Editor’s Note: In the final part of his series on truth as the normative goal of the judiciary, Justice K. Kannan analyses three systemic hurdles in securing truth – the Fundamental Right against self-incrimination, privileged communications and professional ethics. He ends his three-part series with a noteworthy message to all members of the legal community, especially lawyers.
Factors that dilute the intensity of the search for truth
The right against self-incrimination is a fundamental constitutional guarantee under Article 20(3): “no person accused of any offence shall be compelled to be a witness against himself.” This right is espoused on the maxim “nemo teneteur prodre accussare seipsum”, which essentially means that no person is bound to accuse himself. It allows an accused to remain silent without fear of inviting any adverse inference. The law has changed in the USA, Australia, Canada, UK and China. Apprehending that India may be tempted to go the same way, the Law Commission took suo motu notice and presented its 180thReport pleading for its retention claiming that the right is otherwise guaranteed under Article 21, Sections 161(2), 312(3) and 315 of the Code of Criminal Procedure, 1973. It is a brazen reality that we live in a country where custodial violence is rampant, and the police machinery has still not come of age with requisite technical expertise to interrogate without adopting third-degree methods. The day that a police officer is not seen as an oppressive authority but a friendly person in uniform to assure safety, a confession to the police may obtain probative value; however compulsive the retention of this right is, it cannot be denied that even a truthful statement has no value; this diminishes the effect of voluntary disclosure of a truthful statement and robs the chance for atonement. Even a confession to the Magistrate could be retracted and, in any event, when the accused meets with legal counsel, chances of persisting with the truth become remote.
Statutory privileges
The Indian Evidence Act, 1872 provides for several situations that prevent certain persons from being cited as witnesses, even if they might know the truth. They cannot be administered oath or compelled to stand testimony to reveal the truth. Communication during coverture of one spouse to another is barred under its Section 122. Similar privilege is extended to professionals, like a legal practitioner to disclose any communication made to him in the course and for his engagement as counsel. Only communication made in furtherance of an illegal purpose or commission of offence during his retention as a counsel which was directly observed by him does not enjoy immunity. If one sees the attorney as the alter ego of the accused, this protection shall be the necessary corollary for the right against self-incrimination that is constitutionally protected.
Even ethical codes lay no emphasis to truth
Apart from situations where a professional cannot be compelled to be a witness against his client in respect of communications, the legal fraternity feels itself not obliged to deny a brief on ethical grounds that it shall not be party to falsehood. The justification at all times is ‘I only act as an agent for a client; sounding his surrogate voice and if he tells a lie, it is not my fault’. The ground could also be ‘I am bound to do what will secure to my client the best results, that is why I am engaged. I do not need to preach morals to him. Nobody prevents the judge from finding what is true. If the civil court judge finds the case false, he dismisses the case. If the criminal court judge finds the case to be false, he convicts the accused. My role ends where the judgement is pronounced’.
They cite the Bar Council of India Rules of Conduct and Etiquette, where under Section II (Advocate’s “Duty to the Client”) it states: “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 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.” No lawyer refers to the latter part of the Rule that allows a lawyer to deny the brief if there are special circumstances. There is no reason to suppose that a false case of the party and assessed as such by the lawyer himself should still claim that there is at all times a moral duty to represent his client even if he knew that the case is false. Why is it difficult to deny oneself the engagement by characterising the falsity of the case of his party to be a special circumstance to refuse to represent him, or his vow to preserve the purity of his practice shall not be sullied by a false version in court? What worth is the practice if the lawyer will wear blinkers and suffer a handicap that he places himself to elicit the truth or otherwise of the person who seeks his counsel?
Richard Dawkins, one of the most influential contemporary scientists in his book Science in the Soul: Selected Writings of a Passionate Rationalist observes:
“A barrister who uses eloquence to make the best case he can, even if he doesn’t believe it, even if he selects favourable facts and slants the evidence, would be admired and rewarded for his success.”
He recalls an incident when he was once talking to a barrister, a young woman of high ideals specializing in criminal law defence. She expressed satisfaction that a private investigator whom she had employed had found evidence exonerating her client, who was accused of murder. Dawkins congratulated her and asked the obvious question, what would she have done if he had found evidence proving unequivocally that her client was guilty. Without hesitation, she said that she would have quietly suppressed the evidence. She said, “Let the prosecution find their own evidence.” If they failed, it was not her fault.
In all this, across the globe, we have reduced courts to be institutions where anything could be stated with impunity that has little semblance to truth. There is no incentive for any party to speak the truth. The very tools of extracting truth are not sharp enough to dig deep to unravel it. We need different tools, different formulations. By litigation, let us understand that it shall be through the truth; it shall be for upholding justice. There is enough work for all the lawyers even if they stick to these ethical principles. It is wrong to assume that to be prosperous we need to generate false cases. The resolve must begin at the formative years even while readying oneself to be a lawyer.
Lawyers hold the key
If our commitment to truth in human interactions is genuine, we need to believe that courts shall not be the places where any falsity is stated with impunity. A person who says, for false prestige, that he will fight up to Supreme Court, knows that he has buyable lawyers who will fight for him even worthless cases with no merit. He has no fear that a counsel will refuse his brief even if the case is brazenly false. He has no fear that the court will proceed against him for perjury even if the court finds his evidence to be false. He is confident that costs will not be imposed on him even if the case were to be dismissed, for dismissal with both parties to bear their own costs at appellate courts is the norm. Endless appeals and revisions up to the Supreme Court for all matters are a bane and a clear invitation to try all the judicial tiers and abuse the judicial process. Unless lawyers see themselves as torchbearers of justice and ethically vow to uphold only truth and not file false cases, the misuse by litigants cannot abate. It is impossible to make the whole population virtuous and practitioners of truth, but is it too much to ask of the practitioners of law, who are a small percentage of the entire population that they must abjure false and frivolous cases?
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