Law Teachers Must Gain Practical Experience In Law :Barrister (Prof) Kaikhushru Lam
Barrister and Advocate Kaikhushru Lam was born in Bombay and studied at Cathedral School. He obtained a Bachelor of Science Degree in Economics from London University and a Master of Science Degree in Statistics from the same university. After a decade, he taught Mathematics and Statistics at the London School of Economics and Cambridge University. Mr. Lam was always interested in the intellectual challenge that a mathematical discipline provides and the opportunity to teach and assist his students. He, however, felt that the academic involvement made no contribution to the problems of inequality, injustice and exploitation and this motivated him to become a lawyer. He qualified as a Barrister after being called to the Bar from Lincoln’s Inn. Prof. Lam has been a part-time lecturer at Government Law College, Mumbai for nine years. In the past, he has lectured at Jamnalal Bajaj Institute Of Management Studies in Mathematics and Statistics.
Live Law: Prof. Lam, you have acquired your law degree from England. You were also an enrolled barrister back in England. What influenced your unusual detour to a legal profession in India?
Prof. Lam: I decided to become a lawyer at a fairly advanced age, i.e .during my thirties. I was reasonably satisfied teaching mathematics and statistics first in schools, then in polytechnics, and then at the London School of Economics and Cambridge University. I had done that for several years when I felt that much as I liked to teach and have a personal rapport with students and intellectually satisfying as mathematics is, it made no contribution to the problems of inequality, injustice and exploitation. So when I was working in higher education, I decided to study law and then qualified as a Barrister. Bar-At-Law is a professional qualification and it is not a university qualification. So I was called to the Bar from Lincoln`s Inn. At that stage, I felt that a country like India required to give attention to injustice, inequality and exploitation much more than England. I am a person of Indian origin, born and brought up in Bombay. Hence, immediately after I got my Barrister`s qualification, I decided to come back to India. I had been away for twenty years I also had an elderly widowed mother and I wanted to spend as much time as possible with her. She rewarded my decision by surviving another twenty years till she reached 97 years of age.
Live Law: Having said that, how has your journey been so far as a Professor at GLC Mumbai and why did you decide on GLC in the backdrop of various National law schools in the country?
Prof. Lam: When I was between sixteen and eighteen years of age, I studied at Sydenham College and I would pass by Government Law College, Mumbai and I always used to think that it is the oldest law college in Asia and I formed a very good impression of its development of legal skills Not only that but I appeared for the first Year Commerce exams. in what I now know to be Room Number 11 on the first floor of G.L.C and I obtained a first class at a time when first classes were not “awarded” so liberally. So the moment I came back from England, I decided to apply to GLC but from the time I applied to the time I gave my first lecture, nineteen long years intervened. I met Principal Advani and she said, “You may be a Barrister but we don`t recognize that in India. You are no sort of a lawyer. How can I ask you to teach?” Nineteen years later, I got a telephone call from Acting Principal Dr.Waghule who stated, “You came for an interview during the last monsoon and I would like you to start teaching.” I asked, “When?” He answered, “In a couple of hours!” Again I asked, “What would you like me to teach?” He said, “Constitutional Law!” So that`s how I came here. I have no regrets and I still feel very happy walking up and down the corridors of the college. I will share an interesting story with you. Since I was a barrister, I could not obtain the Sanad I thus went to I.L.S law college in Pune and attained my LLB degree from there. I was not required to attend lectures on account of my professional work. By the time, I got the Sanad, I had crossed sixty years of age. Hence, my first legal ambition which was to become a Judge disappeared as soon as I got my Sanad!
Live Law: Considering the fact that there are practically no attendance guidelines in the college, what is your take on learning the law via practical experiences?
Prof. Lam: I think that law is a subject which most definitely, in addition to fundamental knowledge does require practical knowledge. I would go so far to say that legal academics who are working as teachers after getting their PhDs, must at least on a part-time basis have some practical experience of law. There are many situations (I have noticed this while preparing for the lectures) which you can`t possibly conceptualize unless you have some practical knowledge. So I fully support the students’ interning during the vacations and even during the semesters considering the college timings are also very internship-friendly. The person who has a good theoretical knowledge will struggle to deal with the practical world and the students who diligently attend only offices could be good at drafting but they wouldn`t really know what the principles are. So the recruitment contacts that GLC has are definitely great but it better not rest on its laurels as other colleges are catching up. But the lack of attendance at GLC is to my mind, a macro issue. It`s not based solely on the students’ lack of interest. .
Live Law: Sir, you have a private law firm based in Mumbai which deals with the laws of medical injustice, animal welfare and the rights of arrestees and prisoners. It is quite fascinating to have such an unconventional practice. Please tell us more about it.
Prof. Lam: These are of course the socio-legal issues that I deal with. I commenced practicing in the areas of criminal law and matrimonial law. Subsequently, with no regrets, I have also gone intoproperty law . But again, the focus is mainly on serving people. I am not ashamed to say that I have made very little money in my life and somehow managed to survive. I live a very simple life. I possess one of the smallest cars, the most economical mobile telephones, no coffee-table books and no car radios.
Interestingly, I find that the first thing that people ask me when I tell them that I am a lawyer is “which court do you work in?” And my answer to that is, “I don`t work with courts, I work with people!” So wherever the need is, I go, be it to the Sessions Court, Magistrates’ Court, City Civil Court, Small Causes Court and even District Courts. To tell you a bit about my practice, by and large it has been a one-man show. I had an office at Worli but later, I decided ,like many lawyers to work from my home. I would like to share with you a few details about my matrimonial practice as resolving disputes in marriages is a very emotional matter and many ladies burst out crying from time to time when they are talking about their problems. I have tried very hard to do whatever I can to keep the couple together rather than ask them to deposit five lakhs of rupees with me and start the divorce proceedings. I convince some couples to stay put by explaining how lonely divorcees could be for the rest of their lives and that the next marriage may be no better. I also encourage the couples to involve the law as little as possible and I tell them that every time the lady calls the police to intervene, she is setting the marriage back by several years. Occasionally, I meet the children and they appeal to me to keep their parents together!”
In criminal law, my approach is rather different particularly because I have not dealt with economic offences. The most important thing to me in criminal law is not about punishing the offender only but to ensure that the police and the prison staff treat the offenders or the convicts according to the law. There is far too much illegal treatment of offenders going on. In fact it is a standard practice that the moment an arrestee reaches the police station, the police first beat him/her and although I have tried my best to work on that it is still a huge problem and most lawyers don`t care. I tell the police officers that whatever crime the offender might have committed, each time they raise their hands on him or kick him or bang him against the wall, they are committing a greater criminal offence than the offender has but they don`t seem to understand. I also try to see if the client has got any mitigating factors because of which he may have committed a ghastly crime. So I do try to get the offender to cooperate with the law and often I suggest him to plead guilty and at the same time, I see if there are any mitigating factors. And even if there are no such factors and he/she has committed the worst possible offence,I endeavour to ensure that he is penalised according to the law and not physically mistreated. Crimes will always exist as long as the imperfect nature of man dominates butthese who enforce the law should have clean hands. So this summarises my work for arrestees and prisoners.
As far as animal welfare s concerned, I have reported to the Blue Cross a keen rider who successively owned horses but repeatedly killed one and bought another when the former was too old for active service. We hope to take legal action against a horse-racing authority for permitting the whipping of race-horses and branding them. We prosecute people who mistreat dogs and cats, apart from objecting to invasive experimentation with animals.
Our interest in medical welfare is important for, in practice, once a person enters a hospital, he has virtually no rights whatsoever. We have highlighted three cases where persons whose hearing has been normal have lost their hearing for life because of the administration or recommendation of strong drugs which had unsatisfactory side-effects. We are working on requiring hospitals to treat patients without requiring them to sign stipulations exempting the hospitals from responsibility should any problems arise in the treatment. One of the options for the L.L.B. Degree is “Medicine and the law”.
Live Law: In the year 2008, you are known to have written a letter to the Sessions Court to represent Ajmal Kasab, the prime accused in the 26/11 Mumbai terror attacks. What prompted this bold step?
Prof. Lam: Co-incidentally, in 2008, within a few days of the commencement of the year I started lecturing in Government Law College and a few days before the year ended, I applied to represent Ajmal Kasab. I got to know about the 26/11 matter around 10 pm that night and I didn`t watch the proceedings on the television but instead I just retired for the night. For the first couple of weeks after this date, I never thought of involving myself I had never heard of NarimanHouse where the horrendous slaughter of Jewish residents occurred and so during the night of Sunday 30th,I drove my car to Colaba Causeway and then walked to the road on which the building was situated, November gave way to December and we read in the newspapers that one or two people who decided to represent Kasab threw in their towel sowing to pressure from either the Shiv Sena or other sources. On Saturday 13th December, I met the acting Principal, Dr. Waghule in the staff room where I told him somewhat half-heartedly that given that all other lawyers were withdrawing, I was thinking of applying to represent Kasab. Dr. Waghule said, “Certainly! That`s a good idea. Why don`t you?” and then he walked with me to the Sessions Court to show me where I should submit my application. Eventually, I submitted my application on the following Monday and that`s how the matter got off the ground. So, I have cause to thank Dr. Waghule on two counts. He provided me with the opportunity to lecture at G.L.C and when 2008 was barely eighteen days old and encouraged me to involve myself in a high-profile case when the same year was approaching its end barely eighteen days later.
Now, why did I decide to represent him? There is a fundamental legal maxim which asserts that “Every defendant is entitled to a trial” and as I have often stated and written, “NO DEFENCE. NO TRIAL. NO CONVICTION. NO SENTENCE.” The emotions of the time made several people feel that since the accused had been caught red-handed, he should simply face a firing squad and not be provided with the luxury of a trial. Well, that is not something that happens in a democracy! He hasgot to be given a chance to defend himself for many reasons. One of the reasons being that despite the fact that he has been seen and caught red- handed, only a court can prove that he committed the act. Secondly, there could be mitigating factors. The other eight or nine terrorists who either got killed or escaped, may have put pressure on him by indicating that unless he participated in this venture, they’d eliminate his family and him.. A defence lawyer needed to provide evidence of these mitigating factors and the prosecution would wish to disprove them. If , despite the presence of mitigating factors,the accused was convicted,the defence lawyer might need to provide evidence of characteristics of his particular background which the judge may wish to take into account before passing the sentence. And finally, even if, as expected, Kasab would receive the death penalty, I was interested in ensuring that he was not mistreated by the police andjail wardens, was provided with passable and healthy food and drink, would have social workers to report on his welfare periodically and be permitted to meet his family-members if they desired to meet him.
Live Law: How did you overcome the adversaries while undertaking such a bold step and what all did you have to face?
Prof. Lam: The day after I submitted my application to represent Kasab to the Sessions Curt and provided a copy to the Times Of India, I was a part of a second page story in the Times of India wherein my plan and intentions were reported elaborately. I was then interviewed by several television channels on that day and the following day, my home was ransacked. The door bell rang. I had informed my domestic maid not to open the door without establishing the identity of the caller and when she enquired ,she was told that a telegram had to be delivered. She opened the door innocently and they rushed in. I happened to be in the bathroom. They started smashing furniture, broke lampshades and several other breakable items. Then, I informed the police and they took an awfully long time to take down the details. I was given police protection off and on for the next six weeks.
Fortunately, the G.L.C staff and the Principal were very co-operative. A number of upper-class people were very unsympathetic and aggressive. There were times when I came close to being assaulted and I had to put up with all that.
Live Law: Did you happen to meet Ajmal Kasab?
Prof. Lam: I met Ajmal Kasab half a dozen times at the specially convened Sessions Court at Arthur Road Jail between April 2009 and the day he was sentenced to “hang by the neck” in May 2010. He appeared to be a totally overpowered person who seemed very young, isolated and in need of care. I spoke to him when there was a break in the legal proceedings. We spoke in a mixture of Hindi and Urdu about the quality of the custodial food and he stated that equally good vegetarian food was available in Pakistan. His appearance was that of an average Hindu and he stated that the people in the two countries were the same.
Around March 2009, Mrs. Anjali Waghmare was appointed to defend him but ,according to a report in the Mumbai Mirror, had also contracted to sue for damages in a civil suit for injuries suffered on 26/11 by a prosecution witness I believed that this constituted a conflict of interest and made an application to the Sessions court requiring Mrs. Waghmare to withdraw from her civil contract if she wished to defend Kasab. My application was the first issue to be attended to in the specially convened court and the judge decided that Mrs. Waghmare would not represent Kasab. Meanwhile, I was appointed by the lawyer who represented the third defendant (Sabauddin, who was charged as an abettor) to work as part of his team. I received a special card from the police to attend the Court. Sabbaudin told me that the custodial staff were lighting his hand with a match from time to time.
Live Law: Prof. Lam, would you please tell us about the description of your letters to Kasab?
Prof. Lam: I wrote two letters to Kasab but I don`t think he received any. All I could do was send them via the then Additional Commissioner Of Police, Rakesh Maria. It was more than likely that Kasab did not know English and so I got somebody to produce an Urdu translation and forwarded it to be delivered to him. I mentioned in the letters that he could select a lawyer of his choice and that I would represent him if he so desired. I informed him that he could apply for a Pakistani lawyer to defend him. I stated that I would, after speaking to him, study if there were any mitigating factors. And whereas the sentence would be passed in conformity with the law, nobody in police custody or prison had a right to mistreat him and I would do my best to see that this did not happen. Then, with my tongue in my cheek, I suggested to him to learn yoga and meditation and read books available in the prison library on non-ritualistic Hinduism and to enjoy the vegetarian food. I even went as far as suggesting that in good time, he will appreciate how wrong and unjust partition was .The letter I wrote him was reported on the first page of The Mirror during the end of January.
Live Law: Was the Police department supportive?
Prof. Lam: The officers who came over to protect me were first-class. We provided them with sumptuous meals, coffee, tea and coconut water. I obliged them by accompanying them to shops and purchasing presents for their families and themselves. The middle-ranking officers found it strange that I did not belong to a group of activists and had other interests such as the teaching of mathematics. The senior officers were disappointed that I stated in interviews that the police officers ,like judges, should be appointed on an all-India basis or else there tends to be a nexus between the Maharashtrian police officers and the Maharashtrian political extremists and the protection of the minorities is at a disadvantage.
Live Law: Prof. Lam, did you hear any other defendant advocate/appointees facing such a similar threat?
Prof. Lam: They claimed to have resigned because they received some serious threats. I was the only applicant who did not resign. Regarding the appointees, there was one Muslim gentleman, Mr. Kazi, who was a very competent person and the Judge removed him alleging that he had not been co-operating with the Judge. The second lawyer ‘s main interest seemed to be to finish the job without raising any contentious issues. He did not bring out any defences that Kasab could have had, i.e. the pressures that Kasab might have been under when he shot people.
Live Law: Do you think justice was indeed done to Kasab given that there have been rumors and statements coming up alleging that the hanging of Afzal Guru is a stain on Indian democracy?
Prof. Lam: Afzal Guru was a conspirator and it is not impossible that the death sentence may have been too harsh in the circumstances. However, the hanging of Afzal Guru was a stain on Indiandemocracy for other reasons. As it worked out, he was required to receive the death penalty after serving almost a sentence of life imprisonment as the amount of time he spent in custody before being hanged was more or less akin to the duration of a sentence of life imprisonment and thus it was inequitable. The court’s refusal to let Afzal meet his family had been fixed was inhuman as was its refusal to let his next of kin claim his remains.
I am personally against the death penalty. As we study in criminal law, there are five functions of punishment-retribution, prevention, deterrence, compensation and reformation. I focus oncompensation and reformation. I believe in reformation which, in any case, has a punitive aspect if the convict has lost his freedom. If you had the opportunity to have every luxury in the world but you are not allowed to leave a room in a five-star hotel for even six months, could you be happy? That itself would be a huge punishment! So if a man`s liberty is taken away in any case, it would still be a punishment. Meanwhile, why not teach the man or woman about religion or find out to what extent he could be educated. Let him indulge in sports Teach him yoga and meditation in prison.
Since, however, Indian law permits the use of the death penalty, Kasab’s circumstances did merit it. However, he had several rights which he did not or could not exercise. He should have been allowed to have a Pakistani lawyer if he so wished and special provisions could have been made regarding the Pakistani lawyer`s appearance in an Indian court. He should have had a chance to meet his next of kin before he died. The Pakistani High Commission also failed to take any interest in his welfare and it is the duty of a foreign mission to oversee its citizens’ welfare in a foreign land, regardless of the gravity of the offence. I can understand that the Pakistani High Commission`s acts could have been misconstrued to mean that they were supporting a terrorist. Finally, there was no record of any welfare workers or social bodies visiting him from time to time to see that he was treated according to the law.
Live Law: When terrorist activities like 26/11 take place, the masses are so outraged that there is probably a lot of pressure on the Judiciary to give a ruling against the accused. Do you think the judges are biased or is there a possibility of such prejudice when adjudicating similar issues of national importance?
Prof. Lam: I think that most Judges, quite apart from terrorist cases, are biased. The police, the Judges, the natural instinct is to be punitive wherever possible. There are a few Judges who do take into account the circumstances of the accused but they are very few. The Judge comes into the court, everyone stands up. It might be very unconventional if I say it should be the other way round. He is there to serve, not to order. This could be resolved if we reverted to trial by Jury which was abolished in 1959.
Live Law: Sir, you have probably experienced all the shades of law from being a practicing criminal lawyer, law professor to running your own law firm. Please tell us about your experience and what has been the most interesting and challenging one?
Prof. Lam: I think all these aspects are very interesting and challenging but, I enjoy teaching because it gives me an opportunity to emphasize both the logic involved in law and the public policy and to motivate students to think about the law and the elements of justice. Each year when I prepare thelectures, I get a chance to be a slightly more affluent legal academic and a better teacher. As regards the practice there is an interesting side and a somewhat demoralizing side. One comes face to face with a variety of people and a variety of situations in the law where you deal with every aspect of life like industries, restaurants, transport, insurance, crimes, marriages etc. You get to know otherclients, their problems, other lawyers and all this is interesting. What is demoralizing is the extent to which the corruption in the legal system causes the lawyers to exploit their clients. Now, at G.L.C. we talk about the absenteeism of students or I am sad to say the absenteeism of lecturers but those two matters won`t heal when at the highest level, we`ve got absenteeism of Judges and the consequent adjournments. For example, consider a situation at a Small Causes Court, In an afternoon from 2:30 to 5:30, a lawyer may have six cases to attend to and the Judge fails to turn up. Now, why is there no substitute for him or her? What is the presiding lawyer supposed to do? He has done no work for his client that day. He should thus not be sending an invoice to the client. But then, he reasons that he kept three hours free for his client and so he sends a bill when he has actually done no work for him.The client doesn`t even know that no work has been done. That is the demoralizing side of the practice. There have been cases where the lawyers have been inducing the Judges to postpone cases. And I regret to state that, in some cases, the law has a corrosive influence on the professionals and exposes the most negative aspects of their character. Only doctors are greater exploiters of their clients.
Live Law: What is your message to your students and the fellow lawyers in the country?
Prof. Lam: My message to the students is that whether or not they want to be professional lawyers all their lives is to spend the first five years of their working lives practising law in a solicitors’ firm or with a counsel. After that, if they wish to be non-practising lawyers in a firm or to go outside the law and be an executive or start their own business ,they will be well equipped because the law deals with practically all walks of life such as restaurants, factories, marriages and crimes. Secondly, the students should involve themselves with internships during their vacations on a full-time basis and during the academic sessions on a part-time basis. Then, after they graduate and pass the Bar exams and obtain Sanads, they should enroll as articled clerks to become solicitors and pass the Law Society exams. Even if they do not wish to be professional solicitors, they should follow this course as the experience is valuable and it will distinguish them from the lakhs of law graduates who do not care to qualify as solicitors. There is a set of five exam papers which consists of everything they will need to know in civil law and it is the only set of law exams in India which has got a really good standard. Nobody will believe, that at one point of time in the 1960s, the pass rate was 0%.
Now, my advice to fellow lawyers! (laughs) Well, I have made very little money in my life and I have lived simply. There are some lawyers who earn not only one lakh of rupees a day but one lakh of rupees an hour. I’d like to ask them to reveal what they do with their burdensome resources. Ibelieve that they will be happier here and hereafter if they spend some time attending to the promotion of justice and freedom of expression in all its forms and amend the constitution from time to time to serve these noble objectives and restrict any arbitrary powers the executive may have usurped.
Akanksha Prakash is a Student Reporter at LiveLaw.