• Ishaan Vats

Ethical Dilemma v. Duty: Analysis Of Role Of The Advocate In The Movie ‘Shahid’ (2009)

Niveshita Somayajula, Student, Guru Gobind Singh Indraprastha University, Delhi

Introduction

The 2009 movie ‘Shahid’ is a fictionalized biopic of late Human rights advocate Shahid Azmi. The movie, starring Rajkummar Rao in the lead role, chronicles the life of a young criminal lawyer, Shahid Azmi who battled the State on its territory – the courtroom, and secured remarkable victories. He rose to prominence for defending impoverished Muslims wrongly accused of terrorism in high-profile cases such as the 2002 Ghatkopar bus bombing and the 2008 Mumbai train blast. Through the analysis of his role in defending terror-accused, many ethical questions regarding the duty of advocate can be answered.


Brief Synopsis of Movie ‘Shahid’

Shaken by the 1992 communal Bombay riots which jeopardized the security of his family, Shahid (played by Rajkumar Rao) ran away and enrolled himself in a camp that trained armed dissidents in Kashmir. Soon thereafter, disturbed by the violence he witnessed, Shahid escaped the camp and returned to his family in Bombay in the following year. But his past soon catches up with him and he is arrested under the draconian Terrorist and Disruptive Activities (Prevention) Act (TADA). He is tortured in custody and beguiled to give a forced confession, which leads to his imprisonment. In the five years spent in Tihar Jail, he completes his higher education, and on his acquittal, Shahid completes his law degree and after a few months, starts his practice. Then onwards, inspired by his circumstances, he made it his life’s mission to represent, pro bono, the lower-middle-class Muslim men who were indiscriminately picked up and implicated by the police to quickly wrap up cases involving terrorism and communal violence. Despite facing death threats and societal backlash, Shahid did not deter from his motive. The movie features only two such high-profile cases: the 2002 Ghatkopar bus bombing[1] and the 26/11 terror attack in 2008[2]. In reality, however, Shahid Azmi tasted unprecedented success- 17 acquittals in seven years, all of them in apparently ‘open and shut' cases. His illustrious career ended abruptly when he was shot dead by four assailants in his office on 11 February 2010.


Analysis Of Role Of Advocate In ‘Shahid’

Advocate’s Duty Towards Client

Through the analysis of this movie, let’s try to understand and deconstruct the ethical dilemma around representing a terror accused/ rapist/ criminal.


This is not the first time that the public has reacted negatively to an advocate who represented a person who is on trial for grave offenses like terrorism, rape, murder. Few weeks after the 26/11 terror attack, the Bombay Metropolitan Magistrate Court's Bar Association unanimously passed a resolution that none of its members would defend any of the accused of the terror attacks. Other bar associations passed similar resolutions. This was accompanied by extremist groups who threatened and bullied advocates against representing Ajmal Kasab, the lead terror accused. Several Judges and advocates, however, spoke against this practice because Kasab needed legal representation for a fair trial. To solve the deadlock, the Court eventually appointed a Senior Advocate to represent Kasab.


This action of the Bar Association was against the legal ethics that an advocate has to follow. According to RULE 11, Duty towards Client, of the BCI Rules, 1975[3],

An advocate is bound to accept any brief in the Courts or tribunals or before any other authority in or before which he proposes to practice. He should levy fees that are at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.’Although the term ‘special circumstances’

has not been defined, it could be interpreted to mean situations in which the Advocate doesn’t have dates or the Advocate is related to the case. This term is not interpreted to include situations of moral apprehensions or ethical afterthoughts arising due to the nature of the offense.


In the case of A.S. Mohammad Rafi, Coimbatore Bar Association vs. State of Tamil Nadu[4], it was observed that “Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the statute and professional ethics… It is against the great traditions of the Bar which has always stood up for defending persons accused of a crime.”[5]


In the recent case of Nalini Balakumar (2020), Mysore Bar Association passed a resolution that no member of MBA should represent Ms. Nalini Balakumar in the Court since she

“...was involved in an anti-national activity”. Further, MBA “... decided that none of us would represent the person who has been booked by the police for sedition”.

Justice Santosh Hegde and Justice V. Gopala Gowda (both retired) have said respectively that this is professional misconduct, and that it is the professional duty of a lawyer to render legal assistance to an accused person.


Not only is it unethical for Bar Associations to pass such resolutions, but it is also unethical for the Advocate not to put the legal interest of the client at the forefront. As Lord Brougham famously quoted, ‘an advocate, in the discharge of his duty, knows but one person in the world and that person is his client.’ This sentiment is replicated in the BCI Rules. According to RULE 15, Duty towards Client, of the BCI Rules, 1975[6],

It shall be the duty of an advocate to fearlessly uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate pieces of evidence’.

This rule is especially important because it is the advocate that represents the client before the Court and conducts proceedings on behalf of the client. He is the only link between the Court and the client. Therefore, his responsibility is onerous. He is expected to follow the instructions of his client, to the extent that it is in the interests of the client.


In Pandurang D. Khandekar vs. Bar Council of Mumbai[7], the Supreme Court held that an advocate stands in loco parentis towards the litigants. Therefore, he is expected to follow norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust. The council’s paramount duty is to the client. The client is entitled to receive disinterested, sincere and honest treatment.[8] Similarly, in Rondel vs. Worsley[9], It was held that every council has a duty to his client to fearlessly raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case.


But even after all the legal traps that ensnare an advocate to defend an accused, can a person’s morals really be set aside?


Can Moral Considerations be Ignored?

Adherence to Law

● Rule 15 of the BCI Rules prescribes that the fundamental duty of an advocate is fidelity to the law. The law supersedes any moral disagreement that the lawyers might have.


● As Rule 11 of BCI RULES states, in India, lawyers must accept the representation of clients in the order they come through the door, like taxi cabs waiting in a queue for passengers (cab-rank rule). But this rule is not strictly followed.


● It ensures that lawyers have a neutral and unbiased stance so that all kinds of clients are being given their fundamental right to be represented and heard before the Court.


● There needs to be a commitment to legal ideals in a more general sense, rather than determining the justice of a client on a case-to-case basis.


Adherence to Morals

● Society tends to question an advocate’s morality on the mere act of representing suspected terrorists. He or she is understood to be as guilty as the terrorist that they have chosen to defend.


● Some professionals find moral considerations an impossible element to ignore because moral ideas are so deeply ingrained in our human minds that they cannot merely be brushed off during the lawyer’s decision-making process.


● Often, decisions are drawn from moral discretion while selecting client cases, and hence even though client prioritization is a fundamental obligation, it is more on paper than in practice.


Advocate's Duty towards Society

In the movie and real life, Shahid Azmi regularly undertook cases in which the client required legal assistance but did not have the means to pay for it. He fulfilled one of the most important duties of an Advocate by rendering free legal aid to the people in need.


According to RULE 46, Duty towards Society, of the BCI Rules, 1975[10],

‘Every Advocate shall in the practice of the profession of law bear in mind that anyone genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an Advocate owes to society.

In Kishore Chand vs State of Himachal Pradesh[11], it was held that “though Article 39-A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defense if, as is common knowledge the youngster from the Bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practicing in the Court concerned, volunteer to defend such indigent accused as a part of their professional duty.” It is thus imperative for a lawyer to render this service as the legal profession is monopolistic and all the schemes of legal aid can be put in force by experienced advocates.


Critical Analysis

Law is an honourable profession, and every advocate is an Officer of the Court in which he/she practices. The critical position enjoyed by him in the administration of justice imposes a responsibility to ensure justice is made available to all, even to criminals who have committed the worst of crimes. These are a few reasons: -

The Principle of Presumption of Innocence (Innocent until proven guilty)[12] - In criminal cases, the State’s Public Prosecutor prosecutes the accused, and the accused has to hire Defence Counsel to defend himself/herself concerning the charges. The Prosecution and the Defence advocate the merits of their arguments before the judge, who arrives at the judicial decision regarding the guilt of the accused, and accordingly passes a sentence. Thus, it must be kept in mind that no accused is guilty of a crime until a judge proclaims him/her guilty after due process of law.


Defending the rights of a person, not the crime[13] – The “defence” of an accused does not in any way imply defending the crime committed or defending the criminal. The lawyer is not defending the crime or criminal but rather the due process of the law as an officer of the Court. The judicial process is to ensure the identity of the accused person, and the defence advocate ensures that he/she is given all available legal remedies including the right to appeal.


Procedural Right[14] - The question of guilt or innocence is the subject matter of trial but the question of legal representation is a matter of procedural right and constitutional guarantee and it must be upheld at all costs. The due process of law must be carried out.

Thus, it can be said that advocates are duty-bound to represent clients irrespective of any moral discord that he/ she might have with the client. This ensures commitment to the legal ideals in a more general sense, rather than case to case basis.


Conclusion

A lawyer plays a key vital role in the administration of justice. The movie ‘Shahid’ accurately captured the trials and tribulations of an Advocate as he struggles to fulfill his duty as an Advocate of defending individuals accused of terrorism while facing severe backlash from society for the same. Through case laws and legislations in this article, it has been shown that the duty of an advocate to represent the client overrides his moral apprehensions. Therefore, it is the duty of the Advocate to provide defence to everyone and to serve humanity within the domains of advocacy and legal ethics.

[1] Shahid Azmi: Short career, long-lasting impact, DNA (13/02/2010), available at: Shahid Azmi: Short career, long-lasting impact (dnaindia.com), last seen on 20/03/2021. [2] 26/11 accused Fahim Ansari's lawyer Shahid Azmi shot dead, Times of India (11/02/2010), available at: Shot dead: 26/11 accused Fahim Ansari's lawyer Shahid Azmi shot dead | India News - Times of India (indiatimes.com), last seen on 20/03/2021. [3] Rule 11, Section II, Part VI, Chapter II of Bar Council of India Rules, 1975. [4] AIR (2011) SC 308. [5] A.S. MOHAMMED RAFI VS STATE OF TAMIL NADU REP. BY HOME DEPT. & ORS., Briefcased, available at: http://www.briefcased.in/a-s-mohammed-rafi-vs-state-of-tamil-nadu-rep-by-home-dept-ors/, last seen on 20/03/2021. [6] Rule 15, Section II, Part VI, Chapter II of Bar Council of India Rules, 1975. [7] A.I.R. (1984) S.C. 110. [8] Advocates Resorting To Strikes is Failure of Contractual and Professional Duty, Legal Services India, available at: Advocates Resorting To Strikes is Failure of Contractual and Professional Duty (legalserviceindia.com), last seen on 20/03/2021. [9] (1967) 3 ALL ER 993. [10] Rule 46, Section VI, Part VI, Chapter II of the Bar Council of India Rules, 1975 [11] AIR 1990 SC 2140. [12] Innocent Until Proven Guilty, The People’s Law Dictionary, available at: Innocent until proven guilty legal definition of Innocent until proven guilty (thefreedictionary.com), last seen at 20/03/2021 [13] R. Jethmalani, Why I defend the accused, The Sunday Guardian, available at: Why I defend the accused (sunday-guardian.com), last seen on 20/03/2021. [14] R. Pandey and N. Bist, Right to legal representation: Refusal of lawyers to represent accused, irrespective of crime, amounts to failure of judicial system, Firstpost (08/11/2018), available at: Right to legal representation: Refusal of lawyers to represent accused, irrespective of crime, amounts to failure of judicial system - India News, Firstpost, last seen on 20/03/2021.

21 views0 comments
p2.png

Disclaimer Policy:

Nyayshastram shall reserve certain exclusive rights. No member of the Advisory & Editorial Board can be contacted without prior permission from the Managerial Board.

The website may offer users to read, react or comment to express their opinions on the individual blog posts, which may be open to the public generally. By virtue of entering this website, the users acknowledge that all the content is user content and while reacting to it they agree to comply with the rules and restrictions on user content. Nyayshastram does not subscribe to any of the views expressed by such users/authors.

© Nyayshastram 2020

All rights reserved

Designed By Palvinder Mahal