Why the criticism of UU Lalit’s appointment as India’s subsequent chief justice is flawed

On August 4, in step with conference, outgoing Chief Justice of India NV Ramana beneficial the senior-most decide of the Supreme Courtroom, Justice Uday Umesh Lalit, as his successor.

On social media, there was immediate criticism of the transfer, with a number of customers stating that Lalit had represented Dwelling Minister Amit Shah in circumstances the place he was accused of overseeing alleged extrajudicial murders whereas he was the house minister of Gujarat. In addition they drew consideration to the truth that Lalit’s Supreme Courtroom appointment got here three months after the Narendra Modi-led Bharatiya Janata Occasion authorities took cost in Could 2014.

However authorized consultants that Scroll.in spoke to had been unanimous of their dismissal of those arguments. They mentioned Lalit had been a good decide and his tenure until now had not raised questions on his impartiality.

The ethics of authorized illustration

Earlier than his elevation in August 2014, Lalit had a flourishing apply as a lawyer. He had represented a number of high-profile shoppers within the Supreme Courtroom, reminiscent of former Indian Military Chief VK Singh, former Punjab Chief Minister Amarinder Singh and actor Salman Khan.

Nevertheless, the circumstances that attracted essentially the most consideration had been those the place he defended Amit Shah in opposition to costs that he had deliberate the alleged extrajudicial murders of gangsters Sohrabuddin Shaikh and Tulsiram Prajapati in 2005-’06 whereas he was the house minister of Gujarat. In 2010, Shah was arrested and briefly despatched to jail within the Sohrabuddin Sheikh case.

Legal professionals mentioned it was unfair to criticise Lalit for selecting to characterize Shah, or some other shopper for that matter. “Legal professionals shouldn’t be judged based mostly on the shoppers they characterize,” senior advocate and former Patna Excessive Courtroom decide Anjana Prakash mentioned. “They characterize shoppers on the details of the case and don’t defend them personally.”

As a lawyer, “you must settle for all briefs that come to you”, she added.

That is typically known as the “cab rank rule” – similar to a cab driver shall not refuse a passenger, a lawyer should take up all of the circumstances that come to them.

In India, that is enshrined within the Bar Council of India Guidelines, which govern an advocate’s conduct. A lawyer is “sure to simply accept any temporary” that involves them, the foundations state, so long as the price is according to their “standing on the Bar and the character of the case” and there are not any “particular circumstances”, reminiscent of battle of curiosity, lack of material experience, and so forth.

The underlying precept is that an individual is assumed harmless till confirmed responsible and legal professionals mustn’t assume in any other case. “In the end, it’s for the decide to resolve, and for the federal government or prosecution to show a case in opposition to residents,” mentioned senior advocate and former Supreme Courtroom Bar Council Affiliation president Dushyant Dave.

Whereas some commentators have criticised the cab rank rule on grounds that it permits legal professionals to flee ethical accountability, many consider that this rule is critical to make sure nobody is denied authorized illustration.

As an example, a decision handed by the Coimbatore Bar Affiliation, which requested its members to not defend policemen concerned in a conflict with legal professionals, was struck down by the Supreme Courtroom in 2010. The court docket, citing Bar Council of India Guidelines, mentioned that this infringed an accused individual’s proper to authorized illustration. The court docket famous that comparable resolutions had been typically handed in circumstances involving alleged terrorists or rape accused however warned that such resolutions had been unlawful.

Even legal professionals who don’t subscribe to the cab rank rule say it’s unfair to guage Lalit on the premise of his shoppers. Senior advocate Sanjoy Ghose mentioned he’s principally in opposition to the cab rank rule as he believes that it’s a “disservice to characterize a shopper solely since you can’t say no to them”. However, he added, “it was silly and infantile to carry in opposition to Mr Lalit the truth that he represented the current house minister”.

Ghose added, “A profitable lawyer shall be representing all varieties of shoppers.”

Even senior advocate and human rights lawyer Prashant Bhushan, whereas clarifying that he wouldn’t have represented Amit Shah himself, mentioned, “You can’t fault a prison lawyer for representing somebody, even when others consider that the individual has been responsible of significant crimes”.

SC elevation

However the criticism directed at Lalit on social media went past his alternative of shoppers. Many revisited the circumstances during which he was appointed as a decide of the Supreme Courtroom in 2014.

Earlier that 12 months, the Supreme Courtroom collegium had beneficial 4 names for elevation as judges. Amongst them was former Solicitor Basic Gopal Subramanium. Whereas the newly elected BJP authorities cleared three names, it withheld approval for Subramanium’s elevation. Media experiences attributed this to adversarial intelligence experiences that seemingly alleged that Subramanium had “company hyperlinks” and had acted improperly in sure circumstances as solicitor common.

Nevertheless, it was broadly speculated that Subramanium was being punished for being the amicus curiae – somebody who assists the court docket – within the Sohrabuddin Sheikh case, the place he purportedly performed a vital function in Amit Shah getting arrested.

After the federal government didn’t approve his appointment, Subramanium withdrew his consent to be elevated to the Supreme Courtroom. In June 2014, he wrote to RM Lodha, the chief justice then, denying the allegations in opposition to him. He mentioned his appointment had been blocked by the federal government as a result of it was apprehensive that he wouldn’t “toe the road”. Even Lodha publicly criticised the Central authorities for not approving Subramanium’s appointment.

Lalit was then nominated rather than Subramanium and his nomination was authorised by the Central authorities in August 2014.

These details grew to become the premise for social media customers criticising Lalit when he was beneficial for chief justiceship.

‘Quite foolish’

Nevertheless, authorized commentators sharply disagreed with the criticism directed at Lalit.

“I assume it’s quite foolish,” former Supreme Courtroom decide Madan Lokur mentioned. “The failure to raise Gopal [Subramanium] was a mistake. That has nothing to do with the elevation of Justice Lalit.”

Authorized scholar Anuj Bhuwania agreed: “Subramanium not getting elevated was not Lalit’s fault.” He defined that judicial appointments had been, by default, a political course of.

Lalit’s expertise as a lawyer certified him for elevation as a decide, mentioned Anjana Prakash. “He deserved to be elevated.”

A number of legal professionals believed that Lalit was an upright decide who had not given causes to doubt his credibility. “Justice Lalit is a particularly reasonable, impartial and hardworking decide,” Dave mentioned. “He has by no means ever proven any form of favour or bias in opposition to anybody.”

Lokur mentioned it was regrettable that Lalit could have “an sadly quick tenure” of 74 days.