Categories
Litigation

Drafting need not be a chore if you reflect on what you want to tell the court

JSaiDeepak_OnTrialWith a series of posts that will appear here under the header “On Trial”, I want to give lawyers who are about to embark on their professional journey, a flavour of what I have learnt in six years as a trial and appellate litigator. I believe that although law schools equip students with some basic skills, by and large they do not prepare them for the rigours and demands of a law practice. I hope that my posts here will help them scale the learning curve faster and with fewer mistakes.

Another recent trend that I noticed was that students are keen to take “activist” positions without doing their research on the law as it exists. There is nothing wrong in taking positions or having opinions on matters of policy but lawyers need to first have clarity on what the law is before commenting on what the law ought to be. That apart, no matter how good one is at substantive law, it is important to know how to present and prove a case in a court of law. Command over procedure is equally important and procedure is best learnt through application and practice.

Introspect when you make errors

StressedLitigatorOnce you join the profession, you will realise that most experienced lawyers do not have the time to sit you down and explain how things work. You learn on the job and naturally, are bound to commit a lot of mistakes. The experience can be soul-shattering and may shake your confidence in yourself. What has helped me in these moments is the realisation that a lawyer must not only be a doer, but must also be a conscious observer of his actions. In other words, every time you goof up, your first instinct must be to look inward and be brutally honest, instead of passing the buck or making anyone else the scapegoat. This realisation led me to create my own “Mistakes Log” which has captured nearly every mistake I have committed in the last six years. I have preffered to assess the quality of my journey using the number and quality of my mistakes because success is the product of several factors, many of which are external and are beyond one’s power.

In these posts, I will draw on my experiences (both personal and vicarious) and share a few practical inputs. I will not, unless absolutely necessary, use much legalese or cite precedent because, thanks to the tools and databases available to most lawyers and even non-lawyers these days, it is not really difficult to read up on the case law on any issue, procedural or substantive. That said, it is important to bear in mind that individual journeys vary and consequently, the lessons drawn as well. Therefore, caveat lector applies to what I have to say.

I will write about aspects of both civil and criminal litigation. Under civil litigation, I will discuss pleadings, interim reliefs, discovery, the trial, oral arguments, and finally, appellate reliefs. Let us look at the general approach to drafting and pleadings first.

Orders VI to VIII of the Code of Civil Procedure, 1908 deal with pleadings. A pleading is defined in Order VI, Rule 1 to mean a plaint or a written statement. Orders VII (read with Section 26) and VIII deal with the requirements of a plaint and written statement respectively and the rules that govern pleadings generally are laid down in Order VI. Adherence to these rules, it is important to understand, is mandated only to the extent that the ends of justice are advanced. Departures from them are not uncommon in practice, nor are they frowned upon by courts unless they are egregious or fatal. This is not to trivialise or discourage adherence to these rules, it is merely an observation about the state of affairs.

In practice, when it comes to pleadings, the tendency is to play safe. This manifests in several ways – right from faithfully adopting boilerplates to making repetitive submissions for the fear of being accused of not denying an allegation or a claim or an assertion by the other side, so much so that even evidence affidavits turn out to be slavish reproductions of pleadings.

Drafting need not be a chore

Although there is a sense of safety in treading the conventional path and in reiterating, errors tend to creep in when templates are adopted without discrimination and that could cause embarrassment when they are scrutinised by the opposing side during trial. Also, from the litigator’s point of view, drafting becomes a chore as opposed to the active learning and simulation exercise it is supposed to be, which certainly does not bode well for the quality of the final product. So how does one go about drafting pleadings?

For starters, it would help to bear in mind that drafting is different from writing. Although good writing skills contribute to good drafting, being adept at English or at writing do not necessarily translate to good drafting. In fact, sometimes there is even a mismatch between the flair that people exude for spoken English and the quality of their writing, and even the converse holds good. Therefore, although a fair command over language and lucidity in writing are essential, what separates writing from drafting, is the realisation that:

(a) it has a real and serious bearing on the fortunes of a litigant.

(b) it caters to an audience that is trained in the law,

(c) it has to present the litigant’s case in the best possible manner while conforming to the requirements of the law, and finally

(d)it will be subjected to withering adversarial dissection by the opposing party (a draft looks great only until the opposing party steps into the picture).

Bearing all of this in mind helps lend sharpness to a draft. That said, given the critical role of pleadings, it is natural to be bogged down by the tedium and gravity of the process. So, given that in the initial years of practice, a litigator is primarily expected to be a researcher and a drafter, how does one quickly churn out sharp drafts and yet make it an engaging exercise?

Although it may not always be desirable or possible, crisp and concise pleadings make life easier for the litigator and the court, more so for the latter since it does not have the time or patience for rambling pleadings. In fact, the volume of pleadings invariably weans a court away from hearing a matter even if the dispute is otherwise fairly straightforward. That said, a litigator’s primary challenge in keeping pleadings to the point is to convince the client that volume of pleadings is not directly proportional to the strength of the case and certainly does not guarantee a successful outcome. This is where the litigator has to fall back on her or his client counselling skills to set reasonable expectations to the client. While it is true that not every client may be convinced, the effort is worth it.

Reflect on what you want to present to the court

The key to clear-cut pleadings is to spend time thinking about what one wishes to present to the court before starting to draft. This means that the broader and the narrower points must be broadly identified and supported with factual and legal research. Subsequently, the litigator must decide the sequence in which the points must be captured so that the court can quickly grasp the nub of the matter without having to wade through several pages. This sequence must not be treated as final because during the course of drafting, an alternate sequence of arguments may seem more logical, or appeal from a strategic perspective. Although this approach may seem time-consuming at first, the advantages of spending time on the matter before drafting will become apparent with time as one becomes more adept at identifying issues and developing a feel for the forum. After all, in our profession, hard work is not measured by the number of hours spent in thoughtless labour or the number of pages drafted. The effort lies in rumination.

J.Sai Deepak, an engineer-turned-litigator, is an Associate Partner in the Litigation Team of NCR-based Saikrishna & Associates. Sai is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation and policy. All opinions expressed here are academic and personal.

Categories
Corporate

Learning to draft a termination clause? Start with the events of termination.

Drafting_for_Business_Deepa_Mookerjee.jpgAfter our discussions on condition precedent clauses, restrictions placed on transfer of shares, and the meaning of ‘call’ and ‘put’ options, let us now turn our attention to the termination clause, one of the last clauses we usually see in a shareholders agreement but no less significant. It is in fact a vital clause that contains the mechanism by which an agreement can be terminated and the shareholders can exit the company.

A termination clause typically contains two main elements: (1) the events of termination; and (2) the consequences of such an event occurring. In this post, let us look closely at some common events of termination:

– Material default by one party: Take the case of A Limited and K Limited, two parties to a shareholder agreement. K Limited commits a material default and is unable to cure that default within a specified period of time. A Limited should then have the right to terminate the agreement.

While drafting this clause, clearly define the term ‘material default’. This ensures that the agreement cannot be terminated for minor ingressions and that only serious defaults will trigger the clause. Also, it reduces the scope for parties to dispute whether a ‘material default’ has in fact occurred.

Next, the defaulting party should always be provided a specified time period (known as the ‘cure period’) to rectify the situation, and only the non-defaulting party should be given the right to terminate the agreement. Specify that to invoke this clause, the non-defaulting party must always send a written notice to the defaulting party.

– Deadlock: A deadlock typically occurs when parties are unable to agree on a vital issue necessary for running the business of the company. While drafting, always define a ‘deadlock situation’. An example could be a company’s inability to hold a board meeting on three consecutive times for want of quorum.

For example, if K Limited would like the company to take a loan and A Limited disagrees and whenever K Limited tries to organise a board meeting to discuss this issue, the directors representing A Limited do not show up and so since no proper quorum is constituted for a board meeting, it can be considered a ‘deadlock situation’.

Often, the occurrence of a deadlock situation can act as a termination event. Parties may feel that it is impossible to run the business in such a situation and they would rather terminate the agreement. Discuss with your clients whether they would like a deadlock to be a termination event or whether they would prefer to resolve the situation through other means (such as arbitration).

Further, if a deadlock situation is considered an event of termination, always specify a mechanism by which one party can send a written notice to the other party specifying that this is a deadlock and it would like to terminate the agreement.

– Insolvency of the company – A Limited and K Limited are shareholders in One Limited, a corporation that is bankrupt and going through insolvency proceedings. Obviously the shareholders will then wish to terminate the agreement since it is not possible to continue running the business. While drafting this clause, it is best to specify that the agreement will terminate automatically on the occurrence of this event. This will eliminate procedural steps such as a notice being sent by one party to another.

– Cancellation of the license required to carry on business: The shareholders agreement concerns a banking company. A bank requires a license from the Reserve Bank of India to carry on business. If this license is cancelled, the bank ceases to function. Therefore, cancellation of the license (in a regulated entity) should be drafted as an automatic termination event.

– Change in law (resulting in the business of the company becoming illegal): Currently, the law permits private entities to operate airlines (subject to the necessary approvals). Assume that over a period of time, the government changes the law and nationalises all airlines. This means that private entities can no longer operate airlines. Consequently, any shareholders agreement to operate a particular airline must automatically terminate.

There is one important distinction among termination events that comes to mind when we study these clauses – some do not result in automatic termination and require parties to send written notices to each other (for instance, in case of material default or deadlock situations) and in other cases, there is an automatic termination (in case of a change in law, insolvency, or cancellation of a license). Always keep this distinction in mind while drafting. Ask your clients whether they are comfortable with certain events leading to automatic termination. After all, the thumb rule while drafting is always to reflect the interests of your client.

Finally, remember that a termination clause usually comes into play when the parties are disputing or have an issue they cannot resolve. In such a scenario, it is necessary that the termination clause is clearly drafted and sets out in a very precise manner, the events of termination and their consequences. If the clause is open-ended or vague, it is unlikely the parties will be able to follow the clause since they will end up arguing over the very intent of the clause itself. As a lawyer, your role is to try to amicably resolve the dispute or at the very least provide the most efficient way to exit from a situation that cannot be resolved!

With this, we come to the end of this post. In my next post I will write about the consequences of termination.

Deepa Mookerjee is part of the faculty on myLaw.net.

Categories
Corporate

Learn to draft a share purchase (or subscription) agreement for a private equity transaction

PrivateEquityLawyer_AngiraSinghviOnce due diligence has been conducted on the target of a private equity investment and the investor, satisfied with the outcome of due diligence, is ready to invest, the stage is set for drafting the documents needed to complete the transaction. Drafts of these documents are usually prepared while the due diligence proceeds simultaneously.

The key documents

The documents that are fundamental to a private equity investment are (1) the share purchase agreement (“SPA”) or the share subscription agreement (“SSA”) depending on how the investor acquires shares in the target; (2) the shareholders’ agreement (“SHA”); and (3) the disclosure schedule. Since a private equity investor invests in the company for a fixed amount of time rather than in the assets owned by the company, asset transfers are quite rare.

An SPA provides for the transfer of shares to the investor. It is executed when the shareholders of the target company agree to transfer their shares to the investor. Under such an agreement, the investor purchases shares that are already in existence. An SSA on the other hand, provides for a new issue of shares. Such an agreement is preferred when parties decide that instead of the current shareholders transferring their shares to the new investor, the company would issue new shares to the investor. The investor subscribes to these new shares and hence the name, “share subscription agreement”.

An SHA provides for the rights and obligations of the parties inter se, that is, in relation to each other. It includes provisions for the manner in which the target company will be governed and run after the closing. Common items covered in an SHA are the appointment of directors, the conduct of board and shareholders’ meetings, shareholding, the raising of finance, and the transfer of shares.

A disclosure schedule sets out the documents and information that the target has provided or given access to the investor during the due diligence process or at any time before the execution of documents.

Let us now discuss these documents in greater detail. I will cover SPAs and SSAs in this article and SHAs and disclosure schedules in the next one.

As we have seen, an SPA or an SSA (as the case may be) provides the framework for the investor to become a shareholder in the target company. Let us now see some of the major issues that this document will cover.

Transfer or issue of shares

The agreement will state whether the shares are being issued or transferred to the investor. It will also set out the price at which the shares are being issued or transferred, the mode of transfer or issue, and the manner in which the consideration is transferred. While the transfer is stipulated in the agreement, it actually takes place during the board meeting that is conducted at the time of closing the deal. I will discuss the details of how this should be conducted in a later article on closing.

While drafting this clause, it is also useful to keep in mind certain specific aspects that may affect a transfer.

Documents in escrow: The parties may, for example, only want the transfer to take effect from a later date. Until that date, they may want the executed documents to be deposited in an escrow account. While drafting such conditions, you should be able to identify any procedural and secretarial issues such as those in relation to the validity of resolutions for a particular period or the validity of share transfer certificates. An escrow arrangement for instance, will not work unless those documents are valid for the entire period of escrow.

Sale to a foreign party: Similarly, a sale to a foreign party must adhere to the pricing norms contained in the FDI Policy.

Encumbrances: In the case of a transfer of securities, lawyers advising on the transaction should ensure that the transfer is free from all encumbrances. For example, the shares may be pledged to third parties against loans and advances or there may be a charge on the assets of the company. Due diligence should be thorough so that any such possibilities can be crossed out. Further, documentation should mention that all transfers are without any encumbrance. Charges can be searched on the Ministry of Corporate Affairs’ website and a lawyer can draft the ‘transfer’ clause accordingly.

– Authorised share capital: In case of a new issue of shares, a lawyer should also ensure that the company will continue to comply with the ceiling of authorised share capital after such issue. Under law, a company cannot raise more capital than the authorised share capital provided in its memorandum of association. In case the capital after the raise is likely to exceed this amount, the memorandum should be amended to reflect that.

– Nature of security: In case the issue involves a party resident outside India and the automatic route is intended for the investment, a lawyer advising on the transaction should also ensure that the nature of security is such that it is a plain vanilla equity or that is compulsorily convertible into equity and advise the client accordingly.

Conditions precedent to closing the transaction

On completing the due diligence, lawyers advising the investor will be able to identify some key items that the target entity should fulfil before closing the transaction. For instance, the target company may not have complied with some laws.

Some common conditions precedent include:

(1) that target entity should obtain some prescribed licenses;

(2) that it should issue appointment letters to its employees in a prescribed format;

(3) that it should complete the statutory books and pending filings;

(4) that it should obtain necessary corporate approvals and resolutions for entry into the transaction; and

(5) that it should obtain a valuation of shares.

The SPA or the SSA will contain these conditions. A condition precedent has to be fulfilled by the seller after the agreement is executed but prior to closing the transaction. The buyer usually has the option to provide an extension of this period or even to cancel any such compliance as a condition precedent if it is not fundamental to the investment. Common examples of such conditions are the obtaining or renewal of ancillary licenses, such as, the license to operate a lift. However, fundamental conditions such as the license to operate the business or any corporate approvals necessary to undertake the transaction, cannot be dispensed with.

The SSA or SPA will also provide a date by when each of the conditions precedent should be complied with. This is usually called the “long stop” date. The agreement will stipulate that unless the conditions are complied with by that date, the agreement, despite execution, will terminate and there will not be any closing of the agreement.

Closing

The “closing” is the point at which the transaction is completed. Shares are transferred, money is paid, the board undergoes changes, and the necessary corporate actions are undertaken to formally make the investor a part of the target entity. Closing is usually undertaken 30 to 60 days after the execution of transaction documents. During this time, the target entity fulfils the stipulated conditions precedent or seeks from the investor, a waiver from fulfilling them.

On the closing date, a board meeting is organised. The main actions undertaken at such meetings include the issue or transfer of shares (as the case may be); the appointment of directors nominated by the investor; and the approval of the amended form of the target’s articles of association and then placing them before the shareholders for final approval. We will discuss the need for such appointments and amendments in a later post on SHAs. The process of closing will also be discussed in detail in subsequent posts.

Following the board meeting, a shareholders’ meeting is also organised. Some matters that are passed by the board, such as an amendment to the company’s articles of association, require shareholders’ meeting for final approval.

Once the closing has been successfully completed, an investor formally becomes a part of the target company. All these aspects are stipulated in the SPA or the SSA usually after the clause on conditions precedent. This clause provides the time and date of closing and also lists out the actions that will be undertaken on the closing date. Since there are numerous actions to be completed, usually, it is provided that upon one last action being completed, all closing items will be deemed to have been completed. This clause also provides the manner in which consideration will flow from the buyer to the seller unless a separate clause on consideration is provided for. There are several ways in which a transfer of shares may take place. For example, it may be in dematerialised form or through the endorsement of share certificates. Consideration may be paid through cash, cheque, or wire transfer. All these aspects are provided for in the clause providing for transfer or issue of shares. Where the investor is a foreign entity, Form FC-GPR in the case of an issue of shares or Form FC-TRS in case of a transfer of shares, need to be filed with the Reserve Bank of India. After all these actions are completed, share certificates are finally issued to the buyer and then the closing is deemed to have been undertaken.

This clause has a large bearing on the completeness of a transaction from a procedural point of view. All items should be carefully listed and completed in accordance with company law and the applicable secretarial standards.

Representations and warranties backed by indemnity

You will remember from studying the law of contracts and sale of goods that representations and warranties are usually made by a seller to a buyer regarding the product that is up for sale. To understand this clause in the SSA or the SPA, you can consider the target company as a ‘product’ that is being sold by its current shareholders. Extensive representations and warranties are made to ensure there will not be any liabilities or adverse consequences for the investor.

They include representations and warranties about the authority and capacity of the parties in entering into the transaction; corporate matters, filings, resolutions and approvals; licenses and approvals for the transaction and business; business of the company; taxation, accounts and records; borrowings; intellectual property; related party transactions; assets; and litigation.

As lawyer advising the investor, you should ensure that your list of representations and warranties should be extensive and cover every aspect in relation to the target company. A lawyer advising the target company will attempt to narrow down the list. For example, if the target company has already provided the investor with some information during the due diligence, you may refrain from providing any representation or warranty on that very aspect as the investor is expected to know the correct state of affairs. Also, if the investor has clearly come to know of any shortfall in the company’s affairs, you may not want to provide a representation or warranty to that item.

These representations and warranties are backed by indemnity. While agreeing to indemnify the investor, the company and its current shareholders promise to save the investor from any loss caused to the investor for any breach, falsity, or shortfall of the representations and warranties. It is important to draft the clause on indemnity carefully to ensure that liability is predictable. A company will want to cap its liability as much as possible while an investor will want to do the opposite.

This brings our discussion on drafting SPAs and SSAs to a close. I will discuss SHAs and disclosure letters in my next post.

Angira Singhvi is a principal associate with Khaitan Sud and Partners and handles general corporate, joint ventures and private equity investments.

Categories
Corporate

All you need to know about drafting put and call option clauses

Drafting_for_Business_Deepa_Mookerjee.jpg“Call options” and “put options” are used frequently in shareholders agreements. As you know very well by now, a shareholders agreement specifies the rights and obligations of shareholders and sets out the manner in which the company will be governed. We have already seen some vital clauses used in these agreements such as condition precedent clauses and restrictions placed on the transfer of shares. Let us now look at “call” and “put” options.

Simply, a call option is a right but not an obligation to purchase shares at a specified price, on the happening of a specified event. If A and B are two investors in a joint venture company, A may have a call option over twenty-six per cent of the shares held by B, which he can exercise once the limit on foreign direct investment (“FDI”) is raised. This means that once the FDI cap is raised, A has a right to purchase twenty-six per cent of the shares held by B. If A exercises this right, B cannot decline to sell the shares to A.

A put option on the other hand, is a right but not an obligation to sell shares upon the occurrence of a specified event at a specified price. If A has a put option over twenty-six per cent of his own shares in the company that he can exercise once the company is insolvent, it means that if the company declares insolvency, A can sell his shares to B. Once A exercises his put option, B cannot decline to purchase A’s shares.

Junior lawyers should understand these mechanisms well because they can be used in a shareholders agreement in various scenarios. To think that call and put options are only useful in an FDI limit scenario or an insolvency situation (as discussed above), would be incorrect. Let us first go through some scenarios to understand how they may be useful.

Versatile options

Assume that there are two shareholders in a joint venture company – A and B. You are representing ‘A’. A comes to you with a simple question – what if B commits a material default of the provisions of the shareholders agreement and is unable to cure the defect or default? What are the options available to A?

PutAndCallOptions_ShareholderAgreementsYou can tell A that he can either ask for a mechanism by which he can sell his shares and exit the company (a put option) or a mechanism by which he can insist that B exits (a call option), when the material default occurs. The latter mechanism means he can continue in the company and ask B to exit. If you know these mechanisms well, you can give your client two options – either continue in the company and buy the other party’s shares (by exercising the call option) or sell his shares and exit the company (by exercising the put option).

Take another scenario. Suppose your client would like to continue as a shareholder in the company only if the company generates a certain amount of revenue after a specified period (say five years). If not, your client would like to exit. If you know what a put option is, you can simply suggest that your client include a put option over his own shares.

These two mechanisms can therefore be used throughout shareholders agreements to address different scenarios and the various needs of your client. There are some points that you should keep in mind while drafting them.

1. Be precise about whether your client has a right to sell shares or is under an obligation to purchase shares. Use words such as ‘right’ and ‘obligation’ wisely to ensure that the burden is being placed on the correct party.

2. Specify the amount or percentage of shares that are subject to the call or put option. At the time of enforcement, there should be no confusion on the amount of shares that can be sold or bought.

3. Remember, contractual arrangements can work in many permutations and combinations. For instance, if you are drafting a put option clause, it is not necessary that the shares always need to be sold to the other parties in the shareholder agreement. You can also have a right to sell your shares to a third party of your choice. Similarly, it is up to the parties to decide whether the option should apply to a part of the shares or all the shares that a party holds. As a lawyer, you should advise your client about the most appropriate form of the clause depending upon his or her intentions.

4. As always, the letter of the law plays an important role. For instance, the Reserve Bank of India has made it clear that a non-resident investor should not be guaranteed any assured exit price at the time of making an investment. The exit price must be a fair price calculated according to the prescribed guidelines and at the time of exit. Keep this in mind when you draft a put option for a foreign investor and always know the correct legal position before drafting.

5. Always flesh out the manner in which the clause will work. For instance, if your client has a call option on the shares held by the other party, you should specify the manner in which your client should send a notice to the other party indicating his or her intention to exercise the call option (known as a call option notice), the time period within which the other side must respond (the call option period), the price at which shares will be sold (the call option price), and the maximum time period within which the sale must take place. Specifying these details makes it simpler to execute the sale and implement the clause effectively.

Remember these basic points while drafting. Make sure that you are always clear about what a clause is intended to achieve. Take the time to understand the needs of your client and draft accordingly.

(Deepa Mookerjee is part of the faculty on myLaw.net)

Categories
Law Schools

Law schools are not very good at teaching drafting – and that’s a problem affecting everyone

AbhinavSekhri_NationalLawSchoolofIndiaUniversityOral advocacy, which we discussed in my last post, is only one aspect of life as a litigator. An equal, if not greater, time and effort is spent in drafting legal documents, which help sustain everyday transactions.

How are the set of skills required for these nurtured in law school? Students at NLSIU only spend one-thirtieth of their time on average trying to draft documents – once during the Drafting Pleading and Conveyancing course in the third year and then in the Trial Advocacy course in the final year. This is undoubtedly a very short amount of time to develop these skills. At times, the focus was to get through as many documents as possible which curtailed the time spent on understanding the meanings of terms involved. Students therefore, end up not much better off compared to those people who may seek them out for advice on a verbose document. This encourages students, upon graduation, to use templates without appreciating how each clause may need tinkering for different situations.

AQOLbannerThere are structural issues at play as well. The current system views drafting mainly as an individual-centric exercise, teaching only those legal documents that natural persons execute among themselves or file in a court. We were taught how to draft mortgage deeds, sale agreements, and bail applications – but always for individuals and never from the perspective of corporate transactions. Elective courses apart, there is no training for drafting or understanding proper contracts, non-disclosure agreements, and their various clauses. This inexperience severely limits the exposure possible at internships, particularly in law firms.

The little that is being taught however, is surprisingly useful in the practice of law. That is simply because documents like sale deeds, bail applications, quashing petitions and the like still contain many formulaic elements and their form has not drastically changed over the last twenty-five years. The law school has been rather adept at simply providing the students those templates for later use. But is that a good thing? I think not.

In failing to critically deal with status quo, the law schools lets go of its most important responsibility – making the students think about the legal system. The manner in which legal documents continue to be drafted in India is very archaic, verbose, and hyper-technical; all of which pushes the common man even further away from the justice system. Is there an irreplaceable benefit to retaining the several “wherefore”s, “whereas”’, and “henceforth”s in a deed? None – apart from the apparent benefit of making it sound legal.

ThewaywedraftI view this as a symptom of a problematic imbalance in place at law schools today. Courses are designed to make students familiar with the text of the law, but not its application. There are hardly any drafting sessions during the two mandatory courses on contract law. Criminal procedure was taught without ever looking at a bail application. Similarly, property law went by without ever going through an actual sale deed or mortgage deed. The point is clear. National law schools must narrow the divide between the teaching of statutes and precedent and their application to real-world scenarios. Otherwise, their very purpose of providing India with socially useful lawyers may be lost.

(Abhinav Sekhri is an advocate practising in Delhi.)