In the annals of legal history, the role of lawyers has been both celebrated and vilified. However, the bedrock of any functional legal system is the unwavering principle that every individual, regardless of their side in a dispute, deserves representation. To castigate lawyers for appearing for any particular side undermines the very essence of justice. This article is intended to be an explainer of the legal position.

The Magna Carta of 1215 and the Universal Declaration of Human Rights (UDHR) of 1948 stand as monumental pillars in the quest for justice. The Magna Carta, often hailed as the cornerstone of modern democracy, underscores the right to a fair trial. It asserts that no free man shall be imprisoned or stripped of his rights, except by the lawful judgment of his peers or by the law of the land. Similarly, Article 11 of the UDHR states that "everyone charged with a penal offense has the right to be presumed innocent until proven guilty according to law in a public trial at which they have had all the guarantees necessary for their defense." Both these charter documents are so frequently relied upon by the courts in India, that their spirit now resides in Articles 14 and 21 of the Constitution of India. These historic documents, including our Constitution, emphasize the importance of legal representation. To demonize lawyers for defending any side is to contravene these age-old principles. Every person deserves the right to a defense, and lawyers are the conduits through which this right is actualized.

The Importance of Hearing All Parties

Courts thrive on the principle of adversarial justice, where all parties are given a fair hearing. This mechanism ensures that judges have a comprehensive understanding before concluding. Relating this to Daniel Kahneman's theory on bias and fast thinking, it becomes evident that judges, like all humans, are susceptible to cognitive shortcuts, or "System 1" thinking. Kahneman describes System 1 thinking as fast, automatic, and often driven by biases, while "System 2" thinking is slower, more deliberate, and analytical. By ensuring that all parties are heard and that all facets of a case are thoroughly examined, courts can mitigate the influence of System 1 thinking and promote more reflective and unbiased judgments. This adherence to comprehensive hearing aligns with the principles of judicial prudence and reinforces the integrity of the legal process.

In addition, the media's portrayal of cases often skews public perception, and judges are not immune to this influence. Hence, the significance of hearing all parties before reaching a verdict cannot be overstated. It is an essential facet of judicial prudence and integrity.

Accountability Through Court Mechanisms

Courts play a pivotal role in holding governments accountable. They scrutinize governmental actions and ensure that they align with constitutional and legal standards. For courts to deliver accurate judgments, they must consider all sides – and to hold the Government accountable, the government's version of events must be considered. This practice ensures that all facets of a case are examined, leading to a correct and well-founded verdict.

By castigating lawyers for representing the government or any other party, we undermine the court's ability to hold those in power accountable. Lawyers serve as the voice of their clients, and their representation is crucial for a balanced and fair judicial process. The public perception of attempting to see the judicial process in binaries – that is, either one side is correct or the other – is often the problem created by our own 'System 1' thinking – where we take cognitive shortcuts. Many may dislike the West Bengal Government's handling of the case, but the fact is that the Government is entitled to explain itself, enabling the Court to direct systemic changes – which when ordered could apply to all the States in India.

The Indelible Record of Higher Courts

The High Court and Supreme Court are courts of record. Their judgments are etched in history and serve as precedents for future cases. Therefore, their rulings must be accurate and just. Any errors in their judgments can have far-reaching consequences, affecting not only the parties involved but also the legal framework at large. The Supreme Court has reiterated that “Public opinion may also run counter to the rule of law and constitutionalism” (Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498).

For these courts to maintain their dignity and uphold the rule of law, they must ensure that all sides are given a fair hearing. Lawyers play a critical role in this process, and castigating them for their choice of clientele hampers the courts' ability to deliver just and equitable rulings.

Condemnation of Misguided Public Outrage

The recent posts and tweets criticizing Mr. Sibal's appearance for the West Bengal Government and the vilification of his legal team are unacceptable. Such conduct interferes with the administration of justice and amounts to criminal contempt. In the past, Judge Nyaya Bindu faced similar backlash when she granted bail to Kejriwal. Her photographs were circulated on social media, subjecting her to public scorn. Unfortunately, at that stage, neither the High Court nor the Supreme Court intervened to protect her, a matter that history will judge. In Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1, the Hon'ble Supreme Court has held that:

297. There is danger of serious risk of prejudice if the media exercises an unrestricted and unregulated freedom such that it publishes photographs of the suspects or the accused before the identification parades are constituted or if the media publishes statements which outrightly hold the suspect or the accused guilty even before such an order has been passed by the court.

In the said case, the court had castigated the publication of photographs of the accused, but it was not the photograph of the accused but that of the judge had been published. We have come a long way.

Public outrage against lawyers for representing certain clients is not only misguided but also detrimental to the justice system. It creates an environment of fear and intimidation, discouraging lawyers from taking up cases that are vital for a fair trial. While castigating Sibal's team for appearing for the State Government, it has been completely forgotten that the junior lawyers appearing alongside or assisting also include several women.

In Reliance Petrochemicals Ltd. v. Indian Express Newspapers Bombay (P) Ltd., (1988) 4 SCC 592], it was held that (at SCC pp. 613-14, para 35) process of due course of administration of justice must remain unimpaired. It was held that public interest demands that there should be no interference with the judicial process, and the effect of the judicial decision should not be pre-empted or circumvented by public agitation or publications.

The Cab Rank Rule and Professional Duty

The Cab Rank Rule is a fundamental principle in legal ethics, stipulating that lawyers must accept any case within their expertise, provided they are available. This rule ensures that everyone has access to legal representation, regardless of their circumstances. Like doctors, lawyers cannot refuse clients based on personal prejudices or the unpopularity of the case. In fact, the Cab Rank Rule is so central to the common law system of adjudication that in Australia, it is specifically made a relevant quality for designation as Senior Counsel (referred to in paragraph 19.2 of Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766)

This rule underscores the limited discretion that lawyers have in choosing their clients, much like the doctors. They are bound by a duty to their profession and the Constitution to represent anyone who seeks their services. Criticizing lawyers for fulfilling this duty is not only unjust but also undermines the very fabric of legal ethics.

The Duty to Defend Under Difficult Circumstances

Not only private counsel have difficult tasks but even the law officers are often called upon to defend the government in contentious cases, including those involving false encounters or the premature release of rape convicts. While these cases may be fraught with moral dilemmas, the lawyer must provide a robust defense. This duty is enshrined in their commitment to the profession and the Constitution.

Even in the most challenging cases, lawyers must adhere to their professional responsibilities. Their willingness to defend unpopular clients is a testament to their dedication to justice and the rule of law.

The legal system's strength is often tested in controversial cases. Even Nathuram Godse, the man who assassinated Mahatma Gandhi, and Ajmal Kasab, the terrorist involved in the 2008 Mumbai attacks, were given effective legal representation. These instances highlight the importance of providing every individual with a fair trial, regardless of the heinousness of their crimes. Of course, the comparison between defending the accused and appearing for the Government cannot be lost sight of, but it cannot be forgotten that the media has placed the West Bengal Government in the dock.

The measure of a legal system's integrity lies in its ability to uphold justice, even in the most difficult circumstances. Lawyers who take on such cases exemplify the highest ideals of the profession. Perhaps it is time for the Supreme Court to step forward and reaffirm this principle.

In a democratic society, holding the government accountable and ensuring that every individual receives a fair trial are paramount. Lawyers are the defenders of these principles, and their role should be respected and valued. It is time for the judiciary and society at large to recognize and uphold the importance of legal representation for all, irrespective of the side they represent.

Author is an Advocate on Record, Supreme Court of India. Views Are Personal