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Where should a matured legal system draw a line between freedom of expression and the concomitant right to criticize on the one hand, and protecting the ‘dignity’ of the courts on the other?
The 2008 American film ‘The Curious Case of Benjamin Button’ directed by David Fincher, based on a short story by F Scott Fitzgerald, shows Mr. Benjamin (played by Brad Pitt) ageing in reverse. It captured the imagination of the viewers with the idea that time or evolution can even be backwards.
Two recent actions of the Supreme Court seem to suggest something similar, no less dramatically, and ironically both of its own accord, by suo motu proceedings.
The idea that the ‘dignity’ of the legal profession and by implication of the ‘Court’ is always in danger is not a new one. But that the concerns around it are heightening rather than lowering with the evolution of democracy, suggests a somewhat reversing maturity of our legal system.
Take the recent case of contempt proceedings by the Supreme Court against Advocate and well-known public interest litigation lawyer Prashant Bhushan for his two tweets. This is clearly not an exception in recent memory as regards contempt cases for ‘scandalising remarks’ against the judges. But where should a matured legal system draw a line between ‘freedom of expression’ and the concomitant right to criticize, on the one hand - and protecting the ‘dignity’ of the Courts’ on the other? How much criticism will be tolerated by the ‘legal system’ when the ‘political system’ in India grows increasingly polarizing? The reason the latter is an important consideration in appreciating the contours of the former is because ‘dissent’ should have a special protection, where there are public charges of a majoritarian government. That the legal system and the political narratives go hand in hand, should not come as news to anyone, especially in India.
Similarly, the second recent order of the Supreme Court in In Re: Financial Aid For Members Of Bar Affected By Pandemic, also affirms that the Supreme Court judges feel the need to protect the ‘dignity’ of the legal profession, even at the cost of lawyers being unable to put food on the tables of their family. While noting the financial hardship that several lawyers across the country have had to face, in the light of the reduced court work, during the pandemic, the Court affirmed that lawyers are not allowed to engage in any alternative profession.
Once a lawyer, only a lawyer – this rule as incorporated in the Bar Council of India (BCI) Rules, provides, in essence, that lawyers practicing in the Court could only earn their livelihood through one means – litigation, and through none alone. The reason behind such rules is that the legal profession is understood as a ‘noble’ and ‘dignified’ profession, which requires complete and sole dedication of its practitioners.
How did Mahatma Gandhi and Abraham Lincoln, two of the all-time greatest lawyers, end up achieving what they did, if this principle of law requiring one’s full self is true? I could never answer my students satisfactorily while teaching (which is permitted with some exceptions alongside litigation), without also being ‘critical’ of the said BCI Rules and pointing out how outdated and classist they are.
Classist because, in the garb of protecting the ‘dignity’ of the legal profession, they ensure perpetuation of a system where the more established and powerful lawyers in the system benefit, whereas first generation lawyers or newcomers in the profession get further pushed to the fringes.
Let me help with a few illustrations. If lawyers are only ‘allowed’ to earn their livelihood through litigation, there is an assumption, that all lawyers get more or less equal number of clients, or atleast enough to be able to provide for themselves. Nothing can be farther from truth. Ask any new entrant to the profession and she could write a book on the tales of a struggling lawyer.
What about the decrease in the number of female lawyers once they enter the profession? Once they are married and have a kid, if they somehow get out of the cycle, then this Rule that says – if a lawyer, earn only as a lawyer, requires that they either surrender their Bar Council certificate that entitles them to practice, or choose their career over their families.
Similar rules regarding the ban on advertisement for lawyers are equally out of sync with the principle they seeks to advance. Apparently in the current day marketing heavy world, lawyers advertising, beyond a basic website where they can share their details and the cases they deal with, will qualify as ‘soliciting work’ which is beyond the ‘nobility’ and ‘dignity’ of the profession. Therefore, lawyers are not allowed to advertise beyond a basic website, never mind the concern about getting clients for the first generation lawyer – all in the name of ‘nobility’ and ‘dignity’ of the legal profession.
Do lawyers consider themselves too proud to advertise, and by implication superior to all the other professions which to a large extent depend on reaching out to their customers? Well, ask a young first generation lawyer, who could not care less about this ‘superiority’ as long as she is able to pay her rent on time.
So what does all this buzz about protecting the ‘dignity’ of the legal system boil down to? With the existence and practice of our Constitution for seventy years, are we to believe that the dignity of the courts, and of the legal profession is increasingly fragile, needing strict protection, or do we need to pause and set the clocks of our legal system’s evolution right?