In Conversation With Senior Advocate Vivek Sood

Formative Years and Mentors

Mr Sood, you are one of the leading senior counsel in India with over three decades of experience. Would you take our readers down memory lane and share with us how this illustrious journey towards excellence in law began?

While I was studying at Mayo College, Ajmer I had decided to practice law. Being from a family of lawyers, law as a career came as a natural choice for me and since I was deeply interested in law, I started my journey in the year 1992 after completing my LLB from Law Faculty, Delhi University. 

Initially I worked with legal stalwarts such as Shardul Shroff (Amarchand Mangaldas) and Mohan Lal Varma (Senior Advocate & Retd. Judge of Delhi High Court) and started my practice in 1996. I took up every brief that came to my chamber, with a fee or free! I followed the simple Mantra ‘Never refuse a brief’. I have always believed in continuously improvising my skills. I have always been restless, trying to evolve and reinvent myself. I have continuously strived for excellence. Alongside my busy practice, I have been prolific in writing articles, pieces, and books. I have authored five books on diverse legal issues with three more in the pipeline. I have delivered innumerable talks on interesting issues. I was designated as a Senior Advocate by Delhi High Court in 2015. The journey has been fascinating and I take each day as a new beginning. Due to the passion towards my work, I have never felt tired. There’s so much more to do as the journey has just begun.

Who are the people that you have looked up to and how have they helped you in your career?

I strongly believe that no success is a solo effort of the individual. Many people have helped me in my career. I learnt the importance of hard work in the legal profession from Shardul Shroff. Ram Jethmalani was an institution I looked upon as a mentor. Whenever I was a confronted with a legal problem I couldn’t solve, I would seek his help. He was always so generous in showing me the line of argument I should take. I have learnt the art of dealing with people from my father and Professor Upendra Baxi taught me the art of thinking beyond the letter of the law. 

Which is your most memorable case until now?

Every case is fascinating in my view and presents its own challenges. Its difficult to pin-point a case. The list is long. Having said this, two cases would stand out- Jessica Lal murder and Telgi fake stamps. I appeared for one of the accused in Jessica Lal’s case and I consider this as the first big case in my career apart from the challenging legal issues that arose in this case. The Telgi fake stamps case gave me the opportunity to cross-examine hundreds of witnesses and deal with highly complex legal issues. I have learnt the art of cross examination from this case. 

Expert insights

What would be your bucket list for the upcoming law on Crypto assets? 

Crypto assets, in my view, need to be tackled by lawmakers in view of the global regime. A global approach is the need of the hour. A Global Convention can only resolve the maze of Crypto assets. 

In my view, we need a law that regulates Crypto assets especially for protection of common investors and prevention of misuse of Crypto assets in criminal activities. 

Would you also please share your thoughts on crypto taxation regime in light of the budget announcement 

Taxation of Crypto assets in the current budget is a correct move by the Government of India. 

Keeping in view the colossal quantum of Crypto trading in India, Taxation of Crypto profits is legitimate and constitutionally valid. The Government of India is fully justified in taxing Crypto profits and by doing so, it doesn’t imply that Crypto assets have been legalized. In my view, the argument that Taxation of Crypto would adversely deter ‘Young India’, is misconceived. Taxation of Crypto is in larger public interest. Revenue generation would ultimately benefit the country.

They say, “an ounce of mediation is worth a pound of arbitration and a ton of litigation.” What are your thoughts of pre-litigation mediation in light of India’s comprehensive mediation bill?

Pre-litigation mediation is a move in the right direction but presents challenges which need to be addressed. Mediation should not be looked at on a stand-alone basis. It’s interconnected with the litigation system in India. Unless litigation in India is expedited, mediation is not likely to succeed. Litigants must fear the outcome of litigation if mediation is to succeed as an alternative dispute resolution mechanism. Since litigation is so dilatory, the defendant is generally least interested in mediation. The defendant knows that litigation will take years or decades to conclude, hence, there’s no incentive to end the dispute through mediation.

As per a recent study, there are 26,134 Imprisonment Clauses in India’s Business Laws. Add to this, India’s compounding problems with contract enforcement and pendency of cases. Although, certain policy measures in the last few years are proving effective, what to your mind is the need of the hour in terms of the desired reforms to make India the top investment destination in the world?

In my view, India is over-legislated in terms of number of criminal offences in Business Laws. Over-criminalization in Business Laws creates a deterrent investment climate. Harsh and deterrent civil penalties should replace criminal offences in many business statutes.

Since the year 2015, the Indian Economy has progressed in terms of Economic Justice. This is the theme of my next book releasing in March. 2022. Several statutes have been brought into play that usher equity and justice in the Indian Economy. RERA empowers homebuyers as against real estate companies. 

The Insolvency & Bankruptcy Code, 2016 (IBC) is a game-changing law that converts the Indian Economy from a debtors’ paradise and creditors’ hell into an Economy with equity and justice. Managements which cannot service the corporate debts are shown the door and new managements and brought into the driver’s seat through a democratic process of voting in the Committee of Creditors. The Commercial Courts Act, 2015 is another path-breaking statute that creates a Commercial Justice System. What took decades for Courts to decide is taking months or few years now in the resolution of commercial disputes. 

The Arbitration Law has also been amended to bring in global best practices. Contract enforcement in India has improved since 2015 though we have a long way to go. Implementation/Execution of civil decrees is too cumbersome a process in India.  What is good of a paper decree?  The fruits of litigation must be given to the winner within a short time frame. This is an area of reform that is imperatively necessary.

Covid 19 and trends for the post pandemic world

What has been your biggest learning from the Covid 19 pandemic? What are the top three trends that are going to dominate India’s litigation Industry in 2022?

My biggest learning from the Covid 19 Pandemic has been adaptability to the situation in hand. I would do my virtual hearings from my study at home and then spend hours reading on business laws, constitution, constituent assembly debates, and books I wanted to read but could not due to a busy professional schedule over the years. Then I got down to prolific writing during this time. I authored four books during the pandemic: “Emergence of Commercial Justice: Insolvency & Arbitration” (Bloomsbury; March 2021); “Right to Privacy: Arguing for the People” (Thomson Reuters; October 2021); “Progress of Indian Economy: Legislative Pro-Activism since 2015” (Thomson Reuters; Releasing in March 2022); and “Chaff & Grain: Criminal Injustice & Cry for Reforms” (Bloomsbury; Releasing in July 2022). I would be busy eighteen hours a day, hence, the Pandemic time was well utilized.     

The top three trends in the litigation sector that I foresee in 2022 and onwards are: bigger use of technology in courts; emergence of young lawyers as a major force in the legal profession: and complexity of legal issues in view of Crypto, Right to Privacy, and invasion of Information Technology in every aspect of our lives.

Life outside work

What are your thoughts on the notion of work life balance? Do you still get time to pursue your hobbies?

Work-life balance is important in my view. For me fitness, reading good literature, and writing create the desired work-life balance. Golf has now become a luxury due to a very hectic professional schedule. I love to travel to unusual places across the world during court vacations. The legal profession is stressful by nature due to the stakes of litigants, such as, money, property, and liberty. I recall my dialogue with Mr. Jethmalani on work-life balance. He played badminton every morning and enjoyed his drink every evening. Mr. Soli Sorabjee would tell me about his interest in Jazz. They were the busiest of all senior counsel but found time for themselves.

Practical tips and message for young lawyers

From the art of drawing arguments to the craft of cross examination, what would be your actionable tips for lawyers to hone the fundamental skills and develop the right competence in their journey?

The basic art of addressing arguments in the court has remained the same. The art called court craft is unchangeable. However, arguments have ceased to be as lengthy as they used to be in earlier times. Judges today expect arguments to be brief. Due to a huge pendency of cases, the need of the hour is to encourage short arguments. 

The dynamics of the legal profession have changed over the last three decades. The legal profession is no more an old man’s profession. Younger lawyers have emerged as a force in the legal system. I see dynamism and immense confidence amongst the younger lawyers. They are being made partners in prominent law firms in their thirties and forties. I also see the growth of professionalism in the legal world. The level of fee has gone up too. Gone are days when lawyers worked for free. 

As a trend, I find youngsters more attracted to corporate and business laws as a result whereof I find a vacuum on the criminal side especially criminal trials. I don’t see talented defense lawyers engaging in criminal trials. Cross-examination is a dying art in the Indian criminal justice system. It’s completely overlooked in legal education also. I don’t see competent cross examiners. Lawyers are more interested in bails, revisions, and quashing petitions as they are far easier with a larger fee than criminal trial work which is complex, time-consuming and not as well paid. Before I got designated as a senior counsel, I had cross examined over six hundred witnesses. I wish to see talented youngsters from top law schools as defense trial lawyers which has tremendous potential in view of scams and complex criminal cases involving electronic and scientific evidence.

What would be your one message to the young and aspiring legal professionals looking to carve out a successful career in law?

My Mantra for young lawyers is to find your Ikigai. In other words, follow your heart when it comes to choosing the area of law you decide to pursue as a career. Another piece of advice to youngsters is to read case laws daily rather than find precedents only when the brief is handed over by the seniors. When you read a caselaw daily, law becomes part of your DNA. It’s an exercise for building a legal bent of mind.