LexTalk World interviews Mr. Zafar Khurshid. Zafar Khurshid is a graduate of St. Stephen's College and the Faculty of Law, Delhi University. Following his LLB he worked in the Supreme Court in the office of the Additional Solicitor General, before migrating to England where he studied Intellectual Property Law at Queen Mary, University of London, graduating with Distinctions in each of his courses. He went to spend two years at St. Edmund Hall, University of Oxford reading for the BCL and an M.Phil in Law focusing on Intellectual Property Law. He returned to India in 2017 and spent the next three years assisting a Senior Advocate in the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi, as well as various tribunals, such as the NCLAT and TDSAT. In 2020 he became one of the Founding Partners of Talwar Khurshid Chauhan (TKC) LLP along with Mr. Samer V. Talwar and Mr. Amit Singh Chauhan, where he heads Intellectual Property matters, and co-heads the Firm’s litigation and arbitration practice.
Host: Can you please brief us on your journey so far from your personal and professional background?
Zafar: I am born and bred in Delhi – though my Mother and Father are from South India and UP, respectively – so I guess I’m a ‘Mangalorian Pathan’. I did my schooling in Delhi at Delhi Public R.K. Puram, after which I pursued an Undergraduate degree in History at St. Stephen’s College in Delhi University. Following my Bachelors in History I read for my LLB from the Campus Law Centre, Delhi University. I feel each of these steps in my academic journey contributed greatly to my growth as an individual, and of course I have made long-lasting and deep friendships at each stage.
Following my Schooling and College years in Delhi I migrated to England, where I pursued multiple Masters degrees – as some of my family members were to joke, I was in the habit of “collecting Degrees”. I read for the LLM in Intellectual Property Law at Queen Mary University of London, where I first really developed not only my passion for the academic study of law but also my keen interest in IP law. While it was a field that piqued my interest in my LLB years, Queen Mary was where that passion grew. QMUL has an excellent program in IP, and during my year there I was involved in a Fellowship Program under the Queen Mary Intellectual Property Research Institute (QMIPRI) and I think my experience with the academics and certainly my interactions with the faculty really fueled my interest in the law and helped me appreciate how wide one’s appreciation of the law can and should be. After Queen Mary I spent two years at the University of Oxford, first reading for the BCL, and then a year in research in the MPhil in Law in the field of IP and its interaction with the growing field of 3D Printing.
My first professional working experience was in the office of Mr. Gourab Banerji, then the Additional Solicitor General of India in the Supreme Court. Under his tutelage I not only got key lessons about the profession of law but also an appreciation for the sense of fraternity, free from a strict sense of hierarchy, which I hope to cultivate in my own Firm. When I returned to India in 2016 after concluding my studies at Oxford, I spent 3 years working with my father Mr. Salman Khurshid. Practicing under him was an enlightening and greatly enriching experience, particularly as his practice was both prolific and varied, giving me and his other juniors the opportunity to work a myriad areas of law – from Competition, to Constitutional and Administrative law, to Arbitration, to criminal matter – the list goes on.
Finally at the end of 2019 I partnered with two long-time friends and colleagues – Mr. Amit Singh Chauhan and Mr. Samer Talwar – to form the Firm of Talwar Khurshid Chauhan or TKC Partners, which was the culmination of a dream in the making since around 2013.
I wont be so arrogant so as to not admit that on my journey – coming from a certain background, being a “second generation lawyer” – I have had many opportunities. I can only hope that I have done, and will continue to do, those opportunities justice.
Host: Can you tell us a little about your most memorable case and what are your key takeaways?
Zafar: I think asking any legal practioner this question, probably with few exceptions, each of us might struggle to answer. Of course there are key lessons that we may have learned from any case, at any stage – what mistakes to watch out for, how to learn from the ones we have made. I think if I had to put my finger on one case I would say that one memorable case was the “Triple Talaq Case”, which was heard before Hon’ble Supreme Court, which many may have heard of, both within India and outside. It was a landmark judgment and a key issue, not only legally, but also politically. I think that particular case sticks in my mind because my father (and my boss) – Mr. Salman Khurshid – acted as an Intervener in the case. He felt very passionately that the Court needed to know the true position of ‘Triple Talaq’ under Muslim Law. He was not before the Court for any Petitioner, nor any Respondent, nor even, as many reported, as an Amicus Curiae (even know that is the role that Mr. Khurshid played). The goal with which we filed that Intervention Application was not to take a particular position on whether the reliefs claimed by the Petitioners were legally or morally or ethically incorrect, or indeed even to defend the religion of Islam against judicial overreach. It was simply to come before the Court and to attempt to faithfully present the correct and true position of Muslim law on the issue before the Court. In the end the majority judgment was to “strike down” the practice of Triple Talaq. This is how it was reported, though the headlines may have missed the nuances of the separate judgments written by the various Justices on the Bench. From amongst those judgments, that of Justice Joseph adopted many of the positions put forward by Mr. Khurshid in his submissions – he noted that the Court did not need to go into the question of the “Constitutionality” of Triple Talaq as the practice itself was not recognized by Islam.
I think my key takeaway from that experience was that we should never underestimate the impact that a single voice, speaking the truth with conviction, can have. I would say then to each member of my larger fraternity out there, both present and future, put your conviction behind your work, your arguments, your pleadings. You never know when the opportunity may come to be the voice that cuts through the din.
Host: How do you look at IP law in 2021 and how is it going to change 5 years down the line?
Zafar: I think for better or for worse the same thing has been said about intellectual property law in India for perhaps 5 years – it’s a growing field. And to a great extent this is true – IP law in India is not over-developed, as it could be said it is in some Western jurisdictions. We have not lost sight (yet) of the object of the law in protecting intellectual property. So we are on a precipice – we can still learn from the developments in the law from the judgments of the Courts in the western world, and apply them to the Indian context, without losing sight of the fact that we do not necessarily attribute the same value systems to property, to exclusivity, to monopolization. Because of course we are a developing country, and a welfare state, and thus we may have a different ethos when it comes to such issues and such questions of law. So we have an opportunity to not simply “superimpose” the law from other jurisdictions, and instead find how it fits into the Indian paradigm, into the India socio-economic system.
So how do I see IP in 2021? I feel that more and more we are seeing good judgments that are leading us in the correct direction, in terms of enforcement of IP, in terms of recognizing the value of IP. Having said that, I don’t know if enough education, enough training has been done with regard to the legal system and how it has to apply to intellectual property law. We can’t necessarily apply the same learnings from physical ‘brick-and-mortar’ property law to intellectual property law – this can be like trying to force a cylinder into a square peg – it won’t necessarily fit.
It is an area that still requires great growth – growth that has to be driven not just by the judiciary, but also by Advocates. We shouldn’t forget that as Advocates, we are not there just to help our clients, but we are also there to assist the Court. We cannot expect every single judge, to know every single law, in every single case. That is where Advocates come in. Thus we as a fraternity need to invest in learning more, and developing a larger appreciation of the law and developments in this field; keeping abreast of developments in the western jurisdictions, but then thinking about how such decision need to fit into the Indian value system, so that when the time comes we can best assist the Courts in helping to develop the law further.
The other aspect that we may consider is the idea of specialized forums for Intellectual Property law, much like the specialized courts we have for Company law. Forums that may combine the experience and expertise of judicial members with the commercial or technical knowledge of technical members. While decisions relating to registration may be before appropriate registries and Appellate Boards, infringement stills falls within the ambit of general commercial courts. This idea may be met with some hesitation or distaste, as many are, but I think its something we should start to consider – not just for the advantages of the perspectives that may be brought to the adjudication of infringement disputes, but also for such bodies to act as imparters of training for litigators, as indeed litigants. And finally, one hurdle that every litigant or practioner faces in this country is the pace at which our overburdened courts often function – and in the enforcement of IP time can be an extremely crucial factor – and perhaps specialized forums can help lighten the load.
Host: What do you feel are the key challenges for legal professionals in the near future? And how do you think legal professionals can respond?
Zafar: The first and most precipitous factor, which we all probably have in our minds in light of the pandemic and the extent to which it disrupted our judicial/legal system, is that we all need to become more comfortable with digital proceedings, with a more virtual/online system. This isn’t just because of the pandemic. Such a shift has key advantages. Of course I sympathize, and to some extent agree, with those who are criticizing the absence of physical hearings – particularly in relation to cumbersome matters, with significant case records, it can be a challenge. However this is because we don’t currently have the right infrastructure, and the right training. So can we take our current predicament as a wake-up call, to introduce key improvements in the legal system in India? Not just so we are not caught off guard by another pandemic or emergency, but to improve the speed and efficiency of the system; to help minimize costs, which is often a great hindrance to litigants and to the pursuit of justice in this Country; and to make ourselves competitive in the global landscape. Investing in the infrastructure is not just going to aid the domestic legal system, its will also be a key factor say in attracting international arbitrations for instance. India has been trying to develop itself as a key arbitral hub in the world, and inevitably some of the criticisms from the global market are infrastructure and the speed of the domestic legal system. Thus we must look at growing with technology – not just using it ad hoc or piece-meal, but genuinely incorporating technology into our legal system. I would commend many member of the judiciary, many of whom were pushing/driving such efforts even before the pandemic, who are very comfortable with online hearings, online filings – they did not seem to skip a beat in adjusting to the virtual hearing system. Those who were not proactive had a learning curve, an adjustment period while they played catch-up. To give credit where it is due, overall most of the system did a commendable job responding to the overnight abruption and burden that was put upon the judicial system. Many have criticized that the system took too long to respond. However a monumental effort was made, and it is commendable, how the judiciary, and how the, often un-thanked individuals in the control rooms and in the registries, responded. Let us not rest easy upon our laurels, but lets give credit where it is deserved. But now we have the opportunity to make the choice to build upon the growth that was forced upon us.
The other challenge that I think anyone in independent practice, or anyone running their own firm, will face is consumer demand of ‘more for less’. Clients don’t expect to or don’t want to pay as much, sometimes fairly, sometimes unfairly. Thus the challenge persists – how do we provide the best service to our clients – whether they are an individual, a small proprietorship, a multinational – while incurring the least costs. The answer isn’t just to hire a lot of people and have them do a lot of grunt work and pay them a pittance; or to take on lots of unpaid interns and make them the work of your associates and charge your clients. The only real way to respond to this challenge is to change the way we work – I don’t just mean the larger legal infrastructure, but also how each of us works, at an individual level, at an office level. For instance, at our Firm we have tried, and certainly we will continue to try, to cultivate an ethos against the strict division of teams or hierarchies – and its all about synergizing the efforts of our team members. It is great to have specialisms and specialists – and certainly the goal for many in the long run is to have decades of experience in a particular area – to be “the go to person” for certain areas of law or certain kinds of cases. But such a person may not be as valuable to a team, as someone who has a varied and diverse experience – As the saying goes, “A Jack of all trades, Master of none. But better than a Master of one”. So I think we need to push ourselves to have a diverse appreciation of the law. And then to coordinate and collaborate to make the most of that experience. If you give people opportunities to work on assignments and projects that are “outside their area”, they may bring a new perspective to it. Of course we need to learn to use our resources effectively, to not simply double up people on the same work, but give people the opportunity to weigh in, even if their primary practice is in another area. As a Firm we can accomplish this by breaking down strict “team” hierarchies or compartmentalization. And as a fraternity perhaps we should learn to share more with each other – share knowledge, share our learnings, even share our work – lets aim to be competitive in the service we provide, but also collaborative.
Host: What are some words of advice you can offer to some fresh graduates looking to pursue careers in IP?
The number one advice that I could offer, and this applies to anyone entering the profession, not simply for those interested in IP – be sure that you are interested, that you are passionate about what you are choosing to pursue. Because inevitably the day will come when you will hate your job. And it’s on those days that, if you’re really interested in the work you’re doing, if you’re passionate, you’ll find your way back to not hating it. But be prepared. It’s not all rosy days. Everyone tells you that in litigation its 10 years of struggle. But everyone struggles – even the ones who love what they do. But one of the things you need to get through that struggle is to know that you are doing what you want to be doing.
With intellectual property law, practical experience will be difficult to come by for most of you. A majority of IP practice is not with individual practioners. And while there are many keen minds who argue leading cases in the Courts, this is a very small fraction of the legal practice in the field of IP. In fact if you’re doing your job right IP matters probably won’t even go to Court. And you also have to keep reading. IP law is constantly developing, whether at home or globally, and to keep up to date you have to be constantly reading. While you may have the grasp of the basic principles from your years in the LLB or LLM, to really know the lay of the land you need to keep yourself up to date. If you think the studying ended when you left law school, you are mistaken. You are signing up for a lifetime of studying – that probably goes for most areas of law – but I would say IP especially. And to add to your burden, it will not be enough to know what the domestic courts or legislations are saying, but what the position is globally. Courts often do take guidance from foreign jurisdictions, when there is a vacuum in the domestic law.
Secondly, most people may think IP is very cool and fun, but as I said many of you will find the days in the limelight of the Courts are few and far between. A majority of IP work is probably with large and established firms. But IP litigation is just a small portion of the work out there. There are options to work on the regulatory side, in the Registry, or to work in firms that are focusing on registration and monitoring. These are all options that require a solid grasp of the law and a passion for the subject. IP licensing is also a massive field globally and there are many companies, such as large publishers or music licensing companies, which graduates can look at as options if they are interested in this area of law. If you are keen on litigation then you should be prepared to choose between litigation and a focus on IP. Starting out as a litigator you will struggle to get IP work, and you certainly can’t afford to turn down other work. So if you don’t want to work in a firm set up you may have to choose to build your litigation practice, develop your court craft, and keep yourself up to date on the law so that when you do get the odd matter you can deliver.
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