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In this discussion, the NLSBLR and LSPR team sit down with Senior Advocate Neeraj Kishan Kaul* and Advocate Rohan Talwar* (representing the petitioners in CORE v ECI SPIC) to discuss its implications on arbitration law in India. The conversation, explores the reasoning of the judgement, including the constitutional framework governing arbitral impartiality. Beyond the case, the conversation explores broader implications in the Indian arbitration landscape.
Mr. Kaul and Talwar also provide their insights and personal anecdotes on their experience litigating. They discuss careers, skills and perspectives useful for aspiring litigators and law students.
Prem: First of all, I’d like to thank you so much for coming on here, Mr. Kaul and Mr. Talwar. As law students who aspire to practice law in the manner that you do, it’s a privilege to have an audience with you and hear your thoughts. Since this is going to be the pivot of our discussion, I'd like to begin by starting down on what the background was for the CORE judgment and for that I'd like to hand it over to Jairaj. Jairaj: Beginning with the background of the judgement, there isn’t much information or know-how in the public domain about Public Service Undertakings (PSU) Arbitrations. Besides the facts of this particular case, could you tell us about the broader context in which this issue arose?
NK Kaul: In India, before the 246th Law Commission report came, there were unilateral appointments being made – appointments being chosen by, for instance, a panel just curated by a party (that is the PSUs more so in these matters) was an accepted norm. There was nothing found to be wrong with it, nothing violative of the Arbitration Act or the spirit behind it if this was done – you must keep in mind that in a country like India, PSUs are deeply involved in large parts of commercial activity in this country.
You often have largesse being distributed (of course, as per norms and as per provisions and judgments as laid down), but there is a deep State and PSU involvement in commercial activity - and very often players are engaged with PSUs, even if they want don’t to be. I'm saying this with a reason, because the fairness of contracts becomes so important when PSUs and the State come into the picture - I will link it to the later part where the court felt the necessity to get into public law issues (because that is a question oft debated on public law).
I'll come to that, but you must understand the deep pervasive state control or involvement in commercial activities in this country. Now, unilateral appointments or a panel curated was supposed to be the norm till the Law Commission came up with its report and highlighted that impartiality, transparency, fairness are the bedrocks of an arbitration in which people have faith. This is not just in India, but cuts across jurisdictions in the world - these are the bedrocks, the fundamentals of an impartial arbitration everywhere. And if there is no impartiality, there is no sensibility to an arbitration. Now, it was in these backgrounds that arguments were suggested to amend the Arbitration Act to say that there are certain arbitrators whose role, say as an employee initially for instance, would raise justifiable grounds of lack of impartiality. This is what 12(3) embodied. Then there were cases where, if you were covered by the Seventh Schedule and hit by it, you could not serve as an arbitrator at all. These recommendations were incorporated and the legislature accepted the 246th Law Commission report, bringing about all the salient changes and recommendations made into the statute by virtue of it.
As I said earlier - there was that whole view from Raja and other judgments to say that if a panel is curated, or a unilateral appointment takes place - what's wrong with it? There's nothing wrong with it; after all there's party autonomy, party autonomy requires it can be done, parties have agreed to it, so what's wrong with it?
Later, these provisions ultimately came to be interpreted in TRF and Perkins to say that by virtue of the amendments made to the statute and by virtue of the principle of impartiality, if a person is not eligible to be an arbitrator because he's an interested party - how can he control the appointment of an arbitral tribunal? Because as they highlighted, the arbitrator determines and charts exclusively the course of an arbitration proceeding. It was clear that this cannot be done. This was, according to me, a welcome, modern way of thinking, a step in the right direction - emphasizing the importance of fairness in arbitrations, transparency in arbitration, and was the correct line taken.
Subsequently, there was the CORE line of judgments, which dealt with the following process of appointment: in a four panel arbitration panel, you select two out of them and GM Railways selects one out of them and other than that the GM can select a person from within or outside the other two - this was held to be (surprisingly) a fair method of appointment of arbitrators. Obviously, parties like us who appeared, and many other affected parties had serious issues with this and the court also said that these raised serious issues. Ultimately, it came to be referred to a Constitution Bench. The issue which we also argued there was that merely because you give me four names and out of those four names I select two and then you select one - where is the freedom in this? Why should you alone have the say in curating a panel? Why can't I also have an equal say - in that we choose our respective arbitrators, and they appoint a third arbitrator? That is the principle of counterbalancing which TRF and Perkins recognize.
So, to answer your question on the background of the core judgement, in the beginning, unilateral arbitrations, curated panels were the accepted norm, till the 246th Law Commission report came, got incorporated into the statute, post which TRF and Perkins recognized the principle of fairness and transparency in arbitration, and held that impartiality is the bedrock of independent arbitrations. Finally, the line which was later taken was by CORE, which CORE thought was a good answer and a justifiable defense of impartiality, was ultimately held to be wrong law and overturned. That is the background to what happened in the current Constitution Bench judgment that we are talking about. And Rohan can correct and add to it if required. [MK1]
Jairaj: That leads quite excellently to my next question. In your arguments, you pressed Lombardi Engineering, according to which an arbitration clause was held unconstitutional since it imposed a demand in three deposit conditions. Did you also press or foresee that the court would take the line which the majority eventually took to read public law principles in Section 12(5) and Section 18 in determining arbitral impartiality?
NK Kaul: You see, I never attempt to foresee outcomes, because that's one thing I have learned in this profession, that you never know what the outcome will ultimately be, and I'm very often wrong with my guesses! While I did not foresee the same, I definitely pressed the public law principles. It should be understood that these are not just simple public law principles being pressed into service and purely private contractual disputes. That is a wrong understanding. In matters like these, the Constitution Bench emphasized on a very important aspect, which is something which you must analyse as students. They said, what is an arbitral tribunal? An arbitral tribunal is at the end of the day performing quasi-judicial functions - where you are deciding lists between parties, rights between parties, and you are really a fora created as a substitute to the courts and the legal system as it exists with a hierarchy of courts. Now if you’re decisions are quasi-judicial and you are really a substitute for courts, in that sense, deciding lis between parties; in my humble submission, public law principles must apply.
Secondly, as in Lombardi, the court ultimately applied Kelsen’s principles, that the Constitution being the grund norm, everything follows from that. At the end of the day, there can be no law in this country which is contrary to the Constitution . Every law must be in conformity with the Constitution. So, should the Arbitration Act be in conformity with the Constitution? Section 18 of the Arbitration Act in any case imbibes the principle of equality as laid down in Article 14. Thus, there is already a reference to conformity with the Constitution. But the reason the court emphasized this was because you cannot have unconscionable contracts under the Arbitration Act or any other law which violate the spirit of the Constitution - which is arbitrariness. Equality is the antithesis of arbitrariness as the Supreme Court and Justice Bhagwati held from Maneka Gandhi onwards. Now, if those are the principles pervading through the entire statutory scheme and all laws, and directions given in this country, I think the Court was absolutely right in importing public law principles and saying that there should be fairness, equality and transparency. As I mentioned previously these principles should be kept in mind while maintaining that we are dealing with quasi-judicial functions being performed.
Quasi-judicial functions are often being performed by a public sector undertaking, which very often has large government control in it. Right from Dayaram Shetty onwards the Supreme Court has held that even in private contracts the State stands on a much higher footing than a private individual. The degree of fairness which is expected of the State is of a much higher degree than of a private individual, even in purely contractual matters. It was argued that these are purely contractual matters, and that there is no need to import constitutional principles into them. The Court said disagreed, and held that even in contractual matters, if the State is involved, the tests of arbitrariness, equality, fairness will have to be looked at. Thus, it becomes important to look at a principle in totality. Never pick up a principle in isolation and infer that the Court has imported public law principles in this matter. Why has it imported public law principles? Because you're dealing with a system of judicial decision making which is created outside of the legal system.
Now, you will have to apply public law principles there when the arbitrator conducts himself, as to bias and impartiality. There could be a debate on it, as there is a line with some judges even in the Constitution Bench that have said that principles of the Indian Contract Act, and the Arbitration Act are enough to ensure fairness, without any need to import the public law principle. Their view is that Sections 23, 28 of the Contract Act were good enough, or Sections 18 read with Sections 23(5) and 23(3) are good enough, read with the Fifth and the Seventh Schedules, and therefore, there is no need to import. You may agree with this view. To my mind, however, importing the public law principles were perfectly in sync with the nature of functions that an arbitral tribunal performs under the Arbitration Act.
Prem: Thank you for that. Just to take off on exactly what you said, like you rightly pointed out, the court says that since arbitrators exercise quasi-judicial functions, they must be tested on the anvil of public law principles and doctrines such as that of bias. The first question that comes to my mind is this. On the applicability of this ratio, would this effectively mean that all arbitral tribunals, regardless of whether or not they were PSUs appointed or exclusively by private parties, would be subjected to this touchstone? It seems to flow naturally from the premise that all arbitral tribunals exercise quasi-judicial functions - and even Justice Narasimha seemed to take a similar line in his judgment.
NK Kaul: Let me just emphasize for you a few principles and then I'll tie it into your question. This is what the 246th Law Commission report headed by Justice AP Shah, one of our finest judges that this country has had, had to say. Some of the salient points of the 246th Law Commission report was that neutrality of arbitrators with respect to their independence and impartiality was critical to the entire arbitral process itself. Additionally, they said the test is not actual bias, but likelihood. They noticed what were the problems in the unamended Act and what needed to be done after that. And party autonomy was no answer to this. Now, having said that, in the given situation, the moment you perform quasi-judicial functions, you are deciding a lis and rights of citizens of this country. Therefore, You ought to be governed by the constitutional principles of fairness and equality and impartiality, because that will be the bedrock of decision making, of a fair decision-making process in which the people will have faith, in which the courts will have faith. Look at the dangers of it - that if you have arbitrators in whom on the face of it people have doubts about their impartiality, deciding lis between parties, especially where the state and the public sector undertakings are so powerful. In these matters where largesse is being distributed by them, where they have deep involvement in economic activities, where will the impartiality come from? And as I said, it is not about actual bias. It is about the test of a reasonable man familiar with the facts of the case, what his impressions will be in a matter like this. So, applying of these principles to the arbitral tribunals is a natural corollary which must flow.
Rohan Talwar: To add to Mr. Kaul's points, Justice Chandrachud quite interestingly in his conclusion said that Article 14’s invalidity is for public-private contracts. He has not taken Article 14 invalidity to purely private disputes which you're talking about. He has interpreted the fact that for purely private disputes, it falls foul of principles of natural justice, which is also naturally a public law or an administrative law concept. Thus, Section 18, Section 12, Section 34 to that extent also have a public policy element to them such that you can question an award later on if it is against principles of natural justice or the fundamental policy of law. So, there's a measure or degree of control which courts in any case exercise on the anvil of public policy. But having said that, he did not go so far as to say that the standard of manifest arbitrariness or the tests under Article 14 would ipso facto apply even to private-private contracts. That delicate balance is maintained.
NK Kaul: Rohan has rightly explained that. Moreover, even in purely private-private contracts, the principles of Sections 23, 28 of the Contract Act would still apply. Section 23 also incorporates the principle of public policy in it, which is of public policy of India. They're all incorporated therein. But when it comes to the arbitral tribunal, it is no longer about private-private contracts. It's about a body created which in place of a civil court is deciding lists between parties. It's performing quasi-judicial functions. How can it be said that the principles of public law, of constitutional principles, of equality, fairness, transparency will not apply to it? It has to apply to it.
Prem: Noted. Thank you so much. That answers our question well. And just coming to the next point, since you explained quite clearly what the implications of the judgment would be if it weren't held so, the unfairness that would be caused to parties on the grounds of party autonomy, what do you see the implications of this judgment as being? And this is a two-part question. First on how private parties and arbitrations conduct themselves or whether they would even proceed for arbitrations or even PSUs because it has now been suggested that after this judgment that PSUs would be more inclined towards institutional arbitrations. So how do you see the arbitration landscape changing after this judgment?
NK Kaul: Institutional arbitration is a good thing – if that happens, that is not worrying anyone. There's nothing wrong with it at all. But if the argument is made that they will be reluctant to go in for arbitration, would instead go to the civil courts. If that is the argument, then so be it. The answer cannot be because a PSU is upset with the Constitution Bench judgment or they do not get to choose their arbitrators of their choice and thus they won't go in for arbitration, then so be it. Let them go to the courts. But that cannot be a ground to permit them. They cannot have an approach of “it's my way or the highway”, that I'll appoint arbitrators who are my trusted people to decide the matters, or I am the only person who will have a say in appointment of arbitrators. Institutional arbitrations are welcome. I think then we would much rather go to the civil courts and get that matter decided. It is a greater damage done to a list being decided between the parties where everything is handpicked and cherry picked by one side and the other side has no say or has a say which is a facade of a say, but actually there is no say.
Prem: Noted, thank you so much sir. Just to slightly pivot away from the judgment - now that we are on the subject of Section 11 applications in the Arbitration Act, it has been a continuing concern in the arbitration landscape that the scope for challenges in Section 11 increasingly compound the court's backlog with these applications. Do you believe that legislative reforms such as those suggested in the TK Vishwanathan Committee or the new draft bill are sufficient? Or do you see more broader structural changes in arbitration-litigation as being more impactful?
NK Kaul: I think the answer I'm going to give you is going to get me into trouble. At times legislative changes have been very welcome and very good, like the amendments brought about to the 246th Law Commission Report. Now those were categorical good changes in the right direction. But sometimes, and I say this with some concern as I've observed over the years, our legislative departments in the law ministry at times do not come up with the best drafts which are needed. I think we need far greater expertise in the legislative departments in India to come up with draft proposed legislations, because you at times create confusion, scope for dispute, and show lack of clarity where there should have been no scope for dispute and much greater clarity in draft proposed legislations.
So, if there is to be a clear-headed good amendment in the right direction incorporating and addressing the problems which we are facing addressing international concerns and practices, it is a welcome step. Ultimately Parliament is the place where laws are enacted, and you have some of the finest minds sitting there applying their mind so that would be a welcome step; but equally I feel in India a sizable blame on what happened with arbitration and arbitration laws lies with the courts as well. I think the courts have swung in various directions while interpreting, adding to the problems very often, than solving problems.
There was a whole period which went by on whether Section 11 is an administrative function or a judicial function. Now, that was something which should have been avoided from the first date. Unfortunately, it led to much litigation, until it was ultimately concluded that a judicial function is performed. A similar trend followed with the scope of interference. We were absolutely on the right lines on the scope of interference that once an arbitral tribunal has applied its mind, Section 34 does not provide for a court of appeal. Section 37 is even more restricted than 34, and yet, the court started importing principles of Wednesbury unreasonableness, etc. into it. Here, Justice Nariman rightly put a quietus to all this by emphasising the limited scope and the width of interference under Section 11. Beyond that, it is left to the arbitral tribunal which is given a wide width and scope of interference to decide.
So, to answer your question coming back to section 11, I think yes, to some extent for some of the provisions other than Section 11. I think the way the laws were drafted were a problem, even as I believe that the 1996 Act stood as a landmark statute in the right direction, imbibing and incorporating UNCITRAL principles. Issues which arose about impartiality and transparency and fairness were addressed by the 246th Law Commission Report and the Parliament rightly amended and brought in the right provisions. But I feel the courts also must sit back and reflect on the course on their interpretation of the statute, because very often a large part of this confusion has been created by conflicting views which are completely contrary to the spirit of the statute. They have later been corrected by larger benches or benches of co-equal strength.
Rohan Talwar: And just to add with Section 11, you've had some recent judgments of Justice Pardiwala, State Bank of India, and others, which restate the same principle. As Mr. Kaul was saying, it is not like these principles have been lost on anyone. It's just that there are so many discordant notes struck along the way that he has to again say that unless it is deadwood, the arbitration agreement has to be followed. Under Section 11, you cannot go into principles such as whether limitation period has been complied with, whether the principle of kompetenz-kompetenz has been adhered to, and so on. So with Section 11, there is an endpoint to which the legislature can impact the course of judicial proceedings, after which there has to be a sort of principle or a line drawn that, yes, the judge will follow a particular principle and will not interfere unless there is a complete or patent absence of an arbitration agreement in the clause itself. You can see the partly concurring, partly dissenting view in this judgment as well. With utmost respect, consider the case if this judgment is followed, which holds that not every unilateral appointment is wrong, and therefore, at the Section 11 stage you will pick and see which arbitration clause actually impacts independence and impartiality. If that was the case, then every Section 11 court now will have to see that - is the clause as bad as CORE, which had 4 people, or is it akin to Voestalpine, which had 33 people? Then that becomes another scope for judicial interference and instead of reducing it, it compounds it. So, it is opinions such as these which actually tend to compound the confusion with how Section 11 is to be interpreted.
NK Kaul: You see, very often today, when you have headlines in Bar and Bench and Livelaw of a principle of law, it's actually a principle of law that they are simply reiterating as Rohan said. You're quite amused when you read again that “bail is the norm and jail is the exception.” It’s being reiterated because there have been discordant notes. But it's reiterated because that's been the principle from time immemorial. And then when even the most basic principle is reiterated, it becomes headlines, because we've almost forgotten what the basic principles were, since there have been so many discordant notes struck on various aspects. That's where the courts also have to do some amount of introspection.
Prem: Thank you so much Mr. Kaul and Mr. Talwar. I think these opinions will resonate with the legal community, students, lawyers, and advocates alike. I now want to pivot the conversation to a slightly more personal note, especially for students and aspiring advocates to be in the positions that you are in. And for that, I'd like to hand it over to Uday.
Uday: So again, this is on a lighter note. As a student, I can say that there are certain career confusions. Students often struggle with what kind of paths they should take in their careers. Do you have any such advice for such students to hone in on their calling?
Kaul: Look, you should be asking these questions from Rohan. I'm a relic of the past! But nonetheless, let me share. Answers to these are easier said than done. Everyone has to find their calling; please do not ever pursue a career or a field which you have no interest in. If you don't feel the enthusiasm in the morning when you get up to go to work, there are days we are all tired. We all crib on a regular basis. My wife tells me, you crib so often!
But that aside, there must be some interest. There must be enthusiasm to go to work. Your initial years, according to me, should never be restricted to domain expertise. In your first seven to ten years, to my mind, every young lawyer should get as varied an amount of exposure as they could. Secondly, remember, if you want to be a litigator, your place is not sitting in an office four days a week, and coming to court one day. Your job is to be in court day after day, day after day for the first eight days. On that particular day, your boss may have a matter, may not have a matter, go and sit in court. And I don't want to sound preachy to you, but I can only share with you the principles that I follow. I think even observing counsels in court, listening to how they tackle, which are the cases unfolding, and how does a judge react to them are so important but in your initial years please do a varied section of work, and only then decide where your calling lies.
Do you want to be a domain expert? Do you want to do a cross-section of work? Do you want to be a litigator or do you want to be a non-litigator? According to me it's, better to try the litigator route first and if that's just not your calling, you can go into non-litigation; because to me, the real fun of the profession and the challenge of the profession is in litigation. Not to say that those on the non-litigation side are not doing great work - they're doing great work and a lot of it is an answer to the changing times, the economic needs and demands of the times. But if you want to be a litigator, come and test the waters in your initial years. See, I think the reverse is a bit more difficult, that you spend the first five years doing non-litigation and then decide to come into litigation. I think it's better to come into litigation, see if it's at your calling, which are the fields that interest you, and then go forward with it.
Rohan Talwar: Yes, I fully agree. Mr. Kaul may say he's a relic, but he's a ‘proved’ relic in that sense. His advice is time-tested!
No, but on a serious note, just before this conversation started, Prem was asking me how I ended up where I did. And I said ultimately the only sort of advice which people like Mr. Kaul, and the people I was interning with, such as Mr. Dhyan Krishnan, gave me is to do general work. Just do everything you can and go to a place which has volumes. So that's the same thing I said to Prem before the call also. I don't think there's any good answer, but if there is one, it'll be to start with a broad base and go somewhere where every corner of the office has a file which you can just lap up and work on. And apart from that, I guess then ultimately, it's your calling.
NK Kaul: Ultimately, your desire to learn is essential. There are cases where people have the desire, they don't get the opportunities. But I can equally tell you cases where people have the opportunities and don't have the desire or the discipline to seize the opportunity. Ultimately that desire for knowledge, that quest for knowledge has to come from you. I very often insist on that from the people who join my chamber in the initial period. Everyone has his own system of working, but I feel even if a person is not working on a brief, he must sit in a conference which he is not involved with. The interaction which takes place between the team which is doing it and me, and the solicitors is a source of learning for the person concerned. Certain things have to come from within. If the person shows no interest, you can do nothing about it. I'll tell you one more thing, it's a very wrong impression that we are a first-generation lawyer and whether we will make it. If you have it in you and you show discipline and diligence you will make it. A lawyer who is not a first-generation lawyer has certain initial advantages, I don't deny, in terms of placement in a chamber, an office, a place to stay. Those are advantages. But beyond a point, and Rohan is a first-generation lawyer and a good example of someone doing so well in his own rights, if you have it in you and you show the diligence, there is a place under the sun for you. I have seen second generation lawyers who were rather entitled, never worked hard as they ought to have, got things very easy in the initial years. Ultimately, they were nowhere. And the lawyers who came as first-generation lawyers showed diligence and desire to work went far ahead.
So, the initial road may be tougher. There may be days where you feel, where will I go? My parents are not from the profession. But believe me, 9 out of 10 what I have seen is, if you imbibe the right qualities of discipline, diligence, and interest – then it’s certainly not impossible. If you're not interested in the subject, that's another issue. Then you shouldn't be here. If you're interested in the subject, there is a place for you under the sun. Play clean, play straight, and there's nothing that can stop you.
Prem: Yeah, I think that that resonates with all of us here who are first-generation lawyers hoping that we can make our mark some way in the way that you have.
NK Kaul: Of course you will.
Prem: Thank you so much sir. Just on that note, now since we're in law school and since we're trying to find our way and you recommended that you should try everything out, do you think at least as a student there are certain qualities peculiar to an advocate or a litigator that a student can focus on developing?
NK Kaul: Definitely. You must learn to be articulate. You must be learned to be not muddled and a scrambled egg in your head. You must have clarity of thinking in the way you present a case. Hone these skills, learn these skills. Also learn that in a country like India, a judge has read 50 to 70 files. The Supreme Court on a Monday and a Friday is packed. In high court, you will still get a bit more of a hearing, but even that will be limited. Now, if you can't formulate a proposition or a point, it's all over. And the judge justifiably also loses interest because he has so many matters to do. He can't keep listening to just one matter. Very often, believe me, I have seen it in some very successful lawyers also. They know the entire brief inside out, but have no clarity of thinking and no clarity in their presentation. So being articulate, not muddled, noting your points which are the ones which you are going to address really helps. Just because you see some counsels shouting around or being over aggressive, don't treat it as a great skill of advocacies. It's actually a failing in our system that some people get away with it. In no jurisdiction in the world will you be allowed to shout at others, or interrupt others to make a point. In fact, according to me, any counsel who presents his case with a certain dignity, with a certain way of addressing the court, of a certain respect you show to the other side, is far better received by the court than a counsel who comes up and starts shouting. And especially if you're a young counsel, look at the impression! A judge is hearing you and you're this young boy who comes and thinks, wow, this is the way to argue. Let me get really aggressive today. And outside the other side, be aggressive to the judge. Doesn't go down well. It is not a good skill set to possess. And I'm saying this because you guys see us performing in court and think well this is the way to go about it. That's not the way to go about it.
Rohan Talwar: Just to add, I will tell you even with my limited experience, just read, even if it's random. We all in our generation, and I'll count myself with you guys, have the benefit of a lot of online material. It's not just judgments or papers; you never know what helps you; don't underrate that power of spontaneity that if you're actually arguing a case you sometimes will recollect something which a judge has asked you from something extremely horizontally different from what you're doing. So just invite reading broadly, and Mr. Kaul said the right thing about formulating points.
NK Kaul: As Rohan said, just to add to him, you learn certain things as you go along, you pick up skill sets as you go along. There's no textbook that you come with when you come to court, thinking on your feet. There's a reason when they say so in a system like ours. There are questions that will come, tangential questions that will come from a bench. You will develop the ability. Naturally, on the first day, you may be a bit flustered. But as you go along, you develop the ability to deal with them. Have your own style. You never copy anyone because you are you. As your generation says, you do you. So, you do your bit and you move on. But never copy a style, learn from a style. If a person is arguing in a particular way, realize oh that's the way he did it. That's the way he answered. But the style has to be yours because every personality is different. And today you have the benefit of online hearings which we never had. Today you can watch the finest counsels and judges in action, what actually transpires and learn from it. I remember when we were arguing the constitution bench matter, the first live screening in the country took place. I was fortunate enough to be arguing on that day before Justice Chandrachud in Court 2, before a bench led by Justice Chandrachud. I thought to myself, that day about seven lakh people had logged on to watch those proceedings.
As a student, if I had the benefit of watching proceedings, I would have learned so much! I can tell you even as a lawyer, it's intimidating because the moment you say something, and you see it on the screen. Our system, unfortunately, we get away with a lot here. And the lawyers are to be blamed for it. That we speak beyond the pleadings. We speak beyond the facts. And we speak with great bravado, as if it's something we are very smart we are doing. It's nothing to be proud of. In no jurisdiction in the world are you allowed to speak beyond the facts and contrary to facts. The court will come down very heavily on you. We get away with it, very lightly, in this country. Now, the moment you see a live transcript you see oh my god now it's been noted. This is something I'm bound down to. I've said it and it's now recorded. With all this happening today, you people have the benefit. You can in fact take out 20 minutes, half an hour, pick up some of the important hearings and watch them. If nothing else - you learn, coming back to the beginning of your question, skill sets. How to approach a court, how to address or how not to address a court is what you learn from these proceedings.
Prem: Thank you so much. Just towards the end, and this is on a slightly personal note for you, how would you characterize your experience as a student growing up, for all the students who are watching this and reading this?
NK Kaul: I loved it. I loved every bit of it. I was very active in moot courts, so I mooted a lot. I thoroughly enjoyed it; although, believe you me, all of us, after having mooted a lot, come with the misconception that we are ready to argue. However, nothing prepares you for the court because a different judge, a different mindset, a different case, a different opponent makes it a different ball game - but nonetheless, it's a step in the right direction since it opens you up. It teaches you how to litigate, how to research. I was also the convener of a lot of informal discussion groups. I don't know whether your law school does it or not. We would often invite public figures, politicians for discussions with an open house of students questioning them. So, I had the benefit of interacting with some giants in this country who came to the law school and interacted with the students like Dr. Karan Singh, Mr. LK Advani, and others, such as Mr. Shahabuddin. They all came and they interacted with the students, and I think it goes a long way. It gives their perspective. Ultimately, it's very important to understand the perspective of the people who ultimately enter parliament and frame a law. You must understand how their minds work. They are actually the elected representatives. So it's good for students to interact with them or other eminent public figures. You could get someone from the RBI Governor to a Secretary of the Ministry of finance to tell you something about the financial issues with the country and the legislation being made. The executive gets represented there. Get a few judges to talk to you in an open house. Don't get judges and lawyers for boring one-way lectures. We are not the best of public speakers. We come, we give this prepared half an hour lecture and walk away after that. Get them into an open discussion with you. Have an exchange of ideas and views with them. These all go a long way in making the legal journey of a student interesting.
Rohan Talwar: I did a 3+3 course unlike you guys. So, by the time I joined law school, I think I was a bit surer of what I wanted to do. In DU, we were a part of this four-year undergraduate program, which got shelved after the first year. In other words, despite being from a college which had attendance requirements, we had none. So that meant that I did way too many parliamentary debates for my own good after the first year - and I think that was something which was a bit different from mooting. but I really enjoyed it, because mooting is actually approached with a sense of research and authority whereas PDs are a lot of faff!
But the only thing it gives you is that you can answer reasonably with some level of articulation on the spot. So that's one thing I really did enjoy, apart from several things I shouldn't say here! And in addition to that, in law school, I think I realized that I liked litigation. I would be extremely happy to hear about a new case or a new judgment. And I think if you nerd out about something which you want to call your vocation, that's a good sign that it's something you're actually interested in. And like Mr. Kaul was saying, we used to have some IDGs as well (informal discussion groups) where you'd call people. So do a mix of a lot of things. Not to sound preachy at all because I can't, I'm very young, but I would say do other things.
NK Kaul: Absolutely. Travel, music, books, go out. Don't take yourself and life so seriously such that you have no other hobbies. According to me, the finest legal minds in this country, (and I had the privilege of interacting with some of them) had many varied interests outside of law.
Music, literature, travel. Please do that. Don't get stuck to this boring thing of who became a senior? Who is getting elevated? Who is coming to the Supreme Court to the point where you don't think beyond that. That's just one facet of your existence. There's so much more to life than law.
Prem: Thank you so much. I think we can take a lot away from that, particularly working on our hobbies. And also, you mentioned informal discussion groups, something that you did. That is something that we are endeavouring to do, which is why we have you here today. Like you said, a giant of the profession. And perhaps if your schedule permits, one day we'd like the NLS student body to interact with you and someone of your calibre as well. So, thank you for that. Just one final question on a concluding note.
Uday: What would you say was your most memorable experience practicing in 2024?
NK Kaul: On the legal side, I think one did a few constitution benches which was undoubtedly the hallmark as far as 2024 because to me, if you ask me, nothing gives me greater pleasure than arguing before a constitution bench. And that really elevates the experience of a litigating lawyer. So that was very interesting. Just before the then Chief Justice, Justice Chandrachud retired, we mentioned a review before him. He was kind enough to take it up. It had raised some important issues. And despite his time constraints, within the 10 days that he had, while did he not hear us fully, he gave a decision, he reversed, laid down, reiterated the principles of review, and so on, which was very satisfying. Something which we thought was a wrong that had been done, got rectified within the last 10 days. It was a challenging hearing. Other than that, I think the Constitution Bench appearance was really the interesting part.
Besides the law, I'm fond of listening to Dua Lipa. I like that a lot. I like reading. I watched a few movies. Laapata Ladies was a good movie that I watched. I watched Twelfth Fail, which was again, a great movie to watch. And many others.
Rohan Talwar: I mean, for me, there's not a lot of thought behind it because before this Constitution Bench hearing, the office I work in doesn't allow us to argue too much because of the nature and stake of the dispute. So, the ones I do argue my cases are my own ones, and those are from the lower courts up till the High Court. So then when I got a chance to argue this Constitution Bench, for me, that was a clear highlight. And the fact that it went reasonably well meant that there's nothing to rival that experience on the legal front.
NK Kaul: He is being very humble. Let me add, I watched him once and he does a stellar job in the Supreme Court.
Rohan Talwar: No, but to be fair, another thing in 2024, now that sir has said it, we were doing a case where we briefed Mr. Kaul and I think he was two to three minutes late in coming. And the present chief was the one who was hearing the case and he told me to start. And I was also extremely tempted so after a couple of you know “okay no please give me time give me time”, I started. Then I was going on a flow and I looked to my left and Mr. Kaul is sitting down and prompting me. For me, that was an out-of-body experience because firstly, he was there when he obviously could have taken the dais and naturally, that would have been his right, being the senior counsel there. Secondly, the fact that he wasn't just sitting but he was telling me which date and which document to look at. So even that was a fantastic experience. It is through people like him that especially first-generation lawyers get a lot of impetus. That would be the second experience now that I think about it. Outside the law, I went to see a football game for the Premier League between Aston Villa and Sheffield, which wasn't a fantastic game, but the experience was great. I play football a lot. So, that was a fantastic memory. I recently went to Kerala. That was great. Someone told me to try and cross a river. So, I swam one side, but then I realized that utna stamina hai par wapsi ka nahi hai. So, that was a half-baked experience. But that was fun.
NK Kaul: So, I'm going to give you one unasked answer and unsolicited piece of advice, which I thought very, very strongly about when you asked about starting out your career. Please avoid a toxic workplace. If you ever feel there is toxicity, leave the place because toxicity can lead to your leaving the profession. You have no need to subject yourself and your mental state to a toxic workplace ever. Secondly, there is no bravado in people telling you that till you don't sit till two o'clock at night, you will not make a good lawyer. You must have a weekend. You must take your holidays. It is not necessary that everyone should keep sitting in an office till 12 o'clock. In today's times and age, you can come home, deliver on your work and go back. Of course, diligence, discipline, and hard work goes without saying. But this whole logic that everyone must sit till 1 o'clock, then the boss wakes up at 3 o'clock, tells you to do another draft at 3 o'clock or wants a conference at 5 o'clock is bizarre. This is a profession where you go on till at least the age of 70. To enjoy the profession, to enjoy the journey, to avoid burnouts, you must have good regularity. Of course, working hours will be late. This is a profession where you can't return home at 5. That everyone knows. But there's a difference between returning at 8.30, 9 and returning at 2 o'clock in the morning and getting up at 7 again. There may be all-nighters. We've all done all-nighters once in a while, but it definitely should not be the norm. This is more an advice not for you but the way we are running the legal profession, and I think we also need to introspect and correct things as far as welcoming the new generation is concerned.
Rohan Talwar: Yeah, in offices sometimes - especially in litigation, I don't know how this culture came about but people think that the longer you stay, the more productive you are. I think it's the opposite. There's an inverse correlation. The point is you just maximize your work in the time you have to work in, and then you won't have to sit till 1 or 2 at night.
NK Kaul: Glorification of hours and glorification of sitting till 1 o'clock at night in the office is just not right according to me. People may disagree; but that is my view.
Prem: Thank you so much for this brilliant advice. This has definitely been, even though the year is just starting, one of the highlights of my year speaking to the both of you. All of us will definitely take this forward, including us editors and our audience will also take this forward in the profession. Thank you so much for your valuable time.
NK Kaul: Thank you very much for having us in your panel discussion. All the very best to all of you and your institute.
Rohan Talwar: Thanks, Prem. Thank you, Jairaj. Thanks, Uday.
*Neeraj Kishan Kaul is a leading senior counsel, primarily associated with the Supreme Court of India. He has been involved in some of the most important and landmark cases of constitutional and commercial law in recent times.
Neeraj was appointed as standing counsel for the Central Government in Delhi High Court in 1998. In 2002, he became one of the youngest counsels in the country to be designated as a senior advocate by the Delhi High Court. From 2014 to 2017, Neeraj served as the Additional Solicitor General of India.
He is regularly invited as a speaker to several prestigious events and seminars. Notably, he delivered an address as the 6th Palkhivala Lecture as part of the Nani Palkivala Birth Centenary Celebrations; invited to the Harvard Law School for a panel discussion; and was a speaker at the 17th Parliamentary Internship Programme for foreign parliamentary officials organised by the Bureau of Parliamentary Studies and Training.
Neeraj holds a bachelor’s degree from St. Stephen’s College, University of Delhi and a master’s in law from the University of Cambridge.
*Rohan Talwar is a lawyer specialising in commercial litigation, with insolvency being one of his core areas of practice and interest. He earned a degree in history from St. Stephen's College, Delhi, followed by a law degree from Jindal Global Law School, Sonipat. Rohan has worked at Agarwal Law Associates since 2019 and has recently started his independent litigation practice.
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