In Conversation with Ashwarya Sinha, Advocate on Record, Supreme Court of India

Ashwarya, would you please tell us where did this illustrious journey begin and at what age did you decide to study law. Please walk us through your early years of education and the decision of becoming a lawyer. 

My entire life has been swaddled with legal and academic fabric. I was fortunate enough to witness the entire journey of a young first-generation lawyer, my father, making his name as a distinguished member of the Supreme Court Bar. I grew up watching him, surrounded by numerous journals, files and law books, and hearing about the law. Accordingly, I developed an interest in the field at a very early age. Fairly so, an aspect which fascinated me about the profession during my early school years was seeing my father build a balance around his professional and personal life. As a young boy, what also captivated me was having my father’s holidays coincide with my school holidays, and being able to go on vacations unlike children my age who could not spend as much time with their family. 

I completed my schooling from DPS RK Puram in 2003 and thereafter joined the college at NUJS, Kolkata. NUJS was set up by one of the leading legal luminaries, Mr NR Madhava Menon and his persona and passion for the legal profession shaped the culture of the university. I feel honoured that we were only the fourth batch of NUJS and got the opportunity to contribute academically and culturally to what has become such an eminent educational institution. My experience at NUJS has been truly enriching, personally and professionally, and is dearly treasured by me. I believe the 5-year course grooms students in a crucial way with the right training and has certainly shaped my approach towards the legal profession. 

Who have been your guiding North Stars and the biggest inspiration in this journey? 

The biggest inspiration for me would certainly have to be my parents. I believe seeing my father in the profession, starting from scratch and gaining from strength to strength is something which has moved me and shaped me to be an ambitious individual. I have learnt from him that genius is a lot of hard work, patience and endurance. It entails having the quality of perseverance, that is where you hone your attention to detail. My mother radiates qualities such as a high sense of ethics, the will to do what was right although it might be unpopular, and great dedication to a cause which has imbibed in me the moral ethos which is a cardinal pillar of the legal profession.  

Lastly and certainly not the least, my wife, who has been my pillar of strength through thick and thin. She has constantly motivated me and supported me in all my endeavours and inspired me to achieve greater heights. The fact that she’s an active litigator herself; her insights have always been of immense value to me.  

Would you please tell us more about the array of matters you handle and the matter that you consider your best win and one that you think was your worst loss? 

My practice areas include Commercial Litigation, Real Estate laws, Competition Law, Insolvency and Bankruptcy laws, Public Interest Litigation, Mining laws, Service laws, Constitutional law amongst others. I also take a keen interest in the emerging areas of law such as privacy laws, cybersecurity etc. 

In 2018, I drafted and pleaded the case of Chitra Sharma Vs. Union of India (‘Jaypee PIL case’) which was the driving force behind the historical Insolvency and Bankruptcy Code Amendment 2018. It fills me with immense pride and satisfaction, both personally and professionally, that  it revolutionized the Indian Real Estate Sector thereby benefiting thousands of aggrieved homebuyers. Ironically I take it as my greatest achievement and the greatest defeat. It is my belief that had the Supreme Court decided to remain seized of the Jaypee case and not relegate it back to NCLT,  it would have made a much greater legal and social impact. I am still of the firm belief that much remains to be done for adequately protecting the interests of homebuyers and my ambition remains to contribute towards the same.

Would you please share with our readers your expert views on ‘Section 5(8)(f), IBC: A full Circle of Real Estate Crisis’. 

After the coming into force of the Insolvency and Bankruptcy Code, 2016, the homebuyers of such projects of erring builders against whom insolvency was initiated were essentially left remediless, and the entire process of administration of justice for such homebuyers came to an absolute standstill. Subsequently, taking stock of the crisis as brought forth by the Jaypee Case, the Government of India brought a landmark amendment to Section 5(8)(f) of the IBC, thereby elevating the status of homebuyers as Financial Creditors. Post amendment, the homebuyers not just became part of the Committee of Creditors but could now initiate insolvency against the Builders in the capacity of a Financial Creditor. 

However, such sigh of relief was rather short lived, as the Government by way of the 2019 Amendment further qualified the requirement of either 10% of homebuyers of a project or 100 in number for initiation of insolvency against a builder. The constitutionality of the said amendment has been challenged by me before the Supreme Court as it is patently arbitrary and essentially fuels the crisis of the homebuyers and merely leaves them with an ineffectual and toothless legislation. 

What in your opinion has been the biggest change or challenge looming over the legal landscape of India amid COVID-19? 

On account of the Pandemic, there has been a huge change in the functioning of the Courts. With the advent of virtual hearings, there is an immense ease with which litigating lawyers can appear and represent their clients across the country in different forums. The challenge however remains in the technological infrastructure which is insufficient to cater to the hefty demands. Further, the task of transitioning traditional offices to digital/paperless offices would largely depend on economic and technical abilities thereby posing inherent challenges in changing the status quo. Although the physical hearing cannot be substituted for in entirety however in my opinion the Virtual Courts are here to stay, with the future holding a mix of both physical and virtual hearings.  

Many Congratulations on joining the BW Legal World Elite 40 Under 40 Club of Achievers 2020. What to your mind has helped you get to where you are and what advice would you have for others who want to set off in a similar direction? 

I am grateful to the jury for considering my candidature. I also happen to be one of the only independent active litigators on the entire list. I believe what led the jury to decide in favor of my candidature was the extraordinary litigation which led to the landmark amendment in the IBC, 2016 and the inclusion of section 5(8)(f). My advice is to essentially keep doing your utmost, consistently and the rewards or honours will come. Never give up, despite failures and setbacks. If you do fail, fail forward. Keep believing in your dreams. 

Is there anything else you’d like to share with our lawyers of the future, any golden piece of advice from the treasure trove of your experiences in the industry? 

A realization that has come over the years, as a practicing and being one of the youngest advocate-on-record, is the significance of drafting and culling out the precise questions of law. In Supreme Court practice, the duration of maximum indulgence by a bench is sometimes under a minute and therefore it is necessary to present the entire case in a concise and cogent manner which draws favourable attention from the bench. A practice I follow in my drafting as the officer of Court is that it should never mislead but only be of assistance in the administration of justice. One should never attempt to suppress but only impress upon the Courts. 

As a final note, would you please recommend to our readers your favourite book or movie/series that left a lasting impression on you? 

A piece of art which has deeply impacted me is Chernobyl. It is a tv series that chronicles the events surrounding the 1986 nuclear disaster of Chernobyl in the then USSR. It is an extremely engaging series and kept me hooked throughout and is a tragic story of human folly, courage, and dignity. 

*Interviewed in November 2020.

Nominations for the second edition of BW Legal World's 40Under40 are now open.

Click here to nominate: https://bit.ly/3hEdnov

For more details, please contact Gareema Ahuja, Business Lead: +91 7827590848, gareema@businessworld.in