The #BombaySeniors: In Conversation with Senior Advocate Amit DesaiFebruary 19 2018
If you had to put your money on someone to represent you at a criminal trial, Senior Advocate Amit Desai would probably be your best bet. Just ask Bollywood actor Salman Khan, or the others in the film industry who have had brushes with the law.
Having honed his skills with some of the legends of the Bombay Bar, Desai has established himself as one of the top criminal lawyers in the country, and somewhat of a celebrity himself.
In this interview with Pallavi Saluja, Desai talks about his early years, his move towards criminal practice, the Bombay Criminal Bar, his views on media trials and investigative agencies, and much more.
Can you talk about your initial years?
In my initial years, I had the good fortune of working with some of the greatest lawyers of our times. I got opportunities to work with stalwarts like Nani Palkhiwala, Ashok Sen, Khursetji Cooper, and some of the finest civil and commercial lawyers.
One of the most fascinating experiences as a junior was to be part of the largest corporate battle of 80’s, LIC v Escorts, and to assist K Parasaran, the then Attorney General. It was exhilarating to watch Fali Nariman argue for Escorts. These early experiences reaffirmed my decision to practice law and the professional standards to emulate.
Being from a family of lawyers, was law always the plan?
Interestingly, I am a third-generation lawyer. My grandfather started his legal practice in 1911. He was a leading criminal lawyer of his times and a corporator with the Bombay Municipal Corporation. By the time I graduated, my family had been practicing criminal law for over seven decades.
Naturally, Law was on my mind but I was not clear. I contemplated doing MBA and getting into business. In those days, law was not the career of choice as it is today. Majority of the legal work was connected to litigation and legal career involved a long gestation period. I was a shy person and was not confident of being a litigator. However, during my final year of B.Com, from the Sydenham College of Commerce, I decided to at least study Law.
I became clearer and confident with different internship experiences with Bhai Rege and Dilip Udeshi of Crawford Bailey, Ashok Modi (Sr. Advocate), Shobhan Thakore of Bhaishankar Kanga & Girdharlal. Participating in Moot Courts and exploring the constitutional issues in the backdrop of political events of the recent years drew me more. Eventually, I guess my family background played a role in cementing the decision.
Did you join any Chamber?
I did not formally join any chamber but practiced out of my late father Krishnakant Desai’s chambers. I found a mentor in Suresh Shroff of Amarchand Mangaldas. He gave me an early opportunity to work with many seniors and laid a solid foundation.
Do you think it was easier for you than it was for a first generation lawyer?
Not really. I put in the same hard work, if not more, than any other first generation lawyer. I don’t think the fact that I came from a family of lawyers made much of a difference. It might have resulted in some additional opportunities and some recognition, but sometimes it’s a disadvantage. It invites comparison and raises expectations from a budding junior.
The struggles, highs and lows were no different for me. The climb was slow and I had my share of failures. Coming from a legal family helped me persevere with patience and focus.
How did you move towards criminal practice?
December 1984, the Bhopal Gas Tragedy was a turning point. My father and his junior were drawn into the matter. I vividly remember the chaos and the resulting challenges. Initially, no one realised the extent of the problem and the legal complexities. They slowly emerged. This litigation, its criminal investigations, Commission of Inquiry etc. drew me more towards criminal law.
During 1985, corporate India saw many raids leading to income tax, foreign exchange, customs and excise litigations. These cases drew me further into criminal law. They involved complex issues of civil law along with criminal law implications.
Were you involved in a lot of trials?
Yes, almost from the start. It began with the Magistrate’s courts in Mumbai and Delhi, then expanded to doing trials in various parts of the country in Magistrates and Sessions Courts. The high point came from doing the Securities Scam trials involving brokers like Harshad Mehta, Hiten Dalal etc. in the Bombay High Court. The last criminal trial conducted in the Bombay High court was at least four decades earlier. Trials are the most fascinating aspect of Criminal Law and I find them intellectually stimulating.
Rohit Kapadia is quoted as saying that the Harshad Mehta case catapulted the status of Bombay lawyers. Do you agree with that?
The Bombay Bar is one of the finest bars that we have. In the last 15-20 years, many other bars across the country have also flourished. But in those years, the Securities Scam cases gave one of the greatest opportunities to the Bombay Bar. Criminal lawyers got to conduct criminal trials at the level of the High Court, which was a very different experience. I would not say that the Harshad Mehta case catapulted the Bombay Bar.
How has the Bombay criminal bar changed over the years?
It has changed a lot. In the last many years, the younger generation is not keen on practising criminal law or preparing for trials. Although law has become a career of choice, most of the youngsters either want to go into transactional law or appear in the appellate courts.
The Bombay criminal bar had stalwarts like Hari Bhai Desai (father of Ashok Desai), Krishnamoorthy, Peerbhoy, PP Khambata and Godivala. Then there were Karl Khandalawala, Ram Jethmalani, Phiroz Vakil and my father Krishnakant Desai. They were all giants at the criminal bar.
I believe that there is great opportunity in criminal law. You need to have patience. There is a gestation period, but opportunities exist and anybody who is ready to be professional, dedicated and committed, will always do well.
Were you invited to join the Bench?
Yes, I was but it was at a time when I was unable to accept.
Over the years you have represented some of the biggest names in the entertainment industry, including Salman Khan. Was there a particular case that set the ball rolling?
Not really. It was exposure to a variety of cases. I have advised and represented many from the entertainment industry. The Salman case got far more publicity and public recognition for the case and me. I think it is more about the sense of professionalism, and finding solutions within the four corners of the law.
Given that so many of your cases were high profile ones, how did you develop an immunity to discussions in the press and social media?
They are entitled to their privacy, and, as a professional, I am bound to protect it. I am not here to increase the TRPs for the media!
What are your views on media trials?
I think media trials do a lot more harm than good. The reputations of both the victim and the accused, and sometimes even the outcome of the case, are affected. Public opinion, or media opinion that is crafted as public opinion, push investigating agencies in a particular direction.
There is no place for this in the justice system. The courts have struggled with this problem. Justice Kapadia tried, in the Sahara Case, to bring about a balance. But I don’t think we have been successful in following the tenets of that judgment. That is something that needs to be corrected on priority.
Just as the justice system has a duty to the victim and society, it also has a duty to the suspect. A suspect’s reputation is ruined by this kind of media glare. Even if there is an acquittal, nobody will give back the suspect’s lost reputation and lost time. The public tends to focus on his implication, not his exoneration.
When bail is granted, the media attacks the grant of bail. Why? Who will give back the time lost in custody when such a person is acquitted? In a liberty conscious country where the Supreme Court has repeatedly advocated a pro-bail approach, it is unfortunate to find such a large number of people in jail as undertrials.
It is important for the media to show more restraint. Take the Arushi Talwar case as an example. It is not uncommon for a crime to remain unresolved, but it is more important not to chargesheet persons without evidence sufficient to convict. I think that it is important to send a strong message that there is scope for criminal prosecution for causing reputational damage. Expeditious disposal of defamation suits and prosecutions is the need. The damages are nowhere near where they should be, and by the time the suit is determined or prosecutions are decided, the issues are irrelevant.
Moving on, what are your thoughts on capital punishment?
In my view, the death penalty – for murder and other IPC offences – must be abolished. It has not acted as a deterrent. Now that life imprisonment is for the ‘entire’ life of an accused, we should seriously reconsider the death penalty for murder. When we deal with the retributive theory of punishment to impose death in a system where our investigators have a long way to go to establish the integrity of their investigations (see the Talwar case and the Malegaon Blast case) and the media conducts trials before the courts do so, there is a serious risk of going wrong on the determination of guilt. And to spend the full life in jail should be adequate retribution and may also reform the accused.
Since it is the ultimate form of punishment, it must be reserved for a very small class of cases. I believe it should be limited to crimes against the sovereignty and integrity of the nation, like terrorism.
Thoughts on the evolution of criminal law over the decades?
There is a subtle shift of the burden of proof onto the accused. The presumption of innocence doctrine has become a bit of a silent spectator. I believe there is a need for a stricter standard for framing of charges and taking of cognizance so that prosecutions that may not result in convictions could be avoided. Also, a stricter standard for entertaining appeals under Article 136 at the initial stages of a criminal case should be enforced. The Supreme Court ought to be extremely cautious in entertaining appeals against acquittals and invariably impose actual costs if such appeals are dismissed.
Going back to the Salman Khan trial, people say that the procedures were not followed, your views on that?
My thoughts on the procedure are in the judgment of the Bombay High Court! These are all matters that are sub judice before the Supreme Court. But I think this goes back to the basic issue of burden of proof. If the investigating agencies are deficient in conducting their investigations, then the courts ought not to fill up the lacunae and should convict the accused only on the basis of evidence and proved facts.
How do the investigating agencies perform? Where is the fix in all this?
There was an interesting observation by the Supreme Court in a murder case – State of Gujarat v. Kishanbhai. It considered the evidence, found deficiencies in the prosecution’s case and observed that they had no choice but to acquit. But the Court then went on to set out various guidelines: in the event there is an acquittal post trial, the acquitting court must also hold an inquiry into the reasons for the acquittal and to affix responsibility, whether on the investigating agency or on the prosecutor’s office. It is a necessary approach, but hardly followed.
However, this should not become a pressure point to convict.
If the evidence is insufficient to convict, the agency must be encouraged to file a closure report without fear. And also if there is an acquittal, they must have the courage to close the matter and not file unnecessary appeals because of public or media pressure or because the court has made observations against the investigating agencies. When the agencies act contrary to the public opinion, there is a presumption of dishonesty in their action. This too needs to change.
What needs to be done to improve police investigations?
In Vineet Narain, the Supreme Court directed the setting up of the Directorate of Prosecution. This was done within the CBI. The same model needs to be adopted within the State Police agencies as well. Once the investigation is complete, the charge sheet must go through the legal tooth-comb. Deficiencies in the investigation need to be sorted out at this stage itself. The Prosecutor must be given equal responsibility in the decision to file a chargesheet and also be made accountable for the acquittals. If we focus on the quality of the cases we are filing, the statistics of convictions will look very different.
What are your thoughts on the collegium system?
I believe we are still at a stage where the collegium system is necessary. The process in many democracies is far more rigorous and worth absorbing.
So are you fine with the way it is?
I am not fine with the way it is. Obviously, it requires improvement and transparency. Maybe some parts of the procedures for selection of Senior Advocates as laid down by the Supreme Court recently could be introduced in this process too. Maybe an intranet needs to be set-up on which confidential opinions of colleagues and other direct stakeholders, such as senior advocates, may be sought.
We need to find better methods and processes to ensure that situations which have embarrassed the judiciary do not repeat. But does that mean that we need to abandon the collegium system? Undoubtedly the system has thrown up examples which reflect its failures. But we only discuss its failures. This process has also thrown up many excellent judges whom we forget in din of the controversies. The need is to learn from the mistakes and fix them rather than change the process which has otherwise proved itself. I would believe that process is on.
What are some of the must-have qualities for a trial court lawyer?
The must have qualities of a trial lawyer are: focus and commitment to the case, complete knowledge of the facts, understanding of evidence law and the charging provisions. Conducting a trial takes endless hours of analysing facts and the record. You then have to plan your cross examination or if appearing for the complainant, how you would lead the examination-in-chief. Preparing for a trial requires a lot analysis and thinking.
Finally – How does it feel to be the Ram Jethmalani of the corporate world?
This is a very humbling question. I don’t have an answer to that one. I have worked with Ram Jethmalani very closely. He is one of the most brilliant lawyers the country has ever produced. Who would not like to aspire to be the lawyer that he is!
One last – Any advice for the young lawyers?
Join the criminal bar! I have not been very successful in persuading my interns to join the criminal law bar, but I would certainly want to put the message out that there is great opportunity in this field. It requires a lot of hard work and professionalism, but if you are able to maintain the qualities and virtues of a good lawyer, the sky is the limit.
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