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Lawless Lawyers

A new kind of justice has crept into the Bar in India. It is a form of mob justice in which those who earn their living by law and are pledged to uphold it have been pressurising their colleagues not to appear in cases where the assailants judge the accused guilty before trial and demand instant punishment by the court without allowing the accused their right to a fair trial.

CIVIL LIBERTIESEconomic & Political Weekly EPW october 4, 200813A G Noorani is a well-known lawyer, scholar and political commentator.Lawless LawyersA G NooraniA new kind of justice has crept into the Bar in India. It is a form of mob justice in which those who earn their living by law and are pledged to uphold it have been pressurising their colleagues not to appear in cases where the assailants judge the accused guilty before trial and demand instant punishment by the court without allowing the accused their right to a fair trial.This silence is deafening. That of the judges of the Supreme Court as well as of the leaders of the Bar; both, otherwise very quick to volunteer opinion. The Supreme Court has, in recent years, been unduly touchy about public criticism of the court and has stretched the law of contempt of court to limits accepted nowhere else. But a gross contempt is being committed under its very nose and it refuses to take any notice of it. The offence need not reach its portals in the form of a petition. Its prevalence itself suffices for censure and admonition from the bench.The same applies to the leaders of the Bar, neverTV camera shy or reluctant to pen articles providing instant comment based on slender research. That contempt threatens the very raison d’etre of the le-gal profession. It consists in pressurising lawyers not to appear in cases in which the assailants, moral or physical, pronounce the accused to be guilty – before trial – and demand instant punishment bythe court without allowing the accused his right to a fair trial. In short, mob justice replaces jus-tice according to the law. The mob consists of men who earn their breadby the law and are pledged to uphold it; lawyers.The disease has been spreading in the last few years. Specific instances are cited in an editorial in this journal on April 26, 2008 entitled ‘Accused, Presumed Guilty’. It noted that Lawyers who take up the cases of the ac-cused are seen as ‘anti-nationalists’ and Maharashtra Navnirman Sena chief Raj Thackeray had even ‘warned’ legal counsel not to take the briefs of the accused. Some of the well known criminal lawyers in Mumbai even announced that they would take up the cases only if they were satisfied of their inno-cence. This ‘accused, presumed to be guilty’ attitude of the security and police agencies towards the Muslims has spread to a larger section of Society.The Indian Express of May 3, 2008 carried a revealing report by Manish Sahu about a respected Lucknow lawyer, 56-year-old Mohammed Shoaib, who “faced a mob of lawyers at a Faizabad Court” because he was defending persons suspected of involvement in terrorist at-tacks. “His popularity among the terror accused increased after he demolished the police theory that Kolkata-based Aftab Alam Ansari was a Harkat-ul-Jehad-al- Is-lami terrorist”. He was released after spending 22 days in jail; a case of mistak-en identity the police cheerfully said.Bar associations pass resolutions forbid-ding their members from appearing for the defence. Their faith – and that of our TV channels who retail police versions – in the efficiency and integrity of the police is touching.The Milli Gazette, a Delhi fortnightly reported (September 1, 2008) how these moves created a communal divide. Mohammed Shoaib has been expelled from the Lucknow Bar Association:First, Hindu lawyers of Lucknow beat up and misbehaved with Muslim lawyers, advocates Mohammed Shoaib and M A Faridi who were pleading the cases of Muslim youths arrested on allegations of terrorism, and then the de-cision was taken to cancel the Lucknow Bar Association membership of the two plead-ers. As a result, when the court opened on August 20, after three days’ leave, much ten-sion prevailed as Hindu and Muslim plead-ers appeared divided, while everyone was discussing the thrashing of Muslim plead-ers. When the police staff came to advocates Mohammed Shoaib and M A Faridi to enquire about their well-being, Hindu lawyers mis-behaved with them too. Not only this, when the incident was reported to senior police officers, they only rebuked the policemen, saying what was the need to enquire about these lawyers.The rules entitled “Standards of Profes-sional Conduct and Etiquettee” framed under the Advocates Act are explicit on this point. Section I covers “Duty to the Client”. Its very first rule (Rule 11) reads: “An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case: Special circumstances may justify his refusal to accept a particular brief”. Rule 12 adds “An advocate shall not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client”. CIVIL LIBERTIES
CIVIL LIBERTIESoctober 4, 2008 EPW Economic & Political Weekly14Rule 11 is based on what is known in England as the “cab-rank” principle. The exceptions it mentions have been defined in standard books. No finer guide is avail-able than the much acclaimed work by Andrew Boon and Jennifer Levin (The Ethics and Conduct of Lawyers in England and Wales, Hart Publishing, Oxford). It covers a vast array of topics. They hold thatBarristers, as advocates, must accept a case unless they have a reason, which the Bar’s Code of Conduct recognises as valid, for not doing so. A separate rule obliges them to comply with the ‘cab-rank rule’, requiring that they accept any brief to appear before a court in which they profess to practise. The rule is so-called because they must also accept briefs in the order they arrive and, having accepted a brief, cannot withdraw from a case because a preferred case comes along except in specific circumstances and subject to specific requirements for return of the brief.Solicitors are not subject to a similar rule:The rational basis of the cab-rank rule is that it ensures that any solicitors’ firm can instruct any private practice barrister on be-half of any client, maximising equal access to justice.The Bar’s code saysA barrister who supplies advocacy services must not withhold those services (a) on the ground that the case is objectionable to him or any section of the public, (b) on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him or to any section of the public or on any ground relating to the source of financial support. …(Bar Code, para 601). Reasons for refusal would include being professionally embarrassed within the meaning of para 603 (including lack of experience, profes-sional commitments, conflict of interest), and are also provided for specific groups, like employed lawyers, in paras 604-606.The authors note thatThe cab-rank rule also provides formal pro-tection for advocates from identification with their clients in the minds of members of the public. Rather than offering convoluted justifications of how they can represent mur-derers and rapists, barristers can say that the professional rules require them to do so. This is perfectly consistent with the principle of presumed innocence before conviction.But the rule has a corollary which applies to lawyers holding forth beforeTV cameras on the lawns of the Supreme Court immediately after emerging from its portals, rather like the lawyers in the O J Simpson case. They must not comment on the cases in which they appear.Rule 11 consciously adopts the English “cab-rank” rule and not the American practice. The authors’ statement of the rules governing comment to the media is noteworthy:The dealings which a lawyer is entitled to have with the press is a reflection of their wider role. If it was seen as acceptable for lawyers to be aggressively partisan, law-yers could be forgiven for using the media to pursue their clients’ ends and, incidentally, to promote their own services. However, if lawyers are expected to retain their neutral-ity, or professional detachment, then being involved with the press in kind of public relations capacity would damage that role. The existence of some constraints on the way lawyers are expected to deal with the press suggest that detachment from clients is required. These may be seen as a remnant of the conservatism reflected in rules against advertising, or as a sensible attempt to pre-vent indiscreet or publicity seeking lawyers from bringing the profession and legal sys-tem into disrepute. Restraints might also be imposed in recognition of the substantial difference between what must be done for clients under the cloak of professionalism and the image of professionalism that should be presented to the public.Woolf said inHedgson vs Imperial Tobacco Ltd:The professionalism and the sense of duty of lawyers who conduct litigation of this na-ture should mean that the courts are able to relay on the legal advisers to exercise great self- restraint when making comments to the press, while at the same time recognising the need for the media to be properly informed of what is happening in the proceedings.Barristers are advised that they “must not express a personal opinion to the press or in any public statement on any anticipated or current proceedings or mediation in which they are or expect to be briefed”. They can express their client’s opinion or offer an explanation of the legal or factual issues involved inthe case which does not include a personal opinion.Relaxation of PrincipleThis represents a relaxation of the old position, which prohibited any comment at all on current cases on which barristers had been briefed. In England solicitors sometimes issue factual clarificatory state-ments; never barristers.The distinguished Q C David Pannick’s erudite work Advocates points out thatThe House of Lords recognised in 1969 that a central principle of advocacy is that ‘no counsel is entitled to refuse to act in a sphere in which he practises and on be-ing tendered a proper fee, for any person, however unpopular or even offiensive he or his opinions may be’. This ‘cab-rank rule’ requires a barrister to accept any brief to appear before a court in which he professes to practise, to accept any instructions and to act for any person on whose behalf he is briefed or instructed ‘irrespective of (i) the party on whose behalf he is briefed or in-structed, (ii) the nature of the case, and (iii) any belief or opinion which he may have formed as to the character, reputation, cause, conduct, guilt or innocence of that person’. It is the advocate’s duty, as Lord Irvince Q C has explained, ‘to appear for the Yorkshire Ripper or any other defend-ant against whom there may be a hostile climate of public opinion. In civil cases, it is also his duty to appear not only for a par-ticular interest group with which he might prefer to identify but for every interest group, for plaintiffs or insurers in personal injury cases, for employers of trade unions EPW on JSTORThe Economic and Political Weekly is now on JSTOR. Past issues of EPW from 1966 to 2002 are currently loaded on JSTOR archives. Institutions with access to JSTOR can read and download all EPW articles from 1966 onwards at these archives. EPW issues will be available on JSTOR with a moving wall of five years.Readers can visit http://www.jstor.org/action/showPublication?journalCode=econpoliweek for more information.Please note: While access to EPW on JSTOR archives are available only to participating institutions, EPW has been working to digitise its issues going back first to 1966 and ultimately to 1949 (Economic Weekly). The first batch of an expanded archives will be available on the EPW site from January 2009. These will cover 1989 to the latest issue, and by April 2009 they should extend up to January 1949. These archives will be available to all subscribers of EPW.
COMMENTARYEconomic & Political Weekly EPW october 4, 200815in labour law cases, for the citizen or the state in judicial review cases’.Incidentally Pannick deprecates the practice of counsel giving “a radio inter-view to explain and justify the submis-sions he has been making in Court”.The “cab-rank” rule was written into the Courts and Legal Services Act, 1990. Our Rule 11 also has statutory force. Lord Ackner calls it “a point of constitutional importance” for good reason. Civil liber-ties are tested in unpopular causes. Law-yers who defend the unpopular ones in court perform a vital role in the admini-stration of justice.Easily the finest statement of the dutiesof counsel was made by Thomas Erskine in his celebrated defence of Tom Paine when he was tried in 1792 for a seditious libel: I will forever, at all hazards, assert the dignity, independence, and integrity of the English Bar, without which impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liber-ties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the judge, nay, he assumes it be-fore the hour of judgment; and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favour the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel (Howell’s State Trials, 1816, Vol XII, p 411).Mushirul Hasan, vice chancellor of Jamia Millia University, has, by deciding to provide legal aid to two students of the university who have been arrested for al-leged acts of terrorism, acted in this fine tradition. He has additionally discharged his duty as paterfamilias towards his stu-dents. It does not lie in the mouth of the Bharatiya Janata Party to criticise his de-cision, considering that L K Advani and other leaders of the BJP were found prima facie guilty of the destruction of the Babri masjid in 1992 by a magristrate and a sessions judge. Mushirul Hasan deserves our support for his decision.Right to Recall Legislators: The Chhattisgarh ExperimentVinod BhanuThe recall election in June in three municipal bodies in Chhattisgarh marked a national first in the call to accountability of non-performing representatives of the people. However, it is possible to use this provision to settle political scores as has been alleged in the Chhattisgarh case. Loopholes for such abuse need to be removed to make the right to recall a democratic tool that will ensure accountability.The electorate’s right to recall legis-lators is one means of ensuring the latter’s accountability towards the people. It is the citizens’ prerogative to determine whether an errant or non-performing representative should continue in office for a full term or not, since their poor performance is at the cost of the public exchequer.The damage to democratic institutions by elected representatives should be checked through democratic means. Indeed, the right to recall legislators can be a wake-up call to our representatives in the legislative bodies. Though there were some earlier attempts at recall in local urban bodies in Madhya Pradesh and Maharashtra, the recall election held on June 15 in Chhattisgarh marked a national first with the successful recall, of three presidents of local urban bodies. The posts of these three presidents therefore fell vacant, and fresh polls are to be held within six months. The verdicts of this election should redeem the trust of the electorate, and restore faith in a legislative system which is continually perceived to be declining in status and efficiency.In India, provision for recall of legisla-tors does not exist anywhere other than in Chhattisgarh and Madhya Pradesh. Section 47 (recall of president) of the Chhattisgarh Nagar Palika Act, 1961, pro-vides for the holding of elections to recall elected presidents for non-performance. The process of recall starts when three-quarters of the total number of elected representatives within the urban bodies (corporators/councillors) write to the dis-trict collector and demand recall. After verifying the circumstances, the district collector can report to the state govern-ment. Once the report has been considered, the state government can recommend that the state election commission conduct an election to recall the presidents. The right to recall legislators is a direct democratic method for removing an elected representative from office for his/her non-performance or misuse of the posi-tion. It must be noted that the panchayat raj acts aimed to establish a system of direct democracy by increasing decentra-lisation and empowering village legisla-tive bodies for development of villages. Initiative, referendum, and recall are the most common tools of direct demo-cracy; however, these instruments are noticeable by their absence in the panchayat raj systems. It is only when we start putting into practice these mechanisms, as demonstrated by the recall polls in Chhattisgarh, that we can institutionalise direct democracy and Vinod Bhanu (vinudirect@gmail.com) is with the Centre for Legislative Research and Advocacy, New Delhi.

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