On the Ethics of Representation in an Adverserial System: A Response – II (Guest Post)

(This is the second essay in Goutham Shivashankar’s two-part guest post series.)

This is my second post in response to Gautam Bhatia’s post on the “Ethics of Representation in an Adversarial Legal System”. The question we are considering is essentially this: ought a lawyer’s decision to represent a “morally unworthy client” or take on a “morally unworthy case” be subject to moral scrutiny? Bhatia argues that it should. I argue that it shouldn’t. In my previous post, I had provided a systemic justification for my position, which I will not restate here. However, I do wish to point out that the systemic justification I offered, makes no reference whatsoever, to the “cab rank rule”. Indeed, the cab rank rule is irrelevant to my analysis. This is significant, since Bhatia asserts in his post that: “Once you take away the “cab rank rule”, you find that there is nothing else to justify the moral and ethical insulation of representational choices.” Hopefully, I have offered something to fill in that void.

I suspect there may be other justifications for such ethical insulation that have no relation to the cab rank rule. For instance, an advocate is obliged, under law in many legal systems, to “fearlessly uphold the interests of his client by all fair and honourable means”. Would advocates be truly fearless in their representation of a case, if they are constantly second-guessing their decision to take up the case (for fear of public censure) in the first place? I doubt it.

In this post, however, I engage directly with Bhatia’s critique of the moral insulation extended to lawyers about their representational choices.

The Cab Rank Rule is not meant to be moral escape-hatch

A large part of Bhatia’s post is devoted to interrogating the cab rank rule. He begins with the premise that all persons ought to be held ethically and morally responsible for the actions they choose to take (or not take). People in other fields are not morally and ethically insulated from their actions merely because they are “just doing their jobs”. Why should lawyers be any different? If this rule were to be displaced for lawyers, he argues, then there must be something special about them to warrant the exemption. This “something special about the legal profession”, which Bhatia states to be usually proffered by those in favour of the moral insulation of lawyers’ representational choices, is the “cab rank rule”. He states, correctly, that the cab rank rule entails that “a lawyer blinds herself to the character of her client.” Then he adds, rather strangely and stating no authority, that: “[T]he logic of the “cab rank rule” is simple. If lawyers have no real choice in whom they represent (that is, if the system commits them to this course of action), then naturally, they cannot be held morally responsible for the consequences that follow from any specific case that they do.

It appears that to Bhatia, the dominant purpose of the cab rank rule is to give lawyers an escape hatch from moral scrutiny. It’s a bit unclear why he thinks this to be the case. Everything suggests to the contrary. The rule is, in fact, designed with interest of the litigant / client in mind (especially the “unpleasant, unreasonable, disreputable” sort of litigant), and not the interest of the lawyer. As Lord Pearce put it in Rondel v. Worsley [1967] 3 All E.R. 993:

“It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable, and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter. And that would be the inevitable result of allowing barristers to pick and choose their clients. It not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full hearing to be in the right.”

The cab rank rule, then, is designed to tie down barristers to unpleasant clients, with a view to giving even such clients a fair trial by ensuring they have good legal representation. The rule isn’t aimed at all at providing a moral escape-hatch to lawyers. That simply isn’t “the logic” of the rule, as Bhatia puts it.

 The Cab Rank Rule is not amoral

 The cab rank rule cannot be regarded as devoid of moral content, merely because it precludes a lawyer from refusing a brief based on the moral worth of a client or a case. On the contrary, the rule is to be regarded eminently moral for precisely this reason. By forcing a lawyer to accept even morally unworthy clients / briefs, the cab rank rule serves an underlying public good, i.e., the assurance of (good) legal representation for every litigant in society. The responsibility of delivering that public good, as it were, necessarily and logically falls on the shoulders of the legal profession. It is a collective responsibility that the profession owes to the public. For the profession to shirk that responsibility would be immoral. The cab rank rule is the means that the profession has devised to address that collective responsibility. But the cab rank rule has additional moral content. It also precludes individual lawyers from shirking their concomitant obligation towards other members of the legal profession to contribute to the discharge of the legal profession’s collective responsibility to society. In other words, the rule prevents individual lawyers from committing the morally reprehensible act of “free-riding”, as I will explain below.

To state my point differently, the “something special about the legal profession” that warrants a certain kind of ethical insulation for lawyers for the representational choices they make isn’t the “cab rank rule” itself, as Bhatia suggests. The rule is just the messenger, so to speak. The “something special” is what underlies and motivates the cab rank rule, i.e., (i) the need to ensure legal representation for all litigants; and (ii) to ensure that there is no free-riding with respect to discharging that collective responsibility of the profession. In a seminal and widely cited paper written for the Legal Standards Board in the UK on the cab rank rule, Prof John Flood and Morten Hviid state as follows:

Recall that as regards the merit of the cab rank rule the issue is whether a defendant or the public might struggle to find representation. Broadly speaking this market failure could arise for two reasons, either the fee is viewed as inadequate or the case is so unsavoury that no amount of compensation would bring forth a champion. The latter type one might expect to be high profile with considerable media attention where the defendant stands accused of doing something truly horrific.

Before moving swiftly on to focus on the financially motivated barrister, consider the obvious alternative that barristers are acting out of a concern for justice and the rule of law. In this scenario, the cab rank rule may be a way to avoid free riding. Even if all barristers hold the view that everyone should be represented, they might rather prefer it if someone else dealt with the unsavoury cases. One might wonder, to what extent, it would become obvious to the profession if someone chose to avoid what was seen as a collective responsibility. In that case, the consequent loss of reputation might be just as effective as the cab rank rule.”

At this point, it would be worth quoting from Bhatia’s post, just to contrast the difference in approach. Towards the end of his post, Bhatia asks:

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?

Yes. It does have to be me, if the case / client lands at my table (as opposed to me seeking them out, which I am barred from doing since lawyers are not allowed to solicit work in India). Why? Because I ought not be a free-rider. To be a free-rider is a morally deplorable act. Someone has to do the dirty work of dealing with morally unworthy cases / clients. It is not Bhatia’s case that these persons do not deserve legal representation. If I draw the short straw and a morally unworthy client / case lands up on my table, the morally correct thing for me to do, is to take up the case, and not pass the buck to another lawyer. What makes me so special that I can free-ride and not be that “someone” who does the dirty work? If there is a collective responsibility in the profession to ensure all litigants are represented, what makes me special to avoid contributing my fair share to the discharge of that collective responsibility?

The “illusory” Cab Rank Rule

 Bhatia then asserts that the cab rank rule is anyway, an illusion. This, he says, is because the rule only requires lawyers to take up cases where the clients can pay “her usual rates”. Since lawyers routinely reject cases on the client’s inability to pay fees, he states that “affordability is little more than a proxy for lawyers selecting a certain type and character of client. And above all else, the simple issue is this: is a hierarchy based on personal wealth any more justifiable than a hierarchy based on (say) ideology?”. From this, he concludes, that “[T]he cab rank rule, therefore, cannot insulate lawyers from moral and ethical judgment.” What he seems to be getting at is this: if lawyers can selectively wriggle out of their obligations under the cab rank rule to represent inconvenient clients on the pretext of their regular fees not being offered, then lawyers ought not be allowed to take cover under that very rule for to justify their claim ethical insulation from their representational choices.

 A few points are worth noting here. Firstly, Bhatia’s formulation of the cab rank rule does not apply in India. In India, the Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. The rule equivalent to the cab rank rule (Rule 11 under Section II titled “Duty to the Client’) states as follows:

An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practise. He should levy fees which is at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.

 

 Thus, In India, the rule, at least on paper, is that fees should be: (i) at par with the fees collected by fellow at par with the fees of his standing at the Bar; and (ii) the nature of the case. It is not the lawyer’s “usual rates” which determines whether he can wriggle out of taking up a case. This is material, since Bhatia’s objection seems to be that design of the cab rank rule allows lawyers to wriggle out of cases selectively on the ground that the client cannot afford the fees. The rule as formulated in India, as I understand it, will not allow this, since the fee limb of the rule is also pegged to the “nature of the case” and the fees of other similarly placed lawyers. It is also worth noting here that the fee exception to the cab rank rule isn’t designed to allow “wriggling out” of the primary obligation imposed by the rule. Rather, it is merely the effectuation of a different sort of relevant moral principle – that professionals ought to be commensurately remunerated for their experience and knowledge. Intuitively, there is nothing immoral about the fee exception. I do not see how it makes the cab rank rule any less moral as well.

Secondly, even in the UK, as per the latest Bar Standards Handbook, a barrister is entitled to reject a brief under the cab rank-rule if he is not offered a “proper fee” and the propriety of such fee is to be determined with regard to: (i) the complexity, length and difficulty of the case; (ii) the barrister’s ability, experience and seniority; and (iii) the expenses which the barrister will incur. This appears to have been the position even in the now-repealed 2013 Bar Standards Handbook.

Thus, at least on paper, both in India and the UK, the cab rank rule appears to place clear restraints on the ability of lawyers to reject cases on the ground of their fees not being paid. In India, this rule is admittedly observed only in the breach, but that ought not take away from the soundness of the rule itself.

Thirdly, this entire analysis of the cab rank rule being illusory arises only if the cab rank rule is intended to be or invoked as a moral escape hatch for lawyers. As I have argued, that was never the intent of the rule. Bhatia seems to be attacking a straw man.

But what indeed, of Ajmal Kasab and MJ Akbar?

 Bhatia concludes by dealing with the argument that if the lawyers representing the Ajmal Kasabs of the world deserve ethical insulation from representational choices, then so too do the lawyers who represent MJ Akbar. Or more generally, if lawyers who represent alleged terrorists deserve ethical insulation from their representational choice, then so do lawyers representing ministers accused of sexual harassment. To Bhatia, this argument posits a false equivalence by ignoring an important distinguishing factor between the two cases. By his account, good lawyers must be allowed to represent alleged terrorists without suffering the cognitive burden of moral judgment over representational choice because terrorists are up against the powerful state’s criminal justice machinery. It is the David versus Goliath nature of the case, and the accused’s fight against entrenched power structures that justifies the moral insulation accorded to an alleged terrorist’s lawyer in his representational choice. According to Bhatia, the same does not hold true for MJ Akbar’s lawyer in the “Me too” saga because Akbar is top-dog in the relevant power structures, both by his position both as a privileged male in a patriarchal society and by his official position as a cabinet minister. In other words, Bhatia asserts that a lawyer deciding to represent Akbar is making a representational choice to take up a “morally unworthy case” that perpetuates prevailing power structures, whereas Kasab’s lawyer isn’t.

I have already addressed this issue in my first post. To state my case briefly, there is a systemic danger in linking the morality of a lawyer’s representational choice to take up a case with the moral worth of the case. This would have the systemic effect of funnelling morally unworthy cases to immoral lawyers, who would likely employ immoral tactics to win their cases. This is a bad outcome for society at large.

Conclusion

In conclusion, to my mind, it would be folly to subject castigate a law firm like Karanjawala and Co. on ethical grounds for their decision to represent MJ Akbar in his defamation case. For similar reasons, I believe Ms. Indira Jaising, for whom I have utmost respect and have looked up to in awe ever since I moved to the Supreme Court, has committed an immoral act by refusing to continue representing Tahlib Hussain. I do believe that on this occasion, she has been a moral “free-rider” by shirking her responsibility to the profession (and to society at large) to represent someone who in her eyes has become a morally unworthy client on account of the “Me Too” allegations against him. I realize these are very bold statements for a young lawyer to make in the prevailing times. I am very open to being shown as to why I am wrong.

On the Ethics of Representation in an Adverserial Legal System: A Response – I (Guest Post)

(This is Part One of a two-part guest post series by Goutham Shivashankar.)

If you haven’t yet read Gautam Bhatia’s stunning post on the “Ethics of Representation in an Adversarial Legal System”, I suggest that you do so immediately. It is important, timely, excellently articulated, and truly fascinating. In my view, it is also gravely incorrect. Bhatia makes a limited argument. He admits that in an adversarial legal system, every litigant has a right to legal representation. He further admits that every advocate has a right to represent a litigant. He argues, however, that the decision of an advocate to represent certain types of litigants, or in fact any litigant, ought not to be exempt from ethical / moral scrutiny by the society at large. He seems to have in mind cases where the law is used as a tool to perpetuate existing power structures, and asserts that in such cases, the decision of a lawyer to take on such a case ought not be exempt from moral scrutiny.

Bhatia ends his post with a personal anecdote that hints at the root of his moral instincts on the issue. He refers to an incident at a theatre performance of Henry VI, where the audience spontaneously burst into applause at the play’s immortal lines “The first thing we do, let’s kill all the lawyers.” Bhatia admits that this made him feel “small and alone” (no doubt, because he is a lawyer). This is an important point to note at the outset. Even public censure of the profession of lawyering or advocacy (which is a step removed from public censure of a specific lawyer) seems to have a tangible psychological impact on lawyers. This, for reasons I will explain below, is probably a bad thing, at least when such censure is targeted at the decision of a lawyer to represent a specific litigant or take on a specific case.

I will not end with a personal anecdote. Instead, I will begin by stating my personal credo as an advocate. I practise as an advocate mainly at the Supreme Court. I intend, unabashedly, to represent any litigant who approaches me, no matter how grave his alleged crime or misdemeanour or the nature of the case, to the best of my abilities. This, I find to be wholly in accord with my personal value system, and I don’t expect to lose sleep over it (unless of course, someone convinces me that the arguments I make here are without merit). But I will go a step further. I will argue that society ought not to be allowed to subject my decision to represent any litigant, to moral censure. In fact, society, by subjecting any lawyer to such censure, would be committing an immoral act (or at the very least, an act detrimental to public interest). The best defence, as the saying goes, is a good offence.

I propose to do this in two posts. In the first post, I state my own proposition and try to justify it in my own way. In my second post, I try to counter Bhatia’s arguments against the traditional justifications for the exemption of the lawyer’s decision to take on a client or a case from ethical scrutiny. This is just to keep the posts short and, hopefully, also interesting. It is also important to note that my reasons for justifying my proposition (i.e. my first post) are largely different from the arguments that are attacked by Bhatia. I am also aware that my reasons are not what people traditionally cite to justify the moral exemption extended to lawyers regarding their decision to take on a case. But I reckon there is no harm done in thinking this through afresh, just like Bhatia has attempted.

Stating the Proposition Clearly

Let me begin by clarifying my proposition. I am not stating that all decisions of lawyers ought to be exempt from moral scrutiny / public censure. For instance, a lawyer certainly ought to be regarded as immoral if he knowingly states falsehoods in order to advance his client’s case. Similarly, a lawyer ought to be censured for taking undue advantage of a vulnerable client. A whole host of lawyers’ decisions ought to be, and are in fact, subjected to moral and ethical scrutiny. This is essential to ensure that the profession remains a morally sound one.

It is not even my case that the decision of a lawyer to take on a specific case / client should be completely excluded from moral scrutiny. Indeed, some such decisions ought to be censured on moral or ethical grounds. For instance, a lawyer’s decision to represent a client or take on a case despite a conflict of interest ought to be regarded as immoral and unethical.

My proposition is limited to just this: the moral scrutiny of any decision made by a lawyer ought to be an exercise that is completely divorced from the morality of his client’s alleged actions (let’s call these situations as “morally unworthy clients”). It ought not also be linked with some underlying systemic immorality with “the law / legal systems” – for instance, where the law perpetuates power structures – the situation that Bhatia specifically considers (let’s call these situations “morally unworthy cases”). In other words, the morality of the host of decisions that lawyers make in the course of representing their clients ought not to be contingent on the moral worth of either the client or the law/legal system, i.e. it should not be linked to whether the client is a “morally unworthy client” or whether the case is a “morally unworthy case”. If that proposition is true, it would be a sequitur, that a lawyer’s preliminary decision to represent a client or to take on a case ought not to be regarded as immoral only for the reason of either the client’s immorality or the legal system’s underlying immorality that may be play in the case at hand. It is important to note here that a lawyer’s decision to represent a “morally unworthy client” or take on a “morally unworthy case” may be morally suspect for other reasons that are independent of the moral worth of the client or the case. For instance, a lawyer may choose to represent an alleged rapist because the rapist happens to be a close aide of a judge, and the lawyer believes that representing that litigant may help him curry favour with the judge. Here, the lawyer’s decision to represent a client becomes morally unworthy for reasons that are not tied to the moral worth of the client, i.e., because the lawyer is trying to curry favour with a judge. Similarly, a lawyer firm’s decision to represent a home minister accused of sexual harassment may be morally unworthy if it is shown that the law firm in question did so in the hope of being appointed to a panel of government lawyers as quid pro quo for taking on the case.

Justifying the Proposition on Systemic Grounds

There is a systemic justification for my proposition. Let us assume a system where my proposition is disregarded, i.e., a system where the moral worth of lawyers’ decisions in taking on a client can be tied to the moral worth of their clients themselves. Or a system where such the moral worth of the lawyer’s decision to take on a case can be tied to the moral worth of the law/legal system itself in relation to that case. This is really a system akin to what Bhatia is suggesting. Let us assume also that most lawyers care about being moral persons (i.e., that they would not like to be regarded as immoral or do immoral acts), but some lawyers don’t. This assumption is not an unreasonable one to make. Clearly, much of humanity is made of people who care about being morally good, and some part of humanity is not similarly concerned. Most people do not want to feel “small and alone” like Bhatia did, when their professions and their professional conduct are deemed morally unworthy. There is no reason, at least intuitively, to believe why this would not be true for the sub-set of humanity consisting of lawyers. However, clearly, some persons (including lawyers), do not feel “small and alone” despite their acts being deemed morally unworthy. They simply don’t care about being perceived as immoral. If things weren’t this way, we would have a perfect world, which we clearly don’t.

Now, if the lawyer’s initial decision to represent a client is deemed morally unsound for the reason of the client’s immorality or because of the immorality of the legal system itself, then lawyers who care about being moral, will likely refuse to represent a morally unworthy client or take on a morally unworthy case. The systemic effect of this would be catastrophic, because it would likely funnel morally unworthy clients and morally unworthy cases to the lawyers who do not care about being perceived as moral. In other words, the morally unworthy clients / cases would gravitate as a class, to the class of immoral lawyers. Immoral lawyers, are likely to be immoral in the entire series of decisions they make in advancing their morally unworthy client’s case (not just in the initial decision to take on the client). That class of lawyer would not think twice about lying to the judge if they are sure that they would not be caught out. They may even be okay with bribing judges to win their client’s case. The systemic effect would be that morally unworthy clients or morally unworthy cases would likely get a competitive advantage in advancing their case, because the system would funnel them towards lawyers who do not mind adopting morally unworthy tactics to win their case.

Let us take the alternate scenario. Assume my kind of system, where lawyers are exempt from moral scrutiny for their decision to represent morally unworthy clients or take on morally unworthy cases. In such a system, the likelihood of morally unworthy clients / cases gravitating to the class of immoral lawyers drastically reduces. In such a system, the class of lawyers who care about being perceived as moral have no disincentive to take on such cases. Once such lawyers have taken on these cases, the whole of host subsequent decisions that they make in handling the case, are more likely to be moral (since these lawyers care about being moral). Thus, we end up with a situation where morally unworthy clients / cases are distributed between the classes of both moral and immoral lawyers. That is a systemically good outcome, since it reduces the chances that immoral tactics would be adopted by the lawyers in such morally suspect cases.

Thus, there appears to be a systemic justification in the moral exemption granted to lawyers qua their decision to take on morally suspect cases / clients. In my next post, I will deal with Bhatia’s specific arguments to the traditional justifications to such moral exemption advanced to lawyers.

On the Ethics of Representation in an Adverserial Legal System

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.

A Right to Represent v The Ethics of Representation

I should start by clarifying the nature of the claim. It is not my argument that M.J. Akbar doesn’t have a right to be represented, or that Karanjawala and Co. don’t have a right to represent him. As long as we remain committed to the adverserial legal system, the right to represent and to be represented will remain foundational. However, there are a lot of things that we have the right to do, but really shouldn’t be doing (such as, for example, hurting our loved ones). And if we do them, we shall – rightly – be subjected to ethical and moral criticism for our actions.

The argument, then, is more modest: it is that the choice to represent M.J. Akbar in his criminal defamation case cannot be insulated from moral and ethical assessment. Indeed, every decision to represent – or indeed, not to represent (as Indira Jaising recently did with Talib Hussain) – must be subjected to such an assessment, like we subject all other significant human choices.

The Illusion of the Cab Rank Rule 

Why is this so controversial? At first blush, it appears to chime with a very basic intuition: that as human beings, we are ethically and morally responsible for the actions that we choose to take (or choose not to take). If I drive my car recklessly, I am morally responsible for causing an accident and injuring people. If I abandon my parents in their old age, I am guilty of a serious ethical lapse. And this is true for all acts, including acts of great significance: whether it is a decision to go to war or to “demonetise” the currency, the actors making those choices are deemed responsible for the consequences, and held to a moral account for it.

This intuition should apply with even greater force to lawyers, because of the direct impact that the legal system has on the world. Peoples’ property, their liberty, and sometimes their very lives, depend upon what goes on in the courtroom. For example, if I successfully represent a landlord in eviction proceedings, then as a direct consequence of my actions, a person may have lost their shelter. Now, that may well be justified, all things considered; but there seems to be no reason why I should be excused of my responsibility in having brought about that outcome.

Therefore, if the normal intuition that we are all to be judged for the consequences of our actions is not to apply to lawyers, there must be something special about the legal profession that displaces that presumption. Lawyers often locate it in something called the “cab rank rule“, which is treated as a necessary corollary of the adverserial system. The basis of the “cab rank rule” is that the adverserial system can work only if a lawyer blinds herself to the character of her client. Like the first cab in the row of vehicles outside an airport is supposed to take the first passenger to her destination, regardless of what the destination is or who the passenger is, the “cab rank rule” requires lawyers to represent the client who comes to them seeking representation, regardless of their personal views about the client or the case.

The logic of the “cab rank rule” is simple. If lawyers have no real choice in whom they represent (that is, if the system commits them to this course of action), then naturally, they cannot be held morally responsible for the consequences that follow from any specific case that they do. The debate then shifts from the morality of representation to the moral or ethical desirability of the “cab rank rule” itself.

The “cab rank rule”, however, is an illusion. Lawyers choose their clients all the time. As the “cab rank rule” itself qualifies, the obligation to represent is subject to the nature of the case being within the expertise of the lawyer, at a court at which she normally practices, and subject to her usual rates. I want to stress this last bit: lawyers reject clients who cannot afford to pay their fees all the time (and this includes lawyers who split their practice between paying and pro bono – as they themselves would be the first to admit, the pro bono component is normally between 10 to 20% of the practice). Indeed, in our system, there need not be an explicit rejection – the system works by self-selection. You just won’t go to a lawyer that you can’t afford; and the first thing a drafting counsel asks at a senior counsel’s office is how much the senior charges for a hearing, before taking a call on whether that senior is affordable for her client.

You may argue that rejecting a client based on affordability is different from rejecting a client based on – say – the nature of the case. I don’t see any real morally salient difference, however. It certainly makes no difference to the client, who finds herself without good legal representation because it is too expensive. Besides, the link between the wealth of the client and the nature of the case is not as detached as we’d like to believe. Poor and vulnerable clients are not exactly going to be looking for lawyers to handle their corporate restructuring, or fight for their Ambi Valley property. The clients who do need representation, but are shut out because they can’t pay counsel fees, will invariably be women at the receiving end of domestic violence, retrenched workmen without the protection of a labour union, the socio-economic class that is always in the cross-hairs of the police, and so on. In other words, affordability is little more than a proxy for lawyers selecting a certain type and character of client. And above all else, the simple issue is this: is a hierarchy based on personal wealth any more justifiable than a hierarchy based on (say) ideology?

The “cab rank rule” may work in a legal system where – like the UK’s National Health Service – you had a “National Legal Service” that actually functioned effectively, was free at the point of need, and using which made no discernible difference to the quality of the service received. Our legal system (despite the existence of NALSA), at present, is a few light-years away from that. And in the system that we have right now – as I said above – the simple act of setting a standard fees amounts to choosing one type of client and turning away another. The “cab rank rule”, therefore, cannot insulate lawyers from moral and ethical judgment.

But What About Ajmal Kasab? 

Once you take away the “cab rank rule”, you find that there is nothing else to justify the moral and ethical insulation of representational choices. The “I am just doing my job” defence cannot, in and of itself, carry the water: that defence was most famously rejected at Nuremberg (apologies for proving Godwin’s Law!), but even if you ignore that analogy as mistaken, it’s not a blanket defence we normally extend to other “jobs” (with the exception of doctors).

But the objection then takes another form: “What about those who defended Ajmal Kasab?” Or, in other words, the argument (which is really a variation of the “cab rank rule”) goes thus: if you’re going to judge lawyers by the cases that they take, then there can be no justification for those who defend rapists, murderers, and terrorists. This is, of course, an unacceptable outcome; consequently, if you’re going to support the representation of Ajmal Kasab, you have to also support the representation of M.J. Akbar.

The Ajmal Kasab argument is an important one, but in the way that it is deployed here, it gets things badly wrong. The legal defence of Ajmal Kasab is not grounded in insulating a lawyer from the ethics of representation, or in a “the lawyer is just doing her job” fudge. Rather, Ajmal Kasab should be represented precisely because there are good moral and ethical reasons for representing him in court. In other words, you don’t avoid the moral question – you tackle it head on.

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.

There is another point: criminal trials invariably involve a tug-of-war between Prosecution and Defence over the scope and limitations of the procedural rights that are afforded to accused criminals. The higher the profile of the case, the more gruesome the crime, and the more unjustifiable the conduct of the accused – the greater the temptation (from both the Prosecution and the Court) to give a go-bye to procedural safeguards in order to ensure a conviction. Criminal defence, therefore, serves the crucial function of safeguarding procedural rights, the dilution of which will ultimately hit those who need it the most – the innocent, the vulnerable, and the marginalised. Once again, therefore, it is about preserving a balance of power between the individual and the State, and preventing the effacement of the individual who stands in the dock as an accused.

Law and Power Relations

The above discussion should make it clear that the “smoking gun” hypotheticals – defending indefensible clients, being the “attorney for the damned” – are best answered not by running away from the ethical questions, but by embracing them. And in the process of answering those hypotheticals, we can work out a rough model of what the ethical critique should look like.

Let us, for example, compare the M.J. Akbar situation with our discussion above. The defamation complaint has arisen out of the #MeToo movement, which has involved a large number of women coming forward and articulating experiences of sexual harassment, at the hands of powerful and well-established men. The movement has taken the form that it has – anarchic, decentralised, and public – because the traditional structures of accountability – the courts, legal due process, internal complaint mechanisms – were correctly perceived as utterly broken, and serving to shield the powerful and to perpetuate hierarchies, rather than bring them down. #MeToo is (as I understand it) fundamentally about finding a new vocabulary to articulate a range of experiences that were actively suppressed (including by the absence of legal and other forms of language in which to describe them), and to replace a culture of authority with a culture of accountability. In every sense of the word, therefore, it is an anti-hierarchy movement.

What is criminal defamation? A colonial provision that the British introduced to stifle political dissent, which authoritarian politicians have weaponised against the press, and which by its very structure (no jurisdictional constraints, low-threshold definitional provision that allows for charges to be framed and trial to commence before the defences can be brought in, and high-threshold defences) is designed to harass, intimidate, and silence. It is not about finding an appropriate “balance” between speech and reputation, but about invoking reputation to silence speech.

What is criminal defamation applied to #MeToo? It is the leveraging of this draconian criminal law provision to shut down the movement: it is, in short, the use of law to perpetuate status quo and entrench power, against a movement that challenges both.

You may disagree with me on the characterisation of this situation, and we can have a debate about that. But my point here is this: if you do agree with me about the characterisation of #MeToo and of the criminal defamation provision, then the ethical and moral critique of the choice to represent M.J. Akbar in this particular manner and in this way is self-evident. There is no hiding behind “the lawyers are just doing their job” and “M.J. Akbar has the right to a legal defence.”

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 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?

Conclusion

Once, long ago, I was watching a theatre performance of Henry VI. This is the play that has those famous lines: “The first thing we do, let’s kill all the lawyers.” When those lines were spoken, the theatre burst into spontaneous applause, cheering, and hooting. Needless to say, I did not join in. I also felt rather small and alone.

I have often thought back to that moment, and wondered about the intense – almost visceral – dislike that people seem to hold lawyers in. I wonder if one of the reasons is simply this: that as lawyers, we wield so much power, but with the arrogance of gods, exempt ourselves from any accountability for how that power is wielded. And I wonder if a simple acknowledgment – that the things we do as lawyers have consequences, and that we are not immunised from a reckoning for having brought about those consequences – is both necessary, and long overdue.

(PS. I understand that this post is not about the interpretation of a constitutional provision – but I decided to take liberties with the phrase “constitutional philosophy”, and discuss an issue about the nature of the adverserial legal system that does – I believe – go to the question of how we think of justice under our Constitution.) 

 

Ambedkar on Citizenship and the Right to Hold Office under the State

Previously on this blog, we have discussed in detail the pending constitutional challenge to the Haryana Panchayati Raj Act, which imposes educational, property and debt-based disqualifications upon candidature in local government elections. Part of the argument has focussed upon the link between the right to vote (or the right to representation) and the right to stand for office, two sides of the same coin that, together, form the core of republican democracy. This leads to the conclusion that notwithstanding the absence of these rights from the fundamental rights chapter, State attempts to curtail them must meet a heavy burden of justification.

As we’ve also discussed on this blog, the qualification and disqualification provisions for parliamentary eligibility were introduced and elaborately defended by Ambedkar, during the Constituent Assembly Debates. Interestingly, today I came across a piece of history, from thirty years before the drafting of the Constitution. In 1919, Ambedkar was called upon to give evidence to the Southborough Committee on Franchise, which was set up to look into designing a system of representation for the Indian dominion. Ambedkar’s complete written submissions can be accessed here. What I found of particular interest was the following passage, in the context of the disabilities suffered by the Untouchables:

“Citizenship is a bundle of rights such as (1) personal liberty, (2) personal security, (3) rights to hold private property, (4) equality before law, (5) liberty of conscience, (6) freedom of opinion and speech, (7) right of assembly, (8) right of representation in a country’s Government and (9) right to hold office under the State. The British Government by gradual growth may be said to have conceded these rights at least in theory to its Indian subjects. The right of representation and the right to hold office under the State are the two most important rights that make up citizenship.”

Notice that Ambedkar runs together rights that are presently in Part III (or, as in the case of property, used to be), and specifically two others which are not: the right to representation, and the right to office. Notice also that whereas rights (1) to (7) are civil rights (previously in the same paragraph, Ambedkar refers to the prohibition of access to public spaces such as roads a denial of civil rights), representation and office (8) and (9) are political rights. It is therefore hardly a coincidence when Ambedkar goes on to state that “the right of representation and the right to hold office under the State are the two most important rights that make up citizenship”: it signifies, also, that representation and office are not hermetically sealed claims that operate in isolation from each other, but rather, are two complementary aspects of citizenship.

Ambedkar’s remarks here can help throw some light on his defence of representation disqualifications in the Constituent Assembly, and the structure of the final Constitution, because they demonstrate that underlying the text of the Constitution was the consistent conviction about the role and place of representation and office in the constitutional scheme. As we have discussed before, much has been made in the Supreme Court’s jurisprudence over the years, about the fact that voting is not a fundamental right, but a “mere statutory right.” The history of the framing of the Constitution, and indeed, the political thinking of its chief architect, reveals that this argument is something of a red herring. It is of course true – and trivially so – that the absence of voting or standing for elected office in Part III of the Constitution precludes a specific Part III claim merely on that ground. However, if it is true that representation and occupying (elected) State office are the fundamental, structuring principles of citizenship in a republican democracy (which has been held to be part of the basic structure), then the State’s attempts to deprive a section of the populace from exercising those rights must be scrutinised carefully by the judiciary. In the Haryana Panchayati Raj case, for instance, the primary claim is that of discrimination under Article 14. In such a situation – as we have argued on this blog – it is the nature and importance of the rights to representation and elected office as structuring principles of the Constitution – that require the Court to abandon its normally deferential Article 14 approach, and apply a level of strict(er) scrutiny, placing high evidentiary burdens upon the State to justify its claims that the restrictions are essential to the integrity of the political process. It also disqualifies the State from invoking unrelated justifications (such as debt-free citizens being “model citizens” and an “example” to others) to defend its law.

(N.B. The full text of Ambedkar’s submissions make for a fascinating read, and repay close study. Of further interest in the present context are his remarks on suffrage, in paragraphs 29 and 30).

Edward Said, Alessandro Portelli, Law’s Representing Power, and Judicial Humility

In a piece called Death and the Sovereign (the reference is unmistakable), Pratap Bhanu Mehta has an important critique of the Rajasthan High Court’s Santhara judgment. He argues that legal categories (such as “suicide” and “attempted suicide”) are insufficient and inaccurate placeholders for understanding the range and complexity of religious practices, as well as them meaning and significance they carry for their adherents.

Mehta’s argument reminds me of something Edward Said wrote about in Culture and Imperialism: that representation is an act of power, and one way to recognize an unequal relationship is by observing how it acts to silence, exclude and marginalize the experiences of the subjects of representation. Said writes:

Power even in casual conversation to represent what is beyond metropolitan borders derives from the power of an imperial society, and that power takes the discursive form of a reshaping or reordering of ‘raw’ or primitive data into the local conventions of European narrative and formal utterance, or in the case of France, the systematics of disciplinary order. And these were under no obligation to please or persuade a ‘native’ African, Indian, or Islamic audience: indeed, they were in most influential instances premised upon the silence of the native. When it came to what lay beyond metropolitan Europe, the arts and the disciplines of representation – on the one hand, ficton, history and travel writing, philology, racial theory – depended on the powers of Europe to bring the non-European world into representations, the better to be able to see it, to master it, and, above all, to hold it.

Said’s point resonates. In the Santhara judgment, the Rajasthan High Court takes the “raw” or “primitive” data (i.e., the fact that some Jains are undergoing a fast unto death). The Court shoehorns it into the “local conventions” of legal “narrative and formal utterance” (which can equally well be classified as a disciplinary order), i.e., the prohibition against abetment to “suicide”. This, of course, is premised upon the “silence of the… [Jains]”. The questions whether they regard it as “suicide”, and whether there a divergence between how they experience Santhara, and how the law understands suicide, are not addressed.

In a similar vein, Alessandro Portelli, the oral legal historian, writes about the anatomy of an Italian terror trial in the 1970s. In defining a political movement as a criminal conspiracy, Portelli argues that the magistrates were thus involved in reconstructing the past, redefining its meaning, and attempting an overall interpretation. These are historical tasks, and it is appropriate to examine the way they were performed from the point of view of the theory and method of history, oral history specifically, given the nature of most sources used.” A trial, according to Portelli, always involves reconstructing (or constructing history), through documents and – where there are gaps in the documents – through oral testimonies. This, of course, is another form of representation, and another form of power: through its final judgment, the Court will declare one version of history to be true, which may well be contrary to the experiences of its participants (note, for instance: any finding of guilt must, by necessity, affix whole and complete responsibility upon individuals, rather than structural or social causes. Portelli extracts the evidence of a prosecution witness, before observing that “prosecution witness Romito favors political over social history: mass struggles or insurrections do not depend upon the masses or on broad social causes, but on the secret dealings of leaderswhose influence on the working class was never more than marginal anyway.”)

The judge’s task, therefore, repeatedly requires her to answer questions that are centrally anthropological (what is the character of Santhara?) or historical (what was the cause of the terror attack?), without obligating her to adhere to the rigorous standards of method and scholarship required of an anthropologist or a historian. Paradoxically, however, the judge has far more power than the anthropologist or historian. While the latter’s conclusions are provisional, tentative and always open, the judge’s findings assume the crystalline immutability of “judicial truth” one they are ensconced in a judgment. More than that, of course, they have very real consequences. As Robert Cover points out, “legal interpretation takes place in a field of pain and death.” In the Santhara case, that is literally true.

All this points to an urgent need for judicial humility. Hard questions should be approached with an awareness of the judge’s privileged subject position, the power that she wields to impose a representation of the “truth”, the further power to convert that representation into actual facts on the ground, and the consequent need to be wary of sweeping, assured positions. True “demosprudence” would require the judge to listen to the experiences of those who will soon be represented in judgments, especially when their experiences seem not to fit easily into pre-defined, a priori, universalising legal categories. It is a trait that, as Mehta points out, is unfortunately completely missing in the Rajasthan High Court’s judgment.

Judicial humility, I suspect, will be a recurring theme when the historians of the future, finally unshackled by contempt of court laws, sit down to write the history of the present Court. In particular, I think they will marvel at how easily our judges liberated themselves from the gravitational pull of doubt, which keeps most of us earthbound, and escaped into the stratosphere of diamond-bright moral certainty. Recently, in confirming a death sentence (Edit: V. Venkatesan has kindly pointed out that it was an abetment to suicide case, and not a death penalty confirmation. My thanks to Mr. Venkatesan), Justice Dipak Misra stated that judges have a duty to respond to the “collective cry of society”. We have heard such words before – in the mouths of prophets and madmen, who have considered themselves to have privileged communion with the Voice of God (vox dei or vox populi, the clarity of the moral vision never dulls). Prophets and madmen, however, have no need of explaining themselves. Judges do, because they live under the Constitution, like the rest of us, and have as much a duty of fidelity to the Constitution as the rest of us do.

What is the collective? How can you know that there is only one collective, which speaks with one voice (one “cry”)? How can you know that the collective is right? And above all else, how can you be so sure that you, among all citizens, have correctly heard and interpreted this “collective cry”? Such pretensions would provoke laughter, did they not have such real and tragic consequences.

Almost five hundred years ago, Oliver Cromwell wrote to the synod of the Church of Scotland, stating thus: “I beseech you… think it possible that you might be mistaken.” It is a plea that one wishes would be heard by the present judges of the Court.

The Constitutional Challenge to Rajasthan’s Panchayati Raj Ordinance

(H/T to Mythili Vijay Kumar for pointing out Javed vs State of Haryana and helping me through the attendant issues)

Today, the Supreme Court dismissed a challenge to the Rajasthan Panchayati Raj Act, Second Amendment, Ordinance, 2014 (approved by the Governor on December 19, 2014). The dismissal was on procedural grounds. As far as I can understand, the petitioners were granted liberty to approach the High Court. Considering that the nomination period ends tomorrow, and (again, to the best of my understanding) the Court refused to grant an extension, it is likely that the challenge is now (for the time being, at least) infructuous. Nonetheless, we have probably not heard the last of this. This post considers some of the issues involved.

This ordinance makes certain educational qualifications a necessary pre-requisite for contesting local government (Panchayat) elections.  The petitioners have argued that the Ordinance is discriminatory, and “abrogates their constitutional right to contest elections.” They contend that in light of low literacy levels in Rajasthan, the Ordinance is especially slanted against the rural poor. Others have pointed out the gendered impact of the Ordinance, which will act to exclude women on a much larger scale than men.

The contention that literacy requirements are designed to exclude already marginalised groups from the political-democratic process is neither new, nor limited to India. As the historian Alexander Keyssar notes, in his magisterial account of the history of the right to vote in the United States, property and/or literary qualifications were consistently used to constrict the scope of the right to vote, excluding, at various points, landless labourers, women and blacks. The link is not difficult to spot: access to education is mediated by socio-economic status. The constituency that has not received a basic formal education is most likely to be overwhelmingly poor (economic reasons), female (social and economic reasons), and migrant.

Whatever we may think of the legislative wisdom of the Ordinance, the constitutional challenge, nonetheless, has to overcome a significant hurdle. This is because the “right” to vote (and, by extension, the right to run for office) has never been considered by the Supreme Court to be a “constitutional” right. The Court has repeatedly stated that it is (albeit “anomalously”) a pure statutory right, created by law and therefore regulated by it. For instance, claims that speech-regulating provisions of the Representation of Peoples Act violate Article 19(1)(a) have been dismissed on the ground that because there is no “antecedent” right to stand for election, there is no constitutional violation. Citizens are free not to stand for election, but if they do, they must adhere to the regulatory structure imposed by law.

This was the reasoning of the Supreme Court in an analogous case in 2003, called Javed vs State of Haryana. In Javed, a provision of the Haryana Panchayati Raj Act stipulated that “no person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who… has more than two living children.” The constitutionality of this provision was challenged under Articles 14, 21 and 25. A three-judge Bench of the Court rejected the challenge.

At the heart of the Court’s Article 14 reasoning was the proposition that since the right to stand for election is not an antecedent constitutional right, standard principles of rationality review under Article 14 will apply. It observed:

“The classification is well-defined and well- perceptible. Persons having more than two living children are clearly distinguishable from persons having not more than two living children. The two constitute two different classes and the classification is founded on an intelligible differentia clearly distinguishing one from the other. One of the objects sought to be achieved by the legislation is popularizing the family welfare/family planning programme. The disqualification enacted by the provision seeks to achieve the objective by creating a disincentive. The classification does not suffer from any arbitrariness. The number of children, viz., two is based on legislative wisdom. It could have been more or less. The number is a matter of policy decision which is not open to judicial scrutiny.

Responding to the contention that the number of children one had bore no relevance to one’s capabilities to discharge the duties of one’s elected office, the Court held that “we have already stated that one of the objects of the enactment is to popularize Family Welfare/Family Planning Programme.” Since there was a rational nexus between the “object” (family planning) and the “classification” (number of children), the Act survived Article 14 scrutiny.

One can easily see how a similar argument will squarely apply to the Rajasthan Ordinance. By making literacy a pre-requisite to contesting local elections, the “objective” is to promote literacy in India (something nobody can have an objection to). That literacy bears no relevance to one’s ability to perform the duties of electoral office is – per Javed – irrelevant, because the legislative policy is something else altogether.

Notwithstanding this, one must also note that the understanding of the place of voting and elections within the constitutional scheme has changed over the last decade. In Union of India vs Association for Democratic Reforms, decided one year before Javed, the Supreme Court distinguished between the “right” to vote (statutory) and the “freedom” to vote (constitutional). This latter freedom was grounded in Article 19(1)(a) (freedom of speech and expression). The Court invoked the familiar argument that at the heart of the 19(1)(a) guarantee were ideas of republican democracy. Consequently:

Under our Constitution, Article 19(1) (a) provides for freedom of speech and expression. Voters’ speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must.”

In 2013, this view was affirmed by the famous “NOTA judgment” of the Supreme Court. The directions to include a “None of the Above” option in the EVMs was grounded in the reasoning that voting – as an integral part of the democratic process – is protected expression under Article 19(1)(a).

Now, what does it mean to say that the “right” to vote is statutory, but the “freedom” to vote is constitutional? When examining the NOTA judgment, I’ve suggested that the only way of reconciling the two is as follows: the legislature is permitted and entitled to regulate the election process (which it does through the Representation of Peoples Act, and other similar statutes). The legislature can prescribe the modalities of how elections are to be carried out, and thus it can (within reason) determine how the freedom to vote is to be exercised. However, if the legislature makes a law that regulates or restricts not how the electoral process is to be carried out, but who is entitled to participate in it, then such a law must be subjected to rigorous scrutiny by the Courts – because that goes to the very heart of the constitutional freedom itself.

The right/freedom to vote, and the right/freedom to stand for office are conceptually inseparable, as they form equally integral parts of the democratic process. Consequently, the same logic applies to the latter. Admittedly, Article 84 of the Constitution (dealing with the legislature) requires candidates “possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament”, thus expressly envisaging the possibility that Parliament may pass a law limiting the entitlement to participate in the democratic process on the basis of certain qualifications. Nonetheless, the freedom-of-voting decisions of the Supreme Court indicate that legislation that directly disenfranchises persons (by ‘disenfranchise’, I mean both the right to vote and the right to stand for office) ought to be subjected to more rigorous scrutiny than a ‘rational review’ standard.

In particular, the State should not be allowed to introduce extraneous considerations such as ‘family planning’ or ‘increasing literacy’ to justify such legislation. This would amount to what is called an unconstitutional condition – i.e., subjecting the exercise of constitutional freedoms to conditions that cannot otherwise be located within the Constitution. Secondly, the State should be required to justify the relationship between the restrictions that it has imposed, and the fundamental place of the electoral process in a republican democracy. For instance, a law that prohibits persons with criminal convictions from standing for elections has a demonstrable nexus with the role of elections in a the democratic process. A law that prohibits persons on the basis of literacy does not.

Republican democracy is based upon the core idea that every citizen has the freedom to participate in the workings of democracy, whether by voting or by standing for elected office. Every limitation upon this freedom is problematic. This is especially true when the limitation affects those most marginalised by the political process. Consequently, I would argue, with respect, that the Court was incorrect in dismissing the petition, because there are crucial constitutional issues involved. If this case comes back before the judiciary, it is to be hoped that some of these issues will be considered.