Conversation with Senior Advocate Dushyant Dave

In this interview with Bar & Bench, Senior Advocate Dushyant Dave talks about initial years of his career, his arbitration practice and the issues in the arbitration system, tribunalisation, changes needed in our current legal system. He also talks about his passion for golf, music and books..Bar & Bench: Could you tell us about your decision to join the legal profession? .Dushyant Dave: My decision to do law was by choice. My father was a very respected judge although I must confess that he didn’t want me to be a lawyer. He wanted me to join civil services, but somehow I had a great love for the law and the justice system even when I was in college. So, that is the reason why I decided to be in the legal profession..B&B: What were your initial years like? .DD: I started my practice in the Gujarat High Court in 1978 and I was fortunate that I had the advantage of being a junior with two great leaders of the Bar. Firstly, I was with Justice S.P. Majmudar, who later became a Supreme Court judge and thereafter with Suresh Shelat, former Advocate General of Gujarat..Also, I got my initial big break when I was appointed to represent the Government at a very young age on behalf of the Government solicitors, Ambubhai & Diwanji and Purnanand and Co,. We were required to handle Government matters up to the admission stage and on a normal day handle about 20 to 30 matters. We were also very lucky because Justice P.D. Desai, who later became the Chief Justice of Himachal, Bombay and Calcutta High Courts, was the judge of the Gujarat High Court. He is, to my mind, the greatest judge I have seen. He really shaped our learning process in the court and he knew exactly where injustice was done and how to correct it..B&B: And what brought you to Delhi? .DD: After 1981, I set up my own practice in Gujarat and practiced till 1986. During that time I represented some of the large government and private sector corporations in Gujarat. Luckily I got a break to come to the Supreme Court because of two of my friends – Hari Bhartia of Jubilant Industries and Anand Burman of Dabur India. They encouraged me to shift to Delhi but they understood my predicament and fortunately facilitated my shifting by providing me a residential accommodation and a retainership for a period of about three years. By 1990, I had essentially shifted my practice to the Supreme Court and in 1994, I was designated as a Senior Advocate..B&B: Arbitration is a substantial area of your practice. How did you develop that practice? .DD: When I wanted to turn to a new line in my profession after having achieved a decent success at the Bar by the year 2000, I sought guidance by Fali S. Nariman. He told me to turn to international commercial arbitration and he advised me to attend as many seminars and conferences the world over as I could. I must say that it has helped me a lot and also helped me put India partly on the international arbitration scene..I have been on the London Court of International Arbitration (LCIA) for about 5 years as a Court Member. I have also been on the board of American Arbitration Association. Besides Fali Nariman, nobody has really made very serious inroads in the international arbitration community. I must say that I enjoy a fairly good amount of association with the international arbitration community and it has helped me explain India’s viewpoint..B&B: What are your thoughts on the Supreme Court Balco judgment overruling Bhatia international? .DD: I think the judgment of the Constitution Bench of the Supreme Court has put the matter in the correct perspective because there is no doubt about the fact that if arbitrations do take place outside India and are governed by foreign laws, I don’t think our courts really have any jurisdiction to interfere with the arbitral process..Bhatia and Satyam had opened a Pandora’s box by allowing parties to come and attack those arbitration proceedings or arbitration awards in our judicial system knowing full well that the issues will get stuck for 10-20 years. That is not good because in a commercial sense it is very important that the parties get justice as quickly as possible and arbitration is one of the speediest and perhaps the best mechanisms to get that justice for dispute resolution. If the courts start interfering beyond a point, then the commercial efficacy of the process will be seriously affected thereby affecting the very commercial transactions. So to that extent this judgment is really an eye opener and it is a step in the right direction..B&B: What are the issues and the changes that are required in the arbitration system? .DD: The arbitration process in India is highly skewed; according to me it is a disaster and one of the single most important factors for its pathetic state is, I would say, ad hoc arbitrations. We don’t have good institutional arbitration. We don’t have good institutions which can provide absolutely honest, impeccable, speedy and fairly inexpensive arbitration in India and that’s where we have a big problem because the ad hoc arbitration is hijacked unfortunately by retired judges and that’s really not doing any good to the system. The retired judges have brought the baggage of procedural adjudication resulting in huge delays and frustrating the very purpose of speedy resolution of disputes. So, unless and until we have sound arbitral institutions, this issue won’t be resolved..I fought hard with the LCIA when I was in the court and fortunately LCIA has established an institution in India, LCIA India. I hope other international institutions would also open and set up some institutions in India. I have always believed that organizations like the Confederation of Indian Industries should really do something about setting up a very successful institution of international standards because in the absence of a good institution, a lot of arbitration work which involves Indian parties is going to countries like Singapore, Malaysia, London etc. Our Bar is extremely competent, we have some great lawyers and there is no reason that our work should go overseas. In fact, we should be attracting work from outside but that can happen only if the judiciary is conscious of respecting the arbitral process and arbitral awards, and if we have very fine arbitral institutions which can cater to the needs of arbitrating community. Unless that happens, it is going be a big problem for us..B&B: What are your thoughts on the condition of sectoral Tribunals like SAT, DRT etc. some of which don’t even have members or infrastructure? .DD: I have been a great opponent of this tribunilisation of the administration of justice. I have always believed that it is important that the legal work remains with the courts because the Constitution itself envisages the separation of power theory and the functions of each wing to be confined to the respective wings. I don’t think it was ever thought that we would have, in the form of judiciary, these kinds of tribunals dispensing with justice, which is done by bureaucrats essentially although sitting with some judicial members..I am extremely frustrated with such tribunals, the kind of people who man them, the kind of justice that they impart and the manner in which they impart justice. Some of them are horrible beyond imagination and it is a matter of great shame for lawyers to appear before some of them..B&B: So, what is your suggestion? .DD: I personally feel that it would be good if the judges were to start not relegating these parties to the tribunals and try and do justice to the parties as much as possible. I don’t think that these tribunals will do any justice unless there are highly professional areas like those dealt by the Competition Commission of India but otherwise tribunals in fields like income tax, excise and customs or, take the worst example of the Company Law Board – they should go. You have taken the entire work from the High Courts and given it to the Company Law Board, which is functioning very unsatisfactorily..B&B: So, you are in favor of Commercial Benches? .DD: Absolutely. I personally feel there should be specialized benches because there are some judges who like certainsubjects and they are good in them. There must be specialized Benches to deal with taxation, commercial matters and arbitration matters. There should also be such Benches to deal with criminal matters because all judges need not have knowledge of criminal matters. There are some judges who are very good in it and they know the principle and that way the courts efficiency will be much better. This is where there is a big problem today in that no Chief Justice generally considers assigning work on the basis of the aptitude of a particular judge, his competence or his ability to decide a particular subject matter..B&B: In your many years of experience, what do you have to say about the quality of litigation and the recent outburst of litigation? .DD: There is no doubt that quality of litigation has changed a lot because stakes have become high. But what is really troubling in the litigation today is the public interest litigation. More often than not, my experience is that public interest litigation is motivated for completely collateral considerations and these PILs actually clog the courts’ work to a great extent and the judges, lawyers, and the parties spend lot of energy in it..So I think that the litigation is suffering a lot because a lot of time is eaten up in these matters. One of the single biggest factors is that courts award almost paltry sums to the winning parties; if the losing party was visited with huge costs as in countries like England then it would really deter these avoidable litigations because people here don’t mind engaging in frivolous litigation. Another factor, which is troublesome in India, is that our judges take a very easy approach towards perjury. People would make false statements in litigations, in proceedings and pleadings very easily and get away with that because nobody is really sent to jail in this country. If judges become strict and send a message to unscrupulous litigants in at least 100 cases in a year, I think between awarding costs and perjury orders we can reduce a lot of avoidable litigation..B&B: Have you seen any differences in the manner in which the Supreme Court judges approach a case now as compared to 20 years ago? .DD: I would definitely say that when I came to the Supreme Court in 1986, there was a lot of intellectual stimulus in the Court. Maybe because the Court was as pressured as it is today but there were great debates in the Court and it was followed by great judgments. Today there are some outstanding judges and there is great intellectual debate with them, but it is not very often that you can really engage judges in intellectual debates because of the sheer pressure of work or maybe because of disinclination on the part of the judges. So in that regard, the Supreme Court has undergone a change from what it was in the 80’s..B&B: Do you think the senior counsels are concerned about improving the quality of the Bar? .DD: I don’t think senior counsels, barring few exceptions, have any interest either in the Bar or in the judicial system. Everybody is here, unfortunately, only for the purpose of looking after his or her own interest and nobody really wants to do anything for the Bar or for the judicial system as such in the long run..B&B: Have you contributed in any way?.DD: I try and help in as many causes as I can. I appear for somebody who is needy and who deserves to be helped. Be it a large union of workers or an individual employee or a teacher I would never charge them any fees. I think that is the only way I can help in the cause of justice because unfortunately despite so much talk about legal aid, the legal aid committees never send briefs to successful lawyers and senior counsels. I would be more than happy if the Legal Aid Committee of the Supreme Court was to send me 5-10 briefs in a month but they have never done so even once..I also try and help in legal education. I try and give substantial charities to law schools, try and help the young lawyers in their moot competitions and the other competitions that they go for. I try and help as many NGOs as I can. The best thing I can do is to speak my mind about the status of judiciary today and create awareness and stir a debate because I genuinely believe the judiciary can improve a lot from within..B&B: If you were to make changes in our current legal system, what would those be? .DD: First, I would ensure that every lawyer comes to the court fully prepared. What is sad is that even young lawyers today enter courts without having read even the one brief that they may have. Second, the members of the Bar have to ensure that they are as faithful and honest as they can be to the cause that they represent. Three, they must not mislead the courts at all..Fourth, I equally expect the judges to be as hard working as possible and take control of the courts because judges sometimes allow the lawyers to hijack the system and waste the court’s time to an unbelievable extent because there are many cases where time is spent without any reason. For example, in the beginning of 2012, in matters like reconsideration of Bhatia, Media Guidelines, Vodafone decision etc., the Supreme Court spent more than 80 days. I don’t think each of these matters needed more than 2 days. It is very shocking that the judges can allow this kind of liberty to the members of the Bar. Fifth, as I said earlier, we should have specialized Benches. Sixth, we require infrastructural changes in the system. Unless and until you increase the existing infrastructure, there is great strain on the judges. Seventh, the transfer policy of judges should be effected seriously. Today there is a serious problem of nepotism, caste based justice delivery system, judges’ relative based justice delivery system or pure autocratic style of functioning of judges. This is something which is plaguing young members of the Bar greatly and virtually in every High Court. This needs to be corrected. These are things, which a Chief Justice with a vision and passion can really bring about. I would say that Chief Justice Venkatachaliah was a great Chief Justice. We need more people like him..B&B: You are a Perfectionist and you want things to be very detailed – Did you imbibe this or you were taught? Do you expect the same from your juniors? .DD: Well, it came from many things. One, of course, was my upbringing. My parents were extremely disciplined and they were perfectionists. So I generally can’t tolerate mediocrity..I must confess that I keep my juniors on tenterhooks. I always believe that it is very good to keep young lawyers up to date and to ensure that they work as hard as they can. I would not like young lawyers to walk into a conference, whether they are my juniors or somebody else’ without being fully prepared in a matter. I want them to look at matters from all angles, try and do as much research as they can..Yes, I think I have a reputation where a lot of young lawyers would hesitate to enter my chamber from law firms. May be sometimes I lose a brief because of that. I believe in some things and I don’t compromise on them..I must say that this strictness and this style of work has helped my juniors in a great way. Each one of them has turned out to be a very good lawyer and very successful in their lives. So it is important to be disciplined to make your life successful, because if you are not disciplined it does not help at all. You have to be a perfectionist in whatever you do. There is no place in today’s extremely competitive world to be second rate, you have to be a first rate..B&B: Do you have plans to enter politics? .DD: No. I have no plans to enter politics. I think somebody like me is a total misfit in politics. I am too outspoken and I don’t think politics can harbor people who are outspoken. I am extremely forthright in expressing my views and whenever I do so I always try and keep the common man in mind because I genuinely believe that I represent the common man. One of the biggest issues troubling my mind is that the judicial system has been completely hijacked by the rich and powerful and that is a matter of serious concern for me; but no public life for me except television debates..B&B: I understand that you are a big fan of cars and you have a fleet of cars. .DD: I am fond of driving. I can drive from here to Ahmedabad without a break and would never feel tired about it. I do drive a BMW, Audi and a Nissan x-trail SUV. That is it but it is really not a fleet. But I really enjoy driving..B&B: I believe you are quite a devoted golf player? .DD: I am very passionate and keen about my golf. I walk 6 days a week for an hour in the evening and I play golf 3 or4 times a week. I never like to miss a game of golf. So, yes golf has been a great diversion for me and it has helped me a lot in my profession also because it gives me a lot of opportunity to think and introspect on the golf course and make me more balanced..B&B: What interests you other than law and how do you unwind? .DD: I love books. There is not a week when I wouldn’t walk down to Khan Market to Bahari & Sons and not buy books. I read all current fiction whether its Grisham or David Baldacci. I like historical novels a lot, like the latest Mughal series or the series on Alexander The Great. I love autobiography. I read a lot of non-fiction too and I like authors like Ram Chandra Guha. Books are my great passion and so is music..I listen to music for 10 to 12 hours a day, whether it is Bhajans in the morning or Indian Classical or Western Classical in the afternoons in the office, or Jazz in the evening. I like old Hindi film songs. I love music in every form. I generally try to attend all classical music concerts that I would like to attend. I also unwind a lot by socializing. We have very strong family bonds so we try to maintain those bonds. We travel constantly and spend a lot of time with the kids. We take at least one or two vacations together. Besides that I take at least 7-10 vacations in a year or so. I like going to wild life sanctuaries. I have been to Ranthambore 4 times this year..B&B: Who has been your mentor? .DD: I don’t think I have a mentor as such but I have been lucky that my senior Mr. Shelat was a great guardian in my initial years. People like Fali Nariman have been a great source of inspiration and encouragement to me. I would say that my role model was Justice P.D. Desai whom I consider the greatest judge of all times, a man with a very deep sense of imparting justice. He left a lasting impression on me and of course my own parents have been role models for me. Both of them instilled great values and principles, which I am extremely proud of and that has helped me in what I am today. Of course my wife has been a source of great support all through.