Senior Advocate Dr Menaka Guruswamy’s appearance last week alongside Senior Advocate Mahesh Jethmalani before a two-member bench of the Supreme Court of India to oppose the Tamil Nadu government’s setting some conditions to the grant of permission to the Rashtriya Swayamsevak Sangh (RSS) to carry out route marches in the state had one of the judges expressing surprise that she wasn’t appearing “for the other side”.
These two links contain the background:
Suchitra Vijayan, author of Midnight’s Borders: A People’s History of Modern India, Barrister, Founder & Executive Director, https://www.thepolisproject.com/ @project_polis tweeted on Sunday, March 5, as follows:
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Whatever Justice V. Ramasubramanian’s opinion regarding the RSS might be, many others were more than surprised.
The RSS is a Hindu supremacist and ultra-nationalist outfit. Labels such as fascist and even terrorist are also frequently used.
Senior Advocate Dr Menaka Guruswamy has been featured on the TIME list of 100 Most Influential People:
Hence the interest in the reasons for her choosing to represent an almost century-old and powerful outfit, one of whose pracharaks = propagandists is currently the prime minister of India.
Now, there’s something called the Cab Rank Rule that lawyers are expected to abide by: Just as taxi drivers queuing up for customers are obliged to take their customers to wherever the latter wish to go, lawyers too are expected to take on anyone approaching them (with caveats):
“The obligation of a barrister (in certain jurisdictions) to accept any work in a field in which they profess themselves competent to practise, at a court at which they normally appear, and at their usual rates., with a few crucial caveats.”
Re them caveats:
Tweet by advocate Clifton D’Rozario of Manthan Law and leading member of the All India Central Council of Trade unions, https://twitter.com/clifroz/status/1632218882290384896 pointing us to an exhaustive rumination by advocate and jurist Gautam Bhatia re the Cab Rank Rule’s reality in operation:
(The following brilliant exposition is from 2018, re the now former BJP minister of state for external affairs M.J. Akbar’s defamation case against journalist Priya Ramani over allegations following the #Metoo movement)
Jurist Bhatia’s opening paragraph pithily says it all:
Recently, in the wake of the news that the prominent law firm Karanjawala and Co. was representing M.J. Akbar in his criminal defamation case against Priya Ramani, I tweeted that “it has repeatedly struck me how lawyering is the one profession where “I am doing my job” is offered up as a complete moral and ethical defence to the consequences that flow from “doing one’s job” (in this case, upholding deeply unequal power relations).” Perhaps unsurprisingly, there were a number of responses expressing disagreement with this sentiment. I know that it is at odds with the received wisdom within the legal community. In this post, however, I want to challenge that received wisdom.
Jurist Bhatia’s article deserves to be read and re-read in full. It contains links to rejoinders to it too.
Barrister Suchitra Vijayan:
“Any law or guidelines interpreted in favor of the powerful to justify what is an act aimed at mobilizing violence is a farce. We know what happens when RSS marches, and the violence it will unleash. We know their fascist history. Why outsource this deceit to the constitution?”
“Especially when lawyers across the country, defending the Constitution, are being persecuted, jailed and maligned.”
“In addition to the human and political cost, there is a moral cost to the decisions and their justification we ply every day that enables this regime. There is no obligation to defend monstrous men and their ideologies.”
“On the persecution of Jewish lawyers in Nazi Germany and the possibility for advocates to make choices even in the most difficult circumstances, to keep making a difference to people’s lives and nurture the spirit of resistance.”
Veteran journalist Geeta Seshu:
“We often think of the end point of Nazi rule being the Holocaust, but fail to see that the Holocaust itself became thinkable and doable because of a range of steps which led up to it.” Never more true than now, as we hurtle towards catastrophe, lynch by lynch
P.S 1: On Wednesday evening, I tweeted to Dr Menaka Guruswamy, seeking to know what motivated her to appear for the RSS.
P.S.2: Jurist Bhatia mentions Professor Kevin Jon Heller appearing for Radovan Karadzic before the International Criminal Tribunal for the former Yugoslavia: http://opiniojuris.org/2008/12/15/why-i-am-advising-radovan-karadzic/
Two pertinent extracts from jurist Bhatia’s brilliant exposition:
What are these moral and ethical arguments? Criminal defence lawyers have made them repeatedly over the years (see, for example, Kevin Jon Heller’s article justifying his choice to represent Radovan Karadzic at the ICTY), and there’s no dearth of material on the subject. But here is what’s of most significance to me: a criminal trial involves the State (in its capacity as the interrogator) against the individual (standing as an accused). It is perhaps the greatest imbalance of power that we can imagine in our system. Good legal representation in that context is needed purely to even out that fundamental imbalance. A lawyer I know once described it as achieving an “equality of arms”, and I think that that captures the core of the issue: the moral and ethical justification of legally defending the accused rapist, the accused murderer, and – yes – Ajmal Kasab – is the importance of the equality of arms as a fundamental value.
For me, the issue ultimately boils down to this: as the critical legal theorists realised long ago, law is not some neutral set of principles applied by neutral umpires to resolve technical disputes. Rather, law is inextricably linked with systems, relations, and hierarchies of power. The law can be used to interrogate power, to challenge it, to liberate and to equalise. But law can also be used to sustain power, to defend it, to entrench it, to enslave and to subordinate. As lawyers, we have the privilege of choosing the use to which we can put the law. Of course, we have the right to use it in any we choose to; but it seems to me that the choice comes with ethical and moral consequences, and we can claim no immunity from those.
Yes, someone will represent M.J. Akbar in his criminal defamation case against Priya Ramani.
But it doesn’t have to be you, does it? (Emphasis added)
P.S.3: Priya Ramani won (https://www.bbc.com/news/world-asia-india-56006498)