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Trials & tribulations
A few days ago, I was offered a legal brief to seek bail in the SC for a person whose case has acquired a considerable amount of notoriety, writes Abhishek Singhvi.
A few days ago, I was offered a legal brief to seek bail in the Supreme Court for a person whose case has acquired a considerable amount of notoriety. Since the court vacations were on, the monetary fee quoted by me was considerable and substantial. Presumably because the stakes were high, the instructing advocate readily agreed to pay the steep fees. However, a day later, I said no and told the advocate that although I had no conflict of interest and was available on the relevant day, I just felt a certain amount of personal hesitation, a large twitch of the conscience and a feeling of guilt. I was thus forgoing a very large fee for a few minute’s appearance and also refusing a brief despite having had similar doubts about the correctness of my cause on earlier occasions but not having taken the same action.
All arguments of logic only highlighted the unsustainability of my stand. I have always believed that lawyers neither choose their clients (or causes) nor judge them. That, after all, is what judges are for. Nor do lawyers have the wherewithal and material that a judge has (including the benefit of full oral adversarial arguments) to judge their clients ex parte at the threshold. If lawyers started projecting their value judgments into the causes they represent, those accused of heinous crimes would never get legal assistance.
Even two of the accused in a seemingly open and shut a case as that of Indira Gandhi’s assassination were ultimately acquitted (one by the high court and the other by the apex court). That could not have been possible if revulsion at the deed in question had precluded any lawyer from taking up the brief. Such examples are in plenty. Finally, the essence of what my legal training and experience have taught me is that there are hardly any situations in real life that are absolutely black or white — the vast majority exhibit large shades of grey, which make it possible to give benefit of doubt to an accused. The ability of a lawyer lies in exploiting those areas of grey within permissible limits of law to get that benefit of doubt for his client.
The other problem is that if you refuse a brief once on such considerations, how and where do you draw the line in the future? The purist or the logician will gleefully rub his hands every time you accept a brief of dubious validity or messy facts and prove how inconsistent and arbitrary you are.
After much thought and introspection, I have come to the conclusion that the norm must remain in taking up briefs irrespective of your personal predilections or beliefs. One cannot be true to the dharma of one’s profession — be it law, medicine or engineering — unless one does it to the best of one’s ability, irrespective of the lack of faith in the cause one represents or the despicable and dispensable nature of the patient one is obliged to treat or the Nazi origins of the autobahn one is asked to engineer. A Chinese wall — however artificial and however temporary — has to be created to isolate personal disgust from professional objectivity.
I am still left with my existentialist dilemma of how to justify what I did only a few days ago and how, if at all, to create a dividing and defining line for the future between acceptable and non-acceptable briefs? I can only furnish a subjective conclusion. Although one must lean strongly, very strongly, in favour of the norm elaborated above, if one finds that personal aversion to the merits of the cause one is asked to represent is so humongous as to disable one from doing justice to the brief one has accepted, it is best to refuse it at the outset.
The test must thus harken back to one’s professional dharma, viz. an inability to discharge that dharma fully and without inhibition. Subjective likes and dislikes on such issues would play havoc with the discharge of professional functions and duty.
Anyway, as far as the case in question is concerned, I am happy to say that it satisfied even the above test that I am now retrospectively applying.
Assam’s fortune
Having appeared in every high court of the country (except one) more than once, my maiden appearance at Guwahati High Court was like a milestone in my legal career. But since the case did not take off, I was able to spend some part of the day seeing the city, interacting with the media and spending time with Chief Minister Tarun Gogoi.
What struck me about Gogoi was the remarkable combination of graceful age and experience with youthful progressive ideas. Here is a CM who not only pulled off one of the most remarkable repeat victories for an incumbent government (the first time since the early Seventies and despite dire prophesies of imminent defeat) but who, for the first time ever in India, had the foresight to engage the main group of separatist Bodos more than two years before the 2006 assembly elections, thereby paving the way for their ultimate electoral alignment with the Congress and their active participation in the mainstream by being stakeholders in governance.
It is clear that his easy, laidback manner conceals a sharp and analytical mind, which reflects the enviable experience he has had in almost every level of decision-making. Starting his career as a Lok Sabha MP, he has been joint secretary, seconded to Rajiv Gandhi, general secretary, AICC, minister of state and later of the central cabinet, PCC chief of Assam and finally CM of his state. He brims with ideas about infrastructure development and urban renewal in Assam and has surrounded himself with efficient young ministers who are prepared to experiment. As I left Assam, I had no doubt that the state had a great future to look forward to.
