Month: July 2019

2018 was a good year for Indian entrepreneurs. The world’s third-largest start-up ecosystem saw its base expand by 12-15% and investor funding grow by 108% year-on-year, as well as a rise in late-stage funding – sufficient to give a leg-up to unicorn status for eight companies, according to a 2018 report by NASSCOM and Zinnov Management Consulting, Indian Tech Start-Up Ecosystem: Approaching Escape Velocity.

But just a few years ago, things weren’t quite so rosy. Despite the dizzying success of e-commerce wunderkind Flipkart (sold last year to Walmart for USD$16bn) and its ilk, investment plummeted from $1427m to $583m between Q1 and Q2 2016 (according to CB Insights, October 2016) and businesses started to go under.

‘Investors were investing like anything. The majority of the time it was e-commerce and consumer services, and everyone was putting in money. The field became saturated, start-ups were giving big discounts to gain customers. And that model doesn’t work, because you are not creating customer loyalty,’ says Saugat Dutta, project manager at EY heading the Startup Himachal PMU.

‘The success parameter of a start-up was judged by how much investment it had secured, so it was a case of: “That start-up is very successful.” “Why?” “Because they secured millions of dollars in “investment”. Now, when I read a start-up story, the story is “Who’s that start-up which generated this much revenue within these many months?” – not the amount of the investment they raised.’

‘With any kind of herd mentality, you often will see a lot of people putting in money speculatively,’ adds Dibyojyoti Mainak, consultant GC of Mobile Premier League, a mobile gaming app start-up.

‘You started seeing cases where investments were made that were often valuing companies at far more than what they should have been valued at, even investing in companies without really seeing a business behind it. It became less about the product and more about a certain template of success within the market. So, if one content company has raised money, then you would expect every other content company to also raise money,’ he explains.

But rather than complete collapse, what followed was a process of maturation – building on established tech talent within the country, but with a renewed focus for strategy, sustainability and a global business plan to support those eye-catching ideas.

Laying the groundwork

Significantly, the government’s endorsement of the sector has mushroomed, evidenced by the creation of Startup India in January 2016. The flagship initiative was established to encourage start-ups that meet its criteria (and register) with benefits such as financial help with patent filing and fast-tracked examination, self-certification under certain labour and employment laws, and an income tax exemption for three years. In addition, Startup India has formed a 10,000 crore fund of funds to make downstream investments in venture capital and investment vehicles that target start-ups, promoted the creation of incubation centres and labs to foster both innovation and R&D in education and industry, as well as relaxed public procurement norms which previously excluded start-ups.

‘India has been an agrarian economy for decades. The new government [formed by Prime Minister Narendra Modi in 2014] wanted to bring about a shift to a knowledge-based economy. We have been exporting engineers and doctors abroad, so instead the goal was to see if we could use the skills and knowledge base here in India to achieve economic prosperity,’ explains Dutta, who works with state governments on initiatives to support and develop start-up ecosystems.

In order to drive a culture of nurturing the innovation ecosystem to the grassroots level, central government devised a framework to rank states on their efforts to support innovation along several verticals, intended to create competition and encourage each state to take ownership of its start-up environment.

The central government’s push for ‘Digital India’ (which promotes the use of innovative technology in government) and ‘Make in India’ has led to some cross-pollination with state government initiatives. For example, the government of Andhra Pradesh, has started to put all land records on a secure, blockchain-based platform, and is also using drone-based solutions for state security and checking municipal infrastructural compliance. In addition, it utilises Internet of Things solutions for inspecting the cleanliness of government-supported school toilets. Such initiatives have begun to create opportunities for start-ups to cater to technology requirements, facilitated by relaxed public procurement rules allowing state governments to order directly from technology-focused start-ups. The companies gain user validation and also secure a state government contract, boosting their credibility with private sector customers.

And access to innovation is expanding beyond the usual hubs. The city of Bangalore is synonymous with tech-based innovation – it is home to 25% of India’s tech start-ups, with Delhi and the National Capital Region (NCR), and Mumbai housing 21% and 14% respectively, according to the NASSCOM/Zinnov report. But the same report notes that an increasing presence of tech incubators, tech parks and affordable work spaces is allowing tech start-up hubs to flourish in cities such as Hyderabad, Chennai, Pune and Kolkata, with additional growth in tier two cities such as Jaipur and Chandigarh.

But, success has not been unqualified, according to some.

‘For you to be a start-up, you needed to get a certification of sorts from, inter alia, one of the recognised tech institutes in the country, or have a registered patent in your name already,’ says Mainak.

‘That essentially cuts out 90% of everybody in India, because we are not a very patent-savvy nation, not to mention [the fact that] the patent regime in India is quite restrictive. You can’t expect a 23-year-old or a 25-year-old who is still in college, mostly on parental money, to have the financial wherewithal, or even the knowledge, to do something like register – it’s a very complicated process. That was a specific problem with the start-up definition – but that’s something the government’s already worked on solving. New notifications brought in in February 2019 relaxed many of these rules, and now require, among others, just a write-up justifying how you are innovative/will create jobs etc,’ he says.

‘Secondly, the Indian bureaucracy is a behemoth which answers to multiple interests/powers. It is not centralised enough for the central government to simply push policy and expect that all departments will follow. I’ll give you one classic example: the government has said that labour and employment compliances are cumbersome, which they are. So they said, “Ok, everybody until about three or five years in, you can self-certify.” Very good. Except then, they brought in a new tax law. Tax is covered by one department and employment is covered by a different department, and what that means is that taxation doesn’t follow that logic, so overall, the number of compliances you have to do has not reduced sizeably. If one goes down, another comes up – it’s a little bit like fighting like a hydra.’

Clearing the way

To exist in this space means grappling with a very particular set of challenges.

At the intersection between India as a jurisdiction and start-ups as an ecosystem is the issue of safeguarding ideas: in India, the process for obtaining patents has been historically sluggish, while time is of the essence for a burgeoning start-up economy working to reach its full potential. Recognising this, Startup India has introduced expedited patent review and rebates on filing fees.

‘India’s IP system has to catch up, people are not getting patents granted for five years in some instances. They file and wait. And, in the mean time, the technology loses its edge. So still, we are shaky, we cannot hope to compete in the international market that way,’ says Dutta.

‘The very restrictive licensing and the restrictive patent and IP regime that we have in India makes it tougher for you to protect your brand. And that’s the first challenge I see: brand protection. Because most start-ups don’t take that very seriously and this is why everybody has a copycat problem. Essentially, there’s somebody else who’s trying to do the exact same thing and often even copying your name,’ adds Mainak.

‘The gaming sector, where I am now involved, is very litigation prone. And it’s not just litigation, it’s prone to action from various different government departments who don’t necessarily understand the business. There’s a lot of confusion regarding whether this is entertainment or whether this is sports, and how we want to see it. Those kind of regulatory challenges are there for many sectors.’

Despite much regulatory relaxation for start-ups, penalties for non-compliance in some areas can be prodigious. Nevertheless, labour and employment, Goods and Service Tax, Shops and Establishments Act and Registrar of Companies compliance, as well regulatory requirements to combat sexual harassment, can be areas that those at the most nascent stages might be tempted to neglect.

‘Contrary to how the situation was about 15 or 20 years ago in India, when it was easy for somebody to miss out on certain compliances and still the law doesn’t catch up with you, today it has become extremely stringent. The law will catch up – if not tomorrow, definitely three years down the line. The fallout of not doing compliance is way higher than the money that you spend getting compliance done,’ says Janhvi Pradhan-Deshmukh, lead legal counsel at Startup Box, a firm that provides legal, consultancy and secretarial support to start-ups.

‘For bootstrapped start-ups, it’s a little difficult to convince them of certain things. With certain innovative business models, the law is not exactly made for them and, as such, they think that it’s ok to not do certain compliances because they don’t fall exactly under the ambit of the law. But in a start-up, time is more important than money because the start-up world is so dynamic – it changes so frequently, so fast – that to catch the trend, to catch the market is very important. You can’t be wasting time on answering legal notices and replying to queries.’

Running the farm

In recent years, India has experienced a cultural shift – doing away with past attitudes towards entrepreneurialism, and rethinking the concept of failure.

‘When someone wanted to start his or her own business you were looked down upon. If you had not secured good marks and were not academically qualified, or had not got a good job, that’s when you were starting something of your own,’ says Dutta.

‘But now, having a start-up – even having a failed start-up – has started to become a badge of honour.’

This has attracted not just young and ambitious minds, but also experienced executives into the field – and start-up adviser Pradhan-Deshmukh has found that her role is to handle not only legal issues, but to understand the psyche of all types of co-founders.

‘The young generation, they are fresh out of university and have an amazing bunch of ideas. Unfortunately they are a little blindsided by the Flipkarts of the world and they cling to that: “Oh, I’m going to become a billionaire in a short period of time when I sell off the shares in my company, and I will then become a serial entrepreneur and I’ll use that money to invest somewhere else.” It doesn’t work like that. When you come to me with that kind of idea, you have already made up your mind to sell your own baby before it’s actually born,’ she says.

‘But there’s another set of co-founders who have worked in huge corporates at high levels and then they decide, “Ok, I don’t want to work for someone else anymore.” These are the people who are mature. They understand the importance of compliance and legal, they understand the importance of having the right professionals on board – having chartered accountants, a company secretary, a lawyer. Unfortunately, they are extremely fixated on certain things – they sat in senior positions in their companies and they think that they can treat the new business in the same way, or they can tell professionals what to do and what not to do. But again, it doesn’t work like that because the start-up world is extremely different to a company which has been in the market for a hundred years.’

Home-growing innovation

Despite the burgeoning popularity of entrepreneurialism at both ends of the career spectrum, Dutta believes there is more work to be done to fully embed a culture of innovation, particularly among schools and the academic community, where the teachers themselves must be trained to develop a more innovation-friendly mindset.

‘The government of India has started funding to create small tinkering spaces called Atal Tinkering Labs (ATLs) in schools. So the infrastructure is getting there, but who will actually give the soft learning part, the teaching part? That’s missing. The hardware is sitting under lock and key because no one is actually there. In the colleges, also, the curriculum needs to be revised and the professors need to lead from the front in being innovative and entrepreneurial in the endeavours. We will soon have bullet trains, but our curriculum is still stuck at steam engines!’

Incubators, accelerators and innovation spaces are popping up across the country, but although the tech scene is flourishing with an abundance of talent, some believe that a world-leading innovation marketplace is a little way off.

‘Many Indian start-ups are essentially copycats of foreign start-ups. These are not home-grown basic ideas, they are essentially very good copies of what is already listed in the market,’ says Mainak.

‘We are aiming to be on par with Silicon Valley or, now, China. China is now a very serious contender to become a global start-up giant. Everyone is now heading to China because of a lot of unique innovations – they used to replicate, now they are innovating. India is still stuck at the replication stage,’ Dutta adds.

‘Things are coming, but I wish the growth trajectory would be steeper, because I am amazed by how China is doing – they are first pushing money into R&D and now it has started bearing fruits. India needs to do that; India is not pushing money into R&D. Mostly, we are trying to replicate and customise ideas to our socio-economic contexts. I don’t think it’s a bad thing because, of course, it’s generating money and employment, and is innovative at a basic level. But to have an edge over other countries, you need to pursue radical innovations and aspire to be inventive.’

A lawyer in the mix

For most embryonic companies, absorbed by passion for a new idea and the pitfalls of establishing a company, hiring in-house legal support has not been the first priority. But Mainak advocates greater diversity on core teams – including lawyers.

‘In India, the legal system is extremely pyramidical. We have a phenomenon called “grand lawyering”, where essentially there are a very, very small group of senior advocates who corner most of the influence. You will often not have access to these guys when you are a very young company and you can’t afford their rates, which then means that established clients will always have an advantage going into any kind of litigation. This is why it is important for most start-ups in India to ensure that they never get into litigation.’

However, he adds: ‘Most still wait till their first run-in with the legal system or bad/unfair contracts – in other words, whenever the first “crisis” hits.’

In a fast-growing company, investment in company culture and good policymaking often falls by the wayside, and a toxic environment can emerge, incubating issues that further iterations of the organisation will have to face. And neglecting the detail now can cause future headaches, or even financial hits.

‘When you try to raise your third round of funding, or later on when you are listing and you are trying to raise a huge amount of funding and they are trying to do a due diligence assessment, a lot of these issues come to the fore. At this point, it’s a huge pain trying to solve all of these problems – maybe four years down the line the company realises that it hasn’t signed a non-disclosure agreement, or a pensions agreement, or even employment agreements, in some cases. That is when they would bring in somebody legal,’ says Mainak.

‘It’s not the best strategy, particularly with a system that is so regulation-heavy (India remains one of the most regulated economies in the world), so you would do well to have a legal mind right at your board stage, right when you are trying to strategise. Lawyers tend to bring logic and structure, and are able to play devil’s advocate.’

For start-ups rushing to market, or scaling fast on a shoestring budget, it can be tempting to assume that a lawyer will do nothing more than hamstring a fledgling business. But, when the realities of compliance, process, litigation, contract negotiation and management, brand protection and strategy development converge, there is a fertile world of opportunity for advisers to bring a critical eye to proceedings, and weed out potential problems early on.

GC: Can you tell me a little bit about your background and how you came to be working in the law and working in-house?

Nitin Mittal (NM): I’m a qualified law graduate, a corporate secretary and also have a degree in finance. I believe in continuous education and, to that end, I recently also completed a Masters degree in business law from National Law School Bangalore, India’s premier university.

I started my career with a corporate, not a law firm, in corporate law, and the responsibilities on starting that job were multiple – not only law, but also finance, administration, real estate. But, gradually my passion and interest attracted me to the core area of law and I wanted to give my full attention to it because it clearly was my calling and passion.

For the last 13 years, I have been heading the legal function for companies that I have worked for. I am currently working with Phillips Lighting – for the last three years – which has now changed to Signify and, before that, I was with a German multinational called OSRAM for around ten years. Being an in-house lawyer and having worked at companies with global presence, getting exposure to different functions and people with different cultures within different business contexts has really shaped me as an in-house lawyer, and given me a holistic view of complex business issues, and how the external and internal environment changes. So that is how I have grown as a lawyer within the last 16 to 17 years of my career.

GC: What was it that made you want to work for a corporation as opposed to a law firm when you were starting out in your career?

NM: Apart from being a law graduate, my interests were also to leverage my degree as a corporate secretary – and if you want to leverage that degree then you need to work in a corporate. I was not so inclined to work on the litigation side in a law firm, as I come from a business family background. Hence, I wanted to work close to where the business is, and that is why I think I got attracted to the corporate field more than the law firm field.

GC: You’ve obviously worked in the lighting sector for quite a long time. What are the major trends that you’re navigating in that field in India?

NM: The lighting industry has witnessed a major transformation towards LED lighting over the past couple of years, across the globe, since 2014. The ratio of LEDification (as we call it) from traditional lights to LED continues to increase, enabled by several government initiatives, because the government in India is also promoting LED usage to enhance energy efficiency. But this ultimately led to revenue stagnation because the price point was going down drastically. As a result, the LED lighting industry saw the emergence of several low-cost competitors that offered low-cost LED products with no differentiation, which started bringing about even further price pressure – so even though the volume is increasing, the price is decreasing and, overall, the stress on margin is high. This trend peaked in 2018.

The challenge for the industry is to find new areas of growth beyond simple commercial lighting. For example, we have come up with a new innovation called LiFi – light fidelity – which gives you a stable and fast broadband data connection through light waves, as a powerful substitute for WiFi.

Then of course there is applying light to horticulture – how do you use light to drive productivity in horticulture, in plants, in vegetables, in chickens and livestock? How do you bring highly optimised, low-cost connected solutions to increase the penetration of lighting further?

The industry is looking at applying new trends that you see in business models, like lighting as a service, not as a product but as a service, and value-based pricing, with use of artificial intelligence and high automation.

From a general counsel perspective, these will lead to new legal scenarios – contracts becoming more complex, long term, PPP, and more digital and security laws, including specific regulations. You will find the need to have a deeper view of privacy because you need to use the data of customers for connected lighting, and you may need to monetise data. I think with this fast growth and transformation in the lighting industry, general counsels need to be up to date on new technologies, especially on the digital side – in different ways lighting is now more than illumination. We have to be fast thinkers; we have to come up with global solutions to problems that we never faced before. We always have new problems before us to solve. For this, we need to have out-of-the-box thinking, new solutions.

GC: As regards your role at Signify, what are the particular challenges that you’re dealing with at the moment?

NM: The main challenge in my role is to manage multiple issues in legal compliance and governance. We have a very lean team: including me, there are three people and we have to manage a business of more than €500 million. India is the fourth largest market for Signify worldwide. We tend to seek out the complex stuff but there are also minor things at any given point of time. I could be handling multiple regulators, whether there are labour laws, technology laws, competition law, or a complex negotiation, or litigation – civil or criminal – and, of course, compliance. With a small, lean team, I think you have to handle so many things at any point of time plus being updated with a lot of things that are happening in corporate laws, technology, in digital laws.

I think this is the main challenge: how do you gear up to do things that add value? You have to, as a general counsel, recognise how you reduce things which are not productive, which are not adding value to the legal function, to the organisation, and do things which matter the most, which are necessary for the organisation because of the changing industry. What Marcus Aurelius wrote in his book, Meditations – one should prompt oneself ‘Is this, or is it now, something necessary?’ – is very apt for us.

I see numerous situations where law is very equivocal, or core judgments are ultimately in a state of flux. Business demands are dynamic and advice is required to consider all these aspects. The spirit and the intent of the law need to adhered be at all times. So I think managing time qualitatively and tactfully is imperative.

GC: How does your team sit within the wider Signify legal team globally?

NM: India is part of growth markets within Signify. I am the leader of the team, but I also do a lot of things which are direct. We need leaders who are actually very hands on, do direct negotiations with customers, do property and M&A deals directly as well. We have a strong focus on integrity and compliance. My other two team members work on contracts, on business advisory, on compliance, on governance, on various other aspects of business – I think everybody really lives life to the full as part of a global team.

We are fully integrated with the worldwide legal team because globally the legal team is very close knit. They interact often and you can share any problems with them and you can also share knowledge with them. Knowledge sharing is very much a part of the culture in the legal function, and leveraging each other’s advantages and sense is also another key attribute of the function. Last year, I did a complex project in Morocco from India, and led that contract from the legal side, so I think geography is not a limitation right now. A legal team can be situated anywhere, and they can do things for other countries as well.

GC: You have digitised many of your legal and business tasks. Can you talk about that process of digitisation and any key learnings that arose?

NM: It is my firm belief that technology will provide efficiency and also effectiveness to the GC role and for business. We have a contract management tool to ensure that we can have sales and purchasing contracts stored digitally. People can retrieve contracts and it can give alerts when contracts need to be reviewed. We are currently reviewing this to make it more all-encompassing.

Secondly, we have a very big initiative on managing compliance of various laws. India is a complex country with more than 25 states, and each of these states has their own laws. We as a company have two manufacturing locations, multiple offices, and around 200 laws under which we would be governed. How as a company do you ensure that you’re complying with all these laws? So through technology we mapped all these laws through different functions within the company, and all these individuals now get alerts: this is a law that you have to comply with, please upload evidence, please ensure that you are complying. This is monitored through that digital tool, which we give to an external party.

On governance, we also digitised our board meetings so we don’t do them through paper, everything is done digitally. That enables a lot of efficiency at the board meetings. This is also good for sustainability and the environment.

We are also looking at some other initiatives, especially when we do projects – how do we manage projects happening across the country, where we use contractors?

I think the mindset is that technology is there to stay, whether it’s analytics, whether it is blockchain, whether it is artificial intelligence. But the question is how do you use it successfully in a cost-effective manner? And these new technology initiatives also pose challenges, because they should be understood by all the participants and the rationale should be justified, otherwise it will not work. You have to have a buy-in from everybody – if you roll out and people don’t fully understand it, or fully understand the benefit and simplicity that it brings, it will not work in the long term. It is very important that everybody is on the same page when you are rolling out technology initiatives in the company.

GC: Are those technology initiatives used elsewhere in the global Signify legal team, or is that something that you’ve been spearheading from India?

NM: On governance, for example doing board meetings without paper, is very India-specific. Compliance with law, which was a big project that was only India-specific – nowhere in the world has a software which monitors compliance with all applicable laws.

GC: Looking to the future, can you tell me about what you see as the big events or the big challenges on the horizon over the next year that will impact on your team and how you’ll be supporting the business?

NM: I think the biggest challenge I see for Signify is managing the transformation that the lighting industry is facing, shifting from conventional lighting to LED, and now from LED to connected lighting. How will we gear up to offer an unmatched value proposition to the customer and diversify our product and service portfolio to differentiate us as a leader in the industry?

As a legal function in the future, over the next one-to-two years, I think we need to be more agile, more focused on where are we adding value for the organisation and where we need to concentrate more. I think these are the two or three things we really need to get up to speed to as a legal function if we want to support the company in its transformation going forward.

Another project we are doing is basically concentrating on things that we can stop doing, and focus on things that are adding value. I think those things are really important in the future because of limited resources, and focusing more on the changing portfolio of the company.

The battle to build a diverse, highly skilled workforce, particularly at the leadership level, is continuing around the world – and India is no exception.

Female representation within the Indian legal profession is strikingly low. At present, only three female judges (of 31) sit on the Supreme Court of India, and only 6% of high court judges are women.

46% of those surveyed in Monster’s Women of India Inc study felt that there was an obvious perception that women cannot put in the same hours as men in the workplace. Remarkably, only 72% of men surveyed felt that both men and women ought to receive equal opportunities at work.

Although India ranks fifth lowest in the world in having females in leadership roles according to Women in business: beyond policy to progress, a 2018 Grant Thornton report, this figure has risen from 14% in 2014 to 20% in 2018.

But progress is gradual.

Workplace gender and cultural bias

The prevalence of scepticism regarding a female lawyer’s professional capability and counsel is reflective of gender bias at several levels, with female lawyers often labelled as ‘aggressive’ or ‘unfit’.

A high-profile example of this came in 2012, when comments made by a high court judge caused outrage throughout India. Justice Bhaktavatsala of Karnataka High Court was reported as saying that an unmarried advocate arguing a matrimonial case was unfit to argue, as she was an unmarried ‘spinster’:

‘Family matters should be argued only by married people, not spinsters. You should only watch. Bachelors and spinsters watching family court proceedings will start thinking if there is any need to marry at all. Marriage is not like a public transport system. You better get married and you will get very good experience to argue such cases.’

Following a successful petition, Justice Bhaktavatsala was removed from sitting on family matters.

But institutionalised biases remain: an inherent social prejudice or ‘glass ceiling’ subsists for females wishing to advance in the legal field, including in-house. The Women of India Inc study found that 47% of women reported an inherent view that, once married, women were far less serious about their work. And other stereotypes persist.

‘Today, in India, we’re still discussing “Does she have a voice?” and “Should she be taken seriously?” in the workplace,’ says Preeti Balwani, general counsel for India at The Kraft Heinz Company.

‘One of the most critical things that women face is the fact that stereotypes interfere with them being taken seriously.’

She adds: ‘They also judge you based on your appearance – they believe that a certain type of appearance denotes that a woman may be more invested in her appearance than her work.’

Maternity and demanding work-life balance

With the work day – and perhaps night – split between client meetings, case preparation and court hearings, the life of an Indian lawyer, whether at the bar, bench or in-house, does not readily sync with the demands of raising a family.

‘A major challenge would be managing perceptions and the unconscious bias people have towards flexible working hours. For example, when women return from maternity leave,’ explains Shelly Kohli, assistant general counsel for South Asia, Middle East and North Africa at Levi Strauss & Co.

‘Despite being on call 24 hours a day, seven days a week, we still feel pressured if we have to leave early or come in late, whether it’s because of childcare or any other commitment. I also feel that there is a challenge in being perceived as high potential working flexible hours – this whole stigma around working only when you’re visible is a very big challenge that women lawyers continue to face.’

‘Whilst hiring a woman, management consider if she’s going to get married and have children in the near future,’ adds Balwani.

The Women of India Inc study found that 46% of women felt that taking maternity leave would lead to a view that they would also quit, with 59% describing the transition back to work as challenging. This was due to various reasons: unaccommodating executives, pressure to leave the company and their commitment to work being in doubt.

But, in 2017, the Indian government modified the 1961 Maternity Benefit Act to increase the length of maternity leave from 12 to 26 weeks to females with fewer than two surviving children. While on maternity leave, a female is entitled to ‘maternity benefit’, a fully paid absence from employment to take care of a child. The amendment also included ‘work from home’, and crèche provisions for companies that employ 50 or more employees.

‘I was thrilled when the 2017 maternity law amendment was finally passed – I think it’s a welcome step,’ says Kohli.

‘These changes actually position India as one of the most progressive countries in terms of providing maternity benefits: enhancing maternity leave from 12 weeks to 26 weeks enables women to combine their professional and personal life successfully without jeopardising their health or job security. I believe there are surveys that suggest that 25% of women lawyers actually forgo their careers after childbirth. These amendments address this challenge quite a bit – it also addresses having crèche facilities and ability to work from home, and I think this will eventually show demonstrable results in the form of more and more women employees coming back to work after maternity leave and helping the retention process.’

But not everyone is uncritical of the changes.

Says Zia Mody, founder and managing partner of AZB & Partners: ‘My thoughts on the 2017 maternity leave provisions are that it provides women with the safety net, which creates a good deal of comfort to them. I think the problem for employers is that they will have to pay six months and if, after that, a woman does not return to her workplace but joins a competitor, well – that’s that!’

Additional financial burden on employers could mean that some corporations are reluctant to invest in female employees, considering maternity leave and other associated benefits as wasted resource.

According to Balwani, there is still more work to be done.

‘The 2017 maternity leave provisions are an improvement on the previous law, considering that the previous law was very rudimentary. The new law has increased the amount of weeks, so without a doubt it’s a step in the right direction. Is it comparable to the maternity leave provisions in countries like Norway? No. We need to look around and see where we stand on the global platform – why is a mother in India at a disadvantage against her peers across the world?’

Gender pay gap

A gender pay gap exists whereby women in India earn on average 19% less than men. According to a Monster Salary Index Report, this gap increases to 30% for highly-skilled occupations. The report also showed that 60% of the working women in India surveyed felt discrimination at work and a third of those felt that they were not easily considered for leadership roles. However, of those surveyed, 71% of men and 68% of women felt that gender equality should be a prime concern within their organisation.

57% of Indian businesses surveyed by Grant Thornton in their 2018 Women in business: beyond policy to progress report, indicated that the Indian government ought to be proactive in its approach and do more to tackle the issue of gender disparity in the workplace and business leadership at a statutory position. Yet, of those 57%, only 31% stated that businesses and government should work in conjunction with each other in the domain of gender disparity.

The introduction of The Companies Act in 2013 made it compulsory for all listed and large public companies with a share of 100 crore or a turnover of 300 crores to have a minimum of one female director on their board in India. This was the first obligatory quota for female board members, covering all fields of employment, including legal.

‘Any kind of regulation such as The Companies Act 2013 requires compliance, and people take compliance very seriously. There has been a significant shift between what started off as tokenism versus actual seriousness about compliance. Some of this was already existent for public listed companies, so it’s still early days, but there is a move in the right direction. It’s too early to judge its success yet. I think if you give it another five years, we’ll be able to really sit back and evaluate whether the Act was successful in driving inclusion,’ says Balwani.

But some, like Kohli, argue that enforcement needs to beefed up:

‘Whilst this law, certainly on paper, helps improve inclusion and gender diversity in boardrooms, I feel much ground really needs to be covered. There has been data compiled by PRIME Database which has pulled up corporate reports filed by companies as of December 2018. It suggests that 118 of the top 500 national stock exchange listed companies do not have an independent female member on their board,’ she says.

‘These are not very promising numbers; I’m hoping that companies will implement this more seriously and that would really help women coming into more senior positions in companies. I think it’s a compliance issue and I would like to see how the authorities would react to this.

The Equal Remuneration Act 1976 requires the payment of equal remuneration to both male and female workers. However, eliminating discrimination in the workplace has proven to be a difficult task in practice.

‘We haven’t yet gotten to the conversations around the considerable pay gap. I think there is a very high presupposition that women don’t understand finance and that we as a gender don’t know how to ask for what we deserve,’ says Balwani.

Despite government legislation, representation of women in the in-house legal community is lagging behind. Female lawyers in top roles, including in-house, are still the exception rather than the rule. While overt discrimination towards women in the legal, and in-house, field has somewhat decreased, a common view is that this progress has largely been restricted to box-ticking.

Legislation alone cannot force headway, and organisations committed to genuine change and development concerning diversity within the workplace have aligned their policies with a genuine belief that diversity is essential for the advancement of society.

Ravi Singhania (RS): how do you pick lawyers for your company?

Nandita Khurana (NK): When picking an outside counsel for our company, we are looking for a firm with an established track record in the practice area in question. We also want them to have an understanding of our industry, business model, company culture, and objectives. In addition, we are looking for lawyers who are genuinely concerned with safeguarding our interests and who can provide practical legal solutions suitable for our business.

RS: What are your service expectations from outside counsel?

NK: In essence, we expect them to be a strategic adviser to the company. We need counsel to provide a confident and well-thought-out solution on the issue concerned. In short, don’t present me with the options; provide me with a solution backed by your logic and experience.

RS: What kind of fee arrangement do you prefer?

NK: Billable hours are a passé. We are living in times of software and apps which provide real-time information and decision-making capabilities for live, short-term and long-term problems, as well as their financial management. We expect outside counsel to work as an extension of our in-house team and thus, expect more certainty and predictability in billings.

We prefer working with most of the outside counsel and law firms who offer alternative fee arrangements, options involving blended hourly rates, fixed fees, retainers, yearly fees, contingent fees, discounts and value-added services. We work on tight budgets and expect our law firm partners to help us manage those legal budgets.

It’s important, too, to find ways to offer more services in that money. For instance, an external legal counsel instantly becomes the apple of my eye if you are updated about my company through reading of our annual reports, news and social media. Be my trusted associate and keep an eye on what might positively or negatively affect my business to get that brownie point.

RS: Do you have different categories of law firms for different types of matters?

NK: We are living in an era of specialisation. Today, you have experts for every ailment. I see the trend is shifting towards boutique law firms that are experts in their fields and area of specialisation, be it infrastructure disputes, intellectual property, competition law, capital markets or aviation.

Therefore, we do prefer experts who have successful track record in their practice area and have experience of advising companies in our sector. It provides a better perspective, as well as saving us billable hours and a lot of spade work to make them understand what we do. A boutique firm with similar clientele in my sector has a better handle on my business, industry trends, competitors and challenges.

RS: What is your process for finding new external counsel?

NK: Word of mouth is one of the most important reference criteria when hiring outside counsel. We have our own due-diligence procedures, like looking at the ratings of legal directories like The Legal 500 and, at times, checking their references from other in-house counsel who have used their services.

Cold calls and legal articles on email are helpful if they are relevant to my particular area of focus, too. Spamming my inbox won’t help either of us. Know your client (or prospective client) before sending that newsletter or requesting for a meeting.

RS: Do you prefer local lawyers more than global firms?

NK: It depends on the kind of assignment and the complexity of matter involved. For multi-jurisdictional matters like M&A and antitrust approvals, we prefer firms which have resources, coordination skills, networks and management capabilities in the chosen countries and jurisdictions.

For local compliance involving both contentious and non-contentious matters, it is always better to hire locals.

RS: Lawyers have been receiving a lot of flak from the judiciary and the users of their services for using too much legalese. What is your take on the lawyer who does not speak legal language?

NK: I always prefer plain talk over legalese in legal opinions. I do not hire an outside counsel to spend hours reading a 20-page memo full of sections and clauses. Keep the language simple, so that I can also explain it to my management and board of directors who are not lawyers. In short, don’t send me an email with an attachment where you could have explained your point in a few words and then bill the company for a memo to client. In my experience, a lot of times I have felt that it was very much possible to explain a legal position in plain English in ten bullet points than a twenty page memo.

At the end of the conversation, Khurana asked where outside counsel feel a lack of support from in-house teams, to which Singhania replied:

For me, the general counsel is the best resource I have about a company. They understand the ecosystem of the business, the board of directors, and the management. We expect them to tell us everything which is relevant in helping them legally. Do not hide vital information and have faith in us.

We do not expect GCs to be the legal experts, after all, that is why we are there! But during the conversation and discussion on legal advice and the recommended course of action, at times GCs do not like to be treated like a novice and explained basics of legal position and procedure. When we assume they know it all, at times we’ve found that they were unaware and expected hand-holding. We are there to answer your question and no question is a stupid question; please interject and ask us as much as you want to know.

You mentioned that you look at ranking bodies when hiring a law firm. Therefore, after years of dedicated service, please do give out a positive recommendation to the legal directories and don’t ignore that email from the researcher.

Lastly, I have mouths to feed and maintain the momentum of the work being done for you. Plus, we do not have big budgets and cash flows like big companies. We are tirelessly working to ensure preventive compliance for you, strategies to save you millions in disputes, and managing your mergers and acquisitions. The least that we expect is being paid on time. If we are important to you, it should be communicated to the finance teams as well.

Also, trust me that I have the best interest of your company in mind, so trust my recommendation when I bring you the bad news and you should consider settlement.