Blame Brain Drain?

[Co-written by Jennifer Bennett.]

The Bombay Metropolitan Magistrate Court Bar Association has adopted a resolution barring its members from representing Mohammed Ajmal Kasab (Law and Other Things blog), the sole surviving November 26th attacker.

Lawyers often feel pressure not to represent people associated with unpopular causes. I remember that Doug Tinker (RIP Doug) initially declined to represent Yolanda Saldivar, Selena’s killer. But then he came to his senses. It’s easy for a lawyer to find an excuse not to represent the unpopular defendant. But representing unpopular people is our job.

Rohini Wagh, President of the BMMCBA says that terror
suspects “must not be defended
“. His reasoning? “Besides the human right of a terrorist,
we have to look at the human rights of the innocent victims as
well.” (

Admits a Supreme Court advocate who has represented a terror
suspect in the past, “It’s not just to do with the failure of the
criminal justice. There are other factors involved like
anti-nationalist sentiment.”

“Everything in court is so
pro-establishment. I don’t want to take up such cases because I do not
want to be branded as a lawyer who takes up such cases alone,” she says
on condition of anonymity. “Also, I have no love lost for these people
(terror suspects). You could say my decision is a tactical career move.”

(Livemint.) The anonymous Supreme Court advocate is anonymous for a reason: she knows that she’s wrong.

Why is she wrong? As in the U.S., it’s the law. (Times of India.) Also,

One, it mocks the notion of presumption of innocence till guilt is
proven. Not only is that a cornerstone of law, enshrined in the
Universal Declaration of Human Rights (which turned 60 on 10 December),
but also guaranteed in the Indian Constitution—something, I presume,
the bar association members know a bit about. If lawyers start
prejudging clients responding to public mood, the consequences are
anarchic, with an extreme conclusion being mob justice

it undermines the rule of law and fair trials, or what India rightly
claims as values separating it from its enemies. Indian jurisprudence
is fairly well defined when it comes to the rights of the accused. An
impartial judge, a government-appointed lawyer and a quick trial do
not, in themselves, make for a fair trial. An accused needs due
representation irrespective of the mood of the nation.
this is like scoring an own goal. It makes those who hate India feel
their nihilist narrative—shoot first, ask questions later—is justified,
because India does the same. Why must India stoop to their level? There
is nothing to conquer through such stooping.

(London writer Salil Tripathi in Livemint.) New York lawyer Vishnu V. Shankar provides the obvious “liberal” argument for providing Kasab:

Even the most reviled of defendants must receive legal representation
because criminal defence, as an ideal, is more about defending liberty,
fairness and the rule of law, and less about defending the actions of
individual defendants.

As well as a “conservative” argument.

Mumbai lawyer Trideep Pais says, “Criminal justice in our country has to reach a point where no one is
denied his right to be represented. And when I say I am representing a
terrorist, one will merely gasp—but that’s all. There should be no
value judgement on whom the lawyer is representing.” (Still Livemint.)

India has been through this before. Lawyers in the state of Uttar Pradesh collectively decided to boycott cases of those
accused of terror strikes, and beat up lawyers who defied this diktat
; after a 2001 attack on India’s
Parliament, lawyer Ram Jethmalani was representing one of the accused
bombers, Delhi University lecturer S.A.R. Geelani, on appeal.
Jethmalani’s Mumbai office was attacked by a pro-Hindu group as a
result. (Livemint again.)

So what does Jethmalani (“a colourful and controversial figure among lawyers and
the Indian populace at large
“), who has been down this road before (at least twice), say about representing Kasab?

“There is the express rule of the Bar Council of India that no lawyer
shall refuse to defend a person on the grounds that it will make him
unpopular,” Jethmalani said.

“That is something that should
never worry a lawyer. No lawyer worth the name should even talk about
this kind of a thing,” Jethmalani said and asked the legal community
not to worry about peer criticism while taking up such cases.

“No lawyer has the right to say that he will not defend an accused.”


There are voices like theirs — Jethmalani’s, Pais’s, Tripathi’s, Shankar’s — in America, and voices like Wagh’s and the anonymous Supreme Court advocate’s. As in India, there are nationalism and fear. That nationalism and that fear, though, don’t drive those like Wagh to gang together with threats of violence toward those like Jethmalani who defend the damned.

Not yet.

0 responses to “Blame Brain Drain?”

  1. A year or two ago I got my first, and so far only, defense case on child abuse from an insurance company (the prosecutor had declined to proceed but the parents sued for money damages anyway – and yes, there are ways to draft a complaint to trigger insurance coverage for child abuse, though I won’t say what they are). I viewed it as a challenge Rage, and have been very appreciative of the advice I’ve gotten from criminal attorneys about experts and the special demands that these cases impose.

    It didn’t hurt that I think my client isn’t responsible, but I’d have defended it whatever my opinion. I admire the attorneys who defend these cases, and think most criminal defense attorneys already know they’re unpopular among law ‘n’ order types in the general public. As to lawyers beating one another up, are you suggesting that state bars in America are preparing to throw defense attorneys out for doing their jobs?

  2. Is your state bar question directed to me? I don’t think they’re going to do anything to anyone for defending a case. They damn sure don’t do anything to them for wrongful prosecution, why would they do anything to the defense?

  3. One could also make an originalist argument for defending the ‘damned’ in John Adams’ defense of two British privates in the Boston Massacre trial, calling it “one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country,” even after his Presidency.

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