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Saturday, 25 August 2012

Why A Lawyer Must Defend A Perceived Criminal


Very often we find ourselves nurturing anger and hostility against lawyers because we can't help ourselves from thinking that they defend criminals and the corrupt and ultimately, many a times, aid them to escape the clutches of law. 

This video will perhaps clarify the notion of many, that lawyers do a great disservice to this country by choosing to defend the perceived corrupt / unpopular persons in Court. In this conversation, Mr. Ram Jethmalani, a lawyer who requires no endorsement of his excellence in the field of law, cites the very famous speech of Lord Erskine, perhaps one of the greatest legal minds that ever was, who went against his friends and family to defend Thomas Paine who had been charged with seditious libel after the publication of the second part of his Rights of Man. This speech was rendered by him during the trial. Erskine's speech is also remembered for a passage on the duty of barristers to take on even unpopular cases.









I'm quoting that speech of Lord Erskine which you'll find Mr. Jethmalani reiterating in this video.

"My name and character have been the topic of injurious reflection. And for what ? Only for not having shrunk from discharge of a duty which no personal advantage recommended, and which a thousand difficulties repent. But gentlemen (of the jury) I’ve no complain to make either against the printers of these libels nor even against their authors. The greater part of them ….may have believed that they were serving their country by rendering me the object of it’s suspicion and contempt and if there have been amongst them others, who are mixed in it from personal malice and unkindness, I thank God that I can forgive them also. Little indeed they know me who thought that such calumnies could influence my conduct. I will for ever, at all hazards, assert the dignity, independence, and integrity of the English Bar, without which impartial justice, the most valuable part of the English constitution, can have no existence. From the moment that any advocate can be permitted to say that he will not stand between the Crown and the subject arraigned in the 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 may think of the charge or the defense, he assumes the character of the Judge nay before the hour of judgment and in proportion to the risk, rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all presumptions and which commands the very Judge to be his counsel."



To what does this principle owe its basis ? Well, it owes its basis to the  "law". That law, which is nothing but legal enactments of our Parliament.  And the will of the Parliament is nothing but the will of the people. It's the people of this country who through their representatives in the Parliament have created this principle that "no man will be condemned without being given a fair chance to defend himself". Therefore no matter what we may infer about the real motive behind why lawyers do what they do, this principle remains the bedrock on which it's justified.





26 comments:

  1. I agree Anupam , every man deserves a fair trial and I also believe that even if convicted, every criminal deserves the right to a life after he has served his term and has reformed. The latter also our society will not allow. Pointing fingers is something everyone loves!

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  2. this is one of the fundamental law of natural justice Audi alteram partem - no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.

    Although sometimes the crime is so heinous that even a hint of "help" to that person results in anger and frustration of the public.
    But the inevitability of punishing the innocent makes it important to give everyone a fair trial.

    Interesting post as ever :)

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    1. And the other fundamental principle of natural justice is "Nemo iudex in causa sua" - "no-one should be a judge in his own cause".

      So You know quite a few laws Jyoti. Superb !!!

      Thanks for reading and sharing your take.

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  3. A society can be called civilised only when it offers a chance even for the most barbaric criminal a fair chance to defend himself. good write

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  4. A great part of the ire directed against lawyers defending people accused of heinous crimes is the mistaken impression about what constitutes a good defense. Our movies have portrayed lawyers as fabricating evidence in defense of their clients and, what is worse, as though such a defense was not merely acceptable but also the duty of the concerned lawyer! No wonder the populace fears that even a blatant criminal can get off! Bollywood has a lot to answer for!

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    1. That's majorly because of pathetic research by most of our film makers when it comes to depicting a Courtroom proceeding.. A majority of foreign films I've seen, have their courtroom scenes very aptly portrayed in terms of what actually happens during a trial. Even including use of legal terms and minimum drama, much unlike our films.

      Thanks for reading Suresh ji.

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  5. Beautiful speach from Lord Erskine. Where has the beauty of the English language gone?

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  6. You may like to read what Sakshi said too.. http://www.imaginationistimeless.com/2012/02/defining-justice.html on similar lines...How a lawyer sees a case....

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    1. I read it Chintan.Thanks for sharing the info. I was glad to find out what Sakshi had to say.

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  7. Lawmakers define the way law is applied. In our nation the law recommends that fair opportunity be given to every one to justify themselves. This is a good topic selected by Anupam.

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    1. Thanks for reading Kumar and sharing your insight.

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  8. its a 'fair trial' and a right of a person to defend himself...otherwise it will be called barbaric in itself...
    i always wonder how a lawyer might find himself in a situation where he knows that his client is guilty...i guess in that case he ends up finding glitches in the law...i dont know if it can be justified...

    nice post...

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    2. t's not proper ethics to refuse to defend a client basing on my perception that he is guilty. It's the work of the Courts to determine his guilt or innocence. By prejudicing my own mind and the mind of others about his guilt I will do the greatest possible disservice to our Constitution and to the ideals of free and fair justice.

      Imagine this. We all saw what Kasab did on TV. There could not have been any doubt prima facie that he is guilty. What would have happened if no lawyer would have come forward to defend him.

      Vineet, it's not based so much on a lawyer's moral values to fight or not fight for a guilty person as much on his belief and allegiance to the ideals of our democracy and Constitution that is the answer to your very legitimate query.

      It doesn't matter what the lawyer believes about a man's guilt. All he should / must believe and stick to is the principle that he deserves a fair defense in Court.

      Finding glitches in law may not be the only defense. It may not be required also. If no evidence is forthcoming against him. Why go that far ?

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  9. Not everyone can express thoughts so clearly. You do it perfect, everytime.

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  10. your post does speak of the foundation of our legal constitution, but one which is being exploited to the maximum now-a-days by the politicians, powerful, and the money-launderers..

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  13. Hmmm,,,I was just wondering how difficult it must be for the lawyers to defend their guilty clients... in terms of the fight with their own conscience...

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    1. I wonder the same

      Thanks for reading Ilakshee

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