Noted Criminal lawyer Majeed Memon in conversation with Rtn. Zulfiquar Memon on five decades of evolution in criminal law practice, challenges, and rewards.
Rtn. Zulfiquar Memon: It’s an absolute honour and a privilege to be here this afternoon. I must thank the Rotary President Satyan, Rtn. Rhea, and everybody for putting me in a position that I’ve been waiting for, for about 46 years, to ask him questions. So, I’m going to try and behave myself because I have to go back home. So, Mr. Memon, how are you feeling today?
Mr. Majeed Memon: Good afternoon, Namaskar, and hearty greetings on this occasion of Dhanteras. Happy Diwali to all of you, and especially to those Rotarians whose birthdays fall in the next couple of weeks.
It is indeed a privilege for me to be amongst the elite of South Mumbai, because I consider each Rotarian an enlightened citizen who is concerned about the things around him: the administration, the rights, and the privileges of every individual citizen. I must thank the organisers for giving me this opportunity to have a brief discussion with you. In fact, I was also invited earlier, and I have spoken in the past to the Rotarians in South Mumbai at the Taj. So today I am here to address you regarding my own experience and the things happening around us and how best we can live a happy, contented, and dignified life as guaranteed under the Constitution of India.
Thank you. So, let’s get started. Just a little about your childhood, Mr. Memon. You began your education at Anjuman-I-Islam, an Urdu-medium school, and then attended Government Law College, working while studying. Could you shed some light on your childhood, upbringing, and early stages?
It’s a long, long story. It’s now almost half a century that I have spent around and inside the court halls and among the legal and judicial fraternity. I have a lot of experience to share with you, but time is limited. Regarding my education, I received schooling in the vernacular Urdu language. When I entered college, everyone thought that someone coming from a non-English medium school would find it difficult to immediately switch and study all subjects in English. But I, incidentally, did not feel that way. It was a god-given gift that I had command of the language from the beginning of my career. I’ll just share with you that when I was in my first year of Arts, I told my professor, “Why wait for six years, six long years, and waste life? Let me appear directly for the MA examination, and I’m sure I’ll pass.” The professor laughed and told me, “It’s not possible, Mr. Memon, because there is an academic rule: you have to go through Inter Arts and then graduation before MA.” Well, that was just in passing. I used to teach my classmates and was far ahead of them. Those were the old days.
When I entered the profession, it was a significant turning point in my life. I had a strong desire to be a lawyer because I saw how top lawyers contributed to Indian society and how this profession could serve society. Fifty long years at the bar have granted me the privilege of commanding the language. I must tell everyone here, particularly practising or aspiring lawyers, that the greatest quality in a lawyer is their manner of expression. Mastering the language in which you are expected to address and seek justice is essential. Over the years, I have observed that judges can be influenced by how a case is presented. You may have a case with weak facts or law, but your presentation contributes significantly.
One example I will share, if you permit me, is that there used to be accusations that I “hypnotised” the judges. In one case, I’ll tell you that whenever I addressed the court, it was full of lawyers, juniors, and even court staff members, all eager to hear me speak. When I opened my submissions, I would get so immersed that I could not stop, flowing in a way that left no room for interruption. I noticed that the learned judge would often just stare, maintaining eye contact, mirroring my own engrossed state. My juniors and assistants, who helped me prepare my briefs, often told me, “Sir, whenever you argue, if the court orders immediately, it’s bound to be in your favour. But if it’s reserved, the impact lessens. If the order comes after two or three days, it may or may not be in your favour. But an instant order reflects that the judge could not deny what you asked for.”
One such case, I was arguing a bail application for a difficult case. In those days, we did not have all these facilities like iPads, mobiles, and such. I’m talking of the ’80s and ’90s. So, we used to carry law books; the whole bag of law books used to be there, and then make submissions. The learned judge would also open the book and go through it. When I made my submissions for almost an hour, the whole court was pin-drop silent, and nobody moved from their place. The whole court was back. And as I finished my submission, the court called the stenographer and said, “For reasons separately recorded, the accused is to be released on bail, on such terms, et cetera, et cetera.” There was a big noise in the court, and everybody jumped up and said, “Sir, brilliant, brilliant!” This happened even in the case of Sanjay Dutt, but here I’m talking about some other cases. We left, and the client’s relatives were very keen, saying, “Sir, sir, our man will come out from Arthur Road Jail now.”
I said, “No, it is too late now because it was almost 4.30 or so in the evening. Next morning, your man will be released; have patience for one more night.” We had to wait because the judge had to dictate the order, sign it, etc. We all went home.
The next morning, I sent my junior to collect the copy of the operative part of the order for release. The stenographer, the PA of the learned judge, said, “The judge will come now, and there are many papers to be signed. I’ll keep your paper at the top to save time, and then I’ll give it immediately so you can rush to Arthur Road Jail and release your man.” The stenographer told my junior, “I want to ask you something.” He said, “All right, ask me.” After five minutes, the paper was signed and given to him. The stenographer said, “I want to ask one confidential question.” My junior said, “What is that confidential question? Everything was in open court, and it went off so well. The hearing was very impactful.” He replied, “No, no, no, I’m going to ask whether Mr. Memon knows hypnotism.” My junior asked, “Why are you asking this?” The stenographer replied, “I’m asking because yesterday, in the presence of everybody, he pronounced the operative part of the order that the man is to be released. And this morning, after I typed and kept it for his signature, he called me and asked if he had released him. That shows that probably yesterday, when he passed the order, he was not in his senses.”
Now, this was one instance. But anyway, generally, I must tell you that the legal profession is perhaps the best profession in a civil society governed by the rule of law. In civil society, if you permit me, I’ll just elaborate: a country’s civilisation can best be measured by the effectiveness with which its criminal justice system functions. The Constitution of India, under Article 21 — just a one-line Article — captures the spirit of the whole Constitution. We have the privilege of having the longest written Constitution in the world, which has been functioning for almost 75 years. It has been elaborated by various decisions, expanding on every word from each Article.
But I am only talking about, due to the paucity of time, Article 21, which states in one line, “No person shall be deprived of his life and personal liberty except by a procedure established by law,” which has to be fair. Now, this right to life has been elaborated by a series of decisions over the last half-century, which hold that the right to life does not mean mere existence. It is not that you are biologically alive, breathing, and therefore enjoying the right to life — no. A civil society governed by the rule of law, like ours, would mean that the right to life includes the right to live happily, with a sense of security and dignity. Now, all these qualities — living in dignity, living happily, and living with a sense of security, without fear — constitute the true enjoyment of life. That is Article 21.
The question, therefore, arises that every person in our society, whether rich or poor, privileged socialite or someone confined to a humble hut, every citizen of this country where this Constitution operates has to be assured that they are living without fear, with dignity, and happily. It is the duty of the state. Unfortunately, it doesn’t happen, and people are not conscious of their rights. “What is my right to liberty? If I’m not living with a sense of dignity, if I’m living with fear, then my right under Article 21 is violated,” which is the spirit of the Constitution. Therefore, you see, liberty lies in the hearts of men and women. When it dies there, no Constitution, no law, no court can save it. No Constitution, no law, no court can do much about it. You have to, within yourself, seek the sense of liberty and its importance. This applies to everyone — downtrodden, beggars, unemployed, helpless, poorest. Every individual enjoys this constitutional assurance, which unfortunately is not widely felt or implemented. Neither the state cares, nor do individuals themselves seem concerned about it. Somehow, they are merely living to earn two square meals a day, just existing. That is not the privilege of a civil society. Our privilege is to enjoy our right under Article 21.
Thank you, thank you. Very moving, but absolute truth and fact. So, I wanted to ask you: you’ve been in the courts for about 51 years now, and more particularly, I wanted to understand how you have seen the shift in mindset within the judiciary over the years?
You see, I am a witness to this, and I have very closely observed the change. Of course, society changes. Fifty years is a long time — half a century. A progressive society must certainly advance, stepping upwards and improving over time. Now, the best Constitution in the world is one that is neither too rigid nor too flexible. We have a Constitution that is rigid where necessary and flexible where required, as society’s needs change over time. You see, what may be relevant today may not have been relevant 50 years ago. Therefore, with the changing needs of society, laws need to be revised accordingly. And thus, at times, the Constitution requires amendments because what was needed in the 1950s may not be a priority in 2024.
The change I have seen, however, is unfortunate. I am sorry to share this with you, but the decorum of the court, the dignity, and the sense of respect held by litigants and lawyers 50 years ago has certainly diminished. The quality of judges and the quality of justice, rather than improving, has notably declined. One instance I recall is when a lawyer was addressing the court. He took the liberty of not dressing properly — this was in the 21st century. He was not properly dressed, his behaviour was inappropriate, and his language was equally improper. The learned judge, after tolerating this for a few minutes, said, “Mr. Counsel, don’t behave in an unparliamentary way.” Immediately, the lawyer retorted, “Sir, I must behave in an unparliamentary way. If I behaved in a parliamentary way, I’d throw shoes at you, throw papers at you. That’s how our Parliaments are functioning now. I am not throwing chairs or behaving violently, so please don’t tell me not to behave in an unparliamentary way. I’m all right.” This is the unfortunate state of our courts today.
The calibre of judges, I am sorry to say, has also declined. I have had the experience of appearing before the highest court of the land and the lowest magistracy courts in the districts and other places. The quality of judges, for various reasons, has declined considerably. The process of appointment, the criteria for selecting judges, and nepotism within the judicial appointment process — from the lower courts up to the High Court and Supreme Court — have allowed influence to play a significant role. Critics point out that if you look at the Supreme Court list of judges, you’ll see how many from the same families have held positions over the last 50 years. Naturally, there are several reasons for this decline in the quality of judges and, consequently, the quality of justice. We have encountered cases where the judges write in such poor English that appellate courts struggle to understand their judgements. This is deeply unfortunate, and there is a pressing need to address this issue.
Fortunately, while I was in Parliament for six years, they valued my contributions and saw fit to appoint me to the Parliamentary Standing Committee for Law and Justice for five of those years. During that time, I proposed several reforms and changes to the system.
For example, if prisons are overflowing with people awaiting justice, it is a failure of the justice system. I had the privilege of knowing Justice V. R. Krishna Iyer, one of the giants of the Supreme Court over the past 75 years. For liberty, he was unmatched. I was close to him, and I learned a great deal from him. In my 50-year career, my association with him spanned two to three decades, during which I gained profound insights into criminal law that perhaps no law institution could have taught as much as I learned from him.
Today, there is a need for better-quality lawyers — lawyers who study their cases thoroughly, who are dedicated to their cause. As we say, a successful lawyer must possess three essential qualities, often referred to as the three “I”s.
The first “I” is industry. One must work hard; don’t take it for granted. “I’m a big lawyer, so I don’t need to read my brief” is not acceptable. Hard work, thorough reading, proper case preparation, and application of the correct laws — that is industry.
The second “I” is intelligence. Use your intelligence and strive to raise your IQ. I was so keen from my student days that I would visit railway station bookstalls asking if they had the latest IQ books. I would bring these books home and study them thoroughly to improve my intelligence.
The third, and most important, “I” is integrity. Never compromise your integrity. Do not be swayed by any tempting offers. Be honest to your cause and to your client; only then can you succeed as a lawyer.
Lawyers today require refresher courses to understand their roles and conduct. They must know what is appropriate and what is not, to gain the trust not only of clients but also of the judge from whom they seek justice. Lawyers should conduct themselves as examples for their colleagues; only then does success come. Success is not achieved by mere chance.
If a lawyer possesses these three qualities, they may raise the standard of their work. Lawyers are the torchbearers of justice, the pillars supporting judges in delivering justice. Without the contributions of lawyers, judges would be limited in fulfilling their duties.
Therefore, in answer to what you’ve asked me, over the last 50 years, there has been a marked decline in the judicial system. People no longer hold the same respect for judges and the law as they did 50 years ago. I remember when I was a young lawyer, just starting my career — I was scared to enter the courtroom. I would be mindful of how I walked, how I sat, how I addressed the judge, and ensuring I didn’t offend them. Today, lawyers arrive without uniform, stand up to speak without decorum, and many other unfortunate things happen. Thus, the entire system has suffered; people have lost significant faith in the judicial system. People now think, “Why go to court? Let’s sort it out on the streets, in our drawing rooms.” This is a decline in people’s faith in the judiciary and its credibility.
Thank you. I think the point you made about the three I’s — industry, intelligence, and integrity — is one that most of us would agree is applicable across all industries, not only law. These qualities are universal across every business, every industry, and, of course, especially important for lawyers. Mr. Memon, I want to speak a little more about the transition in the judicial mindset. I want to address that because my question here concerns the importance of social media, transparency, and extra scrutiny. Today, everything is out in the open; every word you utter is either misrepresented or twisted on Twitter. So, do you think the change in the mindset of judges and the decorum within the judiciary could be due to these overtly scrutinising conditions we face on social media? Do you think that could be the reason?
In this context, I may remind you that, very recently, the Honourable Chief Justice of India publicly stated twice on different occasions, while addressing gatherings, that judges at lower levels are now scared to grant bail. This was a very shocking statement. If one analyses it, one might ask: what does he mean? I can share my understanding with you. The Supreme Court is not a court for granting bail; it is a constitutional bench that tests and interprets laws and, where necessary, advises changes to the executive or parliament when laws conflict with constitutional values. However, the Chief Justice laments that the Supreme Court is currently inundated with anticipatory bail applications and bail applications. Why are so many applications coming before us? That is not our primary function, and it diverts us from more important work, leaving us unable to attend to the nation’s true constitutional priorities. He believes that lower court judges are slow to grant bail and are not applying bail jurisprudence as they should. As a result, cases proceed from district courts to the High Court and then from the High Court to the Supreme Court, with numerous bail applications along the way.
Similarly, his predecessor, Justice Ramana, made some public statements, saying that recent laws passed in the last 10 to 15 years are not of the quality our country needs. Laws are passed in Parliament by virtue of numerical strength without adequate wisdom, debate, or review by committees, nor by gathering expert views on proposed legal provisions. Consequently, our time is taken up by challenges brought through Public Interest Litigation (PIL), leaving little time to fulfil our primary duties. When consecutive Chief Justices express such grievances, it suggests something serious is happening, and those who care about this country’s welfare must examine where the problem lies and consider the necessary remedies. As you have asked me, judges should not need to be fearful.
Unfortunately, neither state governments nor the central government grant the judiciary the value or importance that it deserves. For example, the ratio of High Court judges to the population is dismally low in comparison to developed countries like the United States or the United Kingdom. From my experience, a criminal case in London, UK, might be resolved in a matter of weeks, whereas in our country, despite the establishment of fast-track courts, cases still languish for decades. It is tragic that an innocent person accused of a serious crime can suffer the stigma of that accusation, even if later found not guilty. Imagine a person charged with rape or robbery, who has not committed the crime, waiting years for a verdict. Even if released on bail, they endure the social stigma and emotional torment for as long as the case is pending. Their children may face criticism at school; marriage prospects are affected; numerous civil and social impediments arise. Such individuals endure injustice every day their cases are unresolved. If they are denied bail, the situation worsens. They may remain imprisoned for years, only to have the learned judge declare them not guilty after 10 or 15 years. Is that justice? That is not justice at all.
Thus, speedy justice is a commandment of the Constitution. Inexpensive and timely justice for the poorest in this country remains unfulfilled. A long road lies ahead, and we await a great leader who will bring about meaningful change. Much remains to be done to improve the justice system.
Thank you. I agree with your point. I think most of us here agree with your point. But, to be fair to the judges and taking a cue from what you just said about granting bail, the only issue is that the crime scene and the intensity of crime have also increased over recent years. Heinous crimes, such as rape and murder, like what happened with Nirbhaya, along with financial frauds, have reached astonishing numbers. So, in these cases, judges may feel compelled to exercise restraint before granting bail. While there is certainly some collateral damage, we must consider that we are in a society where crimes are increasingly complex, with cyber crimes, cyber fraud, and many other factors at play. It may not be easy for judges to adopt a “bail-centric” approach. I know that you have always advocated that bail should be the rule and jail the exception, but if you put yourself in the position of lower-ranking judges, it becomes quite challenging.
Allow me to explain. It is true that crime rates are also rising, and while society may aim to be crime-free, nowhere in the world exists such a place. The success of the criminal justice system can be measured by examining the country’s prisons. How many under-trial prisoners are inside the prisons, and for how long? As a committee member, we visited various prisons across the country — in Rajasthan, in Goa, in Mumbai, and elsewhere — and we found that our prisons are overflowing. Prisons are small, the number of crimes is growing, and the population inside the prisons is large; prisoners don’t even have enough space to spread their feet or live in a healthy environment. These are all complex issues.
But let me tell you, if crime rates are rising, what is the root cause? I’ll just enumerate a few reasons. One fundamental reason is the dishonesty, corruption, ignorance, and lack of accountability among those connected with the criminal justice process — from the point at which an offence is committed, to its investigation, trial, and punishment. How reformative is the punishment? There are many factors involved. It would take hours to cover them all, but I’ll summarise by saying this: corruption is a key factor.
An ideal society is one where law-abiding citizens have no fear. They live happily, satisfactorily, and contentedly. Such citizens, following their jobs, being honest to their faith, country, and society, should have no reason to fear. But that is not happening here. Honest people who strictly follow the law are often fearful of being falsely accused or trapped. Meanwhile, those who engage in crime, who are seasoned offenders, are not afraid of the law. This is because they have friends in the police, the court staff, and elsewhere who can protect them when they commit a crime. This is due to corruption.
If we can address this, law-abiding citizens will live happily and fearlessly, whether in Dubai, London, or here.
Honest, law-abiding people, who even use the zebra crossing while crossing the road, have no fear in societies where they don’t expect false accusations. Here, however, false accusations far outnumber cases involving true offenders. If you survey the past 10 to 15 years, you’ll find a trend. The prosecution often faces criticism from political leaders due to the poor conviction rate. This is not because there’s something wrong with the law or the justice system. The conviction rate is poor because the wrong individuals are prosecuted, investigations are not conducted honestly, and evidence is not presented truthfully.
Why are witnesses turning hostile in court? I encountered a case where, out of 67 witnesses examined by the prosecution, 63 turned hostile. This is a mockery of justice. If even one witness turns hostile, it is a serious issue. In London, a case I recall involved a sole witness who was in love with the accused. When told that changing her statement would free him, she replied that, though she loved him, she was bound to uphold the truth. This spirit is missing here in India. In murder cases, for instance, witnesses are brought to lawyers’ offices to claim that the statements attributed to them by the police are false. Why do such things happen? If witnesses turn hostile in court, the guilty often go free. These are some of the critical issues that must be addressed for a better system.
We must work towards a day when criminals are genuinely afraid of the law, when criminals hesitate to face a policeman. Today, criminals drink alongside policemen, and policemen have their own offices within police stations and prisons. This is corruption. We must slowly but steadily move towards a healthy society, one with a better criminal justice system.
ROTARIANS ASK
You mentioned corruption, and that is the fear. Today, the lawmakers are the lawbreakers. What do we do then? Do we get rid of the government? Where do the lawmakers come from? They come from us. We give them the power; we vote for them, and we give them the power. So, should we get rid of the government? That seems to be the only option, then.
You see, even in the case of judges, people say, “Sir, we have poor-quality judges.” Then someone rightly said, “You get the type of judge you deserve; you get the quality of lawmakers whom you choose yourself.” Now, with the upcoming Assembly elections, you know how things stand. Can you contest the election? You cannot. Can he contest the election? He cannot, because you need 20 to 25 crore rupees. From where would you get it? Without spending money, you can’t get elected.
So, corrupt people join the government, and thus, the lawmakers are the lawbreakers.
No, unfortunately, I cannot win an election; I cannot contest elections; I cannot win. It was due to the party’s goodwill that I was sent to the Rajya Sabha, where there was no election, and I was elected by the MLAs. But you see, we need to fight corruption vigorously, starting from the bottom and working our way up to the top.
Taking a cue from Roda’s question, then, why shouldn’t we have a jury system? Let the people decide.
Thank you. You see, the British legal system also had a jury, but they did away with it. In the US, of course, the jury system still prevails. It’s a matter of convenience in administering justice. But I think, in our country, it is not desirable to return to the jury system. A judge is qualified and equipped with all the legal knowledge, facts, etc., to deliver justice. Therefore, I think a jury would only be confused if we reverted to a jury system. Thank you.
With the advent of emerging technologies and AI in this digital age, especially cybercrime, I would add that the fourth “I” — that is, Information Technology — is becoming extremely significant. So where do you see the classic legal battles of the future being fought, and how do you see them being fought?
No, no, what you’ve asked is very important. In fact, with the advancement of technology, I remember in our times when we had to cite judgments of the Supreme Court, we didn’t even have a photocopying facility. So, our juniors used to carry bags of books and two copies of one volume — one to give to the judge, and one to refer to ourselves. Today, all one needs is a simple iPad; there’s no need to carry anything. Even Supreme Court lawyers now just carry an iPad. Judges open their computers, and hearings are conducted online. With such technological progress, many positive societal outcomes are possible. But, it also has its negative aspects. Those who commit crimes, plan crimes, or conspire to commit crimes are also using this technology. Even with a mobile phone, it’s easy for a criminal — a gangster, say, in Australia, New Zealand, or another country — to instruct someone here, who then carries out the instructions and commits the crime. So, it works both ways. But if technology is beneficial, we must ensure it’s used for good, and its negative aspects need to be curbed by the administration’s efforts.
Looking back at your career, is there a case that significantly influenced your perspective on criminal law, and if so, how did it shape your practice?
Now, as we all know, recently, the three key laws related to criminal justice — the Indian Penal Code, Criminal Procedure Code, and the Indian Evidence Act — have been completely revamped and substituted with new sets of laws. The effects of these new laws will be seen only over time, as these apply to offences committed on or after the day they came into force. Currently, our courts are dealing with offences that were committed far earlier, 10, 15, or even 20 years ago, which are still pending. So, the courts will have to apply the old laws, not the present ones, because criminal law cannot have a retrospective effect. These new laws will only apply to cases that have arisen since they were enacted.