A science student turned advocate, Mr. Sanjay Bhasin is a designated Senior Advocate at the Allahabad High Court. Apart from having a 36 year long standing before the Court, he is a leading Arbitration Counsel in India.
He has been interviewed by Ayush Shukla, EBC/SCC Online Student Ambassador who is currently pursuing law from TNNLU.
1. What motivated you to pursue law as a discipline and a career. Was it an obvious choice for you, given that your father was an advocate?
No, it was not my obvious choice at all. I was a science student throughout and was interested in the same, but because I did not do well in my MSc, my father said I had no other option but to go for law. But while pursuing my law, I developed a great liking for it. So yes, it was not my first choice and was only my second-best choice, I did not want to get into the hassles of law, but somehow, I got involved in it.
Based on my interest in Science, I wanted to be a scientist or a lecturer. Still, destiny brought me here, and I have relished this period spanning from 1986-1987 that I have spent in the field of law.
2. Could you tell our readers about your experience in law school and what lessons you have learned in your law school that have been an integral part of your journey as a practitioner?
I was not that serious during my law school. I did my law at DAV College, where we only had two morning classes. So, I spent the rest of my day in labour courts, as I used to be a chauffeur to my father, who used to practise in the labour courts. So, throughout the day, I watched the proceedings before various authorities of the Labour Court. If one does this religiously, one will start picking up things from there itself.
But here, I always remembered my father’s lessons during those days, which have been with me throughout my life. He told me to maintain the profession’s integrity, always be honest and dedicated to the judicial system, and create your image through your hard work. He used to tell me that if you are hardworking, you will succeed. Whether or not you are going to succeed in that particular case or not, will depend on the merits of the case, but in any case, you should not be found in a situation where you did not do enough labour, or you did not present it well enough.
My teachers also taught the same lessons. They said that lawyers are otherwise taken to be liars, but they are not so, as whatever they say or present is based on the strength of the affidavits and documents exchanged between the parties, and based on those, only a lawyer takes its stand. So, integrity and honesty are the things that have been imbibed in me by my father and teachers, and I have been following that very religiously.
One more thing that I would like to advise all the students that my father used to tell me is to work on your oratory skills. One needs to practise oration. That practice of oration could only be for a short duration, like 5 minutes or 10 minutes a day. Like just read a newspaper aloud, as that will provide thrust to your voice, it will give clarity to what you speak, it will improve your pronunciation, and it will change your overall personality. So, everybody, who wants to be a practicing lawyer, should practice this.
Here I also remember the advice given to me by my senior, Justice Bhalla, who, as and when I joined him, was an Additional Chief Standing Counsel, and later on, he went on to become a Judge. He taught me that I should read one judgment a day and make notes of the same. So, I had a diary, where I used to note all the important points of the judgment, and I used to observe how those points have been dealt with in the judgment.
3. During your initial days in the field, how did you do research on a case? Today we have research tools like SCC Online, which has to an extent, made our job more manageable. And what can our generation learn from your initial days’ experience of researching, which we can inculcate in today’s time?
In the absence of present time research tools, we were solely dependent upon the digests and the commentaries. We had those yearly digests of Supreme Court, labour and industrial court cases, factory law journals, etc. Those digests and commentaries were prepared so that you could reach the particular case law you are looking for by referring to the index itself.
Personally, I think that the manual thing was quite beneficial because it gave us insights into the complete aspect of the section we were researching. Moreover, when going through these commentaries, you will find judgments from both sides, so you can always read the other view. Once you do that, you get an obvious idea of the provision because you must have read judgments from both sides. At present, I agree we can reach the judgment faster, but that much off reading is missing among the youngsters. As by that additional reading, we used to learn ten more things besides what you were searching for, which perhaps is now missing. So, I feel this is what the upcoming generation can inculcate in themselves.
4. You have had an illustrious career in the field of arbitration, so according to you, what are the reforms or changes that should be introduced in the current regime of arbitration in India to make it a more viable option for the resolution of disputes by parties in India?
A4. Coming to arbitration, you see, I started with labour courts, then ventured to service matters. I was appointed in the Service Tribunal for a brief moment and then appointed as Standing Counsel in High Court, where I served the State for 20 years with different Governments. The first arbitration case that came to me was somewhere in 2003, so for the last 20 years, I have been dealing with arbitration, contracts, and other matters.
What I have found in arbitration is that the arbitrator has been given unfettered powers, and there are very limited grounds, as have been enumerated in Section 34, based on which the arbitrator’s award can be challenged. The award cannot be challenged on merits, so the arbitrator’s words are final on merits. I find this one thing very arbitrary, as this gives unfettered powers to the arbitrator because if he gives an award in his prudence, it is to be accepted as it is unless there are any legal flaws in it or it is not in conflict with the public policy then it is binding upon the parties. So, he can go overboard; he can do anything without any framework to stop him. I agree there is this entire legislation, but despite that, he has so much power in him without any checks and balances. This, I feel, needs a little consideration and deliberation. Personally, I think there should be some sort of an appellate authority, like, for instance, NCLT where we have an appellate authority, NCLAT, so whatever happens in NCLT, there is a provision for appeal in NCLAT. Here, in the arbitration act, there is no such forum available. Of course, the act states that you can seek setting aside of the award under Section 34, but that is based on some limited grounds only.
Moreover, invariably every award is challenged. Like in almost 90% of the cases, the award is challenged. So, we are having litigation, and the idea behind arbitration was to reduce litigation, but we are actually added to the litigation because the case goes before the District Court in the first place, then it comes to the High Court, and at times people even come to the court in between the proceedings. Very recently, there was a challenge to the arbitrator’s order, invoking Article 227 of the Constitution of India, which is related to the power of superintendence, and the inherent power of the court, which we are still dealing with this matter, and the judgment has been reserved. So, there should be an appellate forum provided by the act, which is the one thing I would like to suggest.
The second thing that I would like to suggest is that the parties should be given some sort of right to seek a change of arbitrator. You see, an arbitrator is somebody who is supposed to be Caesar’s wife, beyond all doubts; here, I am not questioning the integrity of the arbitrator, but due to the unfettered power given to them by the act, there can be an angle of bias in the proceedings. Although an arbitrator is supposed to make disclosures, like he is not related to any of the parties in any way, but suppose one of the parties thinks that the arbitrator, who throughout the proceedings will be the same person, is biased or has developed a bias towards particular party during the proceedings. Then the award passed by him could be maligned by his prejudices, which he may have developed during the course of proceedings itself. So, for this, there should be some cure. That cure can be given in the form of some sort of rights to the parties for seeking a change of the arbitrator or institutionalising the whole thing. Once it gets institutionalised, the case does not go to the same person with whom the party could have some grounds (not in all cases). In this way, the parties will not feel that they have been deprived of justice. So, that is the little grey area, where the party, even during the proceedings, may feel that they will not receive justice from the arbitrator, and besides that, they are forced to continue. So, these are the two areas where I feel some work needs to be done on the legislative side.
5. Recently Chief Justice of India N.V. Ramana inaugurated the International Mediation and Arbitration Centre in Hyderabad, so could you tell our readers about the need for institutional arbitration, as inaugurated in Hyderabad, and how is institutional arbitration different from ad hoc arbitration?
So, you talked about mediation and arbitration centres. We also have it here in the High Court. Here, court-annexed mediations are referred to the centre. We also have arbitration chambers, but they are meant only to hold the arbitration proceedings. When I say institutionalisation, it actually means something like an arbitral court, where we have a number of arbitrators. When the matter is referred to the institution, it provides an arbitrator, and those arbitration proceedings are also held there.
Moreover, these institutions on the administrative side work upon and ensure that arbitration is carried out free from any biases and prejudices. In such an institution, there ought to be a facility for transferring arbitration matters conducted by one arbitrator to another arbitrator within the same institution. Here, the institution itself can be taken as an arbitral forum. The institution itself provides the arbitrator, who will not be static for one arbitration, facilitating the same arbitration matter before different arbitrators based on modus operandi, rules, and regulations.
6. The extravagant cost involved in arbitration proceedings has often been criticised, so what are your views on this issue, and what can be some possible solutions?
Yes, the cost involved in the disputes is stupendous. What is there in Schedule 4 was only indicative. Until Schedule 4 was inserted, the arbitrator was free to decide its fee. But now, once this schedule has been introduced, everyone has to stick with it. When we talk about Schedule 4, I am yet to understand its impact, as the schedule gives slabs of fees depending upon the sum of the dispute, and just below the schedule, you will find that 25% extra has to be paid in case there is only one arbitrator. Now, what does this mean, is the fees as have been specified in the schedule related to the cost of the whole arbitral panel, or is it the cost of one arbitrator. Based on the intent behind this provision, it actually means that if there is a panel of three arbitrators, then only the slab amount is to be given to the whole panel, which perhaps has to be divided among the three arbitrators. Otherwise, the type of fees given to an arbitrator, let’s suppose ten crores, if is to be given to an individual arbitrator, then it is a huge amount. Therefore, I do not find these figures irrational, as when High Court under Section 11 states that the fees have to be decided in accordance with the schedule, then it is also binding on the parties to follow it, and as far as the negotiation with the arbitrator on fees is concerned, that thing is not possible.
A possible solution to this can be that there should be some declaration that the fee prescribed in the schedule should be for the whole panel of three arbitrators. And in case there is only one arbitrator, then his fees should be one-third of what is prescribed in the schedule plus 25% of that amount.
7. What will be your advice to law students and practitioners looking forward to a career in arbitration?
A7. There is a lot of scope in arbitration. The law students and practitioners looking forward to a career in arbitration should be thorough with the Contract Act and the Arbitration Act. Nowadays, the Government has made it mandatory that every government contract invariably has to have an arbitration clause, so with this, the Government is trying to lighten the burden of the courts. Still, the Government has not been successful, which is one thing. There is another thing which I would like to say regarding the lawyers. Being a lawyer is a job; he has to handle the court, handle the clients, and handle the people around him to increase his clientele. It is a very engaging profession. The lawyer will find significantly less time for his family or any miscellaneous job. Moreover, for a young lawyer to get arbitration matters is in itself a job. So, I would suggest that young lawyers should first establish themselves in the eyes of their seniors so that their senior has confidence in them and give out cases of arbitration and others to young lawyers. Once this confidence is developed, they have to prove their worth by their dint of labour. Otherwise, what I perceive is that getting arbitration matters for a young lawyer is not an easy job.
8. We all know that you have been in the legal industry for over three decades, so what, according to you, are the skill sets that are essential for this profession, and how can a law student utilise their time in the law school to develop these skills?
I have talked about certain skills like oration practice and reading one judgment a day, which are some skill sets that one should develop. One more thing I may have missed out on, and it will cover up, is that you need to carry a smile throughout. You see, half of your job is done with politeness and smile; if you are polite in your submissions, if you are submissive in your arguments, half of your job is done. When I entered this profession, I was told by my teachers, my guru, my father, and others that you should learn three words, “Ji Sir; Yes Sir; Ha Sir”, nothing beyond this. Whenever a Judge says something, it must be any of these three things. One should never say “na” or no to anything; start with a “Yes My Lords” even if you do not agree with what the Judge said, or he may even be wrong in his proposition, then also you must start from Yes Sir or Yes My Lords and then put across your point, this is essential for a youngster. So never start with a no, always be submissive, and then very sweetly and softly take the Judge along with you with whatever you wish to say, because if you start with a no, then it is human psychology that he would become resistant to you, he may not be receptive to what you would be saying, but once you say yes, then he may be receptive to what you may be having to speak. Another thing will be never frown or show your anger in the court, even if you are. Never fight with your colleague on the other side of the dice. Always show respect to him and the court; the world would be yours. So, this is one mantra that I learned during the initial days of my practice.
9. Any final piece of advice for our readers.
Hard work and labour with every brief that comes. Here, I would like to share one thing. When I started practicing in the High Court, there was a perception among the people that I was an expert in the Labour Laws. But to be upfront and honest, I will say I learned Labour Laws in just three months, and those three months were on my first case, which I asked for from my father. Once he permitted me, I went through the entire pleadings, prepared my notes, and started working on the legal aspects of it. Once I started working on it, I was neck deep in Industrial Disputes Act. Once you start reading the case laws related to it, you get ten more case laws referred to in that particular case that you read, and so on. In this way, I had a great command of that topic. During those days, my schedule was such that I used to return at 7.00 p.m. from the courts, and then I used to do this work till around 2.00 to 2.30 a.m., that too when I was scolded by my mother to leave the work and go to sleep. But for doing that extra work, I never forced myself. I enjoyed the process throughout. As once you start enjoying it, you begin to imbibe it, appreciate it, and understand it. Once you do that, you will become a master of that particular thing. So, my final word would be that you can never achieve success without hard work.
