Mainstream, Vol XLVII No 11, February 28, 2009
Lawyers, Judges and Justice Jujitsu
Monday 2 March 2009, by#socialtags
In our adversarial system in preference to the inquisitorial system arguments by counsel have a key role to play in discovery of the truth. The Bar, the professional instrument of presentation of cases, is indispensable in the forensic process. As Brandeis observed: ‘For a judge rarely performs his functions adequately unless the case before him is adequately presented.’ The great Holmes put it neatly: ‘Shall I ask what a court would be, unaided? The law is made by the Bar, even more than by the Bench.’
It is clear that the best judgment pronounced is the product of the finest submissions at the Bar. In this sense the lawyer is an officer of the court and is integral to the administration of justice. I hold the view that a good Bar is a great part in justicing and therefore must be given a high place in the fulfilment of the right to justice which is fundamental to all fundamental rights. The Bench without the Bar is as bankrupt in the delivery of justice as the Bar without an intelligent, impartial independent Bench to hear and decide. The right to justice is inherent in every citizen; even the devil has that right. It follows that the legal profession has a fundamental morality to present even the devil’s case. This does not mean he should falsify to win a case. The lawyer’s dharma, as Gandhiji and Abraham Lincoln demonstrated, includes a peremptory obligation. Never to refuse brief merely because his case is bad. Gandhiji has said that when a client approached him he would insist of two things. The freedom to tell the court the truth of the case, even if it be against his client. Secondly, a fair compromise, if offered, he should have the authority to accept it without reference to his client. He did both throughout his practice and still enjoyed a lucrative practice and with least loss of income.
The Profession is Noble and those professing it should endeavour to be nobler. However, the recent calamitous incidents in the Madras High Court has dealt an indelible blemish to the patrician profession.
Reports suggest that Subramanian Swamy was before the Madurai Bench of the Madras High Court to implead in appending lists and that when he was in court, a few members of the Bar assaulted him in the presence of the judges in the course of his arguments. This is unprofessional and outrageous for any member of the Bar. The police intervened naturally and the focus of the battle shifted. The fight switched over between the lawyers and the police. When violence is committed in public and in court the policemen in uniform have a moral duty to arrest the assailant be he ever so high. I do not know why the judges did not punish for contempt the guilty lawyers when the contempt was committed in their face. A judge, who does not exercise his power when the situation calls for its use, betrays the robe and its authority and thereby brings down the whole judiciary in the esteem of the people. The Bar Council on its own must initiate action against the delinquent members. Professional morality is a precious asset of the Bar to maintain which is a sine quo non of its sublime status in the scheme of things. The Bar from the Attorney General downwards is not a mere calling for trade or money-making adventure, but a noble wing of society basically necessary for the rule of law and the democratic Republic itself. The sinners in the profession, knowing the law as they do, are doubly guilty by culpable conduct unbecoming of their status as officers of the Court in defacing the exalted and rarified pillar of democracy. The lawyers, it is reported, behaved barbarian and berserk by setting fire to police stations and motor cars. There is the Goonda Act in Tamil Nadu and the legal profession should be the last to offer offenders and fulfil Churchill who used the expression rogues and rascals about Indian patriots.
The pity of it, O, the pity of it, is that this arsonist skirmish continued in Madras city the next day. A judge was hit badly by stone throw. Public vehicles were set fire to. Police stations were destroyed, public property ignited by obdurate, unregenerate few who persisted in this terrorist incendiary misadventure till the Commissioner of Police ordered shoot-at-sight if anyone was found setting fire to vehicles. He knew his power and the lawyers stopped from their criminal movement. This is bad deviance of the members of the Bar, albeit a minuscule minority, who have held the gallant reputation to ransom. The court is not a private institution and must surely take suitable action. It looks as if the sensitive judges want to restore peace and so closed the court for two days. It looks as if the riot police went rampant and beat up innocent lawyers. The criminals as usual have escaped. This incident is a colossal scandal and deserves national concern. The Madras High Court has a great reputation, now tarnished beyond repair. Belligerency, once condoned without deterrent punishment, is apt to repeat itself. The entire judicial system in the country is shaken up. Madras today may be the Supreme Court tomorrow. If justice dies India’s future is a functioning anarchy. Parliament must meet and constitute a national enquiry by a committee of statesmen competent to give not placebos but paramount prescriptions and proscriptions to the constitutional supremacy. Gandhiji was shot and forgotten, with none to follow him. This time paramountcy is paramountcy and none shall stultify the rule of law which shall be the rule of life.
The author, a former judge of the Supreme Court (now retired), was the Law Minister in the E.M.S. Namboodiripad Ministry in Kerala (1957-59).