In Conversation with Bharat Chugh, Independent Counsel

Bharat, 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.

Dad was a lawyer. I grew up with the sights and sounds of law around me. I was also a very difficult kid. I think I was around 5-6 when I threatened my school principal that I’d sue the school for defamation simply because she asked me to get up in the middle of a painting competition, in front of half the class, as I was under-age. I thought, at the age of 6, that this hurt my reputation (I wasn’t a particularly thorough lawyer - back in the day!). I thought had a good reputation and a good cause of action then. Better sense fortunately prevailed and I decided not to sue (See: My dad was the school lawyer and fighting against him wasn’t good – pocket-money-wise, I figured). That’s how childhood was like – for me.  

My father’s law practice was brought to an abrupt halt when he had a massive stroke. I was 6 years old back then. As a result of our family’s financial position became extremely precarious. I figured out that a regular school education was not only a needless (and avoidable!) expense but also kept me from working. I had to contribute to my household in terms of finances, to keep it running.  I am essentially a drop-out and left regular schooling after 8th Standard. However, I continued my education through the Open School, frog leapt some classes (didn’t do 9th or 11th) and ended up gaining crucial years in the process. I kept working alongside. 

As dad recovered a bit, he started going back to the courts, and by the age of 13-14 years, I started accompanying him and doing all that comes with it: drafting pleadings, co-ordinating things with court clerks, buying court fee/stamp papers, drafting written submissions (for whatever they were worth!). When my classmates were learning the first principles of science and mathematics, or just plain fooling around, I was handling my father’s law practise from a small seat, near State Bank of India, right below Tis Hazari Old Nazareth Branch, under the stairs, which was our headquarters (and only office). It used to be the hub of all activity. A lot of learning in the actual-ways-of-law happened by sheer osmosis; by just being there - in the middle of the action. I was - at times - happy on being excused from the drudgery of banal school work, and at other times, upset over being plucked rudely from the comforts and certainties of a normal childhood and all that comes with it. However, I have zero regrets; the early initiation in law, gave me fortitude and a ‘I can deal with whatever life throws at me’ sort of an attitude. The side gigs that I picked up helped me become financially independent at an early age; I also taught computers and desktop publishing to kids (yes, that’s what it was called), designed websites, worked in a Call Centre for a brief while, did content writing, just to earn those extra bucks each month. However, what at first blush may appear to be a setback, turned out to be a huge advantage. The exposure to strong work ethic and law, at a very early age - gave me a big headstart. Though I was missing school classes, I was learning some valuable life lessons. This was how I also managed to work my way through college and entered the profession.

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

Although I’ve never had a ‘godfather’, I consider myself blessed to have met many professionals from different walks of life. At 27 years, I had the great fortune of having experienced various facets of the profession; I had been a judge, a lawyer, a teacher and have had the good fortune to have met some remarkable people in each of these fields. As a Judge, I was greatly inspired by Justice Gita Mittal, the current Chief Justice of Jammu and Kashmir and Ladakh High Court, who is known for her compassion towards the victims of injustice and was one my biggest motivations during my days of social-justicing. I tried to model myself on her – in a lot of ways. Justice Muralidhar was and is another judge that I really looked up to. As a lawyer, I will always be grateful to Mr Rajiv Luthra & Mr Sondhi who gave me my first break and believed in me and trusted me with some of the most important assignments, during my stint at L&L. Lastly, but certainly not the least, as far as teaching is concerned, I am forever indebted to my teacher Mr Rahul Yadav (fondly called ‘Rahul Sir’ by his students) for being the extraordinary jurist that he is; he helped me build a strong conceptual legal base, which held me in good stead in both judging and lawyering. 

I’ve also drawn inspiration from some of the legends in law such as Justice Chinappa Reddy, Justice HR Khanna, Nani Palkhivala, Clarence Darrow, Ram Jethmalani, Justice Leila Seth, J. Krishna Iyer, Lord Denning, Oliver Wendel Holmes & Lord Atkin, amongst many others. They inspired me a great deal. I was fascinated with how these judges breathed life into the dead letters of law by creative interpretation, fashioned remedies, where they apparently were none - and did substantial justice. Similarly, I was inspired by how these great lawyers shaped our nation the way it is on the strength of their arguments and the propositions they argued in court. Not only were they extremely successful lawyers but contributed a lot in terms of nation-building. 

It was while reading about the lives of these legendary judges/lawyers that I first got enamoured with the idea of being a judge. I had already seen a lot of injustice and inequity early on in my life, through my own struggles and my dad’s. This was a beautiful opportunity to be a part of the solution and actually dispense ‘Justice’ and correct power asymmetries. A service that allowed one an enormous ability to correct injustices, contribute to the evolution of law, and at the same time, quench one’s penchant for writing and reasoning. I, of course, later realised that though ‘judgeship was dear, advocacy was dearer’, and I enjoyed tipping the scales more than balancing them and decided to come back to the practice of law. But more on that story some other day. 

Would you please tell us more about the array of matters you handle? 

Lord Henry Brougham, an English barrister: “a lawyer must know everything about something and something about everything”. That’s been the endeavour – always. To try and build expertise in certain areas of law while trying to know the broad lay of the land on everything else in law. And, I believe, with how interconnected different areas of law are, and law can never be studied in a vacuum, this is a good strategy and a generalist disputes lawyer– sometime - can add an element of understanding to a dispute and not miss the woods for trees. I try juggling many interests rather than focusing on one. I think it helps me be more creative, more agile, and able to make connections - which the specialists sometimes miss.  

Having said that, as you work - you automatically start getting work pertaining to certain areas of law more than the others(or probably - you yourself start gravitating towards certain areas, subconsciously). The last three years, I’ve done a fair amount of work on white collar crime defence, International Commercial Arbitration and Tech law, and these are all very exciting areas of law. 

Would you please summarily tell us the current status of the sectors of the economy your work in, the roadblocks in our path and the way forward?

Now is a very exciting time to be a lawyer. My practice of law straddles practice areas as diverse as White Collar Crimes, International Commercial Arbitration and Technology law, with a bit of advisory thrown in. There have been interesting developments in all of these areas of law. White Collar Crimes and financial fraud have increased manifold in recent times, as the nature of the crime itself is changing in an increasingly globalized world. Arbitration and mediation continue to hold my interest as people are, to be honest, sick of conventional litigation due to delays and other issues. I also do think COVID-19 pandemic will help accelerate this process of motivating people to go for not only arbitration but also pre-mediation and other ADR mechanisms as well. Lastly, there is an emerging interplay of law and technology - for the simple reason that technology is changing every conceivable legal vertical, be it self-driving cars, Artificial Intelligence (AI), cryptocurrency or data theft. It is an exciting time in tech-law for sure too. 

There is always a challenge or an obstacle to overcome but ‘roadblock’ would be the wrong term to use, I feel. As lawyers, it is our strength to adapt to changing circumstances and still stay ahead of the curve. Lawyers, after all, have been the drivers of social change through histories. Certainly, the past few months have seen disruptions in both, how we work and the work itself, but all this makes for an interesting blend and though it always keeps us on our toes, it is also extremely rewarding individually to be able to work in such an exciting field. Being a lawyer is challenging, fulfilling and extremely rewarding.

Would you please share with our readers your expert views on ‘COVID and the rise in white-collar crimes?

There’s hardly any webinar on the effects of the pandemic that gets concluded without the wise panellists exhorting us – in Churchill’s words not to “let a perfectly good crisis go to waste..”; while we may – or may not learn, white-collar criminals seem to know this better than anyone else. Hate to sound like an alarmist, but the truth is White Collar Crime (“WCC”) is on the rise and it is further expected to grow by alarming proportions – in the next few months.   

It wasn’t really the best of all possible worlds – financially, even before COVID, but the pandemic has created a vicious triangle (known as Fraud Triangle); a deadly cocktail of Pressure, Opportunity and Rationalisation which has always provided a great breeding ground for WCC. 

Pressure: With the financial downturn, businesses are under tremendous pressure to make (or at least appear to make!) their numbers, especially when executive compensation is mostly linked to profits and the bottom line, unfortunately, is the only thing that separates success from failure in the cut-throat world of business. A situation of pressure such as this often yields itself easily to falsification of accounts, accounting malpractices, market manipulation, fraud and other financial shenanigans. 

Opportunity: What has further exacerbated the situation is the presence of a great opportunity to people prone to such acts; with priorities elsewhere, internal controls, compliance and supervision have become somewhat lax. Attention – for the most part – is diverted to somehow keeping businesses afloat and saving jobs. Internal controls and incisive due diligences do not appear to be the top priority at this moment.  

What provides an even greater opportunity is the fact that governments across the world are pushing in trillions of dollars into the economy as stimulus packages & bailouts. Further, the governments are procuring (especially in sectors such as healthcare) like never before and, since time is of the essence, the usual safeguards in the process in public procurement (both in terms of pricing and quality) are being bypassed. This yields itself easily to corrupt practices. And in this, we may do well to remind ourselves that – even historically, most anti-corruption laws owe their genesis to the crisis, war-time procurement, and the resultant corruption. Everyone seems to have let their guard down. Which, as history shows, is a bad idea. 

Rationalisation: The people who usually commit WCC are mostly extremely sharp people who are very good at rationalising (though terrible at being rational!). The thinking mostly is: “It’s just a change of numbers on a spreadsheet; We are not killing anyone!”, or “We are doing this to save jobs – after all, and we’ll then push the money back-in, once times are better”. This short-term thinking is extremely problematic and is further compounded by a tendency to want to remain in ‘denial’ – often despite all evidence to the contrary. There is no-one as blind as the person who doesn’t want to see, right? A crisis – in fact, is time to introspect but not many companies (and that’s true across the world and across times) have successfully engendered a culture of radical honesty where anyone can tell the emperor that “he has no clothes…”. Rationalisation and wilful blindness are rampant; meetings often mere echo chambers. This is even more problematic in times of crisis and needs to change. 

The fact that the victims of WCC often are a body as diffused as ‘shareholders’, ‘investors’, ‘taxpayers’, ‘employees’ and not a single visible person – such as a 80 year old widow, makes it easier for the perpetrators to rationalise. Since one can’t see the immediate victims, as one may – in a conventional crime such as murder, one finds it easier to rationalise and have less moral compunctions. The importance of putting a face to the victim cannot be emphasised enough. 

“If I look at the mass I will never act. If I look at the one, I will.” This statement by Mother Teresa provides a great insight into the human nature and reminds us that we are more likely to act charitably to the suffering of “one” who is before us, but the suffering of an abstract body such as “humanity” rarely conjures humanity within us. 

So, the point is made: White Collar Crime needs to be taken seriously. But what do we do about it – as commercial organisations? Here are a few suggestions: 

I) Recognising that this not the time to drop our guard: Compliance departments in organisations should in fact be working in over-drive, and there should be frequent checks and trainings/hygiene drives should be ramped up too, especially for those organisation which do business in areas having a lot of government interface, and areas which are tightly regulated and considered high-risk traditionally – such as healthcare/ defence;  

ii) Putting in place ‘adequate procedures’ to ensure that corrupt practices do not take place. Having ‘adequate procedures’ to check corruption – in place is also a defence under the new Prevention of Corruption Act (“POCA”) where – for the first time – even commercial organisations can also be prosecuted for corruption, and not just errant individuals; 

iii) Expedients such as the creation of ‘ethical hotlines’ that provide an anonymous, safe and easy reporting mechanism.

iv) Change in corporate culture: A strong corporate culture of zero tolerance of corrupt practices; (In other jurisdictions, courts are increasingly looking into ‘corporate culture’ while deciding as to whether, in a given case, acts of employees/agents can be attributed to a corporation, or not and whether a company can be criminally liable in a case)

iv) Protection of whistle-blowers and better incentives. We, as a legal system, really need to get our act together on not just protection of whistle-blowers but the protection of witnesses—in general, who are the eyes and ears of the system. Also, barring tax laws and some law on insider trading- no Indian law currently incentivises whistle-blowers. We, as human beings, function on incentives and having better incentives and protection for whistle-blowers will go a long way in strengthening corporate compliance.

The vision for white-collar crime regime India should be to ensure that we don’t, in a trigger happy way, criminalise bona fide business decisions/mistakes and at the same time, do not let go of real corporate crimes and prosecute and punish them effectively. There is, therefore, a need to take white-collar crime seriously and totally reimagine the way we investigate & prosecute it.

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

The biggest challenge is certainly the inability to interact with each other as we used to. However, there is a silver lining to these things depending on whether you see the glass half full or empty. Personally, I see it as full (half full with water and half with air) as it has made us capable of working remotely, building technological infrastructures and 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. In hindsight, Bill Gates sometimes in 2015 warned us about this and we have failed in our duty of preparing better. But sometimes, we learn the hard way. It is important for us to learn our lessons and adapt once over. For young graduates, anxiety due to employment prospects is growing. Most lawyers and law firms have kept up their commitment of hiring and providing virtual internships. Many lawyers and partners have decided against taking their equity in order to pay the dues and to provide their employees with pay. Fortunately, people continue to show empathy and concern towards each other in these difficult times.

A few years ago, people thought that the M&A sector wasn’t doing too well, people thought the economy has taken a down-turn. People were not investing and businesses were failing. NPAs were rising. Even in that state of financial doldrums, there was IBC which came up as a big practice area; financial fraud/white collar crime also saw a huge rise and flourished as a practice area.

What can lawyers do today to ensure they survive in an era of disruption? How are you keeping pace with the technology in your practice?

The past few months have been a great opportunity for all of us to hone our skills and brush up on the basics as it has given us time to assess our weakness and strategize accordingly. 

Needless to say - that our reliance on technology has obviously increased which carries its own set of challenges. With the current technological setup, such measures might not be feasible in the long run. For instance, cross-examining someone virtually poses significant challenges. Demeanour of a witness is a very important element in the appreciation of evidence. Virtual recording of evidence 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. 

Personally, I am relying exclusively on virtual meetings or telephonic conversations and trying to play it very safe. Speaking of the work, while courts are functioning on a restricted basis, areas like employment law, and matters of advisory and to some extent arbitration proceedings continue to thrive. 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.

Other than work, what else keeps you busy? Would you please share your other interests and hobbies with our readers?

Although I faced a series of setbacks as far as a conventional education was concerned, I did acquire the habit of reading in my college days. I had realized by then that language was not only a source of pleasure and learning but the only salvation. Language (and knowledge came with it) was power. It had dawned on me that the most successful people in the world thrived on information asymmetries. I started on a reading frenzy and devoured whatever I could lay my hands on. A book to me was the opportunity to get into somebody else’s skin, walk the town in it, and not just the skin of any person, but the best thinkers that the world has ever produced. 

I also enjoy playing soccer whenever I find the time to kick the ball around. I also like to write short fiction and poetry. Though, I like to call myself a ‘closet poet.’ And once you hear me – you’d agree that’s where I should be – because it’s not good at all.

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?

Through my personal life experiences and some of them are already in the public domain. I started working at an early age and that gave me great exposure to law. It definitely helped me realize a lot about life, especially the injustices meted out on people on daily basis; the plight of people who are marginalized, who don’t have access to resources, how they are possible given a rough deal by the system; how difficult it is for a common man to get justice and how important is sensitivity in judicial decision making.

You also learn from everyone and everything. One’s failure also gives the biggest lesson and we learn from our mistakes and failures as well. I looked up to a lot of judges as my role model such as Justice Krishna Iyer, Justice Bhagwati, Justice Kuldeep Singh, Lord Denning, Lord Atkin as they have redefined judicial system and done justice in a way which improved the life of the people at the ground level. On the legal practice side, there are other great inspirational figures such as Nani Palkhivala, Clarence Darrow, Fali Nariman, Dr. Ambedkar. Looking up for the few people, learning and emulating from those giants and standing up is very important. When you read, you get inspiration, not only in the field of law but also from people in the other fields.  People like Leonardo da Vinci, Steve Jobs can be quoted as a great inspiration for the fact that they stood for making a dent in the world and were so passionate about what they did. They almost always let the perfect be the enemy of the good (not always recommended) and stood out for their fantastic contributions to the world.

In India, one cannot advertise legal services. In such a case, the most effective way to solicit clients as a young lawyer is to –

Focus on the case in hand, put your heart and soul and do it really well. Your efforts will manifest into clients over a period of time. There have been so many times when we have got cases from the court after successful arguments in a case; That’s how you build a reputation.

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?

My advice to anyone wanting to start off as a lawyer would be to hone their command of the language and improve their research skills. 

A practising lawyer’s language is his foremost stock in trade. Law Students should work on their verbal as well as writing abilities. The ability to articulate even the most complex of issues clearly and succinctly is extremely important for a lawyer. The most successful lawyers are often the people who know the most and can present it most articulately. Hence, at the time of studying in Law School, one should soak up as much as one can. Master your legal concepts. Discuss with your peers, ask questions, and attend talks/lectures/seminars. Mooting is also extremely important. It gives one a sense of what it means to be in a courtroom. I participated in as many moots/quizzes as I could, and as they say, each drop of sweat in practice, saved blood in War. Mooting helps one develop that quality of being able to think on one’s feet. It’s like being in a bouncy, even if you fall you don’t get hurt.  Additionally, academic writing looks good on the CV and also helps one understand the first principles of law better and helps a student hone his drafting skills.

Speaking of research, it is a very important question to address, as legal researching holds paramount importance in winning the trust of the client and as that of a judge. The entire profession is based on knowledge asymmetry; knowing or understanding something that the opposite side doesn’t and thriving on that. We don’t sell anything except what we know and how we think, right?

A client comes to you because you know something which he does not. You win a case by knowing something that your opposite side does not and by convincing the judge and persuading him.

It is not only important to know how to do research conventionally; we need to go a step beyond to be outstanding. It is very important that young lawyers do not start their research on Google directly. Rather, it is better to go with the bare act – understand the language of the bare act and illustrations, read the standard commentaries based on the subject. One should know the legislative history, evolution of law, the Parliament debates, Constituent Assembly debates and other primary materials to help you understand the law in depth. It is also important to refer to credible sources like SCC, Journals and other sources to look for precedents. When you build up a case, go with the research in a particular order and use only credible sources. It should be primary sources more than hearsay or what somebody’s personal opinion is.

Lastly, there is no substitute for hard work in law. I’ll quote Justice Joseph Story when he said “The law is a jealous mistress and requires a long and constant courtship. It is not to be won by trifling favours, but by lavish homage.” If you are able to do that—there is little else that you’ll need ever again!

*interviewed in October 2020.

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