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LexTalk World Talk Show with Nanita Sharma, Senior partner at OPS nv & Co



Advocate Nanita Sharma has been practising as an Advocate since the year 1988. She became Advocate-on-Record in the Hon'ble Supreme Court of India after passing her AOR examination in the year 1995. She is practising in all the courts including the Hon'ble Supreme Courts, High Courts, District Courts, Consumer Fora including State Consumer Disputes Redressal Commission and National Consumer Disputes Redressal Commission, Foreign Exchange Tribunal since 1988 However, her base is Hon’ble Supreme Court where she have her Chamber.

Interview:


Host: What motivated you to choose the Legal sector as a domain of work and how has been your career span?


Nanita: Do you believe in destiny?

Well, if you don’t, then whatever I am going to share with you, I am sure you will start believing in the same. I am a lawyer by profession but I had never ever imagined that I would become a lawyer. Isn’t this surprising? Well, it may be but it is the truth. Neither in my school nor in my college, I had any plans or aspirations of becoming a lawyer. I was always interested in the field of ‘public relations’. As soon as I completed my graduation in Sociology, I applied for the same and in fact, paid the fees also.

One of my friends who was always keen on doing law, since college times, wanted me to accompany her one day to the Campus Law Centre, Delhi University to fill up forms for ‘law’. I went with her and while she was filing up the form for law, we met a common friend who wanted to know as to what I was planning to do. When I told him about my keenness towards ‘Public Relations’, he insisted that I fill up the form for ‘law’. I took it as a joke and laughed it off, but he kept insisting and asked me to just fill up the form. I did so for the heck of it and came home.


After a few weeks, my friend wanted me to accompany her again to check out the admission status through the lists which had come out for the students who had applied for law and were affixed on the notice board of the Law Faculty, Delhi University. I went with her and was taken completely aback to see my name on the list. On reaching home, I told my mother about it. She was actually thrilled and asked me to join law. I had neither any interest nor any inclination, so blankly refused.


Meanwhile, suddenly one day, I came to know that the Institute I had applied in, for the course of ‘Public Relations’, was not a Government-Recognized Institute. My world fell apart. I actually did not know what to do and felt lost. It was too late to apply in any other institute for any course, as all colleges had closed for admissions. I was completely shattered but my mom was very calm and composed. She did not let me break down. When I said to her as to what am I going to do as I am going to lose a year, she very calmly replied ‘Law’. Flabbergasted, I stared at her with tears rolling down my cheeks, I did not know what to say.


Yes, this is how I joined law and became a lawyer. This was destiny, I had to become a lawyer. I am a lawyer for the past 35 years and arguing in court is my passion. Being an Advocate-on-Record in the Hon’ble Supreme Court of India, I have had a vast experience in matters concerning civil, criminal,

commercial, contract, consumer, arbitration, etc. I have been appointed as a mediator by the Hon’ble Supreme Court of India and also have the honor of being appointed by the then Chief Justice of India as a ‘Member Executive’ of the Supreme Court Legal Services Committee. I have also been an ‘Executive member’ of the Supreme Court Bar Association. I have been appointed as an amicus curiae in many cases and have been on the panel of the Supreme Court Legal Services Committee for years. Apart from this, I have represented the Union of India and many Public Sector Undertakings before the Hon’ble Supreme Court, the High Court, and many tribunals including National Consumer Disputes Redressal Commission.


I love my profession and use the same to give back to society in whatever little way I can, by filing Public Interest Litigations, representing the weaker sections of society, and taking up social as well as environmental causes.


Host: What are the different challenges and opportunities that you have or had faced while working in this field?


Nanita: The journey in this profession has really not been a smooth sailing. In fact, it has been a roller-coaster ride. Despite belonging to a family where my own father-in-law was a Senior Advocate and my husband also in the same profession, I had to face many challenges in order to establish my own identity in the profession. I joined the Bar in the year 1988. Much as I wanted to start my practice from the District Courts, I was not allowed to. My in-laws were not very happy with the idea as they felt that the environment in the Trial Courts was not conducive to women. They instead wanted me to join my father-in-law at Supreme Court. I knew in my heart that my in-laws meant well and their decision was bonafide. However, I missed the opportunity of understanding the procedural and substantive working of the Trial Courts which I think is very much necessary for any lawyer to begin his/her practice with, as the Trial Court practice lays down the foundation for a successful career in the profession.


My husband who had also joined the Bar with me started his career from the District Court, Tis Hazari. Resultantly, the exposure that he got was vast and varied in comparison to me.


When I started to practice under my father-in-law in the Supreme Court, I had to face a number of challenges. When the clients would come to the chamber, and my husband and my father-in-law would be present, they would explicitly show their preference for a male lawyer and would straightaway go either to my husband or to my father-in-law, ignoring me completely. That did not just happen once, but on multiple occasions and on a regular basis, which was very discouraging for me. With my patience, perseverance, and hard work I was able to crack through this gender bias and did not let the same get in the way of my progress in my career.


I also faced certain issues with my staff and I face it even today. If I would point out any shortcomings in the work of the male employees, they somehow would have ego issues. This sometimes made my situation very difficult to get the work done from them. On the other hand, their attitude towards my husband would be very different and they would take any criticism from him, in a stride. This surely was a reflection of male chauvinism.


Besides the above challenges, there have been a few instances of sexual harassment in the journey of my career, which have been demeaning but I have stood courageously against them and emerged victorious. There have been a few instances where I was even offered bribe to withdraw cases against the high and mighty and few others, when I was asked to give a commission for allotting me cases.


These instances have been very humiliating but I guess every experience has been a learning and was essential for my own growth.


As we say that life is not only a bed of roses, the same way winter always turns to spring. Hence, with the challenges I have also received many opportunities to move forward in life and in my career. I got the opportunity of handling landmark cases as under:-

  • National Thermal Power Corporation v. The Singer Company & Ors. JT 1992 (3) S.C. 198: I represented Singer & Company which was an American Company against NTPC in the Hon’ble Supreme Court in this case, wherein it was held by the Hon’ble Supreme Court that in an international commercial arbitration agreement, the law expressly chosen by the parties in respect of all matters arising under their contract was the law that governed the contract. In the instant case, as the law chosen expressly by the parties was the Indian law and the contract gave exclusive jurisdiction to the courts in Delhi, the Indian Law was to govern the contract.

  • Sharda v. Dharam Pal AIR 2003 SC 345: It was held by the Hon’ble Supreme Court in this case that the right to privacy was not absolute in a matrimonial proceeding, and in a case of mental illness an order to undergo a medical test did not offend Article 21 and hence the Courts can pass directions can be passed for medical examination of the party either at the instance of the other party or by taking suo moto cognizance of the same.

  • State of H.P. v. Pawan Kumar AIR 2005 SC 2265: In this case, the question of law involved was whether the safeguards provided by Section 50 of the Narcotics Drugs And Psychotropic Substances Act, 1985 regarding search of any person would also apply to any bag, briefcase, or any article or container, etc. which is being carried by him. It was held by the Hon’ble Supreme Court that the safeguards provided under Section 50 of the NDPS Act could have no application in the facts of the case as opium was allegedly recovered from the bag which was being carried by the accused and not from his person.

  • Kaushnuma Begum v. New India Insurance Co. Ltd. AIR 2001 S C 485: In this case, the deceased pedestrian was knocked down by a jeep when its front tire burst and consequently the vehicle became disbalanced and turned turtle. The owner was held to be vicariously liable for damages to the dependants of the victim even if there was no negligence on the part of the driver or owner of the motor vehicle. The finding was given on the basis of strict liability propounded in Rylands vs. Fletcher case.

I have also filed many Public Interest Litigations to raise my voice against the various wrongs happening in society and have taken up many social and environmental issues. Throughout my career, with God’s grace, I have not lost sight of the fact that I owe a debt to society which I must repay.


Host: Relating to your experience in this field, have you worked on any essential projects?


Nanita: Everyone owes a debt to society. I personally believe that whichever career/ profession one may pursue in life, the same must be used in not only accomplishing material benefits but in contributing to society as well, as “We take so much from society, We must return”.


Keeping the above saying in mind and heart, I have always endeavoured, throughout my career, to give back to society in whatever little ways I could.

A case where land reserved for maintaining green which had been encroached upon unauthorisedly by builders in connivance with the Government Agencies, came to my notice. We immediately approached the Hon’ble High Court moving a Writ Petition in which the Hon’ble High Court directed the Delhi Development Authority to demolish the flats illegally constructed upon the area and asked them to maintain the said area as ‘green’ in terms of the notification issued by the Government, restoring the greenery within a period of 12 months. On the land now stands a beautiful park dedicated to “NYAY”.


The Hon’ble High Court was pleased to record, “We also observe that the suit Petitioners have done a commendable job by bringing to the notice of the Court the issues focussed. We record our deep appreciation for them for canvassing the cause.”

I had also taken up the cause of an ‘Open Green Land’ about 10 acres in size, located in Chittranjan Park, New Delhi, which was being proposed to be converted into a Sports Complex by the Delhi Development Authority. I moved a Public Interest Litigation in the Hon'ble High Court of Delhi, at New Delhi in 2008 and immediately got a stay on the ground that there was no permission for felling of trees as required under the Delhi Preservation of Trees Act 1994 and the project was illegal, being in violation of the MPD 2021. The case was finally decided in our favour.


I had taken up the cause of a slum at Indira Kalyan Vihar, Okhla, whose population is more than 50,000 and filed a Public Interest Litigation in the Delhi High Court seeking direction to the Municipal Corporation of Delhi (MCD) and Delhi Urban Shelter Improvement Board) to remove the deplorable sanitary conditions endangering the health and hygiene of the dwellers of the slum and to cover an open Nala (500 x 50') out of which 20' x 30' had collapsed, posing a grave danger to the residents particularly children of the slum. The Hon'ble High Court was pleased to grant both the reliefs and now the slum is being cleaned regularly and is in a hygienic state.


Suggestions were sought by the Central Government through a press release (Hindustan Times dt. 17.01.2013), to the proposed amendments to the ‘Indecent’ Representation of Women (Prohibition) Act, 1986. I gave my suggestions and was invited to give oral evidence with regard to the same before the Parliamentary Standing Committee on Human Resources Development.


I have also taken up the cause of common public transportation system drawing inspiration from the management of the 'Best' Buses in Mumbai in a Public Interest Litigation filed before the Hon'ble High Court of Delhi in order that the general public gets a decent and dignified mode of travelling because the Bus Transportation System then prevailing in Delhi was horrifying. The petition was not pressed by me after the Government of Delhi made a statement before the Hon'ble Court that it was going to start low-floor AC/Non-AC buses soon which buses can now be seen plying on the roads of Delhi. Soon thereafter metro was also developed in the state of Delhi which is a boon to all commuters.


I also had taken up the cause of 'Preventive Medicines / Injections for the 'Swine Flu', to be made readily and easily available in the markets of India, particularly in Delhi, where there had been a severe outbreak of swine flu. This cause I had taken up by filing a Public Interest Litigation in the Hon'ble High Court of Delhi. However, the Hon'ble High Court deemed it proper not to interfere as the relief prayed for, it felt was a matter of policy decision.


I was very much disturbed by the events in the State of Kerala in the year 2015, where the youth wing activists of a political party were killing stray dogs in the cruelest manner, and while walking on the street of Kottayam district, one could see dogs hung upside down on the pole, marking a protest against the stray dogs. Writ petitions were filed against these activities and the State of Kerala in the

Hon’ble Supreme Court, wherein I filed an application for intervention to voice my opinion and assist the Hon'ble Supreme Court in the matter.


I also had taken up the cause of reintroduction of the playing of the National Anthem before the commencement of the film or at the conclusion of the film in all cinema halls. A Public Interest Litigation on 11.04.2014 in this regard was filed by me in the Hon'ble Supreme Court in which the Hon'ble Supreme Court passed orders on 21.04.2014 and 25.04.2014. Pursuant to these orders, I then submitted representations to the Central Government for which there was no response. Meanwhile in a Writ Petition No. 855 of 2016 filed in the Hon'ble Supreme Court, I filed an application for intervention which was taken into consideration by the Hon'ble Court, pursuant to which we were asked to submit their suggestions in regard to the playing of 'National Anthem' in Cinema Halls, which have been submitted by us to the Parliament. The relevant portion of the order dated 09.01.2018 passed by the Hon'ble Supreme Court is as under.


"In view of the aforesaid, we think it appropriate that the Committee should comprehensively look into all the aspects. Mr. K.K. Venugopal, learned Attorney General for India has submitted in the course of argument that the petitioner can give suggestions by way of representation to the Committee. Mr. V.K. Biju and Ms. Nanita Sharma, learned counsel and Mr. Sanjeev Bhatnagar, the applicant in-person can also give suggestion in this regard. When we say suggestions, we mean that suggestions shall only relate to the National Anthem and nothing else".

Pursuant to this order I gave my suggestions to the aforesaid committee. To conclude, taking up the above mentioned projects was really not an easy task and I had to face many challenges in order to take the projects to their logical conclusion. However, all the challenges that came my way, I took it in a stride, and somehow gained wisdom to deal with the same in a dignified manner and thus these challenges have been a springboard for my positive growth and have been learning experiences.


Host: Tell us about a complex legal issue you worked on. Describe the complexity and tell us how you approached it?


Nanita: My client approached me in the month of January, this year for a legal issue. The facts of the case were that a suit for Specific Performance, Permanent and Mandatory Injunction was filed by the other party against my client in which it was averred that pursuant to an agreement to sell, the other party had paid an amount of Rs. 60,00,000/- (Sixty lakhs) vide RTGS and Rs. 20,00,000/- (Twenty Lakhs) in cash to my client, however, since the said Agreement did not materialize, the suit was filed against my client, in which summons were issued to my client by the Ld. ADJ, Tis Hazari and the matter was referred for Mediation before the Delhi Mediation Centre, Tis Hazari Court, Delhi. Mediation Sessions were conducted through video conferencing due to the onset of pandemic Covid-19.


During the entire sessions of Mediation, my client was not present in India but was in Australia where he was stranded since March, 2020.


The mediation sessions culminated into the ‘Mediation Settlement’ Deed signed by both the parties on 21.01.2021 which was informed to the Ld. ADJ Tis Hazari on 01.03.2021. The Ld. ADJ got recorded the settlement of both the parties on 01.03.2021 in pursuant to the Mediation settlement through Video Conferencing.


According to the Mediation Settlement, my client was to pay a sum of Rs. 80,00,000/- alongwith interest 12% per annum within a span of six months, failing which the amount paid before the expiry of six months would stand forfeited and my client would be liable to pay the entire amount of Rs. 80 lacs, all over again at an enhanced rate of interest of 18% per annum. Further, if my client was not able to pay any amount within the period of six months, he would have to compensate for the delay of six months caused by paying an additional amount of Rs. 30 lacs.


The Mediation Settlement Agreement was thus not only lopsided, arbitrary and capricious but also against the law applicable as firstly both interest and penalty cannot be imposed simultaneously, secondly forfeiture clause had no basis and was arbitrary and thirdly the interest of 18% was exorbitant and against the settled law. There was, thus an explicit violation of Rule 27, clause (9) of the Mediation and Conciliation Rules, 2004 and the Ld. Mediator had completely gone against the spirit of this Rule while, conducting Mediation.


Warrants of attachment of his immovable property, in Delhi were issued against my client as he could not fulfill the terms and conditions of the Mediation Settlement because two lockdowns had been imposed, one before the commencement of the Mediation and the other at the conclusion of the Mediation, because of which my client suffered immense loss in his businesses.


My client, thus could in no way be blamed for not adhering to the settlement terms. There had arisen circumstances beyond his control, firstly, on account of the lockdown and secondly, due to the fact that the other party failed and neglected to cooperate by providing the requisite documents as desired by the Bank. It was in these circumstances, that my client had to move the two Applications before the Executing Court of Ld. ADJ (West), Tis Hazari, Delhi, which were dismissed by the Ld. Executing Court. It was at this point that my client had come to me for my opinion. At first, I was hesitant as being a

Mediator in the Hon’ble Supreme Court, I was very much aware of how difficult it is to get out of a Mediation Settlement. I candidly shared this with him and asked him to give me time to go through all the documents of his case. After going through the file and the relevant ‘Mediation and Conciliation Rules’. I came across Rule 27 Clause (9) of the said Rules which specifically provided the ethics to be followed by the Mediator/Conciliator, while entering into a Mediation Settlement. Rule 27, clause 9 stated expressly stated that the Mediator/Conciliator had to conduct all proceedings related to the resolutions of a dispute, in accordance with the applicable law.


Taking this as my main ground for challenging the Ld. Trial Court order, I filed a Civil Miscellaneous main before the Hon’ble High Court of Delhi, at New Delhi on behalf of my client and after arguments which included the argument that the Mediation Settlement had taken place during Covid times and during the sessions, the Petitioner was stranded in Australia, and that the Petitioner had already paid the principle amount of 80 lakhs and was ready to pay further amount of Rs. 16.5 lakhs towards 12% interest per annum within one week, the Hon’ble High Court issued notice and granted stay against the warrants of attachment. This was surely a victory for me as well as my client.


Host: The pandemic saw some courts begin moving towards more remote proceedings and availability. Is this sustainable, and a possible way to increase access to justice, in your opinion?


Nanita: COVID 19 taught all of us many lessons. In the field of litigation, the concept of ‘virtual courts’ was introduced, which made the Indian Legal System more effective, advanced and beneficial in a number of ways. As we are aware, a very small section of the society has access to the conventional physical courts and even if they have, it is accessible at the cost of disproportionate expense as well as effort. The litigants in a virtual system are not required to be present physically, which helps in saving time and expenses incurred in commuting, lodging, boarding, etc. Thus, virtual courts are affordable and citizen/litigant friendly. Not only the litigant was and is benefitted by the system of virtual courts, the virtual courts enable the lawyers to take up a large number of cases in a day and they can argue any number of cases simultaneously in any court from any part of the country. Some lawyers who could not imagine to appear in the Apex Court got /would get opportunity to argue before the Hon’ble Supreme Court.


The system benefited and will benefit in future the courts in terms of saving the substantial costs being incurred by the courts towards the establishment of a large number of courts and tribunals, and towards the infrastructure required including the court security system and the expenses on the staff etc.


Virtual Courts also helped and will help in reducing the burden of pending cases, as judgments were/can be delivered much faster with fewer resources, helping in restoring the faith of the citizens in the Indian judiciary. The transparency of the judiciary enhanced/will enhance and the judiciary became/will become more accountable to the parties, enhancing the administration of justice. As the data of the court proceedings was being stored/ would be stored in digital applications, the same was/would be available in one place and information sharing became/would become easier and quicker. Even the testimony by the witnesses can be provided from a more secure environment.


However, every system has its pros and cons, advantages and disadvantages. Remote litigants might be hampered by bad equipment, weak internet connections, lack of experience in using video cameras and lighting, which can be taken care of with remedial means by the Authorities. Also, Remote participation can affect the control of the court over the parties. A person who is physically present in the court is under the ‘control’ of the Hon’ble Court and can be disciplined or removed from the courtroom in case of misconduct. The court loses this control when the litigant or his counsel appears on a screen.


Further, there is a greater risk that many people’s personal information, including psychological evaluations, medical reports, and other information, can be hacked when one is on a video conference. Anyone with a password and link can access the proceedings, while in physical hearing the audience may be controlled.


In cases of witnesses being produced in evidence, the authenticity of the identity of the witnesses and evidence that are produced before the courts may be questionable.

It is often found that virtual hearings are riddled with noise such as that of traffic, echo, or sometimes the inadvertent mistakes of the advocates. For instance an advocate could leave his audio unmuted. All the participants at the hearing could hear the advocate’s personal conversations. There are several such other examples where the dignity and pride of the court can be jeopardized in such situations.


In a country like India with an elaborate judicial structure, transforming the entire system of judiciary is not going to be an easy task. Even for litigants the virtual system of courts could be challenging. Most advocates believe that the loss of a human touch hampers the art of litigation. Thus, virtual hearings have their own benefits and disadvantages, and one must exercise it with huge caution and precaution.

 

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