Top lawyers' refusal to defend TikTok undermines India’s claims of being rule of law country

By opting against representing ByteDance, the company behind TikTok, Abhishek Manu Singhvi and Mukul Rohatgi have set the legal profession and the rule of law in India on a slippery slope

Alok Prasanna Kumar July 02, 2020 17:07:21 IST
Top lawyers' refusal to defend TikTok undermines India’s claims of being rule of law country

After its app TikTok got "banned" by the Indian government, ByteDance suffered another blow when two eminent senior advocates, Abhishek Manu Singhvi and Mukul Rohatgi, confirmed that they would not appear on behalf of ByteDance in any litigation. As with the government’s 'ban', the refusal to appear for TikTok will affect Indians far, far more than the Chinese company, let alone the Chinese government. While the former ban devastated the livelihoods of thousands of 'TikTok stars', the latter will jeopardise the rights of many innocent Indians getting crushed by the criminal justice system.

This is no exaggeration. We have seen that in cases concerning terrorism and sexual assault, district bar associations have passed grandiose proclamations that they will not appear for the accused in the case. Not only that, they have also tried to intimidate and browbeat lawyers who appear for the accused from outside the district for the accused.

Usually such "resolutions" are passed in the context of accused who can’t afford lawyers in the first place — a move that brings superficial publicity with zero risk for such district bar associations. Courts have condemned such resolutions repeatedly as being against the rights of accused and the rule of law, but to little avail. Courts’ task in ensuring fair representation has become much harder now in light of the endorsement of such practices by the elite of the Bar.

The requirement to represent everyone is not an airy-fairy convention or hoary tradition of the legal profession — it is the law. The Bar Council of India, the statutory authority to regulate the legal profession has framed the Rules on Professional Standards in accordance with its powers under the Advocates Act. The Rules could not be more clear and say very clearly that “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 practise.” Certain “special circumstances” may allow an advocate not to accept a brief but these do not relate to the identity of the client.

Whatever Rohatgi, Singhvi and others like them may do, I have no fear that ByteDance will go unrepresented in Indian courts — there are any number of lawyers who will be happy to adhere to both the highest standards of the legal profession and make a solid pay packet in appearing for a large multinational in a high profile case. More power to them.

That said, there are deeper and more serious implications for the legal profession and the rule of law in India from such statements by senior lawyers.

One, it affirms the false belief that the lawyer is nothing but a mouthpiece for the client — as though the lawyer exercises no independent judgement, impartiality or detachment in handling a case. This is a charge that is not hurled only at lawyers for those accused in heinous crimes, but also those who appear for corporates, human rights organisations — pretty much anyone appearing for an unpopular client. It’s a phenomenon that’s not limited to the general public - lawyers indulge in this kind of petty point scoring on social media when they see fit.

Two, it undermines India’s claims to being a rule of law country. The rule of law is about applying the law equally to all and creating spaces where the law is applied to all without fear or favour. It is about the right to being represented by a lawyer and to have judgement in accordance with the law. If the efforts of governments to undermine the rule of law were not bad enough, lawyers adding to it by debasing their own profession make it worse. If litigants and accused are to be prejudged by lawyers before they’re judged by judges, why do we need courts and trials?

There’s also a possibility that such behaviour by lawyers may make it harder to bring the likes of Nirav Modi and Vijay Mallya to justice in India. If a fair trial in India is deemed sufficiently unlikely given the conduct and unprofessionalism of the Bar, foreign courts are unlikely to turn over suspects to Indian authorities in accordance with international law.

Three, it makes it much more difficult for accused in high profile criminal cases to find lawyers to defend them. This is irrespective of whether the person accused of the offence by the police is guilty or otherwise. Recall that in the infamous Ryan International School murder, the local district bar association refused to represent a school bus driver sought to be made a scapegoat for the murder. Were it not for the CBI probing a little further and finding the perpetrator, a terrible and grave injustice would have been perpetrated with the collusion of the local Bar.

If the principle — that no one will stand condemned without being heard — is not upheld, it doesn’t quite matter who pays the price today. Eventually, we will all pay the price.

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