Faisal Sherwani is an Advocate-on-Record, Supreme Court of India and is currently a Partner in the Dispute Resolution practice at L&L Partners Law Offices, New Delhi. He graduated in 2009 from the Faculty of Law, Aligarh Muslim University as second in his class. He went on to gain his master’s degree i.e., LL.M, in the year 2010 from the George Washington University Law School, Washington, D.C., which he attended on a merit scholarship.
Faisal Sherwani regularly practises before the Hon’ble Supreme Court of India as well as the Hon’ble High Courts at Delhi, Bombay, Karnataka, Telangana, Allahabad and Madras and also the NCLT and NCLAT. He has a host of reported Judgements to his credit. He is a coveted legal advisor and strategist in the start-up circles of India. He has successfully advised and assisted a number of niche industries and young businesses such as transport aggregators, start-ups in the agri-produce market, the gaming industry, as also the cash and carry sector among others.
Faisal Sherwani is also a sought-after columnist and speaker. His work runs the gamut from history, law and satire. Most recently, he was featured in BW Legal World’s elite list of ‘40 under 40’ – ‘India’s top lawyers and legal influencers, 2020’.
We recently got a chance to interview Mr Faisal Sherwani:
Legal Bites: Sir, we would like to begin by congratulating you on being named in the BW Legal World’s 40 under 40 Achievers List 2020. How would you describe your decade long journey as a lawyer?
Faisal Sherwani: Thank you very much for your warm wishes. While I am absolutely delighted and also honoured to have featured in the elite list, I am equally conscious of the fact that it is too early in the day to stop and look back.
It has been a pleasant and enjoyable stint, thus far – but it is just the beginning. I would characterize it as a mixed bag of experiences, where I have learnt – about law and life, about how to adapt and innovate, how not to let the little successes go to your head and most importantly, how to take failures in my stride.
Legal Bites: You’ve been a law student at both Aligarh Muslim University as well as George Washington University Law School. Do you think that there is a great deal of difference in studying law at an Indian university as opposed to a foreign one? What are some of the advantages/disadvantages of studying in both?
Faisal Sherwani: In the final years of my studies at the Faculty of Law at Aligarh Muslim University, the idea of studying further at GW Law provided an exciting proposition. There will always be the obvious differences – after all, no two experiences are (or should be) the same! But I have always believed that a university is what a student wants it to mean to her – advantages and disadvantages often are a matter of perception.
Of course, we can all learn from each other, the same is true for universities and education. Many exciting changes are happening everywhere in the sphere of legal education.
The one thing that I have learnt to admire is an age-old technique i.e., the Socratic method, where the classroom experience is a shared dialogue between the teacher and students, thereby ensuring that both are responsible for pushing the dialogue forward through questioning. However, this requires as a pre-requisite, some amount of reading and thought on the part of the student also – so that it can be an informed debate.
In the larger scheme of things, the method has more particular benefits in the domain of law and legal studies. If you think about it, the practice of law is premised upon it –there is a constant exchange between the client and his advisor, an exchange between the lawyer and the Bench, an exchange between the legal expert and the media. So you must learn to be communicative and expressive and there has to be a continued emphasis on writing too. I may confess that I have a personal prejudice in favour of those who write as it gives me the opportunity to see what your thoughts are and how you express them. As long as these underlying principles and methods remain, you can always explore and adopt new modes of executing them and enhancing the experience.
Legal Bites: Sir, you’ve critiqued colonial-era legislation such as the Epidemic Diseases Act, 1897 and the Public Gambling Act, 1867. According to you, what are some other important archaic laws that need a complete overhaul or should be done away with?
Faisal Sherwani: That is a very well-researched question! Indeed, I did a critical appraisal of the two statutes in separate and distinct pieces. If you think about it, the legislation of pre-constitution vintage that remains on the statute book is always intriguing. Particularly, since the law-making bodies of the time found themselves unburdened with the constitutional virtues that we identify with today.
Therefore, we should be grateful that Justice Nariman, while keeping similar concerns in mind has recently in Navtej Singh Johar & Ors. v. Union Of India (2018) (whereby Section 377 of the IPC had been held unconstitutional) restated that if a pre-constitutional law is challenged, the presumption of constitutional validity would not automatically obtain. A similar view can be found in an earlier expression that was the dissent of Ahmadi, C.J. in New Delhi Municipal Council v. State of Punjab and Ors. (1997).
Nonetheless, whenever I have set upon the task of evaluating a law from the pre-constitution era, I have tried to resist the temptation of singularly questioning it on grounds of antiquity. After all, you must remember that we have a number of laws of rather distant antiquity such as the Indian Evidence Act and the Indian Contract Act – dating back to the year 1872, which despite their well-documented criticism, have continued to serve us well.
So, if you look at it qualitatively, the principal grounds on which I have questioned the Epidemic Diseases Act, 1897 is its skeletal nature i.e., in that it suffers from the vice of excessive delegation. It unquestionably leaves important issues having wide-ranging ramifications to the fiat of the executive. Similarly, the principal basis that I find to frown upon the Public Gambling Act, 1867 is that it denies adults the right to make an informed choice. After all, within the bounds of good taste, any legislation should respect individual choice and accommodate the sentiment that as adults, we should have the final say in matters concerning ourselves, and our bodies and minds.
Therefore, I don’t want to make a generalized suggestion that all laws of distant antiquity are unconstitutional per se, that could never be. But if you were to look for a thread of commonality – you might see, that while antiquity alone, can never be the basis to revisit a statute – the fact is those unnecessary complications and culture of red-tapism are the usual by-products of outdated laws that are not in keeping with the hopes and aspiration of current generations. To my mind, it really has to be a case by case analysis.
Legal Bites: The ongoing pandemic has changed the way courts function. You’ve previously also argued in favour of open courts. In view of this, what do you think can be done to make legal proceedings and courtrooms more accessible to the public?
Faisal Sherwani: Indeed, the courtroom has changed – so have many other things that circle around justice dispensation and the practice of law in the times of the pandemic but a number of these changes may still prove to be a reason to celebrate. Take the cheaper, more time-efficient and easy access to the virtual courtroom. All you need is a stable internet connection.
However, the scenario has certainly pushed us to revisit the whole debate on the right of public access to legal proceedings. I have always been an ardent advocate for an open court – its virtues far outweigh the few reasons where you may want to make an exception for in-camera proceedings.
I think none of us can doubt that the litigant is an important stakeholder in the judicial proceedings, and therefore, we must have some sympathy for the sentiment that virtual courts too, should, in some form and manner accommodate his presence. And, we must be quite prepared to give effect to the notion that an open court, should be the default rule.
I have additionally argued that the issue of the open court system, which has largely been viewed from the traditional standpoint of judicial accountability, the need for transparency, and the desire to inspire public confidence in the judicial system – can equally, if not more – be considered from the standpoint of the accountability which the counsel owes to his client. After all, a litigant is entitled to have his day in court (be it a virtual one).
But to answer your question more directly, what we can do is not be afraid of experimenting and trying the most obvious solutions. I was delighted to learn that just as we speak, in a first – the Gujarat High Court has commenced live streaming of court proceedings on YouTube from the 26th of October 2020 albeit on an experimental basis for now. In its Press release, the Court has stated that it is, “With a view to effectuating and broadening the implementation of Open Court concept even during the virtual hearings of the Court.”
Think of the boundless potential – while in a brick and mortar courtroom you still have limitations i.e., you can admit only a certain number of people inside on account of physical impossibilities – but in a virtual scenario coupled with live streaming, you can have a whole nation (including those abroad) watching these proceedings. It’s a bold move, and I think it sends the right signals. Such transparency can only be celebrated.
Legal Bites: Sir, how has your working life changed since becoming a partner at L&L Partners? What have been some of the major challenges and lessons learnt during this period?
Faisal Sherwani: Well, as a practitioner of law – not much has changed and possibly, it shouldn’t also. I don’t think the way I practice law, or my brand of lawyering should change merely on account of an additional role or responsibility that the firm may require me to take on.
But yes, being a partner at a tier-1 law firm requires one to discharge a number of responsibilities in addition to being a courtroom practitioner or an advisor to your client. You have to be the face of the firm, nurture and build its relationships with the clients and the outside world, you may often be required to play the chief strategist. Also, if you have a spine, you should (be able to) shoulder all blame if things come crashing down like a house of cards.
Any young lawyer is very likely to face a number of challenges and roadblocks. I had my share. These made me more determined and I ended up learning from those experiences, possibly more than from any of my successes.
As long as you are willing to pay attention – every day is a new lesson. However, the steadiest lesson that I have learnt has been to remain resilient and focused and in a sense, the profession is kinder to the more resilient ones. Apart from that, I think you must practice law honestly, keeping the best interest of your client in mind (even though it may not be the most lucrative one for you). And finally, within the bounds of good taste and fairness, you must be willing to go the extra mile in order to ensure that the best result is achieved. Because, unfortunately – there are too many professionals willing to do the same old thing!
Legal Bites: You’ve spoken about how enriching your experience was as a law student at Aligarh Muslim University and how you never even considered NLU as an option. There is a lot of pressure on young law students across India to get into NLU colleges. Is there anything that you would like to tell them?
Faisal Sherwani: True, Aligarh was not out of circumstance, it was out of clear choice. Possibly, the pressure of studying at a coveted college may be a bit more than what it was 15 years back when I had enrolled to study law. As it is today, back then too – my strongest desire, was to practice law, and the Faculty of Law at Aligarh Muslim University gave me the perfect platform to do that. Students had the opportunity of interacting with lawyers and judges from the Allahabad and Lucknow benches, that is the High Court which serves the jurisdiction. There were young aspirants who would be preparing for the Magistracy exams on the eve of graduation. So, you had a diverse breed of people who you could talk to and interact with.
For those who feel the pressure, I tell you – let this be an early lesson in life as also the practice of law. Nobody said you wouldn’t feel the pressure. After all, we are lawyers – we are supposed to feel the pressure. And, we do every day! The test of your character is how you operate despite such pressure and when faced with difficult circumstances.
But by all means, if you wish to study at a particular law school, you should apply to do so, but I suggest you have reasons that are a bit better than ‘pressure’ alone. Ultimately, it’s more about the individual and what you bring to the table, and what you want to do with yourself. I think that is what people will notice about you in life as well.
Legal Bites: Sir, as a young achiever yourself, what do you think are some qualities and skills that can make aspiring lawyers stand out from the crowd?
Faisal Sherwani: I think it is necessary for any professional in the legal field to develop a scientific temperament.
You should be able to communicate well (mind you, this includes learning when to be silent – despite what people may tell you, talking endlessly is not a first-rate qualification for being a lawyer). More importantly, you should be able to deduce rational conclusions and make reasoned arguments. Last but not the least, there should be a moral fabric to you.
While you might be brilliant, a courtroom lawyer, in particular, should also inspire confidence and trust. Contrary to popular belief, it will not help if you are the deceiving type – all your brilliance and intelligence will come to nought if a judge finds you to be so.
Finally, you should intrinsically develop, imbibe and practice the three C’s, which I think are the basic qualities for any good lawyer i.e., remaining cool, calm and composed – irrespective of circumstances and challenges. For only then would you inspire confidence.
Thank you so much for speaking with us, sir.