India’s legal landscape is marked by a myriad of ongoing developments and pressing issues. These legal developments encompass many areas, from legislative changes to judicial decisions, shaping the country’s legal framework and societal dynamics. Senior Advocate Sanjoy Ghose of the Supreme Court of India and the Delhi High Court sat in conversation with Anwesha Santra of The Statesman, where he delved into a few of the key legal developments and issues facing India today. Ghose is also the author of a semi-autobiographical book, How Gourango Lost His O: A Non-story, where he provides insights into the lives of litigants, lawyers, judges and the judicial system. Excerpts:

Q: The Bharatiya Nyaya Sanhita, Bharatiya Nagrik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam are poised to supplant the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act. This overhaul, replacing the Britishera laws, is slated for implementation on 1 July this year. What are your thoughts on these impending changes and their potential impact on the legal landscape of the country?

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A: The recent changes in criminal laws are expected to have a predominantly negative impact rather than a positive one. These laws seem to have been made primarily for the sake of making, to create a narrative of revolutionary change. The longevity and widespread adoption of the existing criminal laws across countries such as Malaysia, Singapore, Bangladesh, Pakistan, Sri Lanka and Mauritius indicate their well-thought-out nature. Upon closer examination, the changes implemented appear mostly cosmetic, with sections merely renumbered or reshaped in many cases. However, there are certain significant changes that are quite concerning. For instance, the definition of a “terrorist act” in the Bharatiya Nyaya Sanhita (BNS) closely mirrors that of the Unlawful Activities Prevention Act (UAPA). This similarity increases the risk of potential misuse of the law, as it grants discretion to a superintendent of police to charge a person under either the UAPA or the BNS. Moreover, the retention of outdated practices in criminal procedures, while neglecting opportunities for meaningful reform, is disappointing. This lack of substantial reform is unlikely to bring about revolutionary changes in the legal system. Instead, it is bound to create confusion and chaos among the legal community, police, and judiciary, who are accustomed to the existing laws and procedures. Retrospective application of new laws will only affect future offences, not past cases. The new criminal procedure law is likely to be followed for future offences, but it remains debatable.

Q: How has the role of technology and digital platforms influenced courtroom proceedings in India, especially in light of recent cases?

A: The issue can be likened to a surgeon’s scalpel: it can be misused, but that doesn’t mean we should discard it altogether. Similarly, there are positives and negatives to consider. On the positive side, transparency has increased with live streaming of legal proceedings, allowing the public to witness court actions and arguments. However, this transparency has led to challenges. Judges may hesitate to ask probing questions or make deliberate controversial statements due to public scrutiny, affecting the natural course of judicial proceedings. Likewise, lawyers may feel pressure to maintain a strong stance throughout proceedings, impacting fair representation in court. Despite these concerns, overall transparency is beneficial for the justice system and public engagement with the judiciary.

Q: In your opinion, what are some of the key challenges facing the Indian judiciary today, and what reforms would you propose to address them?

A: The judiciary faces a significant credibility challenge today, unlike any seen since independence. Recent events, such as lawyers withdrawing petitions due to predictability in certain bench decisions, highlight this crisis. Despite concerns, positive judgments like the one on electoral bonds help restore some credibility, though there is a long way to go. This progress should be acknowledged as a step forward.

Q: Given the implementation of the Uniform Civil Code Bill in Uttarakhand, which now requires the registration of live-in relationships (with penalties of a 3- month jail term and/or a Rs 10,000 fine for non-compliance), concerns have arisen about the possible infringement on couples’ privacy rights. Could you share your perspective on it?

A: The Uttarakhand Uniform Civil Code largely borrows from existing laws like the Hindu Marriage Act, with minimal original additions such as provisions on live-in relationships. However, the clause mandating the reporting of live-in relationships to parents if either of the partners is below the age of 21 by the Registrar infringes on privacy, dignity and the freedom to marry. Furthermore, this requirement can particularly affect inter-caste and inter-community couples, creating hurdles similar to those faced under the Special Marriage Act. The law criminalising unregistered live-in relationships further impacts couples’ rights to choose their relationships freely and may discourage marriage among those facing familial opposition. These implications warrant greater attention and discussion.

Q: Could you shed some light on any emerging trends or areas of law that are gaining prominence in India, and how lawyers can prepare to navigate these developments effectively?

A: The emerging field of technology is witnessing significant growth in various legal branches. Arbitration law is being promoted to establish India as a major arbitration hub. Mediation and intellectual property rights also offer vast opportunities for young lawyers. However, the future lies in artificial intelligence (AI) and technology law, given India’s global leadership in software and IT sectors. Dealing with emerging technologies, cybercrimes and AI will be key legal sectors gaining prominence in India over the next decade.

Q: Speaking of arbitration, what are your views on the increasing importance of alternative dispute resolution mechanisms such as mediation and arbitration in resolving legal disputes, and their impact on the traditional court system?

A: Arbitration in India has sometimes been seen as a remedy due to perceived failures in the mainstream legal system. However, arbitration should be a preferred choice in its own right, not just because the traditional legal system is lacking. Additionally, mediation has emerged as a crucial alternative, given the rising costs and complexities of arbitration. With parties spending significant amounts on arbitration proceedings in luxurious settings, mediation and conciliation have become attractive alternatives. Mediation, in particular, is expected to gain significant prominence in the legal landscape, with specialised mediators becoming sought-after professionals in the coming decades.

Q: There is a lot of diverse commentary surrounding the implementation of the Citizenship Amendment Act. Could you please explain it in simple terms for the general public?

A: Every country has the right to grant citizenship to non-citizens, as we’ve seen with cases like Adnan Sami. The Citizenship Amendment Act (CAA) aimed to expedite citizenship for minorities like Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from certain countries like Pakistan, Bangladesh and Afghanistan, reducing their waiting period from 12 years to five years if they arrived by 31 December 2014. However, delayed implementation from 2019 to 2014 has nullified this benefit. The issue extends beyond CAA alone; the proposed National Register of Citizens (NRC) could render many, including Hindus and Muslims, stateless if they lack proper documentation. While CAA itself may not discriminate against Indian Muslims, the combination of CAA and the impending NRC raises concerns about exclusion and detention based on documentation like it was seen in Assam. The opposition argues that excluding Muslims from CAA contradicts India’s secular values and humanitarian principles of granting refuge based on persecution fears, regardless of religion. One can take the instance of Taslima Nasreen from Bangladesh. This perceived exclusion has fuelled debates about communal biases and intentions behind such laws.

Q. As a senior legal professional, how do you perceive the issue of junior lawyers and interns being predominantly underpaid or unpaid in our country? Many senior lawyers justify this situation by referencing their own challenging learning experiences. However, for first-generation lawyers, surviving on minimal or inadequate pay can prove to be quite challenging. This scenario often leads some individuals to opt for corporate roles instead of pursuing a career in litigation. What are your thoughts on this matter?

A: When I started practising law in Calcutta, senior lawyers told me that we would only receive a nominal allowance of Rs 400, which is insufficient to sustain a legal career. This underpayment creates an oligarchic system where only those with family connections or financial stability can thrive in the profession. First-generation lawyers, especially those burdened with student loans after years of education, struggle to make ends meet with such low pay – of around Rs 5000. It’s unacceptable to expect young lawyers to work for minimal wages or even for free, while other office staff earns more. This disparity highlights the need for decent living wages for young lawyers, a topic often ignored by Bar Associations focused on established lawyers’ interests. The lack of a unified voice for young lawyers further compounds the issue. Many lawyers face financial difficulties and are forced to choose corporate roles instead of litigation due to the financial strain. While some opt for corporate roles for different reasons, the challenges in litigation push many talented individuals away from pursuing their passion for courtroom advocacy.

Q. As a seasoned legal practitioner, what advice would you offer to young lawyers and law students aiming to steer the dynamic legal environment in India successfully?

A: Two words: Be patient. I can understand their desire for quick progress. In this era of rapid social media and technological advancements, the pace of everything has accelerated, including aspirations for success in the legal field. However, our legal processes often move slowly, leading to inefficiencies. It’s common to see recent law graduates and those with limited trial court experience applying for associate roles in law firms. Nevertheless, it’s crucial to maintain perseverance and patience, as success will eventually come your way