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Raising the Bar on Fake Encounters
WSN Bureau
 India's
leading Supreme Court advocate and one of the country's top legal
luminaries Soli J. Sorabjee this week strongly defended his
colleague Ram Jethmalani for having defended the accused in the
Indira Gandhi's murder case and said Jethmalani acted in the highest
traditions of the legal profession.
Sorabjee, who recently wrote in a leading English language Indian
daily, a short piece in the backdrop of many lawyers' groups and Bar
Associations repeatedly giving a call to colleagues not to take up
cases of suspected militants, seemed pained at the development. That
lawyers in India were taking such steps even while being aware that
a majority of the cases later turn out to be forged and faked by
none other than the Indian law enforcement agencies was all the more
reason that Sorabjee's article should be pondered over.
The
Bar Associations of Jammu & Kashmir High Court and Allahabad High
Court have asked the lawyers not to appear and defend suspected
militants and terrorists. Sorabjee termed this as "utterly
unprofessional and also unethical." Interestingly, Sorabjee's
article came within days of the release of the Bhai Harpal Singh
Cheema who was also incarcerated on a false charge which fell
through in the court.
Sorabjee underlined that every accused person, whatever may be the
nature and gravity of the accusation, has a constitutional right to
legal representation. "The presumption of innocence is a fundamental
feature of every civilised criminal justice system, including ours.
It must always be remembered that when an advocate pleads for the
acquittal of his client, it is on the ground that the charges
against him do not fulfil the statutory ingredients of the offence
and that in any event the evidence on record falls short of
establishing his guilt. The personal conviction of the advocate
about his client’s innocence is irrelevant. Indeed, it is improper
for an advocate to state his personal belief to the court," he
wrote.
Indian lawyers who are trying to be more loyal to the Indian state
than even the paid and corrupt police force, are forgetting that an
advocate is briefed to argue and not to act as a judge. Therefore,
he should urge all points of law and fact which the accused would do
in his defence if he were equipped with the requisite knowledge and
skill. An
 advocate
may refuse a brief if he finds himself in a position of conflict of
interest or for domestic reasons. But an advocate by reason of his
high calling and profession cannot refuse a brief because public
opinion is hostile to his client or because the advocate would
become unpopular if he defends the accused, incur the displeasure of
the powers that be, and be visited with adverse consequences.
"An
advocate who refuses to appear for detenus or suspected terrorists
for these considerations is a coward and betrays the independence
and high traditions of the Bar," Sorabjee wrote without mincing any
words.
Sorabjee
in fact recalled the words of Thomas Paine, author of the
controversial Right of Man, who was charged with serious criminal
offences for his vehement attacks on the constitution and the
government of England. Thomas Erskine, a lawyer of outstanding
ability and integrity, was retained by Paine. Erskine was publicly
reviled for defending Paine. Erskine justified his conduct in these
memorable words: “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... 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 before 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.”
See
how Sorabee brings his anecdote to bear on those who had castigated
Ram Jethmalani: "Ram Jethmalani acted in the Erskine tradition when
he appeared for the murderers of Indira Gandhi and refused to return
the brief despite pressure from some political parties and high
personages."
Will the Indian lawyers, well aware of the reality of fake
encounters and state terrorism, heed Sorabjee's advice and resist
popular prejudice and hysteria which often makes them act contrary
to the traditions of the bar?
12 December, 2007
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