~By Inderjit Badhwar
Lawyers’ protests, like the recent one backed by the Bar Council of India, raise an interesting issue. While these professionals are perfectly within their rights to agitate against state interference in their freedom to protect and promote justice and equity for their clients under the rule of law—the stuff that democracy is made of—how much activism should they practise in defending or promoting individual liberties, freedom of choice, and human rights through their formal associations in the form of resolutions and recommendations and collective political action?
Most professions—doctors, businessmen, journalists, organised labour, women’s groups, Bollywood—lobby collectively for their concerns as well as on national issues—through FICCI, ASSOCHAM, Indian Medical Association, trade unions, Editor’s Guild, Centre for Social Research and Cine and Television Artistes Association. And the lawyers have their Bar Councils and associations at various levels.
While lawyers’ groups frequently protest in the cause of their autonomy and working conditions, what is their duty when it comes to larger, all-encompassing social issues such as student protests, book bans, increased censorship, bigoted religious or casteist identity politics, enforced vegetarianism, vigilante anti-Romeo squads, draconian amendments to the Money Bill?
Recurrent debate faces bar associations everywhere. As a former president of the Michigan Bar Association (USA) put it: “How can an association comment on political and ideological issues and still be viewed as a professional, impartial organization? How can an association made up of lawyers holding widely divergent points of view represent and serve its members well when it takes a stand on highly political or controversial topics not directly related to the practice of law? Should a bar association, particularly a mandatory bar, use member dues to speak on issues that fall outside of its central mission? Should an association of lawyers purport to offer one opinion on issues such as gun control, nuclear weapons freeze, deforestation, or abortion?”
The American Bar Association (ABA), the largest comprehensive body of its kind, has never shied away from advocacy. In the 1950s, The Hennepin Lawyer reported: “The ABA threw its support behind the civil rights movement during an era when there was no consensus on the subject among its members. In the early days of the Watergate scandal of the 1970s, the ABA called for the resignation of President Richard Nixon. And in 1981, the ABA mobilized opposition to President Reagan’s efforts to eliminate funding for the Legal Services Corporation, an independent nonprofit agency that distributes funding earmarked for legal services to the poor.”
A former ABA president, the late Jerome Shestack, after a stormy annual ABA meeting, argued that the ABA should not shy away from important issues of public policy merely to keep the peace: “The test for consideration of an issue by the ABA should not be whether it is controversial or the subject of political debate. Even such fundamental legal issues as the independence of judges or legal services to the poor can be caught up in the vortex of politics. The true test is whether the issue is germane to our profession.” He defined the word germane as “whether the matter has a material legal component relevant to our professional interests, to the administration of justice or to the protection of our constitutional system”.
As Thomas P Quinn, writing in the prestigious ABA Journal put it: “I believe we lawyers have a duty to society beyond filling out corporate income taxes, and I believe not only our clients but society in general expect lawyers to cry ‘foul’ (to injustice in the courts). Our failure to do so opens the door to those who would prefer not the proper administration of justice but the destruction of our society in its present form.
“The present social unrest and upheaval that faces this country is a byproduct of a failure of responsible groups and individuals to step forward in accord with the democratic process of this country and speak out on the wrongs, injustices, and inequities that burden our fellow man.”
—Inderjit Badhwar is Editor-in-Chief, India Legal. He
can be reached [email protected]