Avani Bansal

8 Dec 2020 3:08 PM GMT

  • Versus

    While Lawyers are no strangers to taking sides and arraying themselves as 'versus' – a Latin term that means taking opposing stands in a lawsuit, the new fault-lines in the legal community are not just between those who are 'activist' and 'conformist' lawyers but it's giving rise to a new third category – those who seem to have entered into a Faustian Bargain – seemingly determined...

    While Lawyers are no strangers to taking sides and arraying themselves as 'versus' – a Latin term that means taking opposing stands in a lawsuit, the new fault-lines in the legal community are not just between those who are 'activist' and 'conformist' lawyers but it's giving rise to a new third category – those who seem to have entered into a Faustian Bargain – seemingly determined to use all their intellectual and legal prowess in the service of defending the Government.

    Activist v. Conformist Lawyers

    What good ever came of 'Conformism'?

    Following the Pied Piper,

    Magical as he may seem,

    Led the rats and then the children,

    To the drowning sea!

    Conformism is defined as 'suspension of an individual's self-determined actions or opinions in favour of obedience to the mandates or conventions of one's peer-group, or deference to the imposed norms of a supervening authority.'

    Activism on the other hand, is defined as 'the policy or action of using vigorous campaigning to bring about political or social change' as per the Oxford dictionary.

    We have never witnessed a Lawyers' uprising or mutiny or movement in India, unlike the one in Pakistan in 2009, where the lawyers' came together in what's called 'Movement For The Restoration of Judiciary' or 'Black Coat Protests' against the then President and Army Chief Mr. Pervez Musharraf's unconstitutional suspension of the then Chief Justice of Pakistan's Supreme Court – Mr. Iftikhar Muhammad Chaudhry. But throughout the world's and India's history, lawyers have had a disproportionate effect on the course of a nation. Time bears testimony, that at their worse - lawyers have been used as puppets by the political and business class; while at their best, they have been the leaders of revolutions, shapers of a nation's destiny and captains of humanity' ship in troubled seas.

    So when did 'Activism' become such a negative word? Those who are referred to as 'activist lawyers or judges' sure wear this badge with pride, but it is important to see the dividing lines in the Indian bar today for what it is and most importantly reclaim the word 'activism' for what it truly means.

    The major charge on 'Activist' Lawyers arguably is that they use their ideology to influence the polity. The assumption here is that lawyers should somehow be 'neutral' in their approach. It is this charge and this assumption that I seek to question in this piece. More importantly, I submit that it is 'conformism' which is the real danger amongst the legal community today.

    First things first. Lawyers are not like any other professionals. The scope of their profession encompasses the entire gamut of issues in a polity. Simply put, there is no issue that can claim immunity from landing on a lawyer's work-desk. A lawyer's field of work and vision is as wide as the society itself.

    Gifted with sharp minds and trained tongues, lawyers can have a disproportionately higher impact, on the destiny of India. So when we are witnessing unprecedented times in our legal and political system, where basic processes in the Parliament is not being followed and the Bills are being bulldozed through sheer brute majority force; or when legislations such as UP's new conversion laws or the love-jihaad law are passed in open and clear violation of Indian Constitution's 'Secular' fabric; and every single political move of the Government has either landed or has the potential to land in the corridors of the Supreme Court – we need to ask – which side are the lawyers in India on? Neutrality on these issues is not just difficult, but also those who seemingly maintain it, paint the legal profession as having much narrower contours – "I will speak when I am representing a client, never before or after." Legal profession has always meant much more to its most notable practitioners – as a brief perusal of the life and works of the legendary Nani Palkiwala will reveal.

    Second, Lawyers can and do have their own ideologies. But it is pertinent that when taking a stand on public issues, they are not seen as subserving their narrow selfish interests for personal gains. The Government of any day, by definition is powerful, and does not need any defending but when arguably some of the best legal brains in the country are seen as blindly defending the government, we see the systematic chipping away of the rule of law and the very foundations of the legal system. Their 'conformism' seems a deliberate move to influence the polity, like that of the 'activists', but it's important to remember that siding with the powers of the day is always easier, nay beneficial, as opposed to challenging it - as the latter is always done at the risk of paying a price – personal or professional. Whereas, 'conformism' if experience is to go by, has always come with a gain – personal or professional.

    Speaking of lawyers and ideology, one question is often asked of lawyers -

    If 'A' comes to you and confesses that he has committed a series of rapes or looted our nation of a thousand crores or led to the death of a thousand and more people, will you defend him/her?

    Now lawyers can and do subscribe to one of the two broad ideologies. Some lawyers believe that it is their duty to defend the client, without judging him/her. Their duty, the subscribers of this first ideology believe, is to ensure 'fair representation' for their clients. Then there are those who believe that they cannot take up a matter that goes against their conscience. Ask any lawyer and you will hear some interesting anecdotes around this ideological divide. For e.g. think of the furore that was caused when Mr. Fali S. Nariman took up the case on behalf of Union Carbide Company, in the Bhopal Gas tragedy case. Mr. Nariman himself has weighed on his reasons for taking up the matter in his auto-biography 'Before Memory Fades.'

    Irrespective of which of these ideologies a lawyer subscribes to – 'conformism' should not be a part of it. Think about it. Isn't defending a client for the sake of 'fair representation' different from 'defending the government or government's stand' in the court of public, especially when all the propaganda machinery is anyway at the disposal of the powers-to-be? Also, a distinction has to be clearly drawn between lawyers maintaining neutrality when representing their clients, as their avowed duty is to the Rule of Law and not individual clients; as opposed to when lawyers openly and affirmatively defend the government. Freedom of expression is a birth right of everyone, including lawyers, but the same has to be differentiated from 'conformism' which is blind adherence to the government of the day. Now, when some lawyers are inducted as Parliamentarians, one can still understand their positions aligning with that of the government, as these lawyers then seem to have walked over the line from being a lawyer to also being a politician. But shouldn't there be a different yardstick, for lawyers, who while continuing being a lawyer (and just that), increasingly take a stand supportive of the Government and for what?

    Third, while the legal system is known for upholding the 'nobility' inherent in the profession, 

    (even at the cost of maintaining archaic practices such as ban on advertisement for lawyers)

    a quick review of India's legal history shows that while 'activism' has always been for the good, 'conformism' amongst lawyers and judges has always dented our foundations of Rule of Law.

    Indian Supreme Court became famous world-over for Public Interest Litigation (PIL) due to some of the 'activist judges' going beyond the ordinary mould to ensure access to justice in the 1980s. However, during India's darkest times of Emergency, 'conformism' shown by the judges and the lawyers, including the infamous argument by the then Attorney General, Mr. Niren De that 'there will be no judicial remedy during Emergency', made in the course of arguments during the ADM Jabalpur case, is a history that Supreme Court has tried too hard to forget and bury the ghost of.

    But the recent spate of remarks in the Supreme Court when referring to some of the lawyers, activists and journalists as 'arm chair intellectuals', 'prophets of doom', of 'not having the patriotism', amongst others, to address those who were critical of the government's handling of the migrant crisis and overall 'activist' in their approach, gives rise to an age-old question which is more pertinent than ever before - who will history remember as having done greatest service and/or disservice to the nation – those who are 'activist lawyers and judges' or those who are 'conformist lawyers and judges'?

    And then there is a third category – of those lawyers, who are seen as belonging to the top of the pyramid – known for their intellectual prowess, their rich experience and understanding of the Indian legal system, their fat fees justified by their winning streak in the cases with the highest stakes – who seem to have achieved it all and yet are seen as defending the Government on every controversial move. This third category, I argue, cannot be mapped on the lines of 'activist' versus 'conformist' but is reflective of a small minority, who has gone to the extreme end of 'conformism', suggestive of a Faustian Bargain.

    Farmers, Lawyers & The Faustian Bargain

    While suggesting the presence of a Faustian Bargain may seem a hyperbole – think about this. What do these lawyers, stand to gain by defending the Government, which already has the entire propaganda machinery to help it? Isn't it reflective of the misuse of one's intellectual powers and the trust that people have in the legal community, when its senior most members take the same stand as that of the Government on the abrogation of Art. 370, CAA & NRC, – while maintaining silence on issues as vital as the farmers' issue, or for that matter other essential issues impacting a large number of people and polity - such as labour law reforms, environmental law reforms, the land laws regarding disclosure of religion while registering property ownership?

    One may ask - why care what the lawyers say – be that against the Government, in support of the government or in utter blind conformism to the Government? Shouldn't it be Farmers' we should have our attention to, at this point.

    Well, the simple answer is – NO. Consider this.

    What do farmers and lawyers have in common? They both serve a quintessential role to play in the question for our survival. While Farmers may represent our stomach, Lawyers represent the tongue. But both of them, when they use their minds can fundamentally alter the course of our nation.

    There is also a difference – farmers have always been seen as rooted to earth, physically and metamorphically, and thereby anti-elitist - majority of them anyway. Lawyers, on the other hand, are always seen as an aide to the elitist class, if not the elitist class themselves – majority of them anyway.

    While farmers are capable of bringing a real revolution, given their indispensability to our lives -it is further backed by 'what do we have to lose anyway' attitude. Lawyers too, have not much to lose, given the 'autonomy' and independence built in the very nature of their profession. Yet, when lawyers' choose, consciously, not to use their gift of gab, and use their mind as 'conformists' instead – the allegation of a Faustian bargain becomes more than plausible.

    So, today, when are witnessing one of the largest farmers' protest in recent history, we cannot neglect how closely intertwined the issues that farmers' raise are to the law, and therefore, how important are the lawyers' voices on it, including on all important national issues of the day.

    The farmers' challenge to the three controversial bills is essentially based on some fundamental questions they are asking of the government – when no farmers asked the government for change in laws, why did the government bring those and at whose behest? Who is the government acting on behest of? Further, they ask – if the government's promise that the Minimum Support Price (MSP) will not be done away with, why not legalise the entity of MSP – give it a concrete legal shape so that government's word is backed by a legal document? So, which way the farmers' protest is going to go will atleast partly be dependent on the legal issues inherent therein.

    So on closer scrutiny, it becomes clear even to a layperson that all issues are legal issues and therefore the opinion of lawyers' matter. In essence, the dividing line between the activist and the conformist lawyers that we see today may be historical in shaping the future of lawyers, judges and justice system in India.

    Let's not fool ourselves. It is not for the first time in India that lawyers see this dividing line. Whenever governments have tried to concentrate power illegally, the lawyers and the judges have been the first to be presented with this choice.

    Lawyers, by definition are 'independent', and required to serve a officers of justice, not as yes-person to the client or to the government or to the powers-to-be.

    So, in cases involving private interests, when a client comes to a lawyer for legal advice - good lawyers are not those who say 'yes' to what their clients ask of them, but those, based on experience suggest to their clients, what the law's true intent is and are able to suggest the 'right' course of action, not the 'easy' course of action. When matters of national importance are concerned – a good lawyer, armed with the understanding of law, equipped with the gift of articulation and protected from any personal consequences of taking sides in a case, is the voice of a nation – as much as the law makers, law implementers and law arbiters are.

    Therefore which side of this 'versus' - the lawyers and the legal community positions themselves, will ultimately decide the fate of India. There are but few moments in history, when this 'versus' matters more than it usually does to lawyers, for it is a fight not for the bread and butter of lawyers alone, but for the soul of this nation, the mind of the Rule of Law and everything our Constitution stands for – to which lawyers' pay the ultimate obeisance.

    And when we get weak kneed – let us remember, history will remember our greatest lawyers not as 'conformist' but as 'activist' lawyers. Today's greatest activist lawyers, those who have shown the courage of conviction in the darkest times – Ms. Indira Jaising, Mr. Colin Gonsalves, Mr. Prashant Bhushan, Mr. Dushyant Dave amongst several other Supreme Court and High Court lawyers, many of whom remain unsung are the stars that truly illuminate the dark sky. We, the young generation of lawyers will never forget you and your contribution and your spirit to fight the good fight. In the process, all and every badge is welcome.

    Views are personal.

    (Author is a Practicing Lawyer at the Supreme Court of India)

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