Category: Special Issue Articles

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Morality is a quickly shifting thing, and those who hold on to previous iterations become villains’.

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Morals are an emotive concept. Everyone has a view on what exactly it means and how exactly to live a morally right life. Like the story of the blind men and the elephant, it means different things to different people. This is even more pronounced when it comes to the practice of law. Every situation requires a judgement- what is the right thing to do and what would be wrong – “legally right” and “legally wrong”, one must hasten to add. That professional judgement is invariably also judged from the moral standpoint. That is when all hell can break loose.

Morals, Ethics and Law
Each of morals, ethics and laws, are about assessment of the right and the wrong. An individual’s own principles of right and wrong, constitutes his morals. Every human being has an innate sense of what is right and wrong to his mind – this dictates his “morals”. Ethics is about the rules of conduct that a community of individuals, formed on the basis of activity or even culture, writes for itself. Ethics have a clear link to character (“ethos”) of the section of society that follows it.

Law, binds an entire society, and evolves from the influence of morals and ethics. It is essentially a product of averaging the forces of morals and ethics and developing an acceptable minimum standard of conduct across society. All averages leave constituents unhappy – those above and below the average can always feel shortchanged. Therefore, despite doing the legally right thing, one can be perceived as morally wrong, and doing the something legally wrong too can get lauded as ethically sound.

Decline of morality: really?
First, let’s deal with the issue of morality. The refrain that “moral values are on the decline” is as old as the hills. It is something that could have been said in almost every phase of human history. It is quite like that oft-stated phrase: “we live in interesting times.” You can say it in every single conceivable situation. Examples abound of how societies would have said morals are on the decline. A society’s sense of morals can change with time. Jesus Christ devoted his short life to preaching his sense of morality. The society in which he preached believed that Christ was an assault on their moral values – in today’s moral compass, unthinkable. References to Shylock in The Merchant of Venice allude to how immoral the moneylender was in asserting his legal right to a pound of flesh. If that play were to be written today, Shakespeare would have been castigated for holding anti-semitic prejudices by referring to Shylock’s membership to the Jewish community.

Take the worst that man can do to man: slavery. When slave labour was being questioned by citizens in the northern parts of the United States, slave owners in the south argued that moral values were on the decline. They asserted how it was morally wrong to attack their legal right to own property that they had legally paid for. Indeed, slave owners would quote the Bible to convince their slaves that a life committed to slavery was Godendorsed. Today, it is revulsive to even think about it. Yet, those who indulge in slave labour today (yes, it is alive and kicking – and yes, it can even take the form of the domestic help in Mumbai households without any of the rights their employers would take for granted from their employers) surely convince themselves about the morality of their actions so that they get sleep at night.

One man’s soul-filling morality can be another man’s toxic poison. When the Indian Supreme Court refused to strike down law criminalizing homosexuality, a section of society argued that the court’s refusal to intervene is evidence that moral values were on the decline. The sections that went to the Supreme Court had argued that the Delhi High Court striking down that law was evidence that morality was on the decline. They wanted the Supreme Court to correct that. This moral bunch had representation from the ayatollahs of every faith that lives in India and whose fatwas, large sections of our society are accustomed to follow.

Even individuals who have given a lifetime of commitment to universal brotherhood and doggedly adhering to their sense of morality are not immune from attack of those who don’t accept that moral compass. Mahatma Gandhi was even killed. His killers would have developed a strong moral argument in their own minds to convince themselves that taking his life was the “right” thing to do. The Dalai Lama, a living idealist who uses scientific methods in his bid to emphasize that it is not extraordinary to be compassionate even with those who may inspire hate, is accused by some young-and-violent Tibetans of neglecting their interests with his peace-based approach to the universe. Some of them immolate themselves in protests – indicating that at least in their minds, they have the fullest moral conviction that their approach is right and the Dalai Lama’s practice is wrong.

Evolution of Law
Therefore, what is morally right and wrong is incapable of being tied down to the satisfaction of all. It can vary depending on the individual considering the question. For the same individual, it can vary with the time in which she considers the question. It could even vary if the context in which she considers the question varies, even if at the same time. When every individual in a society has a strong view on the right and the wrong, consensus is impossible. It is to grapple with this dilemma that societies need “law” – a minimum set of rules that everyone needs to conform to, across sections of society. It is enforced by the coercive power of the “State”.

What then should be the moral and ethical compass for a practitioner of law? By nature, human society is judgmental. One of my favourite questions in talks that I give on the rule of law is: “How many in this room believe Ajmal Kasab should have a trial?” I have not come across a single instance of a huge majority response that he indeed needs trial. The nature of audience has ranged from chartered accountants, businessmen, consultants, bureaucrats, and sadly, even lawyers.

It is this apathy that would come to bite when a chartered accountant, businessman, consultant, bureaucrat or lawyer stands accused and the popular voice of society is that she does not need a trial. Business and crime are being considered synonymous in the rising din of society and the same treatment that the educated professional class wants to mete out to Kasab is the treatment that the rest of society wants to mete out to this class.

The need for a trial to assess what actually happened in the eyes of law is a critical component of the rule of law. Our constitution guarantees protection to members of our society against incriminating themselves for a very sound reason. If there were no such protection, all it would need to “solve crime” would be to physically beat false confessions out of people. Therefore, even where someone confesses to a crime, the justice system is required to go into whether the confession is truthful and to see that justice is indeed done. How else does one prevent drivers owning up banging up cars they never drove, or for that matter, weak youngsters in a professional firm from being forced to confess to wrongs they never committed just to protect the erring partner in a professional negligence claim? What really transpired can only be found out by trial.

One is seeing increasing instances of assaults on lawyers agreeing to represent those accused of crimes that anger society. It can take varying forms. Physical assaults on potential lawyers for Kasab, tongue-lashing of Salman Khan’s lawyer, reputational  assault  on  amicus  curiae (a “friend of the court” appointed by the court to render assistance) in the Supreme Court appeal of Kasab’s sentence when he was reported to have said that the trial had not been fair. It is in this milieu that developing  a strong sense of adherence to a personal moral and ethical standard is critical to save society from the rule of the mob. What is that standard?

The  lawyer’s  Ethical  Standard a lawyer is required to dispassionately present facts and law to the judge, who required to dispassionately rule on matters before her without fear or favour and uncaring for consequences outside the realm of law and justice. Every lawyer is duty-bound to accept any brief at a fee consistent with his standing. That is the real ethic of a lawyer. That a brief can turn politically controversial or socially unpopular is not a ground for refusing a brief. A lawyer is obliged to use all fair, legitimate and honourable means to uphold his client’s interests regardless of his personal opinion as to the guilt. His loyalty is to the law.

Judging his client’s guilt is the court’s role. The lawyer is but one of the officers of that court.

Not too long ago, Kerala Congressmen were upset that party spokesman Abhishek Manu Singhvi represented a local lottery distributor. The Bharatiya Janata Party had once expelled Ram Jethmalani for representing convicts in the Indira Gandhi assassination case. Eventually, one of the accused was actually absolved in appeal. Both these politician-lawyers had  stood  their  ground.  But not all do so. They fall into the unethical trap of finding reasons to return briefs, or worse, even going on national television to argue how an accused like Kasab should never get trial. Such attitudes erode the objectivity and fearlessness critical for an effective run of the rule of law.

For a real professional, the foundational rule is not to judge. More importantly, not to be influenced by others’ judgements, in distraction from the facts and merits of the situation. It is the role of the judge to render judgement and not that of the professional. A lawyer refusing to take up representation despite having time on hand is identical to a doctor refusing to treat a patient because of his own moral judgments – say the dying patient is gay and the doctor is a homophobe.

Worse is taking up representation and deliberately jeopardizing the case. Sadly these are the kinds of suggestions one hears of in a charged up society. It is another matter that such suggestions would have been heard all through human history. It is akin to doctors injecting poison into Kasab in revenge  instead  of  saving his life. That would have been an insult to the efforts of those who gave up their lives in the process of apprehending Kasab.

The worst of all is to intimidate and attack those who do their job in conformity with their ethical standard. There can be nothing more immoral than questioning the morality of those who serve the cause of dispensation of justice on the ground that they are serving clients accused of crime.

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`We are the Establishment`
This is how Vineet Jain replied to a question in an interview. Vineet is one of the Jain brothers, who own Bennet Coleman & Company, which controls the Times of India Media Group comprising of Newspapers, TV Channels, FM Radio Stations, Websites etc. The question was asked to Vineet Jain by `The New Yorker’ a prestigious weekly magazine published from USA. The magazine had published a story titled `Citizen Jain` in which this interview appeared. The title was synonymous with a famous Hollywood movie of yesteryears called `Citizen Kane`. The movie was based on the life of William Randolph Hearst, a newspaper tycoon (in those times there was no MEDIA) whose influence and power spread across US polity, society & economy. Orson Welles depicted the role of Hearst and was acclaimed for this performance.

The `New Yorker` cover story was titled `Citizen Jain`, to indicate that Jain brothers are wielding similar influence in India. The reply of Vineet Jain to interviewer’s question showed that the Jain Brothers also realise the power that they have and their willingness to use it whenever they want and for whatever purpose they need to use it.

How enormous this POWER is and how the ESTABLISHMENT flaunts it and uses it to crystallise the public opinion in whichever way it wants, can just be gauged by taking a cursory look at the events of the past 3-4 years.

And thereby hangs the tale of ETHICS IN MEDIA
Let us just take the example of agitation of `India Against Corruption’ for setting up LOKPAL. The agitation was led by Anna Hazare in which the present Chief Minister of Delhi, Arvind Kejriwal, his present political rival and BJP candidate for Chief Minister’s post during Delhi election Kiran Bedi, Prashant Bhushan & Yogendra Yadav were leading participants. The fast by Anna Hazare on the Ramlila grounds in New Delhi and the agitation lasted for nearly eight days. The Media—particularly News Channels—gave a saturation coverage to this agitation. The economics of Media demands a certain percentage of advertisement per hour of telecast. This mandates that for any half hour slot of telecast, there should be at least 12-15 minutes of advertisements. In fact, this rule is so mandatory that many important news programmes are cut short for telecasting advertisements. In spite of this, we would find that during those days of Anna Hazare’s agitation, the News Channels deliberately gave up about 600 crores of advertisement revenue by giving coverage to Hazare’s agitation without a advertisement break. Most of the News Channels, barring one or two, are in complete financial mess. In such a dire financial situation, how could these channels afford to lose so much revenue? The answer is that the Media companies which telecast these channels were promised that their loss would be compensated. Who could have given such a promise? The parties who were thinking of getting political benefit from the agitation and were aware of the power of Media to influence public opinion. How could a political party muster such a huge financial resource is a question which would naturally arise. Again, the answer would be that ties–or to use the cliché ‘nexus’—that have bonded together the political parties and corporate as well as other financial lobbies over a period of the last few decades. Of course, all these details are in the realm of speculation as nobody would be ready to provide upfront details about Media groups’ real financial dealing other than the statutory requirements. Still the fact remains that during Anna Hazare’s agitation, all the News Channels gave a saturation coverage without advertisement breaks and willingly gave up revenue.

Immediately after this agitation there were a series of exposes by almost all News Channels, major Newspapers as well as News magazines about various scams and the focus of the coverage was generally one sided. It depicted the then UPA government as a villain and branded most of the prominent ministers in the government as mired in corruption and nepotism without being factually objective. That created a general impression across the society that the government is anti-people and is not really interested in protecting as well as furthering the interests of common people and national interests. This helped the opposition to crystallise the public opinion against the then government. The campaign during 2014 Lok Sabha elections showed the reliance of political parties on Media and their attempts of using the Media as a tool to influence the public opinion. The latest example is that of various scandals about ministers in Central and Maharashtra as well as some other state governments. All of a sudden in second half of June all these scams are getting surfaced in the Media. Why this is happening and how could this have happened are the questions and if we try to find out the answers of these questions by relating this present scenario with the events during UPA period, it will lead us to the conclusion that these SCAMS are coming under the Media glare due to a definite design. The designer who may have sketched the design seems to be a section of influential corporate lobby which perceives that the present political set up has not been really beneficial for them. The scenario before May 2014 was crafted by the corporate and other business and commercial interest coming together with a firm view that the then government was detrimental to their interests and should not be allowed to come again to power. These lobbies funded the Media campaign before and during the 2014 Lok Sabha elections.

The same process of using Media to corner the present political set up seems to have been initiated. Otherwise, the sudden spurt of scams being revealed does not have any logical explanation.

All the above examples indicate the POWER of the ESTABLISHMENT and how this ESTABLISHMENT can become a tool in the hands of moneybags to be used in whatever way they want to influence the public opinion or to tarnish any ones image and credibility. How this POWER of the ESTABLISHMENT can destroy the careers and reputations of prominent people was displayed when transcripts of Radia Tapes were published

In such a scenario, business interests have dominated the functioning of Media groups rather than any Ethical framework. In a classical definition, PRESS is the FOURTH PILLAR of Democracy. All other three pillars of Democracy do not have any connection with BUSINESS. Though the PRESS has been termed as a FOURTH PILLAR, it is primarily a business venture. This uniqueness of PRESS (and now MEDIA) bestows on it a huge responsibility to perform the ideal role assigned to it. This puts a burden on PRESS to perform its function ethically. As per these ideals, newspapers (and Media in contemporary times) should be a watchdog to protect people’s interests, rights and freedoms. It should act objectively without any fear and favour and should not show any bias or inclination towards any particular group, section or community. Objectivity and adherence to truth should be the only guiding factor for any journalist working in print, electronic or web Media. Of course, these ideals are easy to preach and very hard to observe.

Evolution of the press
This would become clear as we look back on the evolution of PRESS in India. The evolution of Indian Press had a background of Freedom Struggle. Most of the regional languages as well as English Newspapers (barring newspapers such as Times of India or Statesman, which were owned by British) of those times were the vehicles of nationalist propaganda and their main objective was to project nationalistic viewpoint. Therefore, they had less `NEWS` and more `VIEWS`. The Newspapers really began to evolve as an INDUSTRY after Independence. The competition increased. So revenue earning became much more important. This could happen only  with  more advertisement. If a product is to be advertised in a particular Newspaper, then the producer would obviously be interested in finding out the readership profile of the Newspaper to gauge whether that section of people would be in a position to buy his product. If the readership profile does not match with the profile of the product, then advertising in that particular newspaper will be of no use for the producer. As the competition increased, there was a scramble to corner the advertisement revenue. This tilted the balance in favour of advertiser. This was the point at which the editorial control over the Newspapers started loosening and Advertising and Marketing departments became much more dominant. The advertiser started dictating terms and initiating process to demand the change in readership profile so as to suit the needs of    a particular product. For example, if any Newspaper wanted an advertisement from FMCG company then it was asked to prove that the readership has a economic capacity to purchase such products. If the Newspaper had no compatible readership profile and still it asked for the advertisement, then the company started demanding that it should change the readership profile by publishing news items liked and usually read by the consumers who are likely to purchase those products. So step by step, the `CONTENTS` of the Newspapers started getting managed by the Advertisement & Marketing departments on the cue given by the advertising agencies. This slide back acquired much speed after the 1991 economic liberalisation an opening up of various sectors of economy. New technology came into the industry. The Newspaper and magazines became much more colourful, sleek and glitzy. Then, satellite TV made its entry. Later on followed by News Channels. Now PRESS became MEDIA. The leading Media group like the Times of India declared itself as an ENTERTAINMENT GROUP. MEDIA became much more a business than a FOURTH PILLAR of DEMOCRACY.

The Paid News controversy which rocked the Media world was inevitable in such a scenario. Since a long time, political parties used to influence reporters and other journalistic staff to get a favourable news coverage. In the race to garner more and more revenue—in short to make more money—the owners of Newspapers decided to strike a deal with political parties themselves. That is how the NEWS became PAID.

Ethical FPAMEWORK
And in such a situation, it is no surprise that the Ethical Framework in the functioning of any MEDIA GROUP has been put on back burner. This framework has not been demolished, but it is very rarely followed and only invoked when a gross indecent and sensational reportage is published or telecast. The readership and viewership numbers dominate the discourse about Media now a days. TRP reigns supreme in electronic Media and to increase TRP ratings day by day the News  Channels are becoming more and more sensational and predatory. Obviously it has become much more easier for Corporate and Financial moneybags to influence the Media discourse with a carrot of easy finance as well  as  increase  in TRP ratings.

Still there are a number of enterprising and intrepid journalists, in both print and electronic Media, who are inspired by the ideals and who adhere to the ethical framework.  Unfortunately  the  space  in  the  Media  for such journalists is shrinking day by day,  as  the work culture gets  degraded  by  unethical  influences of money and muscle power  and  the  reluctance  of the ESTABLISHMENT to step in to clean up. In fact many a times the ESTABLISHMENT itself encourages these influences and allows them a free rein. The recent events of attack on Journalists in Uttar Pradesh an  Madhya  Pradesh  are  indicators  of  this  trend.   Of course, it must not be overlooked that access potential of a journalist and disproportionate influence wielded by even a small district Newspaper or a Video Channel encourages many unwanted elements in this profession, whose main aim is earning money be using blackmailing technique.

A statutory body like the Press Council of India or professional set up like Editors Guild have now become redundant institutions. They do not have any legal teeth and they can only admonish a recalcitrant Media group or an individual or a group of Journalists. Therefore, these institutions are not taken seriously. The electronic Media has set up an Ombudsman. But his observations and orders on complaints made are more than often overlooked. The associations or organisations of working journalists are prone to be more active on the issues of pecuniary and other benefits rather than about issues of ethical functioning.

Conclusion
Overall it  is  a  depressing  scenario  and  therein  lies  a danger to the freedom of Media. The sensational, predatory, unethical functioning is creating revulsion across the society against  the  Media.  This  has  started impinging on the credibility of the Media. This opens up a space for the powers that be to step and introduce some measures to curb the freedom in the name of putting an end to sensationalism of the Media. To guard against this danger, Media professionals must proactively initiate a process for internal discussion and debate to evolve a mechanism for enforcing ethical functioning. A collective action may be able to convince or at least force the ESTABLISHMENT to step in and help the professionals to rein in the predatory and sensational tendencies.

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Preamble
We, the Indians, inherit various scriptures that
were transcended from generations, from father to son. We have naturally
cultivated our lifestyle conducive to the best practices required to
keep our body, mind and soul in a fit and fine mode. The philosophy we
adopted was in four Universal Brahma Sentences.

In every
profession, there are Rules and Regulations which each and every
professional is bound to abide by while performing his duties.
Architects are not taught, but are made aware of the subject. The idea
is that freedom of expression should not be stifled but should be given a
free hand. Each and every individual is encouraged to create his own
unique design which would really influence culture.

It is said
that Doctors’ mistakes are buried below the earth and Architects’
mistakes are for the world to see. The test of a good Architectural
design is that it needs to be functional and aesthetically appealing.

What is architecture?
As
architects, we are expected constantly to dwell upon the creative
aspect of design. Since architecture is not mathematics, designs cannot
be judged as right or wrong. What matters is the context, concept and
shape which then decides whether design is functional or wonderful or
awesome.

Architecture is basically the Art and Science of
designing spaces and providing services to multifunctional activities
for all human beings. This is the only discipline which encompasses the
major fields of human endeavour: Humanity, Science, Art, and Technology.

Architecture is the matrix of human civilisation, an authentic
measure of the social status and an evocative expression of ethos of an
era. When conserved it is a heritage and when ruined it becomes
archeology. Architecture has generated specialisation. City planning,
landscape and interior architecture, retro fitting of buildings,
architectural conservation, construction management have also lately
emerged as specialisation. Each of these compliments and supports each
other.

Architectural Design essentially is a product of an
individual mind but realised through association of experts from allied
fields who contribute in the process of construction with mutual respect
and understanding and work, assuring high quality of end product.

Regulation of the profession
The
practice of architectural profession is regulated by the Architects
Act, 1972 and Regulations framed there under. The Council of
Architecture has prescribed the conditions of engagement and scale of
charges under the Architects (Professional Conduct) Regulations, 1989.
The documents prescribed, stipulate the parameters within which the
architect is required to function. These define the responsibilities,
the scope of work and services and also prescribe the mandatory minimum
scale of professional charges with a view to make the client fully aware
of the architect. The professional services required by the client may
not be comprehensive in scope in all cases and accordingly, clear understanding between the two must be arrived at. The
Council of Architecture has prescribed the conditions of engagement
based on general practices to all registered architects and such
architects who have specialised in areas such as Structural Design,
Urban Design, City Planning, Landscape Architecture, Interior
Architecture and Architectural Conservation.

Scope of Services
Generally,
architects are required to provide following services, and these
services are called comprehensive services. However, client can also opt
for partial services as per mutual agreement.

a. Taking Client’s instructions and preparation of design in brief.
b. Site evaluation, analysis and impact of existing/or proposed development on its immediate environs.
c. Design and site development.
d. Structural design.
e. Sanitary, plumbing, drainage, water supply and sewerage design.
f. Electrical, electronics, communication systems and design.
g. Heating, ventilation and air conditioning design (HVAC) and other mechanical systems.
h. Elevators, escalators etc.
i. Fire detection, fire protection and security systems etc.
j. Periodic inspection and evaluation of construction work.

The
Architect shall, after taking instructions from the client, render the
following services as described below in various stages:

Stage 1: Concept Design
Take
instructions of client to ascertain the requirements and study the
environs. Prepare report, conceptual design and submit to the client for
approval.

Stage 2: Preliminary Design and Drawings
Modification of conceptual design.

Stage 3: Drawings for Clients and Obtaining Statutory Approvals
Prepare drawings for clients and obtaining statutory approvals from Competent Authorities, if required.

Stage 4: Working Drawings and Tender Documents
Prepare
working drawings and tender documents which cover the mode of
measurements, method of payments, quality control procedures on
materials and works and other conditions of contract.

Stage 5: Appointment of Contractors
Invite, receive and analyse tenders. Also advise the client on appointment of contractor.

Stage 6: Construction
Prepare and issue working drawings and details for proper execution of works during construction.

Approve samples of various elements and components.

Check and approve shop drawings submitted by contractor/ vendors.

Visit
site periodically at intervals agreed mutually, to inspect and evaluate
the construction works. Clarify decisions, interpret
drawings/specifications, attend meetings to ensure that the project
progresses generally in accordance with the conditions of contract and
also to keep the client informed and render advice on actions, if
required.

In order to ensure that the work at site progresses in
accordance with conditions of contract, the day to day supervision will
be carried out by a construction manager (clerk of works/site
supervisor/or construction management agency in case of large and
complex project), who shall work under guidance and direction of the
Architect and shall be appointed and paid by Client. Issue Certificate
of Virtual Completion.

Stage 7: Completion
Prepare
and submit completion reports and drawings for the project as required
and assist the client in obtaining “Completion/Occupation Certificate”
from Statutory authorities, wherever required.

Other aspects
include schedule of payment of professional fees based on stage-wise
completion of contract, documentation and communication charges and
reimbursable expenses.

Architects are supposed to work as per the conditions of engagement, scope of work as well as scale of charges.

Professional Conduct and selfregulation
Further, Council of Architecture in exercise of the powers conferred by the Architects Act, 1972 (Act No. 20 of 1972),read with clause (i) of sub
section (2) of section 45 with approval of the central government, made
the Architects (Professional Conduct) Regulation, 1989 to promote the
standard of professional conduct and self – discipline required of an
Architect, as detailed below:

(1) Every architect, either in
practice or employment, subject to the provisions of the Central Civil
Services (Conduct) Rules, 1964 or any other similar rules applicable to
an architect shall:

(i) Ensure that his professional activities
do not conflict with his general responsibility to contribute to the
quality of the environment and future welfare of society,

(ii)    Apply his skill to the creative, responsible and economic development of his country,

(iii)    Provide professional services of a high standard, to the best of his ability,

(iv)    If in private practice, inform his client of the conditions of engagement and scale of charges and  agree that these conditions shall be on the basis of the appointment,

(v)    Not   sub   –   commission   to   another   architect or architects the work for which he has been commissioned without prior agreement of his client,

(vi)    Not give or take discount, commissions, gift or other inducements for the introduction of clients or of work,

(vii)    Act with fairness and impartiality when administering a building contract.

(viii)    Maintain a high standard of integrity,

(ix)    Promote the advancement of Architecture, standards of Architectural education, research, training and practice,
(x)    Conduct himself in a manner which is not derogatory to his professional character, nor likely to lessen the confidence of the public in the profession, nor bring Architects into disrepute,

(xi)    Compete fairly with other Architects,

(xii)    Observe and uphold the Council’s conditions of engagement and scale of charges,
(xiii)    Not supplant or attempt to supplant another Architect,

(xiv)    Not to prepare designs in competition with other Architects for a client without payment or for reduced fee (except in a competition conducted in accordance with the Architectural competition guidelines approved by the Council),

(xv)    Not attempt to obtain, offer to undertake or accept a commission for which he knows another Architect has been selected or employed until he has evidence that the selection, employment or agreement has been terminated and he has given the previous Architect written notice that he is so doing, provided that in the preliminary stages of work, the Client may consult, in order to select the architect, as many architects as he wants, provided he makes payment of charges to each of the architects so consulted,

(xvi)    Comply with Council’s guidelines for architectural competitions and inform the Council of his appointment as assessor for an architectural competition,

(xvii)    When working in other countries, observe the requirements of codes of conduct applicable to the place where he is working,

(xviii)    Not have or take as partner in his firm any person who is disqualified for registration  by  reason  of  the fact that his name has been removed from the Register under section 29 or 30 of the Architects Act 1972,

(xix)    Provide their employees with suitable working environment, compensate them fairly and facilitate their professional development,
(xx)    Recognise and respect the professional contribution of his employees,

(xxi)    Provide their associates with suitable working environment, compensate them fairly and facilitate their professional development,

(xxii)    Recognise and respect the professional contribution of his associates,

(xxiii)    Recognise and respect the professional contribution of the consultants,

(xxiv)    Enter into agreement with them defining their scope of work, responsibilities, functions, fees and mode of payment,

(xxv)    Shall not advertise his professional services nor shall he allow his name to be included in advertisement or to be used for publicity purpose except for certain prescribed situations

(2)    In a partnership firm of architects, every partner shall ensure that such partnership firm complies with the provisions of sub–regulation (1).

In view of above, we are supposed to adopt best practices in architecture, based on guidelines prepared by the Council of Architecture.

Ethical values in our profession
In my practice of the profession, I have faced some ethical and moral challenges on a number of occasions. I am narrating some of those situations

1)    I was working with one of the leading Architectural Consulting firm during my tenure of service from 1993 to 2002. During the service, I was elevated from Assistant Architect to a very responsible post and was responsible for each & every aspect of decision-making with respect to approvals to occupation certificates.

I was handling almost 30 projects at a time. Of course that was peak time for us in real estate during 1995 – 1999.

It had so happened that in one of our projects some documents were missing, rather, with regard to certain assertions, there was a misrepresentation by the client himself. We were shocked to know that the client had made a blunder. My employer was about to tender his resignation as architect. I was of the opinion that we should not tender our resignation at this stage, and I insisted that the client disclose the correct facts. Not doing so would be shirking our social responsibility. He agreed with my views. We pursued the matter with our client and got him to place on record the valid correct document which was necessary and then proceeded with further work.

If we had ignored the misrepresentation, it would have benefitted the client. If we had taken the decision of resigning from the project, we would have lost trust of the officers of the corporation. We chose the ethical path.
2)    In one of the projects, I was appointed as an architect. Due to large size of land parcel, a layout was required to be approved. However, it was pointed out by the client that the same had already been submitted by another architect in the past. The client also provided the so called Xerox copy of his letter, which I did not believe to be a proper copy and therefore I did not certify the same.

The case came up for hearing in front of municipal officers and I was shocked to know that the previous Architect had not even given his resignation. On knowing that, despite the fact that my effort would go unrewarded I did not continue the project as an architect and was also saved because I had not certified that purported letter of resignation of the previous architect.

    Architect’s professional liability
Professionals are required to discharge their obligations and commitments diligently and befitting with quality and standards of service. The Council of  Architecture  being the regulator of Architectural Education and Profession throughout the country formulates guidelines on architect’s liability.

“Architects Professional Liability” has been approved by Council of Architecture at its 40th meeting.

•     Professional Duties of Architect

1.    service:
The relationship between the architect and the client is that of a service provider and recipient. The professional services rendered by the architect are pursuant to the conditions of engagement and scale of charges entered into between the architect and the client.

•     Competence: An architect being a professional shall possess the required knowledge and skill, proficiency and competence for discharging his professional duties and functions.

•     Duty of Care: It means duty to exercise utmost skill and care.

•    Duties: The duties that  are  required  to be performed  by an architect for various  types  of  projects  have been prescribed by Council of Architecture under the Conditions of Engagement and Scale of Charges for respective areas in the field of architecture.

2.    Professional Conduct:
An architect shall comply with the standards of professional conduct and etiquette and a Code of Ethics set out in clauses
(i)    To (xxv),read with exceptions covered by sub-clauses (a) to (h) of sub- regulation (1) of Regulation 2 of the Architects (Professional Conduct) Regulations, 1989. Violation of any of the provisions of sub-regulation (1) shall constitute a Professional misconduct.

3.    Duties and responsibilities of clients/ owners and occupants:

The client/owner shall discharge all his obligations connected with the project and engagement of the architect in accordance with the Conditions of Agreement as agreed upon. Further, the client (s)/owner (s) and Occupant(s), upon completion of the building shall maintain it properly to safeguard and preserve the longevity of the building.

4.    professional negligence:

4.1    Negligence: “Negligence” of an architect means failure to take reasonable degree of care in the course of his engagement for rendering professional services.

4.2    Deficient service:

4.2.1    “Deficiency”, as defined under section 2(1)(g) of the Consumer Protection Act, 1986 means any fault, imperfection, shortcoming or inadequacy in the quality, nature of performance which is required  to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

4.2.2    An Architect is required to observe and uphold the Council’s  Conditions  of  Engagement  and   Scale of Charges while rendering architectural service/ services that is/are necessary for discharge of his duties and functions for the project for which he has been engaged, amount to deficient service.

a)    Use of Building for the purpose other than for which it has been designed.

b)    Any changes/modifications to the building carried out by the owner(s)/occupant (s) without the consent or approval of the Architect who designed and/or supervised the construction of the building.

c)    Any changes / alterations / modifications carried out by consulting another architect without the knowledge and consent of erstwhile architect or without obtaining No Objection Certificate of the building.

d)    Illegal / unauthorised changes / alterations / renovations / modifications carried out by the owner
(s) / occupant (s).

e)    Any compromise with the safety norms by the owner(s)/occupants(s).

f)    Distress due to leakage from terrace, toilet, water logging within the vicinity of the building and that would affect the strength /stability of the structure or general wellbeing.

g)    Lack of periodical maintenance or inadequate maintenance by owner(s)/occupant(s).

h)    Damages caused due to any reasons arising out of specialised consultant’s deficient services with regard to design and supervision of the work entrusted to them, who were appointed /engaged in consultation with the client.

i)    Damages caused to the building for the reasons beyond the control of the architects.

5.    Professional Negligence and Deficiency in services -professional Misconduct

If any person is aggrieved by the professional negligence and/or deficiency in services provided by  the  architect,  the matter shall be referred to the Council of Architecture under Rule 35 of the Council of Architecture Rules,  1973 to adjudicate whether the architect is guilty of professional misconduct or not.

6.    Professional Liabilities

6.1    Indemnity Insurance: The architect is required to indemnify the client against losses and damages incurred by the client through the acts of the Architect and shall take out and maintain a Professional Indemnity Insurance Policy, as may be mutually agreed between the  architect  and  the  client,  with a Nationalized Insurance Company or any other recognized Insurance Company by paying the requisite premium.

Maintenance of record: The  architect  is  required to maintain all records related to the project for a minimum period of 4 years after the issuance of Certificate of Virtual Completion.
6.3    Duration: – The architect’s liability shall be limited to  a maximum period of three years after the building is handed over to / occupied by the owner, whichever is earlier.

7.    Nature of liability:
An architect is liable for the negligent act which he committed in the performance of his duties. The action against an architect can be initiated by the client on satisfying the following conditions:

(a)    There must exist a duty to take care, which is owed by an architect to his clients.
(b)    There must be failure on the part of an architect to attain that standard of care prescribed by law, thereby committed breach of such duty.
(c)    The client must have suffered damage due to such breach of duty.

Disciplinary Action under The Architect Act, 1972:
If an architect is found guilty of professional misconduct, he is liable for disciplinary action by the Council of Architecture under section 30 of the Architects Act, 1972, Civil and Criminal action in the Courts of Law.

The disciplinary action taken by the Council of Architect against the architect who has been found guilty of professional misconduct does not absolve him of his liabilities under the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973, if any.

Some of the relevant laws include The Law of Torts, The Consumer Protection Act, 1986 and The Indian Penal Code, 1860 etc.

Case Studies
Prof. Madhav Deobhakta in his book “Architectural Practice in India” illustrated some cases:

1)    Not taking action on their own about area of plot:
There were 13 complaints lodged by civic authorities against Architects in Mumbai. These related to certifying larger area of Land than the actual area. The disciplinary committee after investigations reported that 4 out of 13 be called before the Council. These 4 Architects admitted that they had not surveyed the lands in question; but relied upon the area certificates obtained by their clients. When questioned, they admitted that the area shown in the certificates was much more than the actual area. Further, these four Architects admitted that they did not take any steps to re-survey the plots from City Survey Office.

Council reprimanded these four architects for failure to take action on their own while discharging their professional duties.

2)    Wrong certification of condition of Building: The Architect was requested by one of the tenants to give a report on the condition of the building for a court matter. He reported that the condition of the building was sound. At the time of joint inspection under Court’s order, he admitted that the condition of the building was not sound. When questioned at the time of the appearance before the Bar of the Council, he said when he inspected the building at time of making report it was in sound condition; but the owner was responsible for its sudden deterioration.

Council after considering all facts came to the conclusion that the architect did not act in a responsible manner and decided to reprimand him for professional misconduct.

Conclusion:
The main purpose of the Architects Act, 1972 is to protect the general public from unqualified persons working as architects and to ensure the professional conduct of the practicing Architects.

There are cases of action taken against and for Architects. By and large, professional ethics are generally observed by Architects who work with integrity, responsibility and trust as they consider their profession as the first priority in life.

While regulations are indeed necessary, one has to be ethical in spirit and not only in letter. In life one has to set the ethical bar high enough. It is only then that one can lead life with the head held high!

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Introduction
I have spent 20 years in the music industry.
People often envy me thinking that I am lucky to have my hobby as my
profession. In comparison, the field of Chartered Accountancy appears
rather bland. Hence,I was pleasantly surprised when the editor of the
BCA Journal asked me to write about Ethics in my profession. Chartered
Accountancy is a highly regulated profession with challenging entrance
tests and a grueling curriculum. In music, the classical art-forms
(dance & music) are very demanding with hours of training and riyaz
required to get perfection. However, entry into film-music is open to
any and every person who has basic music skills. Due to the explosion of
the electronic media, anything related to films has glamour attached to
it. Untrained wannabes come to Mumbai to try their luck in the music
world equipped with just a dream in their eyes. The stakes are high and
musicmaking is big business. There are often compromises with ethical
standards.The only regulator is one’s conscience and moral values. The
number of people who stand up for ethics is a minority. Being an
‘entertainment professional’, here’s my attempt to analyse the ethical
scenario prevailing in the field of Hindi film-music.

Hindi Film Music
The
Hindi mainstream film music industry has come of age over the last 70
years. It is now a professional set up. My mother tells me that in her
times, singing for films was looked down upon. Today, we have
enthusiastic parents sending their children to train in music as well as
to compete on television. Music training schools are today big
business. There are institutes training students in every field,vocal,
instrumental, Hindustani classical, Carnatic, Westernmusic, staff
notations, sound recording, playback recording techniques etc.
Technology has undergone a transformation and with the commercial stakes
very high, the pressures to succeed at any cost often lead to ethical
compromises. From Naushad to Rehman and Rafi to Sonu the parameters of
excellence have remained high. However the audience’s thoughtless
acceptance of anything that the media promotes, often results in ethical
compromises and a deterioration of standards.

There was Naushad
sahab who tirelessly advocated Indian classical music and would insist
on purity. Today, plagiarism is rampant. One finds popular foreign songs
being copied brazenly note to note. It is often the producers who force
the composers to do this. Certain highly successful music directors
have been exposed on the internet with the list of songs they have
copied along with their source.

Many talented singers these days
approach commercially successful composers with their demo songs. These
are often their own compositions. The singer is forced to release the
song under the composer’s credits.

An inspiring exception is A.
K. Rehman who has taken Hindi music to a world platform completely on
his terms and merit. Rehman is known to keep music rights with himself.
He makes sure his music is not misused by producers. If Rehman
collaborates with say Sukhwinder, the latter is given due credit. Other
talented composers like Shankar Mahadevan strive to make soulful songs.

Creation of monopolies and monopolistic situations
In
the yesteryears, one has heard stories of attempts by established
singers to monopolise the singing scene. Today, the market has opened up
with several singers aggressively marketing their skills. However there
are still instances of producers getting songs dubbed by established
singers even though they have been competently sung by lesser known
artistes.

Awareness of rights
In the era gone by,
artistes, and particularly singers were not aware of their rights. They
performed for the love of art, and were seldom concerned with commercial
aspects of their profession. The term intellectual property rights, was
unknown to them. Today, there is much awareness about royalties and
copyrights with artistes, composers, lyricists actively campaigning for
their rights, and zealously protecting them. Associations like the
Indian performing rights society regulate the use of their songs in
public places, radio, TV channels, live shows etc.

Falling standards in quality of lyrics
In
the 50s and 60s film music saw the poetic quality of lyrics scaling
great heights. There was Saahir who wrote sensitive, philosophical songs
like ‘yeh mehlon yeh takhton yeh taajon ki duniya’, ‘allah tero naam’,
‘aye meri zohrajabeen tu abhi tak hai haseen” and ‘laga chunri mein
daag’. Pt Narendra Sharma wrote chaste Hindi songs like ‘jyoti kalash
zhalke’, ‘satyam shivam sundaram’. Bharat Vyas wrote Nature poetry like
‘yeh koun chitrakar hai’ and kuhukuhu bole koyaliya. Kavi Pradeep penned
patriotic poetry like ‘aao bachhon tumhe sikhaye’,’aye mere vatan ke
logon’. Gulzar wrote aesthetic, songs with high literary value like ‘iss
mode se jaate hain’, ‘humko manki shakti dena’,’tujhse naraz nahin
zindagi’.

The new millennium saw the nation gyrating to
nonsensical lyrics and those with sexual innuendos. One could cite
several such examples but the content is so offensive that I would
rather not smudge the pages of a professional journal with such trash.
The point is that it is the ethical responsibility of producers and
lyricists not to stoop to such levels for commercial success.

People
believe that double meaning lyrics in the garb of ‘folk’, sex object
portrayal of women, and puerile nursery rhyme like songs fetch instant
success. So ethics and values are trashed. Once I was asked to sing a
‘laavni’ with double entendre. I fired the hell out of the guy and made
him change the lyrics.

I think lyrics are the fabric of any
song. They reflect an ideology and thought process. An ethical lyricist
is one who would uphold secular, humanist, socialist and feminist
values. I notice that earlier most films had atleast one spiritual song.
Now it is the norm to have atleast one ‘item’ song.

Commitment to quality and standing by what one believes in
As
far as I am concerned, I come from a classical music grooming and a
literary background at home. I am committed to singing meaningful lyrics
and intellectually stimulating melodies. In my live shows I select
songs that have meaningful poetry and raag based tunes that have scope
for gaayki.

I find that in mainstream songs, the requirement for
gaayki has waned. Tunes and lyrics are often juvenile. I feel committed
to writing and composing deeper, meaningful stuff. This too is a form
of ethics I feel.

I have composed about 50 tracks for the
YouTube devotional channel Rajshrisoul. Each composition displays a
commitment to the music I believe in. Hence both in my recordings and
live shows I standby what I believe is quality.

In my live shows
I am often under pressure to sing “fast”, “dancing numbers”. I do not
encourage this. As I believe I am not a DJ. Unless I stand up for my
beliefs, I will be made to dance to any tune.

Short and quick is not necessarily good / Technology cannot replace the original
Over the years, the ‘mehfil’ culture has eroded. Attention span of listeners has shortened. For the youth music is equal to something you dance to. Lyrics, gaayki, melody has no significance. This has led to monotonous tunes, repetitive lyrics, and same interlude music pieces. Today music is in the pubs and less in mehfils. The ‘gaayki’ in film music has been muted and the requirement for trained vocals is redundant. ‘Anyone’ including actors themselves sing songs. Added to this technical innovations enable voices to be tuned. The earlier face of film music had intricate gaayki, every stanza different tune etc. In my recordings I make it a point to retake my lines if not in perfect sur. I discourage enthusiastic recordists who say ’we will tune the notes using the Antares software’. I feel it is unethical to let technology modulate your performance. Your audiences pay to hear you perform and your rendition and not the skill of the software programmer or technician. I must give my best and not leave it to a machine.

Women   and   Their   Exploitation In live music shows, you often see background dancer girls. Unless it is a pure classical dance form, women are portrayed as subordinate,exploitative. Attention is to the body and not the soul. I find such actions totally unethical. Hence I am particular that the role of women in whatever I produce represents talent, soul  expression  rather  than body.

I have faced situations where I have refused to sing in live shows with loud noisy orchestration and where organisers are interested in suggesting what outfit I should wear.

I have often lost out on recordings due to the patriarchal equation. Even to this day most music directors are male. Being single and fairly attractive I often encountered men pursuing me for all the wrong reasons. The fixation with males is immense. Recently, while recording an aarti there was a line “baanjhan ko putra deyt nirdhan ko chhaya “.  I insisted on changing it to the earlier version, ”bannjhan ko garbh deyt” as I believe that it perpetuates the Indian patriarchial mentality that insists on the male child and kills the girl child. Once I gave a successful composer my demo audio. He kept calling me up asking to meet over a ‘cup of coffee’ for almost a month. When I finally did meet him, I was shocked to see that he had simply not listened to my recording even once. I was just a pretty woman  for him. Ever since then I politely refuse ‘coffee invites” for ethical reasons. Things have changed for the better now with singers having personal managers and talent management agencies to represent them. These shield mischief makers from the artist.

But these experiences got me thinking and I stumbled upon Meerabai.

When I started translating Meera, it dawned on me that she’s a big star! Her songs are sung a good 500 years after her time. We remember Meera like a fragrant flower. Not as a sexy body. I realised that every woman needs to assert her soul identity. If every woman who steps out for a career, especially in the glamour industry, sends out strong signals of “My talent is my sole identity’, this power game will become redundant. I yearn for the day women would be able to express themselves uninhibitedly and not be guilty for it.

Respect The Performers and give Them Their Due
The music industry all over the world has been plagued by piracy. Today music is available free on the internet. The days of cd sales are declining as cds can be instantly copied. Hardly any non-film music albums are made. Only film music (backed by massive publicity budgets) sells in the form of caller ringtones, number of hits and ads on YouTube.

I do know of some highly ethical people who will only buy original DVDsand recordingsoftware. But by and large people buy pirated Windows, Nuendo/Cubase/Protools recording software. Most rip music from youtube.

Let Children be Children, Do Not Corrupt Them With The ways of The Commercial World.
Television talent shows are the in thing today. TV channels rake in the big bucks by aggressive marketing techniques. Amongst these are sob stories, dramatic behind the scene stories, emotional appeals and children. Channels woo viewers with little champs, junior idols etc. I am the first ever winner of a talent show in the history of Indian TV, to have got a film playback break. I won the Hindi Saregama in 1995. I remember there was an immensely talented 7 year old Pushparani from Assam who sang Lata songs to perfection. She vanished. There was ten year old Prashant too. I remember Prashant’s mother doing the rounds of music directors for the big break. It never came. Prashant works in a bank in Mira Road today, bitter about fading into oblivion. Once someone introduced me to a flamboyantly dressed little boy from Marathi saregama. He was most offended because I did not know of him. I vividly remember children crying on camera when they lost out to competition. Viewers cried too. Channels sold their emotions and made money. Often there is manipulation in who is to win. Is this really what children should go through? Children are superb mimics. Hence they copy and replicate what they hear. That is what the channels cash in on. Two years down the line public memory fades and no one remembers these children and their two month fame. They go through the pain of rejection and dejection. The channels make further money through live shows with these children.

I feel children competing on TV must be stopped on ethical grounds as it amounts to child labour. Why don’t we have child nurses, doctors, CAs engineers? If they can sing, they can practice too. It is unethical to make children work. Children should take training in classical music, polish their skills, enjoy childhood and then get professional as adults.

Conclusion
I am aware that the above close circuit view of ethics in my profession can have counter views. Every person’s experience differs and nothing is black and white.  Where one sets the ethical bar is one’s own choice.        I would set it at just within practical reach though aiming to pitch higher.

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“Ache din aane waale hai”

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…”

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“Saare Jahan Se Acha Hindustan Hamara…………..”

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.

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Introduction
Indian commerce has been bubbling with hope and anticipation that the newly elected government will usher in a new era of regulatory reforms and improve the stagnating business environment in the country. True enough, the new ministers have been making all the right noises about creating a lean and efficient administration that will focus on governance rather than government. But it is not difficult to realize that a no-nonsense workaholic PM and well-intentioned ministers are not enough. Several other cogs need to move smoothly to create a healthy business and commerce ecosystem in a democracy. One such critical component of a vigorous economy is an efficient and smooth-functioning judicial system. This is needed so that disputes, particularly commercial disputes, are resolved quickly and in a cost-effective manner instead of disappearing into the black-hole of judicial backlog that the Indian Court system is infamous for.

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. !

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Abstract
Mumbai, 8th June 2014: “Mumbai Metro: East meets West in 21 minutes flat!”

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!

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My Country
Every third person in an Indian city today is a youth. In about seven years, the median individual in India will be 29 years, very likely a city-dweller, making it the youngest country in the world. India is set to experience a dynamic transformation as the population burden of the past turns into a demographic dividend, but the benefits will be tempered with social and spatial inequalities.

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.”

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On 16th May 2014, the Bharatiya Janata Party (BJP)
emerged victorious under the leadership of its prime ministerial
candidate, Mr. Narendra Modi. The BJP won an astounding 282 seats. Not
since 1984, had a single party single-handedly crossed the 272 mark
required to form a central government in Delhi. Moreover, the BJP and
its alliance partners that form the National Democratic Alliance (NDA)
won a grand total of 336 of the 543 seats. This general election to the
Lok Sabha was rightly billed as the biggest election in the history of
the world’s largest democracy and was keenly followed by the entire
world.

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.