J. Sai shares his insights on litigation world and Sabarimala issue

Sai Deepak is an engineer-turned-litigator, graduated from Anna University with Bachelors in Mechanical Engineering, after which he went on to pursue LL.B from IIT Kharagpur. After completion of law he joined Saikrishna& Associates as an Associate, where he had been promoted to an Associate Partner. Presently, he is practising as Independent Practitioner before Supreme Court and Delhi High Court with having an experience of more than a decade in the legal field. Sai has carved a niche for himself in IP litigation, competition law, indirect taxation, economic offences and drug regulatory laws. Sai is an avid writer and has articles to his credit in reputed international journals such as Max Planck Institute’s International Review of Intellectual Property Law and Competition law, and national journals.

Mr J. Sai will be taking us through his legal career, and will be sharing his thoughts on litigation life, Sabarimala issue and much more.

1. You have started your career in this fraternity in 2009. Tell us about how the field has transformed over the years and what the future holds for new generation lawyers.

 There was a decent chance that even when I entered into the profession, perhaps the law school that you graduated from, made a certain amount of difference and that I think made very difficult for bright students/ law graduates coming from so called non-Nlus to make their presence felt or to be taken seriously. I am happy to say that such attitude has changed to a significant extent, there are still places where that attitude has not changed but I think today law firms, practitioners, judges and even foreign universities are much more open to taking students on their individual merit and performance. I know people from such law schools who have managed to break that particular glass ceiling and doing well in their respective fields. So it’s great but that being said, I think general quality has come down overall regardless of which university one is part of, I don’t think there is any ceiling that is put on the number of law colleges, the number of law graduates we are producing and whether diverting all the talent to certain isolated pockets or are we asking them to practice across the country. How many law graduates prefer to practice in Allahabad high court or Jabalpur high court?  Though it is an individual choice, we should encourage them to practice in all high courts rather than only in some high courts which are in news. Also would be great if they can limit the number of law schools, have some quality control in place and make sure that practitioners have responsibility or legal obligation to go and teach. The more you have visiting faculty, the more it is possible to combine academic knowledge with practical experience.

2. Do tell our readers about your chamber, difficulties you might have faced while building it up and the practising areas.

Ans.) For the first seven years of my practice, I was part of this law firm called Sai Krishna & Associates, I joined the firm in 2009 and was made an associate partner in March, 2015. In June, 2016 by the end of it I quit the firm because I wanted to be independent as arguing counsel. The firm is largely known for intellectual property law and it still continues to be one of the established brand in this area of practice. So my initial years were certainly filled with exposure to intellectual property. I had sheer interest and opportunities in constitutional law and criminal law, it was just that I had financial commitments, SoI couldn’t take up those areas of practice when I joined the profession. As a litigator at Saikrishna& Associates, I led the team to many successes including the reading down of S.79(3)(b) of the Information Technology Act and the Intermediary Rules; representing Greenpeace India successfully in Tata Sons v. Greenpeace International &Anr.,that is still considered a landmark judgment on the relationship of constitutional law and intellectual property rights. It was one of the first constitutional matter which I did. After that I also did ‘Shreya Singhal matter’ in which others were basically challenging 66 A, our petition challenged section 79(3) (b) that is about intermediaries, on how you could gag intermediaries to prevent the expression of free speech. By the time I completed three or four years of practice, I had developed a fair bit of reputation who can handle matters on his own, perhaps who can argue. My very first major argument was in the Basmati rice GI case, I represented the State of Madhya Pradesh in the case where the state government moved the Delhi high court on the issue of challenging the cease in supply of Basmati breeder seeds from the Center to the state on the basis of office memorandum and we got judgment in our favour. By the time I reached 2016, this time made I think a fair reputation of someone who can argue and that why I branched out but and decided that I would not set up a law firm but a chamber as practising advocate who argues exclusively which is why I brand myself as arguing counsel and not someone who files matters.

Fifty percent of our practices areas is still related to Intellectual property matters, but fortunately, I think destiny has been kind enough, and therefore we have been doing now a lot of constitutional matters, I have done murder appeals before Supreme Court, I have done mattes related to NDPS Act, also done international arbitration now. So, Today I can confidently say that I am a general practitioner with a fair degree of exposure to diverse areas of practice.

3. It has been more than a decade since your commencement in this field. How do you still manage to put forth so much energy and enthusiasm in the field when a lot of youngsters in this profession are struggling to cope up even for a couple of years?

 It can all be brought down to destiny but there are multiple things to pay heed. There is one very popular saying ‘what cards you have in a card game is destiny but how you use those cards is effectively your hard work. When I was in my law school, lot of opportunities initially came my way but how I chose to make use of these opportunities is something that I can perhaps take credit for. Especially, when I realised that moot courts were very expensive propositions and I didn’t have resources to get into them, as often as I’d have like to, I started writing on blog called ‘SpicyIp’ in January, 2008 and the last post I wrote in it was in December 2010 after that I decided to write on my own blog ‘The Demanding Mistress’. I believe when you speak there is a decent chance that you can ramble here and there but when you write, you have to say it clearly, people can point out your mistake in what you write. You can always say this is not what I meant what I said, but can’t run away with what you have written. When you subject your writingsto the scrutiny of a better-informed audience, you get to know how little you know. So, it makes you read more, think more before you say something.

4. Are you still operating your blog “The Demanding Mistress”?

Ans.) Until 2013, I used to write abouta hundred post a year, at some point of time even more than this, then practice had taken such a boom that effectively it came down to fifties-sixties and in last few years I barely written three four posts but I have been writing articles in other places, journal publications, in other mainstream platforms. I regret not being able to write as much but I am slowly getting back to it.

5. What advice you would give to youngsters having sheer interest in litigation?

Ans.) Under whom they learn when they get into this field is very important. What kinds of practices do they learn? What is the attitude to the profession? How honest and committed you are when taking up a matter? So, you should consider yourself really lucky if you happen to work at a place which gives you enough freedom to read and write as much as you want but also expects you to give your hundred percent to a certain matter. And one thing that I learned from my first working place is that you can only empower people by giving them an opportunity, not by constant spoon feeding, you must allow people to make mistakes to some extent provided they are serious enough to learn from their own mistakes. If they don’t learn then, perhaps it is better for them to learn under someone rather going as an independent.

6. How do you justify constitutional morality/ what does it mean according to you keeping in light the Sabarimala issue?

Ans.) Constitutional morality simply refers to a situation when the court is assuming that when it comes to certain matters of let’s say public behaviour or something that is in the public sphere, there is a fixed minimum standard for the conduct of all parties concerned, but according to the court is largely decided by what the constitution says. Let’s understand this with an example, who can and cannot be allowed inside a temple or a place of worship, apart from its own religious laws which apply to that particular place, it necessarily has to go through the filter of the constitution. According to the courts if there are certain principles which applies to a place of worship but if it seems to go against the principles of the constitution, then the constitution will prevail. Therefore, those positions on morality which flow from the constitution and which are effectively guided by the constitution with respect to this kind of issues largely given the umbrella of constitutional morality. But, there is a serious disagreement by a lot of people who believe that the word morality as used in part III of the constitution was not about constitutional morality but it is more about public morality, so the reason why they believe this is a correct way looking at it is you’re giving the supreme court which is an unelected body the power, to decide what is public morality in that particular sense as opposed to applying community standards or behaviour to adjudication, standards which are laid down by the supreme court are being applied as standards of community.

Assume there is a discussion forum, let’s say Facebook, it has its own rules in terms of what you can or cannot do while accessing, and generally what such intermediaries do is, if there is a certain degree of content which everybody seems to be okay with, then facebook chooses not to oppose that kind of content, ten people have a certain point of view and eleventh has another one then the forum chooses to apply the standard of ten people to the eleventh person, that is largely how you look at community standards, a general standard which prevails in such forum. Indeed, It’s a private entity, it can decide what can or cannot be discussed on its platform but if it happens to be an imposition that comes from arm of state or any constitution body which is basically saying this is how you should conduct yourself in a temple, that level of interference can be allowed only if there is a blatant discrimination which is very clear like untouchability on caste basis on gender basis being observed at certain places then the constitution or supreme court can say this is not permissible but if it is ritualistic nod like someone who has not taken a bath cannot enter the place, someone who has not taken a bath cannot touch a person who has taken a bath and wearing clothes to do a particular ceremony. This is not untouchability, unfortunately the use of word untouchability to my mind in the context of religious institutions has become so common without understanding what is the basis of practice, what is the context of practice, is it meant to target a caste or gender or meant to protect something else.

The consequence of this is when young minds when they look at these judgments, they got influenced by these judgments without having exposure to tradition, ceremony and basis of practice. They look up to Supreme Court and its judgments to understand the practice of a temple and there would be no independent source at all so it gives a negative impression about the temple. It gives the impression that these kind of institutions are fundamentally misogynist, patriarchal, brahmanical, casteist etc. I think that is a sad part and we don’t realise what kind of impact it could make on future generations. It effectively ends up like cutting future generations away from its roots.

7. Sir, I got to know that you are also legal mentor to ‘The Indic collective Trust’. Could you please also tell something about it?

Ans.) Indic Collective Trust advocates the right of the Indic way of life to survive and thrive, through constitutional and democratic means. In an ideal democracy, there should not be a need for a body like the Indic Collective Trust where peace-loving citizens must come together to protect their right to survive by adhering to the way of life of their forefathers. Unfortunately, the space for the Indic way of life is shrinking rapidly, constricted from all sides by the unconstitutional and illegal encroachment of predatory ideologies. Even more disquieting is the absence of a professional and concerted response, well within the legal framework, from society at large. Given the swiftly shrinking space for Indic thought, values and worldview, it became imperative for a citizen’s collective like the Indic Collective Trust to step in and step up the effort to a) advocate a cohesive and coordinated narrative highlighting the Indic perspective, b) actively pursue legal action in strategic cases and push for constitutional reforms, and c) provide Indic platforms to academicians, thinkers, activists, Indologists and public figures to contribute towards result-oriented actions. The broad areas that Indic Collective Trust covers in its scope of action are Freeing Hindu Temples from government control, deporting illegal immigrants who are a threat to national security and demographics, repealing archaic blasphemy laws that curb freedom of expression, illegal or fraudulent religious conversions of adherents of Indic faiths to non-Indic faiths, unjust and sectarian treatment of Indic educational institutions and bringing back our stolen idols and religious artefacts from foreign shores.

Interview conducted by Rupesh Jain, a fourth year student of BharatiVidyapeeth University, Pune pursuing BA.LL.B. He is the Student Ambassador of BVDU, Pune

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