By Apar Gupta
“Our culture is the best. In our culture there is no place for a woman.”
The above is just one line from the many remarks made by ML Sharma on camera in India’s Daughter, the controversial documentary on the 2012 Delhi gang rape case. Sharma is joined in his misogynistic ramblings by another defence lawyer, AP Singh, both of whom defend those accused of raping and murdering the young woman who has become an Indian icon. Their clients were found guilty but are awaiting a final verdict on their appeal to the Supreme Court. Not limiting themselves to the legal defence of their clients, they veer into a perverted commentary when interviewed for the documentary, which by itself reveals the rape culture prevalent amongst some in India.
Spurred by a relentless media cycle and online conversations, the Bar Council of Delhi hurriedly convened a meeting yesterday to discuss possible disciplinary actions against both lawyers.
The record of the Bar Council of Delhi in this regard itself has been inconsistent to say the least. At previous occasions, its chairman feigned inaction, stating it does not have suo-motu jurisdiction. In plain English, this means the Bar Council cannot take action by itself until someone complains to it first. Yet the process to make any such complaint is complicated and troublesome. Not only does it require a person to send 55 copies of the complaint, but essentially one must argue against a lawyer who is judged in-camera by 25 of his peers. This is compounded by a lack of total transparency, which has been independently documented and is anecdotally known to many practising lawyers.
Moreover, the Bar Council Regulations, as they are presently framed, discourage any lawyer from tattling on their own. The regulations are onerous with respect to solicitation of clients. For instance, they have stringent criteria on lawyer websites and may even invite action for having a presence on social media. This would means complaining of a breach of professional ethics of another lawyer makes one liable to a counter-claim on themselves.
Finally, the facts themselves show that the present action is initiated essentially to tide over the outrage. In 2013, Singh made similar comments on which the Bar Council issued notice for professional misconduct. There is no news what came of this complaint or whether it was prosecuted with the necessary rigour. Incidentally, this action was taken suo-motu by the Bar Council. Clearly, to misquote Shakespeare, there is something rotten in the state of our Bar Councils.
However what should concern us is a larger question. Should a lawyer’s personal opinion (no matter how repulsive) be a ground for professional misconduct?
An opinion or public statement may be grounds for conviction under the myriad speech offences of the Indian Penal Code, 1860. But as courts have held in several cases in the past, a criminal trial is distinct from the disciplinary proceedings of the Bar Council. The same act may give rise to two independent consequences in law — one entailing imprisonment, another being disbarred.
Disbarring a lawyer for a personal opinion is not supported textually by the Bar Council rules as they presently stand. Doing so would be a popular, but contrived result. The substantive duties of a lawyer for professional misconduct do not either textually or in intent support the present action. Beyond a general preamble which precedes these rules, none of the several detailed rules even in their generality indicate that the speech of an advocate in their personal opinions falls within the realm of professional misconduct.
More importantly, odious as Singh and Sharma’s opinions may be, in terms of setting a precedent, disbarring them would enlarge the powers of the Bar Council to shutting out personal opinions of lawyers, many of whom practice law along with a sense of idealism. For them, dissent and challenging majoritarian discourses is not only through arguing constitutional challenges, but also through grassroot advocacy and public campaigns. These campaigns often challenge majoritarian discourses prevalent in society.
If Sharma and Singh can be disciplined, there is reason to suspect this may pave the way to invite future action against idealistic dissidents. Any lawyer from Delhi can narrate how they receive multiple messages on their cell phones from past contesting and present members of the Bar Council canvassing for their votes. These messages are not for the Bar Council elections, but the State and the General elections. Beyond this, office bearers of the Bar Council have campaigned for political candidates. This should serve as a fair warning given that no firm textual criteria exists under the Bar Council rules to limit future actions for voicing personal opinions. Hence, to veer down this path would open political censorship of practising lawyers through the newly-fanged powers of the Bar Councils.
Today, many lawyers are faced with the sad, frightful prospect of being typecast in the stereotype established by Sharma and Singh. However, the remedy is not to prosecute them for professional misconduct, but distancing ourselves from them through our own professional conduct. Lawyers should individually and collectively engage in social censure of such lawyers, request Bar Associations to organise gender discourses and even take up pro-bono matters of violent sexual crime against women. A cynical reading of the law today may achieve the ends of the day, but they have could destroy the independence of the Bar.
Apar Gupta is a Delhi-based lawyer. He has carved out a niche for himself in media law and freedom. Gupta was on Forbes’s 30 Under 30 list for his work on the law, internet freedom, privacy and freedom of speech.
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