India Business Law Journal –  December 2016/January 2017

In pursuit of parity

This age-old question is being answered yet again in the new Bollywood blockbuster Dangal, which tells a tale – inspired by real people and events – of sporting achievement by four girls who emerge as champion wrestlers. That this story of ambition, determination and passion is captivating India, even as its sportswomen come into their own, winning the country’s two golds at the Rio Olympics, is remarkable. Is this the beginning of a much-needed change in attitudes and mindset?

Yet even as we applaud illustrations of what India’s girls and women can achieve, there is little denying that the odds are stacked against them. While women in many parts of the country fear even to walk freely on the streets, sexual harassment in the workplace continues to be a concern. Almost four years after India enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, in this issue’s Cover story we investigate what has actually changed.

Compliance with this law, which among other things requires that companies with a minimum of 10 employees have a committee to look into grievances relating to workplace sexual harassment at each branch or office, appears to be a challenge. As Amitabh Lal Das at Max Life Insurance says, while companies need dedicated people to be on this committee, not all are comfortable with involving external parties as stipulated in the law. Further, Ujwala Wakhle at Star India says that it’s not possible to have a separate committee “in each and every business unit because you don’t have the qualified staff for it”. Yet even as companies seek ways to comply with the law, whether it is having the expected effect is in doubt on account of the lack of reporting of instances of harassment and the complex process of handling complaints.

In Of carrots and sticks we turn the spotlight on the scourge of corruption, which makes India a challenging market to operate in. Given the ever-increasing enforcement of the US Foreign Corrupt Practices Act and whistleblowers being eligible for monetary awards in the US, the risk posed by third parties takes centre stage. We analyse how companies, which need to use such third parties, can build defences. As we detail this includes carefully crafted diligence programmes, which can go a long way in fending off violative conduct.

What else can we expect in the year ahead? In this issue’s Vantage point four in-house lawyers, a mediation specialist and partners at three law firms share their views on the developments that are likely to shape India’s legal and business climate in 2017. While Kapil Chaudhary, at Autodesk India, expects privacy, data protection and cybercrime-related issues to take on even greater importance in the year ahead, Laila Ollapally, founder of the Centre for Advanced Mediation Practice, sees a silent revolution taking place with the growing realization that a courtroom may not be the only place for resolving disputes. According to Shukla Wassan, at Hindustan Coca-Cola Beverages, the challenge for 2017 will be staying ahead of the curve even as change happens at an unprecedented rapid pace.

Meanwhile in What’s the deal? we celebrate the achievements of the legal community with a round-up of the top 50 deals and dispute resolution cases of 2016. Following an extensive shortlisting process, the leading deals were chosen not only for their size in monetary terms, but also for their complexity, innovation and the precedents that were set. While analysing the significance of each deal, we identify the law firms and lawyers who guided it through its many twists and turns.

Finally in this issue’s Intelligence report we look at two philanthropic initiatives that demonstrate efforts from within India’s legal community to be the change you wish to see, as Mahatma Gandhi famously put it. The first is an eight-hectare park created in a Mumbai suburb for children by Bijesh Thakker, who until 2010 was managing partner of Thakker & Thakker, a Mumbai-based law firm. The project is evidence of what Thakker says is important for lawyers to understand: “You don’t need to become white haired to embark on a philanthropic venture.”

The second initiative is a non-profit organization founded by Shamnad Basheer, a professor of intellectual property law and founder of the blog SpicyIP, to pursue parity of opportunity for admission to India’s law schools and make their populations more reflective of India’s diversity. Among the many beneficiaries is Arepalli Naga Babu, who graduated from National
Law University in Cuttack, Orissa, in 2016. Naga Babu, who is blind and aspires to be a judge, says: “If I hadn’t met Shamnad Basheer I would have missed a massive opportunity”.

Long may such worthwhile philanthropic initiatives thrive.