Editor’s Note: Against the backdrop of the Prashant Bhushan contempt case, Talha Abdul Rahman* asserts that lawyers are ambassadors of rule of law and should courageously point out any wrongdoing or arbitrariness in the conduct of those in authority.
A career in litigation is fraught with fresh challenges every day. Lawyers are humiliated by judges for making an argument on behalf of a client and are frequently threatened with costs for persisting. Both of these aspects are rather routine for lawyers – and many of us may have already witnessed either or both. It is for this reason that the Bar Council Rules on Professional Ethics contained in Part VI, Chapter II of the Bar Council of India Rules provide that “[an advocate] shall not be servile ….“
The Bar Council Rules on Professional Ethics conclude by stating “…. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client …”. The Rules emphasise on being fearless in court, and even outside as lawyers who often have to represent and fight on behalf of the meek and the powerless.
All litigators are ambassadors of the rule of law. Any person who has a grievance with anything that is not fair is expected to approach those ambassadors to ascertain their recourse. It is for this reason that litigators are virtually the first point of contact when a person decides to approach the judicial system. Therefore, as ambassadors of the rule of law, litigators are expected to stand tall and be courageous.
The system of appeal from lower courts to higher courts is premised not on the basis that appeal judges are fairer or smarter than the judges who decide the judgment appealed against but is premised on that the fact that a person who feels wronged by a party and also by court below has a fair right to recourse against that judgment.Thus, most lawyers in the appellate courts play a vital role in ensuring that adjudication against a person does not lead to erosion of faith in the judiciary as a whole. The lawyers of courts of first instance as well as lawyers in appeal stand as a wall against the arbitrary conduct of private parties and the State (including against the arbitrary or erroneous conduct of the judge). Therefore, it is important to remind all litigators that what sets them apart from any other professionals or service providers is their courage to point out to those in authority what is wrong and arbitrary in their conduct. Their attitude cannot be “servile”, even if flattery is the chosen style of advocacy.
During the freedom struggle and also during the emergency, many lawyers who spoke against the establishment or had a tendency to speak for freedom were incarcerated. Prashant Bhushan’s conviction for merely criticizing the Chief Justice of India for not doing enough during the pandemic is not only a chilling reminder of emergency days but also a demonstration of the right to free speech guaranteed under the Constitution being eroded.
The Prashant Bhushan conviction for contempt by the Supreme Court of India hardly comes as a shock. The judgment, even thoroughly wrong, can have a general chilling effect on what is left of freedom of speech guaranteed by the Constitution. If it were to be taught as a lesson that young lawyers must learn in their classroom or as young members of the bar, it could dishearten them from talking about injustice generally. Since bar is the mother of the bench, a weak bar is not likely to produce judges would defend the powerless against the incursions on liberty.
Therefore, law students and young lawyers should not find their courage and conviction constrained by the 108 page judgment in Bhushan’s Case, , for it does not offer any lessons in either law or language. It is a judgment of the Hon’ble Supreme Court of India, which we all know is right but only because it is final. If the book “Supreme But Not Infallible” were to be released today with this title, it would probably be held to be contemptuous – for it evaluated the first 50 years of the Supreme Court and summed it up as being Supreme but not infallible. In my view, such a title has as much tendency to risk ‘dignity’ of the Supreme Court of India as much as Bhushan’s tweets. In fact, if there is anything that young lawyers should learn from the judgment in Bhushan’s Case, it is the overwhelming support that free speech and courage has received from many lawyers, academicians, and scholars.The public outrage against Bhushan’s conviction for criticizing the Supreme Court of India is at the centre of what constitutes courage – a necessary virtue for legal practice. At the heart of Bhushan’s tweet is the premise that he attempted to give language to the pain of the powerless.
Fortunately, law schools today don’t teach law alone. They teach what Dr Ben Heineman calls “complementary competencies” that are necessary to play leadership roles in the legal profession – and that is how each law student should prepare himself or herself for what lies ahead. Learning with the belief that lawyers are leaders.
*Talha Abdul Rahman graduated from NALSAR University of Law, Hyderabad (2008) and was awarded Shell Centenary Chevening Scholarship (2008-09) tenable at Oxford University to pursue B.C.L. He worked with the dispute resolution team of AZB & Partners (2009-2011) before moving to Lucknow to practice law before the High Court and trial courts. Since, 2012, he has been practising in Delhi. The views expressed are personal. We would like to thank the Author for contributing to our Blog.