Tuesday, August 12, 2008

Lawyers’ Boycott of Terrorist Cases in Uttar Pradesh: Whither Fair Trial?

We bring you a guest post by Talha Abdul Rahman, a recent graduate of Nalsar University of Law, Hyderabad. Talha will soon leave for the UK to pursue post graduate studies (BCL) at the University of Oxford as a Shell Centenary-Chevening Scholar.

Talha brought to our attention an Indian Express article, that narrated how lawyers in UP had collectively decided to boycott cases of those accused of terror strikes, and beat up lawyers who defied this diktat. And went on to note that: "This is something that must be brought to the notice to all lawyers and law students, discussing legal and ethical issues, and I think that there is no better platform than lawandotherthings."

We asked Talha to highlight some of the concerns raised by this UP incident in a guest post for us and he obliged. As Talha rightly contends, this incident has grave implications for the time hounoured principle that every accused is entitled to a "fair" trial and that they are "innocent unless proven guilty". And more importantly, it destroys the very fabric of "ethical" norms that more or less mandate lawyers to take up cudgels on behalf of every accused, unless "special" circumstances warrant otherwise.

It'll also be interesting to draw parallels between this case and the Jessica Lall murder case, where Ram Jethmalani came under opprobrium for deciding to defend Manu Sharma, an accused condemned by the media and by the public.


"Lawyers’ Boycott of Terrorist Cases in Uttar Pradesh"

Entrenched deeply in the roots of constitutionalism and rule of law, fair trial of an accused forms one of the basic judicial guarantees etched in law, both municipal and international. Though ‘fair trial’ is an overarching concept and is capable of being presented and protected in myriad forms, more often ‘fair trial’ is a sum total of everything that forms a constituent part of justice delivery system.

Procedural and substantive laws though an important but are just one aspect of fair trial. Actors such as lawyers and judges that ensure compliance with law, in letter and in spirit also form an important pillar of fair trial. Thus, an inexpendable aspect of fair trial is provision of a counsel who would stand by the accused, irrespective of counsel’s own opinion concerning the nature of offence. Fairness of a trial is vitiated the moment any constituent element of ‘fair trial’ is disrespected to the prejudice of accused, and clearly absence of counsel would vitiate a fair trial.

It is in this context that resolutions passed by some bar associations in Uttar Pradesh that collectively resolve that ‘no lawyer would defend any person accused of terrorist offences’ are criticized as inhibiting fair trial and adjudicating on the alleged guilt without trial by ExpressIndia and Tehelka. It has also been brought out that some local and outstations lawyers who have defied such unethical and illegal resolutions have had their offices ransacked and are warned of dire consequences.

Articles 21 and 22 of the Constitution of India provide for Right to Counsel of Choice. Principle 1 of the UN Basic Principles on Role of Lawyers states that “all persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.” A logical corollary of these provisions is an obligation cast on lawyer by virtue of their profession to represent accused persons. Such right forms cornerstone of fair trial because it ensures that adequate and fair facilities are available for preparation of defense.

Thus, a fundamental legal guarantees of fair trial provided in law is Right to Counsel of Choice. However, bar associations’ resolutions to not defend persons accused of terrorist offences (and to prevent other lawyers from defending them) deny such persons not only this Right to Counsel of Choice, but denies them a counsel per se. Thus, there can be no dispute that the trial when measured in the impartial scales of justice would be vitiated as being unfair.

If trial at lower courts remains unfair, approval of death sentence as in Parliament Attack Case at appellate level may amount to a judicial murder.

Rule 11 of Section II of Part VI of Bar Council Rules framed under Section 49(1)(c) of the Advocates Act, provides that “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”. While only special circumstances may justify refusal to accept a brief, there is no precise definition of what constitutes ‘special circumstances’. However, given the noble nature of legal profession, such special circumstance would not include a situation where offence involved is a terrorist offence or even if it relates to crimes against humanity. Legal profession works on the premise that none should be condemned without sufficient evidence in a fair trial conducted after following due procedure, and an advocate is duty bound to ensure that this principle is complied with at all times.

Further, Rule 15 provides that “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.”

The Preamble of UN Basic Principles on the Role of Lawyers reminds us that “…professional associations of lawyers have a vital role to play in upholding professional standards and ethics,… providing legal services to all in need of them, and cooperating with governmental and other institutions in furthering the ends of justice and public interest….”.

Given these dictates of law, resolutions passed by bar associations in Uttar Pradesh are untenable in the eyes of law.

Mr. Jamal Khan, a Faizabad based lawyer who has courageously disobeyed the illegal whip issued by the Bar Association has submitted a complaint to the Bar Council of Uttar Pradesh. Action by the Bar Council under the provisions of Advocates Act is awaited.

Another, Lucknow based lawyer Mr. Mohammed Shoaib who has on a number of ocassions defended innocent youths picked up police on fake charges of terrorism has filed a writ petition in the Lucknow Bench of Allahabad High Court seeking directions from the High Court that members of such bar associations be prevented from obstructing court proceedings. The petition relies mainly on Right to Fair Trial and to practise any profession, or to carry on any occupation, trade or business.

Transfer of Cases

Chapter XXXI of the Code of Criminal Procedure empowers superior courts to transfer cases from one subordinate court to another whenever it is made to appear that an order is ‘expedient for the ends of justice’, which illustratively includes cases where fair or impartial inquiry or trial cannot be held.

Successful invocation of these provisions, though important for dispensation of justice, by itself is a blot on legal and justice delivery system because it brings out that because of systemic and systematic factor a criminal trial cannot be fairly conducted, and may allude to a situation of absolute arbitrariness and disregard for the law.

After the J&K Bar Association refused to defend persons accused of sex-scandal in 2006, their cases were transferred from Srinagar to Chandigarh. Even though the Supreme Court had slammed the J&K Bar Association for violating the Code of Conduct for lawyers, it does not seem to have had a demonstrative impact.

Custodial violence, randomness and procedural breaches in arrests, corruption in judiciary and utter disregard for ethics by lawyers raises some serious questions about respect for rule of law and justness in our criminal justice system. If the agents of justice and the legal system counter terrors with terror then as a civilization we are headed into the abyss of darkness.

In an attempt to counter terrorism, boundaries of law cannot be overstepped, and lawyers cannot become judges themselves in adjudicating on guilt of an accused that too before trial. Terror has to be countered, with justice.

4 comments:

captainjohann said...

When charles shobraj or abdul Salem can get legal remedy , why not for other terrorists?
But then who will come as witnesses?this problem has to be solved as terrorists are not ordinary humans, they TERRORISE not only individuals but also state which inludes the lawyers.

Anonymous said...

Terrorism Today

Industrial and e conomic expansion has helped India to reduce its federal fiscal deficit. Ongoing disagreement with Pakistan over Kashmir, caste and religious issues, movement of extremist organizations, networks, and individuals has blemished our impressive achievement in economic and industrial fronts . Terrorist activities have become a major issue for India as Indian links are exposed in London and Australia. We have to act fast with greater force to prevent further attacks inside as well as outside the country. These elements simply threaten our interests and overthrow civil order and replace freedom with conflict and hatred.

Terrorism is a term used to describe unlawful violence or other unlawful harmful acts committed (or threatened) against civilians by groups or persons for political or other ideological goals. They use suicide bombings, beheadings, and other atrocities against innocent people as a means to promote their creed.

We Indians have become vulnerable to ethnic, religious and anti-Indian extremists act. Domestically there is a silent movement fueled by a radical ideology of hatred and oppression and many dormant units within the country can manifest itself in violence. The trends show that there is a decreasing frequency but increasing lethality of attack. In India t errorist networks today are more dispersed and less centralized. They are more reliant on smaller cells inspired by a common ideology and less directed by a central command structure. Though we have thwarted many attacks, we have not been able to prevent them all. Terrorists have struck in many places throughout the country. Sophisticated use of the Internet and media has enabled terrorists to communicate, recruit, train, rally support and spread their propaganda without risking personal contact. Our prosperity, the rising tide of democracy, and the right of all people to live without fear of indiscriminate violence is under threat.

STRATEGIC PLANNING

We need to build strong foundations, institutions and networks to fight terror. We should use the positive energy and skills of citizens to protect the country against any attempts at undermining its stability. We need to enhance our counter-terrorism mechanism at both citizen and government level in the following ways.

CITIZENS
1. Give up individual freedom
We citizens should be ready to give up individual freedoms if situation warrants for increasing our national security. When there is a threat people should realize the urgent need of security. We should make our properties and ourselves available for searches. We should participate in collective risk management.
2. Political and religious alienation
We should not alienate fellow citizens on the basis of their political and religious beliefs. We should never create an environment where terrorism can take root. We should never blame a religion or group in the name of terrorism, as this will bring success to the terrorists.

3. Citizen Soilders

The greatest source for dealing with the challenges of terror is the citizens outside government. They are the one who can tell -who the extremists are; where they live-. Involvement of all peace loving citizens, irrespective of caste, colour and creed is the need of the hour to fight terrorism. By involvement I mean 'state of alertness' and penchant for smelling rat 24 hours, wherever one is.
We need to draw them into volunteering and speaking.

GOVERNMENT

4. Training on counter-terrorism to the forces.

Adequate training on counter-terrorism for Army, Navy, Air Force, Coast Guard, various security or paramilitary forces (includes Border Security Force, Assam Rifles, National Security Guards, Indo-Tibetan Border Police, Special Frontier Force, Central Reserve Police Force, Central Industrial Security Force, Railway Protection Force, and Defense Security Corps).

5. A central agency to tackle terrorism

A central agency with extensive powers similar to IB and RAW with roots in all states should be created to tackle terrorism. They should have substantial presence in the states near our borders.

(The writer Vinod Kuriakose can be contacted at vinodkuriakose@gmail.com or visit his website http://vinodk.page.tl/

Anonymous said...

I found this post very interesting because it goes back to a very basic problem of distrust in the judiciary to render justice. It is especially interesting because this lack of trust comes from the lawyers who themselves form a part of the judiciary. There are chances that the boycott plan might actually backfire. Judges are usually known to argue on the side of the party which in their opinion is inadequately or poorly represented. They usually do this by posing questions in the form of rebutting to the opposite party. In fact there maybe cases which are won because the lawyer was bad and the judge was just very impressed by his own arguments which he was forced to make in the place of that lawyer. In any case,the twisted idea of justice which this boycott intends to uphold isnt going to bring any winners with it.

Talha Abdul Rahman said...

Inability to procure witnesses or obtain sufficient evidence is a product of inefficiency that looms large in the way investigations are carried out ( Compare investigations by UP Police and CBI in Aarushi Murder Case). This could pose an eventual problem at prosecution stage before the court, which the court is free to adjudicate adjusting the "sufficiency" of evidence with reference to nature of a crime.

This problem does not give a license to lawyers to digress from their duties or to anyway be a part of conpiracy to commit judicial murder.

Emphasis in the post has been on duties of lawyer's and not so much on "distrust in the judiciary". This posts raises doubts on nature and quality of justice vis-a-vis judiciary to the extent of lawyers' role as officers of the courts. Where lawyers refuse to appear for accussed, courts would also be constrained to ensure the trial lingers on as acquittal would be opposed by media and through them by the masses, and conviction would be difficult to sustain at appellate level. (This is despite, Supreme Court's reason to hang someone for satisfaction of collective conscience of the country).

Further, it is one thing to cooperate with investigative agencies as law abiding citizen, and another to surrender rights and liberty which have been obtained by the people after centuries of struggle. These are two extreme ends of a spectrum.

Commenting on need for a special force to combat terrorism is beyond the scope of this post, but it must be unequivocally stated that suggested army of "citizen soldiers" could actually translate into 'Sulwa Judum' - which for our purpose be an organization of anarchist supported and funded by a republican government.

It has been summarized well that "the twisted idea of justice which this boycott intends to uphold isnt going to bring any winners with it."