Saturday, September 4, 2010

Preservation of Rule of Law- Bar and the Bench

This post is in response to the ongoing lawyers strike in state of Orissa. They have been boycotting the courts including that of the High court at Cuttack since August 25th in protest against the death of advocate Bishnu Charan Dash in the Bagalpur police firing on August 23rd. Dash’s death had evoked protests from all sections of the bar. Surely the death of Mr. Dash should be condemned, but the larger question here is to what extent the interests of thousands of litigants can be put at stake. The third phase of the trial in the Kandhamal nun rape case was scheduled to begin on Monday after several delays. Unfortunately it couldn’t, as the lawyers were too busy on the streets up in protest. Lord Justice Stephen Sedley in his Hamlyn Lectures had remarked that the rule of law is indeed necessary but not a sufficient condition of a decent society. There is more to a decent society than the rule of law. Understanding and awareness of one’s rights need to be imbibed and that can be done only through education. He then concludes by saying that “if lawyers are to be educators, they must be trend setters inspiring public confidence.” Mr. Nariman in his autobiography Before Memory Fades writes “We demean our ourselves and our profession when we resolve to strike work, and so paralyze the working of the courts, tribunals and statutory authorities where public cases and causes demand our expertise, intercession and assistance.” We should not forget that the judiciary of our great country is the guardian of the constitution and the protector of civil liberties. In the discharge of its obligations the judiciary draws heavily from the bar. It’s a conjoint effort of the Bar and the Bench. If the Bar fails in its primary obligation to protect the interests of its clients, the Bench as a necessary consequence fails as well. We should remember what the greatest of the American trial lawyers Clarence Darrow said:
I have never turned my back on any defendant no matter what the charge, when the cry is the loudest the defendant needs the lawyer most; when every man has turned against him the law provides that he should have a lawyer. I can honestly say I have kept the faith.”

Kanad Bagchi

1 comment:

  1. It might be true that one violates the very rule of law by holding strikes as a lawyer but one does not violate the very rule of protest against the unjust. Lawyers have played a pivotal in the struggle for Indian independence. May it be as a leader or by boycotting the law courts, lawyers have always contributed in restoration of a just society. Many leading lawyers, like, CR Das, Motilal Nehru, MR Jayakar, S Kitchlew, V Patel , Asaf Ali Khan and many others have boycotted and gave up lucrative practices. Their sacrifice became a source of inspiration for many. Holding a strike might take away the right of the litigant but will surely strengthen the right of a just society. As budding lawyers, I feel that we all owe to protest against the arbitrariness and unjust. At the same time, this right should only be used pacifically and after exhausting other peaceful methods.

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