Libertatem Magazine

Interview with Aman M. Hingorani, Advocate, Supreme Court of India and the High Court of Delhi

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Aman M. Hingorani is a lawyer and mediator in the Supreme Court of India and the High Court of Delhi. Dr Hingorani has also acted as an arbitrator and as adjunct faculty to teach law students and run training courses for judicial officers, lawyers and law teachers. He has taught in programmes at several institutions in India (including National Judicial Academy, Bhopal; Campus Law Centre, University of Delhi; Indian Law Institute, New Delhi) and abroad (including Keble College, University of Oxford, UK; Law School, Warwick University, UK; South Asian Institute of Advanced Legal and Human Rights Studies, Dhaka, Bangladesh).

He has prepared curriculum for law courses and other activities, such as the modules for the Indo-British Project on Advocacy Skills Training, British Council, New Delhi; the alternative dispute resolution (ADR) preparatory material for the All-India Bar Examination conducted annually by the Bar Council of India; and the ADR Manual for the Federation of Indian Chambers of Commerce and Industry as its National Consultant. Dr Hingorani has been invited to address national and international audiences, including various stakeholders, on the Kashmir issue.

Below is the excerpt from the interview with Mr. Hingorani.

Vidushi: You started your career in 1992. Tell us about how the field has transformed over the years and what the future holds for new generation lawyers.

Aman Hingorani: The practice of law has changed considerably over the years. There has been a huge impact of technology – right from the courts having their own websites, uploading cause lists, case status and orders, e-filing and now virtual court hearings. The litigative research tools have improved – from online case finders to having online journals reporting cases from across the country. The Supreme Court and the Delhi High Court have expanded their infrastructure and added new courtrooms. The district courts in Delhi have been decentralized, with new court complexes coming up in various districts. Earlier, the district courts were that of Tis Hazari and Patiala House. There were no dedicated courts like the Family Courts or centres like the Mediation Centres. These, and many other developments, do make it somewhat easier for the new generation lawyers to build a practice. There are also courses available now for young lawyers to hone their professional skills. However, I believe that broader challenges do remain –to have a legal system that is unquestionably ethical, efficient and accessible so that the gap between law in books and in practice gets bridged.

Vidushi: Sir, you have more than 60 publications in various renowned journals and have presented papers in numerous international conferences. How should one go about writing papers and getting the same published and/or presented?

Aman Hingorani: Writing papers and presenting them serves no purpose unless they add to the debate on any particular issue. I have always had an academic inclination to examine challenging issues. I would pick up an issue and think about a common-sense response to it without doing any research or reading since that would sub-consciously condition the mind. Having formed a tentative opinion, I would then research and read with a sense of direction knowing then what I was looking for – anything that would validate or invalidate my tentative opinion. Should the existing material invalidate my opinion on convincing grounds, I would stand to learn about what I missed in forming my opinion. And where the existing material invalidates my opinion on the basis of what I believe to be erroneous reasoning, I get the theme for an article or book. It is relatively simple to find a publisher who would print an article or book containing a new point or get invited to present such an article or book.

Vidushi: You wrote a book “Unravelling the Kashmir Knot” which was published by SAGE publications. Your book is also a SAGE bestseller. So, what inspired you to write on this issue? How long did it take to write a book? What are the efforts one need to put in to write a book? Are you looking forward to writing any other book? 

Aman Hingorani: After I had completed my LLM from Warwick Law School, UK I was looking for a subject to do a doctorate. My father suggested that I look at the Kashmir issue because, according to him, this was one issue where every conceivable principle of law had been turned on its head. My father had graduated in law in 1944 and enrolled with the Sindh Court on 27 March 1946 and was familiar with the legal principles underlying the Partition and the accession of princely states. He knew that, in the absence of a military, diplomatic, political and economic solution to the Kashmir issue, the only way forward for India was to take recourse to international law to break the political stalemate with Pakistan and China, who occupy more than 50% of J&K, and to consequently change the political discourse on J&K, both nationally and internationally. I completed the doctoral research in 2001, and published a slice of that, after updating, in form of the book. The hardbound was published in 2016, followed by the paperback in late 2017. The book is a result of research of over 20 years on the Kashmir issue.

There are, of course, different kinds of books and the effort that goes into writing a book varies. To get a sense of the kind of effort that went into writing a book of this nature, I can perhaps share the extent of research that was required. My approach, in line with what I have stated earlier, was not to right away start research but to form a tentative opinion.

We were taught in law school about modern-day India is a creation of British statutes – the Indian Independence Act of 1947, and the modified Government of India Act of 1935, which was the constitutional law in force prior to the Constitution of India. We have studied cases for the proposition that an executive cannot, by making promises, clothe itself with authority which is inconsistent with the constitution that gave it birth – that is, the powers of the Government of India in 1947 was limited and controlled by such constitutional law. A bare reading of the said Acts will confirm that it was only the sovereign ruler of a princely state who could decide to accede to India, Pakistan or remain independent. The common-sense view would then be that the Government of India in 1947 simply did not have the competence to lay down a contrary policy that the unconditional accession of J&K to India would be “provisional” and subject to the wishes of the people. Rather, such policy would be ultra vires the constitutional law i.e. the said Acts that created both India and Pakistan. The obvious inference would be that the then Government of India acted beyond its powers by pledging (whether within the UN or outside) to hold the plebiscite in J&K.

The UN and every state ‘contracting’ with India (including Pakistan) are held in international law to have had the knowledge that the then Government of India had exceeded its powers under the said constitutional law. Hence the UNSC resolutions for holding the plebiscite are not only not binding on India but are themselves without jurisdiction.

With this tentative opinion, I started the research on the Kashmir issue and found that my research vindicated such opinion. To try and understand as to what made New Delhi take such a misconceived stand on the accession of J&K, the research led me to document how Partition was scripted by the British as far back as in 1940 so as to keep a “slice of India”, now comprising the territory of Pakistan, for its Great Game with Soviet Russia, why the British wanted to keep the N.W.F.P. and the Gilgit-Baltistan region of J&K free from Indian control, how utterly inept the Indian political leadership of undivided India was to rise to such challenge, how the British sought to undo the legal consequences of the accession of J&K to India on 26 October 1947, how the British carved out the Gilgit-Baltistan region of J&K (Indian territory) five nights after the accession, hoisted the Pakistani flag there and asked Peshawar to take over, how the UNSC was subverted in 1948 to ensure that Pakistan got to retain de facto control over such territory, how a part of India and its unfortunate residents are till date under foreign Pakistani and Chinese rule, how Pakistan and China are conceiving their CPEC through such occupied Indian territory, and how New Delhi has consistently followed successive legally misconceived policies on the Kashmir issue since 1947. The research took me to, amongst other authoritative sources, declassified British archives, the UNSC debates on the Kashmir, Hyderabad and Junagadh Issues, ICJ decisions, case law in India, the UK and the US as also the various Constitutions and statutes. It was only after much research that the book could piece together a completely different, and novel, approach to resolving the Kashmir issue – a solution that has escaped consideration since 1947. A book of this nature does demand great effort, but it is also intellectually engaging and stimulating enough (besides being of tremendous importance) for one to put in that kind of effort.

I am indeed in the process of writing another book – a crime fiction inspired by an actual case. Hopefully, that will not take that kind of effort or time.

Vidushi: You have had a remarkable career in litigation. You are an Advocate on Record in the Supreme Court of India and you were also appointed as an arbitrator and mediator. Furthermore, you have argued on numerous cases. However, back in 1992, you were a young lawyer, who joined the bar fresh, what challenges did you face? What challenges do young lawyers face today? Is the environment favourable to young lawyers today or was it better back then?

Aman Hingorani: The challenges I faced were perhaps different from the kind of challenges most other young lawyers would have faced. I was not really short of office space or law books or guidance and nor was I intimidated by the legal profession, primarily because of being a fourth-generation lawyer. My great grandfather, Diwan Bana Singh, was a judge in the 1800s in Tharoo Shah in Sindh. My grandfather, Hardasmal Banasing Hingorani, was a judge in Karachi. My father, Nirmal Hardasmal Hingorani was a Senior Advocate in the Supreme Court. He practised as a public prosecutor in Karachi before coming to India in 1952 and appeared in several landmark Supreme Court cases that we read in law school. My mother, Kapila Hingorani, a Barrister from Lincoln’s Inn, London and Honorary Fellow of Cardiff University, started her practice in the Supreme Court in 1961. So the law was in the blood. In fact, I remember picking up the Constitution to read as a child while waiting for them in their Supreme Court chamber. Incidentally, at one stage, I felt that there was an overdose of law. So I actually tried to get away from the law. As I was interested in genetics, I studied science for some time.

The issues I had when I joined the Bar were more to do with the workings of the legal system. My parents had together conceived the remedial jurisprudence of Public Interest Litigation in 1979 with the Hussainara Khatoon’s case, popularly known as the Undertrial Prisoners’ case. This case was filed by them before the Supreme Court as an emotional reaction to the pitiable plight of thousands of impoverished prisoners who, as per press articles, were languishing in jail awaiting trial for cruelly long periods, at times exceeding the period they would have been in jail had they been tried, convicted and given maximum sentence and such sentence was to run consecutively. Rudul Sah’s case was equally shocking – Rudul Sah had been arrested in 1953 on the charge of murdering his wife and was acquitted by the Sessions Court in 1968, to be released on further orders. These orders did not come. By the time Rudul Sah was released in 1982, he had spent 29 years in prison for a crime he had never committed, of which 14 years were after his acquittal! Then there was the horrific Bhagalpur Blindings’ case, where 33 suspected criminals were blinded in 1981 by police in custody by poking needles and pouring acid into their eyes, which would then be bandaged with acid-soaked cotton and left to rot. I remember meeting some of these blinded in the Supreme Court chamber of my parents, with their eyes gouged out. Though I was quite young, I learnt first hand about the extent of state lawlessness, custodial torture and the terrible prison conditions in the country, notwithstanding the existence of the judiciary. It is true that amongst all the institutions that we have in the country, the judiciary is perhaps still the one that functions the best. It is also true that in all professions, you have the good, the bad and the indifferent – so it is unfair to make sweeping statements. But having said that, I have found that the professional standards for how lawyers ought to conduct themselves are generally observed more in the breach than in practice. Many a times lawyers indulge in an unethical practice without even realizing that it is unethical; the practice is assumed to be normal since it has been around for so long. And it is from amongst lawyers that judges are often appointed. I soon discovered that ethics and convenience are, at times, not on speaking terms.

So my initial challenge lay in dealing with the legal system. I remember appearing as a young lawyer in the Undertrial Prisoners’ case as the situation had not improved much due to faulty implementation of Court orders. I appeared in an application seeking enhancement of life-long pension in the Bhagalpur Blindings’ case. Earlier, when I was a law student, I had filed a PIL myself in the Supreme Court on behalf of 25 million citizens suffering from fluorosis due to their drinking, in the absence of potable water, contaminated groundwater. This disease resulted in the bodies, including those of children, becoming twisted and crippled, causing painful, premature deaths. I recall being taken aback in all these cases by the lack of urgency or sensitivity by the State.

My early years at the Bar were spent in witnessing how members of the legal fraternity and the court staff conducted themselves and what was happening in courts, and identifying what was unethical and saying to myself that I would not do it because the minute you start compromising even on a small issue, you don’t know where to stop – it is a very slippery slope. The common refrain I would hear when I started teaching law later in 1998 as adjunct faculty was that one could talk about ethics once a lawyer was established; the newcomers didn’t have a choice but to compromise on what they knew was wrong, often at the instance of seniors. But then, ethics has to come from within, it depends on how you perceive yourself, and if you are a true professional you will yourself not do something which is wrong no matter what the system demands of you. To give an example, it is as simple as saying no if the court staff were to ask for a tip to get a certified copy expeditiously or to make a file available for inspection. It does not necessarily have to be a big issue – often it’s in your daily practice where you face ethical challenges.

I suspect that the first generation lawyers will face more challenges. They would, after all, need to find office space, build a library, employ staff, subscribe to legal journals and incur heavy expenses just to maintain a presence. Working at home from a laptop with a good internet connection is often not sufficient. And then, there is no certainty in litigation that the lawyer would get good clients. Most young lawyers, fresh from seeing drama series like Suits, quickly get disillusioned. They end up joining a lawyer’s chamber or a law firm, or simply shift to corporate law – options which have their own sets of challenges. I would say that the environment is equally challenging for young lawyers today as it was when I joined the practice – the silver lining being that today there are more opportunities within the field of law and more avenues to build research and performance skills without being dependent on senior practitioners.

Vidushi: You are a Senior Partner at Hingorani and Associates. You have dedicated 27 years of your life to this firm. How was your overall experience working in it?

Aman Hingorani: The firm is essentially a family law firm as not only my parents but also my sisters are lawyers. That has given me the space to take up cases of interest. I have always done my own cases in terms of drafting and appearing in Court. I believe that a person who drafts a case is generally more thorough about the case (than one who simply gets briefed for an appearance) and should be able to present it accurately in Court, provided of course that he or she has been given proper advocacy training and has the requisite performance skills. I have done trial court advocacy and in fact enjoy witness handling, particularly cross-examination. I have argued at every level from the trial court to various High Courts and tribunals to the Supreme Court (including before its Constitution Benches). I have argued cases in a range of legal fields such as constitutional law, human rights and public interest law, arbitration, business law, anti-dumping, corporate and company law, taxation, property law, consumer law, intellectual property, excise, drug law, land acquisition, rent law, criminal law, matrimonial law, Hindu law and probate, service law and labour law. Several of these cases have been reported and led to the development of law.

I have also spent a substantial part of my professional time on pro bono work. I have been empanelled by the Supreme Court Legal Services Committee to act as a legal aid Counsel, and have been appointed as Amicus Curie in cases to assist the Supreme Court. I have filed PILs on behalf of the disadvantaged sections of society lacking access to Courts, such as bonded labour and mentally ill persons, and for taking up causes in Court for disempowered victims of injustice, for instance, acting as Counsel for the family of Nirbhaya challenging the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act 2000 granting immunity from prosecution to the juvenile found guilty in the infamous December 16, 2012, gang-rape case. My overall experience in the profession has been one of learning.

Vidushi: It has been more than two decades since your commencement in this field. How do you still manage to put forth so much energy and enthusiasm in the field when a lot of youngsters in this profession are struggling to cope up even for a couple of years?

Aman Hingorani: I have survived in the legal profession perhaps because I have engaged with diverse fields within it, and interestingly, one field does supplement and complement the other.

Alongside my legal practice and doctorate research, I started teaching at the Campus Law Centre, Delhi University in 1998 as adjunct faculty, and have taught fascinating subjects like constitutional law, arbitration, advocacy, mediation and international trade law. Over the years, I had the occasion to run training programmes for lawyers, judicial officers, law teachers and students, and to teach in various institutions and law schools in India and abroad. It was my academic engagements that permitted me to clear the Supreme Court’s Advocate-on-Record examination in 2001 with a gold medal without really having to prepare too much for it.

I had started teaching and practising mediation in 1998, much before Court-annexed mediation and institutional mediation started in the country. I found mediation far more satisfying and fulfilling than litigation. And so I gladly joined the Supreme Court Mediation Centre and the Delhi High Court Mediation and Conciliation Centre as a mediator when these centres were set up. My academic and practical exposure helped me draw up the ADR preparatory material for the All-India Bar Examination conducted annually by the Bar Council of India; the ADR Manual for the Federation of Indian Chambers of Commerce and Industry as its National Consultant; and the Mediation Rules for the PHD Chamber of Commerce and Industry, apart from the curriculum for law courses and other activities, such as the modules for the Indo-British Project on Advocacy Skills Training, British Council, New Delhi.

I am fortunate to have been appointed as an arbitrator by the Delhi High Court and by the PHD Chamber of Commerce and Industry. Acting as an arbitrator brings with a completely new perspective of how to conduct legal proceedings and write arbitral awards. Throughout this period – from the 1990s till date – I have continued writing articles on varied subjects ranging from Public Interest Litigation to the Bhopal Gas tragedy to the grant of intellectual property protection to genetically modified organisms to the dynamics of global missile proliferation. Many of these articles are inspired by what I have witnessed in differing roles in diverse fields of law.

It is equally important, if not more, to keep in mind that life is not only about the profession. One must find a way to balance work with time for oneself – to exercise, to pursue hobbies, to socialize. Plodding through work without any time off will only lead to burnout.

Vidushi: What do you think about the current regime of arbitration in the country? Do you think that arbitration and Mediation are the future of dispute resolution in India?

Aman Hingorani: Arbitration has not really been as successful in India as in several other countries. Much has been written about the reasons for this unfortunate position. There have been recent legislative reforms to streamline and expedite the proceedings, and one can only hope that these are followed. Mediation is all about transforming conflicts into a win-win situation. As opined by several authors, arbitration and mediation need not necessarily be seen to be alternative to litigation. Many cases are more appropriately dealt with through litigation, some through arbitration and others through mediation. In that sense, all these conflict resolution mechanisms are not really alternative to each other. That said, much has also been written about the tragic delays, expenses and human costs that are entailed by litigation in our country, and the quality of justice that is being dispensed in our name by our institutions. That might be the driving force to persuade litigants to opt for mechanisms like arbitration or mediation.

Vidushi: Lastly, what would you advise the young students at law school?

Aman Hingorani: I discovered, during my teaching experience, that most law students find the litigation to be formidable, and prefer to join corporate law or to look for a job, legal or non-legal.  A key reason why litigation could seem unattractive to a young law student is that law schools in India simply do not have an effective advocacy skills training course. Some law schools do not even have a paper on advocacy skills. And those which do, use outdated and obsolete teaching methodologies like moot courts, which actually serve as a good example on how not to argue a case. Students, while on internships or Court visits, do not really know how to spot a good piece of advocacy, let alone have someone explain to them why such advocacy was effective. Internships are often reduced to glorified clerkships with students asked to research on some mundane topics, do photocopying and lugging files. Since our law schools produce law graduates and not lawyers, it is little wonder that the law student is not even aware of the highs of litigation.

Fortunately, there do exist avenues today where law students and young lawyers can acquire professional skills in a scientific manner. I would strongly recommend all law students to take the benefit of these performance skills’ courses that impart training with structured feedback through ‘learning by doing’ sessions in case analysis, formulation of case theory, witness handling, structuring oral arguments and legal drafting. Similar courses also exist for mediation skills training.

For law students who do want to get into litigation, it is important to bear in mind that there is no rush to decide their area of specialization in law school or to start specializing in a particular area very early in the profession. There is an interface between different branches of law and one must inculcate a holistic perspective. The young lawyer should handle cases in various fields of law and have an inter-disciplinary approach. As and when one gets a particular case, one must understand how to research law, how to reason, how to think logically. The young lawyer must practice at every level – from the trial court to the Supreme Court – and develop the mental ability to adapt oneself to such practice. It is crucial for a young lawyer to utilize the initial years to hone his or her legal skills comprehensively, before deciding to specialize or super-specialized, if at all.

In conclusion, I believe that one should have a passion for the career he or she chooses. Every vocation demands hard work. Should one enjoy what he or she is doing, then work will not seem like work.

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