Friday, July 31, 2015


Yakub Menon - picture courtesy Wikipedia
Yesterday, on my way to the Supreme Court, my driver asked me a question, echoing the popular sentiment―should the lawyers do what they did to save the life of Yakub Menon, a terrorist. Here is my take on this. 

There is some criticism of lawyers, who appeared to save life of Yakub Menon. There was criticism of lawyers, who appeared   in Indira Gandhi murder case: even the then Prime Minister of India criticised them. He also had made a statement in this regard in the Parliament on 10, April 1989. These  sentiments are unfortunate. They misunderstand the role of lawyers. 

The judges are like Yuyutsu (युयुत्सू), the step brother of Duryodhan, who listened to his conscience irrespective of his allegiance. But the lawyers are like Karna or Arjun: they appear for the side that they are briefed. 
The public sentiments are not to be faulted as they do not understand the role of the lawyers. They seem to share the sentiment of Jonathan Swift in Gulliver's Travels, where he observes that the 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’.  They fail to understand that no lawyer can or should refuse any case merely because of the personalities or issues involved.

One must remember, advocates were pressurised and advised not to accept the cases of detenus during internal Emergency; some were even arrested (see articles 'Habeas Corpus case' and 'Log Book 109-111' in the chapter  'The Emergency'); they  were also criticised for defending Sikh soldiers charged with mutiny in 1984: I remember it well for I was involved in both incidents.  (see Appendix-1 below).  

The duties and traditions (dharma) of a lawyer cannot be better expressed than the speech of Thomas Erskine, while defending Thomas Paine for writing the book 'Rights of Man'. But before I tell you about the same, some words about Erskine.

Thomas Erskine
Thomas Erskine is reckoned to be the greatest advocate of all times.  According to Lord Campgell, as an advocate, Erskine was without an equal in ancient or modern times. He defended his client as if his own life was in danger.

Erskine was born in the eighteenth century of noble parents, who had fallen into hard times. He took up law on the advice of Lord Mansfield.  He had no briefs and got his first case to defend Captain Baillie by chance.

The First Case―Captain Baillie
Captain Baillie was the Lieutenant Governor of Greenwich Hospital, which was meant for seamen.  However, the persons in high places (Lord Sandwich, the first Lord of Admiralty) found it convenient to put their civilian friends there, reducing the funds for the sailors. 

Initially, Captain Baillie complained and when nothing was done, he published a pamphlet pointing out the irregularities. He was not only suspended but prosecuted for criminal libel. 

Erskine had no work. One day, while sitting in a coffee house, he offered his opinion to a naval officer; criticising the action taken against 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 the conference, his colleagues were for settling the case but Erskine advised against the same.  Baillie also never wanted to compromise and he asked Erskine to argue his case.  

This is how Erskine argued (from the book.' All Jangle And Riot―A barrister’s history of the bar' by RG Hamilton)
‘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’ 
Erskine started his speech in defence as an unknown beginner at the Bar and ended as a national hero.  He won the case and Captain Baillie was acquitted.    As he left the court room, solicitors were after him to argue their cases; thereafter, there was no shortage of cases.  

Defence Speech for Thomas Paine
At that time, Thomas Paine wrote a book titled 'Rights of Man'. It contained several offensive remarks about the monarchy, for which Paine was prosecuted for seditious libel. The prosecution was conducted in absentia, as Paine had fled to France.

Erskine personally never approved of the book. In fact, at that time, very few in England did. Erskine was Attorney General to the Prince of Wales.  He was advised by Lord Loughborough not to take Paine's brief. But Erskine refused. He accepted the case for the defence. 

Erskine's address to the jury sums up the role of the 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.’ 
Despite Erskine's defence, Paine was convicted and Erskine had to pay the price: he lost the office of Attorney General to the Prince of Wales. But his speech is still a model that should guide a course of action for lawyers.  One may criticise the criminal; his crime: but there cannot be any criticism for the lawyers, who appear in a case. They just do there duty. 

Court Martial of Sikh JCOs and NCOs after mutiny at Sikh regiment centre.
After operation Bluestar, Sikh Sepoys of Sikh Regiment Centre Ramgarh looted arms and ammunition, killed their Commanding Officer and proceeded for Amritsar. They were apprehended on the way and court-martialled.

The recruits, who had yet to take their pledge (कसम) were court marshalled at Jabalpur. The JCOs and NCOs were court-martialled at Allahabad.  I had defended them at Allahabad.

I had done many writ petitions against the court martial but this was my first and the only experience of the court martial. In a trial by jury, the Judge is a legally trained person and advises the jury for their verdict on question of fact. At that time, the jury only has to say guilty or not guilty. 

In a court martial, the defence personnel (normally three, five or more with one as a presiding judge) are the judges.  They are not legally trained. There is a judge advocate, a legally trained person who advices them. They used to pronounce guilty or not guilty but now have to give brief reasons.    

In a court, judges 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 risen. It is discourtesy to leave a judge alone in a court. But in a court martial it is the other way round, judges are first to enter and last to leave. I was told that this is due to security reasons. 

The other difference that 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, I did not ask for the time and Judges got uncomfortable. Then I was advised by the defence officer to seek adjournment and I did so accordingly. 

For those tried at Allahabad, the maximum punishment was death penalty.  The Court martial could not proceed unless a defence counsel was provided. 

The atmosphere was very tense because of the assassination of Mrs. Indira Gandhi. There was so much of animosity that many refused to talk to Sikhs and 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 not only criticised by my friends (in the defence or otherwise) but also by the professional colleagues. My father was the only one who supported me. 

The JCOs and NCOs, who were tried at Allahabad, were generally given five years rigorous imprisonment and were dismissed from service. However, the recruits, who had not taken their pledge (कसम), were court-martialled at Jabalpur. They were not dismissed but were sent to different units.  
Yuyutsu listening to his conscience - picture courtesy 'Mahabharat' serial

1 comment:

  1. I perceive, advocacy is not a call of spirit, but it is an art.


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