Justice Markankey Katju-
Dr Rajiv Dhavan, senior advocate of the Supreme Court of India, reminds me of Atticus Finch, the courageous lawyer in Harper Lee’s famous novel ‘To kill a mocking bird’ ( based on the actual Scottsboro case ), who bravely defends a black man in the state of Alabama ( a southern state of America which had, and still has, a lot of racism ) who was falsely accused of raping a white woman (then a capital crime ).
Atticus Finch did this despite threats to him and his family by the racists, and despite being ostracized by the townsfolk. When his daughter Scout asked him why he was defending the black man, Atticus replied: ” For a number of reasons, the main one being if I didn’t, I couldn’t keep my head high “.
For appearing for the Babri Masjid Action Committee (an organization of Muslims ) in the Ayodhya land dispute case, presently being argued before the Supreme Court, Dr Dhavan has received death threats and his clerk has been physically assaulted in the Court premises. What is forgotten is that a lawyer is only doing his professional duty, and cannot be identified with his client.
I have known Dr. Dhavan for long. We were classmates in school in Allahabad and again in the law course in Allahabad University. Of all the senior lawyers in India, I hold him in the highest respect. Other lawyers, including senior lawyers of the Supreme Court make improper compromises when they feel that is necessary for their self-interest, but Dr. Dhavan never does so, and this is the trait which distinguishes him from other Indian lawyers.
In the surcharged communal atmosphere in India today, perhaps no other senior Indian lawyer would have had the courage to appear for the Muslims, but Dr Dhavan did not flinch from his duty, and followed the rule of professional ethics that a lawyer cannot refuse a brief, provided his fee is paid and he is not otherwise engaged ( this rule is also in Chapter 2 of the rules for professional conduct and etiquette framed by the Bar Council of India ).
When the great revolutionary writer Thomas Paine was jailed and tried for treason in 1792 for writing his famous booklet ‘ The Rights of Man ‘ in defense of the French Revolution of 1789, the eminent lawyer Thomas Erskine was briefed to defend him. Erskine was at that time Attorney General for the Prince of Wales, and he was warned that if he accepts the brief he will be dismissed from office. Undeterred, he accepted the brief and was promptly dismissed.
However, his immortal words in this connection are still ringing in legal history ” From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in Court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he thinks of the charge or the defense, he assumes the character of the judge, nay he assumes it before the hour of judgment, and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favor the benevolent principles of English law make all assumptions “.
Indian lawyers have followed this great tradition. The revolutionaries of Bengal during British rule were defended by our lawyers, and so were the communists accused in the famous Meerut Conspiracy Case, Razakars of Hyderabad, Sheikh Abdullah and his associates, the INA accused tried at the Red Fort in Delhi, the assassins of Mahatma Gandhi and Indira Gandhi, Dr Binayak Sen, Ajmal Qasab, Yaqub Memon, Afzal Guru, the Bhima Koregaon accused etc. No Indian lawyer of repute shirked his responsibility on the ground that it will make him unpopular or that it was personally dangerous for him to do so.
In my judgment in the Supreme Court in A.S.Md Rafi vs State of Tamilnadu ( see online ) I referred to the legendary American lawyer Clarence Darrow who defended even the most vile and despicable accused as he believed that everyone had the right to be defended ( see his biography ‘ Attorney for the Damned ‘ ).
In re Anastoplo (1961 ) Mr. Justice Hugo Black of the US Supreme Court observed ” Men like Lord Erskine, James Otis, Clarence Darrow and a multitude of others have dared to speak in defense of causes and clients without regard to the personal danger to themselves. The legal profession will lose much of its nobility and glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, the government fearing individuals is to humiliate and degrade it “.
Dr. Dhavan is the Atticus Finch and Clarence Darrow of the Indian bar. Long live Dr Dhavan !
[Justice Markandey Katju is former Judge, Supreme Court of India and former Chairman, Press Council of India. The views expressed are his own].