A Lawyer as an Apologist v. A Lawyer as a Dreamer

When we sell the dream of law school to the top students who are finishing school, we often do so by appealing to their young romantic notions about the law.

We appeal to their altruistic motivations, to the fairy-land make believe that anything is possible in law, and to their possible shot at becoming a Hero/Heroine – an opportunity that we claim law school alone provides.

We show them how every front-page of a newspaper is filled with ‘legal news’, how no big matter that faces this nation escapes the journey to the corridors of the Supreme Court, how lawyers earn big fat money, how they also live a life of service, dedicated to take the nation to its rightful glory, just like our Constitution makers did.

What we do not tell them is that law is man-made, therefore fallible.

We do not tell them that law, like every other institution, is good at serving those who are resourceful and is far from access to those who have none. We do not tell them that many judges are less concerned with Justice, but usually find satisfaction in having ‘applied the law’ with no worries regarding its implications, either in the long or the short run.

We do not tell them that the very law that they think is an instrument of justice is used to discriminate against certain minorities, to silence certain individuals. That the law which they read about as securing rights and liberties, is the same tool that is used to crush freedom of media, ban political outfits, categorise some citizens as ‘anti-nationals’.

We tell them that the ‘rule of law’ is above the King, and in words of Thomas Fuller, who wrote about 300 years ago – “Be ye never so high, the law is above you.”

We tell them that law creates nations, and helps govern them. We tell them that something is right or wrong, because the law says so.

What we do not tell them is that the King decides what the law is, and who will interpret it. We do not tell them that the Kings of the world decide when and how nations will be created, how they will be governed. That there is always a big boss, who is watching everyone’s actions in the thick of night, just as in broad daylight. He usually doesn’t care too much about ‘what the law says’, because he has the power to twist it.

India is a strange democracy today. It has a Constitution with secular credentials, yet with a teeming majority that seems hell-bent on being identified as the Hindu Rashtra. We are witnessing a small majority which truly believes in the Constitution, fighting a political apparatus that is openly wedded to the idea of a Hindu Rashtra.

As they say, all is fair in love and war. Those wanting to protect their vows will go to any lengths to silence activists, politicians, social workers, professors – anyone who dare say the ugly truth and fight for the secular credentials of India.

The arrest of Anand Teltumbde and Gautam Navalakha, the serving of FIR on Siddharth Varadarajan, the silence on Kashmir, communalising Tablighi Jamat, are questions galore, which do not have an easy answer for those who continue to paint a rosy picture of ‘the law’.

The uncomfortable truth that neither the Bar Council of India, nor any University Vice-Chancellor or Dean wants to directly face is that all we end up teaching at law school is ‘what is the law’. No word on ‘what it ought to be’. How can we pretend surprised when this gap shows up in everything that law students, lawyers and the judges do? Yes, there are some lawyers and some judges who are an exception to this norm, but doesn’t the exception prove the norm?

Law, devoid of any discussion on morality and distant from the notions of justice, is but an empty tool – like an axe. It can cut, but doesn’t know which branch. It therefore yields tremendous power in the hands of those who wield it. And those who wield it do not care if the axe should cut this or that. It is their individual motivations, preferences, situations that drive them in one direction or the other, while the nation drifts offshore.

Law and its study needs an anchor in morality and justice. Unless our law schools become places to study these, and our courts places to worship these, we shouldn’t blame anyone but ourselves for the tragedy that we find ourselves in. If you don’t see the tragedy yet, I won’t be surprised.

After all, today, I come to you only with a lawyer’s apology.

But all is not lost. We do not have to be cynics just because the kingdom of law does not suit the vision we had. After all, there are several lawyers and judges who work tirelessly to uphold the law. Why blame the entire system for the fallacy of a few?

The grand farewell received by Justice S Muralidhar, who was transferred overnight from the Delhi High Court to the Punjab and Haryana High Court, is a sight to remember for a lifetime.

Similarly, the news of young lawyers working ‘like a Tsunami’ to help release detained CAA protesters, fills one’s heart with hope.

For isn’t the Tower of Law similar to the Tower of Babel, where its inhabitants may speak different languages, and may fail to reach God, but serve a beauty in their own right?

Think of the lawyers who earn too little but continue to stick it out in litigation to help their fellow villagers, who do not have any fancy offices to sit in but just tin-sheds or kaccha (raw) roofs, who sweat and toil in their black coats, explaining the unexplainable delay to their uneducated and poor client, who in turn has travelled from miles across just to make it on the hearing date.

Those babus and clerks, who struggle with the temper of the judges and the lawyers alike, but somehow survive, always with a smile, for they know ‘the law’ more than most lawyers do. The young interns fluttering about in the corridors, being pulled and pushed in different directions, but as excited about getting in the pass line as if they were buying candy from a store.

Yes, there are many Indias in one India, and many law worlds within one. Clearly, for all the failings of ‘the law’, somehow, there are those who still believe in it, like it is their only God.

What will we call them – the dreamers? But they are not the only ones.

They share the tag with the likes of Mahatma Gandhi, Jawahar Lal Nehru, Sardar Patel, Lala Lajpat Rai, Bal Gangadhar Tilak, Mohammed Jinnah and Dr. BR Ambedkar, all of whom were successful lawyers advocating for a strong Constitution. They may have had different visions about the polity, but they did not disagree about the role of law in bringing it about.

Why these musings, you may wonder. Because it is important to choose which side of the debate wins eventually. Are we as lawyers going to be apologists or dreamers? This constant war should be fought and won, unless the choice is not really a choice any longer.

This war is more important for lawyers than that of COVID-19, for it is fundamental to saving the soul of the law, and by that virtue, of Indian democracy.

The dawn of a new legal system is coming – one which is imbued with justice and morality. Such a dawn awaits the nation, and towards it we must work. It is not enough to appeal to our individual and collective conscience alone, but we will have to work tirelessly towards realising our dream of that dawn.

To end with the warning of Dr. BR Ambedkar,

“Lost rights are never regained by appeals to the conscience of the usurpers ,but by relentless struggle...Goats are used for sacrificial offerings and not lions.”

The author an Advocate practicing at the Supreme Court of India.