What the Bofors case signifies in terms of solidarity within the Bar: Retired Justice Madan Lokur recounts

"Today you have a huge Bar, and to have that kind of solidarity that was there in the 1980s might be a little difficult. But it is very, very important", Justice Lokur said.
What the Bofors case signifies in terms of solidarity within the Bar: Retired Justice Madan Lokur recounts
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Solidarity within the Bar is very important, retired Justice Madan Lokur had occasion to emphasise on Friday, during a virtual discussion on the theme Defending Liberties, organised by the Delhi High Court Women Lawyers Forum and WCLA.

While commenting on this aspect, an incident that took place in the course of the infamous Bofors case was cited by Justice Lokur. He recounted,

"The Bar in the 1970s or 1980s was a small bar. There were a large number of lawyers. But nothing compared to what you have today. Therefore, you have groups or ideologies or whatever you wish to call them - that makes things a little complicated. I’ll tell you one instance in the 1980s, when this thing about the Bofors scandal had come up. One of the accused persons was Win Chadha. One of the allegations made was that the government had sold itself out for the purchase of Bofors guns and so on... Win Chadha was one of the prime suspects.. His lawyer’s office was raided. They wanted to find some documents in the lawyer’s office. They thought the lawyers would be having those documents. The lawyer managed to speak to somebody in the executive committee of the Bar Association… immediately, 10-15 lawyers went to that lawyer’s residence and told the cops or the people there that ‘you can’t do this. The communication is privileged.'"

Justice Lokur went on to narrate that the officials tried to cite national security and national interest to proceed with their raid. The lawyers, however, did not relent.

"They said, 'well, you can say whatever you like but the communication is privileged by law'", Justice (retd.) Lokur recalled.

He added,

"That’s where solidarity comes in. Right now, today you have a huge Bar, and to have that kind of solidarity that was there in the 1980s might be a little difficult. But it is very, very important. I think it is a good idea to discuss this with the representatives of the Bar."

Justice Lokur was responding to a question posed by Advocate Sowjhanya Shankaran on self-care and self-protection for lawyers and how lawyers should build themselves, while trying to put politics aside.

The discussion also saw Justice (retd.) Lokur interact with lawyers Warisha Farasat, Tara Narula and Shalini Gera.

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Posted by Bar & Bench on Friday, November 20, 2020

Farasat also spoke on the need for solidarity among lawyers, regardless of ideology, while responding to a query by Shankaran on how to overcome insults launched on lawyers termed as "activist lawyers."

Shankaran had pointed out that scathing remarks are also made by judges in court and orders are written trying to cast aspersions on why a particular lawyer would take a particular case.

Farasat responded that in such matters, there must be immediately solidarity from the Bar itself, regardless of ideology, especially when judges are targeting lawyers. She added that there is also some responsibility on the senior members of the Bar and the office bearers of the Bar to assure the lawyers "that we are with you."

Justice Lokur weighed in, opining that it is very unfair for a Judge to target a lawyer on the ground of ideology or because the lawyer is appearing for a particular kind of client. He added,

"We have had lawyers who have appeared nothing but preventive detention matters…there were hundreds of COFEPOSA cases, the lawyers were good! You cant say because a lawyer is doing a COFEPOSA matter, he is also a smuggler. That is absolutely wrong. I don't think the judge should ever get involved in the relationship between a lawyer and a client."

He also opined,

"By and large, I would say that your ideology should not come in the way of your professional assignment. If it does, then it means that a person who does not have your kind of ideology - you’re not going to defend him. I think ideology and the profession should be kept apart. But there would be some instances where you might find that you think it’s better to sacrifice a particular point for the sake of ideology - that would happen on a very, very rare occasions. But, if you are able to distinguish between these two, I don’t think you would have a problem. You can, of course, tell the Court that this is what you believe, and even though you disagree with what your client says, nevertheless, you have to defend your client. I’m sure the Court will understand."

Gera observed that there has been a quantum shift in the way the State is treating lawyers who are defending dissidents.

"People are getting targeted as 'Jihadi lawyers' and 'Naxalite lawyers'", she pointed out.

She also recalled a recent webinar on "Urban Naxals", where she stated that she had come across the term "Lawfare" for the first time, which was defined as using the laws of the State "to wage war against the State."

She added that while human rights lawyers have always been viewed as a nuisance, they were tolerated earlier. Now, they are being viewed as combatants, she noted.

"The very concept of providing legal defence to somebody that the State does not like has become an act of terror", she said, going on to agree that there is a need for all kinds of lawyers to organise in such spaces.

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