Kathua lawyers have no business defending rape accused outside court

When lawyers of the Lahore High Court showered rose petals on Mumtaz Quadri, the assassin of Pakistani politician Salman Taseer, we in India looked on in horror. This time, let us not give them a chance to say, “Tum bilkul hum jaisey nikley….”.

Written by Sanjay R Hegde | Published: April 15, 2018 9:30:16 am

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Lawyers in Kathua tried to stop filing of chargesheet.

I have defended in court, those who were accused of rape and murder. I have appeared, seeking bail for godmen accused of rape. I was asked by the Supreme Court to assist as Amicus Curiae in the appeals filed by the death row convicts in the Nirbhaya case. Defending the despicable in court is part of the sacred creed of the duly appointed lawyer.

I have also been a prosecutor at the Supreme Court stage, where I have secured death sentences in some cases. My nearly three decades in court tell me that there is no such thing as an open and shut case. Thus, a lawyer in court, is bound to do the best he can for his client, within the confines of his case and in strict adherence to the codes of the profession.

Very often, those accused of heinous crimes do not get decent representation because the local bar associations pass resolutions that prevent any lawyer from appearing for the accused.The lawyers in the Saket district court in South Delhi in the early days of the Nirbhaya trial passed such resolutions, as did lawyers in Mumbai, during the initial arraignments in the trial of the lone Pakistani gunman caught in the Mumbai attacks, Ajmal Kasab. These boycotts have been condemned by me and others, as destructive of the rule of law, which requires even the most despised criminal to be given due process.

The law in this respect was correctly stated by Thomas Erskine in 1792, when he accepted the brief to defend Thomas Paine who was being prosecuted for the book, ‘The Rights of Man.’ Erskine said “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 practice, from that moment the liberties of England are at an end.”

The Bar Council of India, has formulated standards of Professional Conduct and Etiquette in this regard, which read as under:

– An advocate is bound to accept any brief in the Courts or Tribunals before any other authority in or before which he professes to practice 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.

– It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.

– Every advocate shall in the practice of the profession of law bear in mind that anyone genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society.

Despite my articulation of the lawyer’s dharma of defence, I find myself unable to support the behaviour of lawyers in the Jammu & Kashmir town of Kathua. The gruesome rape and murder of an eight year old girl in the town has made a lot of people recoil in disgust. But what has truly shocked people is the unprecedented support that the local lawyers of the Kathua bar have given to those accused of rape and murder.

Investigators were physically prevented from filing a chargesheet against the accused and a public agitation of lawyers was carried to the streets, demanding a change of investigators. The fact that men of law can physically and violently obstruct the rule of law, to protect those accused of child rape and murder, is a new low. There is nothing called a patriotic or religious reason for child rape and murder. Lawyers will be required to defend vigorously the accused within the confines of a courtroom. However, outside court, a lawyer has no business in street protests and agitations that paralyse the functioning of courts, especially in order to put pressure on the outcome of a criminal trial.

I am aware that many of my professional brethren have gone on strike despite judgment after judgment of the Supreme Court holding that lawyers cannot go on strike. Some causes do seem just, but striking is not an option. Lawyers are correctly enraged, by a government that simply refuses to appoint new judges, when previous incumbents retire. Some lawyers have gone on strike in this regard. There have also been instances, where police High handedness has resulted in lawyers striking work, till the errant policemen were suspended.

Lawyers have traditionally been thought leaders, influencers of opinion and many a lawyer of modest courtroom success, has scaled great political heights. While the freedom struggle in India and Pakistan were led by men of law, it is worth recounting even today that Lalu Prasad Yadav, Mayawati and Siddaramaiah are all qualified lawyers. Given this intersect between law and politics, it is hardly surprising that many a case has its political angle as well. The Kathua case may well have its own political angles. But no politics justifies lawyers impeding the course of justice.

Some years ago, the lawyers of the Lahore High Court, showered rose petals on Mumtaz Quadri, the assassin of Pakistani politician Salman Taseer. We in India looked on in horror at that behaviour of the Pakistani lawyers. This time, let us not give them a chance to say, “Tum bilkul hum jaisey nikley….”.

Sanjay R Hegde is a senior advocate in the Supreme Court and tweets @sanjayuvacha.

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