Eminent lawyer and senior Supreme Court advocate Gaurav Pachnanda, who practises commercial and corporate litigation was the latest guest on the show ‘Legal Eagle’ with Republic Media Network’s Executive Editor - Law and Governance - Rhythm Anand Bhardwaj. Having practised law at the Jammu and Kashmir High Court in his initial years, Pachnanda went on to become a door tenant at the Fountain Courts Chamber in London.
In the latest episode of Legal Eagle, the senior advocate recalled his experience representing the erstwhile state of J&K at the top court and rekindled his fond memories working under the guidance of late attorney and Union Minister Arun Jaitley. Pachnanda, who is a registered foreign lawyer at Singapore courts, also shared his views on commercial litigation and arbitration in India.
Pachnanda shared that he grew up in the small town of Jammu, in a family of doctors. “Towards the end of my schooling careers, everyone was expecting me to become to doctor. But when I couldn’t manage into a medical college and I surfaced the aspiration to become a lawyer, my father was very encouraging,” he said.
“One of the most interesting things that happened when I joined law college was being introduced to Justice Tirath Singh Thakur, who eventually retired as the Chief Justice of India. At that time, he was a leading lawyer in the Jammu and Kashmir High Court. He took a shine to me and asked me to attend his chambers as an intern. I continued as a running intern in his office for nearly four years. It was a blend of a typical small-town education with a bit of exposure to excellence from time to time,” Pachnanda said.
“I had never aspired to learn in Oxford. One of my teachers in college, Dr Kotwal encouraged me to apply for Oxford and it was a life-changing experience. The law faculty in the University is very strong and the manner of teaching is so different and Socratic. There is a lot of dialogue and analytical discourse amongst all participants. It was a milestone for my professional career,” he stated.
“It was a bit unconventional,” Pachnanda said. “Most of my Indian colleagues at Oxford decided to come back to bigger cities in the country but I was drawn back to my home state. I was also keen on learning the process of rial work and cross-examination, so I went back to my home court where I could have a broader spectrum,” he explained. “A large bulk of my practice was before the district court in Jammu and I joined the chambers of Justice Pramod Kohli who eventually got elevated at retired as a Chief Justice. That was a very good learning experience in the practical aspect of law. I got a very good exposure to trial work and the original civil litigation in Jammu.”
He added, “But as was natural, in about 5 to 6 years’ time, the broader horizon of Delhi started attracting me. In 1999, I met former Union Minister Arun Jaitley, who is related to me through my wife. He encouraged me to start moving out of the state and explores. The seeds were sown that time for me to look outside Jammu.”
Pachnanda said his first experience in Delhi was that I became a part of a leading law firm for 3-4 years. During those years he was doing top-end commercial litigation. Following that, he had done a short stint in the chambers of Mr Jaitley. I worked with him for two years.
“In 2010, when I was offered the opportunity to represent J&K as a law officer in the Supreme Court, I sought his advice. Mr Jaitley said this would make a valuable part of my experience. So, I represented the state in the SC for about 4 years. During that period, I was often able to offer candid advice to the government when I did not agree with a particular course of action. I also took a fair stand in the court, which was sometimes beyond my brief. Not only was it a very good learning experience as an advocate, but I also got to understand the functioning of a government,” the advocate shared.
“In terms of cases, luckily, I was not involved in many political causes. But there are a few cases of great significance. I got the opportunity in connection with the BSF Act, had the opportunity of arguing a very intricate principle of Statutory Interpretation, in which I was opposed by a very senior lawyer. I look back to that hearing as a very satisfying one. It was a very interesting experience in terms of learning of courts craft,” he recalled.
Whenever we talk about commercial litigation and arbitration in India, the starting point has to be an acknowledgement that our civil court system is under a lot of stress in terms of volume. It is over burned, said Pachnanda. Generally, civil litigation is a very long-drawn process and arbitration of course has developed as a substitute for civil and commercial litigation. “In the rest of the world, I don’t think they perceive the two types of litigation as a substitute to each other. They both run parallel,” he said.
“What I noticed from my little experience in Singapore is that there are efforts to focus on developing civil and commercial litigation as a market to provide excellent services. There is a lot to learn from Singapore in these things. Over the years in Singapore has promoted commercial litigation to meet the international benchmark.
That is happening in India as well. There is a significant change in the way courts approach arbitrations in India. But the only thing which I think is lacking is some fresh air, by that, I mean greater interaction at the policy level between professionals and thinking minds in other countries.” he said.
Pachnanda believes commercial courts for commercial disputes are the future. Similarly, conducting arbitrations in a manner that is done internationally will really determine where our ecosystem moves forward.
It is possible to have 3 separate institutions and a very good working experiment, the advocate said. According to him, Even in those systems where it is said that one limb of the state is overstepping its limits, those are discourses that are a part of the separation of powers and each limb of the state complimenting each other. Even that kind of discourse is a positive sign in recognising the roles that the institutions play. “Having said that, we cannot overlook the fact that there can be absolute separation. I still think it is workable in all successful democracies,” he asserted.
Pachnanda said virtual courts have been an opportunity to innovate to upgrade. Very effective and successful hearings are taking place virtually both in India and abroad. Courts and lawyers have adapted to virtual hearings very well. In some sense, virtual hearings are here to stay.
The larger advantage is that it has made us conscious of the importance of technology. It is an opportunity to adapt and accept other tools in conducting hearings – like real-time transcription, he added.
The advocate recalled, “When I was in Jammu, my seniors were very kind to me. But, when I moved to Delhi and had Mr Jaitley as a senior, he took a lot of interest in my professional career. He was a father figure in the life of nearly all juniors who worked with me. In my international practice, I was very inspired and proactively mentored by Peter Goldsmith, who had just demitted office as Attorney General in England. At that time, I was doing a very high-level commercial arbitration both in London and India and during that course he developed a fondness for me. I worked with him on several matters after that. These are the people from whom I have learnt a lot. Not only do I identify with them, I feel that they have a kind of ownership on how I am doing,” he added.
“Other than my own seniors, I really admire (Former Solicitor General of India) Mr Harish Salve. In a generation above us, what he has achieved nationally and internationally is outstanding. I admire the manner in which he can think on his feet and completely develop a new argument. I had the opportunity of working with senior SC advocate KK Venugopal and he has been a great mentor too. He has to be the number one senior among all those in his chamber. The culture of seniors taking a lot of interest in the careers of their juniors still remains. It is one of the finest things in our professions,” said Pachnanda.