Shades of grey
But today there is no day or night Today there is no dark or light Today there is no black or white Only shades of grey - The Monkees
The law has so many loopholes. Also, sometimes the law is simply unable to catch up with the speed at which technology changes. But the loopholes are always going to be exploited. The Nirbhaya case is the best example. The lawyer for the accused "successfully" got the hanging postponed a few times, before eventually failing.
Which brings me to a philosophical fight with myself. Is that lawyer right or wrong? On the one hand, he is a great example of a man being extremely dedicated to his profession. He says he was upholding the oath that he took as a lawyer - to defend his client until even the absolute last remedy is exhausted. On the other hand, he never once disagreed that his clients committed the crime. He knows that they should be punished. What a weird conundrum. Who is right and who is wrong?
Doctors and lawyers go by a different oath. A doctor cannot refuse treatment to an enemy. A lawyer has to argue in favour of his client, always. In the case of simpler professions like mine, our ethical and moral compasses work clearly and give us distinctive black and white results. There are a few cases where there are a lot of grey zones, which are quite simple, in comparison. But what about a judge who has to provide a flawed ruling knowingly? Even though he knows he's hearing the arguments of a criminal, in the absence of sufficient evidence, he cannot hold him as a criminal.
As per the law of the land, someone has to defend the accused. If not this particular lawyer, someone else would have done it. And if that was not the case, the trial cannot proceed. At least in India. So let us consider a hypothetical situation where a known criminal is on trial. Now there is no evidence that is legally admissible. But everyone knows he's the criminal. But he is acquitted. I am trying to imagine what would be going on inside the head of the judge who has to preside on such cases. How his internal struggles will be. How difficult it would be for a righteous man to write the words and letters that spell out the acquittal of this criminal.
Consider another hypothetical situation. A madman who was shooting with automatic rifles in a school was captured barely alive after a shootout. He is wounded but not dead. There's a very good chance of saving him. So what is the doctor to do in this case?
Save him. Period. Hippocrates oath.
Similarly, the lawyer has the same line of thought regarding his client. Save him. If not, aim for a lesser punishment. The scale of morality that holds true for a doctor should hold true for the lawyer as well. So if the law also provides you with the option to appeal against your punishment, and the lawyer advises you to do so, he is not technically wrong, is he?
But is he right ethically?
Can't say. Ethics is subjective. Like taste. Like a favourite colour. Like the type of music. What is good (and right) for one may not be good (and right) for the other.
Tragically for lawyers, they may not have the luxury of choice because their circumstances (and their entire profession) are not like a usual type of job.
The lawyer is bound by his profession to ensure the best legal representation to his client as enshrined in the constitution. Meaning, the ethics of his profession require him to do his absolute damnedest best to ensure that the client is held not guilty, failing which, to get a lesser punishment. His entire duty is that - reduce the punishment.
The lawyer is not a judge. Meaning, as the doctor's job is to heal the patient, the lawyer's job is to defend the client until the absolute last possibility. Just as the doctor doesn't decide whether or not a patient gets to live or die, the lawyer does not get to decide if his client is guilty or not.
There may be the question of whether he should take the case in the first place. The answer is: Yes. Someone should. Some lawyer has to. Nobody - Indian or otherwise - under trial in the courts of justice in India can be held guilty without fair representation. If the accused is unable to hire a lawyer, the court will appoint one at the expense of the state. Thus, someone will have to defend the accused. Not a single person in the country doubted Kasab being guilty. But he was still taken to the court and adequately represented. There's a short and sweet answer about this on Quora here.
Now, if this lawyer does his absolute best to defend his client, he is being true and ethical to his profession. If not, his own ethics anyway come into question. It is like the doctor saying, put a band-aid on his gunshot wound and let us see if he survives.
Thus, clearly, the lawyer must, should and will defend his client to the best of his abilities and under all the provisions enabled in the constitution. But, when he is doing justice to his profession, to the person outside the courtroom, it will sometimes appear that the lawyer is just being a proper bastard. Which is unfair in general to the profession of law in and of itself, because, all that the lawyer is doing is his job.
It is as we say so many times - doctors prescribe tests just to make money. Which is not true in some ways. Doctors will need the test results to verify if there is some underlying condition. It is not usually in their hands to set the pricing of the tests. And if the doctor takes pity and tries to diagnose without the tests, then we say that the doctor is not good enough. They did not solve my problem. Hence the English proverb - "damned if you do, damned if you don't."
Also, there's a private joke amongst insurers. They say that their profession depends on presenting fear in a way that is not scary:
Life insurance agent to would-be client: "Don't let me frighten you into a hasty decision. Sleep on it tonight. If you wake in the morning, give me a call then and let me know."
Similarly, lawyers have a different problem. They cannot operate in a black-and-white manner. In any case, the accused must be represented legally to argue his case. Our constitution provides for it. There has to be adequate legal representation in a court of law before you are sentenced to any punishment for any crime.
Article 39-A of the Constitution provides that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Article 39A of the Constitution of India provides for equal justice and free legal aid:
The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Clearly then, the "scales of justice", it might seem, are not in balance. Now, we might feel that the constitution is flawed. But bear in the mind that the constitution applies to all citizens and for all cases. We are only highlighted to the flaws and legal loopholes in high profile cases. In other words, we are seeing a skewed representation. There are more than 54,000 cases pending just in the Supreme Court. Forget the other courts. So the implicit problem is that we can't go around changing the CrPC or IPC based on the outcome of one case. That is why in a democratic republic like India the constitution is the highest and the most sacred document. The bedrock and the foundation on which the country is built.
And so lawyers, for a long time to come, will wear black coats to operate in shades of grey.