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An editor once said that you have arrived as a journalist when you get threatening calls giving you ultimatums to take down stories. The equivalent for a criminal law practitioner is perhaps when a prominent gangster puts out a hit on you.
What is it about criminal law that makes it a less attractive area of practice? How do you convince a judge to acquit someone whom society has already declared guilty? Why is it that not a single judge has ever been impeached by Parliament?
Who better to answer these questions and more than Majeed Memon? The 71-year-old Rajya Sabha Member of Parliament is a leading criminal lawyer and renowned extradition specialist. He is also a member of the Parliamentary Standing Committee on Law and Justice.
He has appeared in courts across the globe, and defended the likes of music composer Nadeem Akhtar Saifi and terrorist Yakub Memon.
Excerpts of the interview follow.
Can you give us a glimpse into the early days of Majid Memon the lawyer?
When I entered the Bar more than four decades ago, the atmosphere was markedly different. Courts at the time had a more dignified image. As a young lawyer, when I entered court to argue my first matter, I had this fear in my mind that I must conduct myself with dignity, and not do anything, even inadvertently, that would offend the court.
Today’s scenario has changed, and standards have deteriorated considerably. Lawyers are no longer behaving in a responsible and dignified manner and the same goes for judges on some occasions. This must change.
Do you need to be thick skinned and suppress your conscience sometimes to be successful in this area of the profession?
Not necessarily, but sometimes you have to be able to come to terms with the fact that you were unable to secure justice for your client. There are various flaws in the system that make it difficult, especially for poor people, to get justice.
Many times it happens that poor people cannot afford proper representation, and are convicted of crimes of which they are innocent, only because their defence is badly presented. When you see such things happen, it definitely hurts.
You have represented several clients who had already been subject to media trials. From a trial strategy perspective how do you go about convincing a judge that your client is innocent?
What the media is doing is very wrong. Mere suspects are routinely denigrated, defamed and branded guilty. This affects the course of justice.
In cases which are highly publicised, such as the Arushi Talwar case or the Ryan International School murder case, we see that documents that are part of a sensitive investigation, which according to law are not accessible even to the accused, are accessed by the media and flashed on television. This is most undesirable.
It is because of such practices that in such cases you not only have to fight on points of law, but also against public perception. The strategy in such cases is to rely almost solely on evidence to prove the innocence of the accused.
In all your years in the profession, could you share the one incident/matter that gave you the most satisfaction and why?
I have had glorious successes in courts the world over, ranging from the High Court in London, to courts in Durban, Lisbon and New York, to name a few.
At a personal level, convincing a court in the United Kingdom not to extradite music director Nadeem, who was accused of having plotted the assassination of movie producer and cassette king Gulshan Kumar, was very satisfying. We worked very hard in that case and fought against all odds. The whole administration was convinced that Nadeem was guilty, and the Mumbai Police had proclaimed that they had enough evidence to secure a conviction.
It was a media trial and he was a media man. People started hating Nadeem for his alleged betrayal of a colleague, and for paying underworld don Abu Salem to kill him in broad daylight.
In 2002, the highest court in England refused to hand over Nadeem to India, because we proved that the Mumbai Crime Branch had flouted all norms and procedure in terms of collection of evidence. We convinced them that the Mumbai Police had made up a story to save their skin, and covered up their inability to investigate the case.
Ironically, Abu Salem was extradited to India, and charged with a number of crimes, but not for the murder of Gulshan Kumar.
Is it fair to say that the quality of defense lawyers at the Criminal Bar is far superior to the quality of prosecution lawyers? If yes what are the reasons?
If you compare an average defence lawyer with an average prosecutor, what you say is true. You will find that defence lawyers are more painstaking and thorough in their research; they work harder, and are more intelligent.
This is because success brings rewards in terms of remuneration, recognition and an enhanced practice. Prosecutors, on the other hand, work as though they are official clerks. They know that they will only get paid a fixed amount which is not very attractive, and therefore they hardly pay attention to their briefs.
What happens as a result is that in a majority of cases where an accusation is actually true, the prosecution fails to establish a case, and the ultimate casualty is justice.
This one is for the Majeed Memon the lawmaker: Probably the only constitutional check on the higher judiciary is Parliament’s power to impeach. How is it that this has never happened?
Unfortunately in our country, politics has spread its tentacles everywhere. I remember Ramswamy’s case, which was the first case of impeachment which came up for a vote in Parliament.
I was representing a popular film star in my professional capacity at that time, and she was at the peak of her career. I very distinctly remember communicating to her that the court had asked her to remain present on a particular date.
She said “I won’t be able to attend on that day as I have been assigned a very important job.” When I asked her what that was, she said that she had to travel to Tamil Nadu and convince each Member of Parliament from the State to vote against impeachment.
There has not been a single case of impeachment in our Constitutional history, but on the other hand, people talk freely of corruption in the judiciary.
If you look at my mobile, you will see a number of messages and tweets saying that so much money was paid in so and so case, Supreme Court judges can be managed, and so on. They may not necessarily be true, but must be probed thoroughly.
There were clear cases where judges should have been impeached, and if a couple of them had been, it would have sent the message out to others not to take liberties with corruption. Impeachment laws must be amended.
In criminal law, the benefit of doubt goes in favour of the defendant. If a judge is accused of impropriety, the onus must be reversed, and it must be the judge on whom the responsibility to prove his or her innocence should lie .
Laws such as the Prevention of Corruption Act, the Nirbhaya Act and POCSO for example, were all touted as one stop solutions to social evils. Have they been effective, or are they merely legislative exercise to appease public sentiment?
Political motivation in enacting law is unfortunately ruling supreme, and it is not the service of the people, but criticism which drives them. Anything that the government does is towards keeping their vote banks intact. Consequently, we have too many laws and too little justice.
What are your views on the Uniform Civil Code?
Uniform Civil Code must not be construed as an onslaught on Muslim minorities. The environment today is such that this is how it is being read. If a Uniform Civil Code is brought in, the most affected parties would be Hindus.
You will have to do away with the karta, you will have to do away with the Hindu Undivided Family, and inheritance laws would be seriously impaired.
When the Constitution grants you the freedom to follow your religion, it also implies a way of life. There is a very fine line that divides a regulation and an encroachment on personal life. It’s a subject that is delicate and sensitive and is not a top priority in the current scenario.
Not only have conviction rates plummeted in the last four decades, pendency is spiraling. What are the reasons for this and is there a solution?
Pendency is a serious issue. I have said in a recent speech in the Rajya Sabha that the delay in dispensation of justice is the chief cause of unrest, and people losing faith in the judicial system.
Our criminal justice system is failing on two fronts, both attributable to delay. Firstly, criminals no longer fear the law, and know that if they commit a crime today, they will in all likelihood face their reckoning only 20 years later, by which time they may already be dead. Secondly, the victim has no confidence in justice.
The solution is to have three times as many judges as we have currently do. I have brought this up with the Union Law Minster in a Consultative Committee meeting. I am also meeting with the Law Secretary soon and we are working towards this.
In India’s prison system, how many convicts do you think really get the opportunity to reform? What needs to be done to improve here?
The tragedy in our country is that our prisons are overflowing with undertrials. Seventy percent of prisoners on average are undertrials, who are in law, presumably innocent. They spend say two years in the company of convicts; later even if they are bailed out or found innocent, they lose respect in society. Society does not receive them warmly.
Bail should be liberal. Bail petitions which are moved by undertrials must not be kept pending for a long time. A right to restoration of liberty accrues every day. Therefore, if I move a bail application today, why should I spend tonight in prison?
I have suggested in Parliament that we must come up with a new legislation whereby we deal differently with offences which do not invite a life sentence or the death penalty.
Any bail application for a lesser offence filed on a particular day must be decided within fifteen days of filing, barring which interim bail must be granted until it is decided. The Law Minister is considering this proposal.
There aren’t too many takers for criminal law especially from the National Law Schools. What do you attribute this to?
Criminal lawyers do not get the respect they deserve in society. They are threatened and looked down upon, especially if they defend people accused of crimes such as terrorism, rape and murder. This is absolutely wrong.
A lawyer only helps a case to be decided. A lawyer does not take sides.
Another reason is that there are far more opportunities now than there were earlier, in areas such as corporate law, for youngsters to taste success and earn good money rather quickly. This is another reason for traction towards criminal practice declining.
It takes years of hard work without much reward to establish oneself as a criminal lawyer of repute.
What is your advice to young criminal lawyers on how to succeed in the profession?
Criminal lawyers must have a third eye. They must be one step ahead of their opponents, and unearth facts and details that the investigation hasn’t yet examined. They must also be able to see aspects of the case that are not clearly visible.
There are three I’s: industry, intelligence and most importantly, integrity. What is sorely lacking at the Bar today is integrity. It is not only lawyers, but judges as well who have lost integrity.