Ashima Ohri

A business economist, lawyer, and writer. Editorial Consultant for BW Legal World.

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'A Lifetime Dedicated to Law'—In Conversation with Lalit Bhasin, President of SILF and the Bar Association of India

Lalit Bhasin, Managing Partner of Bhasin & Company in a candid and exclusive interview speaks with Ashima Ohri about the release of his book; his thoughts on Contempt of Court; key factors thwarting the success of Arbitration in India; future of Mediation; the non-uniformity of Force Majeure clauses in India; challenging situations that led him to meet with Mrs Indira Gandhi during the period of Emergency in 1975 and much more.

President of the Society of Indian Law Firms and the Bar Association of India. He is also President of the Indian Law Foundation. He is an Honorary Life Member of the International Bar Association, Chairman of CIArb- India, and a member of the ICC Arbitration India Core Group. He is a Past President of the Inter-Pacific Bar Association and a former Chairman of the Film Certification Appellate Tribunal of India. He is Managing Committee member of PHD Chamber of Commerce. He is also Chairman of Confederation of Indian Industries (CII) Task Force on Legal Services. He is Regional President of the Indo American Chamber of Commerce (IACC), besides being Chair of Staff Committee and Council Member of the Services Export Promotion Council (SEPC).

Mr Bhasin, you have been awarded Doctor of Laws Honoris Causa by Jaipur University in 2013, a Plaque of Honour for outstanding contribution to the rule of law in 2002 by the Prime Minister of India, and the National Law Day Award in 2007 by the President of India. 

Mr Bhasin, it is an honour to be interviewing you and I’d like to begin by asking you to kindly take us down the memory lane and share with us what inspired you to become a lawyer, where were the seeds of this illustrious journey sown and how has it been so far?

I was born into a family of lawyers. My grandfather Lala Gokul Chand Bhasin was a lawyer in Rawalpindi in the undivided India. His elder brother Shri Shiv Ram Bhasin was also a lawyer practising in Ferozepur. 

My father Shri Tilak Raj Bhasin was a very eminent and senior lawyer and he started his practice in Rawalpindi before Partition and thereafter in Delhi and in Jammu and Kashmir. He was a designated Senior Counsel. As a student, I witnessed some historical cases handled by my father in the courts of Delhi and I used to attend court hearings whenever possible. In this atmosphere and environment of learning, hard work and public service I could not think of joining any other profession or taking up a job and the result was that I became a student of law in the Faculty of Law, University of Delhi from the years 1959 to 1961, after graduating from the centre of learning - Hindu College, Delhi. I was enrolled as a lawyer at the age of 23 years in 1962. Inspiration to become a lawyer was not just due to being a part of the family of lawyers but also to engage in public service and that is where my family, particularly my grandfather and my father were the shining examples of how lawyers can be and should be vehicles for doing public service. My grandfather was also a strong Congressman and he fought for the independence of the country and so did my father. My father, even during his active practice appeared for those who were politically victimized and for the underprivileged, many a time without charging any professional fee at all. 

I have in my own way tried to give back to society as a lawyer. The very first thing which I did when I was elected, at the age of 33, Chairman of Bar Council of Delhi was to set up a law Library in the district courts, Tis Hazari, New Delhi. The Library was well equipped with the latest textbooks on law and Law Reports. This became a historic event as the Library was inaugurated by no less a person than the President of India in the year 1975. The Library is still a hub of those lawyers, particularly young and junior ones who cannot afford to buy the law books. 

I raised the funds for this Library through the unconventional action of organizing the premiere of the famous film, Raj Kapoor’s ‘Bobby’ and was able to raise approximately Rs. 6 lakhs which was a sizable amount at that point of time. Out of the funds generated by these film shows I was able to set up a Fund for Indigent and Disabled lawyers. 

Thereafter I have continued to do my bit towards helping the legal profession, helping the Law Schools, strengthening the bonds among the legal professionals all over the country, and most importantly putting India on the legal world map. This was achieved during my tenure as an office-bearer of various national and international law organizations. I continue to play this role until this day. 

My wife Nina, my daughters Sonia, Priya and Shilpa, my grandchildren Arush Khanna, Swati Mehta and her husband Aditya Bharech are all lawyers and they firmly believe in and carry out the ethics, etiquette, rules of conduct in their respective fields and all of them firmly believe that it is a salutary obligation on the part of lawyers to give back to the society in whatever way it is possible.

Who are the people who have inspired you the most in this profession and how?

Besides my father who was a role model for me as a hardworking, dedicated, committed and brilliant lawyer I consider Mr Fali S Nariman as my mentor. I have learnt a lot during my long association with Mr Nariman, spreading over four decades. 

How has Covid-19 impacted your practice? What is the biggest challenge in the legal industry at the moment in the Covid-19 Era? What are the most critical changes that we must make in the wake of the pandemic to face the future effectively?

COVID-19 has not impacted my practice. It did reduce litigation work but there was a marked increase in the advisory and opinion work during this entire period. In any case, there is not much of court work during the months of May and June which were the peak months of the COVID crisis. 

The law firms and the Senior Counsel, in my opinion, have not suffered an adverse impact in a significant way. However, litigation lawyers particularly in the district courts and young and emerging law firms have suffered immensely due to lack of work and non-payment of professional fees by the clients. This is a serious challenge for this young section of the legal profession whether as litigation lawyers or as part of emerging law firms. These young lawyers are also handicapped as they do not have modern tools of technology which is a big setback. 

The important changes or remedial changes which should be undertaken by the regulatory body, namely the Bar Council of India and the Departments of Law and Justice at the Centre and State levels is to create a Fund for the needy section of the legal profession in order to enable them to face any such challenge in future. This is what in a very small way I tried to do as Chairman of Delhi Bar Council way back in 1975 by setting up a Fund for indigent and disabled lawyers. 

In your career, while you must have faced so many hurdles, is there any incident that you found particularly challenging to handle? How did you power through the problem?

One of the most challenging situations that I had to face was during the period when Emergency had been declared in the country in 1975. A large number of lawyers practising in the district courts at Tis Hazari had been arrested and put behind bars in Tihar Jail as they had protested against the demolition of their chambers. I was Chairman of the Bar Council of Delhi. The members of the families of the lawyers who had been put behind bars approached me repeatedly to help the lawyers to be released from the jail. I visited the lawyers in the jail and I assured them my help. I made frantic efforts and took up the matter right up to the Prime Minister (Mrs. Indira Gandhi) and sought immediate release of the lawyers. Fortunately, my appeal resulted in the release of the lawyers from jail within three days. 

There were similar instances of harassment and possible arrests of some of the senior-most members of the legal profession of the country and I was able to make it possible for them to evade the impending arrests. 

Mr Bhasin your key practices include Aviation; Labour & Employment; Arbitration & ADR; and Litigation. Would you please help us understand the future prospects of Mediation in India? What is the major issue plaguing these methods of dispute resolution right now and what in your opinion is the way ahead?

With over 3.2 crore cases pending in the courts all over India, the justice delivery system has virtually broken down. Ordinary citizens of this country are deprived of quick, effective and inexpensive justice from the courts. It was considered that arbitration could be an effective alternative dispute resolution mechanism but unfortunately, even arbitration has failed to take off In India. The 1996 Arbitration and Conciliation Act, replacing the 1940 Act has not been able to promote arbitration in India. The reasons are manifold but the key factors are lack of institutional arbitration and virtual monopolisation of arbitration by former judges and lawyers. Other important sections among professionals are left out from being appointed as arbitrators. These include chartered accountants, company secretaries, engineers, architects, consultants, retired bureaucrats, etc. Another factor is that in India we do not have trained arbitrators. Retired judges and lawyers cannot be considered as trained arbitrators as they are only familiar with the legal issues which arise in the disputes but they cannot claim expertise on the factual and technical aspects of the disputes. Another factor is that arbitration has become as expensive if not more than litigation and is also very prolonged.

Mediation seems to be the answer for dispute resolution in India. This again would require trained mediators, which we are lacking today. We would need institutional mediation and these institutions should have such trained mediators whose names should inspire confidence in the parties. A good beginning has been made in India particularly by the Delhi High Court, which set up a fully equipped Mediation Center with a very knowledgeable team of mediators. Other high courts are also following the lead given by the Delhi High Court. 

As Chairman of the Chartered Institute of Arbitrators – India I have initiated training programmes in the field of mediation and under the guidance of the headquarters in London we are making a good headway.

I always advise my clients “A bad settlement is better than successful litigation.”

Mr Bhasin would you agree that the law on Force Majeure is scattered in various legislation in India with no legislation that can adequately tackle all scenarios arising out of a force majeure event like COVID-19. How has this impacted various industries like Aviation, Media & Entertainment, Banking & Finance; and the issue of labour and employment in these areas?

The law on force majeure as laid down by the courts is vague. Force majeure disputes have to be decided on peculiar facts of each case, which may differ on a case to case basis. 

Secondly, force majeure clauses are not uniform and are drafted in different legal languages. The expression force majeure by itself only connotes acts of God like the fury of nature but it has been expanded to include several other situations and factors like non-availability of raw materials, strikes, lockouts, governmental actions, etc. The definition of force majeure should be split into two parts, one pertaining to acts of God like natural calamities (floods, earthquakes, oppressive heat or severe wintry conditions) which make the performance of a contract impossible. The second part should be for reasons beyond control—which are manmade situations as indicated above. These situations such as complete shutdown, non-availability of raw materials, strikes and lockouts, government regulations or new laws coming into force are factors which make the performance of the contract impossible. There can be a statutory definition introduced in the Law of Contracts to encompass the above two essential features, which are now commonly and erroneously called force majeure. 

The COVID-19 has impacted the fulfilment and performance of contracts to a considerable extent. It has affected all contracts entered into the Aviation Sector, Hospitality Sector and Tourism with en masse cancellations taking place resulting in grave financial losses to the business. There has been an adverse impact in the banking and financial sector due to the inability of the debtors to make timely repayment of loans and interest. To some extent, this has been alleviated because of government and RBI intervention putting a moratorium till 31st August 2020 thereby implying that any default taking place in this sector would not be treated as a default during the period of moratorium. This is not at all a satisfactory solution as the impact of Covid-19 is not confined to the period up to 31st August 2020 but it will continue to be felt for at least another one year. Business and Industry have to be helped by the banking institutions so that the Insolvency Banking Code does not get attracted and companies are not wiped out of existence. Same is the impact on the entertainment industry. Entertainment industry including the film industry has a huge work force and there has been a severe crisis insofar as employment is concerned with thousands of employees being either laid off or termination of services or requiring of employees to go on forced leave or non-payment / reduced payment of salaries during this period. The issues regarding the adverse impact on labour and employment are spread over all activities in manufacturing sectors, services sectors and marketing sectors. 

Sir, in these ‘unprecedented times’ Mr Prashant Bhushan has taken what can be called an ‘unprecedented stance’ in view of Contempt of Court vs Contempt of his Conscience. While your comment “You are scuttling the voice of the entire legal profession” does shine a clear light on the current events, would you please share your thoughts on the subject with our readers.

My views on the tweets of Mr Prashant Bhushan and the orders of the Hon’ble Supreme Court are well known. While no one has the right to denigrate the judiciary as an institution it is also at the same time clear that any criticism about the functioning of an institution cannot be treated as contempt of the court. This is mainly for the reason that the criticism is on the functioning of the institution and not with regard to the institution itself. The criticism is aimed to improve the functioning and image of the institution and accordingly such criticism should be welcomed as it gives an opportunity to the institution to introspect and to look into the shortcomings if any in its functioning. However, any mala-fide action aimed at any particular judge with an intention to malign him / her cannot be encouraged or supported. 

Prashant Bhushan’s tweets / conduct is not aimed at maligning the judiciary as an institution. These tweets ought to be considered as a suggestion for the judiciary to look into the issues raised. Prashant Bhushan cannot be held guilty of contempt of court. Independence of judiciary depends upon and rests upon the independence of the legal profession. Judiciary cannot be independent if the legal profession does not remain independent. The legal profession has the legacy of contributing significantly not only in the struggle for independence but also in the economic growth of the country and strengthening of the rule of law in the country. Any honest criticism should be given due consideration and no attempt should be made to interfere with the independence of the legal profession. 

From the treasure trove of your experiences, what is one piece of practical advice you would give to someone starting out as a lawyer or looking to specialize in a particular field? 

My advice to budding lawyers is to get familiarized with all branches of law initially. In other words be a general practitioner to begin with and do not look for any specialisation in the initial stages of one’s professional life. Specialisations would come naturally and automatically given the aptitude of the young lawyers for the   practice of law such as litigation (civil or criminal), corporate law, consumer protection law, labour / employment laws, constitutional law, intellectual property law, information technology law and real estate laws. A lawyer has to know much more than the subject in which he / she proposes to specialise. One must have a good overview of laws applicable in the country. It would help in the field of specialization which the lawyer is engaged in. 

Whenever I visit the law schools (which I do frequently – at least once in a month) as a part of the giving back to the society I always advise the senior students who would eventually become lawyers that they should not confine their study / research to the law books but should seriously also study literature, works of economists and historians, and global developments which take place contemporaneously for the reason that practice of law has become a global activity. 

As lawyers, what is the number one way we can make a substantial difference to the future of our country? 

One way lawyers can make a substantial difference to the future of our country is to keep at the back of their minds the needs of the society – how to give back to the society. This applies to litigation lawyers as well as to the corporate lawyers / law firms. They should help junior members of the profession to grow, they should interact with the law schools, and undertake pro bono activities. 

Mr Bhasin, would you please allow us a peek into your life outside of work and share your interests or hobbies that keep you busy or help you unwind when you are not working? 

I am a good student of literature and I read a lot. My other interests are watching good movies. There is no time for hobbies as my spare time is spent lovingly with my family (my wife, my son, my daughters, my sons-in-law and my grandchildren besides my own siblings). This helps me in unwinding. At professional level I unwind when I undertake activities to promote and strengthen the profession in the country either in my position as President of the Bar Association of India, President of the Society of Indian Law Firms, Chairman of the Chartered Institute of Arbitrators – India, Chairman of the CII Task Force on Legal Services. I also contributed significantly to promote freedom of expression as Chairman of Films Certification Appellate Tribunal.

One of my biggest achievements has been to publish and bring out the six hundred pages Compendium on ‘70 years of the Constitution of India’, a publication which has been edited by me and the First Copy has been presented to His Excellency The President of India. All these activities not only keep me busy but also help me unwind. 

Thank you so much for taking the time for this interview, Mr Bhasin. As a final note,  would you please recommend to our readers your favourite book, quote, or movie that left a lasting impression on you.

My favourite book of recent origin is Fali S Nariman’s “Before Memory Fades”. 

I believe in the quotation of Aristotle “At his best man is the noblest of all animals: separated from law and justice he is the worst”. 

The movie which has left a lasting impression on me is late BR Chopra’s “Naya Daur” – a symbolic movie of that time highlighting many features of our complexities – embellished by superb performances by Dilip Kumar, Ajit and Vyjayanthimala.

Speaking of Books and Mr Nariman, would you please share a few words about your pictorial coffee table book, your favourite parts in particular and its release by Mr Fali S. Nariman. 

The book titled “Lalit Bhasin – A Lifetime Dedicated to Law” published by Matrix Publishing Group captures my life from pre-partition days as a child in Rawalpindi to my shift to Delhi and becoming a part of Delhi legal circles.

Life was not a bed of roses after Partition when we were uprooted from Rawalpindi. It was a period of struggle. What I have tried to convey in this book about me is that one can start from scratch and yet achieve one’s goals if one has a mission in mind and work towards it.

My favourite part in the book is [the anecdote I shared earlier about] my role in getting nearly a hundred lawyers released from Tihar Jail when during the Emergency in 1975 their chambers in Tis Hazari District Courts were demolished alleging that those were unauthorized. When the lawyers protested they were arrested and put behind bars. At that time, I was Chairman of Delhi Bar Council. I had to use my efforts, my persuasive skills and my appeal to the conscience of the PMO to get the lawyers released. This was a big relief.

One has to learn a lot from Fali S. Nariman. One great and noble feature of Fali S. Nariman’s life is his love and concern for his wife and his open recognition of her role in his life. I had the privilege of being a part of hundreds of functions which we held under the auspices of the Bar Association of India and other organizations during the last nearly 5 decades. In almost every speech or address or remarks which he made during these events, he never forgot to mention Bapsi Nariman’s name even if he had to go a bit out of context. This was remarkable. At the time of releasing this book, he again remembered Bapsi (who passed away a couple of months ago) and he said that he was very happy to see many pictures of my wife Nina and Bapsi in the book. Most of us do forget the important roles that our wives play and the care and concern they show to us – the menfolk. Fali S. Nariman is a remarkable exception and that is what makes him a great human being.     

I have [also] brought out as the President of the Bar Association of India, a Compendium of Articles on 70 Years of the Constitution of India which contains about 50 articles by eminent people. This is a 600 page book which was presented to the Hon’ble President of India by me on 31.08.2020 at Rashtrapati Bhavan, New Delhi.  

You are such an inspiration, Sir! Thank you so much for sharing your life's work with us and for taking us all on this marvellous journey down the memory lane, Mr Bhasin. We look forward to reading your book as well as the prized articles in the Compendium. 

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house

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