Lawyers or Goondas? Choose, You cannot be Both: senior counsel Mihir Desai

Kanhaiya Kumar, JNUSU President outside Patiala Court on February 17

Not one of the Statements attributed to Kanhaiya can be deemed sedition, even as it exists, Desai

Senior counsel Mihir Desai from Bombay High Court, spoke to Teesta Setalvad on the gross misconduct by lawyers who assaulted Kanhaiya and others at the Patiala house court, Delhi and said categorically that they should have their licenses suspended and then cancelled:

 “Several basic principles of ethics of the legal profession have been seriously violated by the lawyers that we saw on television taking law into their own hands and assaulting women and men, including Kanhaiya Kumar on February 15 and 16 at the Patiala House Court, Delhi

First, the legal profession and lawyers work on the presumption of innocence and therefore to abuse and assault somebody on the footing that he and his supporters are already guilty goes against the tenet of any existing jurisprudence in India

Second, preventing a person from being effectively represented also goes against the basic tenets of legal ethics. This is what the assaulting lawyers essentially did; violate the basic tenets of their profession.

The third thing – and this is crucial — is that Courtrooms are sacred places, temples of justice. Where an atmosphere of reason and calm must prevail to enable lawyers on both sides as well as the Judge to come to a conclusion based on logic reason and evidence rather than passion.

Finally as lawyers you are not only representatives of one party or another; you are also ‘officers of the court.’ As ‘officers of the Court you are required to uphold the rule of law and have respect for the judicial system. If you don’t then you might as well resign and become full time goondas rather than part time ones!

You have Bar Council Rules that govern lawyers conduct and a strong professional ethics course when you study law. Bar Council Rules themselves incorporate professional ethics. Any misconduct is tested on the envelope of professional ethics.

Bar Council rules say that clearly that everyone has a right to be represented. Here we have a shameful situation where lawyers in black coats are beating up innocents. What happened on February 15 and 16 is misconduct by any stretch of the imagination: whether in black robes or not, as lawyers you are not supposed to be beating up people; if you do, you are liable to have your licenses suspended and finally cancelled So quite apart from criminal action the licenses of these lawyers should be suspended.

You can have only one profession, if you want to become goondas you must surrender your license! As a lawyer you study professional ethics and you have to practice ethically. For example, I may personally not take up the case of a rapist, but I would defend the right of the(a) rapist to have a lawyer.

What happened in Delhi was a first unless you include what happened in Pakistan
This was the first time for this kind of behaviour, certainly. There are instances when an entire Bar Association passes a resolution to deny defence to some accused. In Jagdalpur, Chhatisgarh recently, the local Bar Association has made it virtually impossible for lawyers appearing for tribals to function. But this kind of direct assaults by lawyers, this kind of violence within the Courtroom, this amounts to lawyers ganging up against an accused. This is indeed a first.

The only similarity I can find with this incident is in Pakistan where the assassins and killers of governor  Salman Taseer were showered with rose petals and hailed with shouts by lawyers within a Pakistani courtroom (January 5, 2011). This is as shameful.

The power of the Court to prevent Contempt that happens in its own face
Any court has the power to deal with contempt that is committed in its own face even the Magistrate’s Court.

What happened on February 15 and 16 was a clear contempt and the Magistrate Court should have initiated proceedings for Criminal Contempt. While a Magistrate does not have ordinary powers of contempt but when contempt happens in its face, the Court should have immediately acted. Here even the police stood by and watched. Now that the Supreme Court has been approached, we hope for the sternest steps.

It is also obvious that these lawyers do not know the law. They are clueless about the law. I say this because none of the statements attributed to Kanhaiya can amount to sedition even under the existing draconian and outdated section of the law, as it exists.

Finally I don’t believe that the lawyers were acting out of their love for India. They were acting as the mouthpiece of a particular ideology and with the confidence that the ruling party whose interest they were serving will not haul them up but will actually hail them for what they are doing. This bodes very ill for our democracy.

Mihir Desai has represented successfully cartoonist Asim Trivedi in the Bombay High Court when a case of sedition was filed against him. He is presently also counsel for journalist Mathew from Tehelka against whom several FIRs (where the sedition section has been applied) have been filed by Shiv Sainiks all over Maharashtra. This related to a comment on former Sena chief, Thackeray. The Bombay High Court has stayed the prosecution. Desai has also appeared for journalist Shirin Dalvi, the editor of an Urdu publication who was hounded after she published Charlie Hebdo cartoons. Her argument was; since in Islam there is no belief in the visual depiction of the Prophet why should there be offence caused by any such depiction by anyone! Not only was she severely ostracised but several criminal complaints were filed against her. These have been collectively stayed by the Bombay High Court.




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