civil liberties
Lawless Lawyers
A G Noorani
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.
A G Noorani is a well-known lawyer, scholar
and political commentator.
Economic & Political Weekly  EPW   october 4, 2008
civil liberties
T
his 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, never TV 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 by   the 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 bread    by 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”.
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civil liberties

Rule 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 that
Barristers, 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 says
A 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.
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 in Hedgson 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
in    the case which does not include a
p­ersonal opinion.
Relaxation of Principle
This 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 that
The 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)   t he
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

The authors note that EPW on JSTOR

The 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 before TV
cameras on the lawns of the Supreme
Court immediately after emerging from
its portals, rather like the lawyers in the
14
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october 4, 2008  EPW   Economic & Political Weekly

in 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
d­uties    of counsel was made by Thomas
Erskine in his celebrated defence of
Right to Recall Legislators:
The Chhattisgarh Experiment
Vinod Bhanu
The 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.
Vinod Bhanu (vinudirect@gmail.com) is
with the Centre for Legislative Research and
A­dvocacy, New Delhi.
Economic & Political Weekly  EPW   october 4, 2008
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
T
he 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.
commentary
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.
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
15