Month: July

Well,
that’s what I believe anyway. India used to be known as the ‘sone ki
chidiya’ – the Golden Bird, but that sadly is a thing of the past.
Corrupt officials, ineffective governance, ridiculous policies (both
foreign and national) and high level yes-men, have rendered this once
great nation, a laughing stock not only to the world, but also to its
very own residents. Having such a massive population, second only to
China, should have helped propel us forward, but it has been more of a
burden, dragging us behind. Restlessness and discontent was strife
against the current regime. A huge shake-up of the government, from top
to bottom, was massively required. And that is exactly what has
happened. A wave of change has swept over our country bringing with it
billions of hopes and expectations. And it is we, the youth, who stand
at the centre of this change.

Ten years from now, I see India as a
global superpower. I see us as a country at the pinnacle of
development, be it the economy, education, infrastructure or even the
health care sector. Yes, the health care sector! And this is where, as a
medical intern at Sion Hospital, I would like to give my not-so-expert
opinion.

According to me, the health care sector is one of the
most neglected fields in our country. And that, for a country with a
population exceeding a billion, is simply unacceptable. There is a lack
of availability of even the most basic of medical supplies, at the
primary health care level. For example, when I was doing my rural
rotation, the health centre I was posted at did not even have stock of
isosorbide dinitrate (simply called nitrate), a basic drug which is
critically important in the emergency management of myocardial
infarction, commonly known as a heart attack. Lack of such basic
supplies will hinder even the best doctor’s attempts at treating his
patients. The WHO guidelines dictate that there should be at least one
doctor for a population of 1,000 people. But the sad reality is that
this ratio currently stands at around 1:2,000 in our country. This
prevents people from availing even the most basic facilities, especially
at the primary level.

However, these problems are not just
limited to the rural level. They are also prevalent in the urban areas,
specifically the government-run hospitals. Most of these hospitals are
severely understaffed. Doctors are unable to give their complete
attention to every single patient, which results in them not getting the
appropriate medical treatment. Most of these hospitals are grossly
mismanaged, which results in the patient not getting timely, and in
certain cases, lifesaving medical care.

But it is not only the
patients who suffer. Doctors are in fact, the major victims of this poor
management of the health care sector. The ‘resident’ doctors, i.e., the
postgraduate student, are probably the ones who are the most affected.
These doctors are the ones who practically run the whole hospital. Along
with that, they have to battle a host of other problems such as
inhumane working hours (most of them don’t sleep more then 30-35 hours a
week), poor and unhygienic living conditions which predispose them to
various illnesses such as tuberculosis, abysmally low salaries, and
handling aggressive patients and their relatives, each of whom demand
the best treatment for themselves. Even after treating the patient to
the best of their abilities, there is always that nagging fear of
getting beaten up even if one miniscule thing goes wrong. In the private
set-up, although there are no problems of staffing or overcrowding as
such, it is the huge cost of treatment which acts as a deterrent, which
pushes people towards the public hospitals.

All these issues are
correctable, if the government shows the required desire, understanding
and dedication. The most obvious solution would be to increase the
number of doctors at all public hospitals. This increase should not only
be at the senior level, but should start from the grass roots, at the
undergraduate level. The number of seats at both UG (Undergraduate) and
PG (Postgraduate) level should be increased, which would results in an
increase in doctors at all levels. As of now, there are approximately
20,000 PG seats in government-run medical colleges throughout India.
This is totally inexcusable for a country with such a massive
population. Establishing new medical colleges and hospitals would go a
long way in providing better health services. It would reduce the
workload on already overburdened doctors. The aim of the government
should be to have at least a 100 new, tertiary hospitals in India in the
next 10 years. This would make a massive difference in ensuring quality
health care.The government must take steps to ensure better, sanitary
living conditions for resident doctors. Offering attractive
remunerations and financial packages would draw more doctors to take up
jobs at government hospitals. Another crucial decision should be to
increase the strength of the para-medical staff at all hospitals. These
include the nurses, ward boys, technicians etc. These people play a
critical role in the day to day efficient running of a hospital, without
whom, things would just come to a grinding halt. There should also be
an increased focus on infrastructure and basic facilities. For tertiary
health centres such as the big hospitals, providing them with the latest
technology, modern equipments and the best lab facilities, would go a
long way in enabling them to provide the best medical care that they
possibly can. For example, there are currently many hospital across
india which do not even have a CT scan! Primary health care as a whole
has been grossly neglected and steps must be taken to ensure that such
centers have access to basic, life-saving medications as well as simple
investigative equipment like x-ray machines. Our aim should not be to
provide medical care on par with the Western countries, but to provide
better care than them, simply because we have the resources to do so.

I
have a very limited knowledge of the budget and the constraints faced,
but I do know that expenses on health care were cut down by 10% for the
2014-15 budget. The most obvious solution would be increase the
allocation, and the subsequent expenditure, on health care. However, if
that is not possible, judicious and carefully planned use of the
resources should be made. There should be increased focus on certain
areas which require them the most, such as the primary health care
sector. Conducting increased number of health camps, with the assistance
of NGOs, would go a long way in tackling health problems in rural
areas. Special departments should be set up within the health ministry,
each given their exclusive objectives and asked specifically to focus on
them.

Ten years down the line, I would like to see every person, whether rich or poor, have the opportunity to access the best medical care and facilities. I would like to see India at the forefront of health care services. An India, where peo- ple from abroad come to access OUR health services, not the other way around. An India where our doctors get the respect and facilities they deserve, and are not vulnerable to the very diseases they are supposed to treat. An India where basic medicines are available throughout, such that not one single person should die from simple, preventable diseases like tuberculosis or malaria. All in all, I would like to see India achieve its tremendous potential, become the country that we know we can, and command awe and respect from the rest of the world. Bold claims maybe, but I firmly believe, with the current government in place, all of this is eminently achievable with the required will and hard work.

In the words of Martin Luther King Jr.,”I have a  dream…”

These words unite millions of proud Indians. India, a nation of many religions, languages, customs and beliefs, may have its perils, but in them also lie its myriad opportunities. As we tap the means of realising any such opportunity, we have to realise that the land on which we tread is sacred. Criticism is no way to revere it.

Back from the time of the Indus Valley civilization, till the end of the British Era, Indians as one people have not shared the same destiny, although we may have come close to it during the times of the great emperors Ashoka and Akbar. Sharing destiny entails sharing responsibility. The ‘Indian Dream’ is a million acts of private daring put together and in many of us the dreams of 1947 passed down the generations are still alive. Somewhere deep down in the heart of every Indian is the hope of one day seeing India restored to its former glory.

The areas in which India lags behind today in core competence are agriculture and food processing , education, healthcare, information and communication technology, providing quality infrastructure, creating a culture of self reliance for critical technologies, minimising the rural – urban divide, improving our attitude and approach towards women and emphasis on national security.1 There is little dispute as to what needs to be done; the debate remains over the means to achieve and sustain such core competence.

‘Development’ in India is a term that is loosely used and followed and includes anything that constitutes a new stage in a changing situation. There is always a tendency to view development as an accumulation of capital instead of including factors like the emulation and assimilation of knowledge2. Whereas in practice, it is actually a multi-dimensional term, that is a composite of the degree of economic and social growth. One of the major challenges that India faces today is to ensure that the governance is matching pace with and is responsive to the needs of the people. In this regard, the records of the many governments, both in the state and at the centre, have been murky at best. In order to succeed, one of the essential features that any government today will need to imbibe is transparency in governance. Embracing a policy of transparency would go a long way in restoring the faith of the people which has been steadily diminishing down the years. Well formulated and sound policies which are not bogged down with provisions having retrospective applicability, which are not regressive policies, and not based on knee-jerk reactions and which are efficiently implemented, would surely go a long mile in boosting the development of India.

We take pride today in saying that we are one of the world’s fastest growing economies and one of the largest economies. Even post the financial crisis of 2009 the Indian economy has maintained a positive outlook. The large population base provides enough market demand to sustain industry and make the country attractive from an investment perspective.

“Innovation is the specific instrument of entrepreneurship. The act that endows resources with a new capacity to create wealth.”- Peter Drucker.

Indians are shining across fields all around the globe and yet our present international rank is low with respect to the ease of doing business and innovation. The government needs to invoke the entrepreneurial spirit of Indians by placing emphasis on new knowledge and innovation and framing a national policy for entrepreneurs.

India has a high ratio of shadow economy entrepreneurs to legitimate business.3 At present, they are beyond the purview of the government and hence belligerently flout labour laws as also various other laws and do not pay taxes. Should the government adopt policies that would encourage formalising such businesses, their transactions would result in a substantial amount accruing to the exchequer and improve social security for the entire nation. Further, the formalisation of these entrepreneurs is incumbent to ensure that they innovate, accumulate capital and invest in the economy for promoting economic growth.

What has troubled industry and investors alike has been the lack of consistency in the role and policy making, the exercise of discretion by the government and the lack of clarity regarding the rationale behind the rules apart from of course, their enforcement.

Despite the limitations imposed, we do possess an impressive array of basic laws that are equipped to tackle most situations. In many instances we have not updated or upgraded them to match the progress of time.5 However, there are also certain laws that are completely archaic and have not been amended to cover present business realities, or even practicality, thereby creating an environment of uncertainty and confusion.

For example land acquisition has been a very touchy subject in India. The availability of land for implementing various projects is a key aspect of development and is considered a stable means of investment. The land acquisitions in India were governed by the archaic Land Acquisition Act of 1894 which was expropriatory and conferred the state with wide powers that affected a person’s right over his property.6 There have been many well documented instances where the acquisition of land under the Act was not consistent with the concept of the Indian welfare state.

Sharing destinies is different from sharing backgrounds. What works for one state may not work for the other, and this may be true from region to region. Innovation and adapting of policies to suit the needs of each region would need a healthy stand adopted by the state governments in the case of land acquisition. For example in Gujarat, a state that has large tracts of non agricultural land8; has instituted an industry friendly process of land acquisition which is governed by the GIDC, a statutory corporation responsible for the acquisition of industrial estates.9 Any industry that was interested in setting up shop in Gujarat could approach the corporation for an allotment of land.10 The corporation has instituted a fair and transparent mechanism for the compensation of farmers and has given the state a competitive edge over the others with respect to attracting investments. A similar role has been played by the nodal agency in Karnataka through the creation of land banks through acquisition in anticipation of industrial demand.

“See no advantage of new clocks. They run no faster than the ones made 100 years ago.” Henry Ford.

Apart from laws affecting business, there have also been instances where social laws are drafted without giving much (or in some cases, any) thought to its consequenc- es. An apt example would be the Bombay Prevention of Begging Act, 1959 which was extended also to the Union Territory of Delhi. Under this act, a person found begging upon being found ‘guilty could be detained in a certified institution for a period of one year.11  When challenged   in the Hon’ble High Court of Delhi, it was held that such statute completely failed to take into account the various aspects of begging.12 The court observed that a person could have taken up begging due to any of the following factors (i) The person may be lazy and would not want  to work, (ii) the person could be an alcoholic or a drug- addict, whose only thought was financing the next drink or dose,(iii) the person could also be exploited by gangs that thrived on the earnings of beggars, or (iv) he could be a destitute, starving and helpless person. Professional beg- gars as mentioned in the first category would certainly be the persons the act was trying to target. Whereas persons mentioned in second category would actually require help in a deaddiction centre. A person who is at the mercy  of a gang would need to be extricated from the clutches of such people. The last category of persons mentioned were persons who were genuinely helpless, who only begged to survive; to remain alive. Fairness and justice is the core of any law and policy introduced. No rule can apply to an entire population uniformly. Formation of sound law in keeping with this basic principle is the key to good governance.

“Any man who reads too much and uses his own brains too little, falls into the lazy habit of thinking”
– Albert Einstein.

Apart from a sound domestic legal framework, promulgation of laws and enforcement of policies formulated with regard to international business also play   a pivotal role in our country’s progress. Policies framed on ‘elite’ economics but disregarding practicality are dangerous to say the least. What is even more dangerous is that the people who frame them believe it is for the good. Whatever harm evil may do, the harm done by ‘good’ is most harmful.

“In International Commerce , India is an ancient country”
– Virchand Gandhi

Foreign Direct Investment in India has always been a contentious issue. The governments post 1991 have been following a policy of allowing FDI, yet restricting the quantum of investment allowed in each sector. In the ‘50s, India had an open door FDI policy, since Pandit Nehru was of the opinion that foreign capital was necessary to facilitate progress. The rules were so progressive that investors outside India were given the freedom to repatriate all profits. The discontinuation of this policy occurred in the late 60’s due to the increase of state control in the manufacturing and services sectors.13 Post this era it was all downhill for foreign investors, with the enactment of FERA14 .

In June 1991, the Government of India had to face the ignominy of pawning 67 tons of gold to foreign banks to shore up its meagre foreign exchange reserves. This exercise was necessitated by the demand for the dollar emanating from within the country. Fast forward two decades we can see that the reserves have reached over USD 300 billion and we have instances of the country buying over 200 tonnes of gold from the IMF (International Monetary Fund) to boost its reserves.15 This turnaround can be attributed to the Government’s decision circa 1991 to pursue an active policy of attracting foreign investment by creating a liberalised policy framework. Having said that, one has to balance social responsibility with economics. Economists framing policies may have education from a MIT, Havard or Stanford, however, they may lack real time assessment, which would likely result in a theoretically sound legal framework which completely fails to address the ground realities and the practical issues faced.

To illustrate further, let’s recollect the policy for FDI in retail, which has been debated endlessly. In India retailers are largely the entrepreneurs who set up small shops, convenience stores in an unorganised manner. Instead of supporting human spirit and will, the influx of foreign multi brand retail chains is likely to wipe out the young businessman. The promise of lower rates of inflation and food prices, improvements in warehousing and distribution, which appear to be the factors that influenced the allowance of FDI in retail, may not necessarily prove accurate or worthwhile. The advent of foreign retail chains in Thailand and Malaysia should serve as a cautionary tale, regarding the plight of local retailers.

Globalisation is another phenomenon that India has had to face over the past few decades. This is the process  of international integration in the fields of economics, fi- nance, trade, and communications. The policy makers in our country have to realise that blindly minimising trade restrictions and opening up the country to foreign investments may not be very opportune for developing country like ours.

Right to aspire for dignity and distinction is the prerogative of every citizen in a democracy.

On the social front, the labour laws in India have been categorised by many quarters as being pro- workmen. The need for far reaching reforms in such sector has been evidenced long back, as they16 create inflexibility in the labour market, which has been linked to a reduction in the growth potential of the economy. Such laws are nu- merous and ambiguous, that it is debateable whether they promote litigation or resolve disputes We as a nation could loose a lot in terms of its comparative advantage of labour abundance where such laws are inflexible to such a large extent. Certain reforms suggested are usage of contract labour in non core activities and enactment of a single legislation that combines the present legislations to form a comprehensive code governing and regulating the labour sector. Such need is even more apparent as witnessed recently during the construction projects undertaken for the Commonwealth Games, where there were denials of minimum wages, overtime and weekly holidays by contractors.17

Education is not preparation for life; education is life itself
– John Dewey.

The most important social obligation of education is still, very sadly a basic necessity denied to millions. One of the flagship programmes of the previous government was the provision for free and compulsory education for children between the age of six and fourteen18 and also envisaged the setting up of schools in every neighbourhood for the completion of elementary education. In a large country like India, even a small measure can have enormous impact if implemented across the country. Accordingly, a positive obligation was created on the State and a negative obligation on private educational institutions with respect to providing education. A bright feature of this programme was social inclusiveness, i.e., including minority institutions, so as to achieve the object of creating heterogeneous schools and classrooms. The inclusion of disadvantaged groups would mean that classrooms would not be the sole province of the privileged. Education for an effective policy has to focus on empowering the students by imparting knowledge and not merely teaching curriculum. It of course would not help if the students were not being imparted the skills necessary for their livelihood and survival. Nothing short of a cultural revolution is needed to empower our teachers and change the education system..

With the core issue of education, lies the deep connection to how one should treat our female citizens. The significance of Parvati, Sita & Shakti would have not been required to be separately imparted if only one learnt from childhood to respect women as an integral part of life.

‘Wherever laws end, tyranny begins’19 .

The judiciary is a body which ideally should be steeped in values and ethics. Its functions inter alia are to administer justice, to ensure that the rule of law is in place and to promote the observance and attainment of human rights.20 The common law based judicial system has failed to certain extent to keep pace with the tide of litigations that have been thrust upon it. In many cases, the judiciary had to act as a crusader of societal change. The courts today, despite the criticism, have been identified as the guardians of the constitutional promise of social and economic growth and have to conduct reforms to keep up with the march of time. The strength of various courts should be increased while maintaining quality of justice. The tenures/ retirement ages for judges should be increased to allow judges to cope with the humungous workload. With respect to the procedural laws, changes have to be made to the cumbersome and onerous aspects. Justice is not meant to be denied by delay. Of course people do take advantage of the system, but a gradual change in attitudes and procedures will surely go a long way in achieving a judicial dependency that is today lacking among the common man.

India, to realise its true potential and achieve what it can, has a long way to go. The journey has, I believe already begun a while ago, but is not at the pace it is capable    of treading. My India has to be just like yours, where we wake up to a land which provides for all and not just cater to the interests of a selective few. So let us not only as a theory but in practice too try and put our individual needs after that of our country and imbibe a spirit of togetherness. A spirit which unites us, takes us at a swift pace   to where we deserve and more importantly shapes our destinies, together as a nation.

In an attempt to revolutionarise dispute resolution in India that was stalled by the burgeoning traditional Indian Court system and to give contracting parties greater flexibility in choosing their dispute resolution mechanism, India updated its arbitration law in 1996. This was done by replacing the Indian Arbitration Act, 1940 (“1940 Act”) with the Arbitration and Conciliation Act, 1996 (“1996 Act”), which largely adopted the UNCITRAL Model Law on International Commercial Arbitration. The 1996 Act made significant improvements to the existing arbitration regime and has been responsible for the growing popularity of arbitration as the default dispute resolution mechanism in most commercial contracts. While the 1996 Act has been a reasonable effort by the legislature, the judicial interpretation of some of its provisions have made this “alternate” dispute resolution mechanism subject to constant (and often time-consuming) interference by the Courts. This has dulled, to some extent, the sheen and attractiveness of arbitration in India.

The two hallmarks of arbitration, at least, from an aspirational point of view, are: (i) the ability of parties to contractually substitute the regular civil courts with a private tribunal comprising of the parties’ chosen adjudicators whose decision has the force of law; (ii) avoidance of the pitfalls and inconvenience of court litigation including cost, delays, lack of subject matter expertise, inflexible venue, etc.

This Article seeks to identify some of the key drawbacks of the arbitration regime in India and the aspirations this author has from the judiciary, suggests solutions to overcome the same, which could possibly help restore the efficacy of arbitration in India over the coming years. By way of disclaimer, I must also acknowledge that this Article does not propose to be an exhaustive critique of arbitration in India but merely seeks to introduce the mostly common issues that are plaguing the Indian arbitration regime.

1. Refusal to uphold the binding nature arbitration agreements

Arbitration, simply put, is the voluntary submission of a present or future dispute by parties to a private tribunal (as opposed to a civil court) consisting of persons chosen either by the parties themselves, or through a procedure agreed upon by the parties, for final and binding adjudication. Once parties have agreed to arbitration as the dispute resolution mechanism for their disputes, they are expected to be bound by such agreement and cannot resort to civil courts for adjudication of such disputes.

This defining character of arbitration, i.e., exclusion of courts by agreement of parties, finds resonance in numerous provisions of the Arbitration Act. For example, section 5 of the 1996 Act declares that once parties have entered into an arbitration agreement for arbitration in India, “no judicial authority shall intervene except where so provided…”

Section 8 goes one step further. It directs every judicial authority before which an action is brought in a matter that is the subject matter of an arbitration agreement to compulsorily refer the parties to arbitration upon the application any of the parties to the arbitration agreement. The Supreme Court too has viewed Section 8 as a legislative mandate on the Courts that leaves Courts with no discretion or choice in matters where parties have already entered into arbitration agreements. In P. Anand Gajapathi Raju & Ors. vs. P. V. G. Raju (Dead) & Ors1. , the Supreme Court has observed that section 8 is “peremptory” in nature and proceeded to hold as follows:

“It is, therefore, obligatory for the Court to refer the parties to arbitration in terms of their arbitration agreement. Nothing remains to be decided in the original action or the appeal arising therefrom.”

Section 8 further clarifies that “notwithstanding that an application has been made u/s/s. (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made”. This further reaffirms the emphasis on the primacy given to arbitration. So even if one party initiates proceedings in Court despite entering into an arbitration agreement, the other party would remain entitled to commence arbitration and the arbitral tribunal can proceed to hear the matter even before the Court decides an application for reference to arbitration.

It is also worth noting that section 8 does not apply only to Courts. It applies to all “judicial authorities” before whom a dispute covered by an arbitration agreement is brought. Accordingly, all other authorities performing judicial functions, including tribunals such as the Company Law Board, are intended to be bound by the mandatory language of section 8.

The Scheme of the 1996 Act, and sections 5 and 8 in particular, make it clear that once parties have entered into an arbitration agreement, they will be held to their bargain and the courts will do permit either side to circumvent the arbitration agreement by commencing judicial proceedings instead of arbitration. But this legislative scheme has been somewhat diluted by three sets of decisions of Indian courts that have allowed Courts to retain control over certain kinds of the disputes even in the face of an arbitration agreement.

1.1. Multiple parties and multiple causes of action
In Sukanya Holdings (P) Ltd. vs. Jayesh H Pandya and Anr.2 , the Supreme Court held that:

…there is no provision in the Act that when the subject matter of the suit includes subject matter of the arbitration agreement as well as other disputes, the matter is required to be referred to arbitration. There is also no provision for splitting the cause or parties and referring the subject matter of the suit to the arbitrators…

…In our view, it would be difficult to give an interpretation to section 8 under which bifurcation of the cause of action that is to say the subject matter of the suit or in some cases bifurcation of the suit between parties who are parties to the arbitration agreement and others is possible. This would be laying down a totally new procedure not contemplated under the Act.

By the above ruling, the Supreme Court has created two exceptions to the mandate of section 8. According to the Apex Court, a judicial authority was not required to refer parties to arbitration u/s. 8 when: (i) the claim involves multiple parties, some of whom are not party to the arbitration agreement, or (ii) if only some, but not all of the disputes among the parties are covered by the arbitration agreement.

It is submitted that this case creates an unnecessary exception to the mandate of compulsory arbitration u/s. 8. First, the decision proceeds on the basis that when multiple claims are involved among the same parties, they must necessarily be pursued by way of a single composite legal proceeding. This, however, is not mandated by the either the 1996 Act or the Code of Civil Procedure (CPC). In fact, Order I, Rule 3 of the CPC only permits (but does not require) a plaintiff to join several disputes or causes of action or sue several defendants in the same Suit. Moreover, Order I, Rule 6 of the CPC actually permits the Court to split up a composite suit if the joinder of the multiple causes of action would “embarrass or delay the trial” or “is otherwise inconvenient”.

Secondly, the decision is prone to misuse by parties  that wish to back out of an arbitration agreement. For instance, two contracting parties having several transactions with each other may very often have several disputes and claims against each other, only some of which are covered by an arbitration agreement. A party who is keen on escaping the rigors of arbitration can do so quite easily by merely raising claims that are not covered by the arbitration agreement. Since the Court will not examine the merits of the substantive dispute at the initial stage of determining whether or not the matter should be referred to arbitration, a party can escape arbitration by raising even a frivolous claim that falls outside the scope of the arbitration agreement. Similarly, a person can also avoid an arbitration agreement by cheekily raising claims against other persons who are not party to the arbitration agreement. In fact, a person need not even raise an actual claim against such third parties. He can implead them in the Suit as “proper” parties so long as they have some reasonable connection with the subject matter of the Suit.

1.2.    Matters covered by special laws
It is reasonably well settled across most jurisdictions that a dispute affecting rights in rem (i.e., matters affecting the world at large) cannot be the subject matter of arbitration. So matters involving criminal offences, winding-up of companies or suits for foreclosure of a mortgage are generally considered as matters in which the public at large has an interest and are therefore non-arbitrable. The Supreme Court, however, has extended this logic to certain cases that involve nothing more than the personal rights of the disputing parties and has allowed Courts to interfere even when parties have consensually submitted certain disputes to arbitration.

In Natraj Studios (P) Ltd. vs. Navrang Studios3 and Mansukhlal Dhanraj Jain vs. Eknath Vithal Ogale4, the Supreme Court held that all matters falling within the ju- risdiction of the Small Causes Courts, including disputes between a landlord and tenant and matters between a licensor and licensee relating to recovery of possession, could not be the subject matter of arbitration. The Su- preme Court reasoned that in so far as landlord-tenant and licensor-licensee disputes are concerned, the Small Causes Court was vested with the exclusive jurisdiction to try such cases under the Presidency Small Cause Courts Act, 1882.

Although the above two cases were decided before the 1996 Act came into force, their dicta continues to be followed by the Bombay High Court5. As a result, even when a landlord-tenant or a licensor-licensee enter into  a written agreement to refer all disputes between themselves, including disputes relating to recovery of possession, to arbitration, either party can avoid the arbitration agreement by claiming that the Small Causes Court has exclusive jurisdiction to try such matters.

Presumably, this reasoning can be extended to all matters where designated courts and tribunals have been vested with jurisdiction try certain specific type of cases. In fact, in several cases, the Company Law Board has also taken a similar view and assumed jurisdiction over shareholder disputes even when there was an arbitration clause between the shareholders. For instance, in the case of Rajendra Kumar Tekriwal vs. Unique Construction Pvt. Ltd.6, the Company Law Board held as follows:

“…the test to determine as to whether the matter in a petition u/s. 397 & 398 is to be relegated to arbitration or not, one has to examine whether the allegations  of oppression/mismanagement contained therein can be adjudicated without reference to the terms of the arbitration agreement. In the present case, this Board can examine the allegations purely on the basis of the Articles. If it can be, then the question of referring the matter to arbitration does not arise even if assuming that there is an arbitration agreement and the agreement covers the same matter. In the present case though there is arbitration agreement, the matter relates to oppression and mismanagement directly relating to the rights of or benefit to shareholders in their capacity as members of the company arising out of the provisions of the Act, Articles or on equitable grounds. Assuming that the matters are covered under the arbitration agreement yet, since the same is covered under the Articles also, this Board can determine the allegations only with reference to the Articles and without recourse to the arbitration agreement.”

This line of reasoning, it submitted, not only dilutes one of the objectives of the 1996 Act, viz. to reduce the burden on the judicial system, but also flies in the face of the plain language of section 8. There is nothing in the 1996 Act which suggests that merely because a dispute falls within the exclusive jurisdiction of a special Court or Tribunal, such dispute is incapable of being determined by arbitration. On the contrary, section 8 deliberately uses the words “judicial authority” instead of “civil court”. A reasonable interpretation of section 8, especially in light of the object of the 1996 Act, would suggest that the legislature deliberately used the wider term “judicial authority” to ensure that the section 8 covers all judicial bodies, including special Courts and Tribunals such as Small Causes Court and Company Law Board.

1.3.    Fraud and other complicated matters
The third set of cases, which has further diluted the sanctity of a binding arbitration agreement between the parties, are the decisions where the Court has held that an arbitral tribunal is not equipped to deal with matters involving complicated questions of fact or law or disputes where an allegation of fraud is has been made.

Under the old arbitration law7, the Court was not bound to refer parties to arbitration even when parties had entered into an arbitration agreement. The Court could, for “sufficient reason”, refuse to relegate parties to arbitration and instead decide the dispute itself. But the language of section 8 of the 1996 Act, as explained above, is mandatory and leaves the Court with no discretion.

Despite the clear difference between the provisions of the two legislations, the Madras High Court, in the case of Oomor Sait HG vs. Asiam Sait8, has taken the view that even under the 1996 Act, the Court continues to retain the “time-tested” power of deciding whether or not to refer the dispute before the Arbitrator.

The Supreme Court, in the case of N. Radhakrishnan vs. Maestro Engineers & Ors.9 has upheld this view and held that when there are serious allegations of fraud or malpractices or manipulation of finances such matters cannot be properly dealt with by an Arbitrator. Such issues should, “for the furtherance of justice”, be tried in a court of law which would be “more competent and have the means to decide such a complicated matter…”. This reasoning has been followed in several subsequent cases.

It is submitted that this is an artificial exception that has been carved out despite there being no legislative backing for it under the 1996 Act. In fact, it appears to be a hangover from the early days of judicial mistrust of arbitration when the Courts felt that arbitration, as a means of adjudication, was rife with short-comings10. But this exception creates to the rule that an arbitration agreement is binding on the parties and the Court, creates a virtual black-hole. A party who does not wish to submit to arbitration can  do so by merely raising an allegation of fraud and claiming that such an issue cannot be adjudicated upon by an arbitrator. Unless the Supreme Court changes its view, it would be difficult for any civil Court or High Court take a different view and they would find themselves compelled to ignore the arbitration agreement in every matter where there is an allegation, howsoever far-fetched of fraud.

2.    Pre-arbitration litigation
The other problem plaguing the arbitration regime in India is the lengthy and expensive pre-arbitration litigation that is required when one party (usually the party disputing the claim) refuses to participate in the arbitration process. U/s. 11 of the 1996 Act, if parties to an arbitration are unable to agree on the arbitrators or if one party refuses to participate in the appointment of an arbitrator, then the Chief Justice of the relevant High Court (or his designate) is empowered to appoint the arbitrator.

A plain reading of the section suggests an innocuous procedure whereby designated Judge will perform a routine task of merely naming an arbitrator and relegate the parties to the arbitration by such a court appointed arbitrator. The Supreme Court, however, in the landmark case of SBP has held that the Chief Justice’s power u/s. 11 is not an administrative task that can be carried out summarily but is matter far more exhaustive. The Court has defined the role of the Chief Justice u/s. 11 as follows:

“Obviously, he has to decide his own jurisdiction in the sense, whether the party making the motion has approached the right High Court. He has to decide whether there is an arbitration agreement, as defined in the Act and whether the person who has made the request before him, is a party to such an agreement. It is necessary to indicate that he can also decide the question whether the claim was a dead one; or a long barred claim that was sought to be resurrected and whether the parties have concluded the transaction by recording satisfaction of their mutual rights and obligations or by receiving the final payment without objection. It may not be possible at that stage, to decide whether a live claim made, is one which comes within the purview of the arbitration clause. It will be appro- priate to leave that question to be decided by the arbitral tribunal on taking evidence, along with the mer- its of the claims involved in the arbitration. The Chief Justice has to decide whether the applicant has satisfied the conditions for appointing an arbitrator under Section 11(6) of the Act. For the purpose of taking a decision on these aspects, the Chief Justice can either proceed on the basis of affidavits and the documents produced or take such evidence or get such evidence recorded, as may be necessary.”

As a result of the above interpretation given by the Supreme Court, appointment of an arbitrator is by no means a straightforward process. A person who seeks appointment of an arbitrator, is first required to prove through affidavits and detailed arguments the following: (i) existence of a validly executed arbitration agreement; (ii) that the claim is a long dead one; (iii) that there has been no accord or satisfaction. This entails filing of detailed pleadings and exhaustive oral arguments and it could be several months before the High Court makes a decision and appoints an arbitrator. Even if the High Court chooses to exercise its power in favour of arbitration and appoints an arbitrator, this appointment can be challenged by way of a Special Leave Petition before the Supreme Court under Article 136 of the Constitution.

CONCLUSION
The 1996 Act, as it stands today, is a reasonable effort at promoting arbitration. But the manner in which several of its provisions, especially section 8 and section 11, have come to be interpreted by the Courts, somewhat takes away from this effort. It is submitted that as a result of the colour given to these provisions if the 1996 Act by the various rulings of the Supreme Court, the hallmarks of arbitration, viz. mutual agreement to avoid courts, and expeditious decision making, continue to remain aspirational and serious re-thinking is required, preferably judicially, to correct this dichotomy.

The Supreme Court has in the past two years started taking a more liberal view of arbitration and has been less eager to assume control of matters when parties have agreed to exclude the jurisdiction of Indian courts. In the case of BALCO vs. Kaiser Aluminium12 the Supreme Court boldly overruled its long criticised decision in Bhatia International13 and held that Indian Courts have no role to play when the seat of arbitration is outside of India, even if parties or the property in dispute is in India. Furthermore, in World Sport Group vs. MSM Satellite (Singapore) Pte. Ltd.14, the Supreme Court has rejected the contention that an arbitral tribunal is incompetent to deal with allegations of fraud. But since this was a matter relating to an arbitration taking place outside of India, it does not apply to arbitrations held in India, which continue to be governed by the law laid down by the Supreme Court in N. Radhakrishnan’s15 case.

Both these decisions suggest that the Supreme Court has recognised that a strong push is required from the judiciary to correct the gap that exists between the legislative intent and judicial interpretation of Indian arbitration law. It is hoped that the Court continues this trend over the next few years and smoothens out the remaining creases, including the ones highlighted in this Article, by relooking at the law laid down in some of its previous decisions. !

No, you read it right. It was 8th June 2014 and not 8th June 2004. Why people are so excited over something that they should have had at least 10 years ago, befuddles me! Mumbai generates 5% of India’s GDP, but our infrastructure system is in shambles! Roads are potholed, traffic situation is pathetic, trains, buses are unimaginably overcrowded and people spit, shit and litter anywhere, without a care! We have to bribe through our noses to get our work done and we are still struggling to get decent internet connectivity. Above all, every once in five years we are prepared to get attacked by terrorists. We may be an alpha world city, but it is shameful that we are lagging far, far behind our western counterparts. And what’s true for Mumbai, is truer for India.

At 24, me and my generation have become responsible for the future of our country. We have our sights on the global leadership throne, but we have inherited an onerous, corrupt kingdom. Well, since we are intent on becoming world pioneers, we have set out to reform our own nation first; we are going to cleanse it, bring it up-to-date and then lead it.

We have already taken our first steps towards this goal by bringing to power a government that takes our lofty aspirations seriously and is committed to help us achieve it. Together we shall take India to the heights billions before us have dreamt of! And now to war! A war for upliftment of the poor and the illiterate! A war for saving the dignity of our nation! A war against the mediocrities that have far too long plagued our country!

We shall evolve, leaders.

“Achche Din Aane Wale Hain.”
The entire country is gushing over this one statement of divine prophecy. Mere five words have made the stock markets go tipsy. Some are saying that this is the start of a new era for India! This is all very endearing except for the one single problem that I have: Why aren’t the achche din here already?

Our country makes me mad. The oldest civilization in the world and we are still a developing nation! 5,000 years of history that we are proud of, but a shameful present and a stumbling future! 30 crore Indians are illiterate. That is the entire population of the United States of America! 15 crore are poor. That is more than Japan’s entire population. And by the way, the international poverty line is Rs. 90 per day. Which means that when I sponsor dinner to my friends, I spend more in one hour than what my poor brother earns in a month! It is 2014, and India has not been able feed, clothe and house all her citizens. In a completely unrelated story, India has the 6th highest number of billionaires!

While we are talking about citizens, let us take a few questions from the people of my generation.

“Why do I feel scared of getting out of my house alone at 10 in the night even if I stay in the capital of the largest democracy in the world?” asks a 22 year old Delhi resident, Aditi.

“What is electricity? Is it a toy? I have never seen it!” says 8 year old Shivappa who resides in a small village called Makki in Karnataka.

“Why do I have to pay chai-pani everytime I have to get my file removed in the Income Tax Office?” asks 20 year old Rajesh, a budding CA hailing from Patna.

All these questions, my predecessors have left unanswered! And now it is upto me to answer them.

At 24, I have come to a stark realisation that the future of our country has fallen squarely on my and my generation’s shoulders. And we have inherited an outdated, bureaucratic and debauched state from our predecessors. The present government, like each of its forerunners, has promised the sky; but then again, has there ever been a dearth of promises in our land? Where the previous one’s have consistently and cumulatively floundered is backing up those promises with tangible efforts.

The onus therefore to make amends rests completely and unequivocally with my generation. It is now our responsibility to ameliorate the past, augment the present and accelerate the future. And thankfully, all is not lost. Our country still retains the proverbial silver lining in the form of educated and motivated young population, large domestic demand base and high savings rate. Fortunately, these are the exact things we could not have worked without.

Global leaders at everything. That’s what we aim to become. Be it trade or sports or education or technology. We want to edify the next Einstein, build the next Burj Khalifa and grubstake the next Google. We want to outdo China at the Olympics and end tiger poaching. We want to be the next startup hub, the next global tourism hub and the next healthcare hub. We want LTE connectivity in each village and a dream job for each citizen. We want be at the top, of the top.

Naysayers shall complain that we are being immature, materialistic and we don’t know what the realities and the difficulties are. No offence sir, but we don’t care. Yes, it is a steep, treacherous road. It is going to be a dogfight and we know it. But we don’t just dare to dream, we dare to live our dreams. Frankly, it is not just our dream. Billions before us had the same vision. But we shall be the torchbearers to an advanced Indian state!

Chris Gardener, the motivational American entrepreneur wrote that “if you don’t take the necessary steps to make them happen, dreams are just mirages that mess with your head!”. We have already taken the first steps towards achieving our dream! Over 2 crore first timers, 18 and 19 year olds, a record participation, voted for the rehabilitation and reform of the Indian economy. We voted for CHANGE. We voted for a government with a track record of fulfilling promises. And believe you me, we require this government to make good on some pretty big promises.

Our first mandate to this government is that they need to very clearly understand that they are a government to my generation. We are an impatient bunch of people. We have an attention span of 140 characters or lesser, so we’d be grateful if you make your point quickly. We are practical and result oriented. We value guidance, but we value quantifiable efforts more; what we don’t value is futile vote bank politics and bureaucratic processes. We are motivated to achieve our goal and we require you to be equitable enablers so that we can partner in making India the global superpower it should be!

To play out your role of being facilitators of growth, progress and development, we have a four point agenda where the government needs to immediately ring in definitive reforms. Special focus needs to be given to rural areas – where most our country’s resources reside.

Infrastructure
While we may live in a modern day society, our infrastructure is severely medieval. How else would it be possible that almost 25% of our population lives without electricty! Why is agriculture still dependent on natural rainfall and animal resources? The infrastructure sector is the backbone of all investments into our country, therefore it is critical that this sector gets the much needed shot in the arm.

Transportation, energy, telecommunication, education and healthcare are amongst the most vital sectors requiring impetus. All the villages have to be connected by a network of roadways, railways and basic amenities like electricity and water. Innovative automation, especially in the agriculture industry, e.g. computer controlled ploughing or schemes like ‘e-Choupal’ which empower the farmers needs to be introduced. The new government has to reduce bureaucracy and usher adequacy, accessability and reliability to strengthen investor confidence.

Education
Education system today, is down in the dumps. It is unequipped, outdated and ridiculously inadequate. Just to give a perspective, children born today shall retire in the year 2080! Is it even distantly possible for us to provide them with the skills to survive and thrive that long? Al- ready today, there is a sharp disconnect between the educated skills and employable skills.
The need of the hour is to reengineer our education curriculum so as to embed employability into courses and forge stronger links between business and academia. Teacher education system has to be rebuilt, grounds up. Partnering with foreign institutions offering specialisation programmes shall upgrade the Indian education system to global standards. It is imperative for the new govern- ment to increase spending on education to 5% of GDP.

CORRUPTION
With the parallel economy running at $ 700 billion per year or 40% of our GDP, corruption is the biggest reason for inequitable wealth distribution in our country. It is literally killing our nation. Unfortunately, the canker doesn’t stop at illicit monetary transactions. Our biggest cause of worry is the corruption of moral and ethical values.

The new government has to put an end to corruption. Immediately. Permanently. Stringent anti-corruption framework and comprehensive education to impart discipline consistent with a national code of conduct for good citizenship shall act as strong deterrents to corruption. Policy makers may implement the Nordic model of governance which practically eradicated corruption in some developed Scandinavian countries. But most of all, Indian citizens need to realise that corruption can only be completely evicted from within, not without.

ECONOMY AND GOVERNANCE
Our economy is dithering due to high levels of inflation, instable currency and the alarming levels of fiscal deficit. The zooming stock markets are nothing but a heightned sense of exuberance, the fundamentals beneath the dizzy heights are yet to improve. Also, with only 3% of the entire population paying taxes, the government has to take some hard calls to increase public revenues, improve economic factors and bring sanity back to the land.

Softer issues like casteism, communal disharmony, gender inequality and rampant crime are still affecting our society Despite living in the 21st century it is deplorable that a woman is raped every 20 minutes in India. We, as a society, are self-conceited megalomaniacs. Freedom of expression is trampled on regularly and intolerance is  an instinct embedded deep within the Indian psyche. It has become necessary now to attack this malaise from  a national platform. Women empowerment has to be a agenda item. Implementation of radical and stringent penal practices has become a necessity. Governance has to be redefined to mean Minimum government, Maximum governance!

HOW CAN CHARTERED ACCOUNTANTS HELP?
While as a member of Young India I am responsible to contribute towards India’s growth and progress, being a qualified chartered accountant makes me doubly account- able to achieve my generation’s goal for India. Our qualification gives us the skills and the access to almost any industry we choose. It charges us with the responsibility of being ombudsmen to our society to ensure enhanced transparency and accountability. But how do we dispose these responsibilities? What measures do we take to en- sure that CAs are at the forefront of all professionals?

Contributing towards rural and semi urban development Growing investment in agriculture, relocation of manufac- turing base to tier II and tier III cities and acceptance of the concept of inclusive growth shall generate consider- able requirement of financial administration, risk manage- ment, tax planning, accountancy, legal advice and better governance in rural and semi urban areas. The time is ripe for CAs to increasingly set up proprietorships and partnership firms here. We can assist the local panchay- ats in areas of governance, taxation and finance planning. One more area of contribution may be compliance to the latest Corporate Social Responsibility provisions, where- by companies shall be able to uplift rural and backtroden areas.

CONTRIBUTING TOWARDS GLOBALISATION
According to a United Nations Conference on Trade and Development (UNCTAD) survey in 2012, India is the second most important foreign direct investment (FDI) destination for transnational corporations after China. Further, the new government’s focus on improving strategic ties with key foreign powers and its determination to simplify the investment process shall propel FDIs in our country.

There is therefore, a burgeoning requirement of CAs in the areas of double taxation avoidance, transfer pricing and corporate laws. IFRS, sustainability reporting, UK Bribery Act and SOX are also becoming a compliance necessity for Indian multinational conglomerates. Specialising in these areas shall help us better align with these requirements and supplement the global India case.

CONTRIBUTING TOWARDS AUTOMATION
Technology is slowly permeating and disrupting every sphere of business. The risk landscape of various sectors like banking, insurance, capital markets, telecommunication, etc. has undergone a paradigm shift with increased dependence on internet and technology. Also, with the proliferation of Enterprise Resource Planning (ERP) solutions, organisations today have lesser control over data integrity, privacy and reliability. There is an urgent need for CAs to enhance their risk management expertise by equipping themselves with skills necessary for identification, assessment and mitigation of IT risks.

CONTRIBUTING TOWARDS CEASING CORRUPTION IN INDIA
Being CAs we are always precariously treading the thin line between tax evasion and tax planning. Similarly, cor- porations today are always trying new ways to ‘improve’ their financial statements. It is imperative therefore, that we ensure real compliance with various provisions of the taxation laws and reporting standards, that we steadfastly uphold our ethical values and moral standards and ensure that we neither allow nor abet any act of malfeasance.

Public and government sector have recently been riddled with scams like 2G and Commonwealth. CAs have to ensure transparency, by making the government accountable towards the country and its citizens for the utilisationof citizens funds through exhaustive public audits.

CONTRIBUTING TO ENTREPRENEURSHIP

Our nation is becoming increasingly entrepreneurial. There has been a huge spurt in the number of startups in the recent years and the trend is going to be an up- swing. With a huge demand for support areas like market research, venture funding, financial modeling or business value chain implementation, CAs have to hone the skills they already have to be at the forefront of this bull wave!

THE NEED TO REINVENT OURSELVES

It is evident that there is a lot of opportunity for us, CAs,to make our mark in India’s next decade of advancement. However, it is now inevitable that we reinvent who we are! Whether in practice or industry, we can no longer solely remain financial stakeholders of companies. We have to become business stakeholders!

It’s going to be an uphill task, history and tradition are against us, but it can be achieved. What we need is a catharsis! A step back to realign our interests with those of our nation. We need to innovate some of the core elements of our present day qualification so as to make it more attuned to the present day scenario. For instance,
•    The current curriculum and the examination pattern needs to be revisited. Inputs should be drawn from industry, practices and international institutes so that the curriculum ensures employability and equips our students to have an equal standing with their global counterparts. Special attention should be awarded to cross functional training since today, MBAs, cost accountants, financial analysts, etc. have started replacing CAs, even in core areas like finance and taxation.

•    Is an audit firm oriented articleship the only option for practical training? Why can’t students gain industrial training for the entirety of their tenure from some of the top companies of India? We need to realize that the students have two diets of careers to choose from, practice firms and industry. It is imperative that a solution is derived for the blinkered audit based training approach.

•    Partnering with foreign institutions has become the need of the hour. With CA students opting for multiple degrees, the institute should ensure that the skills developed by the CA institute are not put to waste. Collaboration, not competition is the way forward. Also, with multiple professional degrees, what matters is that CAs continually update themselves in their area of work and remain relevant. However, it is doubtful whether the present CPE norms ensure continuous education. A bitter pill that needs to be swallowed and worked upon.

•    Most importantly, the ICAI needs to ensure that it remains strongly in control of the central elements of our profession – accountancy, taxation and audit. It needs to retain relevance by producing quality CAs, and work against becoming an exam conducting body generating dignified accountants!

It is imperative therefore, that CAs allineate themselves to the big picture. This nation is now in the hands of a new generation, our generation. Fearless and unafraid, we are the custodians of India’s advanced future. The revolution has already begun. And we will emerge victorious. We shall evolve, leaders!

Achche din are here!

The requirements of a younger nation differ radically from aging countries like Japan or even China, for that matter. By 2020, India is set to become the world’s youngest country with 64% of its population in the working age group. A UN HABITAT report states that while income levels in cities may appear to be higher, the cost of living is also constantly increasing, resulting in shrinking savings, inadequate access to health care and lack of quality education.

And so, I believe that our young, growing country demands a progressive, result-oriented transformation-and a nation that can cater to theaspiration and temperament of the young population. India 10 years from now will be more intelligent, more informed, less tolerant of incompetence and regressive practices. I believe that we are growing more aware as a nation.

I believe that a decade from now, we will be a more transparent, and accountable nation-where change and progress will get more apparent. I don’t believe that a radical transformation would be required-but stable, steady and sustainable growth is more desirable and will perhaps, be delivered.

Dr. APJ Abdul Kalam’s book, 2020 – A Vision for the New Millennium, examines in depth the weakness and the strength of India, as a nation, and offers a vision of how India can emerge to be among the world’s first four economic powers by 2020. This is a goal post that we can all agree, is desirable and on everyone’s agenda.

However, I believe that there is another critical component to development in the country. Inclusive growth and a green economy are the government’s guiding principles for its development agenda. Sustainability-economic, environmental and social can provide a balanced approach to the development of the nation.

The UN Environment Programme’s Green Economy Report demonstrates that green economies are a new engine of growth, generate decent jobs and are vital to eliminating persistent poverty.

And so, while I hope for a stable and progressive country in the decade to come, I also hope that our economic social and environmental goals will align with sustainable ideals.

My Profession
As a Sustainability and Green Building Consultant, I am currently part of some of the most topical conversations with regard to environment, renewable energy, energy efficiency, technology etc. Sustainable solutions mean meeting our lifestyle and existential requirements in a manner which is harmonious with the environment and does not jeopardise the future of our existence on this planet.

Sustainability is no longer a buzzword but reflects an indispensability as our survival depends on it. India, aspiring to be an opinion leader and increasingly emerging as one, especially in the aftermath of the recession, needs to be at the vanguard of this movement and lead from the front.
Indians have realised the importance of making their residences compatible with environment, and regulators have also become active. If environmental activists continue to be as vociferous as they are now, I would like to believe that Consulting on Green building will probably have ended-I am going to have to find something else to do! It will be passé, as projects will be designed to be more efficient through inherent design, effective resource consumption and innovative technologies.

I would like to believe that the profession of a sustainability consultants will disintegrate into creating impactful policy level decisions to ensure sustainable growth in the country-regardless of the sector-agriculture, healthcare, real estate etc. I would also like to believe that sustainability consultants can use their experience to think as innovators to solve solutions of environmental degradation- in all fields.

Expectations
Transparency. Responsibility. Accountability. These are the expectations from our government.

We as citizens, understand that we are stakeholders in the issues pertaining to the country’s development and growth. We would like to understand our responsibility and the manner in which progressive policy formulation is done. There needs to be transperancy in this regard.

For this to happen, I believe that governments need to respect and understand the role of sustainability, for growth and superior long term returns. As US President, John F. Kennedy once said, “There are risks and costs to a program of action. But they are far less than the long-range risks of comfortable inaction.”

Organised action toward sustainable growth with measurable outcomes is expected. For example: strategies to manage resources like water, and energy must be measured and regulated in a responsible manner. Corruption with regard to regulation of other natural resources must be stopped. Education at large, and an emphasis on sustainability will allow ups to be equipped for future needs and requirements. Progressive policies on agriculture and even urban farming to mitigate long-term environmental risks and hazards is key. Furthermore, policies that require us to measure, monitor and regulate carbon emissions at large, across all industries and domestic sectors is critical.

The Indian private sector, known for its resilience and entrepreneurship, is ideally placed to lead this movement and the government’s policies in this regard, although not adequate as of now, are at least encouraging and reflect the right intentions. A combination of entrepreneurship and adequate policies has the potential of making India a role model for many to follow and emerge as a true super power, as only a high GDP growth rate is not the sole criterion in today’s scenario to be considered a superpower.

Most importantly, I believe that sustainability needs to be a way of life for it to become a reality. Our present state of excesses and skewed development is against the very grain of sustainable development. It needs to be community driven to not only provide everyone an incentive to be a part of the movement but also ensure equitable distribution of resources. The focus on rural areas is inevitable as two-thirds of the country lives in villages and small towns. They need to be made a part of the movement and made to see the benefits of the same before they are bitten by the ‘so-called development’ bug. The lifestyle and culture of an average person in such areas is conducive to this movement and all these attributes can be dove-tailed to fulfill the needs of Indians in a sustainable manner.

After all, as explained in a quote from Lakota, “We do not inherit the Earth from our ancestors; We borrow it from our children.”

On 26th May 2014, Mr. Modi was sworn in as the 15th Prime
Minister of India. The first steps of the new government have been
positive thus far and irrespective of one’s views on Mr. Modi, there is
an undeniable feeling of optimism about the country and excitement for
the good times to come or as goes the BJP’s election campaign song,
“acchhe din aane wale hain”. One of the key reasons for the victory was
the effective use of social media and the strong focus on development
and good governance in its campaign which allowed the party to reach the
youth in a way never done before. The “Abki baar Modi sarkar” as well
as similar messages flooding the social media space in the months
leading to the election were specifically designed to attract the youth.
Not surprising given that almost 65% of the Indian population is below
the age of 35 today, with India having the largest youth population.
This youth-centric campaign that made development a key agenda also
played a crucial role in India registering its highest ever voter
turnout of 66.4%. The mandate was clear: Focus on the youth to shape
India’s future.

Acknowledging the fact that the future of India
is inextricably linked to the future development of India’s youth, the
Bombay Chartered Accountants’ Society has, in the special issue to its
prestigious Bombay Chartered Accountant Journal, chosen the
theme“Imagining India from the eyes of young professionals”.

A
common question in job interviews is: “Where do you see yourself in the
next 10 years?” While most of us have chartered a path of where we want
our careers to be after 10 years, not many of us have thought, “Where do
I see my country in the next 10 years?” Admittedly, I too was one of
them and therefore, thank the Society for giving me this opportunity to
stop thinking from a micro level perspective and start thinking on a
macro level. Coming to the question at hand, I for one, like millions of
my fellow young professionals, am very optimistic.

I am sure
that a decade from now, India will be a super power, economically as
well as intellectually. It is no secret that this country is brimming
with talent. Millions of hard working and supremely talented people
proudly call this country their home. Yes, it has been hit hard by scams
in the recent past and many foreign investors have lost their
confidence in the economy. However, as the perennial optimist Harvey
Dent says in the movie, The Dark Knight, “The night is the darkest just
before dawn!” One can only hope that India has turned the page on one of
the darkest periods in its post-independence period and the dawn is
just around the corner.

It is only a matter of time before the
investor confidence is reposed in the Indian economy with the new
government hinting at steps to do the same by having a clearer tax
system and negating the element of uncertainty in the taxes that the
foreign investors are wary of today. Numerous foreigners awaited with
bated breath, the results of the recently concluded Indian elections as
though their future plans as well as their existing plans to invest in
the country depended upon it. Agreed, that it is not much to go on.
However, this has provided the new government a platform to give a
confidence boost to these potential investors and welcome them with open
arms.

A decade from now, we will see the economy being opened up
and moving towards becoming a free-market economy with minimum
regulation required. With trade flowing across the country, flowing
freely from all over the world, one would also see the strengthening of
economic ties with economies, such as China and Japan, allowing India to
position itself at the top for free trade with some of the largest
global players.

Such free trade would also result in an increase
in employment. The Prime Minister has already stated that inclusive
growth is the goal of the new government. Further, the Food Security
Bill and the Mahatma Gandhi National Rural Employment Guarantee Scheme,
if properly implemented, could drive the way towards eradication of
poverty. Creating employment would result in more disposable income in
the hands of more Indians, leading to an increase in demand for consumer
products. Further, the increase in disposable income in the hands of
the middle class Education reforms especially in rural India can spur
the improvement of the quality of education. It is only with quality
education that one hope to make India an economic power house. The first
67 years of the country’s independence have witnessed a high occurrence
of brain drain, especially in the information technology sector with
the Satya Nadellas and Rajeev Suris heading top corporations of the
world. However, the next decade consisting of free-market and a booming
economy would witness a reversal of the brain drain, where Indians
working abroad would return to India for better professional
opportunities and to serve their country. This phenomena has already
started with various foreign companies setting up businesses in India
and asking Indian employees already working abroad to return and work
from these Indian subsidiaries and branches in the initial stage.
Subsequently, one would witness many start ups beginning their journey
in the country and soon we would have our very own Silicon Valley. This
would be supported by the advancement of infrastructure and technology
in the country.

A recent tweet from the Prime Minister has
suggested that infrastructure does not only mean highways but also optic
fiber networks or ‘information highways’. A recent study shows that
India is currently 3rd in the world in terms of number of users of
internet! It is only a matter of time that it would have the highest
number of users in the world.

In terms of infrastructure, one
would also witness the improvement in the infrastructure in the country
in the coming decade with the Golden Quadrilateral (highway network of
roads) and the railways connecting every corner of the country.

In
respect of the chartered accountancy profession, I am of the firm
belief that we are in for exciting times ahead during the next decade.
With the three main laws, relating to the Companies Act, the Income Tax
Act and the Goods and Service Tax, undergoing an overhaul, it is back to
the drawing board for most of us in the profession.

Firstly, the
next decade would see chartered accountants moving away from the
traditional areas of practice such as audit and tax and towards
unexplored territory such as investment advisory, valuations, mergers
and acquisition advisory, transfer pricing, corporate law advisory,
securities law advisory, foreign exchange law advisory, management
consultancy etc. This in turn would lead to more opportunities being
available especially in unchartered areas. Further, with laws undergoing
major changes, clients would look up to the chartered accountants to
guide them for compliance with these new laws. One would therefore, see a
shift of focus from the attestation function to an advisory function.

Further, the Companies Act requires appointment of independent directors in case of certain companies. Who better than chartered accountants to be appointed as independent directors. It is common knowledge that a chartered accountant knows the business of his client, right from the efficiency in operations, accounting, finance and taxation aspects.

The free-market approach of the government leading to the increase in inbound investments would lead to an in- crease in the demand for chartered accountants as the foreign investors would not have knowledge of the laws applicable in India.

Secondly, the next decade would also see the rise in super-specialisation in the case of chartered accountants. The free-flowing trade and investment in India resulting in increase in the demand for chartered accountants would lead to higher occurrences of complex transactions and would require an expert in the field to understand such transactions. This would lead to chartered accountants specialising in certain fields thereby creating a niche. A ‘jack of all trades but king of none’ chartered accountant may not be able to survive in a highly competitive environment and therefore, eventually everyone will move towards super-specialisation. Super-specialisation would also lead to a higher bargaining power for the purposes of fees.

At the same time, many clients would prefer going to a one-stop shop i.e., a CA firm which would provide all the services that would be required by the client. This would lead to multiple chartered accountants or firms providing services in different niche areas merging or combining into one and working together and therefore providing various super-specialised services under one umbrella.

Thirdly, another major area where the chartered accountants will flourish in the next decade would be in assistance in policy making. This election has made one realise that there are many chartered accountants who have an interest in playing an active role in society. Chartered accountants would play an active role in the policy making of the government and would be instrumental in guiding the government on various economic as well as social aspects of governance.

The government is expected to give weightage to the suggestions and recommendations of the chartered accountant community as more often than not, a chartered accountant knows the ground reality about the implementation of the law , and therefore the best judge in formation of various economic policies.

Fourthly, another change in the profession in the next decade would be the realisation of the importance of communication and presentation skills. This would help the members of the profession to position themselves better in the market.

Finally, with the advancement of technology, borders between countries are slowly fading and the world is becoming one large global village. This has also resulted in the work moving towards a virtual world with diminishing requirement for a personal interaction. A chartered accountant of the future would have a far greater reach in terms of providing services due to this advancement of technology and would enable growth.

Only time will tell whether the India that I have imagined and the state of the profession that I have dreamt about will become a reality. However, one does feel extremely optimistic about these exciting and game-changing days ahead and a chartered accountant of the future would most certainly have a big role to play in society.