In Conversation with Ganesh Prasad, Partner Khaitan & Co

Mr Prasad, would you please take us down the memory lane and share with us where this illustrious journey began?

When I graduated, I started legal practice as a litigator. I was obviously lucky to have learnt my initial lessons from stalwarts who practised in the Karnataka High Court and the Bombay High Court. This was also the beginning of this century when the seeds of liberalisation sown in 1991 were beginning to bear fruit. Foreign companies who were waiting to enter India were on the lookout for professionals to help them navigate a complex Indian legal system. With this thought and a couple of chance encounters with friends and colleagues led me to start an eventful journey in corporate law.  

Would you agree: the corporate/business law market in India is not as structured as in the West? What is the biggest stumbling block in our path and why?

The sophistication of any industry is directly dependent on the maturity of the markets and the services required by it. But we have seen the Indian legal markets come a long way.

 In my view, policy and political ideology go hand in hand. This is at grass root level dependent on the needs of the population in any country. A conflict between these typically results in impediments to growth and success.

The government has recently notified new rules for e-commerce companies, including the mandatory display of 'country of origin' and total price of goods and services offered for sale along with a break-up of other charges, on the products. Non-compliance or violation of the rules will attract penal action under the Consumer Protection Act, 2019. What are some of the other salient highlights of these Rules? What challenges do you foresee for sellers particularly in the MSME sector?

In 2017, the Legal Metrology (Packaged Commodities) Rules, 2011 was amended to provide that the name of the country of origin or manufacture or assembly was to be declared on every package where the package relates to imported products.

Now, under the Consumer Protection (E-Commerce) Rules, 2020 (“E-Commerce Rules”), sellers on an e-commerce platform are required to provide the e-commerce platform with all relevant details about the goods and services offered for sale, including the country of origin. The e-commerce platform is then obligated to disclose this information on its platform to enable the consumers to make an informed decision at the pre-purchase stage.

One interpretation is that e-commerce entities are required to disclose the country of origin only if such disclosure was already required under the Legal Metrology (Packaged Commodities) Rules, 2011. However, given the political sensitivity to the disclosure of the country of origin, it would be prudent for market participants to exercise caution and comply with the disclosure obligations until the government issues further clarifications.

Notwithstanding the interpretation issues, the other aspect of the obligation to disclose the country of origin is the determination of origin itself. Most manufacturing processes would involve multiple procurement channels, which are spread across multiple countries. The question that then arises is whether the country of origin can merely be the country where the final assembly takes place; although the bulk of the value addition is from a different county.

E-Commerce Rules also require sellers to appoint a grievance officer and respond to grievances within prescribed timelines. This will be difficult compliance for an MSME seller, which is usually operated by one or few individuals.

Are the new rules adequate to deal with evolving technology and potential data breaches on e-commerce platforms?  

Regulations on e-commerce entities have come a long way to address concerns of e-commerce customers. We have now realised and addressed that the issues faced by e-commerce customers are different those faced by offline customers. For instance, the E-Commerce Rules now require e-commerce entities to record specific consent for each purchase. Similarly, e-commerce entities are also prohibited from manipulating prices or discriminating between customers. This way, e-commerce entities can no longer add goods or services to customers’ cart without customers’ express consent. One can also argue that e-commerce entities will now find it difficult to use customers data to create differential pricing.

While the E-Commerce Rules may have prescribed basic consumer-centric governance, the proposed data protection law, will be a gamechanger. The proposed law will lay down guidelines for collection, processing and making use of personal data and strictures for personal data breach.

How do you see the e-commerce ecosystem evolving going forward? Do you think offline retailers are at risk as the market is captured by two to three major e-commerce players?

Both, e-commerce players and e-commerce customers have adopted and grown by leaps and bounds over the past few years. The e-commerce market is now at an inflexion point. On one hand, e-commerce entities are looking to grow their offline presence. On the other, hitherto offline participants are now opening doors to online channels. Going forward, it will be important for both e-commerce entities and offline players to collaborate and build synergies.  

From a legal and policy perspective, governments world over are watching internet companies closely and any adverse impact they have on competition.

The Indian government is not far behind. Recently, we have seen the joint parliamentary committee working with various stakeholders to fine-tune the proposed personal data protection law. We have also seen the Indian government constitute a committee chaired by Mr Kris Gopalakrishnan on issues concerning non-personal data governance. The committee has released its report for public consultation earlier this year. Salient points from the report include the committee making a case for businesses to share non-personal data with the government and other businesses. While non-personal data was never subject by itself, the Government hopes to create a more level playing field for new entrants to compete with allowing them to use non-personal data collected by other market participants.

How has Covid-19 impacted your practice? What are the most critical changes that we must make in the wake of the pandemic to face the future effectively?

Like every other industry, we have had to adapt to change. Ours is a knowledge industry and we ought to keep our axes current and sharp. It has been ever important that I exchanged thoughts and learnings with colleagues. Before the pandemic, this was an easy process. But with remote work gaining traction, the soft skills required are slightly different. While as a firm, we are thankful to have been ready with the tools and we were able to adopt technology to our advantage without much difficulty. I continue to cajole the team to strive towards exchanging knowledge and seek ideas to make knowledge sharing more efficient.

From the treasure trove of your experiences, what is one piece of practical advice you would give to someone starting out as a lawyer or looking to specialize in a particular field?

 An oft-quoted verse from the Bhagavad Gita best describes this.

Karmanyevadhikaraste ma phaleshu kadachana.

If we are to translate the verse roughly, it means that one has the right to work, but never to its fruits.

Who are the people who have inspired you the most in this profession and how?

There have been many stalwarts in the legal profession. I have had the good fortune of learning from and being inspired by many people along the way.

If I have to place a pin on one aspect that has inspired me the most, it is the work ethics. More specifically, the dedication to one’s work.

To this end, Mahatma Gandhi, the father of our nation has been my inspiration for long. Gandhi’s focus and persistence to see better for mankind, coupled with his simplicity and sacrifice which was woven into the fabric in life, are yearnings that I can only ape.

With the emergence of LegalTech and AI in the Indian legal market, other than good legal acumen, what are the other important skills you’re looking for in lawyers joining your team?

Soft skills are one important facet. The approach that an individual takes to solve a problem would be another yardstick. Having said this, no two individuals are the same. I have always thrived while working with a diverse team of individuals with complementary skill sets.  

Thank you so much for doing this interview with us, Mr Prasad. As a final note, would you please recommend to our readers your favourite book, quote, or movie that left a lasting impression on you?

At the risk of not mentioning the others, the Bhagavad Gita has been my constant source of light and support through the years.