Interview with Dr. Aman Hingorani, Advocate, Supreme Court of India

Advocate Aman Hingorani stalwartly carries on the noble work of his illustrious parents, the late Mrs. Kapila and Mr. Nirmal Hingorani. Currently practicing in Delhi, he dons many hats including as a lawyer, academican, mediator and author. In an interview with fellow Delhi University graduate, Ms. Manushi Desai, he shares the insights into his legal journey.

Why did you want to become a lawyer?

I was not very sure that I wanted to become a lawyer, though law runs in the family. My great grandfather was a judge in the 1800s in Tharoo Shah in Sindh. My grandfather was a judge in Karachi. 

My father became a lawyer in 1944, enrolled with the Sindh court in 1946 and was a public prosecutor before coming to India, post-partition. That way I am a fourth generation lawyer. My mother was a Barrister from Lincoln’s Inn. So law was in the blood. In fact, at one stage I felt there was an overdose of it. So I actually tried to get away from law. As I was interested in genetics, I studied science for some time. But then I came back into law. I guess the innumerable discussions we used to have with our parents on their cases, including the path-breaking PIL cases, and related legal and constitutional issues, had a greater impact on me than I realized. Becoming a lawyer was now something I was wholly committed to.

How has the journey been so far?

I did my law from Campus Law Centre, Delhi University. Then I went to UK to do my Masters at Warwick University, came back and did my doctorate in law. I started as a litigating lawyer, doing cases pertaining to almost all fields of law. Many of these cases have been reported and led to change of law.

Along with my practice, I started teaching part-time in 1998. Since then I have taught in Delhi and in institutions around the world as adjunct faculty.

Law is a huge area and you can engage with diverse fields within it. I started teaching advocacy skills and mediation in 1998. This was much before Court-annexed mediation and institutional mediation started in the country. I enjoy teaching mediation where the effort is to transform conflict into a win-win situation. I also like writing and have about 35 national and international publications. Recently, I have authored a book on Kashmir. So I have been engaged on many fronts but all within the parameters of law. 

What were the early years of being a lawyer like?

I was most fortunate to have my parents in the profession. Apart from benefitting from their legal knowledge and skills, I got the opportunity to build upon their practice and use their office. I thus had the luxury of not having to work under anybody, and have been independent from day one. Also, I have always done my own cases in terms of drafting and appearing in Court. I believe that a person who drafts the 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 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 the Supreme Court (including before its Constitution Bench). This enables one to have the mental ability to adapt oneself to every court. When I take up a case, it is like my own baby. One drafts it, nurtures it, takes it to its logical end. This is the reason why, contrary to what many other people in the profession suggest, I don’t think it is a very good idea for people to start specializing in a particular area very early. They should handle cases from various fields of law and have an inter-disciplinary approach. For instance, when I tookup a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 I took the help of constitutional provisions to challenge the prosecution and conviction of the accused.

So, it is important to gain a general practice initially as opposed to specialization ?

I believe so. There is interface between different branches of law and one must have a holistic perspective. As and when one getsa particular case, one must understand how to research law, how to reason, how to think logically. One need not mug up sections, one must know various areas of law and practice at every level of the judiciary - it is only then that one will become a competent person or a person who has comprehensive legal skills. It is true that there is also a need of super specializationbut that should come much later. Moreover, at the appellate level, you don’t really have the luxury of specializing in a particular branch of law – you have to do everything that comes your way. 

Do you remember any particular dilemma of your early career?

Amongst all the institutions that we have in the country, the judiciary is perhaps still the one that functions the best. However, all is not perfect with the judiciary. When I say judiciary, I mean the judges, lawyers as also the court staff. 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 found that the standards laid down by the Bar Council for how lawyers ought to conduct themselves are generally observed more in 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 is been around for so long. And it is from amongst lawyers that judges are appointed. 

So my initial challenge lay in the dealing with members of the Bar and the Bench and the court staff; to see what was happening in courts, identify what was unethical and say 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. This also came somewhat naturally to me, being a fourth generation lawyer in a family that had a tradition of practicing law in an ethical manner. 

Thus, unlike some of my peers, my challenges were not so much from the point of view of having an office - though that is a major struggle for any young lawyer. New entrants to the Bar have no alternative but to rent a chamber, engage staff, incur the overheads for running an office.  Rather, I discovered that ethics and convenience are often not on speaking terms. The common refrain I would hear while teaching 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 waswrong, 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.

What is one thing which could be improved in the legal system?

My experience of both the legal practice and academia leads me to believe that our legal system produces law graduates, not lawyers. Law students are not really taught professional skills. The Advocates Act does not empower Bar Councils to provide performance skills training to law students. Universities are supposed to teach such forensic skills. Universities have law professors who, no matter how distinguished, don’t have a clue about what happens in court and resort to traditional teaching methods like moot courts. So the students suffer. The need of the hour is to have continued professional development courses for lawyers and to train faculty (both regular and visiting) modernteaching methodology of imparting performance skills to law students. 

You have undertaken various initiatives to encourage and train the new generation; could you tell us a bit more about it?

The various initiatives I take are under the auspices of The Kapila & Nirmal Hingorani Foundation, which has been set up by the family in the memory of my late parents. As I mentioned,my mother was a Barrister, and my father was a Senior Advocate in the Supreme Court. During their practice, they were often dismayed by the way our legal system worked. I remember my mother saying that at one point she had almost wanted to give up the profession, because this was not the kind of profession that she had thought it would be when she came to India from the UK in 1961. In January 1979, my parents came across a newspaper article talking about prisoners being incarcerated in jail for ten-twenty years pending trial in the state of Bihar – often for no reason other than their poverty. Many of these prisoners did not even know why they were there. My father came up with the novel idea that they must move the Supreme Court for Habeas Corpus on behalf of these prisoners on the basis of press reports; though my parents did not know them and nor had been engaged by them. The idea was to ask the Supreme Court to discharge its own constitutional obligation under Article 32 of the Constitution to protect the fundamental rights of these disempowered persons, regardless of who was moving the Court on their behalf. That was the first PIL in this country - Hussainara Khatoon’s case. 

Ever since then, my parents devoted their life - often at the cost of professional work - to work for the marginalized and for those who did not have access to justice – they filed about a hundred pro bono cases over time. The Supreme Court had Full Court References, perhaps for the first time in its history for a lawyer couple, to pay homage to them for their role in transforming constitutional law in India. While my mother is known as the mother of PIL, my father was truly its father. The Supreme Court has placed my mother’s portrait in the Supreme Court library, the first and only lady lawyer so far who has got that recognition. Given the role of my parents in conceiving and developing PIL, we, the family, thought that we should establish a Foundation to institutionalize and carry on their work. 

The Foundation has tie ups with many universities and institutions – such as, Warwick University, UK, and Cardiff University, UK (where my mother had studied in 1947 and of which she was an Honorary Fellow). Cardiff University has a pro bono program – we have assisted them - we have their students also coming to do internships in Delhi this September. The Foundation has collaborated with the Pegasus Trust to enable young Indian lawyers to be placed in Barristers’ Chambers in London, who otherwise would not have an occasion to go and witness the working of another system. Similarly, the Foundation tailors the placement in New Delhi of young Barristers from London, primarily to see PIL advocacy in action. The training programmes we do within the country in different national law schools and various other institutions arebasically meant to make law students practice-ready so that they are able to better perform in court and obtain justice for the client. Every system has their good points and bad points - one needs to work within the system. The more challenges you have in the system, the more important it is to hone your own professional skills. It is often forgotten that the judiciary is the only protection from the police or state lawlessness. We therefore need to build up the credibility of the judiciary, rather than simply dismissing it. Merely highlighting the problems in the judiciary serves no purpose; it is important that we do something about it. This is one way of our giving back to the system – to facilitate the training of younger members of the Barand their getting exposure to different jurisdictions, and engaging in capacity building. 

Over the years, we have built relations with a network of people who are inclined towards similar objectives within the courts, outside courts, in the universities, with NGOs. The purpose is to make a concerted effort to do something to change the situation on the ground. 

You recently wrote a book titled Unravelling the Kashmir Knot on the state of affairs post Independence, could you tell us a bit more about the book.

After I had completed my LLM from Warwick and was looking for a subject for my doctorate, my father, with his experience asa pre-partition lawyer, 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 witnessed partition about 18 months after he started his practice as a lawyer, and he understood the British colonial politics. British archives had also been subsequently declassified. My doctoral thesis submitted in 2001 was on the Kashmir issue, and human rights and the Rule of Law in Kashmir. The book builds on the recommendations that I had made in 2001 as to the way forward to resolve the Kashmir issue, and is actually a slice of the original thesis. 

The book, which is now a SAGE bestseller, offers a newapproach to handle the Kashmir issue, examines the current situation in the state and works its way backwards to see why the Kashmir issue was created in the first place. While the entire erstwhile princely state of Jammu & Kashmir is an integral part of India, the rest of the world views it as a disputed territory and it is described as such before the UN as of date. The book relies on declassified British archives to establish the real reasons as to why the British partitioned the Indian sub-continent, having first deliberately communalized the Indian polity by playing up the Hindu-Muslim differences. The British archives document that the British strategists had decided way back in 1940 that theymust keep a slice of India – the north-west frontier of undivided India, what we now call Pakistan - for their geo-strategic interests in the ongoing Great Game against Soviet Russia. The British did not want Russian influence to travel southwards towards the Middle Eastern oil wells, and used Islam as an ideological boundary from Turkey to China to keep Russia at bay. The north-western frontier of colonial India, predominantly Muslim, formed part of this ideological boundary. The book records how the British formulated the Two Nation theory and floated several constitutional plans that contemplated partition as part of their strategy to keep this slice of India free from Indian control and that of the Indian National Congress that would rule India upon Independence. ‘Direct Action’, i.e. communal killings, forced the Congress to accept the British-led partition plan mouthed through the Muslim League. 

In this entire strategy, the British assumed that the princely state of Jammu & Kashmir, with its strategic northern areas forming part of the ideological Islamic boundary, would accede to Pakistan. And when the state instead acceded to India, the British created the Kashmir issue, captured the northern areas five nights after the state had acceded to India, hoisted the Pakistani flag in what was by then Indian territory and handed it over to Pakistan. The book records how the British carved out what we call ‘Pakistan occupied Kashmir’ to act as a buffer, as otherwise, were India to go to war against Pakistan, it couldliquidate Pakistan, defeating the very purpose of partition. The book narrates how the British insisted on getting the UN involved so that the Kashmir issue became an international one, with the international community getting the standing to comment on the state despite the state having acceded to India. The book details how the United Nations Security Council was subsequently subverted to ensure that Pakistan gets de facto control of the part of the state forcibly occupied by aggression, how New Delhi followed legally misconceived policies right from 1947 onwards that ensured that India was not able to recover its own territory, and how instead, New Delhi aimed at converting the LOC into the international border by disowning Indian territory and the unfortunate Indian citizens residing in occupied territory of the state. The book evaluates the flawed polices of New Delhi that have contributed to the Kashmir issue acquiring its present dimensions. The book notes that Chinaoccupies about 20% of the state despite China having no claim over the state. It is through such occupied territory of the state that today the China- Pakistan Economic Corridor has been conceived. So the book is not only about law, it is about history, international politics, geo-strategic strategies, and the entire dynamics and political discourse that led to the creation and sustenance of the Kashmir issue, with Pakistan and the international community being equally responsible for what is happening in the state today.

Against this background, I have talked about what can be done to resolve the Kashmir issue. Simply put, while India is an ancient civilization, modern day India and Pakistan were created by British statutes enacted to reflect the political agreement on partition reached amongst the Congress, the Muslim League and the British on 3rd June, 1947. These statutes - the amended Government of India Act, 1935 and the Indian Independence Act, 1947 - constituted a controlled constitution. The Government of India, and indeed Pakistan, being creations of these statutes, had powers limited by such statutes. Now, these statutes provided for the partition of the British provinces of Punjab and Bengal along the Two Nation theory, a referendum of the crucial North West Frontier Province, and the lapse of British paramountcy or sovereignty over the 560 odd princely states. Jammu & Kashmir was one of these princely states. The ruler of the princely states would regain full sovereignty. The Constitution Bench of the Indian Supreme Court as also the British Courts have taken the view, and correctly, that upon the lapse of British paramountcy, the princely states became legally sovereign states in international law in the absolute sense, with the sovereign rulers being entitled to choose to accede to India, Pakistan or to stay independent. The sovereign ruler of the princely state of Jammu & Kashmir chose to accede unconditionally (though limited to the areas of defence, communications and external affairs) to India on 26th October 1947 in terms of these British statutes that created modern day India and Pakistan. The question that then arises is from where did the Government of India (a creation of these statutes) get the power in 1947 to lay down a contrary policy that it would treat the unconditional accession of Kashmir to India as being ‘provisional’ and that it would be the people of the state who would decide the future of the state! And since it is the same law which created Pakistan, did not the law which created Pakistan itself make the princely state a part of India.

So if we think about it, the princely state accededunconditionally to India. It was New Delhi which made the accession provisional, making it subject to the will of the people. It was New Delhi which internationalized the Kashmir issue. It was New Delhi which gave a disputed territory tag to the princely state by committing before the United Nations that it would hold a plebiscite under UN auspices to decide the future of the state. Unless and until New Delhi removes the disputed territory status of the state, there can be no lasting solution to the Kashmir issue. The Kashmir issue is not only the turmoil in the Kashmir Valley or cross-border terrorism. The Kashmir issue pertains to the entire erstwhile princely state presently in control of three sovereign countries - India, Pakistan and China, and its disputed territory tag. To get rid of this tag, New Delhi needs a pronouncement confirming, as it were, its title to the entire princely state and that pronouncement must be made by a judicial body whose views are considered authoritative by the international community. The only such institution in existence today is the International Court of Justice (ICJ) at The Hague. And so the book suggests – depoliticize the Kashmir issue. It is true that the Kashmir question is a political issue, but it also has a legal element to it. New Delhi should separate the legal from the political, and get a finding in law from the ICJ that the entire state is a part of India as per the very law which created India and Pakistan. While law of course can’t by itself resolve the Kashmir issue, a favourable finding by the ICJ will change the entire political discourse, both nationally and internationally. No one can then say that it is a ‘jehad’ that is underway in the state. Even if India doesn’t succeed before the ICJ or the wishes of the people are considered to be a relevant factor to decide the future of the state, there is no adverse fall-out. This is because New Delhi has in any case taken the stand that it has consulted the people and they want to be part of India – as confirmed by the 1954 State Assembly resolution, and the subsequent 1957 Jammu & Kashmir Constitution. 

Going to the ICJ would only be the first step for New Delhi to resolve the Kashmir issue. New Delhi would need to do much more to win public confidence in the state. Public opinion is more powerful than law. New Delhi needs to win back the people. When the Indian Army went to vacate the tribal invasionfrom Pakistan in 1947, the people rejoiced. When Pakistan sent infiltrators across during the 1965 Operation Gibraltar, it was the local Kashmiris who handed them over to the authorities. Now you have school girls throwing stones at the Indian Army. New Delhi needs to regain its moral authority to be in the state. The book devotes three chapters about what New Delhi can do to win back the confidence of the people. The book thus addresses the entire gamut of questions as to what happened, why it happened, what are the past mistakes that need to be corrected and what is the way forward.