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Andhyarujina vs Adversariality: A Legal Lesson for Life


 

I barely knew him. But he taught me the most valuable lesson of them all. To take the “adversary” out of the “adversarial”! That was Tehmtan Andhyarujina for you. One of the finest counsels to have graced our courts. Sadly, he is no more with us.

We were pitted against each other in the famed Novartis patent litigation. Although I was appearing as an academic intervenor cum amicus before the court, he knew that my ultimate stand was deeply detrimental to his client’s position: for I was quite vocal about the fact that Novartis did not merit a patent under the terms of India’s patent law!

I finished a marathon 3 hour session before the bench (comprising the wonderful duo of Justices Aftab Alam and Ranjana Desai), walking them through the structure of section 3(d) (a killer statutory provision that ultimately decimated Novartis’ claim to a patent) and juxtaposing it against the larger regulatory scheme around patents and drug regulation, and interspersing it with history, politics and even a little poetry (Ogden Nash to boot!)

At the end of my session, Andhyarijuna walks up to me. Patting me on the back he says: “Well done! Impressive arguments and great examples too”. But then he was quick enough to quip with an impish grin: “Though of course, I have to disagree with your conclusions!”

He then spoke to me of his love for academia and a desire to engage with Indian legal academia.

My jaw dropped! For I’d just been subjected in the past few days to what can only be described as an outpouring of hostility at the hands of some of the other counsels and their clients. The Novartis patent litigation boasted at least 7-8 different parties and 15-20 odd counsels that showed up!

The IPA (Indian Pharmaceutical Alliance) counsel in fact even went to the extent of misrepresenting my position to the court, which I thought was a tad bit unethical. But the most worrisome bit (and perhaps paradoxical too) was that some of the NGO representatives (who were opposed to Novartis) were openly hostile, despite the fact that we were effectively on the same side (arguing that Novartis should not be granted a patent). Hostility for the sake of hostility I guess. For that is what our beautiful adversarial litigation has come to engender. Where we strive to win at any cost, even if it meant compromising our sense of civility and (dare I say), ethics!

I was particularly peeved at the fact that one of them even went to the extent of unseating me (literally and metaphorically) on my very first day in court, stating rather sarcastically: “This portion is reserved for lawyers”! I didn’t realise then that being am academic stripped me of the coveted tag of a “lawyer” (I’ve raised this issue in a letter to the Bar Council of India and am sure this will convert to a court case soon).

But I digress. This is about Andhyarujina…that rare breed of a lawyer who, in one fell swoop of a moment, taught me the most valuable lesson of them all: To take the adversary out of the adversarial! And to be civil to even those that oppose us. Nay, to desist from viewing litigation as a zero sum game…with competing counsels as adversaries to be crushed at any cost. But to exhibit a fair bit of decency and work with each other as officers of the court to secure that much touted virtue that we profess more than practice: the pursuit of justice!

But most importantly, to remember that as we battle it out in court, we are effectively advocating someone else’s cause, making it less about us (and our super fragile egos) and more about the client, and what works best for him/her in the long run. What we at IDIA now refer to as holistic lawyering (in our bid to create the CHAMPS of tomorrow).

And this sets the stage for my next series of posts on mediation and more civilized ways of resolving disputes. Where we move away from a zero-sum game premised on formal legal posturing, to a win-win situation, where we identify the real interests that matter to the parties. And creatively craft out solutions that leave both sets of parties better off.

Indeed mediation has much to offer, if only we embraced it with more vigour. And I speak not out of extensive experience on this front, but from the little exposure gained through a stellar induction programme by CAMPS, a Bangalore based mediation outfit that is at the forefront of popularising private mediation in India. And more recently, I had the great privilege of sampling an enlightening workshop on mediation put together by the admirable Justice Gita Mittal and her wonderful team of mediators at the Delhi High Court Mediation Centre (Samadhan).

Andhyarijuna leaves us at a time when mediation is proving quite the rage. Catching up with even our law schools that are now beginning to get a bit serious about clinical legal education. Given his temperament, civility and creativity, I’m sure he’d have made an outstanding mediator. A huge loss for the fraternity. As this tribute by Venkat Iyer tellingly notes: “Tehmtan was, more than anything else, a very decent human being.”

Indeed, no better tribute to this exceptional lawyer than a conscious effort from all of us to emulate the “decency” that he stood for. To borrow from the bard: “His life was gentle, and the elements. So mixed in him that Nature might stand up. And say to all the world, “This was a man.”

ps: Image of Andhyarujina from Bar and Bench Interview.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

7 comments.

  1. AvatarJagdish Sagar

    A very tangential footnote to a moving tribute. A litigant appearing personally, academic or not, should be entitled to sit where the lawyers sit; the courts are for litigants, not lawyers, after all. Secondly, anyway, academics should be allowed to register at the bar and appear in litigation, it can only make them better teachers.

    Reply
  2. Mathews P. GeorgeMathews P. George

    Thanks to eminent lawyers like Andhyarujina, H.M. Seervai and Nani Palkhiwala, many of our fundamental Constitutional law questions are answered and settled. They no longer fall under the “penumbra” arena of Law (if I may borrow the expression of H.L.A Hart in his acclaimed Harvard Law Review article in 1957). One such settled area is wrt Parliamentary Supremacy. Through a robust “Socratic method”, it is well-settled that the Indian Constitution doesn’t entail Parliamentary Supremacy as in UK. The arbitrariness of UK Parliament wrt United States is a historical fact and we do not intend to pursue the same trajectory. Though technically Sr.Cn. Andhyarujina was on the side of “Parliamentary Supremacy”, it is the “clarity” in their arguments which helped the SC to settle the legal position. My Prof. in jurisprudence (presently with Jindal), Pritam Baruah would re-iterate the quality of a fine jurist in his lectures i.e being clearly right or being clearly wrong in their arguments (either of the two, there is no grey area in their arguments). Though a toddler, I firmly believe that Sr. Counsel Andhyarujina meets this necessary quality of a great jurist. RIP this great luminary who helped in building a robust Indian Constitutional Law jurisprudence.

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  3. AvatarSiddharth Sijoria

    Great tribute Shamnad Sir. After spending 3 years with sir as an intern, on completion of my Law degree, I could only write to him a heartfelt letter that I am sharing here
    “When a rower begins a voyage for the first time, the clouds of uncertainties surrounds him. He looks at the vast sea and glares the endless water flowing with many boats and ships upon it. Some rowers struggle hard to make their way in water, some drown in the middle and many get lost due to lack of proper direction. On the other hand the sailors majestically sail the ships in the blue and deep water. The rower always aspires to be a sailor despite being well aware of the hardships and luck factor involved including the inescapable hard work. The scene scares him, as he never swung the oars in water and sailing the ship is still farfetched. Nonetheless, he begins by remembering the old lessons learnt, past experiences , and things he envisioned in mind before beginning the voyage.
    The beginning of my voyage is incomplete without thanking you for brining in me the lessons of character and its importance in life to endure challenges. To build in me a desire to imbibe great habits and most importantly building a self respect. Like a blooming flower, that releases its enchanting fragrance to attract and tempt a passerby to stop, search, and hold the flower and feel its exquisite worth, is your Character that taught and still teaches many things leaving indelible mark on life
    My journey has begun with many promises and goals, and today standing afar, the distant view of the future is blurred and hazy but my conviction to character and hard work is strengthened because of your presence. ”

    Your tribute is reflection of what I saw in him everyday. Thanks for writing this.

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  4. AvatarJayant

    Shamnad, a very nice and intriguing post! This post or atleast the topic should form part of the ethics syllabus in law school, which is sadly not the case at present.

    Reply
    1. Shamnad BasheerShamnad Basheer Post author

      Absolutely Jayant. We give short shrift to ethics unfortunately, in the hallowed halls of our classrooms. And in court rooms! thankfully the tide is beginning to change. LI reported that CAM instituted an ethics chair recently. Though the institutional head (Bimal Patel) leaves much to be desired in terms of an ethical backbone! Perhaps he should attend the first few sessions of whatever course the chair comes up with! Here are some links. http://www.legallyindia.com/law-firms/cyril-amarchand-starts-gnlu-chair-for-ethics-vows-to-expand-it-across-other-universities-if-successful-20170405-8409
      http://www.legallyindia.com/lawschools/cag-catches-gnlu-losing-rs-27-lakh-after-undue-favour-to-nri-student-reports-to-guj-assembly-00011130-8417

      Reply

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