You might have come across a recent personal interview of Mr. Prashant Bhushan in the Hindu, with the title ‘The independence of the judiciary has collapsed: Prashant Bhushan’. Mr. Bhushan is a well-known public interest advocate practicing at the Supreme Court. The interview covered his views on the Indian legal system and judiciary.
Of his answers, one was unsettling. The question was whether there is scope in the system for lawyers to act on their own principles. Or should they accept any case that comes to them? In this context, the interviewer referred to another well-known advocate, Mr. Shyam Divan. He mentioned that some people were surprised to see Mr. Divan defending Sudarshan News.
Mr. Divan had defended the TV channel in the Supreme Court against a petition filed by one Firoz Iqbal Khan. Khan filed the petition for stopping the broadcast of a show titled “Bindaas Bol” on the channel. His petition claimed that the show promoted hate speech.
The following was Mr. Prashant Bhushan’s reply to the interviewer’s question:
“The view that a lawyer’s job is to take up any professional brief that comes to him is not quite correct in cases where the issue involves some public interest consequence… if a lawyer chooses to represent Sudarshan TV in a case whose outcome clearly has an important bearing on public interest, and thereby lends his credibility and face value to a cause which will have a detrimental effect on public interest, then he is doing public interest great harm.
We all know that the view that cases are decided irrespective of the lawyer, his competence, his face value or his connections, is just a fairy tale…”
Mandatory For Lawyers To Accept Any Incoming Brief
The view that a lawyer should take up any professional brief that comes to him is, in fact, as old as common law. It also has inspired the framing of a rule by the Bar Council of India for the conduct of advocates:
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 practice 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.
Mr. Bhushan seems to have missed the point of this rule and the underlying view. And that indeed is surprising, him being a seasoned lawyer.
Here are the reasons why this rule is relevant:
India Has An Adversarial Legal System
Mr. Bhushan must know all about the functioning of an adversarial legal system. A case may have a cut-and-dried, obvious conclusion. Yet it cannot go uncontested in an adversarial legal system unless one of the sides gives in. In an adversarial system, lawyers present opposing factual and legal aspects of a case to the judge or jury, so that they may reach a conclusion by weighing all such aspects. The other kind of legal system- the inquisitorial legal system- relies only on the judge. It doesn’t have any need for lawyers.
And India has an adversarial legal system. Hence, a lawyer’s job under the Indian legal system is not to be the judge of the matter. Mr. Bhushan’s advice on what a lawyer should do to serve public interest runs contrary to this concept.
I cannot explain this better than the English advocate Thomas Erskine (1750-1823):
“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 the 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 principles of English law make all assumptions, and which commands the very Judge to be his Counsel.”
When a credible senior lawyer denies a brief, he influences the opinion of the court in the case. And he does this without even having taken up the other brief. How can one reconcile this with the job of a lawyer?
Contradictory opinions of Mr. Prashant Bhushan
In effect, Mr. Bhushan has advocated the very kind of decision-making he fights against. In the same interview, he questions the basis of the appointment of judges as follows:
“Some judges are competent and have integrity but have no judicial temperament whatsoever. They come to the court with a made-up mind, are not prepared to listen… why are these aspects not relevant?”
One wants to ask Mr. Prashant Bhushan a question here. Wouldn’t a lawyer pre-judging a case be worse than a judge with a pre-conceived notion of the case?
Preservation Of The Rule Of Law
Also, if it was not for this mandatory drafting of an advocate into the job, how could the ‘rule of law’ be preserved? How could people accused of offences like terrorism and rape find legal representation? How could an advocate fearlessly represent the accused in such cases? And if that was not to be, how would legal advice be ensured for every accused? A right the Constitution of India guarantees to every person accused of a crime.
The Supreme Court in A.S. Mohammed Rafi vs. State Of Tamil Nadu (2011) 1 SCC 688 denounced the practice of Bar Associations passing resolutions against its members representing particular persons. It noted:
“[T]he action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and professional ethics… right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the consequences.”
Growth Of Law
Finally, if cases were only to be decided on the basis of public interest, laws would become redundant. In fact, what a lawyer representing an unpopular party in a case does is serve the cause of law. He/she ensures that the court tests the law on the subject. And that law governing the field emerges clearer and evolved.
The Real Problem as per Mr. Prashant Bhushan
In Mr. Prashant Bhushan’s outlook, the problem is that the lawyer’s fame may unduly influence the judge. And in particular cases, such influence could harm the public interest.
Even if that be the real problem, the only solution is to have a stronger judiciary in place. And not to have the lawyer begin acting as the judiciary. We need a judiciary that has as much credibility and holds as much conviction as any senior lawyer- so that it can apply the letter of law despite the scale of a lawyer’s influence.
In the Sudarshan News case, the Supreme Court has, for the time being, stayed further telecasts of the show. And it did so, despite a lawyer with the “face value and credibility” of Mr. Divan representing Sudarshan News.
Agreed. A petitioner/accused has every right to be represented in a court of law, under the Constitution, hence Mr. Bhushan’s rant is not justified.
But: The judiciary’s credibility has been severely eroded by the judiciary itself. Lower court judgements are overturned by the higher courts, sometimes in a jiffy and the honourable justices are sometimes chastised by the higher courts. Cases drag on for eons, sometimes well past the death of a petitioner which amounts to blatant denial of justice. People are scared of going to court. We all have seen how the disinterested party manages to drag the cases on and on.
Judiciary needs a complete overhaul.
That’s true. A lot many reforms needed in the judicial system.
Very true
Prashant Bhushan is a very learned fellow and it’s quite difficult to perceive what his frame of thoughts were when he made the statement. I would believe a lot will be due to current state of affairs on multitude of critical legal issues which Judiciary is facing and the way they have been prioritizing or de-prioritizing. Supreme Courts are holder of constitution for the nations and its expected that they take lead in setting examples and correcting the path and not let the nation stray from the written constitution. If it’s perceived by few eminent lawyers that this not happening then thoughts and viewpoints can be muddled.
Mr Bhushan is a career-critic who has nothing positive to offer. He has no regard for how his public comments undermine institutions such as the Supreme Court.
For him to question a Senior Advocate representing a litigant party in a court of law is unpardonable. Someone brought up in a household which had an eminent Sr Advocate Shanti Bhushan (father) should know better.
Anyways probably the answer to people like him is to oppose them through resolutions and articles/ pieces such as this present one.
Keep going- Neha.