Patriotism With No Regard For the Constitution

The Supreme Court on Monday ordered that adequate security be provided to the Kathua rape victim’s family, their lawyer Deepika Singh Rajawat, her family, as well as to lawyer Talib Hussain, according to an IANS report. The Court had agreed to hear an urgent petition regarding transfer of the Kathua case from Jammu and Kashmir to Chandigarh. The petition was filed after those associated with the case – on the side of the victim, were threatened and attacked by the supporters of the accused. The gory details of the gang rape and murder of an eight-year-old in Kathua have been revealed and disseminated widely. However, the present petition for transfer raises questions regarding the legal profession.

In a strange case of déjà vu, lawyers of the Kathua Bar Association and the Jammu Bar Association first prevented the police from filing the chargesheet in the case. Then, they declared a strike in protest, while waving the tricolour, after the chargesheet was filed. The Prevention of Insults to National Honour Act, 1971 needs an amendment, perhaps, to provide for such displays. The lawyers alleged that the investigation had not been carried out in a fair manner. The Supreme Court, however, took suo motu cognisance of the lawyers’ obstruction in the case. The Court has issued a notice to[J1] the Bar Council of India (BCI), the State Bar Council of Jammu and Kashmir, and the Kathua District Bar Council in this respect. The BCI subsequently constituted a committee to conduct an inquiry in the matter and speak with all those, who were involved.

However, this is not the first time that lawyers—in the name of ‘patriotism’ or ‘nationalism’—have obstructed the legal proceedings. In 2016, student leader Kanhaiya Kumar was attacked in the Patiala House Court premises under similar circumstances. Surprisingly, in Kumar’s case, the Supreme Court refused to institute proceedings against the rampaging lawyers. Instead, the Court chose not to ‘flog a dead horse’. What makes the actions in the case of the Jammu lawyers different is that they attacked those, who were representing the victim. However, in both cases, the tricolour was used and ‘patriotic’ slogans were raised. These actions by the lawyers are not only illegal, but also violate all basic legal principles – which they presumably must have learnt while getting their law degrees. This is also in violation of the spirit of the Constitution of India.

Article 51A of the Constitution provides for Fundamental Duties. Even a brief reading of this provision would lay bare that the actions of the ‘patriotic’ lawyers went against these provisions. Clause (e) provides for citizens “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women”. It seems like some of the lawyers have not read these provisions. This should worry any potential clients. Of what use is a lawyer, who does not know the law?

Another legal principle the lawyers seem to have overlooked is the presumption of innocence until proven guilty. If an accused is brought before the court, irrespective of one’s personal views about them, the court will proceed based on the evidence submitted. If the lawyers felt that the police investigation in the Kathua case was not proper, the evidence can be demolished in the cross examination. It is not the job of lawyers to play ‘judge’ before a case has come up for the hearing.

Regarding the transfer petition, the Supreme Court has sought a response from the Government of Jammu and Kashmir, for which the date of hearing is April 27. The trial court will hear the main case on April 28. The lawyer’s actions constitute the second major instance of lawyer mobs masquerading as ‘defenders of the nation’. It would be in the best interest of the legal profession if the Supreme Court and the BCI take prompt action against those obstructing the legal process.