Blame Brain Drain?

 Posted on January 06, 2009 in Uncategorized

[Co-written by Jennifer Bennett.]

The Bombay Metropolitan Magistrate Court Bar Association has adopted a resolution barring its members from representing Mohammed Ajmal Kasab (Law and Other Things blog), the sole surviving November 26th attacker.

Lawyers often feel pressure not to represent people associated with unpopular causes. I remember that Doug Tinker (RIP Doug) initially declined to represent Yolanda Saldivar, Selena's killer. But then he came to his senses. It's easy for a lawyer to find an excuse not to represent the unpopular defendant. But representing unpopular people is our job.

Rohini Wagh, President of the BMMCBA says that terror suspects "must not be defended". His reasoning? "Besides the human right of a terrorist,we have to look at the human rights of the innocent victims aswell." (

Admits a Supreme Court advocate who has represented a terrorsuspect in the past, "It's not just to do with the failure of thecriminal justice. There are other factors involved likeanti-nationalist sentiment."

"Everything in court is sopro-establishment. I don't want to take up such cases because I do notwant to be branded as a lawyer who takes up such cases alone," she sayson condition of anonymity. "Also, I have no love lost for these people(terror suspects). You could say my decision is a tactical career move."

(Livemint.) The anonymous Supreme Court advocate is anonymous for a reason: she knows that she's wrong.

Why is she wrong? As in the U.S., it's the law. (Times of India.) Also,

One, it mocks the notion of presumption of innocence till guilt isproven. Not only is that a cornerstone of law, enshrined in theUniversal Declaration of Human Rights (which turned 60 on 10 December),but also guaranteed in the Indian Constitution-something, I presume,the bar association members know a bit about. If lawyers startprejudging clients responding to public mood, the consequences areanarchic, with an extreme conclusion being mob justiceTwo,it undermines the rule of law and fair trials, or what India rightlyclaims as values separating it from its enemies. Indian jurisprudenceis fairly well defined when it comes to the rights of the accused. Animpartial judge, a government-appointed lawyer and a quick trial donot, in themselves, make for a fair trial. An accused needs duerepresentation irrespective of the mood of the nation. Three,this is like scoring an own goal. It makes those who hate India feeltheir nihilist narrative-shoot first, ask questions later-is justified,because India does the same. Why must India stoop to their level? Thereis nothing to conquer through such stooping.

(London writer Salil Tripathi in Livemint.) New York lawyer Vishnu V. Shankar provides the obvious "liberal" argument for providing Kasab:

Even the most reviled of defendants must receive legal representationbecause criminal defence, as an ideal, is more about defending liberty,fairness and the rule of law, and less about defending the actions ofindividual defendants.

As well as a "conservative" argument.

Mumbai lawyer Trideep Pais says, "Criminal justice in our country has to reach a point where no one isdenied his right to be represented. And when I say I am representing aterrorist, one will merely gasp-but that's all. There should be novalue judgement on whom the lawyer is representing." (Still Livemint.)

India has been through this before. Lawyers in the state of Uttar Pradesh collectively decided to boycott cases of those accused of terror strikes, and beat up lawyers who defied this diktat; after a 2001 attack on India'sParliament, lawyer Ram Jethmalani was representing one of the accusedbombers, Delhi University lecturer S.A.R. Geelani, on appeal.Jethmalani's Mumbai office was attacked by a pro-Hindu group as aresult. (Livemint again.)

So what does Jethmalani ("a colourful and controversial figure among lawyers and the Indian populace at large"), who has been down this road before (at least twice), say about representing Kasab?

"There is the express rule of the Bar Council of India that no lawyershall refuse to defend a person on the grounds that it will make himunpopular," Jethmalani said."That is something that shouldnever worry a lawyer. No lawyer worth the name should even talk aboutthis kind of a thing," Jethmalani said and asked the legal communitynot to worry about peer criticism while taking up such cases."No lawyer has the right to say that he will not defend an accused."


There are voices like theirs - Jethmalani's, Pais's, Tripathi's, Shankar's - in America, and voices like Wagh's and the anonymous Supreme Court advocate's. As in India, there are nationalism and fear. That nationalism and that fear, though, don't drive those like Wagh to gang together with threats of violence toward those like Jethmalani who defend the damned.

Not yet.

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