The Tribune, Chandigarh, India

PERSPECTIVE

A Tribune Special
Ethics in the criminal court
The defence counsel and the public prosecutor should respect each other’s role, says Harpreet Sandhu

Lawyers who defend criminal cases have often been regarded by clients as being somewhat on the shady side of the practice of law. The defence counsel’s role in the criminal practice and justice process is commonly misunderstood and views are generally laced with sarcasm and cynicism.

The standards of professional ethics that defence counsels are obliged to maintain, however, are no less exacting than those by which prosecutors and other practitioners are bound though they are sometimes different. Questions often arise on the work ethic of the defence counsel and public prosecutors. It is said that it is wrong for the defence counsel to represent guilty clients. “How can you defend your client if he tells you that he is guilty?”

Two points are noteworthy. First, the court — and not the lawyer — determines one’s guilt or innocence. In the legal profession, a lawyer is duty-bound to defend any person on a criminal charge, irrespective of any opinion which he may have formed as to his/her guilt or innocence. A lawyer has to present his client’s case as best as he can and to protect his rights.

Secondly, if a client clearly admits his guilt to his lawyer after legal proceedings have begun, the lawyer ought to continue to act for his client. An advocate to whom a clear confession of guilt has been made by a client…should, if the confession is made during the proceedings, continue to act but shall not set up an affirmative case inconsistent with the confession.

Of course, the lawyer is always at liberty to refuse to act should a confession of guilt be made by the client before legal proceedings have commenced. Based on the clients’ instructions, the defence counsels are under a professional and ethical duty to act in their interest.

The lawyer is bound by two duties: his paramount duty to the court and the client. The defence counsel should not set up an affirmative case inconsistent with a confession. He cannot assist his client to give evidence which is different from what was recorded in the interview as he has a duty not to mislead the court and an advocate shall not knowingly deceive the court, any other advocate, witness, court officer or associated with court proceedings.

The principle requires that the prosecution must also establish guilt and prove its case against an accused beyond reasonable doubt. The criminal justice system permits the state to intrude into the life of an individual citizen only if it is able to establish legal guilt by discharging the onus of proving allegations of criminal wrongdoing beyond a reasonable doubt.

Therefore, the criminal defence lawyer’s function is not limited to protecting the innocent from a wrongful conviction but also those who are deemed to be “factually guilty” against any overreaching of the law by the state. The defence counsel should identify and highlight these deficiencies to the court. Thus, despite a clear confession of guilt by an accused, the defence lawyer must still test the evidence adduced by the prosecution and contend, if necessary, that the case against the accused is not made out.

Interestingly, clients who come to us confessing to everything they have been accused of are few and far between. The majority of clients tend to say, “it wasn’t me” or they never intended to commit an offence. Sometimes, the truth comes out in the course of taking instructions from your client. Thus, the defence counsel should test his own witnesses’ evidence in private before the trial begins. If such evidence cannot hold up in the lawyer’s office, what chance does it have in the courtroom?

It is said that it is wrong for lawyers to exert pressure on the accused to plead guilty. The issue of the plea bargain comes into play on occasions when this would provide the best result for the accused as well as save time and expense for the state. Before advising a client to accept an offer by the prosecution, the defence counsel must advise him on options open to him. This includes the chances of success should he claim trial, the benefit he would obtain by taking an early plea of guilt, and the different costs which would apply as a consequence of his decision.

Costs are an important consideration. Sometimes it is sad to see an accused person pleading guilty to a charge simply because he has no money to claim trial. One should never plead guilty only because of his inability to obtain legal services. The defence counsel, certainly, knows this, and must advice his client properly on the costs of taking the matter all the way to trial. He should not push the client to take a guilty plea because the feels that the client would not be able to afford the full trial fee.

If a criminal lawyer recognises that the accused has a valid defence and a reasonable chance of succeeding at trial, he should do his best to take the matter to trial or assist the accused by recommending another lawyer who may be able to take over the case for reduced fee. Telling the accused to plead guilty simply on account of costs in ethically wrong and a disservice to the client.

The flipside of this ethical issue is when the defence counsel has to tell a client that he is likely to fail if the case goes for trial. Lawyers should never advise a client to take his case to trial only to earn higher fee. Having assessed the strength of the evidence, a lawyer should be able to ascertain if an accused has a reasonable prospect of success at trial.

Moreover, it would be better for the defence counsel to obtain from the prosecution an offer of reduced charge or number of charges for his client. The defence counsel should then discuss this with his client and advice him accordingly — that claiming trial is likely to result in his being convicted. Sometimes, of course, clients insist on claiming trial. But the defence counsel should put his client’s case as best as he can before the court. The defence counsel should explain the advantages of a guilty plea to the accused and tell him that a plea of guilt is generally regarded by the court as a mitigating factor — where the accused claims to be innocent but wants to plead guilty to obtain a more lenient sentence.

When one talks about ethics in the criminal justice system, one must include the ties between the defence counsel and public prosecutors and the court. There is a need to dispel the myth that both don’t get along. Indeed, they play a vital role in the criminal justice system. Both should develop a healthy mutual respect for each other and their practice. The defence counsel should not forget that the public prosecutor, being the state’s representative, would present evidence on its behalf.

The public prosecutor’s duty is, certainly, not to secure a conviction in every case. He has to present the case as best as he can and if that is based on evidence which is good enough to secure a conviction, he has done his duty. The defence counsel is to defend his client to the best of his ability and to test the prosecution’s evidence — this is crucial because the burden has always remained on the prosecution to prove its case against an accused person beyond reasonable doubt.
The defence counsel and the public prosecutor need to accept and appreciate that each of them has an important professional role to play in the smooth functioning of the court. If the prosecution has strong evidence, which is likely to convict an accused person, or indeed a confession from the accused, they should discuss and share this information with the defence counsel concerned. This way, the latter will be in a better position to access the evidence and advise his client accordingly.

More important, this can save valuable days in trial and ensure a fair and just result for all. If the defence counsel and public prosecutors develop a healthy respect for each other’s role, it will help ensure the smooth functioning of courts.

The writer, a former Additional Advocate General, Punjab, is Advocate, Supreme Court and Punjab and Haryana High Court, Chandigarh

Green revolution: Need to rectify distortions
by Ranbir Singh

The green revolution in agricultural section which started in mid-Sixties and began to peter out in the Eighties, transformed the relations of production in Punjab and Haryana. The traditional patron-client or jajmani system of bonding the agricultural labourers with land-owning families was replaced by a contract system. The sharecropper, the Batai system of tenancy was substituted by a lease system.

This phenomenon also led to the emergence of the capitalist-farmer class. The enhancement in productivity and profit margins made even small farms economically viable before the Eighties. It also accelerated the pace of urbanisation by strengthening the economic base of rural hinterland which acted as a stimulus to town growth.

It also led to the development of means of transport and communication due to construction of roads and manifold increase in the number of motor vehicles in the rural areas. This upsurge increased the mobility of rural masses. Besides, the green revolution triggered a sort of information revolution as peasants were able to purchase VCRs, radios, transistors, stereos and phones — mobile and landline. It led to the growth of rural education: there was an appreciable increase in the percentage of rural literacy and the enrolment of rural students in the urban institutions of higher learning.

On the negative side, the green revolution escalated an economic competition between the members of the educated and professional classes of the urban and rural areas. It also led to the emergence of a lumpen class of educated unemployed in rural areas. This resulted in the criminalisation of the rural society of these states. Moreover, it led to frequent use of the ultra-sound facilities for sex-determination by the rich and middle peasantry and to an enhanced female foeticide. This has adversely affected the female ratio in Punjab and Haryana.

Gradually, there has been a change in the value system of the peasantry. Consumerist culture owing to increased prosperity and influence of the media has led to an erosion of traditional norms and values and this contributed to the vulgarisation of the folk cultures.

Increasing consumption of liquor, drugs and other intoxicants has become cause for concern. The neo-rich segment of peasantry began to indulge in wasteful expenditure on ostentatious items. Other rural sections also emulated them. Since they failed to gain wealth, they became highly dissatisfied.

The green revolution intensified the breakdown of the joint family system and led to a decline in the elders’ authority over the rural youth. As erosion of traditional norms and values resulted in the decline of morality, this led to a sharp reaction against modernisation. The Khap Panchayats’ enhanced influence in Haryana may be seen in that perspective.

The petering out of the green revolution since the Eighties due to adverse terms of trade, decline in productivity, fall in the water table and frequency of adverse whether conditions have triggered agrarian crises. This resulted in distress sales of the produce by farmers at unremunerated prices and their mounted indebtedness. This led to large-scale unrest in rural society, including suicides by farmers.

There is need for a second green revolution for rectifying the rural societal damage. Some steps are also needed for the diversification of agriculture. Besides, immediate measures are required for removing the distress of the marginal farmers and the landless agricultural labourers for bringing them out of the clutches of indebtedness. Ways and means will also have to be found to enable them to supplement their income by other activities.

The problem of the educated unemployed too will have to be tackled by developing their skills for self-employment and employability in service-sector and industries. Religious leaders, NGOs and the media will have to put their heads together and make all-out efforts for tackling the problem of alcoholism and drug addiction.

The need for rectifying distortions introduced by the green revolution in the economy, society and culture of Punjab and Haryana has assumed a sense of urgency because of the (likely) impact of liberalisation on agriculture in India with the implementation of the WTO regime. This cannot be delayed any longer. To attain this in Punjab and Haryana, the vanguards of green revolution should prepare to face the new challenges and avail themselves of the new opportunities that the WTO regime is expected to offer them.

Due attention will have to be given to the implementation of the poverty alleviation and employment generation programmes for catering to the needs of the landless agricultural and non-farm workers belonging to the Backward Classes and the Scheduled Castes. The Swaranjayanti Gram Swarozgar Yojana will have to be made successful for the economic empowerment of women of weaker sections through capacity building in skills, identification of key activities and marketing.

In fine, there is pressing need for ensuring convergence in these programmes and other rural development schemes such as the Indira Awas Yojana, Haryali, Total Sanitation Campaign, Sarva Shiksha Abhiyan and the National Rural Health Mission for better utilisation of funds and avoiding duplication and wastage.

The writer, a former Professor of Political Science, Kurukshetra University, is currently Consultant, Haryana Institute of Rural Development, Nilokheri

OPED

On Record
Media should know how the military system of law works: Gen Kapoor

General Deepak Kapoor

Here are excerpts from Karan Thapar’s interview with Chief of Army Staff (COAS) General Deepak Kapoor for CNN-IBN's Devil's Advocate which will be telecast today at 12.30 p.m. and 8.30 p.m.

KARAN THAPAR: Would you accept the Sukna land scandal has embarrassed the Indian army and has affected the way Indian people look at the Indian Army? COAS: Yes, Karan, to some extent it has embarrassed the Indian Army. But what is more important is to see what steps the organisation has taken to try and ensure such incidents do not get repeated.

KT: Given that this is a matter of propriety and there are no specific charges of corruption, could it have been handled better?

COAS: In our country the media has been super active on this issue and if they had been better informed and if they knew how the military system of law works, they would have handled it in a more positive fashion than in a purely negative perspective.

KT: Would you say the media has been unfair?

COAS: Possibly, at times they may have been over reactive. Keeping in mind the sensationalism, TRP ratings etc., they may have been overactive to sensationalise the issue.

KT: In a statement on Dec 1, 2009, the Eastern Command of the Indian Army said the press coverage “amounts to character assassination of senior army officers”. Is that also your view?

COAS: It could well be to an extent yes. Because if it is based on totally informed issues, then definitely it would be appropriate. But at times when it is not fully informed, not fully aware of all the facts, and then passing judgements really amounts to character assassination.

KT: Since you say the media was not well informed, shouldn’t the media have been informed better, given more information by the army?

COAS: That has always been attempted and continuously my media staff has been trying to interact with the media to give the overall perspective to them.

KT: So would you say it was done inadequately?

COAS: I don’t think it was done inadequately. I would say it depends on how at times they could sensationalise those aspects. The same kind of news could be given in a positive or a negative twist.

KT: Are you saying the media has been sensationalising the issue?

COAS: No, I would only say that media has not been fair and objective in this particular case and to an extent has sensationalised the issue especially when things like scam, scandal etc have been talked about. When you refer to a scam it means certain amount of money involvement, wrongdoing in terms of making money etc. As far as this case is concerned there has been no indication of any kind of money involvement.

KT: Should the media treat senior officers, not just Generals but Brigadiers, Major Generals who are charged with corruption differently from the rest of the people?

COAS: No, not at all! I don’t think so. In fact, every person who has to face some kind of investigation should be treated at the same level without any problem at all.

KT: Hasn’t the media done so? That is treat the other people, with the same intensity and focus as they have done for Army officers?

COAS: I think since the entire process of disciplinary proceedings are on, it would be too premature to pass a judgement on that. We would get to know with the passage of time, as to if the media been totally fair or not.

KT: Let me come back to my original question. Could this have been handled better?

COAS: If I may suggest to you, it was not an outside agency, Karan, which asked us or pointed out the flaw to us. It was the Army itself. The organisation is resilient, objective and is concerned of its image in the public eye. So, keeping that in mind the enquiry was ordered by the Army itself. Therefore, it has been self-corrective action which has been undertaken by us.

KT: So, there are no decisions or actions which in hindsight should have been taken differently?

COAS: I think we have gone totally by the way it should have been done and that is what we follow throughout.

KT: First, before you made your initial decision to take action against the four indicted generals did you consult the Defence Minister?

COAS: Karan, you know it is a process. When such a thing happens, obviously the Defence Minister will also be concerned, when some senior officers have alleged to be involved in a thing like this. So a degree of interaction always takes place and it is not right to assume that no such interaction takes place. Naturally, I have to keep the government informed of the happenings.

KT: So there were consultations with the Minister all the time?

COAS: I leave it to you (but) I’ve said that in as many words.

KT: Secondly, do you think you erred in initially proposing administrative action for three of the officers and disciplinary action for one?

COAS: When I had to look at the issue, I had to ensure that I was fair, just, that everyone was looked at, based on the degree of culpability involved of that individual in the case. You cannot put everyone on the same bracket.

KT: So the same punishment for all four would not have been justified?

COAS: That’s right.

KT: The media believe you appear to have been softer on Gen. Prakash, who as Military Secretary was close to you.

COAS: I had to be conscious of the fact that I did not have any personal or media pressure on myself. Gen Prakash is one of the PSOs. Eight PSOs serve under me by virtue of whatever professional reputation they have enjoyed in the past. Therefore, one PSO is as dear or far away from me as the other.

KT: So the accusation that you have been partial to Gen Prakash is unfair?

COAS: I would say that.

KT: Thirdly, many people feel the Defence Minister was wrong to have made public his advice that you should take disciplinary action against Gen Prakash. This step has been seen by many as interfering with the COAS’ prerogatives

COAS: First, I would not like to comment on the aspect of Defence Minister being wrong. o comment on that. Secondly, it is a matter of advice. When we are interacting certain amount of discussion, debate does take place. And when I have to take a decision, I had to take all the factors into consideration. The Court of Inquiry, findings, its opinion, the show-cause notice, the response to it and all other relevant facts when I come to a conclusion. Therefore, I have taken that decision and that is what has been promulgated.

The aspect of legal recourse is not complete. Only the first step has been taken in the form of Court of Inquiry. There are other aspects which are going to continue which include the Summary of Evidence which will happen. The Court of Inquiry is only a fact-finding body which establishes a prima facie case and once the Summary of Evidence has been written down, the Commanding Officer looks at the facts and then decides what has to be done next.

In the civilian perception, the meaning of court martial is not really understood. It really implies trial by a military court. Sometimes there is a perception on the civil side that just because a person is being tried by Court Martial he is bound to get the worst of punishment or he is headed for the gallows. That is not right. In fact, it is meant as any other court to perform a function. There are many people who have been acquitted in the past.

KT: Coming back to the Defence Minister’s public advice. If I understand your answer correctly there is nothing wrong or improper in that.

COAS: I don’t think the Defence Minister gave any public advice. I am sorry but just because it has been orchestrated in the media, it does not mean it becomes public advice.

KT: It was leaked to the media and probably deliberately.

COAS: Look I do not know about that, as to how the media got hold of it.

KT: But does it embarrass you?

COAS: That is a separate issue, and it has no concern with me. As I said I was looking at the facts of the case and I would like to be away from any kind of media pressure to say. This doesn’t matter to me.

KT: Fourthly, after issuing a show-cause notice, on what grounds did you change your mind and opt for disciplinary action instead?

COAS: As I said earlier, besides the fact-finding opinion of the court, the reply to the show-cause notice was also considered. When we look at all these facts, I did what I felt was the best course of action and when this happens all the aspects of the case would also come out.

KT: The media said that you were under pressure from the Defence Minister to change to disciplinary action.

COAS: The media has talked a lot about the so-called pressure on the Army Chief but, like I stated in the beginning, the media has not been fair on the Army Chief. Without trying to criticise the media let me say that if the media had armed themselves with better knowledge of the legal system within the Army and better knowledge of the facts, perhaps, they would have treated the subject a little differently than what they did.

KT: Now that the Court Martial has got underway there will be lawyers involved. The Armed Forces Tribunal could also give a verdict and stop the court martial or make things complicated. Isn’t it getting worse and worse for the Army?

COAS: The legal system and the norm desires that everything must come out appropriately. If there is a legal process to be followed, let it be followed. The damage to the Army’s image, whatever little extent it got done, I look at it as an individual misdemeanour. It got done initially when the media kept harping on it. I do not think just because the legal system would like to look at it as to the exact truth and how it happened, therefore treat the offender in the fashion it deems fit. It wouldn’t in any way damage the army any more, because it would bring out the true extent of culpability of the individual. It will also show that the legal system both within the Army and within the country is very fair to each and every person.

Profile
She guards her freedom as a writer

Padma awards have lately become controversial because of intense lobbying by the aspirants for the national honour. So cut-throat is the canvassing for these awards that many deserving ones are left out and non-deserving get the honour.

It is said the Padma Shri award has lost its sheen because “any Tom, Dick and Harry” can manage to get it. Many recipients of Padma Shri have become subjects of ridicule because it is known that they do not deserve it but manage to get the honour by pulling the strings.

Even the Padma Bhushan award has run into controversy. Favouritism is alleged in the selection of the aspirants for this honour. The dubious manner in which US-based hotelier Sant Singh Chatwal – with three criminal complaints and four cases against him – managed to get it has drawn flak. He has the temerity to say that he deserved the Padma Bhushan because of the services rendered by him to his country.

Evidently, Chatwal managed to get the award because he has powerful friends in the corridors of power and what he claims as the service rendered by him to his country. There are also persons like noted writer Krishna Sobti and playwright Badal Sircar, who has revolutionised stage in Bengal to decline the Padma Bhushan with the contempt the award deserves. As far back as 1971, Badal had also declined the Padma Shri for “personal reasons”. Sobti has been following the Chatwal fiasco and how the hotelier explained that he deserved the honour. She only laughed at the way Chatwal tried to make out a case for himself.

Known as the Grand Dame of Hindi literature, Sobti feels that she should maintain distance from the establishment. An official from the Union Ministry of Home Affairs contacted her twice, informing her that she has been chosen for the award and that “the nation wants to honour her” but Sobti said ‘No’.

A few years back, she was honoured with a Sahitya Akademi Fellowship, the highest honour of the Akademi. She won the Sahitya Akademi Award for her thought-provoking novel, Zindaginama (routine of life), in 1980 and awarded the Fellowship in 1996. Born in Gujarat, now is West Pakistan, Sobti is 85, having made her mark as a Hindi fiction writer and essayist. She is known most for her 1966 novel Mitro Marajani, an unapologetic portrayal of a married woman’s sexuality.

She was also the recipient of the first Katha Chudamani Award in 1999 for “lifetime literary achievement”.Apart from winning the Shiromani Award in 1982, Shalaka Award of Hindi Academy Delhi and in 2008, her novel Samay Sargam was selected for Vyas Samman, instituted by the K.K. Birla Foundation. A number of her works are now available in English and Urdu. Sobti’s style and idiom impart, there is an authentic touch to whatever theme and situation she portrays. The essence of her creativity lies in her honesty and eagerness to reach the truth and to look into things. She guards her freedom as a writer and as an individual zealously.“You can take liberties with yourself only if you create a large space for yourself, a vast sky”, she says. Compassion towards her character is a notable feature of her writings. Her writings revolve around Partition, upheaval and turmoil in society, man-woman relationship, feudalism and denigration of human values.

To an oft-repeated question – what is the major difference today between language writers and those writing in English – Sobti says, “the reality of language writers comes from small towns and villages. Today, they are looking at the nation more realistically, accurately and with so much more density. They are still closer to democracy than those writing in English and connected with collective consciousness of the country. Their writing is much more vibrant”.

Does she think that more translations and availability of regional literature has become necessary? Yes, of course, says Sobti. “My book Ai Ladki (hey, girl) took 12 years before it was translated into English. But that’s not how it should be. There have to be more translations and more people doing it. Universities can help. May be, the Union Ministry of Culture can set up centres for translations”.