Additional Solicitor General of India, Sr. Adv. Pinky Anand: The road post Harvard

Dr. Pinky Anand is a designated Senior Advocate and incumbent Additional Solicitor General of India. A Doctorate of Law, graduate of the Harvard Law School, an Inlaks scholar and Honorary Professor at Amity Law School, she is the second woman in India holding this high Constitutional Law office. In conversation with Manushi Desai, she shares her journey post graduation from the world’s top law school, Harvard.

On getting into the world’s top university: Harvard

I prepared for it as I prepared for everything - I did not think of it as if it's something too high or that I can't achieve it. It was an ambition to go to Harvard. I was inspired by the movie Paper Chase which is a movie based on Harvard Law School and in that generation again there was a fascination to some degree as it is today to go abroad to do your masters. Definitely again it was a step up if you went to American Universities in that time. In a manner, of course, we just did it as a course application, we applied and we got in.

On getting the prestigious Inlaks Scholarship

I applied for Rhodes actually, I did not get the Rhodes, but Rhodes recommended me to Inlaks. I did not even apply for Inlaks and all I know is that Rhodes recommended me. Of course I filled a form afterwards.

On being a first generation lawyer

I am a first generation lawyer, I don't have any lawyers in my family. Now it's a different matter since my husband is a lawyer, my father in law is a lawyer, but that was very much later down the line. I started my practice before that. I don't have any infrastructure, I did not  have any benevolent hand in that sense. And all said and done that's quite a necessary part.

On partnering with a woman lawyer

On the other hand, the reason I did not have as bad a struggle as I should have is because my friend Geeta Luthra who is a senior advocate now and I started practice together. Hence, we were able to bear most of the rigours of the profession much more easily than if you are individuals. In fact it was very unknown of women partnering with each other in the profession. We did not have many women in the profession and we did not have many women partners either. I think partnering was a phenomenon which was somewhat different and it  helped me to get past all the struggles that came one's way.

On the struggles of being a woman lawyer

The principle struggle I think for the female lawyer aside from the fact that you know you are not part of that old Boy's  club is the fact that your friends are not necessarily working and hence you don't have the contacts for getting work and ultimately it is important. Secondly, there is and of course there has always been and still continues, I think to some extent, the fact that there is a prejudice against engaging women counsels. We were fewer in number and people working on their own right were even fewer in number since maybe most were working as juniors or for other people. So I mean, there were struggles but, the first part goes past in a decade. It goes in a flash to the extent I don't have any heartburn which I remember in that sense.

On the magic sauce to success

I think where when you went beyond a point and prove yourself, you actually were acknowledged. You have to continue to be twice a man. So the demonstration effect and the visibility or your proving your mettle is something which has to be done at the first degree level. Having done that, you need to have people who kind of support you.. My family is a very big support, my in-laws are very supportive and I think that's a very important feature too, because professional life is a tough one. You have a very rough life balance. So how do you balance that future? But, I have come to the conclusion that you can't be the best at everything, so it's high time you just try to do what you can and go with that.



On the first big break

Honestly speaking, the first big break we had was from a business group which decided to support or engage one's services and so that gave me a biggest break because I got a retainer and got exposure to various kinds of cases. Being a Marwadi business group, they say you learn more from them than what you learn at Harvard and definitely with the rigours of the profession, you learn far more on your feet than you learn from any text book. We got a wide exposure to wide variety of cases from that group not only in Delhi, but in various parts of Delhi. We used to go to various even district courts and in fact I think even trial courts.

On the ebb and flow of work and my “Swades” moment

One just got breaks from some waters one never solicited work. It never came like that and being convent educated, you kind of say do the Gita way. If you do righteous work it will all come through. But the real world is slightly different although we actually proceeded on that kind of presumption, working with whatever we got. I started with Ms. Geeta Luthra's father who was a Senior Advocate, Mr. K K luthra and learnt quite a bit with him and then we decided to launch of on our own. The work just came from various places and once you did something that one thing lead to another. It was slow and steady, started from trial courts which was also quite a crunch and I used to work in Boston with a law firm and doing fairly well there. Most people were surprised when I came back. However, I was determined to come back to India and stay with my family and friends. I wanted to be first a nationalist and then anything else. Even though when I was leaving my firm in Boston, I got a little bit queasy should I go back or should I not - it was only a very minor twinge, my conviction of coming back was very certain - so much so that when I went for an interview I told them I did not want to stay for more than a year. Also it was surprising to get into Boston since in those days, India was not as well known as it is today. The firm in Boston gave me a job, but I came back and I went to the trial courts and I went to places like even Rohtak or Tiz Hazari constantly.

Lastly- On paying your penance in trial courts

But between you and me, trial courts are great fun. I think you learn the most there and it is a folly to jump straight to the Supreme Court without having done the set up because you really need to understand what law is about and law is made. Its like cooking, you may have pre-cooked meals available but you have to cook yourself - I think you learn a lot from there and also for young lawyers- you are trusted far more with the trial court cases than you are with Higher Court cases- so it was a relation you build- you go up the ladder. The ladder is a very slow one- like snakes and ladders- you went up and you came down - you just struggle it out- it just kind of happened- panels and other people who supported you and otherwise.

KTS Tulsi: My journey to being the Additional Solicitor General of India

It's pretty hard! I started as a junior to one of my very good friend's father who was a leading lawyer in Chandigarh. The day after our law vacations, we got enrolled and I started working with him. He was a very busy lawyer but he treated me like part of the family. We used to prepare two to three appeals and revision a days, research and learnt a great deal. There was a lot of opportunity for drafting, thinking and the entire process as to how the cases are prepared and drafted, I learnt over there.

However, in six months time, I decided I had learnt whatever I needed to learn and I needed to jump in the ocean. My friend said that I was being stupid. He said, "this is a cruel world,  you don't know that! You will get dejected, you will give up practice and you are ruining my career by taking such a rash step!" But I thought that if I don't have it in me to become a lawyer, I need to fail now rather than after ten years or fifteen years. So I insisted on starting on my own and I became independent.

Around that time, there was a senior of mine who was also an author of several books. I started writing a book inspired by him because as an independent lawyer, I did not have much work. I was also empaneled by the Advocate General, Punjab, where we used to get Rs 32 (Thirty two indian rupees) for the appearance on behalf of the Advocate General.

I remember that when I was the junior, the senior used to invite us in the chamber on Friday evening, and he used to hand over to me an envelope which had Rs 50 in it and similarly he used to hand over an envelope to his son, which also perhaps had the same amount. But we were happy because we were learning. I was staying with my parents so I did not have to worry about monetary issues. Three years later, I got married.

My book was published by Eastern Law House, Calcutta and that gave me something like Rs 25-26,000 and I was on cloud nine getting that kind of money. In the meanwhile, I got married and an year later, we had our daughter. But we were staying with our parents and we were not worried about our daily expenses. I started publishing a law journal in addition to my practice but I used to make still sometimes only Rs 2000, sometimes Rs 3000, sometimes Rs 5000 and because I started publishing a journal, I had to spend Rs 5000 on printing, paper etc.

I used to borrow judgment files from the bar library because I could not afford to buy them, so I used to be handed over a file say of the civil writs, on another day criminal appeals then civil revision, criminal revisions. I was handed over the file at 4 o'clock in the evening and I had to return it by 9.45 am next morning. I used to go through those judgments, I used to make head notes and then my stenographer used to come at 6 in the morning. I would dictate the head notes and would return the file before 10 am. Next day would again be the same routine. I was very happy doing all of that. 

My wife cooperated to the extent. She says, "I did nothing. I am living in the house, I have so many clothes." We used to occasionally go out to a movie hall, but although we din't have too much money, I thought I was learning a great deal. 

In the meantime, I was appointed a part time lecturer and as a part time lecturer I gained a lot of confidence because our lectures would be for one hour but you had to prepare, you had to speak, so there was a great deal of satisfaction in that. We used to get a princely sum of Rs 400 as our salary as part time lecturer. 

Two years later, I was invited by the Chief Justice of the High Court and appointed a reporter for the Indian Law Reporter, Punjab and Haryana Series. In that, we got a very prestigious office in the High Court next to the bar room. We used to get Rs 250 for our labour for preparing the headnotes and supervising publications and law journal. 

I stopped publishing my law journal once I joined the official reporter. I should say that because I was editing my law journal, I had two associate editors. One was Mr. K S Garewal, who later on became a judge of the High Court and the second was Sushma Swaraj, now the Honourable Minister of External Affairs.

Practically, I had to do all the running about! I was the editor, producer, the salesman, I was going to the district bar associations, addressing them that this Chandigarh short notes was the means to replace ten law journals and that one is enough to give you the entire information. Because I was the editor and everything, I had judgments on my finger tips, I knew what had been decided, I knew exactly what was the ratio in each case.

One day, I remember a partner of one of the law firms came to Chandigarh and he told me that there was a Prevention of Food Adulteration case against the Chairman of a tea company and whether I would be able to handle that case. So, in our conversations, I rattled of all the judgments which were relevant to the point for getting the complaint quashed. Pursuant to that, he requested me to draft the petition and give it to him. So I drafted it in one day and gave it to him. He went back to Delhi and then he went to Calcutta. The senior lawyer of the tea company, upon seeing the petition, said that I want to meet the lawyer who has drafted it. So I was called to Calcutta to meet with the senior lawyer. He made us wait for about two and a half hours and from the other room we could see that he was writing the whole petition with his own hand. Eventually, he called us in and said that this ist an excellent draft but I have suggested a few changes and I have made those changes in pencil. Please have a look at them and so I was quite surprised. He said, " Young man, in criminal law you need to know not only what to say but also what not to say. " I still consider him to be my guru because he gave me such clarity with regard to criminal procedure that I till today consider myself to be a master of quashing criminal cases, of drafting and arguing. 

When I went to Kolkata for arguing the petition, I was paid 1100 rupees a day, including for the travelling time and that was a hell of a lot of money. It was a big jump from whatever I used to earn and it gave me a great morale boost. We won the quashing peṭition in Calcutta. A few years later, the same tea company engaged me for their cases in Rajasthan and Shimla, so I made a lot of money. 

Then, my next break happened when one of my friend's class fellow asked for time to meet me because his friend who was the Deputy Inspector General in Assam was in serious trouble and local lawyers were refusing to represent him. So I said sure and when they came, I, for the first time met KPS Gill, one of India's most celebrated police officers. KPS Gill showed me the transfer petition that they had filed in the Supreme Court. I read the Transfer Petition and despite the fact that I did not have too many years of practice, I said to Mr. Gill, "You have an excellent case but a very badly drafted petition." Mr. Gill was quite surprised that a young lawyer could tell him that his petition was poorly drafted! I rattled off all the cases on sanction under 197 of the Code of Criminal Procedure, 1973 from Constitution Benches and various other cases that I had come across as an editor. He was surprised that I could say all that without consulting a book. Then he says, "You know who has drafted this petition, it is one of the retired high court judges who had drafted the petition. I said, whoever may have drafted, but he doesn't know the law. But I think Mr. Gill thought I was being very cocky. Nevertheless he went back and he said he will get back to me.

About six months later, Mr. Gill's father came to meet me and he says that KPS has been trying to reach me but he could not he through the phone to me. Their petition had been dismissed by the High Court and he desperately wanted me to come to a Guwahati within four days.

So I said, "Very well Sir, I will think about that, whether I can make this trip." Meanwhile Mr. Gill, senior, said, " Look, we will pay whatever you want but you have to come". He asked me my fees. I said I have been paid Rs 1100 per day by some tea company. He said we will pay you double the amount but you must come. So I went and we got bail for them inspite of the fact that it had been dismissed by the Supreme Court. Then about 50 more police officers engaged me for the same fee for their cases in Assam because Assam was reeling under the agitation by the AASU (All Assam Student's Union). So I kept going, almost every week I would go to Assam, it was a long flight. First. I had to come from Chanḍigaṛh to Delhi by train and then I had to go from Delhi to Lucknow to Badograh to Guwahaṭi. It used to take a whole day, but Rs 2200 was a lot of money. I must say I made I think about 40 Lakhs in five years from there.  

In the course of those cases in Assam, I came across the best legal brains, got an opportunity to assit them, saw their way of working and why they were so sought after. So, I think this case turned my fortune.

I wrote one more book which was also published by Eastern Law House, Calcutta. I got more money that time, with which I could even buy a car.

In 1987, I was designated as Senior Advocate. I was exactly 40 years. I think there are just a handful of people who are designated seniors at that age. 

During the Emergency, I was General Secretary of PUCL (People's Union for Civil Liberties) and they had come in contact with Mr. Subramaniam Swamy. He liked me a great deal and sometimes he would stay with us.

I was in Delhi staying in Meridian in connection with KPS Gill's cases when I came to know in the evening when one of Mr.  Gill's colleagues walked in with a teleprinter news that Subramaniam Swamy had been designated the law minister. 

Since I knew Swamy, I called up his house and Roxna, his wife, said that she hadn't seen him since morning, after the swearing in and he would come perhaps pretty late. So I said I wanted to meet him. She said the best time to meet him is perhaps 8 o clock in the morning. She asked, "Are you nearby?" I said I am nearby. So I went to his house. I was waiting in the drawing room and when Swamy came down, he hugged me and he said , "Tulsi, you are now Additional Solicitor General." Just like that! I don't know how much pressure he had from other people but he stuck to his guns and appointed me Additional Solicitor General. I was now on the national stage where if I could perform,  I could become a star. The rest is recent history.

Sidharth Luthra: On the early struggle of being a lawyer

I studied mathematics in college. However, I found it dry, and then switched to law. In our time, the options were medicine, engineering and chartered accountancy. In my case, my late father, Mr. K K Luthra, being a senior advocate of eminence, I had an understanding of the field of law, and that prompted me to consider the study of law. I did my LLB from Campus Law Centre after my Mathematics honours at Hindu college.

While in law college, I was interested in research and academia and thereafter went overseas to do an MPhil in Criminology which further spurred my interest in academia and research. My desire was always to be a teacher and not necessarily practice law and I did teach at the Campus Law Centre at Delhi University in the year 1997. I am currently a visiting professor at Northumbria University, UK and I often also teach at judicial academies, to government officials and to corporate lawyers (in-house lawyers). However, since I lost my father in 1997, financial constraints restrained me to continue to teach law and I gave it up after a year and focused on the practice of law.

My father was an eminent criminal lawyer and I did not want to grow up under his shadow so after finishing my masters in 1991, I worked in Bhasin & Co. under Mr. Lalit Bhasin and his team including Ms. Nina Gupta Bhasin, Mr. Atul Sharma now of Linklegal, Mr. Vijay Gupta, Mr, J K Das and others for a year. I started civil and consumer law with them and continued to do civil law till the year 1996. In 1994, I began getting occasional criminal lawyer briefs but in 1996, my late father fell ill and I began to assist him in his matters. At the same time, one of my father’s old associates had left after three decades with him, so my father began relying upon me for assistance and research.

However my desire was only to do civil commercial law So, in that period till 1996, I did a lot of corporate advisory work, set up companies, applied for an industrial licence and got it. While I did go to court and enjoyed it, that was not the end of my practice and I focused on documentation and transaction work. In October 1996, my late father fell ill and as I said, I began doing criminal work with him, and I lost him in May of 1997. When he passed away, most of his existing clientele gave me junior briefs in the matters he had been doing and I continued with those cases.

My next break came when I did the Classic Computers case in Bangalore in 1997 which I, lead by the late Mr. P. R. Vakil, Senior Advocate, succeeded in getting discharged in the High Court for our client who was the supplier of the computers which was upheld in the Supreme Court. About the same time, I got a chance to do a tribunal under the Unlawful Activities (Prevention) Act, 1967 and more importantly, I became the lawyer at the Tehelka Commission for the portal Tehelka.

By this time, my wife, who is also a lawyer and I had two children, the younger one being born in 1998 and the older one being born in 1995. The loss of my father lead to certain financial constraints. So, while my mother had rental income to run the house, I had to take care of the office establishment and my wife and I had to take care of our personal expenses and that of our children, though they have a very generous grandmother who looked after us and even at 92, continues to look after us. The years 1997 onwards till 2000 were years of struggle, financial constraints. I would go for two months not being able to pay the salary of my staff and would borrow from my friends. The work would come in fits and starts and we would not take summer holidays since we could not afford to take them and if at all we would take a vacation, it would be at the holiday home of a relative or some other generous benefactor. Ketki and I used to sleep about 4.5-5 hours a day and the rest of the day used to spend looking after the practice and also keeping a watch on our little children. Between 1998 and 2000, I used to be in Bangalore for 15 days a month while Ketki was here, as a result of which we could not get even our elder son’s forms filled in for a lot of the schools in time who took children at kindergarten and we got our elder son in the next year in the few school that took in children at a later stage.

Till about 2002, there was a lot of struggle, Ketki was working with a senior advocate, Mr. P. V. Kapoor and he used to pay well by the standards of that time; whereas I was dealing with my fledgling practice but we were happy. The first time we bought a car was a Hyundai Santro of which part funds were given by my mother, part by my brother-in-law, part by a friend and we had a loan of about 3000 rupees a month which was stressful. It was a Santro and Ketki and I used to laugh that we only owned one of the four tyres of the car. After Tehelka, things started opening up and I got recognition and acknowledgement and public acceptance as a lawyer practicing criminal law.

So my criminal law practice really began in 1997 and I still have more recollections of the provisions of the Civil Procedure Code or so I believe, than of criminal procedure code! My work began picking up after 2002-03, when I began getting lot of opportunities in junior briefs and by 2003-04, I was being briefed extensively. Ketki and I had our independent practices- she doing civil & commercial work and I doing criminal work, though between 1998 and 2000, she had done a lot of my criminal matters as well, while I was away to Bangalore. But, after 2003, this large office of about 15 lawyers was doing its own work and I was getting a lot of junior counsel briefs and by 2003-04, judges in the high court would not giving me a Passover. I took it as a challenge and started accepting a lot of junior counsel’s individual briefs and began building my work.

In December 2006, I was sounded out to apply for designation as Senior Counsel. I applied for designation in July 2007 and was designated when I was 41 years of age. That became a time to reinvent myself and it was harder and more challenging since one was not competing with younger lawyers but with more able and more capable, experienced and knowledgeable senior counsels. I began picking up work as a senior counsel, I was always flexible on fees which helped me in good stead. Also, I would always do my own research and I continue to have my own research done, irrespective of whether the briefing junior has done research or not. My reliance is on my own work largely and my inhouse junior’s research, though sometimes there is a lot to learn from what the briefing counsel brings to the table, since they have naturally a larger and more comprehensive picture format.

In 2009, I got a big break, which was being appointed as government advocate under the Judges Inquiry Act regarding the impeachment of Justice Soumitra Sen, where we succeeded. The Rajya Sabha upheld the judgment but he resigned before the motion could be taken up in the Lok Sabha.
One thing I must add that I was offered judgeship when I was 43, in the year 2009 and thereafter again later but I took a personal and conscious decision with the support of my family especially my wife that it was not the stage for me – the reason really was that we have too many family members in the profession at Delhi and I was not really willing to leave Delhi with an aging mother and aging in laws. 

Thereafter, I got a chance to become Additional Solicitor General in 2012, having been sounded out in 2011 and I did two years as Additional Solicitor General, doing a variety of work which was very challenging and which gave me a lot more confidence building me for what I am today.

Role of Opposition Party

This was translated for a gujarati publication

Ever since the opposing party concept in democracy was implemented, their function was to keep a check on the actions of the ruling party. It was to assist to bring the ruling party to the map of the world.  The opposing party was not envisioned to detriment the positive economic benefit being brought by the ruling party but highlight and amend the wrong steps taken by the ruling party. However, opposite parties have taken upon themselves to malign the ruling party on every occasion and it appears that the power to raise their voice is only used to put forth their own agenda rather than change the course of the country towards betterment. Local leaders of the opposite party are the most active in demeaning the efforts of the ruling party’s initiatives. This brings about the negative impact of living in a democratic environment where right of freedom of speech is being a tool of abuse.  Most prevalent form of this abuse of freedom of speech is through newspapers. While newspapers exist to highlight current events there is no maturity in publishing the news.  Today’s newspapers exist to sell themselves. In this opinionated world filled with various media platforms such as twitter, facebook and message forwards, controversial news are the best selling news and media thrives on such news without validating their meaning. While in the US, newspapers are only one of the various tools of gaining information apart from social media online, most of India still uses newspapers as their primary source of getting information. Hence, instead of highlighting the efforts and initiatives of the ruling party, newspapers end up showcasing only the controversial part often ignoring the development which is seen. Where the founders of constitution envisioned the opposite party’s role to correct the ruling party as it governed our country, what is being created is a ruckus with parties trying to highlight only their voices instead of moving towards a common goal of reforming India through constructive criticism.

United Nations here we come

Anuj Khandelwal, a 25 year old Chartered Accountant was one of the delegates representing India at the United Nations. The event invited 360 delegates from 84 countries to deliberate over the United Nation's Sustainable Development Goals (“SDG”). The event was organised by World Merit, a Liverpool-based international charity organisation, working with the youth to tackle global issues that have been identified by the United Nations. It was founded by Chris Arnold.

The first phase of the programme was a two-week training and brainstorming session. The participants, also known as Action Plan Executors, were placed in one of 17 different UN SDG Groups, based on previously chosen areas of interest.

At the end of the first phase, each SDG Group proposed ideas for global scaling of existing projects that have helped achieved significant improvements in the lives of people in local communities. These projects were presented before the United Nations in New York on September 9, 2016 during the second phase of the conference.

Anuj was invited to share his ideas on SDG-2, 'Zero Hunger' with his counterparts from various countries.  In preparation for the event, Anuj and his friend Yug decided to validate their ideas and obtain some quick feedback before proposing them at the International level. They took their first step with ‘Go-Getters’- their pilot project. Ensuring access to food is the top priority for SDG - 2, Zero Hunger, as emphasised by Anuj. Go-Getters collects surplus food from restaurants, households etc. and distributes it to people in need. The project was first tested in Andheri, Mumbai.  Anuj derived his inspiration, and attributes his motivation to work towards the cause to Robin Hood Army, an organisation which follows a similar concept.

It's heartening to see young professionals committing time to proactively address some of the most pressing and complex problems in the world. Anuj, an alumni of Mayo College is currently working as a Senior Investment Analyst with a reputed Private Equity firm based out of Chennai.


SDG -2 - Zero Hunger Team at the United Nations premises in New York. 13 representatives from 8 countries.

Women to get equal share in property

To encourage women rights in property, government has provided less tax liabilities for properties transferred in the name of women.

Indian women own less than 10 percent of private property. While legislation is moving towards giving women equal share in their husband's and father's ancestral property, the mindset is yet to change. Currently, property rights of women are governed by personal laws and customs.

Satyajeet Desai, a renowned Hindu Law expert, says, "In 2005, the Hindu Succession Act was amended to give women equal share in their father's ancestral property and make them a coparcener. Hence, now a daughter can ask for a share in her father's property, but cannot sell the property if her brothers reside in it unless everyone mutually agrees." This still does not bridge the gap between providing equal ownership to men and women.

In case of succession amongst Christians governed by the Indian Succession Act 1925, a woman has rights only by will in which her share in the property should be explicitly mentioned. Muslim women, on the other hand, are entitled to half of the share their brother gets in familial property. A Muslim widow and mother are also entitled to get share in their husband and son's property respectively. However, there is no equality in the property divided amongst male and female Muslim heirs.

The only time a woman thus becomes entitled to property is through stridhan or Mehr which is the gift of property given to women during marriage. In such cases, the property vests exclusively in the woman and no one else can claim any right over it.

Sharvari Dalal, a sociology professor at BK Majmudar Institute of Business Adminstration, Ahmedabad, observes, "In case of matrimonial property regimes, India follows a separate property regime where the property of the husband does not become joint upon marriage, but continues to vest in his name."

Dalal further adds, "In many western countries such as the US which follow common property regime, such property would be divided equally amongst the spouses upon divorce."

Darshan Panchal, a real estate lawyer with K Nanavati & Gandhi Associates, says, "In India, where huge tracts of land are owned by families, if the father dies intestate, the property is divided equally amongst heirs including daughters and wife. While researching title deeds, we see a lot of cases where the female heirs are persuaded to release their rights in the land in favour of their brothers upon payment of compensation amount or even for free." Saket Gandhi, his colleague, adds, "Due to the mentality of sacrificing everything for male members of family, the ratio of realising rights is higher in rural areas. Women need to be made aware of their rights."

Just as various laws have been amended to give women benefits such as in income tax, company laws and personal laws, subsidies must exist in sale transactions for encouraging women to buy property in Gujarat.

Uttam Gandhi, managing partner at K Nanavati & Gandhi Associates, rightly points out, "Transferring property in the name of wives and daughter yield lesser tax liabilities and is encouraged to increase wealth. It is being practiced amongst high network individuals to divide the liability between the spouses."

Original article available at Times website

Gujarat Government eases land acquisition

Gujarat Government eases land acquisition

The Gujarat Government has introduced the Righ^th August, 2016 to replace sections of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 to enhance industrial development and promote rural infrastructure. Hence, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (Gujarat State Amendment), 2016 (“the new Act”) came into place.

Earlier, the Land Acquisition Act, 1984 was in place which sought to regulate land acquisition by public companies, government and was often criticized for its industrial approach. Commenting on the issues arising from the Land Acquisition Act, the Supreme Court in the case of Bondu Ramaswamy v Bangalore Development Authority and Ors said , “There is a need to remind Development Authorities that they exist to serve the people and not vice versa. We have come across Development Authorities which resort to `developmental activities' by acquiring lands and forming layouts which is not with the goal of achieving planned development or provide plots at reasonable costs in well formed layouts.”  The Government in 2013 passed the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 on the premise to provide farmers jobs, alternate land and compensation and the old Land Acquisition Act, 1984 was repealed.

The amended Section-10A of the Act seeks to exclude the application of the 2 chapters II and III. This authorises the Government to exclude defence projects, rural infrastructure, industrial corridors set up by the Government and projects under PPP from social impact assessment and other important reliefs for such projects. Social provision to safeguard food security by exempting irrigated cultivated land is also removed in case of land acquisition under projects mentioned in Section 10A of the new Act. The new Act passed by the Gujarat Government empowers government to exempt projects under Section 10 A of the new Act from social impact assessment and other provisions of the amended 2013 Central Act. However it dilutes the intent of the Act of 2013.

The new Act gives power to the Collector to waive inquiry in case all interested parties give in writing the matters to be included in award. The new Act clarifies that two lands located in the same locality may get different compensation.

The Supreme Court in the case of Sree Balaji Nagar Residential Association v. State of Tamil Nadu held that Section 24(2) of the Act of 2013 does not exclude any period during which the land acquisition proceedings might have remained stayed on account of stay or injunction granted by any court. It also removes the adverse impact of non possession and non payment of award in regards of land acquired within 5 years where the 2013 Act gave power to restore land with original owner. This period now is extended to exclude period of stay/injunction in by court or Tribunals.

Moreover, the Act empowers State to acquire land at 50% of the Compensation amount decided by the Collection in respect of projects listed under Section 10A in case size of land acquired is less than 100 acres. While the old Act of 2013 provided for rehabilitation of original land owners by providing them government jobs and alternate land, the new Act discounts the rehabilitation reliefs granted in cases related under Section 10A of the new Act.

Land acquisition is fast tracked where urgency is required since it grants governments the power to acquire land within 30 days of publication of notice without granting award by passing directions where urgency requires. The amendment further removes liability from public servants especially Heads of Departments in case of offences and court cannot take suo moto action without permission of Government.

While the amendment has been passed to ensure fast tracked land acquisition to increase rural infrastructure, farmers have raised voices on the adverse impact on their sole assets and means of livelihood. It has left private industries out of the purview as well. The government seems to have focused on the greater good which may cost it valuable votes in the upcoming 2017 State Elections.

Ram Jethmalani Interview

RAM JETHMALANI INTERVIEW

Mr. Ram Jethmalani is one of India’s top lawyers known to be an able cross examiner, an outstanding advocate and a crusader for social justice. His biography was recently published and launched by the Hon ‘ble Chief Justice of India. He shot to fame after appearing in the K. M. Nanavati Case and was in the news for standing up against corruption in the Black Money Case. India’s flamboyant legal eagle takes time out to share his insights in a one to one interview at his Akbar Road residence.

You have been practicing since long and have constantly been fighting for your clients often at the cost of the judge’s rebuking as seen in various top cases. What does it take to be a good lawyer?

One should learn to distinguish the profession from a business. In a profession, money making is not the important object – although people sometimes make more money than they should, but that’s not the point. The point is that one has to ALWAYS have the notion that the legal profession is a method of service to the public.

How was it when you started? What do you think of the current legal system and the dearth of good lawyers?

Nobody wants your service free. If you offer free service, people will think that the man is trying to build business for themselves. And today our whole legal aid system as you call it, organized by the bar, the court or the government is a sham. They don’t give the best lawyers to a poor litigant. They are in fact, making experiments between the law and the poor people. When I was the Chairman of the Bar Council of India, I had drafted a Professional Rules of Conduct added to the existing Rules of Conduct – that it is the professional duty of every lawyer within the economic capacity to render free legal aid to those who stand in need of it and this is the professional obligation more of seniors whose assistance is required by the poor people who sometimes get in the middle of some unfair litigation where only a good lawyer can be of help.

Also, only those persons should take the law who do not regard the practice of law as a business.

What is the secret behind making money in the profession?

I have finished more than 75 years of my practice and I make a good bit of money, certainly not like a lot of top lawyers, some of whom are too business minded. I do make money but I make it from 10% of my clients while 90 % work is free work, no fees. That’s the way I serve the people.

How to be a successful advocate? You have time and again represented the Government in big cases, something law students wish to emulate you for. What is the secret?

Law is a profession, the practice of which requires tremendous industry. You must be capable when you are young to put in about 15-16 hours of work. If you are not capable of that kind of industry, then you should take to some other kind of profession or business.

What should a law student learn to start of well? Nowadays, students dedicate their time to moots, research, internships and debating. Is it the right path?

A lawyer who only knows law is a missile, what you need to be is that you should be an architect. Justice does not ultimately depend on law, it depends on facts. And the lawyer must know not only law but a smattering of everything. History, philosophy, science, logic, languages, a lawyer must realize that ultimately advocacy consists in persuading a judge with your oral argument. The more command over language you have, the more persuasive you can be and that puts you ahead of your rivals.

What is the duty of a law student? What makes an honest lawyer? You have time and again preached the importance of fidelity and morality in law. What does a law student do to be honest and righteous?

When you appear for a client, your duty is not only to the lawyer but also to the appellant. Morality consists not in obeying the law, but in carrying out that which is not enforceable by the law. In other words, for example if a lawyer promises the other lawyer that the next day I will consent to an adjournment, this promise is not capable of enforcement, but it is his duty to keep that promise – as a lawyer, as a gentleman. Observance of that which is unenforceable is the highest form of morality.

What should law students do to be the role models in society? What is an important trait to develop as a law student? You have extensively mentored law students, written weekly for the Sunday Guardian and been Professor Emeritus at Symbiosis University, Pune. Yet, you find time to pursue your passion of law. How should we start to get there? What is the secret?

In my lectures to law students and sometimes even practicing lawyers, I told them that the spiritual ancestor of the legal profession is a character in the Biblical stories, the story of Danielle and Suzzana. That’s a story located in Ancient Babylon. They say that Babylon was ruled by a council of elders like in the modern panchayat – the oldest persons were the rulers of administratio. But, there lived in ancient Babylon, a woman of almost breathtaking beauty. So, each of the old men passed a lecherous glance at her and tried to seduce her but the virtue of this woman was stronger than the solicitations of these old men. They brought a false charge against her and naturally the accusers, the complainants and the judges were all rolled into one; therefore these four old men succeeded. So no wonder the poor woman was found guilty, charged with adultery of a young man unknown. And in those days the practice used to be that the person who was sentenced to death as she was, was to be stoned to death. So, they say that a crowd had collected to see the blood of the woman flow but before the first stone was tossed there arose from the audience a young man called Danielle. Danielle said, “I don’t believe this woman is guilty” and he kicked up a row. Though the crowd was not impressed by his wisdom, they were certainly impressed by his bravado1 They said young man what do you want? He said I want to ask questions to these old men. They said, alright, ask. He was not a trained lawyer but he made some rudimentary cross examinations that please tell me where you find this adultery being committed. So each of the four men gave such highly conflicting replies. Somebody says it was in a palace, somebody says it was in a sea beach, somebody says it was moonlight, somebody says it was sunlight like that. They say that the crowd which was gathered for the blood of the woman flow was now howling for the blood of the old men. Then the poor woman was let out.

Danielle was the first lawyer of history.

So, the essence that you draw from this: he worked without a fee, he fought against the establishment, against the power – the ruling power, he fought for justice, and he did not mind what the people will think of him

What is the most important skill in criminal litigation a law student should learn? What is required to be a great lawyer like you?

Lawyers must insist on becoming good cross examiners. The art of cross examination has practically died out in the legal profession.

The article was oringinally published here

Tenancy Laws in Gujarat

Government amends Tenancy Laws to boost industrial use of land in Gujarat:

Confusion prevailing in regard to the agricultural lands reduced owing to recent amendments

In the State of Gujarat, strict law regarding agricultural land prevails for protection of farmers and the tenants, who cultivate the land. The law states that agricultural land cannot be sold to a non-agriculturist unless special permission has been obtained from the authorities. Says Richa Mehta, advocate at K. Nanavati & Gandhi Associates, “Any entrepreneur who proposes to establish an industry in Gujarat, searches for a piece of land for establishing his industry and generally contacts a land-broker for the same.  Thereafter, upon negotiation, he purchases the land after paying a price and then approaches the authority for permission; a lot of compliances need to be sought for such transactions.” Adds Pratik Gajjar, CEO of Space Management Ltd., a real estate brokerage firm, “The document under which an entrepreneur has purchased the land is not a legal transaction in view of the law if transferred for non-agricultural use without obtaining permission and if the proceedings under such law has been initiated, the result will be vesting the land in government and the person, who has purchased the land loses his land and money.” 

The Gujarat Government amended Tenancy Law in 1976, permitting non-agriculturist to purchase agricultural land for bonafide industrial use.  The entrepreneur who purchases the land for his own bonafide industrial use has to purchase it with certain conditions provided in the law and then he has to obtain necessary permissions for such use.  Pranit Nanavati, Partner at Nanavati Associates observes, “Confusion prevails in land transactions in the sense that when such land is converted for non-agricultural purpose, whether the purchaser can further sell the land.  The view prevailed that he cannot sell such land to any other party even for bonafide industrial use. Even the Supreme Court recently confirmed that such transfer i.e. to say when the land is purchased for bonafide industrial use subsequent transfer is not a legal transfer.” Adds Uttam Gandhi, Senior Solicitor at K. Nanavati Gandhi Associates, “The Government, in order to find a way out of this confusion further amended the law in December 2015, permitting the transfer of such land, which has been purchased for bonafide industrial use upon permission of the Collector and upon payment of premium price as provided by such amendment.”

Nirav Kothary, Head of Operations - Gujarat, JLL states, “The Government has allowed transfer of land to establish industrial park and a provision has been inserted to protect the interests of an agriculturist who has acquired land despite earlier transactions in respect of said land being considered void. Additionally, the penalty payable on transfer of land to non agriculturist has been increased.” Satyajeet Desai, Mulla's Hindu Law Author observes, “The new amendments focus on the changes that rapid industrialization has brought to make procedural parts simple and mitigate undue hardships on purchasers. The most important amendment is that the time limit for commencing production after land is bought has increased.”

Hence, the amendment in the tenancy act aims to achieve the aforesaid objects.

Supreme Court Bar Association Activities - Internship Experience

Internship with M N Krishnamani

This interview was first published in a student blog.

Name of Organisation, Location, Team Strength

M. N. Krishnamani, Supreme Court Bar Association President, 7

Application Process

Email through his P.A. or call and inquire.

Duration of internship and timings

Post college 3-8, Saturday , Sunday on.
But if you go to court then the work hours tend to be 11-8 on miscellaneous days.

First impression, first day formalities, infrastructure

The Cabin is an Amazing 5 star Hotel Room filed with accolades.
I talked with the associates who permitted a running internship, they taught me some basics of
briefing which I imbibed in other future work.
Sir is extremely kind and like a grandparent.

There are paintings by his son, a famous painter all through the office.

The book collection is unique- Sir has English and American publications,
a section on his own books and on mythology apart from Law books.

Main tasks

I got to attend conferences, hearings, brief juniors and research contentions.

Work environment and people

Three associates- very friendly and helped me with a few college assignments too!
Wish I always be that lucky!

Work environment was respectful, pious, learning and people are extremely dedicated to work!
MN Krishnamani Sir’s place is extremely nice and the people involving and cooperative.

Best things

Watching Sir counseling clients!
Also, a Supreme Court Senior Lawyer is generally involved in social change.
I got to attend one such event chaired by Sir and attended by Mr. Soli Sorabjee and Mr. Mukul Rohtagi

There was good food to follow and staff ensured we ate well and reached safely.

Bad things

I got scolded badly by a junior once!

Stipend

Rs. 2500.

Biggest Lessons

Keep Calm and patience, invest in your hobbies, don’t scold, be humble
 and the best traits of Krishnamani Sir- Philantrophy and Leadership-
he is President, four times, SCBA and encourages spiritual stuff!

Any Other Thing

The market is so inviting , I feel the interns and associates-
who became a big bunch of amazing friends- hung out a lot more during lunch hours and
it became a habit to eat it Big Chill or Dominos sometimes two-three times a week!

The Wikipedia entry is here

Supreme Court of India Internship Experience

Internship Experience with Rauf Rahim, Advocate-on-Record (AOR)

This article was initially published on a student blog.

Your Name, College, Year of Study

Manushi Desai, Campus Law Centre, Delhi University, Final year

Name of Organisation, Location (city), Team Strength

AOR , Supreme Court of India, 3

Application Process

I worked under Rauf Rahim, an AOR as my very first internship. Go on SCBA website and get the email and contact number.

Duration of internship and timings

Monday- Friday Court Hours, sometimes just 1-4 since I couldn’t miss morning college!

First impression, first day formalities, infrastructure

Sir treated me in the SCBA cafeteria and introduced me to my seniors in law. Got to go to reading room where cases are discussed, conferences sometimes take place and AORs study for the upcoming appearances.

The staff at chamber was very helpful and still notarises official documents I require, types my handwritten classnotes and ensures supreme court visits are not cancelled owing to lack of those special passes needed.

Main tasks

Research, Notemaking , Reading Files and listening to the proceedings to update the junior!

Work environment and people

The junior taught me how to navigate through the crowds of people which fill the corridors on Mondays and Fridays!

Best things

Treats at Sarvana and lots of lassis!

Bad things

“Wear a coat” – Ok, first learning experience! I learnt the courtroom etiquette such as how to address judge, how not to speak from bar to the bench and much more after my first goof up of going to an internship coatless!

Stipend

NIL

Biggest Lessons

I got to learn what are miscellaneous days (when court decides what SLP can be filed and notice should be issued to respondent). Also “Never pay when a senior is around” rule!

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