Senior advocate at the Supreme Court of India, Rajeev Dhavan reminds me of Atticus Finch, the courageous lawyer in Harper Lee’s famous novel To Kill a Mockingbird – based on the actual Scottsboro case – who bravely defended a black man who was falsely accused of raping a white woman (then a capital crime) in Alabama, a state teeming with racial tension.
Finch did this despite threats to him and his family, and despite being ostracised 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 representing the Babri Masjid Action Committee – an organisation of Muslims – in the Ayodhya land dispute case at present being argued before the Supreme Court, Dhavan has received death threats and his clerk has been physically assaulted in the court premises. What remains overlooked is that as a lawyer, Dhavan is only doing his professional duty, and cannot be identified with his client.
I have known Dhavan for a long time. We were classmates in school in Allahabad and again in the law course at Allahabad University. Of all the senior lawyers in India, I hold him in the highest regard. Other lawyers, including senior lawyers of the Supreme Court, make improper compromises when necessary for their self-interest, but Dhavan never does so, and it is precisely this trait which distinguishes him from other Indian lawyers.
In today’s surcharged communal atmosphere in India, perhaps no other senior Indian lawyer would have had the courage to appear for Muslims in the Ayodhya land dispute case, but Dhavan did not flinch from his duty, and followed the rule of professional ethics that state that a lawyer cannot refuse a brief, provided his fee is paid and he is not otherwise engaged – a rule that is also enunciated 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 defence of the French Revolution of 1789, the eminent lawyer Thomas Erskine was briefed to defend him. At the time, Erskine was the Attorney General for the Prince of Wales, and was warned that if he accepted the brief, he would be dismissed from office. Undeterred, he accepted the brief and was promptly dismissed.
However, his immortal words in connection with the case still ring 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 defence, 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 favour the benevolent principles of English law make all assumptions”
Indian lawyers have followed this great tradition. During the British rule, the revolutionaries of Bengal were defended by Indian 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, Binayak Sen, Ajmal Qasab, Yaqub Memon, Afzal Guru, the Bhima Koregaon accused etc.
No Indian lawyer of repute has shirked away from his responsibility on the grounds that it would make him unpopular or that it was personally dangerous for him to do so.
In my judgment in the Supreme Court in A.S. Mohammed Rafi vs State of Tamil Nadu, I referred to the legendary American lawyer Clarence Darrow who defended even the most vile and despicable accused persons as he believed that everyone had the right to be defended.
In re Anastaplo ( 1961 ) 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 defence of causes and clients without regard to 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, government fearing individuals is to humiliate and degrade it “.
Rajeev Dhavan is the Atticus Finch and Clarence Darrow of the Indian bar. Long live Rajeev Dhavan!
Markandey Katju is a former judge of the Supreme Court of India.