Lawyers: India
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How a few tar a profession
Delhi: 1988 case dissuades police from action against lawless lawyers
The Times of India, Feb 19 2016
Abhinav Garg
1988 case no excuse for police inaction on lawless lawyers
Observers familiar with Delhi Police's functioning and track record say the force has been wary of handling lawyers' agitations ever since a series of controversial incidents unfolded at Tis Hazari some three decades ago. Trouble began after the police handcuffed a lawyer accused of theft and produced him at a Tis Hazari court. Angry lawyers went on strike and barged into the office of then DCP North -India's first woman IPS officer Kiran Bedi. The police struck back with a massive lathicharge that left several lawyers injured. The police later justified their action saying they took recourse to resolute action to break the advocates' strike and prevent lawlessness in the court complex.
A probe headed by Justice D P Wadhwa differed. Indicting Bedi and other senior police officers of “grave irregularities“, the Wadhwa inquiry faulted the IPS officer for “indiscriminate and un justified“ use of force. Soon, heads rolled, including that of Bedi's who the government shunted out.
Eminent lawyer K K Venugopal represented the Delhi Bar Association in its fight against the police during the legal proceedings that followed. But speaking on the Patiala House outrage, the senior SC lawyer wasn't willing to buy the argument that the 1988 case should hold back the Delhi Police. This, he said, was just an “excuse“ to justify the department's failures.
“They aren't prepared to take action against an MLA indulging in violence. They can allow students and media representatives to be beaten up by lawyers? It is only an excuse that the Tis Hazari incident deterred them. If a police force is posted in a court complex its job is to ensure law and order and rule of law. Who else will you find in court if not lawyers? It is a strange defence,“ the Constitutional expert countered.
His views were shared by others. Senior advocate Dayan Krishnan, who was Special Public Prosecutor for Delhi Police in the Nirbhaya and Nitish Katara cases, too rubbished the excuse. Having briefly been the police's standing counsel in high court, Krishnan is familiar with their functioning. He too refused to accept that police are wary of acting against the errant lawyers.
“Even after the 1988 incident, the police lathicharged lawyers in 2002-03 when a group marched to Parliament. It appears in Patiala House they received instructions not to take any action against those indulging in violence. I don't think Delhi Police is scared to deal with lumpen elements but freedom to act has not been given. Problem is such elements bring a bad name to our entire profession,“ he said.
UP: lawyers strike work for over 100 days a year
State Has 51L Cases Pending In Trial Courts
Even if the strength of judicial officers were to increase from the present 18,000 to 70,000 on CJI T S Thakur's impassioned plea, the staggering pendency of over two crore cases may not be cleared in a hurry , thanks to frequent disruption of work in trial courts due to strikes by lawyers.
Uttar Pradesh has 51 lakh cases pending in trial courts, which accounts for over 25% of total pendency in all states taken together. A ground zero report given to Allahabad high court listed 10 districts where lawyers disrupted trial court work for more than 100 days on an average, every year for the last five years. Even if the number of trial court judges were increased substantially, how would they deal with how would they deal with pendency unless permitted to work by the advocates' associations, asks law commission chairman Justice B S Chauhan.
The report about the working of trial courts in Uttar Pradesh recorded the number of days that work at trial courts in the districts of Muzaffarnagar, Aligarh, Faizabad, Sultanpur, Moradabad, Mathura, Ghaziabad, Balrampur and Chandauli suffereddue to lawyers' strikes between March 1, 2010 and March 31, 2015.
The five-year data is an eye-opener. In Muzaffarnagar, a total of 753 days was lost due to lawyers' strike, which means an average of 150 days a year. In Aligarh, it was 697 days (140 days a year), Agra 696 days (140 days every year), Faizabad 693 days, Sultanpur 603 days, Moradabad 596 days, Mathura 591 days, Ghaziabad 573 days, Balrampur 560 days and Chandauli 524 days.
After discounting weekly and religious holidays, trial courts generally work for an average 250 days a year. If over 100 days are lost due to advocates' strike, it is understandable why the pendency monster refuses to be tamed.
The report prepared by the Allahabad HC, which is now also with the law commission, gave reasons why advocates struck work. The report said: “The registry of the high court has also collected information from the district judges regarding reasons of strikes in their respective districts, which are based on resolutions passed by the bar associations.“
It named a few of them, It named a few of them, which ranged from bomb blast in Army school in Pakistan to lawyers getting tired due to Republic Day programme, rainy day , death of the mother of colleague advocate and moral support to Anna Hazare's movement.
In addition to this, the report said: “Some of the common causes for the strikes in all districts of UP in the last five years are: non-declaration of holidays like Agrasen Jayanti, Basant Panchami, Nagpanchami, Budh Purnima, Bharat Milap, Saraswati Puja, Guru Teg Bahadur Singh Jayanti, Guru Govind Singh jayanti, Makar Sankranti, Ashtami Puja, birth day of Hazrat Mohammad Sahab, Holi Milan and Kavi Sammelan.“
The panel which prepared the report said it found that lawyers resorted to strike on unacceptable and flimsy grounds. “In most of the districts, the strike is virtually institutionalised. Often these strikes are called for some specific actions, where a group of lawyers either does not want a particular case to be taken up or they desire a particular matter to be adjourned.“
Government lawyers
’Performance in courts, not political connection to determine appointment’
An advocate's performance in courts, and not his political connection, would count for herhis appointment as government lawyer, the Supreme Court has said dismissing the Bihar government's plea for a free hand in making appointment of government lawyers.
The Nitish Kumar government engaged attorney general Mukul Rohatgi in addition to standing counsel Shoeb Alam to challenge the Patna High Court's judgement directing the state to follow the model procedure set by the apex court for appointment of government lawyers for district courts and additional advocates general for Punjab and Haryana. The two states were infamous for appointing dozens of advocates as AAGs merely because of their proximity to politicians.
Rohatgi argued before a bench of Chief Justice J S Khehar and Justices D Y Chandrachud and Sanjay Kishan Kaul that the state already has put in place a litigation policy which envisages a process for appointment of government lawyers. “Where will this end? If the HC can direct today how government lawyers should be appointed, tomorrow it would be for public sector enterprises, panchayats and other semigovernment organisations,“ he said.
With the common knowledge that governments are the biggest litigants, the CJIheaded bench said: “The cases involving the governments were crucial in many aspects touching key areas of governance. A certain degree of competence was required from the advocates to represent the government and render meaningful assistance to the courts. Have some mercy on the courts too. Mere connec tion with politicians should never be the criteria to appoint an advocate as government lawyer.“
With these remarks, the SC dismissed the Bihar government's appeal against the November 17, 2016 judgement of the Patna HC, which had asked the state government to adopt the Punjab and Haryana model dictated by the apex court for selection of government lawyers in Brijeshwar Prasad case last year.
The SC had also said that though these directions were for Punjab and Haryana, other states would do well to reform their system of selection and appointment of government lawyers to make the same more transparent, fair and objective. The HC had faulted the Bihar litigation policy saying it did not satisfy the criteria of transparent, fair and objective appointment process.
In Brijeshwar Prasad case, the SC had regretted that “the states continue to harp on the theory that in the matter of engagement of state counsel, they are not accountable and that engagement is only professional andor contractual, hence, unquestionable. It is too late in the bay for any public functionary or government to advance such a contention leave alone expect this court to accept the same“.
International forums
Rajput elected to ILC by UNGA
In major diplomatic victory, Indian lawyer elected to ILC, Nov 05 2016 : The Times of India
UNGA Returns Rajput By Record Vote
In what the government described as a major diplomatic victory for India, 33-year-old Supreme Court lawyer and PhD student Aniruddha Rajput was elected to International Law Commission (ILC) by the United Nations General Assembly (UNGA) with a record number of votes. Established by UNGA, the Geneva-based ILC encourages promotion of international law and its codification. Rajput got 160 votes, topping the Asia-Pacific group in the election which was held through secret ballot.
“This is a real honour for me and I want to thank the ministry of external affairs (MEA), especially India's permanent representative to UN Syed Akbaruddin, for their support,“ Rajput told TOI.
Japan's Shinya Murase got the second highest number of votes in the Asia-Pacific group at 148, followed by Mahmoud Daifallah Hmoud of Jordan and Huikang Huang of China with 146 votes each, Korea's Ki Gab Park with 136 votes, Ali bin Fetais Al-Marri of Qatar with 128 votes and Hong Thao Nguyen of Vietnam with 120 votes.
This was the first time that the MEA did not nominate anybody from its pool of lawyers for the membership and instead decided to go with an outsider.
An alumnus of the London School of Economics and Political Science, Rajput was a member of an expert group appointed by the Law Commission of India to study and comment upon the Model Bilateral Investment Treaty 2015 of India, according to his profile submitted to the UN. He has written several books, chapters, articles, conference papers on diverse legal subjects.
The newly elected members will serve five-year terms of office with the Geneva-based body beginning January 2017. The members have been elected from five geographical groupings of African, Asia-Pacific, Eastern European, Latin American and Caribbean and Western European states.
While some have said that Rajput's links with R S S might have had a role in his nomination, which is denied by MEA, he himself said, “International relations is important but member-states of the UN have to vote for the candidate who has recognised competence in international law and the number speaks for itself.“
Lawyers who defended much-hated clients
The Times of India, Apr 10, 2016
Amulya Gopalakrishnan, Swati Deshpande & A Subramani
Why they defend the indefensible
No matter how horrific a crime, the accused deserves a defence counsel. But it is not a job for the faint-hearted, say lawyers who've represented some of the most hated figures in recent times
"Everyone will hate me, but at least I'll lose," says American lawyer James Donovan, played by Tom Hanks in Bridge of Spies, when asked to defend a Soviet spy. Having taken on this thankless, risky job, he does what any lawyer should do sincerely try to secure justice for his client.
People often wonder what prompts lawyers to defend a seemingly "monstrous" or "indefensible" individual. Those questions are being asked again, as the Supreme Court appointed senior advocates Raju Ramachandran and Sanjay Hegde as amicus curiae in the Nirbhaya gangrape case that galvanized the nation. Though they already have lawyers, Ramachandran and Hegde have been asked to make sure that the four convicts on death row are given a "full and fair" hearing.
Ramachandran, who has been amicus curiae for 26/11-accused Ajmal Kasab and has also represented Yakub Memon in the Supreme Court, is used to having his motives questioned. "When an accused is undefended, the court appoints a lawyer to defend him. To refuse to assist the court, when asked, is a dereliction of duty," he explains.
When media and popular opinion demonize the accused, as they did with the Nirbhaya convicts or Kasab, it is a lawyer's job to make sure they get the full hearing they are owed. This is not an endorsement of rape or terrorism. As all first-year law students learn, the lawyer is not defending the crime, but due process.
In our adversarial justice system, if you're hauled into court, you need counsel for a fair trial. "The accused has the right to assert his or her innocence by picking holes in the prosecution case. And it is the duty of the prosecution to prove the case beyond reasonable doubt. Everything that can be said in favour of the accused needs to be said," says Ramachandran.
Take the Kasab case. To a nation shocked by the CCTV footage of his rampage at Chhattrapati Shiva ji Terminus, his guilt was clear as daylight. And yet, it had to be established by the court. It was hard to find a defence lawyer, and the few who came forward were threatened by political activists. In fact, the Bombay Metropolitan Magistrate Court's Bar Association unanimously resolved not to represent alleged terrorists. This is not an isolated incident. Bar associations often turn on lawyers who defend difficult clients.
Anjali Waghmare, the first advocate appointed for Kasab, was dismissed immediately because of a clash of interests. Abbas Kazmi, who defended Kasab until November 2009 — he was replaced by his assistant KP Pawar — had mounted a spirited defence. Pawar, too, had argued for leniency, saying that "the court should explore the possibility of Kasab's reform and rehabilitation. We have to consider that he is a young man who was brainwashed and blinded by an extremist organization". Kasab's death sentence, though, was upheld all the way until the President's final nod.
"Defending the indefensible is not for the weak. It is not only the lawyer but his or her family that needs to be strong, says Kazmi. His family went through their own trial in those months, and required separate police protection. "I had three or four police guards at all times," he says. Friends and well-wishers used to express concern and anguish. "They'd ask: why are you risking your life?" recalls Kazmi.
The same dilemma faced S Duraiswamy, who defended the accused in the Rajiv Gandhi assassination case in June 1991, braving intimidation from Congress workers. "No other leading criminal lawyer would take up the case," he says. "The court was initially hostile, but as the trial progressed I was able to advance arguments with ease. In 1991 itself, I argued that the suspects could not be tried under TADA. Though the trial court rejected this line, in 1999 the Supreme Court came around and declared that TADA could not be invoked because it was not an act of terrorism." Some lawyers may have a personal code on the subject. "As a general rule I don't appear in rape cases as defence counsel," says senior lawyer Mahesh Jethmalani. But this is a deviation from the professional norm, which requires lawyers to take on anyone who needs counsel.
"A lawyer is not meant to act as a judge before the trial is through," explains Ramachandran. Except for pressing personal reasons or conflicts of interest that make it difficult to push the client's case, an advocate has to follow what Ramachandran terms the "British cab rank rule". "A cab driver at Paddington station is bound to take any person who comes and offers the full fare, and so it is with lawyers," he says.
There are several advocates of comparable standing who are asked to step in on controversial cases, not necessarily criminal ones. "Senior advocates have the duty to reinforce this from time to time by accepting such cases", says Ramachandran. It is, in fact, in the most emotionally charged cases, like that of Nirbhaya, that the rule of law must gird itself most strongly.
Legal aid, free
Majority have little faith in the counsel provided
Most Go For Them Out Of Compulsion: UGC-Funded Study
A pioneering study on Delhi's legal aid system reveals that lack of commitment and competence of lawyers has badly hit a programme that receives crores of rupees from the government.
The empirical study, funded by University Grants Commission (UGC), shows that a majority of those who avail legal aid opt for it out of compulsion and have little faith in the counsel provided under the scheme.
Statutory bodies such as National Legal Services Authority (NALSA) and Delhi State Legal Services Authority (DSLSA) have been set up to ensure access to poor litigants who can't afford a private lawyer.
The study, authored by National Law University Delhi (NLUD) professor Jeet Singh Mann, focused on “Impact Analysis of legal Aid Services provided by the Legal Aid Counsels on the Legal Aid System in City of Delhi“.
Mann analysed 11 district courts in Delhi and the high court. His research reveals that almost 50% of those interviewed under the category of beneficiaries of legal aid avail of the service only when they do not have any resource to engage private legal practitioners. Though the Constitution and Legal Services Authorities Act 1987 envisage that poor get access to justice, the study laments that “ground realities depict a shoddy picture of the legal aid programme“.
Due to a variety of factors -chief being disinterested and ill equipped legal aid la wyers -“legal aid system is not functioning effectively and also not catering to the requirements of the beneficiaries“, the report adds.
It also cites the experience of over 170 judges whose courts regularly see poor and indigent persons appearing who can't afford a lawyer. “As per the considerate views of 89.30% of senior judicial officers such as additional session judges, they do not prefer the involvement of legal aid counsel (LAC) in serious crimes such as rape, murder, culpable homicide not amounting to murder and narcotics. They always consider the appointment of amicus curiae, generally experienced legal practitioners of competency known to the judicial officers, to protect the interests of poor people, who are not in a position to engage a legal practitioners on their own,“ the study points out.
The report also says it is visible from the data that legal aid counsel “are not considered trust-worthy and competent to protect the interest of poor people in serious crimes“ and recommends more effective monitoring and greater control on empanelled lawyers as also on timely payments to keep them engaged in the system.
To begin with, the study stresses the need to have a more rigorous empanelment process as most of the LAC view Legal Aid services as just a platform to achieve other better employment opportunities. This, in turn, translates into “lack in the zeal and commitment towards their work“ affecting the quality of legal aid services across Delhi, the report concludes.
Professional ethics
Ram Jethmalani: derogatory word blamed on client's instructions
How does one introduce Ram Boolchand Jeth malani? A lawyer par excellence? Irrepressible? The proverbial phoenix in the inseparable legal-political theatre of India, he has constantly reinvented and reinvigorated himself from decade to decade. In the process, he has earned fame in and outside courts. But his caustic tongue continues to be a magnet for controversies.
Jethmalani, who will celebrate his 94th birthday on September 23, has been a teacher of law to judges, advocates and politicians since he took part in the murder trial against K M Nanavati in 1959.
Politicians, criminals, businessmen, rich and famous troubled by court cases have instinctively come to him, trusting his magically analytical brain to weave a web of doubt over evidence to persuade judges to give the benefit of doubt to the accused.
If there was a celestial court to decide the consequences of divine wrath, he would have been the ideal advocate to plead for leniency .Jethmalani is that kind of lawyer, who is best described by American comedian Steven Wright, “I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five.“
A non-exhaustive list of his clients gives a glimpse of the immense trust litigants repose in his ability L K Advani, Amit Shah, Lalu Prasad, J Jayalalithaa, B S Yeddyurappa and Kanimozhi; Haji Mastan and Harshad Mehta; Asaram Bapu and Baba Ramdev; Parliament attack case accused. The list would remain incomplete if one forgets to mention his demolition of the Bofors payoff case to get the Hinduja brothers discharged.
His legal prowess earned him friends in politics. He had become active in politics during Emergency and got elected to Lok Sabha for the first time in 1977 from Bombay .Since 1988, he has been a member of the Rajya Sabha, representing Rajasthan, Bihar and Karnataka in the upper House. Jethmalani has also got himself embroiled in legal suits. In 1983, he sued Swaraj Paul in London following a spat with him. His verbal duel with Subramanian Swamy , during proceedings of M C Jain Commission inquiring into the events leading to assassination of Rajiv Gandhi, led to a defamation litigation between them.
So, it was no surprise when Delhi CM Arvind Kejriwal rushed to him when facing civil suit and criminal case filed against him by finance minister Arun Jaitley . Besides Jethmalani's proven prowess as a lawyer, Kejriwal also chose him considering the former's hostility for Jaitley. It worked well for both Kejriwal and Jethmalani for some time. Jethmalani used the opportunity to keep embarrassing Jaitley during cross-examination.
The tables turned on May 17, when Jethmalani got carried away and used a derogatory word for Jaitley , who kept his cool and asked Jethmalani whether the word was used by himself or on his client's instructions. “Client's instruction“ was Jethmalani's instinctive reply. Jaitley promptly slapped another defamation suit against the CM.
Rattled, Kejriwal denied instructing Jethmalani to use the word. Jethmalani never takes kindly to anyone who discredits him, rightly or wrongly . If he can bite with words, he stings with his tail too. The fallout was swift and furious. Jethmalani exited as the CM's counsel, but not before sending a stinging letter to his erstwhile client. But in the process, he probably crossed the line of professional ethics for advocates drawn by the Bar Council of India. He made public the letter giving details of what could be privileged communication between him and his client.
For, the rules on an advocate's duty towards the court say,“ An advocate shall be dignified in use of his language in correspondence and during arguments in court. He shall not scandalously damage the reputation of the parties on false grounds during pleadings. He shall not use unparliamentary language during arguments in the court.“ Jethmalani also appeared to breach the rule on an advocate's duty towards his client, which says, “ An advocate should not ordinarily withdraw from serving a client once he has agreed to serve them. He can withdraw only if he has a sufficient cause and by giving reasonable and sufficient notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued to the client.
“It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means. An advocate shall do so 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. An advocate should always remember that his loyalty is to the law, which requires that no man should be punished without adequate evidence.“
Moreover, Section 126 of Indian Evidence Act, 1872 provides, “No barrister, attorney , pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment.“
No one can ever imagine teaching law or rules to Jethmalani. But sometimes, even the best slip.
`Senior advocate' designation
SC wants transparent procedure
Law degrees from reputed foreign universities and years of practice in courts are no guarantee for a lawyer to earn the `senior advocate' designation from the Supreme Court.
This was stated by a bench of Chief Justice T S Thakur and Justice D Y Chandrachud and Justice L N Rao on Friday in response to allegations that the `senior advocate' designation was being increasingly given arbitrarily to undeserving lawyers through a non-transparent procedure without making public the criteria of evaluation.
The transparency flag was raised by senior advocate Indira Jaising, the first woman to be appointed as a law officer for the Union government during UPA regime. She said it is a perception that senior advocate designations were gained through lobbying and kinship and it has become an elite club restricted to a few.
“Those who have domain expertise in environment, public interest litigations and those who have spent large number of years practising in the Supreme Court do not get considered for the designation,“ she complained and suggested that there should be a codified evaluation process followed by an interview before grant of the designation.
She was supported by senior advocate A M Singhvi who said there should be five or six listed discrete qualiti es for which an advocate should be assessed. There is also a vociferous section of advocates, led by advocate Mathew Nedumpara, opposing the present system of designating senior advocates.
But the bench said it evaluated advocates on a daily basis when they appeared before the judges in the Supreme Court, and took note of their knowledge in law, court craft and standing at the bar -the three cardinal qualities that play a huge role in designating a lawyer as senior advocate.
“Neither degrees from fo reign universities, nor number of years of practice could automatically make a lawyer earn the senior designation,“ the bench said. But with many high courts continuing to confer senior advocate designation on lawyers who did not even practise before that HC, the words of the CJI-headed bench failed to convince the petitioner.
Attorney general Mukul Rohatgi and Supreme Court Bar Association president Dushyant Dave agreed with the court that it was at the discretion of the SC judges to decide who should be designated as senior advocate. However, they said it would be proper to seek views of eminent members of the bar on advocates applying for senior advocate designation.
The bench said it would pass orders on the petition and indicated that it was not averse to making a few changes in the procedure for designating lawyers as senior advocates.
