known as the Limited Liability Partnership (LLP). A Limited Liability Partnership is a hybrid between a company and a partnership that, as the name suggests, provides the benefits of limited liability and allows its members the flexibility of organizing their internal structure as a partnership based on a mutually arrived agreement.




Limited Liability Partnership has already been accepted as a business structure in many countries like US, UK, Japan, Singapore etc. In US, Limited liability partnerships emerged in the early 1990s: while only two states allowed LLPs in 1992, over forty had adopted LLP statutes by the time LLPs were added to the Uniform Partnership Act in 1996. Each state of US has its own law governing the formation of LLPs. The liability of the partners varies from state to state. In UK, LLPs are governed by the Limited Liability Partnerships Act, 2000 (in England and Wales and Scotland) and the Limited Liability Partnerships Act (Northern Ireland) 2002 in Northern Ireland. A UK Limited Liability Partnership is a Corporate body – that is, it has a perpetual succession. The feature of LLP in UK is that it combines the organizational flexibility and tax status of a partnership with limited liability for its members. In Japan, LLP is not a corporation, but rather exists as a contractual relationship between the partners. In Singapore, LLPs are formed under the Limited Liability Partnerships Act, 2005. This legislation draws on both the US and UK models of LLP and establishes LLP as a body corporate. However for tax purposes it is treated like a general partnership.




The Indian Legislature, keeping in view, the international business trends where a range of services is being offered by professionals and businesses in the form of Limited Liability Partnerships, has enacted the much awaited Limited Liability Partnership Act. The Limited Liability Partnership Bill, 2006, was approved by the Cabinet on Dec 7, 2006 and was introduced in the Rajya Sabha on 15th Dec, 2006. It was later referred to the Department Related Parliamentary Standing Committee on Finance for examination. The Committee submitted its report to both Houses of Parliament on 27th Nov, 2007, recommending some changes along with some suggestions regarding the LLP Bill, 2006.[1] On 12th Dec 2008, the Parliament passed the Limited Liability Partnership Bill, 2008. The Limited Liability Partnership Bill, 2008 received the assent of the Hon’ble President on 7th January, 2009 and has now become a legislation to be called as 'Limited Liability Partnership Act, 2008’.


The Limited Liability Partnership Act, 2008


An LLP under the Limited Liability Partnership Act, 2008 is a body corporate having a distinct legal entity separate from that of its partners and has perpetual succession i.e. any change in the partners will not affect the existence, rights or liabilities of the LLP.


The Limited Liability Partnership shall be required to have at least two partners but there will be no limit on the maximum number of partners. If at any time the number of partners of an LLP is reduced below two and such LLP carries on business for more than six months, the person who is the only partner of the LLP during the time it carries on business after those six months shall be liable personally for the obligations of the LLP incurred during that period.[2] Any individual or body corporate may be a partner in an LLP.[3] Further, the provisions of the Indian Partnership Act, 1932 shall not be applicable to an LLP.[4] Further, an LLP, will by its name has the power to sue and being sued, hold and dispose property, have a common seal and to do and suffer such other acts as bodies corporate may lawfully do and suffer. Every LLP is required to have either the words limited liability partnership or the acronym LLP as the last words of its name.


Incorporation of an LLP


An LLP is formed pursuant to a “limited liability partnership agreement” which means any written agreement between the partners of the limited liability partnership or between the limited liability partnership and its partners, which determines the mutual rights, and duties of the partners and their rights and duties in relation to that limited liability partnership.[5]


For an LLP to be incorporated, at least two persons must subscribe their name to a document called an incorporation document, which must then be submitted to the Registrar of companies. There is also a requirement of fling a statement in the prescribed form, made by either an Advocate, or a Company Secretary, or a Chartered Accountant or a Cost Accountant in whole time practice in India or by anyone who subscribed his name to the incorporation document that all the requirements under the Act and the rules made thereunder are complied with in respect of the incorporation, along with the incorporation document. The incorporation document must contain information such as the name of the LLP, its proposed business, address of its registered office, the name, address and photographs of the persons who are to be its partners on incorporation.


Upon receiving the incorporation document the Registrar will retain and register it. Once the documents have been registered, the Registrar will issue a certificate that the LLP is incorporated by the name specified in the incorporation document. The certificate issued by the Registrar is evidence that all the requirements have been complied with.


Extent and Limitation of Liability


An LLP being a separate legal entity is liable for an obligation arising in contract or otherwise and the liabilities of the LLP will be met out of its property. A partner will not be held personally liable, directly or indirectly for an obligation of the LLP, solely by reason of being a partner of the LLP. However, such liability shall not affect the personal liability of a partner for his own wrongful act or omissions and in the event of an act carried out by the LLP or any of its partners, with intent to defraud creditors of the LLP or any other person, or for any fraudulent purpose, the liability of the LLP and partners who acted with intent to defraud creditors or for any fraudulent purpose shall be unlimited for all or any of the debts or other liabilities of the LLP. Therefore, a partner will be held personally liable for his own wrongful act or omission, but not for the wrongful act or omission of any other partner of the LLP.


Safeguards to Prevent Misuse


Since there would be limitation on the liability of the partners and the LLP shall be a separate legal entity contracting with third parties in its own right, the Act has certain built-in features which shall lead to greater control over LLPs than what could be exercised over traditional partnerships. Some of these requirements include the requirement of every LLP to have a registered office in India to which all communications will be made and received. Any change in the registered office has be intimated to the Registrar. Every LLP is also required to have at least two designated partners and one of them should be resident in India.[6] The designated partners shall be answerable for all acts, matters and things as are required to be done by the LLP in respect of compliance of the provisions of the proposed legislation and be liable for penalties for non compliance.


The LLP shall be required to maintain proper books of accounts in the prescribed manner according to the double entry system of accounting at its registered office for the specified period of time. The LLP shall also be required, within a period of six months from the end of each financial year, to prepare a Statement of Account and Solvency for the said financial year, which report is then required to be signed by the designated partners of the LLP. Further, the LLP shall file an annual return duly authenticated with the Registrar within sixty days of closure of its financial year. Certain penal provisions have also been provided by the Act for the contravention of the Provisions pertaining to financial disclosures.




In a nutshell, the Limited Liability Partnership has the following advantages:

·         It provides limited liability to its partners. Though personal Liability arises in case of wrongful acts or omissions, a partner is not personally liable for such acts or omissions of other partner.

·         LLP Business Structure also has the advantage of Internal Flexibility. As in traditional partnership, the internal structure of LLP can be organized as per mutual agreement.

·         The requirements as to Board Meetings, Resolutions, Annual meetings, etc. are not there in case of LLP. There is less paperwork in case of LLPs, even the formation of a partnership agreement is not mandatory; the Act provides for default provisions in its Schedule I. The filing requirements are also less as compared to a company.

·         Since LLP is a separate legal entity, its existence is not offered by the entry or exit of partners.




The passing of the Limited Liability Partnership Act, 2008 is a recognition of the changing needs of the businesses in today’s times. If it is implemented properly, the introduction of the LLP will provide a helpful new option for professional partnerships which are anxious about their exposure to liability. In view of the growth of Indian Service industry in recent times, LLPs would further contribute to the growth of the service industry and a large number of existing companies, public as well as private, are expected to convert into LLPs with a view to have access to the benefits of the LLP. The Government of India has made an endeavour to create a facilitating environment for entrepreneurs, service providers and professionals to meet the global competition; however it needs to be seen how far the change is useful.


[1] Public Information Bureau Press Release dated 1st May 2008

[2] Section 6(2) of the Act

[3] Section 5 of the Act

[4] Section 4 of the Act

[5] Section 2(o) of the Act

[6] Section 7(1) of the Act

03 November 2010

Hemant Batra, Lead Partner, Kaden Boriss Legal LLP, India

Most Countries of the World which embarked on the road to economic development had to depend on foreign capital to some extent. But until the early 1990s India’s approach towards foreign capital as an instrument of growth and development in an overall sense was rigid, restrictive and selective. Things, however, changed with the Industrial Policy 1991.Coming on the heels of the macro –economic and balance of payment crisis of late 1980s, it ushered in a paradigm shift in the Indian economy and over bent to cajole foreign capital to come to India. The beginning made by the Industrial Policy 1991 in the direction of inviting foreign capital has increasingly been gaining momentum with new sectors being made eligible, with almost each subsequent year, for foreign capital.

The most important channel through which foreign capital flows into the country is Foreign Direct Investment (FDI). FDI as defined in Dictionary of Economics (Graham Bannock et.al) is “investment in a foreign country through the acquisition of a local company or the establishment there of an operation on a new (Greenfield) site.  International Monetary Organization (IMF) and Organization for Economic Cooperation and Development (OECD) define FDI as  a category of cross border investment made by a resident in one economy (the direct investor) with the objective of establishing a ‘lasting interest’ in an enterprise (the direct investment enterprise) that is resident in an economy other than that of the direct investor. The motive of the direct investor is a strategic long term relationship with the direct investment enterprise to ensure significant degree of influence in the management of the direct investment enterprise .Besides, International Bank for Reconstruction and Development (IBRD) and United Nations Conference on Trade and Development (UNCTAD) also provide definition of Foreign Direct Investment. To put in simple words, FDI refers to capital inflows from abroad that is invested in or to enhance the production capacity of the economy. It is preferred over other source of foreign capital because it is non-volatile, non-debt creating and results in economic development, modernization and employment generation in the economy.

Foreign Direct Investment under the Industrial Policy 1991 and thereafter under different Foreign Trade Policies is being allowed in different sectors of the economy in different proportion under either the Government route or Automatic Route.  In Retailing, presently 51 per cent FDI is allowed in single brand retail through the Government Approval route while 100 per cent FDI is allowed in the cash-and-carry (wholesale) formats under the Automatic route. Under the Government Approval route, proposal for FDI in ‘Single Brand Product Retailing’ are received in the Department of Industrial Policy and Promotion, Ministry of Commerce & Industry. Automatic route dispenses with the need of multiple approvals from Government and/or regulatory agencies (Government of India or the RBI). Investors are required only to notify the concerned Regional offices of RBI within 30 days of receipt of inward remittances and file required documents with that office within 30 days of the issue of shares to foreign investors

The legal regimes that controls FDI in India and to that extent FDI in retailing includes Press Notes by Department of Industrial Policy and Promotion, Foreign Exchange Management Act 1999, Guidelines  of Reserve Bank of India(RBI) and Security and Exchange Board of India, besides, of course, the Constitution of India.

India’s large and ever growing population coupled with a paucity of profitable economic opportunities make “labor intensive” activities like Agriculture and Retailing a major source of subsistence for the teeming millions especially the poor unskilled labor, superfluous labor and the educated unemployed. Therefore, any change that tend to disturb the existing configuration of these two sectors have a bearing on the lives of millions of these people and raises sharp public outcry and to that extent FDI in Agriculture and Retailing has always been a contentious issue. Of late, the Government of India has expressed its desire to bring the Multi-Brand retailing within the ambit of FDI, and in the process has put in train a debate on its possible outcome. This short paper proposes to examine the conflicting view points of this debate so as to arrive at a balanced conclusion.

Retailing in India as also elsewhere in the world is divided into organized and unorganized retailing. Organized retailing refers to trade activities undertaken by the licensed retailers i,e,  those who are registered for sales tax, income tax etc. These include the corporate backed hypermarket, retail chains and also the privately owned large retail business. Unorganized retailing, on the other hand, refers to traditional format of low cost retailing, for example the corner store (kirana i.e. grocery shops),owner manned general stores, Cigarette shops, convenience store, hand cart, pavement vendor etc. Unorganized retailing is the most prolific and visible form of retailing in India while the organized retailing constitutes only a very small percentage (3-4%). The reasons as to why Indian retailing is so fragmented or unorganized in nature lies in her entrenched poverty and the fact that a large number of educated unemployed and superfluous labor takes refuge in retailing in the face of joblessness and glaring poverty. Retailing in unorganized sector is thus not a profit oriented vocation but a mere source of livelihood. Naturally, the capital investment is very low and the infrastructure is rudimentary. It is estimated that less than 4% of Indian retailers have shops larger than 500 square feet. Given this rickety state of Indian unorganized retailing, there are serious apprehensions that the flow of organized foreign capital with its associated baggage of humungous infrastructure, bulging financial power professional managerial staffs etc, would sound the death knell for the Indian retailing industry. As against most Indian retailers’ less than 500 square feet premises, the average size of a store of Wall-mart (American Retailing Giant)   is 85000 square feet and has an average annual turnover of $51 million as opposed to an average Indian retailer’s paltry turnover of Rs.186, 000. Further, it is feared that the international retailing giants will resort to predatory pricing to acquire monopolies. These retailing giants with their sprawling business cutting across different continents and deep pockets will be able to sustain loss till their competitors are wiped out.

As has been mentioned earlier retailing “disguises” the abysmal nature of unemployment in the country. Indian agriculture has long been a source of livelihood for the teeming millions of the country (provides employment to more than 50% of India’s labor force)   so much so that it is massively over-crowded now. Besides, during the lean season even the productive farmer find themselves unemployed. Although the manufacturing is a labor absorbing sector, its true potential has not been harnessed as yet and it has been stagnating since the tenth five year plan. Retailing helps in absorbing these shocks providing safety-net and opportunities to the superfluous labor to eke out a living where all other sectors have not been able to. Critics fear that the inflow of FDI in retailing will restrict the labor absorbing capacity of the retailing sector since the international retailing giants employ labor saving machinery and knowhow both to add value to their service as well as to enhance their profit. And given the fact that the manufacturing is not in a vibrating state to absorb those who are displaced from the retailing by the advent of FDI, the poor and the unemployed will find the going very difficult for them. There will be a hike in the rate of both unemployment and underemployment.

It has also been said that the domestic organized retailing is underdeveloped and in a nascent stage. Therefore, it is important that the domestic retailing sector is allowed to grow and consolidate first before the sector is opened to FDI. FDI in retailing may also widen the rural -urban divide in the sense that most of the retailing centers would be set up in the cities where both the density of population and level of income of the people are high. These retail centers would also attract cheap labor from the rural areas and thereby deplete the hinterland of its workforce. In addition, organized retailing with FDI would result in bevy of buildings and multiplexes. Unless their constructions are regulated, they will also add to the chaotic muddle of urbanscape.

After having expatiated on the possible pitfalls of allowing FDI in retailing, it is also necessary to understand the distinction between appearance and reality. Much of the prognostication of gloom is based on a theoretical understanding of the situation. In reality, the research conducted by the Indian Council for Research on International Economic Relations (ICRIER) has revealed that there is no evidence of overall decline in the employment of the Unorganized retailing sector as a result of the advent of FDI in organized retailing and that the rate of closure of small shops for the same reason is very minimal.

One needs to be holistic in his assessment of the outcome of introducing FDI in Retailing. One of the reasons as to why a vast swath of India’s population is suffering poverty and depravation is that Agricultural sector of the country has not developed appropriately, and the main stumbling block in this regard has been that of inadequate logistics and direct access for farmers to vast markets. FDI in retailing can to a large extent ameliorate these deficiencies. If FDI in front end retailing is allowed, the international retailing giants will be motivated to invest capital, bring in  knowhow and global capacity on a colossal scale and as a result a world class back end infrastructure would be built the like of which may take the government years to make (Though FDI is permitted in backend infrastructure to the extent of 100% through the automatic route, in the absence of FDI in retailing, investment in backend infrastructure has not been so forthcoming) . The foremost beneficiary of such a development would be the farmers, especially those engaged in Horticulture. Though India is the second largest producer of fruits and vegetables, lack of storage facilities cause heavy losses to farmers. Availability of adequate post harvest and cold chain infrastructure would enable the farmers to avoid wastage and distress sales. The retailers would engage the farmers directly through the contract farming programmes as also resort to direct buying from the farmers which will dilute the role of profit siphoning intermediaries, enhance the income of the farmers and give them direct access to markets. The resultant rural prosperity may open up market for other industrial goods and help bring about a more balanced regional development. 

The Medium and Small Enterprise that plays a critical role in country’s overall manufacturing scenario has lagged and suffered due to lack of branding and avenues to reach out to the vast world market. The international retailers can buy from them not only for the domestic market but for their stores outside the country also and in the process provide the small and medium enterprises of the country a brand name and a window to the international market. In fact, it is estimated that FDI in retailing can significantly increase export from the country. If the domestic organized retailers are allowed to grow to the exclusion of FDI, it may bring about other above mentioned developments but not increase the exports.FDI can, in fact, spur competition among the organized retailers. The ultimate beneficiary of these competitions would be the consumers. An example of how the consumer benefit from the competition is the automobile industry in India. The intense competition among the automobile industries has resulted in a situation where the consumer has been able to purchase cars for as low a price as rupees one lakh. CRIER in its research has found that all income groups save through organized retail purchase, but the lower income groups save more. Thus, organized retail is relatively more beneficial to the less well-off consumers.

A growing and mushrooming retail sector means that its contribution to GDP would grow. It would thus help in expanding the economy, generate employment and result in more tax income.      

In the light of all that have been discussed above it can be said without any dispute that the time for allowing FDI in Multi –Brand Retailing has come and as Victor Hugo has said “Nothing can stop an idea whose time has come”. FDI in Retailing started with FDI in cash and carry wholesale trading first permitted in 1997 to the extent of 100% under the Government approval route and thereafter in 2006 brought under the automatic route. In 2006 again FDI in Single Brand Retailing was permitted to the extent of 51%. From here it is but natural and logical that FDI would now proliferate to multi-brand retailing. But the progression to FDI in multi-brand retailing cannot take place at the cost of vital concerns raised in connection with this possible change by different groups; viz, the question of adaptability of the retailers in the unorganized sector, the question as to how the FDI in retailing can be harnessed for the benefits of Indian agriculture and Medium and Small Enterprise and above all how to impart into the economy a degree of resilience to withstand the changes that would be ushered  in the wake of introduction of FDI in retailing. All these concerns have to be addressed not because the Left wing political parties and the media through their campaign have necessitated such attention but because we are constitutionally bound to do so .The Preamble of the Constitution resolves to constitute India into a Sovereign, Socialist, Secular, Democratic, Republic and to secure to all its citizens JUSTICE, social, economic and political …..EQUALITY of status and opportunity. Directive Principles of State Policy similarly exhorts the state to establish just, equitable and fair order. Article 39(c) states that the state should ensure that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. Though both these features are not enforceable, the Executive and the Apex Court in particular have time and again reiterated the sacrosanct nature of these features [ Kesavananda Bharti v.State of Kerala AIR 1973 SC1461,1973(4) SCC225; Minerva Mills v. Union  of India 1980 AIR 1789,1981 SCR(1) 2061]

Unlike FDI in single brand retailing which pertains to brand loyal and a relatively small high income clientele, FDI in multi-brand retailing would have direct impact on a vast spectrum of population and thus a sensitive issue. Left alone foreign capital will seek ways through which it can only multiply itself, and unthinking application of capital for profit, given our peculiar socio-economic conditions, may spell doom and deepen the hiatus between the rich and the poor. Thus the proliferation of foreign capital into multi-brand retailing needs to be anchored in such a way that it results in a win-win situation for India. This can be done by integrating into the rules and regulations for FDI in multi-brand retailing certain inbuilt safety valves. For example FDI in multi –brand retailing can be allowed in a calibrated manner with social safeguards so that the effect of possible labor dislocation can be analyzed and policy fine tuned accordingly. To ensure that the foreign investors make a genuine contribution to the development of infrastructure and logistics, it can be stipulated that a percentage of FDI should be spent towards building up of back end infrastructure, logistics or agro processing units. One of the justifications for introducing FDI in multi-brand retailing is to transform the poverty stricken and stagnating rural sphere into a forward moving and prosperous rural sphere. To actualize this goal it can be stipulated that at least 50% of the jobs in the retail outlet should be reserved for rural youth and that a certain amount of farm produce be procured from the poor farmers. Similarly to develop our small and medium enterprise, it can also be stipulated that a minimum percentage of manufactured products be sourced from the SME sector in India. Public Distribution System is still in many ways the life line of the people living below the poverty line. To ensure that the system is not weakened the government may reserve the right to procure a certain amount of food grains for replenishing the buffer. The government may also put in place an exclusive regulatory framework to protect the interest of small retailers. It will ensure that the retailing giants do resort to predatory pricing or acquire monopolistic tendencies. Besides, the government and RBI need to evolve suitable policies to enable the retailers in the unorganized sector to expand and improve their efficiencies

The Industrial policy 1991 had crafted a trajectory of change whereby every sectors of Indian economy at one point of time or the other would be embraced by liberalization, privatization and globalization.FDI in multi-brand retailing is in that sense a steady progression of that trajectory. But the government has by far cushioned the adverse impact of the change that has ensued in the wake of the implementation of Industrial Policy 1991 through safety nets and social safeguards. But the change that the movement of retailing sector into the FDI regime would bring about will require more involved and informed support from the government. One hopes that the government would stand up to its responsibility, because what is at stake is the stability of the vital pillars of the economy- retailing, agriculture, and manufacturing. In short, the socio economic equilibrium of the entire country.  

By Hemant Batra, Lead Partner, Kaden Boriss Legal LLP, India; Vice President, SAARCLAW; Chairperson, IICLAM, Singapore; Advisory Board Member, OIC, USA

26 October 2010


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21 October 2010

I received an email from one KV Dhanajay, Advocate, Supreme Court of India; the email was not any personal email but was addressed to many addresses including me; initially I thought it was more like a spam communication or an unsolicited invite to join some movement or sell a service or product; but my thought was wrong though my instinct was right; instinct prevailed over thought and I went through the contents and attachment to that email opening through defined links.

I must admit that I was really overwhelmed by the initiative taken by this lawyer Dhanajay. As claimed in his email, to ensure greater transparency in judicial proceedings, he wrote a letter to the Learned Chief Justice, Delhi High Court on 03-Mar-2009 stating that he wish to audio-record judicial proceedings in which he represented one or more of the parties to that proceeding. He also claimed that the said letter was on similar terms as that made to the Learned Chief Justice, Karnataka High Court in the month of September, 08. Six months later, he was told that the High Court of Karnataka is yet to take a decision on that letter. He is contemplating taking legal action/remedy against the Hon’ble Chief Justice of Karnataka High Court, in his administrative capacity, to compel him to allow his request.

The Indian national daily Indian Express has carried a story on this in their Delhi and North Indian editions. According to the newspaper, “a Young lawyer has provoked a new debate on transparency in the judiciary by sending a letter to Delhi High Court Chief Justice A P Shah, seeking permission to “non-intrusively” tape-record court proceedings……………………………………But Dhananjay reasoned in the letter that an audio record of court proceedings, especially interaction between the judge and lawyer, would help his client accurately follow the case. “The recording would be done by a tiny device, which, without any displacement, can capture every sound generated in that specific court room. This device can even be worn inside a pocket of a shirt or a trouser. This device makes no sound or noise whatsoever as its mechanism and operation are electronic.”

I also went through the contents of the said letter written by Dhananjay to the Learned Chief Justice, Delhi High Court, as the same is available on google’s website. By way of the said letter, he has sought a no objection from the Chief Justice to record those judicial proceedings in which he is engaged as the arguing counsel by any party to such judicial proceeding conducted in this Hon’ble Court. If allowed, he proposed to use miniature digital audio recorders being several times smaller than the smallest cell phone in use today. The recording would be done by a tiny device, which, without any displacement, can capture every sound generated in that specific court room. This device can even be worn inside a pocket of a shirt or a trouser. This device makes no sound or noise whatsoever as its mechanism and operation are electronic. The request was made because ordinarily in India audio recording of judicial proceedings is not permissible. The justification extended by the lawyer for the said request is that transcription has become an integral part of judicial proceedings in most parts of the world today and every major democratic institution of the world employs transcription. Appellate Courts in many jurisdictions routinely remand matters back to the lower court and order retrial in the event the previous trial was not captured in an official transcript or if the official transcript is lost or destroyed. And their intermediate and Supreme Courts routinely consult transcripts of precedent proceedings to resolve any substantial question of law. Millions of transcripts of judicial proceedings from various parts of the world are posted on the internet and have fostered immense trust and faith in the integrity of the judicial proceedings that are open for transcription. Further, every judicial proceeding is invariably reconstructed on appeal and the fairness of an appeal is directly determined by the degree of accuracy with which the proceeding below is reconstructed. The absence of a transcription greatly burdens an appellate court with assumptions (about the proceeding below) that may greatly vary from the actual proceeding. A transcript relieves an appellate court of such enormous burden and in doing so, similarly relieves an appellant of burden that is incompatible with the modern era – recording devices are commonplace, transcribing professionals are active in every part of the world and more so in the city of Delhi and its adjuncts, transcribing software mechanically converts audio signals to written word with 99.99 % accuracy (while the balance 0.01% is achieved manually). The lawyers also goes on to state that a party to a judicial proceeding has an inherent right to information about such proceeding and the consequent right to preserve such information. This right is not fully honored as long as a party must reconstruct a judicial proceeding by employing his own memory or that of his counsel. Further, given the possibility of different counsel appearing at different stages of the same judicial proceeding and of different appellate counsel, it becomes absolutely essential that a party’s need for an accurate reconstruction of a judicial proceeding is fully honored. Now let’s go through the contrary view as contained in the Indian Express; one section of the legal fraternity feels that audio recording of court proceedings also carries with it a possibility that information could be manipulated, distorted, or used to embarrass, harass or intimidate parties to court proceedings.

Speaking now for myself, I would certainly support the audio and even video recording; in my assessment it has following advantages –

1. First and foremost, it will improve the discipline and decorum inside the court rooms; cause everybody will be conscious of the fact that they are being recorded;

2. It will improve the standards of practice; each lawyer would try to justify to his or her client about his or her best efforts;

3. Likewise, it will also improve the justice delivery system; cause the Judges would be under scanner;

4. It will improve the judicial mechanism as a whole; cause the data of judicial proceedings in any matter would be readily available for scrutiny by the higher court;

5. It will speed up justice; cause the appellate courts need not hold actual detailed hearings; they can analyze video/audio and if need be circulate questionnaire to the parties;

6. Globally, we are moving towards digitization and electronic management system; everything should be available composite data form;

7. It will cut cost; one could have proceedings viewed through video conferencing mode; the litigants need not attend court proceedings, they could have a password oriented long distance video access to the proceedings;

8. It will certainly bring about transparency in judiciary and legal system as a whole.

I feel that one should always deal with a problem` head on’ and not by `escapism’. Hold the bull by its horns because otherwise you will have no option but to be hit by it. The section of lawyers who are opposing the AV recordings are according to me not opposed to the idea of AV but are either scared of the risk of not being able to control the bull or are not confident enough or want to tame the bull first and then solve the issue; let me advise them that one cannot tame the wild bull. Judicial activism against judicial intoxication; we in India are blessed with a proactive and sensitive judiciary who has by and large upheld the rule of law and sentiments of the society; I am sure that our judiciary will be open to the idea of AV recording of the judicial proceedings; I have full faith in the custodians of law; let us not lose hope. I wish all the very best to the activist lawyers like KV Dhanajay in their initiatives directed towards modernization and transparency.

By Hemant Batra, Lead Partner, Kaden Boriss Legal LLP, India; Vice President, SAARCLAW; Chairperson, IICLAM, Singapore; Advisory Board Member, OIC, USA