Tuesday, November 07, 2006


The role of lawyers is often misunderstood. This article clarifies it.

The Prime Minister has made a statement in the Parliament on 10, April 1989 about the defence lawyers in the Indira Gandhi murder case. His sentiments were rather unfortunate. The role of lawyers is often misunderstood. This is how Jonathan Swift places them in Gulliver's Travels, that lawyers are a,
'society of men bred up from their youth to prove that black is white and white is black accordingly as they are paid.’
And these sentiments are shared by many.

The Prime Minister misunderstood the role of the lawyers. So has the public. There was similar criticism when some lawyers took up defence briefs for the Sikh soldiers charged with mutiny in 1984. This happened after Operation Bluestar. Sikh sepoys of the Sikh Regiment Centre, Ramgarh, had looted arms and ammunition, killed their commanding officer, and started for Amritsar. I remember the criticism and the contempt for I defended them (see End Note-1). Many were court martialled at Allahabad (see End Note-2). No lawyer can or should refuse any case merely because of the personalities involved.

Let me tell you about the Thomas Erskine - one of the greatest advocates of all times. He was born in the eighteenth century of parents. Who had fallen on hard times. He took up law on the advice of Lord Mansfield. He had no briefs and got his first case entirely by chance and argued only because he had advised against compromising the case. His client also did not want to compromise (see End Note-3). He started his speech in the case as an unknown beginner at the Bar and ended as a national hero. According to Lord Campbell,
'As an advocate [He] was without an equal and ancient or modern times. [The reason -] he defended his client as if his own life was in danger'. (All Jangle And Riot- A barrister’s history of the bar by RG Hamilton; published by Professional Books Ltd.)

It was in his time that Thomas Paine wrote a book etitled 'Rights of Man'. It contained several offensive remark about the monarchy, for which Paine was prosecuted for saditious lebel The prosecution was conducted in absentia since Paine has gone to France. Erskine personally never approved of the book. In fact, at that time, very few in England did. He had been advised not to accept the case. Lord Loughborough went out of the way to tell him not to take Paine's brief. But Erskine refused. He accepted the case for the defence. His address to the jury sums up the role of lawyers.
‘I will for ever at all hazards assert the dignity, independence and integrity of the English Bar without which impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any Advocate can be permitted to say that he will or will not appear for an accused arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end. If the Advocate refuses to the charge or the defence, he assumes the character of judge, nay he assumes it before the hour of judgement and, in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into scales against the accused in whose favour the benevolent principle of English law makes all presumptions and which commands the very judge to be his counsel.’

It is besides the point that Paine was convicted or that Erskine lost the office of Attorney General to the Prince of Wales.

One must remember advocates were pressurised and advised not to accept the cases of detenues during the Emergency (see here and here). Erskine’s speech is still relevant today. It is still a model that guides a course of action for lawyers.

End Note-1: The recruits, who had yet to pay their pledge (kasm) were court martialled at Jabalpur. JCOs and NCOs were court martial at Allahabad. This was after Mrs. Indira Gandhi was assassinated. The mazimum punishment was the death penalty for those tried at Allahabad. The Court martial could not proceed unless a defence counsel was provided. The Court atmosphere was very tense, more so because of the assassination of Mrs. Indira Gandhi. There was so much of animosity that: many refuse to talk to Sikhs; no lawyer was willing to take up their cases. It is only after two cases were conducted by me that others took up their cases. I was criticised not only by my friends (serving in the defence) and outside (but also by my professional colleagues). My father was the one who supported me. This surprise may JCOs and NCOs, who were tried at Allahabad, were generally giving five years rigorous imprisonment and were dismissed from service. The recruits were not dismissed but were sent to different units on different purposes.

End Note-2: I had done many writ petitions against the court martial but this was my first and only experience of the court martial. In a trial by jury the Judge is a legally trained person and voices the jury for their verdict on question of fact. The jury only has to say guilty or not guilty. It is similar to a court martial though here Judges (normally three, five or more with one as a presiding judge) are defence personnel; not legally trained. They pronounced on facts as well as on law. There is a judge advocate, a legally trend person who advice them in a court judges normally enter after lawyers and litigants have entered and all present rise. It is discourteous if a lawyer, who has a case, is not already present. Lawyers also never leave a court till the judges have reason. It is discourtesy to leave a judge alone in a court. But in a court martial it is the other ways, judges are first to enter and last to leave. I was told that this is due to security reasons. The other difference I found was that the court has fixed timings. One has to conduct a case throughout the entire time or till the case lasts. But in a court martial, it is expected that the defence counsel would ask for the time in between. The first day in the court martial when I did not ask for the time, the Judges got uncomfortable and I was advised by the defence officer, who was briefing me, to seek adjournment.

End Note-3: This is in short how it happened, so well recorded in All Jangle And Riot A- barrister’s history of the bar by RG Hamilton.

'Captain Baillie was the Lieutenant Governor of Green Wich. The Hospital should have housed sailors only. But persons in high places found it convenient to put their civilian friends there. This was enough to cut the sailors’ ration. Captain Baillie complained many times of these abuses, to no avail; so he published a pamphlet criticising Lord Sandwich the first Lord of the Admiralty. He was not only suspended but prosecuted for criminal libel. Erskine had no work. In the coffee-house he overheard a naval officer. Erskine, generous with his opinion, offered him his. He launched into attack on the enemies of the Captain Baillie. As the luck would have it he was talking to Captain Baillie himself. This was how he was engaged in the case. But he was the junior most of the team of five selected to defend Captain Baillie. In conference his colleagues were for settling the case but Erskine advised against the same. Baillie though he was the man for him.
This is how Erskine argued "I cannot relinquish the high privilege of defending such a character," he said; "I will not give up even my small share of the honour of repelling and exposing so odious a prosecution... That such wretches should escape chains and a dungeon is a reproach to humanity, and to all order and government; but that they should become prosecutors is a degree of effrontery that would not be believed by any man who did not accustom himself to observe the shameless scenes which the monstrous age we live in is every day producing. Indeed, Lord Sandwich has, in my mind, acted such a part."
This was intolerable. Lord Mansfield intervened to remind him that Lord Sandwich was not before the Court. Erskine retorted:
"I know that he is not formally before the Court, but for that very reason I will bring him before the Court: he has placed these men in the front of the battle, in hopes to escape under their shelter, but I will not join in battle with them. I assert that the Earl of Sandwich has but one road to escape out of this business without pollution and disgrace: and that is, by publicly disavowing the acts of the prosecutors, and restoring Captain Baillie to his command"
He came to a thundering conclusion, "if he keeps this injured man suspended or dares to turn that suspension into a removal, I shall then not scruple to declare him an accomplice in their guilt, a shameless oppressor, a disgrace to this rank, and a traitor to this trust."
He started the speech as an unknown beginner at the Bar; he ended it almost a national hero. Even as he left the court, the attorneys flocked around him, to catch at his gown and brief him for their clients.'

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