Don’t judge the lawyer

The debate over the proposed appointment of criminal lawyer Uday Lalit as a judge of the Supreme Court has brought to the fore an issue that goes beyond how judges are chosen and appointed. It underscores how dangerously erroneous society can be in judging lawyers, thereby risking the very rule of law.

The insinuation is that Lalit is inappropriate for judgeship since he was lawyer for former Gujarat Home Minister Amit Shah in cases involving allegation of illegal police killings of Sohrabuddin Sheikh and Tulsiram Prajapati. It has not helped that Lalit was proposed as a replacement of Gopal Subramanium, who withdrew his candidature to be appointed as a judge. When the Government curiously singled out Subramanium’s candidature for re-consideration, he attributed the Government’s mistreatment to his display of integrity and independence as amicus curiae in the same encounter killings case.

There have been conflicting reports about whether Lalit at all appeared for Amit Shah. After days of controversy, a news report has indicated that Lalit chose not to respond or clarify, but that Lalit never held a brief for Amit Shah.

Regardless, Amit Shah would not have been Lalit’s sole high-profile brief. He is reported to have represented Congressman and former Punjab Chief Minister Amarinder Singh (who incidentally defeated Arun Jaitley in Amritsar) in a corruption case, actor Salman Khan in a wildlife poaching case, Hasan Ali Khan in money laundering charges, and cricketer Navjot Singh Sidhu for culpable homicide charges. When his potential elevation as a judge was making news earlier this month, he was conducting a trial as a prosecutor in the high-profile 2G spectrum allocation trial, cross- examining former telecom minister A Raja. He is said to have been on a government lawyer panel for years.

Yet, at a time when it is difficult to convey any message longer than 140 characters, headlines that say ‘Amit Shah is now BJP president, his lawyer a judge’ evidently distort not just the truth, but the very justice delivery system. There can be no worse an injury to a lawyer than associating her identity with a client. When a society equates charges of crime with findings of criminality, it is totalitarian. When society equates the profile of integrity and competence of its lawyers with the profile and political position of their clients, it inexorably pushes for a breakdown of the rule of law, by subverting access to effective legal representation. Here is how.

A lawyer aspiring to be a judge would then have to think a hundred times before accepting any brief that could turn controversial. If society can be indifferent to the morality of a doctor who saves the life of a patient accused of a heinous crime, it should not be too complicated to see legal representation in similar light. Indeed, doctors saved Ajmal Kasab’s life. They hardly made news. However, with Kasab’s trial, even senior lawyers and educated citizens rooted for a death penalty without trial. On the streets of Mumbai, that translated into any lawyer who dared to do her duty by representing Kasab being physically assaulted. It is such intimidation that will lead to degeneration of constitutionalism and the rule of law, and worse, will dehumanise our society as a whole.

Muck-raking around any appointment to a prestigious office is natural. Accusations and objections are flung at the candidate — in much the same way complaints flood the capital markets’ regulator when a draft offer document gets uploaded on the internet. However, the factors for appointment to a judicial office (a professional and dispassionate role) are quite different from those for appointment to a political office such as a governor (where an incumbent can be rewarded with office at the pleasure of the elected political executive). A judge is required to rule on matters before her, dispassionately applying the law to facts without fear or favour and uncaring for consequences outside the realm of law and justice. If she has interests or connections that could potentially impact her judgement, unimpeachable conduct would demand that she recuses from the matter.

The United States of America has institutionalised the process of mud-slinging by providing for conformational hearings, where elected politicians can raise and resolve all sorts of issues and confirm or reject the appointment, if necessary, by a vote. In the absence of such a system, we leave our lawyers and judges vulnerable and defenceless when their integrity is sought to be tarnished at such a juncture. Not only is society’s trust in the judiciary disturbed, good lawyers become reluctant to consent for judgeship since it can mean controversy.

Every lawyer is duty-bound to accept any brief at a fee consistent with her standing. That a brief can turn politically controversial is not grounds for refusing a brief. A lawyer is obliged to use all fair, legitimate and honourable means to uphold her client’s interests regardless of her personal opinion. Her loyalty is to the law. Judging her client’s guilt is the court’s role. The lawyer is but one of the officers of that court.

If having had a controversial client becomes a disqualification for judgeship, particularly when the client becomes politically significant, the legal profession will be intimidated against merely carrying out a professional duty. Not too long ago, Kerala Congressmen were upset that party spokesman Abhishek Manu Singhvi represented a local lottery distributor. The Bharatiya Janata Party had once expelled Ram Jethmalani for representing convicts in the Indira Gandhi assassination case. One of them was actually absolved in appeal. Both these politician-lawyers had stood their ground.

Clients who want a lawyer who would associate and identify herself with their identities and fortunes do a big disservice to themselves — they disrupt the objectivity that is critical for a lawyer to do her best. When society identifies a lawyer’s merits by who her clients were, it does itself an even bigger disservice — it erodes the objectivity and fearlessness critical for the rule of law.

( Somasekhar Sundaresan is a lawyer who can be accused of defending politically incorrect clients )

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