The sloganeering that took place during a meeting held to protest Afzal Guru’s hanging at the Jawaharlal Nehru University (JNU) campus on Feb. 9 has visibly offended the sentiments of a large number of Indian citizens. Needless to say, much of the public outcry against the “anti-national” slogans has been whipped up by a few overzealous television news channels and the uncontrollable flow of social media websites.
However, what has transpired since then is even more disturbing for those of us who believe in an ethical vision for our legal system.
The arrest of the Jawaharlal Nehru University Students Union (JNUSU) president Kanhaiya Kumar under charges of sedition and criminal conspiracy was unnecessary and disproportionate. In the last few days, many others have explained the questionable antecedents of this provision as well as the manner in which Supreme Court precedents have insisted on proximate causation between speech acts and the likelihood of physical violence in order to establish such an offence.
The gist is this. Offences such as sedition were brought into the statute book by the colonial government in order to repress challenges against its own authority. Its continuation on the statute books in independent India provides an instrument for abuse in the hands of an incumbent government, irrespective of which political party is in power. Given this possibility of abuse, higher courts have emphasised the need for restraint in invoking this provision, specifically by insisting that offensive words or gestures must exhibit a pernicious tendency to disturb public order.
The filing of the sedition charge has now been followed by two rounds of physical violence perpetrated by a group of lawyers at the Patiala House Courts and the detained student leader was specifically targeted in the second of these rounds on Feb. 17.
At a normative level, this is among the worst possible sights that one can associate with a legal system that claims to be based on the enlightenment values of liberty, equality and fraternity.
For many of us in South Asia, the images of the attack on the student leader, his lawyer, and a journalist will resonate with another image from a few years ago. Some may recall the sight of a large number of lawyers garlanding Mumtaz Qadri, the bodyguard and subsequent killer of Salman Taseer, the erstwhile governor of Punjab who had opposed blasphemy prosecutions in Pakistan.
In India, one can recall numerous instances where private bar associations have passed resolutions barring their members from representing unpopular defendants such as terror suspects. There have also been several instances of physical violence perpetrated by groups of lawyers acting in a coordinated fashion, often with the police and the journalists being on the receiving end.
The very idea of a criminal justice system—consisting of investigators, lawyers and judges—is for it to act as an impartial arbiter between the public’s outcry for vengeance and those who stand accused. In politically charged cases such as the present one, this role is further enhanced and gains an educative dimension. All practicing lawyers have a professional obligation to assist the courts in carrying out their stipulated functions, irrespective of whether they are directly involved in a proceeding or not.
So what makes lawyers immune to the standards of conduct that they are professionally bound to uphold?
A part of the answer is that we have a professional regulatory body that is constituted through indirect elections and its past record does not give much hope about disciplinary action against the lawyers who defamed their entire profession in the last two days.
Under the Advocates Act, 1961, the legal profession is regulated by a network of state bar councils and an apex body called the Bar Council of India (BCI). Advocates enrolled in the respective state bar councils are eligible to vote in periodic elections to decide their composition. In turn, representatives from these state bar councils constitute the BCI.
On paper these bodies have disciplinary powers such as those of ordering censures, temporary suspensions from practice, and even removal from the rolls. However, their elected character often creates perverse incentives to scuttle complaints about misconduct. In many cases, the elected members of the state bar councils have directly intervened to protect erring lawyers from sanctions. That self-serving role is played in a more direct fashion by private bar associations, which are conceptually and practically distinct from the bar councils.
The structure of courtroom advocacy is such that a large number of lawyers congregate at the same court complex day after day. Particularly at the lower courts, professional identities often intersect with other markers of consolidation and exclusion such as caste, kinship, religion, region, and affiliations to political parties. While the standards of conduct prescribed for lawyers contemplate a self-interested individual practitioner, the social reality of the court complex draws from these intersecting markers of identity. Very often, there are internal contradictions between professional identities and those grounded in group life. They manifest themselves in cases such as the ones outlined earlier where lawyers ignore their prescribed duties to the court, the clients, other lawyers and the public at large. Their organising power often gives them immunity against decisive actions by judges and the police.
The present matter is not just about partisan electoral politics. It is more of a reflection on the kind of society we are turning into. Is our sense of nationalism so weak that we think nothing of endorsing physical violence against students who used disruptive slogans inside their university campus? If we do not distinguish between measures designed for deterrence and an unrestrained desire for retribution, we will cross a moral limit that is central to the idea of law in a modern legal system.
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