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.
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