Morals are an emotive concept. Everyone has a view on what exactly it means and how exactly to live a morally right life. Like the story of the blind men and the elephant, it means different things to different people. This is even more pronounced when it comes to the practice of law. Every situation requires a judgement- what is the right thing to do and what would be wrong – “legally right” and “legally wrong”, one must hasten to add. That professional judgement is invariably also judged from the moral standpoint. That is when all hell can break loose.
Morals, Ethics and Law
Each of morals, ethics and laws, are about assessment of the right and the wrong. An individual’s own principles of right and wrong, constitutes his morals. Every human being has an innate sense of what is right and wrong to his mind – this dictates his “morals”. Ethics is about the rules of conduct that a community of individuals, formed on the basis of activity or even culture, writes for itself. Ethics have a clear link to character (“ethos”) of the section of society that follows it.
Law, binds an entire society, and evolves from the influence of morals and ethics. It is essentially a product of averaging the forces of morals and ethics and developing an acceptable minimum standard of conduct across society. All averages leave constituents unhappy – those above and below the average can always feel shortchanged. Therefore, despite doing the legally right thing, one can be perceived as morally wrong, and doing the something legally wrong too can get lauded as ethically sound.
Decline of morality: really?
First, let’s deal with the issue of morality. The refrain that “moral values are on the decline” is as old as the hills. It is something that could have been said in almost every phase of human history. It is quite like that oft-stated phrase: “we live in interesting times.” You can say it in every single conceivable situation. Examples abound of how societies would have said morals are on the decline. A society’s sense of morals can change with time. Jesus Christ devoted his short life to preaching his sense of morality. The society in which he preached believed that Christ was an assault on their moral values – in today’s moral compass, unthinkable. References to Shylock in The Merchant of Venice allude to how immoral the moneylender was in asserting his legal right to a pound of flesh. If that play were to be written today, Shakespeare would have been castigated for holding anti-semitic prejudices by referring to Shylock’s membership to the Jewish community.
Take the worst that man can do to man: slavery. When slave labour was being questioned by citizens in the northern parts of the United States, slave owners in the south argued that moral values were on the decline. They asserted how it was morally wrong to attack their legal right to own property that they had legally paid for. Indeed, slave owners would quote the Bible to convince their slaves that a life committed to slavery was Godendorsed. Today, it is revulsive to even think about it. Yet, those who indulge in slave labour today (yes, it is alive and kicking – and yes, it can even take the form of the domestic help in Mumbai households without any of the rights their employers would take for granted from their employers) surely convince themselves about the morality of their actions so that they get sleep at night.
One man’s soul-filling morality can be another man’s toxic poison. When the Indian Supreme Court refused to strike down law criminalizing homosexuality, a section of society argued that the court’s refusal to intervene is evidence that moral values were on the decline. The sections that went to the Supreme Court had argued that the Delhi High Court striking down that law was evidence that morality was on the decline. They wanted the Supreme Court to correct that. This moral bunch had representation from the ayatollahs of every faith that lives in India and whose fatwas, large sections of our society are accustomed to follow.
Even individuals who have given a lifetime of commitment to universal brotherhood and doggedly adhering to their sense of morality are not immune from attack of those who don’t accept that moral compass. Mahatma Gandhi was even killed. His killers would have developed a strong moral argument in their own minds to convince themselves that taking his life was the “right” thing to do. The Dalai Lama, a living idealist who uses scientific methods in his bid to emphasize that it is not extraordinary to be compassionate even with those who may inspire hate, is accused by some young-and-violent Tibetans of neglecting their interests with his peace-based approach to the universe. Some of them immolate themselves in protests – indicating that at least in their minds, they have the fullest moral conviction that their approach is right and the Dalai Lama’s practice is wrong.
Evolution of Law
Therefore, what is morally right and wrong is incapable of being tied down to the satisfaction of all. It can vary depending on the individual considering the question. For the same individual, it can vary with the time in which she considers the question. It could even vary if the context in which she considers the question varies, even if at the same time. When every individual in a society has a strong view on the right and the wrong, consensus is impossible. It is to grapple with this dilemma that societies need “law” – a minimum set of rules that everyone needs to conform to, across sections of society. It is enforced by the coercive power of the “State”.
What then should be the moral and ethical compass for a practitioner of law? By nature, human society is judgmental. One of my favourite questions in talks that I give on the rule of law is: “How many in this room believe Ajmal Kasab should have a trial?” I have not come across a single instance of a huge majority response that he indeed needs trial. The nature of audience has ranged from chartered accountants, businessmen, consultants, bureaucrats, and sadly, even lawyers.
It is this apathy that would come to bite when a chartered accountant, businessman, consultant, bureaucrat or lawyer stands accused and the popular voice of society is that she does not need a trial. Business and crime are being considered synonymous in the rising din of society and the same treatment that the educated professional class wants to mete out to Kasab is the treatment that the rest of society wants to mete out to this class.
The need for a trial to assess what actually happened in the eyes of law is a critical component of the rule of law. Our constitution guarantees protection to members of our society against incriminating themselves for a very sound reason. If there were no such protection, all it would need to “solve crime” would be to physically beat false confessions out of people. Therefore, even where someone confesses to a crime, the justice system is required to go into whether the confession is truthful and to see that justice is indeed done. How else does one prevent drivers owning up banging up cars they never drove, or for that matter, weak youngsters in a professional firm from being forced to confess to wrongs they never committed just to protect the erring partner in a professional negligence claim? What really transpired can only be found out by trial.
One is seeing increasing instances of assaults on lawyers agreeing to represent those accused of crimes that anger society. It can take varying forms. Physical assaults on potential lawyers for Kasab, tongue-lashing of Salman Khan’s lawyer, reputational assault on amicus curiae (a “friend of the court” appointed by the court to render assistance) in the Supreme Court appeal of Kasab’s sentence when he was reported to have said that the trial had not been fair. It is in this milieu that developing a strong sense of adherence to a personal moral and ethical standard is critical to save society from the rule of the mob. What is that standard?
The lawyer’s Ethical Standard a lawyer is required to dispassionately present facts and law to the judge, who required to dispassionately rule on matters before her without fear or favour and uncaring for consequences outside the realm of law and justice. Every lawyer is duty-bound to accept any brief at a fee consistent with his standing. That is the real ethic of a lawyer. That a brief can turn politically controversial or socially unpopular is not a ground for refusing a brief. A lawyer is obliged to use all fair, legitimate and honourable means to uphold his client’s interests regardless of his personal opinion as to the guilt. His loyalty is to the law.
Judging his client’s guilt is the court’s role. The lawyer is but one of the officers of that court.
Not too long ago, Kerala Congressmen were upset that party spokesman Abhishek Manu Singhvi represented a local lottery distributor. The Bharatiya Janata Party had once expelled Ram Jethmalani for representing convicts in the Indira Gandhi assassination case. Eventually, one of the accused was actually absolved in appeal. Both these politician-lawyers had stood their ground. But not all do so. They fall into the unethical trap of finding reasons to return briefs, or worse, even going on national television to argue how an accused like Kasab should never get trial. Such attitudes erode the objectivity and fearlessness critical for an effective run of the rule of law.
For a real professional, the foundational rule is not to judge. More importantly, not to be influenced by others’ judgements, in distraction from the facts and merits of the situation. It is the role of the judge to render judgement and not that of the professional. A lawyer refusing to take up representation despite having time on hand is identical to a doctor refusing to treat a patient because of his own moral judgments – say the dying patient is gay and the doctor is a homophobe.
Worse is taking up representation and deliberately jeopardizing the case. Sadly these are the kinds of suggestions one hears of in a charged up society. It is another matter that such suggestions would have been heard all through human history. It is akin to doctors injecting poison into Kasab in revenge instead of saving his life. That would have been an insult to the efforts of those who gave up their lives in the process of apprehending Kasab.
The worst of all is to intimidate and attack those who do their job in conformity with their ethical standard. There can be nothing more immoral than questioning the morality of those who serve the cause of dispensation of justice on the ground that they are serving clients accused of crime.
