Dr Aman Hingorani shares insights into litigation and the birth of PIL

Dr Aman Hingorani practices as a Senior Advocate and acts as a Mediator in the Supreme Court of India. He has argued cases in various legal fields such as constitutional law, human rights and public interest law, probate, arbitration, business law, etc. Apart from this, he has authored the book, Unravelling the Kashmir Knot, a SAGE bestseller. He also serves as an International Advocacy & Mediation Skills Trainer and has been engaged in teaching law students since 1998 as an adjunct faculty in various law institutions in India and abroad.

He has prepared curriculum for law courses and other activities such as modules for the Indo-British Project on Advocacy Skills training, British Council, New Delhi; and ADR preparatory material for the All-India Bar Examination. Last but not the least, he has appeared as an expert to give evidence before the Parliament Standing Committee on Personnel, Public Grievances, Law and Justice, Rajya Sabha on Mediation Bill 2021, and before the Foreign Affairs Committee, House of Commons, UK Parliament on its inquiry on the UK Government’s tilt to the Indo-Pacific, and in particular the Kashmir issue.

Here are some glimpse from the conversation

1. What made you choose law as a career option?

Well, I am a fourth-generation lawyer, and so, law is in my blood. I did explore the idea of doing Medicine or having a career in Biotechnology, but it so happened that I decided to come back to Law.

2. You have completed your bachelor’s degree from Campus Law Centre, Faculty of Law, University of Delhi, and master’s from Warwick University, UK, where people come from different walks of life. What was the difference that could be traced between the two?

What I found different was the kind of freedom you get to be able to choose your projects and your writings. You are essentially left on your own. So that was different. It was also a mix of different streams like international business, international trade, and technology transfer, coupled with, say, human rights and social issues, so you could mix and match different subjects. But now I think Indian universities are doing the same thing; and being in a different jurisdiction and interacting with people from around the world is education by itself.

3. Attorney Pushpa Kapila Hingorani is known as the “Mother of PIL”, and your parents have fought about 100 cases to provide relief to millions of Indians. Please share with us how this new jurisprudence came into the picture and evolved.

My father Nirmal Hardasmal Hingorani was a Senior Advocate in the Supreme Court and my mother Pushpa Kapila Hingorani was a Barrister practising in the Supreme Court. My parents had initiated public interest litigation (PIL) in this country in 1979, with the Hussainara Khatoon case¹. At that time, there was a press report that detailed the pitiable plight of prisoners languishing in jails in Bihar for periods longer than they would have been there, had they been tried and convicted and given maximum sentence. My parents read the article and they decided to file a writ of habeas corpus in the Supreme Court on behalf of the undertrial prisoners. My parents did not have the vakalatnama of these prisoners nor did they know them. The Registry of the Supreme Court raised the objection in this regard. My parents responded that they were officers of the Court, citizens of this country and that Article 32 of the Constitution does not say who can move to the Supreme Court. It just says the right to move to the Supreme Court to protect fundamental rights which is a guaranteed right and it is the constitutional duty of the Court to protect the fundamental rights of the prisoners. Hence, the stand of my parents was that they were bringing to the notice of the Court the violation of the fundamental rights of these prisoners. That is how the matter got listed in the Supreme Court. The Supreme Court issued notice which resulted in the release of about 40,000 prisoners in about six months. This was the first PIL in India, which was followed by the Bhagalpur blindings case², again from Bihar. The terrible custodial torture happened with 33 undertrial prisoners, who were suspected criminals. They were blinded by the police who poured acid into their eyes after piercing the eyes with bicycle spokes and needles. Cotton soaked with acid bandaged around the eyes to ensure complete blindness. The police officers involved were given gallantry awards by the State for supposedly containing crime. This horrific case was again litigated by my parents before the Supreme Court as a PIL.

My parents did about 100 PIL cases pro bono during their lifetime for disadvantaged sections of the society like leprosy patients, mentally ill patients, devadasis and Sati victims. There are a lot of people who do not have access to the courts because of some disability, mental inability, illiteracy or simply poverty. PIL is the remedial jurisprudence that requires the Writ Court to discharge its constitutional obligation to protect the fundamental rights, and human rights, of those lacking access to courts. Should there be no government policy or law on a particular matter, the Court can lay down policy or even “legislate” to protect fundamental rights till Parliament steps in, like in Vishaka case³. So PIL was a new jurisprudence altogether, which was initiated by my parents, where the Court assumes new roles other than as an adjudicator. The jurisprudence of PIL was later expanded to include diffuse rights or governance issues, but that has been a matter of some debate.

4. It is said that “An ounce of mediation is worth a pound of arbitration and a ton of litigation!”. Sir, you have been serving as a mediator in the Supreme Court of India as well as the Delhi High Court mediation centres for more than 10 years, please brief us on the structure of the mediation process coupled with some key points.

Mediation is a voluntary and confidential process to assist the parties to resolve their conflict themselves. The mediator does not decide the conflict but merely controls the process to assist the parties in their negotiations. An important role of the mediator is to break the conflict cycle by understanding what is making the parties take a particular stand and then leading them to come up with alternative ways on how to satisfy their underlying interests. The process empowers the parties and helps rebuild relations. The mediator can use restorative justice practices in appropriate cases to convert negative emotions into positive ones. The ideal structure of the mediation process, after the mediator has done the pre-mediation dispute analysis, would be for the mediator to start with the conversational opening statement in a joint session with the parties, followed by the parties sharing their respective perspectives. A fair and equal opportunity should be given to both parties to express themselves. The parties are taken through the various stages of mediation, shifting gears between joint and private sessions, with the view to shift them from the stands they have taken to a common ground that satisfies their underlying interests. The mediator helps the parties evaluate the options suggested by them, the feasibility and desirability of the potential solutions. If the parties arrive at an agreement, it is reduced to writing and signed by the parties and the mediator. The conflict is thus transformed into a win-win situation for the parties.

5. Do you think that ADR methods can change the trajectory of dispute settlement?

I do not think arbitration has been that much of a success as far as India is concerned. The whole idea of arbitration was to shorten the time taken in adjudication or a decision on that conflict. Arbitration proceedings themselves get unduly extended. And then every award is invariably challenged under Section 34 of the Arbitration and Conciliation Act, 1996. So, the case anyway enters the legal system, and then you litigate up to the Supreme Court. Mediation as an alternative dispute resolution (ADR) is a very useful mechanism to be able to transform conflict because both sides go back happy. Mediation has met with some success, and that too because people do tend to go for dispute resolution in mediation centres annexed to the courts. There is a lot of faith in the judiciary, and when the judiciary promotes mediation, that gives credibility to the mediation mechanism. However, private mediation has not really taken off in the country. As things stand today, I do not think arbitration or private mediation can really change the trajectory of dispute settlement.

6. What advice would you like to give to people/students facing problems with time management, mental health issues, and so on?

I would say there is hard work in every field. There are a lot of struggles in every field. So, whenever you think of your career option, choose what you really enjoy doing. Because if you enjoy what you are doing, you will not feel the pressure. Then there will not’ be mental health issues, etc. you will anyways go that extra mile. If you are doing something just because you are under peer pressure that everybody is doing that and so you should also do this, or only due to adverse financial considerations, then sooner or later you are going to feel the pressure. In my view, whatever you choose to do — whether it is corporate law, litigation, teaching, mediation, or whatever you want to do — enjoy your work. That is the only advice I can offer.

7. What is the one thing that law students should focus on during their law school journey?

I feel that a student needs to immerse himself or herself in understanding the logic behind everything, because law is nothing but common sense. Even when the student does research, he or she should evaluate the fact situation without seeing case law, without seeing statutes, and form his or her own view about what ought to be the position in law, what should be the legal principle applicable. The student must develop his or her own original thought. It is only after that that the student should go around looking for the case law or any other statutory provision. By this approach, if the student finds case law that supports the student, it will vindicate the line of thinking of the student. If the case law is to the contrary, then the student discovers where he or she was going wrong, or was there a fallacy in the case law. Either way, it is a learning process. Those who want to be in the profession must question everything, question every proposition. If you are studying, for instance, constitutional law, you do not need to mug up a case, but you have to see how constitutional law evolved from case one to case two to case three. The development of law is important, not a particular case. There is always the context of the political and economic circumstances. Hence, you need to contextualise the law. You cannot read law in isolation, excluding the context of the circumstances that were prevailing at that time. It is a vital part of the law school journey for the student to understand this context. And of course, the student must grasp every opportunity to internalise lawyering skills as early as possible.

8. You have argued cases on a wide range of legal fields such as constitutional law, human rights, and public interest. Which of these fields did you find most challenging and rewarding at the same point?

I enjoy constitutional law because I find it creative. However, I do not see fields of law in isolation because law is interdisciplinary. For example, in a narcotic drugs case, my client was prosecuted for possessing drugs in India pursuant to a controlled delivery operation of drugs which had been seized in Germany and was subject-matter of the offence there. At that time, the NDPS Act was yet to be amended to make such possession of drugs an offence in India. Hence, even assuming my client was found in such possession of drugs, it was not yet an offence in India. I managed to get the prosecution quashed by relying on Article 20 of the Constitution rather than merely going into the provisions of the NDPS Act. In my view, an interdisciplinary approach is imperative, particularly when all laws come within umbrella of the Constitution. The focus should be more on being able to strategize how to conduct the case, regardless of the legal field, so that the client gets the relief.

9. You have authored the book, “Unravelling the Kashmir Knot”, which turned out to be a bestseller. What motivated you to write this book? Also, share some insights from the book.

After I completed my LLM, I was looking for a topic for doctoral research. Having worked on several challenging issues, I spoke to my father who was a pre-partition lawyer. My father suggested that I examine the Kashmir issue because this is one area where every conceivable principle of law has been turned on its head to create and sustain this issue. I knew nothing of the Kashmir issue. I started working on the Kashmir issue in the year 1995 and I gave in my thesis in the year 2001.

The book is a slice of that doctoral thesis and refers to declassified British archives to explain the British narrative about the need to communalise India after the 1857 mutiny, the necessity of the British to partition the Indian subcontinent to create Pakistan, and how and why the Kashmir issue was created by the British to satisfy their geo-political, defence, and strategic interests in the Indian subcontinent. The book points out that while about 45% of the territory of J&K is with India, about 35% is occupied by Pakistan and about 20% by China. Hence about 55% of J&K is still under foreign rule, and so are the people residing in such occupied territory who are Indian citizens. The China Pakistan Economic Corridor (CPEC), an important part of China’s Belt and Road Initiative, runs through Gilgit-Baltistan which is Indian territory. The book pieces together a novel solution to resolve the Kashmir issue in the backdrop of the current political stalemate between India, Pakistan, and China.

10. You have been involved in teaching law students, judicial officers, and lawyers, as an international advocacy and mediation skills trainer. What are the key takeaways you would like to share with the readers?

I believe that every student, and every professional must regularly go through courses that refresh and hone their skills. It is important to enhance the capacity of each individual. Along with teaching substantive law subjects like constitutional law, arbitration, and international trade law, I have taught performance skills courses since 1998. The teaching method is one through which the participant acquires good communication and information-gathering skills. For advocacy and adversarial ADR mechanisms like arbitration, the participant would acquire skills of case analysis and conceiving a case strategy or theory. The case theory so formulated drives the case right from legal drafting to final arguments. The participant would acquire the skills of handling a witness in examination-in-chief, cross-examination and re-examination. The participant would be able to structure and present oral arguments. All this within the parameters of professional ethics. The professional skills of ADR professionals like mediators would include not only communication skills but negotiation skills, facilitative skills, and with online mediation, technological skills.

Over the decades, I have devised my own teaching modules and pedagogy to run courses to equip the participants with such skills, and to train faculties in the teaching method so that they in turn could train students or lawyers. The teaching method essentially includes learning by doing sessions by the participants which is preceded by faculty demonstrations. The faculty gives a structured feedback on each performance of the participant which is followed by scientific video reviews of each performance. This is supplemented by other teaching methods like students reviewing the performances of lawyers during court visits or of mediators in mediation centres, making legal drafts for both adversarial and non-adversarial mechanisms.

11. What are the parameters of a good draft? Please elaborate on the six-step formula created by you.

Well, a good legal draft should, at the very least, be consistent with the law, be structured, be complete, should contain appropriate language and be readable. The draft should persuade the reader that the relief sought must flow to the client. A good draft is one which is as simple as possible because it is more effective. The idea is to demystify the case, and not to make it high-sounding or complicated.

Legal drafting is also a performance skill, and there are many methods by which one can learn this skill. The method I use to teach legal drafting as performance skills has been drawn from various courses over the years. The student is asked to prepare a draft of a hypothetical case by following six steps, which I will briefly explain though without being exhaustive.

• At Step 1, the student is expected to research and formulate a case theory by doing the case analysis of the case. Again, there are many ways to do a case analysis; the simplest being to identify the legal elements of the case (divorced from the facts of that particular case) and sifting facts that are unreservedly in favour of the client (good facts), facts which are against the client (bad facts) and facts that could be handy to explain away or nullify the bad facts. The student must deal with the facts available — not invent them or suppress them. The student must do the case analysis keeping in mind the legal provisions like those of the Evidence Act. The result of the case analysis exercise would be the case theory. In any given case, there can be more than one case theory — the skill is to choose the best-case theory that is consistent with the law, and hovers around admitted facts so that the court is not required to disbelieve a credible witness or document of the other side, is reasonable, logical and ethical.
• At Step 2, the student puts everything in bullet points in one place that will go in the draft from the four lists created at Step 1. The student thus determines the content of the draft at Step 2, whether it is the factual matrix, practice directions or mandatory clauses or declarations prescribed by the applicable statute.
• At Step 3, the student will organise the content by placing it in separate paragraphs, chronologically. Each paragraph will deal with one idea, with sub-paragraphs dealing with different aspects of that idea. The student must number the paragraphs and sub-paragraphs.
• At Step 4, the student cross-checks that the content determined at Step 2 in bullet points has been slotted at the right place in the structure created at Step 3 and that the paragraphs hang together in the skeletal plan.
• It is then the student starts drafting at Step 5, one paragraph at a time. It is here that the student ensures proper grammar, tense, punctuation and so on, so forth. The student should not use legal jargon or slangs. The language should be simple. The sentences should be short — 8 to 10 words at best. The student can rearrange the sentences, splice them, join them, edit and re-edit.

• The client, a layperson, should be able to read and understand the draft. Since the draft has to be readable, the student should at Step 6 read out the draft aloud. If the student stumbles or the reading is disjointed, that means there is something in a paragraph that should not be there or belongs to some other paragraph. If the student has luxury of time, he or she should sleep over the draft and revisit the draft the next day — the student would want to make changes. Special care should be taken of the prayer clause — which should be self-contained and complete. If there are multiple prayers, each prayer must be self-contained and complete, and numbered separately. The student will of course have to adapt this method, which has been explained very simplistically, to the nature of the draft — whether it is a plaint or written statement, complaint, petition, evidence affidavit and so on so forth.

Drafting mediated settlement agreements requires additional skills. The language to be used here must be positive and non-judgmental, without any blame assessment. The student is expected to draft an agreement which is clear, concise, complete, concrete, and executable, and spelling out who will do what, when, where, how, how much, and for how long.

12. Is there any gap you would like to fill considering law schools as a whole?

Yes, of course. I believe that the entire curriculum in law schools should be revamped to include skill-based learning. More contemporary subjects should be included in the syllabus. There is a need to reinvent the way we teach law. But that is possible only if the faculty is first trained in modern teaching methods through faculty development programs. Unfortunately, I have seen students who have just done their masters start teaching without any formal teacher training being given to them. It is not even fair to expect them to deliver. The law schools must aim to produce law professionals, not mere law graduates.

13. Any advice you would like to give to the readers?

To the students and young lawyers, I would suggest — just follow your heart. If your circumstances permit, always do what you want to do, that in itself is a motivation. Focus on building your own capacity and skills so that you can soon become an independent legal professional. You can consider yourself to be successful when you can get up in the morning and say, well, this is what I want to do today, and be able to do just that.