Dear Madam,
I read your cover story titled Law enforcement with a great deal of interest (IBLJ, July/August 2009). It records the frustration of many practitioners and clients regarding the Indian legal system and enforcement in general. I think to appreciate the problems facing India one has to look at the historic development of the nation.
Pre-independence (1947) more than one generation of Indians lived under a colonial power, which during its rule completely changed India and the way India governed itself. From small monarchies spread across the nation, the British gave India a common colonial platform. The generation which lived in these times became quite alive to the fact that they would not rule but be ruled and serve. It was not by choice as an option was never given. Despite over two decades of colonization by Britain, the Indian mind could not be colonized and it only took the courage of one man (Mahatma Gandhi) to bring the entire nation together and make the colonizer quit India: one of the rare non-violent rebellions against a highly powerful colonizer. India had done it differently from what the world was used to seeing. During the entire period of colonization, wealth creation was not an option. In fact, the wealth created by previous inhabitants was now siphoned off beyond the Atlantic to the little island called Britain.
Post independence, India became a nation which was to be governed by a people who had become quite accustomed to be being governed. The minds that ruled, in their best wisdom, thought it fit to call India a sovereign socialist democratic republic. The socialist approach ensured that India was neither capitalist (with strong businesses running the show) nor communist (with a strong government). The Indian economy therefore grew (if one could call it that), for a majority of its independent life (from 1947 onwards at least till 1991) as a socialist economy, with a clear mandate that if any wealth is created it shall be distributed amongst the people. A stringent licence Raj ensured that neither was wealth created nor distributed. The term “third world” was perhaps the most appropriate word that defined the country and indeed the country defined the term. Indian business had to literally hibernate during this period, as did international business by simply choosing to stay away.
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1991 brought a sudden end to the long winter hibernation. Overnight the nation was introduced to capitalism. The opening of the economy now for the first time expected its citizens to awaken from their slumber and create wealth. Its citizens responded and wealth creation, one can safely say, has become a national hobby today.
Needless to state that wealth creation requires a certain infrastructure in place, which the country did not have and does not have till date. The legal system is one such casualty. While on the one hand, Indian businesses have responded well and can be compared to the best in the world, the legal system was never designed or equipped to service so many diverse business interests. Resultantly, despite the growth of Indian businesses, they never viewed law courts as an ally to their business development. Many issues which would be disputed in any developed economy were simply ignored in India. I don’t believe there will be more than a handful of copyright law decisions from Indian courts pre-1991. Likewise, there are not even a handful of decisions on patent law during the same period. Cases on trademarks and designs can be found, but only few and far between. So the result of this was that the neither was the legal system capable of handling these cases, nor was there any pressure put on the system to handle such cases. It can be said that the legal system, as far as business disputes were concerned, was also hibernating.
Post 1991 has seen a complete reversal of the situation. While businesses – motivated by profit – grew rapidly, how could one expect the legal machinery, which had been lying idle for over two centuries, to cater to a highly sophisticated business scenario so quickly. I believe that despite the historic background of colonial rule and long hibernation, the system has responded reasonably well but perhaps not well enough. I think the mistake we make in the comparison is that if Indian businesses can compete with the best in the world, why not the legal system. It is a legitimate expectation no doubt.
So where does the answer lie? I believe the answer lies in awareness and that is the single most important ingredient missing or lacking in the system. Wherever the awareness ingredient has been added to the admixture the system has responded and responded well. Having restricted my practice to the field of IP law, I can safely say that Indian courts have passed some of the most path breaking decisions in the field of trademark law. Decisions which have been way ahead of their times and which have been forward thinking. Whenever quick relief is required, Indian courts have responded. Though I have limited experience in the working of international courts, from whatever conversations I have had with colleagues, my opinion is that Delhi High Court is perhaps one of the most efficient courts for IP litigation in the entire world. I have personally been involved in a full trial being conducted with examination and cross-examination of several witnesses and a final judgment pronounced within six months. Indian courts have not hesitated to grant injunctions even in favour of brand owners who have no business in India, a prospect which till date American and British courts hesitate to delve into. Ex-parte injunctions and search and seizure orders are passed almost in routine in blatant cases of IP violation. Courts have granted damages and even punitive damages even in cases where there is no evidence of damage, only to deter counterfeiting activities and counterfeiters. Justice has been handed down impartially and without giving any specific credence to the nationality of the litigant. An American litigant has been given the same justice as its Indian counterpart. How many nations can boast of this accomplishment?
Having said that, the successes of Delhi High Court and others must percolate to other courts as well. I believe if we all develop a culture of knowledge and awareness and attempt to use the system (as opposed to repeatedly abusing it) a lot of good will come out. Courts in India no doubt are overburdened and suffer from a certain level of corruption and incompetence, but the heart of the system is in the right place and the intentions are noble. I completely understand the frustrations expressed by my colleagues and subscribe to them as well. The answer however lies in looking at the successful models and emulating them. Successful culmination of litigation in a time bound manner must become the norm not the exception. We have some of the best practitioners in the world (many of whom are in your article), some of the best judges and very deserving litigants who have a right to an efficient recourse to justice. I therefore urge you to write another article asking the respondents to share their success stories rather than stories of frustration and failure. I can assure you the article will be a lot longer and way more meaningful and productive.
Chander M Lall
Partner
Lall & Sethi
New Delhi
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