What the lawyers in Agra don’t understand is that if an accused has no representation in court, he cannot face trial.
Chinese American writer, translator and editor Lin Yutang once said, “When there are too many policemen, there can be no liberty. When there are too many soldiers, there can be no peace. When there are too many lawyers, there can be no justice.”
Maybe he was observing what American president Jimmy Carter had in the seventies, when he spoke of the “over-lawyered and under-represented” American society, which had the “heaviest concentration of lawyers on Earth”, and where “legal skills seem to be unfairly distributed with 90 per cent of the lawyers serving mere 10 per cent of the people”. Of course, he was not predicting the situation that has arisen in Agra city of Uttar Pradesh, where several lawyers’ associations have have decided not to take up certain types of cases. The lawyers do not seem to understand that an accused, if not defended by a lawyer, can neither face trial, nor get sentenced, nor get released from the harsh conditions of jail as an under-trial.
The focus is on three Kashmiri engineering students charged with sedition for allegedly updating their WhatsApp statuses favouring the Pakistan cricket team on 24 October, after it had just beat India in a T20 cricket match. They are also charged with promoting enmity between communities (Section 153A of the Indian Penal Code), criminal intimidation (Section 503) and cyber terrorism (Section 66), etc.. The lawyers’ associations in Agra have decided to oppose anyone, even from outside the district, who accepts these students’ brief.
Yet, Mathura-based advocate Madhuvan Dutt Chaturvedi has decided to represent them. Chaturvedi also represented Atiq-ur-Rehman, Masood Ahmed and Mohammad Alam, who, along with journalist Siddique Kappan, were arrested last year while going to Hathras to meet the family of the Dalit woman in Hathras who was raped and murdered. All four are charged with sedition and under the Unlawful Activities Prevention Act (UAPA).
Can the lawyers snatch from other advocates their right to practice a profession? Can they ban lawyers from defending a particular accused? Can lawyers prejudge the merits of a case and arbitrarily decide nobody will take it up, violating the right of an accused to defend themselves under Article 21 of the Constitution. The basic question remains: how can there be a trial without a lawyer representing both sides?
Further, there is a need to seriously debate the merits of cases of sedition, which legal experts have found are filed in ridiculous situations. One such leading voice is of the retired Supreme Court Justice Deepak Gupta, who has said that the sedition charge has no place in the statute books of a democracy. He told journalist Karan Thapar in an interview that executive actions do not consider many celebrated Supreme Court judgements that emphasise that the charge of sedition cannot stand that unless there is violence or fear of violence. In the famous Balwant Singh case (1985), the accused was charged with sedition for raising the ‘Khalistan Zindabad’ slogan in a public square. The court acquitted him, arguing that though offensive, his slogan neither involved nor provoked violence.
Or recall the 1999 cricket match between India and Pakistan in Chennai. After the Pakistan team won, the spectators gave it a standing ovation for a marvellous performance. Taking a cue from the Agra case, should all the spectators be charged retrospectively under sedition?
No doubt there is a sense of deja vu to the refusal of the lawyers in Agra to defend someone accused of “anti-national activities” by the police. Around a decade and a half ago, sensational stories about the police arresting Lashkar-e-Toiba operatives and members of other radical Islamist organisations began to appear in the media. Bar associations in many states passed resolutions against taking up cases involving “anti-national” charges. Lawyers often assaulted and intimidated anyone who tried to represent the accused charged with terrorism by police.
Yet, a handful of lawyers gathered the courage to fight such cases, often getting attacked for it. The names of Ismail Jalagir in Karnataka, Mohammad Shoieb in Lucknow, and others, suddenly hit the headlines for their defence of the basic principles of the Constitution. But for their efforts, many innocents would have been left languishing in jail for life. For his courageous decision, Ismail Jalagir faced the wrath of Hindutva right-wingers. Miscreants tried to set his office afire, and his junior’s house got stoned. He faced assaults in the courts at Lucknow, Varanasi, Faizabad and other places. Later, Shoieb shared details of his rather lonely fight for justice for the innocent people who were charged with serious crimes, and who later were relieved of all accusations.
However, the idea of banning representation for those accused in such cases still spread. Even the Bar Council of India, a regulatory body, was asked to take serious note of the resolutions passed by the bar associations, which reflect not merely professional misconduct but infringe the constitutional and human rights of the accused.
The late KG Kannabiran, a former vice president of People’s Union for Civil Liberties and an advocate, had appealed to lawyers to rescind their decision to boycott particular cases. “The Bar Resolution stifles the right of the accused to defend himself at the trial. Our right to practice this profession is part of our fundamental rights,” he once said. “Can the members of the Bar negate the right of the accused available to him under Article 21?” he had asked, rhetorically. He also pointed out that to argue for a fair trial cannot be equated with or confused with asking to exonerate the guilty of his crime. “Let us not proceed on the facile assumption that there is no affinity between law and justice and law and morality,” he had said.
Of late, the media and judiciary have vociferously criticised the rampant use of the law of sedition in Uttar Pradesh and other states. According to NCRB data, such cases have risen to 165% in just the four years from 2016 to 2020. But as Assembly elections loom in Uttar Pradesh, the present regime in Lucknow is engaged in polarising the electorate, for it has nothing else to offer. In the coming days, the saffron government of the state could use the threat of filing sedition cases to stifle even more voices. It will be no surprise if more bar associations join the chorus started by lawyers in Agra, sending more people to languish in jails.
The situation is grave for the innocents who get charged and the health of the Indian democracy. We should not forget the synergy between people holding the reins of power and the right-wingers on the street who operate under various banners. They are all part of the same family, though a different kind of family. The question is, what we will do about it.