The misunderstood role of advocates and importance of the cab rank rule in ensuring fair representation

The recent rape and murder of a 31-year-old trainee doctor at RG Kar Medical College in Kolkata has deeply shocked the nation. The brutal crime has sparked widespread anger and led to protests across the country. The seriousness of this horrific act caught the attention of the Supreme Court, which took suo motu cognisance and began hearing the case on August 20, 2024.

It is deeply troubling that nine female advocates representing the State of West Bengal in this case have faced threats, harassment and hostility. This situation not only reveals the ongoing difficulties women in the legal profession encounter, but also highlights the urgent need for strong measures to protect those who are working to uphold justice and ensure fairness.

This article explores the critical role of advocates in upholding justice and the importance of the cab rank rule, which mandates that advocates must accept any case within their field of expertise, provided they are available and the client can afford to pay. Moreover, the article stresses that representing a client does not equate to endorsing their actions or ideology, and underscores the necessity of maintaining professionalism and due process in the legal field.

The role of advocates in upholding justice

Advocates have a basic duty to represent their clients fairly and without personal bias. This means they must ensure that every person gets a fair trial, no matter what they're accused of. This principle is vital for maintaining the fairness and integrity of the legal system. It’s important to understand that representing someone in court doesn’t mean agreeing with their actions or beliefs. Advocates make sure everyone has access to legal counsel, which is a cornerstone of delivering justice.

Moreover, maintaining professionalism and adhering to due process are vital for the legal profession. Advocates must navigate complex legal and ethical considerations while ensuring that their conduct remains within the bounds of the law. Upholding these standards not only reinforces public trust in the legal system, but also ensures that justice is administered fairly and impartially.

Recently, Kabita Sarkar was appointed by the Sealdah court in Kolkata to defend Sanjay Roy, the main accused in the RG Kar rape-murder case. This appointment follows a lack of willingness from other advocates to represent Roy, underscoring a critical aspect of the legal system: the principle of "innocent until proven guilty." It places the burden of proof on the prosecution, not the defendant, who is not obligated to prove their innocence.

In the legal process, the trial court holds paramount importance over pre-trial judgments or public perceptions. Every individual has the right to a fair trial, which is fundamental to ensuring justice. This right is upheld regardless of the nature of the accusations or societal opinions. In this case, with no advocates initially willing to take on the defense, the court's appointment of Kabita Sarkar serves as a vital mechanism to ensure that the accused receives a fair trial. This reinforces the legal system's commitment to justice and due process.

The cab rank rule: Ensuring fair representation

The cab rank rule is a fundamental principle in the legal profession that mandates advocates to represent clients regardless of their personal views or the nature of the case. This rule ensures that every individual has access to legal representation and a fair trial, upholding the notion that justice should be available to all, irrespective of their financial status or the specifics of their case.

While the cab rank rule promotes access to justice, it does have exceptions. Advocates can refuse to take on cases if they lack sufficient experience, have other professional commitments, or if the client cannot afford the fees. Additionally, although advocates may sometimes choose cases based on commercial considerations, the rule aims to prevent financial reward from becoming the sole determinant in accepting cases. In the context of recent criticisms and public discourse, such as those involving Kapil Sibal and other colleagues representing the State of West Bengal, it is crucial to remember the importance of the cab rank rule in safeguarding fairness and access to justice.

The ethical and moral considerations surrounding the cab rank rule often spark debate, particularly regarding whether advocates should be morally isolated from their representational choices. Some argue that advocates, by their professional role, should be detached from the moral implications of their cases to maintain impartiality and objectivity.

However, there are critiques of the cab rank rule that suggest it is an illusion that does not fully justify moral insulation. Critics argue that while the rule mandates advocates to accept cases within their expertise, it may not always be effective in addressing underlying ethical concerns or ensuring that advocates are truly neutral. They contend that the rule alone cannot fully account for the moral and ethical dilemmas faced by legal professionals.

Counter arguments assert that the cab rank rule is crucial for maintaining fairness in the legal system. By obligating advocates to take on cases regardless of personal bias, the rule helps ensure that justice is not influenced by commercial interests or societal prejudices. It supports the fundamental principle that everyone deserves a fair trial and competent legal counsel.

Ethical and moral considerations in controversial cases

Representing controversial figures like Ajmal Kasab and MJ Akbar presents distinct ethical challenges. Kasab, a terrorist responsible for the Mumbai attacks, raises moral questions about defending someone associated with heinous crimes. Despite this, the principle of providing a fair trial and ensuring that everyone has competent legal representation remains crucial.

In contrast, MJ Akbar, involved in a "Me Too" case, brings different considerations related to power and public accountability. The ethical dilemma here revolves around balancing a robust defence with the broader implications of the allegations.

Linking an advocate’s moral choices to the nature of the case could have systemic consequences, such as undermining impartiality and reducing access to justice. Ensuring fair representation, regardless of the case's moral implications, is essential for maintaining the integrity of the legal system. This helps keep the legal system honest and fair.

People targeting and trolling advocates should recognise that representing a client does not imply endorsement of their actions or ideology. Just as a doctor cannot choose their patients based on their health conditions, an advocate cannot refuse to represent someone solely due to the nature of the case. Legal representation is a professional duty, not a personal alignment.

In the case of Subedar v. State of UP, a three-judge bench of the Supreme Court affirmed that the right to be represented by counsel is an essential component of the due process clause under Article 21 of the Constitution of India. This judgment underscores the fundamental principle that every individual has the right to a fair trial, which includes the right to legal representation, regardless of public opinion or the nature of the allegations.

Statutory provisions for legal aid and advocacy

The Legal Services Authorities Act, 1987 emphasises the importance of access to legal aid, reinforcing the necessity for representation in all cases, including those that are controversial. Moreover, Article 22(1) of the Indian Constitution guarantees the right to legal counsel, ensuring individuals have access to representation, While the Constitution does not explicitly address advocate impartiality, it ensures that an arrested person can consult and be defended by a legal practitioner of their choice, underscoring the need for impartiality in legal representation to uphold a fair trial. Article 39A mandates that the state must provide legal aid to prevent justice from being denied to any citizen.

Additionally, the Advocates Act, 1961, governs lawyers' conduct in India, and the Bar Council of India Rules, 1961, require advocates to adhere to a code of conduct. These statutory provisions collectively support the cab rank rule by underscoring the fundamental principle that fair representation must be available to all.

Conclusion

The cab rank rule is vital to ensure that justice remains accessible to all individuals, regardless of their background or the nature of their case. It is crucial for maintaining fair representation in the legal system and underscores the importance of professionalism and impartiality. Despite criticisms and ethical debates, the rule serves to prevent discrimination and ensures that legal representation is based on professional duty rather than personal bias.

Moreover, protecting advocates from harassment and threats for fulfilling their roles is essential for upholding the integrity of the legal profession. By maintaining these standards, the legal system can better serve its fundamental purpose of providing equitable justice to all.

While it is imperative that perpetrators of such heinous crimes face appropriate consequences, the law must remain impartial and assess the case based on the procedures established by law and fundamental principles, ensuring that every individual receives a fair trial regardless of the nature of the crime.

Shivam Jadaun is a fifth year law student at Faculty of Law, Jamia Millia Islamia, New Delhi.