Legal Era Speaks to one of the Country's Finest Criminal Lawyer Known across the Bar and Bench for His Sharp Criminal Litigation Skills Amit Desai

 COVID-19 & the New Normal have impacted every industry including legal. Do you think Virtual Court Hearings are the future?

There is no doubt that the world over, Courts have been impacted. In most countries, access to justice too is being provided through Virtual Courts. But to me, this is not the future. Courts cannot become fully virtual. Physical courts are essential to the justice process. The hybrid model is the only way forward, wherein certain types of matters should get diverted to virtual Courts while others should remain in physical Courts. For example, all case management issues and preliminary matters of procedural nature can and ought to be dealt with through virtual Courts. Smaller matters and short arguments could also be dealt with virtually. But substantive matters, like recording of evidence, final or complex arguments, appeals, constitutional issues are more apt for rendering justice in physical courts.

The environment and sanctity of the courtroom ensures that the witness speaks the truth and enables the judge to appreciate the demeanor of a witness. Cross-examination is far more effective in a physical court. The ability of the cross-examiner to confront the witness with facts, circumstances, documents, contradictions, psychological pressure, eye-contact and to compel the witness to focus in order to extract the truth is only in a physical Court.

In a complex argument, the touch and feel, the repartee, the eye contact, the hand gestures which match the oral arguments, observing the opposing team, i.e. the entire body language, the ability to ensure concentration and focus is possible only in a physical Court. And make a significant difference in the appreciation of arguments.

You had the opportunity to work with stalwarts such as Nani Palkhiwala, Ashoke Sen and Khursetji Cooper as well as some of the finest civil and commercial lawyers in the initial stages of your career. In what ways did working with these greats help shape your career?

When I walked into the corridors of the Bombay High Court, the juniors of the Bar were in awe of them. Being able to work with them was the most sought-after privilege. There was so much learning but what remains with me is Nani Palkhiwala's legal innovation and mesmerizing advocacy, Ashoke Sen's photographic memory and breadth of knowledge, and Khursetji's incisive analysis, lucid articulation and felicity of language. Ashok Desai, the writ court doyen's soft style of advocacy, full of prose, successful understanding of the judge and knowing when not to push a point reminded me of foil fencing. But to achieve this required a deep study of the law and knowledge of the facts. They laid the foundation on which Ram Jethmalani and Krishnakant Desai's skill of mastering of facts and marshalling them got added over time. They and many more have shaped aspects of my thinking, preparation and delivery. What I learnt from all is the importance of not only the letter of the law but also the spirit of the law.

Early on in your career, you assisted the then Attorney General, K Parasaran, in one of the biggest corporate battles of the 80s – LIC versus Escorts. What was the experience like?

Sitting in the last row behind numerous counsels, solicitors and client representatives, I watched Mr. Parasaran in action. The proposition of laws on commercial laws, corporate laws, foreign exchange laws, administrative laws, constitutional principles etc. kept leaping out of this intellectual giant, which meant 2-4 sleepless nights in a row for all of us.

According to you, the core of criminal law is justice for all. Do you think the ends of justice have been served each time you fought a criminal case in your four decades of experience? Is there any instance, where, looking back, you regret having defended a particular accused?

There are many shades of justice and it depends on how you define "justice"? Is it the outcome of a proceeding which follows all the procedural rules? Or is it the outcome of what the public believes? Is it what the social or electronic media want people to believe? Or is justice about being morally right or legally right?

In Criminal Law, the endeavor is to ensure a fair trial in accordance with the Constitutional and Statutory Laws and Procedures. Have I seen justice served in each case? Not necessarily. Unfortunately, I have seen clients "judged" well before the judgment of the court. And although we define innocence or guilt by the evidence collected and placed before a court, it is unfortunate and frightening that at times it gets defined by the public opinion based on the media noise. This is a matter of serious concern and we need to quickly stem this tide.

Since every accused is entitled to a good defense, there cannot and ought not to be regrets as a lawyer is duty-bound to defend his client. Even Kasab was given the best defence. This rule in the Code of Conduct should never be forgotten, and yet it is often forgotten.

Is/are there any case/s that left an indelible imprint on you? Please elaborate.

Personal liberty and fair trial form the fulcrum of a criminal justice system. When either or both are violated, it always leaves an indelible impression. Victim's rights are as important as that of an accused. Presumption of innocence is as precious and important as a conviction after a full and complete fair trial. However, we often find that presumption of innocence is a bystander in bail law. Arrests are often unnecessary or premature and trials are delayed or unending. Caution needs to be exercised in invoking the presumption of guilt at early stages of investigations.

The Union Carbide case has certainly left an indelible impression. Shortly after the accident, I visited Bhopal. I saw the desolation in the city. It was a deeply emotional moment. Yet I cannot believe it to be a case of culpable homicide not amounting to murder. Since the matter is still being argued, I will not comment further on the matter at this stage.

Criminal litigation can have a deleterious effect on investments. I remember the battle between Iridium India Pvt Ltd, an associate of the now infamous IL&FS, and the Board of Directors of Motorola Inc. Iridium Inc. raised billions of dollars of equity from investors across the world to promote satellite-based telecom services. Unfortunately, competing technology made this project economically unviable. Indian investor was the only investor out of the 25-30 international investors who fi led a criminal complaint against Motorola for cheating Motorola and its Board. Whilst Motorola succeeded before the High Court in quashing the complaint, the decision was overturned in the Supreme Court. Innovation needs capital but its failure should not lead to criminal proceedings.

The Bofors scam, which is among your notable cases, keeps coming back to haunt us. Please comment.

Since the matter is in the Supreme Court, it would not be appropriate for me to comment. I may only say that this 35-year-old case is, from a legal perspective, irrelevant since every single politically connected accused is dead. Politics and law got intertwined in this case. Whilst it is believed that public memory is short, at times it can be quickly revived. Hence, this case will live on.

As Vijay Mallya's lawyer, one of your arguments was that declaring him a fugitive economic off ender and permitting his assets to be confiscated would only harm the interests of his lenders. In hindsight, what do you think of the case today?

This case is also pending in the courts and is sub judice. However, I do believe that whatever be the outcome in the criminal case, the lenders' unwillingness to settle the civil dispute is unusual. The civil liability ought to be settled and resolved at the earliest and this dispute should not clog the court system. It would save judicial time, management efforts and save the exchequer significant costs and capital. Recapitalization of banks is at the cost of the tax payer and when borrowers are ready to repay, every effort should be made to take that burden off the tax payer.

In my view, it is important to fi nd ways where attachment of assets under PMLA, when they are for the benefit of the banking sector, must either not take place or must be lifted at the earliest to enable the banks to recoup their lending and to enable the creditors to repay the banks. Keeping them attached for years is not fair to the creditor or the debtors.

Among your high-profile cases, you represented Bollywood star Salman Khan who was acquitted of all criminal charges in the 2002 Mumbai hit-and-run case. What were the challenges you faced?

It started with a "trial" by the media on account of the death of a pavement dweller caused by a celebrity. But once we had an order restraining the media, there was no other media noise except the sound of the lawyers articulating their arguments. The scientific evidence required knowledge and understanding of microbiology, chemistry, laboratory testing methods and some physics. Fortunately, the Judge had a science background and some of the nuances of testing methods in a laboratory were familiar to him. This and the patient hearing have got us over the first hump. Now it's over to the Supreme Court.

In the Sushant Singh Rajput case, the Mumbai Police failed to fi le a fir despite suspicions around the cause of his death. should action be taken against the Mumbai Police? if so, who can initiate action? the needle of suspicion is pointing toward Rhea Chakraborty and a couple of other key accused in the same SSR case. what are your thoughts on this case?

I don't have any information of the material collected by Mumbai Police. So, it would not be appropriate to opine that the Mumbai Police had circumstances of suspicion and yet they did not register the FIR. We have reached a stage where we have lost faith in our agencies and we are carried away by electronic and social media allegations. First let the investigations be completed before we jump to the conclusion that action should be taken against the Mumbai Police. This is a classic case of the dangers of a media trial.The case brings to fore the desperate need for a balance between the freedom of the press and also for protecting the reputations of people and institutions. Laws and procedures to protect reputations are tardy and inadequate and there is an urgent need for strengthening them.

What do you think of the suo moto contempt proceedings against Prashant Bhushan?

The judgment is perceived as a restraint on free speech and free thought by the intelligentsia. Much worse has been said by others but there seems to be inertia on those matters. What we see is a free flow of unrestrained reputational damage under the guise of freedom of press. Art 19 guards both the freedom of press and reputation equally. We should not allow the media to be the investigator, the prosecutor, the witness, the judge and the dispenser of justice.

I hope Courts continue to remain liberal, magnanimous, broad-minded and at the same time take active and urgent steps to protect reputation.

The Bengaluru riots were triggered by a social media post. Can legal action be taken against the Facebook post in question?

Today, social media has been used as the platform for all kinds of offenses. Considering the nature of the platform and its scope for misuse, there is a crying need to bring in some more forms of control. The time has come to make those responsible for the platform face liability if their platforms are misused to incite or facilitate crimes. The laissez faire approach cannot and should not be permitted especially considering the intrusive and impactful nature of these mediums. These could be strict liability offenses. Coming to the Bengaluru riots, considering the nascent stage at which we are in the development of this law, it may be difficult to hold Facebook liable for rioting.

In the Puducherry case where the father-son duo was allegedly killed by the police while in custody, do you propose stringent laws to prevent similar such incidents in future? Does this case fall under "Use and misuse of power of arrest by Police"?

Custody deaths have been around for long. So also encounter deaths. They both need control, strong supervision and action for disincentivizing of such actions. It needs a strong mindset to uphold the rule of law. It does not need a new legislation. Misuse of power is inherent in the noun. Any deterrence will only be a check on misuse of power.

Will the submission of the Sabarimala case to a 9-Judge bench lead to declaration of a new law?

I don't think this question needs an answer.

Young graduates feel corporate practice is more lucrative as compared to litigation. What would you say to them?

Typically, economic considerations, the glamour of the corporate environment and status prompt most youngsters to join corporate practice. Corporate lawyers are essential to keep the economic engine chugging along. But I believe there is equal financial opportunity in litigation as also the environment and status. So both are equally essential. I have always told my juniors that every matter can be as interesting as you make it for yourself. Each matter gives an opportunity to learn and explore the law, apply new legal doctrines and dimensions of advocacy.

In my view, litigators are fundamental to the rule of law. Courts must be headed by judicial officers trained in litigation. The need of the hour is to have youngsters who have a passion to uphold the rule of law and are strong litigators. The strength of the judiciary is in direct proportion to the caliber of the litigator fraternity and its professionalism, morality, integrity and ethical standards.

How do you maintain the Work-Life Balance?

First and foremost, one's career must be an outcome of passion. Once you follow your passion, the work life balance is inherently in place. Life is not different from passion. Holidays, hobbies, family are as much work as career is life. And both are enjoyed equally.