In Conversation With Senior Advocate Krishnendu Datta

Mr Datta, what motivated you to pursue law as a career? How has your journey been? 

I think the legal profession and the many challenges it throws up has always fascinated me. I had made up my mind in the very first year of my undergraduate studies at Delhi University that I would pursue law as a career. In hindsight and on reflection of my career so far, I can say it was a well-considered and correct decision. After finishing law school at Delhi University, I attended the University of Virginia, USA for my master's degree in law. Once I came back from the USA, I joined the chambers of Senior Advocate Mr. PV Kapur. Working under his guidance gave me a lot of exposure in commercial litigations in all forums. I remember handling a lot of litigation in the District Courts, where I honed my skills in drafting, conducting trial and oral arguments. After around 6 years with Mr. Kapur, I decided to take the plunge and branch out on my own. 

Being a first-generation lawyer, my initial years involved a fair amount of struggle. I was fortunate to be offered a retainer by the Times of India group. Shortly thereafter, I started my own legal practice by the name of K Datta & Associates. 

My practice centred around media laws and general civil commercial litigation, electricity laws and commercial arbitrations. My first brush with company law and shareholder disputes happened in 1999. I fell in love with the subject and did a lot of work in that field. A natural extension of that practice was the Insolvency & Bankruptcy Code. I chose to pursue counsel practice in 2015 and am honoured to be designated a Senior Advocate by the Hon’ble High Court of Delhi. Today, my work centres around commercial corporate litigations and arbitrations.

What has been your mantra for success? What is your advice for young litigators in the profession?

My basic mantra is to be hardworking and curious. I acknowledge that it’s almost trite to say that hard work is vital for success, but its importance cannot be emphasised enough in the legal profession. In litigation particularly, without rigorous work, it’s difficult to build the experience required to find success in this profession. Most lawyers upon first receiving a brief will have very similar thoughts and strategies, what makes the difference at the end of the day is how deeply you get into the facts and examine the law. All of which is a function of how hard you work.  

By curiosity what I mean is that you shouldn’t take everything at face value. By questioning everything at the preparation stage you’re well placed to defend your case during the hearing. Our legal system is adversarial, it works because each side minutely examines and evaluates what you say. If you’re being critical of your own case, you’re able to anticipate questions from judges and counterarguments from the other side both of which allow you to be well prepared during a hearing. Also remember that law is both dynamic and fluid. Always be ready to challenge a proposition, no matter how well settled.

My other advice to young lawyers, especially litigation lawyers would be to be fair and honest before Courts. Judges hear cases day in and day out and develop a keen sense of when a litigant is being less than honest. Not only is it your duty as a lawyer to be fair and honest to a court, but in most cases failing to adhere to those standards would be detrimental to your client. 

What according to you are the emerging trends in the legal profession?

Super-specialization is one of the big trends that I see. General practitioners have, to an extent, given way to subject matter experts. I think this is a positive development and reflects an overall maturing of the legal space in India. Specialized lawyers are able to assist judges better in understanding the commercial underpinnings of a particular litigation, this allows judges to make more commercially sound decisions. You should choose your niche eventually, but at the same time in the formative years, try to have exposure to as many subjects, and as many courts and tribunals as possible. 

I also think there is more scope for talented youngsters these days than there ever was before. While advertising by advocates isn’t permitted, cases are reported daily, and lawyers are free to express their thoughts and opinions online. All this means that clients have more visibility on the large pool of talented lawyers available today. 

Tell us about one of the most memorable cases that you appeared in.

One of the more memorable cases from recent times is the Jet Airways' insolvency. Successful insolvency resolution of an Airlines company in severe financial distress is a rarity even in the more developed legal jurisdictions which have had insolvency resolution laws and a framework in place for a number of years. The insolvency resolution proceedings concerning Jet Airways represented multiple challenges involving a whole host of laws such a labour laws, which set it apart from a normal insolvency proceeding. I represent the entity that seeks to take over Jet Airways and relaunch it in the IBC proceedings. In some capacity or the other, I’ve been involved in that case from the start, so it was satisfying to see the resolution plan finally approved by the NCLT and by the NCLAT with some directions. It would be immensely rewarding to me personally to see Jet Airways take to the skies again.

How do you think the problem of judicial pendency can be resolved?

A few things. First, I think courts ought to impose deterrent costs on parties that file frivolous proceedings. The imposition of such costs is likely to deter the filing of cases which aren’t well merited, which will at least reduce the number of cases coming into courts every day. Second, I think pendency can only be seriously tackled by an increase in the number of judges and an increase in the infrastructure available to judges. Judges today  are overworked and unless there is an increase in capacity, we can’t seriously expect the pendency to come down. Third, the government needs to rationalise its litigation strategy and empower its officers to take calls to not indulge in frivolous litigation. Fourth, lawyers need to be incentivised and trained to file smaller and more focused pleadings. I think brevity in both submissions and pleadings will go a long way in quickly disposing of pending cases.

I believe that there is a need for specialist judges, give the complex transnational litigation which judges, especially in the higher judiciary have to handle almost on a daily basis. Finally, I believe there is a need and justification for specialised tribunals, but also an equal need to ensure that the appointments to such tribunals are prompt and the judges chose are also specialists.

Lot of attention is being given to make India a hub of international arbitration. What according to you, can the government do, to effectively enhance India’s stature in alternate dispute resolution?

It is common practice in India to appoint retired judges as arbitrators. Retired judges bring a wealth of experience with them which makes them very well-suited for the role. But an unfortunate consequence has been that practising lawyers or academics often aren’t tapped to serve as arbitrators.

I think for India to be a desirable jurisdiction for arbitration we need a deeper bench of people who are fit to be arbitrators and the only way we’ll be able to develop this talent is by giving others a chance. Therefore, I think a good, simple step would be to start appointing practising lawyers or academics as arbitrators. There has conscious push to institutionalise arbitrations. There are many examples of the success of such models across the world and we must set up our own systems asap. 

Delay is often cited as a reason to have the seat of arbitration outside India. We need to overcome this. Another issue is execution. Arbitration is useful as a dispute resolution process only if it resolves disputes, unfortunately in India obtaining the decree is only the start of a claimant's troubles. Unless we strengthen the execution framework in India, I don’t think we’ll be able to really make progress towards making ADR a preferred choice in India. 

Enlighten us with your comments on the recent decision of the Bar Council of India to allow foreign law firms to operate on Indian soil on a reciprocal basis?

The legal profession is not just big law firms in the metros. So far as lawyers in smaller towns and cities are concerned, I don’t think the entry of foreign law firms will impact or improve their professional horizons to a large extent. Also given that foreign law firms won’t be able to represent Indian clients in Indian Courts I think even litigation isn’t very likely to see a big change. 

One thing that is not so clear to me is the role these firms will play in the Indian legal space. Given that they can only advise on foreign law they would mostly be needed by Indian firms or individuals with business interests abroad. I’m curious to see whether that market is big enough to entice many foreign firms to set up shop in India. 

Overall, I think the development is positive. Firms interested in investing in India will generally find comfort in having their preferred legal counsel available within India to advise them, even if they won’t be able to do so directly.  

What are your expectations from the leadership of the Supreme Court with Chief Justice Dr. DY Chandrachud at the helm?

Justice Chandrachud seems committed to interpreting the Constitution of India as a living document that changes and evolves with the times. This commitment to the belief that the Constitution is a living document that can be interpreted in ways and means that bring about social changes and benefit people’s lives has long been a staple of Indian Constitutional law. Seeing Justice Chandrachud carry that mantle forward is heartening and gives me great hope for the future. 

Live streaming of court proceedings has brought what happens in the Supreme Court of India into people's lives at an unprecedented scale. I think this transparency will really serve the institution as a whole and in the long-term increase people's faith in the judiciary. Another thing I expect from his tenure is that he will be able to carry out deeper reform than his predecessors who served on balance much shorter terms than he is slated to serve.  

Tell us a book that you would like to recommend to our readers?

A book I have read recently is ‘Sapiens’ by Yuval Noah Harari. A fascinating read. I would recommend it to everyone.