By Dr Swati Jindal Garg
Justice Ujjal Bhuyan, who is part of a two-judge Supreme Court bench hearing petitions challenging the premature release of the 11 convicts in the Bilkis Bano case, asked that pertinent question. The judge also stated: “Post-conviction, whether licence to practise can be given? Law is supposed to be a noble profession. Bar Council (of India) has to say whether a convict can practise law. You are a convict, there is no doubt about that. You are out of jail due to the remission granted to you. Conviction remains, only the sentence is cut short.”
The judge made the comment in the light of the statement made by Senior Advocate Rishi Malhotra, who appeared for convict Radheshyam Shah. He disclosed that his client had served 15 years in prison and had now restarted his practice as a motor accidents claims lawyer.
The senior advocate further told the bench that Shah had participated in reform and correctional programmes while serving 15 years in prison and had received an appreciation certificate for his work. “A graduate before his conviction, he completed Master’s in arts, science, and rural development through open learning. He was also working in the jail office,” the senior counsel said and added that he also worked as a paralegal volunteer in jail.
Clarifying that the underlying principle of remission is one of reform and rehabilitation so that a criminal may be reintegrated into the society, the senior advocate also said that despite the passage of almost a year since he was released, there are no cases against his client. The advocate was quick enough to respond that even Parliament is supposed to be noble and if there are so many parliamentarians who are convicted every day and are allowed to serve as ministers, why can’t the same principle be followed for the advocates who have been convicted?
Even though the clarification given by Malhotra is on point, the question remains as to whether a leopard can ever truly change its spots? There have been umpteen number of cases in the past wherein the people who have been convicted of grave and heinous offences have gone on to become advocates themselves. Justice Bhuyan also said that it is for the Bar Council to say whether a convicted person can be allowed to practise law. The query though posed casually does indeed mark a valid point, namely why a lawyer should be allowed to continue his practice while public servants lose their jobs after conviction in criminal cases? Does it mean that lawyers are above the law?
Surprisingly, the Bar Council of India and state bar councils have also failed to take action against unruly lawyers and devise strict norms to curb professional misconduct despite the presence of Section 24A of the Advocates Act which states that a person convicted of an offence involving moral turpitude cannot be enrolled as an advocate. It also states that disqualification for enrolment shall cease to have effect after a period of two years has elapsed since his release or dismissal or removal.
This is not the first case wherein a convict has re-entered the mainstream as an advocate. Sukhdev Pandhare, a murder-convict-turned-lawyer has also been a role model for hundreds of prisoners at Thane Central Jail, who were impressed by Pandhare’s life history and embraced law as a profession. Pandhare had placed all the credit at the feet of his jail superintendent who had helped him shape his life during the initial years of his sentence. Pandhare was sentenced to life imprisonment in a murder case, but then went on to become a practicing lawyer at the District and Sessions Court, Thane. He had, in fact, taken up his education and completed his BA, LLB besides a three-year post-graduate course in Human Rights.
Another case is that of Manu Sharma who was sentenced to life imprisonment for the murder of model Jessica Lall in a restaurant in 1999. Sharma was released after the Delhi L-G approved his premature release, as was recommended by the Sentence Review Board (SRB). The Jessica Lall case had united people across the country and triggered an unprecedented outrage in 2006 when Sharma was acquitted. The Delhi High Court, however, later convicted him and the Supreme Court too upheld the conviction. Sharma, who is now a practicing criminal lawyer, claims that his years in isolation taught him some of life’s hardest lessons and helped him reform. “I can say today that my 10 years spent in Tihar jail factory helped me keep my sanity. I also tried to read as much as possible and completed my degree in human rights and studied law as well.”
There is no denying that for a few lawyers, the path to law school starts with prison. However, it cannot be ignored that advocates are ultimately officers of the court and it is imperative that they possess exemplary strength of character and display unparalleled ethics.
The much-discussed Priyadarshini Mattoo murder case convict, Santosh Kumar Singh, whose death row sentence was commuted to life by the Supreme Court had also in fact, started practicing law in Delhi after the was acquitted by the trial court. Singh, it has been reportedly said, is a tormented soul, who has stayed in denial about his crime and broods over it. He is known to discuss the minutiae of his case with sympathetic inmates and officials.
Inside the jail, however, Singh has put to good use his legal training at DU and the experience of practice at the Tis Hazari court. Known for peppering discussions with inmates with quotes from the Indian Penal Code and the Evidence Act, Singh has sought solace and sustenance in what he knows best—law. As part of the obligatory “labour” to be undertaken by convicts, Singh runs the sub-jail’s Legal Aid Cell, which has three other inmates as members and his job profile reportedly includes “identifying and counselling” inmates in need of legal assistance. Said to be proficient in English and in drafting legal documents, he also helps in preparing “bail pleas or petitions of the inmates”.
These cases are but the tip of the iceberg and there are innumerable other instances of convicts who have turned advocates. The dilemma of whether law breakers can take on the role of law officers is a big one and the way out is to have a system of a conditional [character and fitness] approval process before law school wherein when somebody gets out of prison—maybe they got their bachelor’s degree when they were in—and wants to get enrolled as an advocate in order to practice law, they in that case must get a conditional approval before getting enrolled. A system can be devised wherein they are required to volunteer for social service for a fixed number of hours, take requisite classes, random monitoring drug tests, etc., in order to prove that they indeed have what it takes to fight for justice. The onus lies on the bar councils to regulate such incumbents in the profession and make sure that it remains clean and aboveboard.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi