Crisis of the Indian Bar

The defence lawyer is as integral to the judicial process as the judge and the prosecuting lawyer; to prevent legal representation for a person accused of a heinous crime is to subvert the judicial system itself.

Published : Mar 06, 2013 00:00 IST

Every civilised system of criminal justice has a hallowed place for lawyers. Here, law graduates being enrolled as lawyers at a function organised by the Bar Council of Kerala, in Kochi in August 2010.

Every civilised system of criminal justice has a hallowed place for lawyers. Here, law graduates being enrolled as lawyers at a function organised by the Bar Council of Kerala, in Kochi in August 2010.

IF only he had had a lawyer to defend him, Bhagat Singh might well have escaped the gallows in the Saunders murder case. To its lasting shame, the Indian Bar ignored him. It did not evince the kind of interest that some of its members took in the Meerut conspiracy case. They were afraid of being branded as defenders of a “terrorist”. Mohammed Ali Jinnah had no such fears and defended Bhagat Singh in his speech, which was spread over two days, September 12 and 14, 1929, in the Central Legislative Assembly. His attack on the European members of the Viceroy’s Executive Council was fierce. It is a masterpiece of forensic eloquence (for the first text, see A.G. Noorani, The Trial of Bhagat Singh ; Oxford University Press; pages 270-282).

Evidence on Bhagat Singh’s participation in the conspiracy to murder John Payantz Saunders, Assistant Superintendent of Police, in Lahore, was weak; evidence on his complicity in the murder itself was stronger but hung by a weak thread which any lawyer could have cut. Seven witnesses swore to have seen Saunders killed. Six of them were knocked out, leaving the sole testimony of what lawyers call a “chance” witness, Abdullah. He was driving a car and arrived on the scene of the murder with two others whose evidence was disregarded. His evidence before the tribunal did not support its finding that it was “satisfactory and reliable”. The statement of this eyewitness was recorded by the police four days after the murder. The transcript of his evidence reflects the tribunal’s scepticism. But it vanished altogether in the judgment.

The tribunal itself was under a sentence of death. It was set up by the Governor General’s Ordinance, which did not need ratification by the Assembly and expired in six months. There was no right of appeal. An Indian judge who showed some sympathy for the accused, Justice Agha Haidar, was removed during the proceedings. It was a clear case of judicial murder.

Jinnah summed up the government’s approach: “We will pursue every possible course, every possible method, but we will see that you are sent either to the gallows or transported for life; and in the meantime we will not treat you as a decent man” (ibid.; pages 187-189).

Lawyers and Bar associations that have in recent years demanded that no lawyer should defend a person charged with an offence which they consider to be heinous are ignorant of the great tradition of the Indian Bar. What could be graver than the crimes with which the Nazi leaders, civil and military, were charged before the International Military Tribunal at Nuremberg—crimes against peace, war crimes, and crimes against humanity. They were allowed to be defended by lawyers (see R.W. Cooper, The Nuremberg Trial ; Penguin Books, 1947; page 29). Rudolf Hess’ lawyer, Alfred Seidi, brought in the Nazi-Soviet pact of 1939, to the embarrassment of all. Lawyers defended the accused in the trials for the assassination of Gandhi, Indira Gandhi and Rajiv Gandhi.

A defence lawyer is as integral to the judicial process as is the judge and the prosecuting lawyer. To prevent legal representation of one accused of a heinous crime is to subvert the entire judicial system. But, of course, to the subverters of the system, a trial should be held, but only to convince the public of crimes of the accused and with a determination that his life should become “extinct”, a revealing word used by the Supreme Court in the Afzal Guru case. We are now facing a concerted challenge to the system of criminal justice and, indeed, to the constitutional set-up itself. Both are of English origin. A former bureaucrat questioned citation of English authorities. An academic with a sordid record during the Emergency harps relentlessly on the theme, compensating a lack of erudition with boorish personal comments on foreign scholars, far more learned in Indian law than he is.

The lawyer, an officer of the court Every civilised system of criminal justice has a hallowed place for the lawyer. He is an officer of the court. Preventing a lawyer from performing his duty constitutes contempt of court. The Bar Council Standards of Professional Conduct and Etiquette, drawn up under Section 49(1) (c) of the Advocates Act, 1961, provide: “An Advocate is bound to accept any brief in the courts or Tribunals or before any other authority in or before which he professes 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.” However this Rule (11) is but part of a scheme that envisages a certain dignity and status for the lawyer which, sadly, have been eroded over time.

Rule 1 says: “An Advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities.”

Rule 15 reads: “It shall be the duty of an Advocate fearlessly to uphold the interest 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.”

Rule 46 reads: “Every Advocate shall in the practice of the profession of law bear in mind that anyone genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an Advocate owes to society.”

Rule 47 reads: “An Advocate shall not personally engage in any business but he may be a sleeping partner in a firm doing business provided that, in the opinion of the appropriate State Bar Council, the nature of the business is not inconsistent with the dignity of the profession.”

How does the portrait of an advocate drawn up by this set of rules fit with the picture of advocates yelling near courts, preventing colleagues from defending somebody or the other, or of advocates who misbehave during elections to Bar associations—to go no further?

It is a noble tradition from the trial of Socrates to this day. The finest statement of the duties of counsel was made by Thomas Erskine in his celebrated defence of 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 liberties 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 before 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 all presumptions and which commands the very judge to be his counsel” (T.B. Howell (ed.) State Trials ; T.C. Howard, London, 1816; Volume XII; page 411).

Trial of Queen Caroline Lord Macmillan, an authority on the ethics of advocacy, recalls Lord Brougham’s defence of Queen Caroline and criticises him for placing his “duty to his client so high as to surmount even his duty to his country” (in his lecture “The Ethics of Advocacy” read before the Royal Philosophical Society of Glasgow, February 1916, and published in a collection of his writings Law and Other Things ; Cambridge University Press, Cambridge, 1937).

It was an unusual case, and Macmillan does not seem to appreciate that Brougham was calculatedly uttering a threat. He said: “I once before took occasion to remind your Lordships, which was unnecessary/but there are many whom it may be needful to remind, that an advocate by the sacred duty which he owes to his client, knows in the discharge of that office but one person in the world—that client and none other. To save the client by all expedient means, to protect that client at all hazards and costs to all others, and among others to himself is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them if need be to the wind, he must go on reckless of the consequences, if his fate it should unhappily be to involve his country in confusion for his client’s protection” (ibid.; page 193).

But as has been pointed out, Brougham did, indeed, mean it as a threat. “He meant to tell the government, and the majority peers, and the King to boot, that if all else failed, he would present to the country such a case against the King as would probably cause a rebellion. The Lords understood the intimation…” (R. Storry Deans, The Trial of Five Queens ; Second Edition, Methuen, London, 1910; page 365). Brougham did not place his duty to his client above that to his country but the former duty above the interest of the oppressive regime of the day.

The editor of Howell’s State Trials rightly prided himself on providing an authoritative account of fearless advocacy and soaring forensic eloquence. Brougham’s peroration in his speech in defence of Queen Caroline is one of the best of its kind:

“Such, my Lords, is the case now before you. Such is the evidence in support of this measure—evidence inadequate to prove a debt; impotent to deprive of a civil right, ridiculous to convict of the lowest offence, scandalous if brought forward to support a charge of the highest nature which the law knows; monstrous to ruin the honour, to blast the name of an English Queen! What shall I say, then, if this is the proof by which an act of judicial legislation, a parliamentary sentence, in ex post facto law, is sought to be passed against this defenceless woman? My lords, I pray you to pause. I do earnestly beseech you to take heed. You are standing on the brink of a precipice—then beware! It will go forth as your judgment, if sentence shall go against the Queen. But it will be the only judgment you ever pronounced, which, instead of reaching its object, will return and bound back upon those who give it. Save the country, my lords, from the horrors of this catastrophe; save yourselves from this peril; rescue that country, of which you are the ornaments, but in which you can flourish no longer, when severed from the people, than the blossom when cut off from the roots and the stem of the tree.”

Great Wahabi case In the Great Wahabi Case (1870), a leading case on habeas corpus, the petitioners, Ameer Khan and Hashmalad Khan, were most fortunate in their choice of counsel. He was Thomas Chisholm Anstey, a legend in his own lifetime, a scholar among the lawyers and a lawyer among the scholars. Concluding his argument, the Governments’ Standing Counsel Paul praised Governor General Lord Mayo, only to provoke Anstey to deliver his deadliest blow. He said: “I shall not make any comment on the glowing panegyric that has been pronounced upon the nobleman on whose behalf arbitrary power over two hundred millions of the inhabitants of this country has been demanded, further than this, that I hope my learned friend will in another world, receive as ample reward for it, as he is certainly likely to receive in this. For my part, I shall do my duty without fear or favour. I, perhaps, may boast of the private friendship of the noble Lord , but I value not the public patronage, or the private friendship of any man one straw, when it interferes with my duty to the client who trusts me with his case. Finch and his atrocious crew, in their endeavours to put down the just rights of the people, have used the exact language as my learned friend. ‘Who shall command the king?’ said Lord Finch. ‘Why,’ said those glorious old puritans, the law shall command your kind. So if my learned friend asks, ‘Who shall command Lord Mayo?’ Why, I say, the law shall command him. He cannot be an irresponsible man, and yet remains a British subject. I know we have fallen on evil times when such an un-English speech is capable of being delivered.

“I know that there are heresies current particularly amongst the favoured class whom I see so powerfully represented amongst the spectators who are my witnesses. But, my Lord, it is my duty, on behalf of the oppressed subjects of Britain, to protest against these oppressions and to ask for a fiat that shall condemn them to their original obscurity, and their preachers to an ignoble silence.”

Anstey’s peroration is probably unsurpassed in its ardour and boldness: “If your Lordship be unable, I will not say unwilling, to contribute to this end then it will now be decided that there is no law in this country. It behoves us in that case to look well to our word: to fear the caprices of the despot of the hour to whom the Ministers of the Crown on the other side of the world have unconsciously committed the destinies of 200,000,000 of souls. If then, your Lordship’s decision be against us, I say it with grief, there will be no other remedy left to any man of spirit, whatever be his race, creed or colour except immediate departure, or open rebellion .” Free India made preventive detention part of its Constitution.

Anstey was followed by his colleague Thomas Dunbar Ingram, who began by launching an attack on the Advocate-General: “The Advocate-General, upon the first day, made the most extraordinary statement, which I ever heard in a Court of Justice. He denied that any Municipal Court could entertain this application. I attributed that statement to the surprise of an unready man, and thought the expression fell from him in an unguarded moment; but this repetition of that statement wears a very different aspect. It means that the Governor General of India claims to be above all. Before he could make a claim of that kind on behalf of any authority, what a change must have taken place in the Advocate-General? He must have ceased to be a lawyer, and become a simple official—he must have surrendered his independence, and become a humble servant of the Crown.

“The Advocate-General and the Standing Counsel expect us to argue this question without some personal feeling. Do they forget that this Act threatens not only the natives, but Englishmen? And yet we must argue this question as if it were a matter of private property. It was in deference to a judge for whom I entertain the highest and most sincere respect that I gave up my undoubted right of expressing my anger on this subject. If we, the Bar of India, are not to express our opinions, how can a public opinion be formed? And no one will deny that public opinion is of great value in this country. This, My Lord, is a matter in which I feel the strongest personal feeling—for I am not a slave. I have tasted the sweet waters of liberty.”

The case of Sergeant Sullivan Anstey died in 1873 and was buried at Sewree in Bombay. A road was named after him, off Altamount Road, Malabar Hill, in the city. Anstey and Ingram’s feelings were enlisted on behalf of their clients. Sergeant Sullivan’s is a case of a lawyer who defended a client whom he despised and fought on his behalf with an overbearing judge who had helped this Irishman to settle down in practice in London ( The Last Sergeant: The Memoirs of Sergeant A.M. Sullivan , K.C. Macdonald, London; pages 301-308).

It arose out of a case concerning Maharaja Hari Singh of Jammu & Kashmir, whose identity in the sordid case the British sought vainly to conceal. (For a full report of the case see The Mr. A. Case edited, with a foreword by C.E. Bechhofer Roberts, a barrister, Jarrolds Publishers Ltd, London.) This excellent book was published in the Notable English Trials Series. The civil case was tried in 1924. Hari Singh was caught in bed in a Paris hotel with the wife of one Charles Earnest Robinson, who had been planted on him to blackmail him into parting with money. Hari Singh gave two cheques for no less than £300,000 as hush money to the scoundrels who besieged him.

On November 11, 1919, Hari Singh, then the Crown Prince of the princely State of Kashmir, met two attractive women at the Victory Ball in London. Friendship with one blossomed into romance, and they repaired to Paris. In the early hours of December 26, 1919, as Hari Singh and Robinson’s wife lay in bed together at St. James and Albany Hotel, the door was flung open and an Englishman appeared, dramatically crying, “Now I’ve got you.” He was Montagu Noel Newton, a forger who had served a prison sentence. Fearing a divorce case in which he would be cited as co-respondent and lose his claim to the throne, Hari Singh, at the instance of his ADC Captain Arthur, gave the cheques. Robinson went to a shady firm of solicitors which had only a managing clerk of shady reputation. William Cooper Hobbs had persuaded solicitor after solicitor to lend his home so that he could run the show himself. Newton and Arthur were hand in glove with Hobbs. Newton goaded Robinson to instruct Hobbs to sue Hari Singh for divorce.

To cut a long, complicated story short, only one of the cheques was cashed; Hobbs gave a meagre share to Robinson and shared the rest with Arthur and Newton. Hari Singh’s solicitor had payment of the second cheque stopped. The thieves soon fell out.

Robinson sued the Midland Bank for the £150,000 which it had paid to Hobbs and his conspirators but lost. Thereafter, Hobbs was put on trial for conspiring with Arthur and Newton to defraud Hari Singh. He was sentenced to two years’ imprisonment. However, on his release from prison the scoundrel discovered another opportunity for making money by suing for libel the tabloids who went to town over his past. This is where Sergeant Sullivan came in.

He had so ably defended the Irish patriot Sir Roger Casement on a charge of treason during the First World War as to win the legendary F.E. Smith’s (later Lord Birkenhead) admiration. But he fell foul of Irish nationalists because he believed that as a lawyer he could not refuse any brief. He was obliged to leave Ireland and settle down to practise in London. The man who helped him most was Gordon Hewart, who as Lord Chief Justice tried Hobbs’ case for libel in which Sullivan appeared for him.

Etiquette of the Bar Read these extracts from Sullivan’s memories and you get a measure of the man and of the etiquette of the Bar (pages 301-309). “I owed more than I could repay to the kindness of Hewart among any other friends for my establishment in practice, and it was a very extraordinary example of the difficulties of a counsel’s position that I should have been compelled in court to come into conflict with he who had so befriended me on behalf of the greatest scoundrel with whom I had come in contact in my professional life, William Cooper Hobbs.

“I cannot imagine a more loathsome and repulsive individual than William Cooper Hobbs. He was one of the infamous gang who contrived and carried out the biggest blackmailing scheme of the century, the bleeding of the Indian potentate who was supposed to be concealed under the title of Mr. A. There could not possibly be any defence to the action that Hobbs had brought. The whole theory of criminal jurisprudence assumes that when a man has been convicted and has served his sentence he shall be given a fair start in life again and this contemptible proceeding of blackening the character of even a ruffian of this type was a disgraceful thing… I had ever maintained as leader of my native Bar and continued to maintain that counsel are given exclusive audience in the High Court of Justice only on condition that they will place their services at the disposal of any one of the King’s subjects that desires their help. Any other rule would leave an unpopular man defenceless in the courts. No one hated Hobbs more than I did. That could not be, in my opinion, any excuse for depriving him of legal assistance in the circumstances of the case.

“The jury had hardly been sworn when the Lord Chief Justice (Hewart) proceeded to manifest his hostility to the plaintiff in this libel action. Indeed he made it perfectly obvious that he considered it was an insult to himself that I should appear before him and address the jury on behalf of Hobbs, but that was my task. He did not hate Hobbs any more than I did. He couldn’t; but it was the duty of us both to remember that every one of the King’s subjects is entitled to justice in the king’s courts…

“What secret communications were taking place between the Bench and the jury box nobody ever found out, but on the third day when we came into court the Chief Justice addressed the foreman of the jury in terms which indicated that the jury had agreed already to find a verdict for the defendants and the opinion of the Bench was that that should be recorded forthwith…

“The next case in the list was another libel action by the same plaintiff against another paper for a similar libel, and Lord Hewart proposed that the same jury should now be sworn to try the second case, whereupon, I fear, there was a rather unseemly dispute which ended in his declaration that as I would not consent to this reasonable proposition he would send the papers to the Public Prosecutor to deal with the plaintiff and he would fix a trial of the second action before himself and another jury next morning…

“Next day all proceeded with great regularity according to plan. I moved for an adjournment upon an affidavit which I read; my motion was refused. I was refused leave to appeal from the refusal. I withdrew from the case and left the court, went into the Court of Appeal and got all I asked for while the second jury were directed to find a verdict for the defendants. I was not aware of my histrionic capacity until the second day of the hearing of the appeal when Norman Birkett complained that I was making the court jump, and I learned that instead of mumbling through the shorthand notes I was giving a really good reproduction of the Lord Chief Justice presiding at the Hobbs trial…

“The judgment of the Court of Appeal was a vindication of what had been no doubt a dangerous proceeding, but the managing clerks fought shy of me for a long time afterwards because it was not wise to give a brief to a counsel who would not lie down at the smallest sign of hostility on the part of the court. All the actions for libel were settled and out of them these horrible creatures received sums amounting to £17,000 damages…

“I was very unhappy. On behalf of this brute I had quarrelled with and apparently insulted a friend to whose sincere kindness I was deeply indebted. I could not see what else I could have done, and the Court of Appeal, my colleagues and the Bar all agreed with me. It was, therefore, with great relief that I received a message through a mutual friend that the Chief wished me to know he had appreciated, too late, that he had driven me into the position in which I had to cringe or fight and if he had reflected he would have known well that I had to fight. Some time later I was passing down Fleet Street on my way to my train when I met him coming up from the Old Bailey. I saluted him and was about to pass, when he stood in front of me. ‘Sergeant,’ he said, ‘you and I never met without stopping to have a chat. I hope we are not going to pass one another ever again.’ We did not, and I rejoiced to find that our cordial personal relations continued with full freedom on both sides to engage in professional belligerency.”

That is what the law and decency require of a lawyer.


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