Bar should be future-ready: Cyril Shroff calls for impact assessment of judicial orders on economic issues, reimagining court processes

Managing Partner of Cyril Amarchand Mangaldas Cyril Shroff opined on Friday that the nation would require a world class legal system to help transform a developing economy into a developed economy..Shroff was speaking at the eleventh annual Daksh Constitution Day lecture on the topic 'The Evolving Constitution: A View From the Bombay Boardroom'.At the end of the lecture, the senior corporate lawyer pointed out that in order to build a robust legal system to benefit the economy, hopefully by 2047 (a century post independence), the nation will have to address certain issues..Shroff shared the following suggestions and ideas with the audience:Judicial accountability based on impact assessment: In addition to "judicial deference", the judiciary should also conduct "judicial impact assessment" of its own judgments. This exercise is particularly important when it comes to matters of great economic importance, which are more often than not brought out by way of PILs. I only suggest that the judiciary should hold a mirror to itself from time to time. Being an unelected institution, it is imperative that it undertakes actions on its own to preserve its own accountability and autonomy.Reimagining non-core court processes: Justice delayed is justice denied. It is essential to not only minimise judicial bandwidth on administrative matters, but also to open up all non-core functions to innovative non-sovereign or private players to deploy technology to make court management far more efficient.Disrupting the bar and getting the legal profession future-ready: Chief Justice DY Chandrachud scathingly opined that the legal profession is akin to an old boys club where opportunities are given only to a selected group in a network. It is not based on merit, that all this must change and that the burden to change is on all the seniors and judges. There is an urgent need to not only modernise, but to also institutionalise and make meritocratic the system of apprenticeship and pupillage that exists today. This pre-colonial system has become the status quo and continues to persist, even while Britain has modernised its system several times over..Shroff mentioned a conversation he had with the Bombay High Court's Justice Gautam Patel where they reflected on whether courts were resolvers of disputes and protectors of rights.In his lecture, Shroff highlighted that the judicial system will have to tackle certain issues in order to aid in the development of the economy. In antitrust laws, new monopolies will have to be dealt with by the court.In corporate law, to define what is the purpose of a corporation and what is stakeholder governance.The coming wave of privatisation and asset monetisation will raise new questions regarding the tensions between value maximisation and process sanctity.With increasing salience of climate change, and once courts are able to establish a system of attribution to the cause and identify individuals/corporations behind climate change, questions as to their extra-territoriality and liability with respect to the public interest are bound to be raised.While fundamental rights are only enforceable against the State and instrumentalities satisfying the public function test, and with large corporations becoming quasi-sovereign, it will have to be seen if private law actions by private corporations will be held to constitutional standards under public law.Will the laws of the physical verse extend within the meta verse?Right to privacy is a fundamental right citizens have against the State. The new draft Data Protection Bill provides different standards of compliance for private data fiduciaries as opposed to the government.What would be the legal and ethical foundations of the artificial intelligence (AI) and new boundaries of biology?Will the apex court clear the air on the issue of third party financing and open the floodgates of class action suits in India?The private sector will also contribute to the prosperity in huge measures along with the State. However, how the State will create an environment of trust and entrepreneurship, and how will it control its worst instincts, will have to be seen..Shroff emphasized that the effect of decisions taken in the constitutional courts affected corporate lawyers and their clients."The Constitution and Supreme Court of India have a seminal role to play qua these factors in addition to ensuring the certainty and consistency of our commercial laws. Some of the deepest issues on constitutional law and the most hard fought constitutional principles have evolved in the contest of issues of economic rights and liberties", Shroff said. What the Supreme Court needs to be wary of are some public interest litigation (PILs) that tend to have a deleterious impact on the economy. Boardrooms believe that all risks can be priced, except the risk of the unknown. .Shroff also highlighted the multifarious roles played by the Supreme Court and how the interpretation of the Constitution affected the nation's economic journey between 1947 to 1991 and thereafter till 2022. He said that in 1947, the Constitution framers had extensive debates on the role envisaged for the State; be it the right to property, role of the State in businesses through nationalisation or privatisation and taxation or regarding federalism and the role of the Centre and states on legislating upon matters of commerce. "There is also a strong interconnection between our constitutional values and economic purposes. Whether it is employment, wealth distribution, food, safety, defence, healthcare, every need of the citizen has an economic and business angle. Even the State has a high dependence on the economy, and hence relies on the private sector to deliver," Shroff said. .Pendency numbers lie; glaciers melt faster than we can dispose of cases: Justice Gautam Patel

Bar should be future-ready: Cyril Shroff calls for impact assessment of judicial orders on economic issues, reimagining court processes

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