“We have to create an atmosphere where people can speak out freely” – Senior Advocate Darius Khambata

Oddly enough, it is only towards the very end of the interview when one gets the sense that the former Advocate General has let his guard down. No, that would be unfair; Darius Khambata has been remarkably candid throughout the interview. Rather, it is towards the end that one gets a glimpse of Darius Khambata the person, rather than Darius Khambata the lawyer..Which is not to say that the lawyer does not have any interesting tales to share. Far from it. To hear Darius Khambata recollect his early days is to be taken on a gentle stroll through the lore of the Bombay Bar..Coming from a family of lawyers and judges, Darius Khambata says that he more or less “drifted” into law. An excellent student at Government Law College, Darius Khambata won a number of moot court competitions. But it was his year at Harvard Law School that convinced him that law was his true calling..For the very first time I realized what the law was actually all about. Knowing a section or knowing a hundred cases is not relevant. What is much more important was the principle underlying them..And the most important thing [Harvard] taught you is that, more often than not, complex legal problems do not have only one correct legal solution. There could be three solutions, all of which were correct..Back in India, he was to join one of the most illustrious chambers in the Bombay High Court – the chambers of Sir Jamshedji Kanga, someone Darius Khambata describes as “perhaps India’s greatest lawyer”..Kanga had juniors such as Harilal Kania (the first Chief Justice of India), Nani Palkiwala, Rustom Kolah who was offered direct elevation to the Supreme Court in the 1950’s by the then Chief Justice (MC) Mahajan. And a host of others..And within this illustrious group, Darius Khambata was a junior to another legend of the Bombay Bar, Iqbal Chagla..He was a senior who led by example. He never raised his voice. I cannot think of one occasion where he actually pulled me up for anything and yet, you always knew when you had not performed. He treated you as a professional; he didn’t treat you as a junior or an employee..In his early years, Darius Khambata largely dealt with commercial litigations; every once in a while though he would be marked a junior brief in a matter involving constitutional questions of law. And it was in one such case that he got to work with one of the biggest names in constitutional law – HM Seervai..That was really a transformative experience because you had an old-school lawyer giving you a slice in to the past. He never treated you as something under him or as his junior. He would listen to every thing you had to say. He was gracious enough to even state in open court that, on a particular point of view, the argument had come from me. It was a fantastic experience..In some ways, Darius Khambata is also an “old-school” lawyer; for example, he is someone who firmly believes in the system of unpaid juniors..The moment you start paying your junior, immediately all sorts of problems come in. The junior certainly cannot appear against you in a matter, he cannot work for any other senior. I am very happy when my juniors appear against me in a case. They must have that independence of thought..It is a model that is not without its shortcomings though, and Darius Khambata does not shy away from admitting that. He has a delightful way of answering most questions, initially agreeing with the criticism, and then gently countering it with his own, differing point of view..There is a legitimate criticism that it tends to be a closed shop but the idea is you work in a matter, you produce results, and then you get briefed independently. That is how many of us got started. It is a very merit-oriented profession, sometimes harshly so..He may be old school in some ways, but in others, he appears to be a near heretic. For instance, he has repeatedly pushed for limits on the length of pleadings..I am horrified at the nature of pleadings that are filed in court. Eighty pages, hundred and fifty pages – and most of them are drivel! And I use that term with great responsibility. It is far more difficult for a lawyer to do a 10-pager than it is for him to do a 100-pager..But how is this change to be effected? Does he propagate the framing of new rules or laws? His answer is far more pragmatic..I think the time has come, if we really want to move into a developed legal system, for Bar Associations and courts to sit down together. And say that we will have more streamlined and more time oriented management of our cases. That is the only way of getting rid of pendency..Another technology that Darius Khambata says ought to be adopted is that of automatic transcription of court proceedings..Nothing is modified from what the witness actually said. But more importantly, it makes everyone extremely careful. The lawyer is careful in the questioning, because he has no chance of retracting it. The witness is very careful in what he says. The judge is careful in the comments he makes..Moving back to his career, Darius Khambata was appointed the Advocate General for Maharashtra in 2012. It was an interesting position, he says, one that came with its own set of challenges. There were three reasons why he accepted the post..One, you had to move out of your comfort zone and do all sorts of matters. Two, you do get a chance to do good. There are matters where you pressure the government to do the right thing. And three, you have the chance to advise the government. I am not saying that you have the chance to transform the way government works – that would be completely dishonest and over ambitious for anyone to say that – but at least in small ways you can make a difference..Unlike the offer to become AG, when it came to joining the Bench, Khambata politely refused. Twice..For every matter that you get a chance to decide and hear, you have to hear 5-10 completely routine matters, many of which can test your patience and your blood pressure. I don’t think I would have survived..The topic moves away from the law, and you slowly start seeing less of Khambata the lawyer and more of Khambata the person. The conversation veers towards his two pet interests. The first is the study of history..History teaches you values. You know every generation thinks that it is the greatest generation ever. History makes you humble. You don’t have the arrogance that you are the first person to do something.Apart from all that, history makes for great reading. I have this bad habit of sometimes reading more than one book at the same time. But that is not a great habit and I would not recommend it at all (laughs).And the second? Classical music..The way I think in my legal profession is definitely, to my mind, molded by the music I listen to. It is very difficult for me to explain but I think those who seriously listen to music will agree with me. I think a lot of music is really intellectual and I don’t mean this in a pseudo way..The interview looks like it is about to end, the final pleasantries are being exchanged when he says that there is something he would like to share about freedom of expression. Would I be interested in his views?.And then he begins to speak..One of the grave concerns I have is the increasing intolerance I find in our country. Intolerance of free speech, free thought, free writing, practice of religion. We are a very great country and we have great Constitution..You can hear the passion building in his voice..Our founding fathers had a great vision [but] we seem to have forgotten all that. We just want our way. If I feel something is right, I don’t like anyone saying that it is wrong or anyone espousing a different point of view.It is a point of view. It may not be right, but we have to create an atmosphere where people can speak out freely..We are not a one-culture country, or a one-belief country and we never have been. And we would devalue our great nation by stamping out diversity, by imposing one culture or one language or one religion. Or even by suggesting that one is better than the other..But it is the growing spirit of majoritarianism that he finds the most troubling..What one has to do is to really restrict freedom of speech in the one-off or narrow case but not restrict it because you strongly disagree with it. That is the most dangerous thing because then it becomes majoritarianism.A minority can strongly disagree with something a majority view espouses but they don’t have the power to stamp it out. Now it can’t be the reverse only because the majority happens to be in power..Is he afraid of how things are turning out?.I am not afraid but I am saddened by the fact that a lot of people don’t realize the value of protecting free speech. They think that somehow this is a one-off incident that will pass.I am not for a moment saying that it should be used to hurt the sentiments of people. But merely because someone does not agree with what you say is not reason enough to stifle free speech. A lot of things hurt a lot of people but it is not to be suggested that these things cannot be spoken. People have to learn to be a little more tolerant.