Interview with Ruchira GuptaPublished: November 6, 2012
Dear Ruchira, can you introduce and generally characterize Indian law?
India is a common law country. Law in India has evolved from religious prescription to the current constitutional and legal system India has today, traversing through secular legal system and the common law. From the Vedic Age onwards to the modern times, India has had a history of recorded legal system. However, it was during the British rule that the laws were properly codified into various branches and the justice delivery system was streamlined into an Apex Court, various high courts and subordinate courts. The Constitution drafted and adopted after the independence has steered the direction of law in the country from favouring a few rich and powerful towards the social welfare system where all individuals are treated equally and the common man is not afraid of approaching the courts for his difficulties. It is a combination of codified laws and judicial pronouncements over the years.
The Constitution of India has made judiciary fully independent of the legislature and the executive wings of the government in its functioning. The government or the ruling political party has limited say or role in functioning of the judiciary or the appointment of the judges for the various courts. There is a different and independent procedure of appointing the judges which are officially appointed by the President of India.
There are about 1200 Acts covering the whole aspect of life- personal, public, corporate, administrative, industrial, international relations, et al.
Indian law is based on English common law. Is there a deeper connection between the British and Indian law or have the legal developments gone a different direction since then?
Although India did have some written legal system, yet the laws were codified and justice delivery system was put in place by the British during their rule in India. In fact, some of the Acts are still continuing from the time the British first drafted them! Yet, now Indian legal system has evolved on its own and is quite organic in nature. New legislation has been enacted and older ones modified to suit the present-day needs. Besides, judicial precedents also form a strong backbone of the Indian legal system.
However, both the Bar and the Bench in India still quote and rely on judicial pronouncements of the English courts and other common law countries for various branches of law. For codification of law, the legislature as well as the regulators continues to look at the prevalent system of other common law countries, for example, Corporate Governance, Competition Law, E-Commerce, and others. Regulations in the area of foreign investment are more tuned on the basis of the needs of the economy.
Constitutionally, there is marked difference between the English and the Indian legal system, primary one being that India has a written Constitution while UK does not have a written constitution. The relationship between the monarchy and the government is not statutory whereas all the organs and administration in India is governed by the Constitution of India.
Does the federative structure or religious composition of India have an influence on Indian law?
Indian Constitution has attempted to unify the diverse nature of the Indian society which consists of many different languages (22 languages are recognized by the Constitution itself, although there are plenty more), varied cultures and diverse religions by adopting that India is a democratic, socialist, secular and federal nation with a union government at the centre and the governments in each state constituting the federation. To avoid conflicts in governance, the Constitution has demarcated the powers of the central and state governments into three separate lists – Union List, State List and Concurrent List. The central government is empowered to enact laws and take policy decisions on the subject matters given in the Union List which is applicable to the whole of India. Similarly, the state governments can enact laws on the matters related with the respective states. The Concurrent List details the issues where both Centre and the state governments can take decisions on and in case in there is a conflict between the two enactments, then the enactment of the central government take precedent over the state enactment. Hence, federative structure of the country with respect to law and governance is very transparent, lucid and certain. Therefore the federal structure does impact the legal system to the extent that there will be different laws among states on matters covered in the State List. But practically these laws do not hinder the commerce and business.
Religious composition of the country has no bearing on the law making as India has declared itself a secular country meaning thereby that all religions are equally significant and independent and enjoy complete freedom in their practice by the citizens. The country has not adopted any one particular religion as its state religion. In matters related with personal law, the covenants or the practices that each religion prescribes for its practitioners are followed by the courts as long as it does not override the public good and the general laws of the country which are supposed to be followed by everyone.
Specifically, in matters related with corporate laws and investment, religion plays absolutely no role as business laws are secular. At the judiciary level, the judiciary is centralized in the sense that the judges to all the courts are appointed by the President in consultation with the Supreme Court judges. The state governments have no say in this. If an individual or a company is not satisfied with the orders and rulings of the lower courts, they can always appeal to the Supreme Court which is fair in its approach and delivery of justice.
Where do you see the greatest weaknesses of Indian law? What difficulties you face in its practical application?
Delays in the justice delivery system, corruption in the lower and middle judiciary are the two main weaknesses of Indian law. Further at the policy level, bureaucratic approach and the slow decision making is again a stumbling block. At the same time, over a period of time Indian policy makers have made substantial efforts to smoothen the business environment for foreign players. It has been observed that those foreign entities who have been able to withstand the initial hiccups have realized substantial business gains for their business.
What kinds of disputes does your law office handle?
Our law firm consists of lawyers who are experienced in matters related with company law, laws related with capital markets, investments, conducting legal due diligence, assisting start-ups with company structuring and formation, regulatory compliances, consumer protection, drafting and reviewing of agreements and any other specific matter as and when it arises.
Do you also help foreign businesses operating in India? What do you solve most often?
Most foreign businesses need legal advice on entering India and to comply with various legal and regulatory compliances. The regulatory structure in India comprises various authorities having jurisdiction over the companies, both Indian and foreign, such as Reserve Bank of India, Ministry of Corporate Affairs, Registrar of Companies, Income-Tax authority, Registrar of Trade Mark. Any company, Indian and foreign, has to deal with these authorities separately as well as simultaneously. Our law firm endeavours to provide most efficient legal support to both Indian and foreign companies.
What would you recommend to Czech entrepreneurs who are considering working in India? What are the major differences or obstacles to be expected and the most common errors committed by foreign entrepreneurs?
My recommendation is that India is a great place to establish business at. There is so much of potential here and work environment is conducive for foreign companies to work in India. Availability of English speaking skilled and educated work force is an added advantage. The preparation required is becoming aware of the legal framework as statutory compliances are a must and attract heavy penalty if not adhered to. Ignorance of law is not an excuse. It is imperative to carry out a thorough market research before entering the Indian market to understand the local conditions across the country. For this our law firm can arrange interviews with the potential customers and competitors for your industry.
Some players tend to look at India as a short-term approach. This is one of the biggest mistakes to make for establishing India as potential market. An entering player should have a long-term commitment by investing in and developing a strategic approach. Therefore, it is necessary to have both short-term and long-term goals.
Infrastructure issues like electricity, air quality, water, roads, transport area a few thing which is likely to appear as an obstacle to doing business and living here. But over time, these issues become part and parcel of doing business in India. At the same time, foreign nationals coming to India get mesmerized by its rich and diverse culture and heritage and like to spend time here despite all the shortcomings. The weather conditions and climate is something which appeals to foreign nationals, the variety and choice of holiday destinations within the country, adventure sports, beaches, mountains, all are available here.
Further, cultural sensitization is another aspect which any foreign company should plan for, for both its Indian employees and foreign employees.
For Czech entrepreneurs, one of the biggest concerns is legal proceedings in India. Are these fears justified or would you say that lawsuits are handled in a similar way as in Europe?
Indian judiciary is fair and non-discriminatory, more so at the High Court and Supreme Court level. Besides, there are special judicial forums which deal exclusively with matters related to them thereby reducing the time and legal procedures. For example, for income-tax, company law, capital markets, excise tax and others, there are special tribunals to deal with disputes on these matters. Appeals from such tribunals go directly to the High Court or the Supreme Court.
However, recourse to court for settlement of disputes among business associates is best to be avoided as there is a large back-log of civil cases in courts at all levels. Further, not related with courts but on the regulatory approval side, lot of industry specific registrations and local regulations needs to be complied with before commencement of a business unit.
Another important question is related to the patenting of products. Do you think the entrepreneurs can protect their technologies effectively?
Registry of Trade Marks and Patent is an online portal where applications for registering a trademark and patent can be filed. Patent searches and registration applications are filed online and all payments are made online thus limiting the use of middlemen and streamlining the whole process of patent and trademark registration. Preventive measures can be taken to protect and safeguard the product and technical know-how. The Indian legal system provides sufficient means to protect the interest of the entity which registers a patent. A patent is registered for 20 years and is renewable every year.
It is said that India is a country of differences. How do lawyers live in India? Does it make any difference that you are a woman?
The legal fraternity in India is highly regarded and respected. There is no discrimination if a woman practise and argues in a court of law or sits on the Bench. In fact, many women lawyers have risen to be the judges of the High Courts and Supreme Court of India.
And the last question, can you tell us why did you decide to be a lawyer?
My choice to take up law as a profession has many reasons. Foremost reason is that law excites me. I am able to meet different people, have meaningful discussions with them, do my bit to find solutions to difficulties faced by the companies and if my opinions help them succeed, I get more motivated and excited to work.
With Indian economy becoming more in sync with the global economies, there is huge potential for lawyers to be a part of this globalized environment. There is lot more scope to work with the vast range of subjects which was not there earlier.
Then, it provides me the independence and freedom to work and flexibility of choosing the type of work I want to take up in combination with the hours of work I want to put in. So, this way I am able to maintain a work-life balance.