Ashima Ohri

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

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In Conversation with Faisal Sherwani, Partner, L&L Partners Law Offices and Advocate-On-Record, Supreme Court of India

Top lawyer Faisal Sherwani shares with Ashima Ohri of BW Legal World the story of his tryst with law and his expert views on start-ups in India, the need to revisit archaic laws regulating the Gaming Industry, and more in this candid interview.

Faisal, would you please tell us where did this illustrious journey begin and at what age did you decide to study law. Please walk us through your early years of education and the decision of becoming a lawyer. 

Well, my parents had the typical middle-class aspirations for me i.e. that I should study medicine or engineering. But I think I had a taste for law from a rather early age and my parents were astonishingly supportive, which was clear from the fact that they ultimately granted me the respect and complete freedom to make my own intellectual choices. I recall, after my basic schooling, I had developed an instant fascination for political thought, history, and economics – if not earlier. I was drawn towards writings which advocated freedom of speech, religion, thought, as also life and liberty of the individual. And before I knew it, I was drawn towards law.  

Right after the 10th grade, I was introduced to some of the writings of the great British liberal thinker, John Stuart Mill – I recall reading part of his essay (On Liberty, 1859) where he compared silencing the expression of one individual as being tantamount to robbing the entire human race. At that time, there was nothing more powerful for me.   

And if you have a taste for these basic human liberties, how they are to be safeguarded, and what they truly mean – you will necessarily, find yourself being drawn to constitutional law and everything else that surrounds it. So, the bells and whistles aside, I think that is how it started for me!  

I attended law school in my hometown at the Faculty of Law at the Aligarh Muslim University at Aligarh. I have very fond memories of my time there. It was an extremely lively place to study law and I remember it to be a delightfully multicultural place too. You see, the university at Aligarh does not just attract the urban elite, but students from all across the country and some from abroad as well. It provided the perfect melting pot, if you will, to exchange ideas and views as also to understand each other. After all, that is what a university education should be, and I was fortunate to get that. One of the most important things that I learnt at the Faculty of Law, AMU, was that even as friends – we can disagree. It was there that I first started developing those liberal thoughts and ideas.   

Thereafter, I did my LL.M from the George Washington University Law School (GW Law), Washington D.C., which I attended on a merit scholarship. While there were many differences – a student belongs in a university and a university, to a student. So, the transition wasn’t a problem, at least to my mind.  Here I learnt to admire, the age-old technique i.e. the Socratic method, where the classroom experience is a shared dialogue between the teacher and the student, thereby ensuring that both are responsible for pushing the dialogue forward through questioning. 

Also, practising law has always been my first love. I used to dream about it in law school and couldn’t wait to start once I graduated. I had those romantic notions about the wise counsel representing his client and ensuring that justice is delivered. While reality can sometimes be a bit more fluid, you will certainly get ample opportunity to experience and live that role. And in many ways, I think my education is still continuing by virtue of practising law and the mere process of living.  

Who have been your guiding North Stars and the biggest inspiration in this journey? 

Fortunately, in my case, the ‘North Stars’ haven’t been rare! I’ve been a happy scavenger that way – observing, measuring, weighing, picking up and learning what I can from whoever. Since I am a first-generation lawyer, I had the advantage of learning from anyone I wanted. Of course, I don’t mean this in a disparaging way – I mean there were no rules, no restrictions and no limitations. As a law student, I was fortunate to have been taught by a number of fine academicians both in India and subsequently, abroad as well.  During my law school days, I also picked up and learnt what I could from the lawyers at the local courts in my hometown.   

But more precisely, after graduation, I started as an apprentice to a very respectable Senior Advocate, Mr Rakesh Dwivedi. And really, no mention of my career is truly complete without reference to his contributions. Many aspects of the law apart, more importantly – I learnt from him, how one must conduct himself in the profession as also that sheer hard work and long hours is the lowest common denominator.  

Thereafter, I had a longish stint at Parekh & Co. i.e. a boutique law firm in the New Delhi area. There were several opportunities to learn and I had many rich experiences during my time there. Since it was my first experience in the office of a solicitor, I learnt first-hand how to manage clients, understand their needs but also to draft and draw papers. I am grateful to both Mr. Sameer Parekh, Managing Partner and Mr. E.R. Kumar, Partner at the firm in this regard. I might mention that it was here that I had decided to prepare for and attempt the Advocate-On-Record exam held by the Supreme Court. You see, Mr. Parekh himself is an AOR and there was ample occasion to train and learn. 

From the perspective of pure intellectual rigour, I must say that I was greatly influenced by the writings and thoughts of my teacher, Professor Faizan Mustafa (currently the Vice-Chancellor of NALSAR University of Law, Hyderabad) who had formally taught me constitutional law at the Faculty of Law at AMU, but informally I think I owe him a far greater debt.  Equally, I should quickly mention the contributions of Dr. Susan L. Karamanian, to my academic development. She was the Associate Dean during my time at GW Law. As also those of Prof. Joshua I. Schwartz, also at GW Law, who taught me that there is always more to statutory law and legislation than meets the eye! It’s been a decade, but to this day, I can’t read a statute without thinking of him.  During my formative years, I was also fortunate to have been guided by Hon’ble Mr. Justice Allah Raham (Former Judge at the High Court of Judicature at Allahabad) who took a personal interest in my professional and intellectual development.  

Undoubtedly and more recently, at the firm – Mr Rajiv K. Luthra, Managing Partner and Mr. Vijay K. Sondhi, Senior Partner have been constant pillars of support and guidance. There are of course, countless others who I would not want to name in extenso – but they have all definitely left an indelible mark on me.  

Would you please tell us more about the array of work you handle at your firm? 

‘Array’ is certainly the right word! In an attempt to justify the rather wide variety of work that I do, I take constant refuge in Lord Henry Brougham’s famous quote: ‘a lawyer must know everything about something and something about everything’. I am quite certain that he had a dispute resolution lawyer in mind, for the simple reason that despite our tastes for a particular area of law – more often, circumstances deny us the luxury of solely concentrating on one subject. 

Nonetheless, I have no regrets at all, and I find this to be an extremely apt exposition of how a well-rounded lawyer should be. While we are entitled to our preferences and inclinations, our duties as general-lit practitioners demand that we be equipped to speak and be able to advise on most issues – rather than some. 

And happily so, as a dispute resolution specialist and a court-room practitioner, my responsibilities extend (or are confined, if you like) to advising and acting for clients on a range of issues and subjects such constitutional law aspects, arbitration laws, corporate, commercial and insolvency laws, labour legislations, technology and gaming laws, white-collar crimes and penal laws.  

But for the record, there is comfort in the fact that my areas of practice are a bit more limited in comparison to those of firm – it, of course, being a full-service law firm. 

Would you please summarily tell us the current status of the sectors of the economy you work in, the roadblocks in our path and the way forward? 

Most of the more traditional (or now, commonplace) sectors have undeniably suffered on account of the recent pandemic – be it the transport, tourism and hospitality, aviation, automobiles and real estate.  

But there are sectors which have done exceedingly well – take for instance the gaming industry. I have had the good fortune of advising some of the more exciting upcoming enterprises in this domain. After all, it is the age of the hand-held smart phone and with the rapid growth in digital infrastructure, communication technology and the internet – we are in a constant state of play! As opposed to the other industries, the Corona virus induced lockdowns have in fact provided the perfect environment for the age-old indulgence i.e. in the cozy privacy of our homes. Doubtless, online gaming had seen a steady growth in India even before the pandemic.  

The only roadblock to speak of is the regulatory framework itself. Unfortunately, gaming is still treated as a bit of a ‘(s)industry’ even in our times and the legislation and governance qua gambling continue to be shrouded in utter hypocrisy. On a qualitative appreciation, you will see that the current laws in the domain seek to enforce a subjective morality.  

Broadly, the law carves out a distinction between games of ‘skill’ as against those of ‘chance’. The latter variety is still treated as tantamount to gambling and there are consequent provisions to punish those indulging in ‘speculative ventures.’ It all goes back to the Victorian era perception that those indulging in gambling are prone to commit crimes such as “theft and even murder”.  

But, in my opinion, there is an inherent flaw in the test itself. Permit me to say, ‘skill’ – much like ‘beauty’ really, lies in the eyes of the beholder. Subjective and artificial tests such as these are anti-industry and enterprise. Even today, the majority of our governments in the States continue to be disinclined to legalize gambling; but interestingly, many run their own lotteries. This is pure hypocrisy. 

And the laws relating to gambling, are only an example of the larger problem. As a mature democracy, our policies should also be driven by law, it is high time that we revisit such archaic and subjective standards.  After all, modern legislation as opposed to the laws of God or those relating to the Victorian era, should treat us as informed adults and respect individual choice as also accommodate the sentiment that as adults, we should have the final say in matters concerning ourselves, and our bodies and minds.  

Would you please share with our readers your expert views on ‘Start-up India: Grappling with the ideals and realities of the Indian legal landscape’. 

I have had the privilege, rather the pleasure of working for and advising a number of ‘start-ups’ and entrepreneurial ventures in their nascent stages over the years, such as those in the transport aggregation sector, the agri-produce sector, the gaming industry as also the technology sector in general.      

And so, the initiative of the Government of India i.e. “Start-up India” stood as a happy testament to the sympathies, which the executive branch had towards fresh ideas and small private enterprise. After all, the government of the day recognised that start-up initiatives could very well be the engine that drives our vibrant and diverse economy.  

But despite the heart being in the right place, there is some amount of realisation today that the initiative hasn’t been able to attain its full potential. To my mind, much of this is on account of the fact that the legislative framework in most sectors has failed to keep pace with the will of the executive branch. And in a parliamentary form of governance – this can spell doom.  

Many of our statutes relate back to the colonial era, many of them relate back to the prohibition era and many of them relate back to the era of a permit raj where the ruling dispensation of the day would decide who could do business and in what form. And while antiquity alone, should never be the basis to revisit a statute – the fact is unnecessary complications, a culture of red-tapism are the usual by-products of out-dated laws that are not in keeping with the hopes and aspiration of current generations. Any regulatory environment of the sort is less than ideal for a modern-day start-up to flourish.  

There can be no gripe with the reality that the State should be and is empowered to regulate. But since the question you pose is one about “ideals and realities” – permit me to make a bold assertion as a student of constitutional law i.e. that ideally, the State should not regulate private enterprise at all; rather they should be granted the widest possible liberty to realise their full potential with really nothing more than the forces of demand and supply having a say in how things play out.  

But we are conscious of the realities – that private businesses too, should be conducted within the bounds of good taste, responsibly, while sparing a thought for the little man and therefore some amount of regulation may inevitably be necessary.  

Of course, there is a legal yardstick in order to counterbalance these competing interests i.e. that the State should permit the private enterprise to be conducted in the ‘least intrusive manner’. But our contemporary experiences are replete with examples of small businesses, start-ups and even industries in growing sectors not being extended this basic guarantee.  

Like I said, much of the blame is to be placed at the doorstep of the legislations of the bygone eras which I spoke of above. These suffer from an inherent defect i.e. the intrinsic tendency to run to extremes while endangering liberties – including those that guarantee the right to trade freely and without the excessive intervention of the State. The sentiment I think, is reminiscent of the social politics of the bygone eras when these laws were drafted. It is here that law has again to step in. Though generally speaking, law is the means of enforcing policy, it must also serve as the basic guide to policy itself, so that fundamental virtues such as justice and liberty can be preserved.  

What in your opinion has been the biggest change or challenge looming over the legal landscape of India amid COVID-19?  

I was asked a somewhat similar question by a young law student who was concerned about her career and future prospects on account of the effect of the unforeseen uncertainties owing to the current pandemic.  

I had responded by saying that there certainly is, some amount of uncertainty but that there is no reason to assume ‘doom’ over a bright professional career or academic prospects, which to my mind – continue to remain bright and vibrant as ever. 

History tells us – (i) that this isn’t the first pandemic; (ii) the human race is resilient. Bright minds, careers and professions have prospered despite adversity.  And so, this temporary phase, too – shall pass.  You can either elect to view the current scheme of things as the glass being half empty or may choose to see that it is half full. I chose the latter and I think – so should everybody else.  

But more directly, let me say that as lawyers, we have a tendency to live in a distant past, not so much in the present or the future. The Covid-19 scenario has sensitized us all that we are citizens first and that we all owe a duty to the society in which we live. I think the present circumstances justify a strong reiteration of the important function of the legal profession.   

What can law firms do today to ensure they survive in an era of disruption? How is your firm staying futuristic? 

I think the concerns that surround ‘disruption’ are a bit overrated. Disruptions are not novel by any stretch of the imagination. In fact, William Forsyth had long back predicted in Hortentius the Advocate (1879): “As the relations of society continue to grow more varied and complex, so will the lawyers’ profession become correspondingly more essential in the adjustment of any differences that may arise.”  

And so, our relationships, professional engagements and work was always bound to get more complex with time and the development of society. Therefore, some amount of disruption, change, shift from the usual may be taken as a given at all times. This is in fact, not something to be concerned about or frowned upon, but rather something that should be celebrated.  

But we must be in a state of readiness to adapt constantly – to changes, disruptions, and tutor ourselves to be comfortable because of these disruptions (or despite them). I don’t mean to suggest that laxity is the way to go; but rather, to arrive in a zone where disruptions do not disturb us, and we continue to be as productive as ever. Of course, those of us who prove incapable of adapting are likely to become irrelevant. That is the sad but honest reality.  

Any change of circumstances demands that we examine the situation from a new angle. It is true and there is a good reason that clients are no longer as steadfast and loyal. Competition is far more profound; and should business interests demand seeking counsel elsewhere, the average client will no longer hesitate or think twice, if we do not serve them well.  

The firm is of course, greater – but nonetheless, it is a sum of its parts. So as individual professionals, we must constantly endeavour to be in a position to provide a complete view of most aspects. We must strive to be more complete professionals, learn to travel beyond the confines of the short-sighted brief, enlarge our horizons – of course, each according to his own temperament, inclinations and limitations. Many exciting new changes are indeed taking place, we must embrace these, be part of them – at least, those that we believe to be for the better. And all disruptions aside – wise advice and earnest service never go unnoticed!    

Other than work, what else keeps you busy? Would you please share your other interests and hobbies with our readers? 

Primarily, I enjoy reading. If I am not practising law, that is what I do most often. It follows, I think, a somewhat indiscriminate, yet eclectic pattern. My earliest recollections of being hungry to read was in order to develop and inculcate a critical and analytical approach to issues. This mirrors my approach to law and life itself. And in very many ways, if you choose to develop it - this interest will form the basis of your capability to the frame; and hopefully thereafter, formulate your own judgments and opinions. I can speak for myself; it has very much been so.  

That apart, I have always had a taste for travelling, however, the current pandemic has caused the introduction of a ‘monkey-wrench’ in most of my well thought out plans. That is a disruption for you!  

But all is not lost, the circumstances have generously furnished abundant time and opportunity to write. More recently, I have started to explore satire as a useful tool of communication. If something can make you think and laugh at the same time, in my view – that is a job well done! I attempt to engage on issues related to law, our polity and other socio-economic issues. Most of my works grapple with the realities of our times and the ideals that we aspire to reach.  

Many Congratulations on joining the BW Legal World Elite 40 Under 40 Club of Achievers 2020. What to your mind has helped you get to where you are and what advice would you have for others who want to set off in a similar direction? 

While I am absolutely honoured to have featured in the elite list, I am equally conscious of the fact that it is too early in the day to stop and look back. But I think matters were helped by the fact that I was always prepared to learn, adapt and more importantly, I took failures in my stride (while, at the same time learning from them). The profession itself helps you to deal with failures and hurdles. I say this all the time – you may fall every now and then, but the profession permits you to get up, dust yourself off and try all over again. So, in a sense, the profession is kinder to the more resilient ones!       

Coming to the last bit of your question, I think it is necessary for any litigation professional to develop a scientific temperament. You should be able to communicate well (mind you, this includes learning when to be silent – despite what people may tell you, talking endlessly is not a first-rate qualification for being a lawyer). More importantly, you should be able to deduce rational conclusions and make reasoned arguments. Last but not the least, there should be a moral fabric to you. While you might be brilliant, a courtroom lawyer in particular, should also inspire confidence and trust. Contrary to popular belief, it will not help if you are the deceiving type – all your brilliance and intelligence will come to nought, if a judge finds you to be so. 

Finally, you should intrinsically develop, imbibe and practise the three C’s, which I think are the basic qualities for any good lawyer i.e. remaining cool, calm and composed – irrespective of circumstances and challenges. For only then would you inspire confidence? 

Is there anything else you’d like to share with our lawyers of the future, any golden piece of advice from the treasure trove of your experiences in the industry? 

Well I’ll share something not from experience, but something that K.V. Krishnaswami Aiyar had once quoted out of the Cornell Law Quarterly, Vol. XXIII that has stayed with me. It was stated, in the context of law and the practice of law: “For law is not a matter of going through judicial processes, of shifting losses, of collecting judgements, or of drawing a set of satisfactory papers. These are means only. Behind the court, behind the Judge, beyond the corporate mortgage and the file of documents, there are endless human beings desiring to live, to work, to realize themselves. Only as our procedures, our papers, our legislation and our administration permit an even greater number of people to satisfy their lives is our technique useful. It is for this, and only for this, that our profession exists.”  

And, my limited experience tells me that this certainly is, as good a piece of advice that any lawyer of the future can hope to get. We can take our techniques and prowess, if at all – to be in utter failure and our time in the profession to be in sheer vain, should we fail to make the lives of the people that we come in contact with (either professionally, personally or in whatever measure in public life) – better, as better can be.    

As a final note, would you please recommend to our readers your favourite book or movie/series that left a lasting impression on you? 

Generally, I find myself disinclined to make exhaustive recommendations on ‘what’ anyone should read. That really is a matter of choice on which I would defer to each and every one of your readers. After all, the individual is the best judge of what material appeals to her and what she would like to read. I think it is a very personal matter and lies in the exclusive domain of the individual.  

But since you asked, I shall take the bold liberty of making a one-time exception and suggest that you read “HOW TO READ AND WHY” by Harold Bloom. It is a bestseller and I found it to be delightfully entertaining as also illuminating. But more importantly, it may help you decide ‘what’ and ‘how’ you should read – by and for yourself, as you should!  

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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