Why the criticism of UU Lalit’s appointment as India’s next chief justice is flawed

On August 4, in keeping with convention, outgoing Chief Justice of India NV Ramana recommended the senior-most judge of the Supreme Court, Justice Uday Umesh Lalit, as his successor.

On social media, there was instant criticism of the move, with several users pointing out that Lalit had represented Home Minister Amit Shah in cases in which he was accused of overseeing alleged extrajudicial murders while he was the home minister of Gujarat. They also drew attention to the fact that Lalit’s Supreme Court appointment came three months after the Narendra Modi-led Bharatiya Janata Party government took charge in May 2014.

But legal experts to whom Scroll.in spoke were unanimous in their dismissal of these arguments. They said Lalit had been a fair judge and his tenure till now had not raised questions about his impartiality.

The ethics of legal representation

Before his elevation in August 2014, Lalit had a flourishing practice as a lawyer. He had represented several high-profile clients in the Supreme Court, such as former Indian Army Chief VK Singh, former Punjab Chief Minister Amarinder Singh and actor Salman Khan.

However, the cases that attracted the most attention were the ones where he defended Amit Shah against charges that he had planned the alleged extrajudicial murders of gangsters Sohrabuddin Shaikh and Tulsiram Prajapati in 2005-’06 while he was the home minister of Gujarat. In 2010, Shah was arrested and briefly sent to jail in the Sohrabuddin Sheikh case.

Lawyers said it was unfair to criticise Lalit for having chosen to represent Shah, or any other client for that matter. “Lawyers should not be judged based on the clients they represent,” senior advocate and former Patna High Court judge Anjana Prakash said. “They represent clients on the facts of the case and do not defend them personally.”

As a lawyer, “you have to accept all briefs that come to you”, she added.

This is often called the “cab rank rule” – just like a cab driver shall not refuse a passenger, a lawyer must take up all the cases that come to them.

In India, this is enshrined in the Bar Council of India Rules, which govern an advocate’s conduct. A lawyer is “bound to accept any brief” that comes to them, the rules state, as long as the fee is consistent with their “standing at the Bar and the nature of the case” and there are no “special circumstances”, such as conflict of interest, lack of subject matter expertise, and so on.

The underlying principle is that a person is assumed innocent until proven guilty and lawyers should not assume otherwise. “Ultimately, it is for the judge to decide, and for the government or prosecution to prove a case against citizens,” said senior advocate and former Supreme Court Bar Council Association president Dushyant Dave.

While some commentators have criticised the cab rank rule on grounds that it enables lawyers to escape moral responsibility, many believe that this rule is necessary to ensure no one is denied legal representation.

For instance, a resolution passed by the Coimbatore Bar Association, which asked its members to not defend policemen involved in a clash with lawyers, was struck down by the Supreme Court in 2010. The court, citing Bar Council of India Rules, said that this infringed an accused person’s right to legal representation. The court noted that similar resolutions were often passed in cases involving alleged terrorists or rape accused but warned that such resolutions were illegal.

Even lawyers who don’t subscribe to the cab rank rule say it is unfair to judge Lalit on the basis of his clients. Senior advocate Sanjoy Ghose said he is principally against the cab rank rule as he believes that it is a “disservice to represent a client only because you cannot say no to them”. But, he added, “it was stupid and childish to hold against Mr Lalit the fact that he represented the present home minister”.

Ghose added, “A successful lawyer will be representing all types of clients.”

Even human rights lawyer Prashant Bhushan, while clarifying that he would not have represented Amit Shah himself, said, “You cannot fault a criminal lawyer for representing someone, even if others believe that the person has been guilty of serious crimes”.

SC elevation

But the criticism directed at Lalit on social media went beyond his choice of clients. Many revisited the circumstances in which he was appointed as a judge of the Supreme Court in 2014.

Earlier that year, the Supreme Court collegium had recommended four names for elevation as judges. Among them was former Solicitor General Gopal Subramanium. While the newly elected BJP government cleared three names, it withheld approval for Subramanium’s elevation. Media reports attributed this to adverse intelligence reports that seemingly alleged that Subramanium had “corporate links” and had acted improperly in certain cases as solicitor general.

However, it was widely speculated that Subramanium was being punished for being the amicus curiae – someone who assists the court – in the Sohrabuddin Sheikh case, where he purportedly played a crucial role in Amit Shah getting arrested.

After the government did not approve his appointment, Subramanium withdrew his consent to be elevated to the Supreme Court. In June 2014, he wrote to RM Lodha, the chief justice then, denying the allegations against him. He said his appointment had been blocked by the government because it was apprehensive that he would not “toe the line”. Even Lodha publicly criticised the Central government for not approving Subramanium’s appointment.

Lalit was then nominated in place of Subramanium and his nomination was approved by the Central government in August 2014.

These facts became the basis for social media users criticising Lalit when he was recommended for chief justiceship.

‘Rather silly’

However, legal commentators sharply disagreed with the criticism directed at Lalit.

“I think it’s rather silly,” former Supreme Court judge Madan Lokur said. “The failure to elevate Gopal [Subramanium] was a mistake. That has nothing to do with the elevation of Justice Lalit.”

Legal scholar Anuj Bhuwania agreed: “Subramanium not getting elevated was not Lalit’s fault.” He explained that judicial appointments were, by default, a political process.

Lalit’s experience as a lawyer qualified him for elevation as a judge, said Anjana Prakash. “He deserved to be elevated.”

Several lawyers believed that Lalit was an upright judge who had not given reasons to doubt his credibility. “Justice Lalit is a very fair, independent and hardworking judge,” Dave said. “He has never ever shown any kind of favour or bias against anyone.”

Lokur said it was regrettable that Lalit will have “an unfortunately short tenure” of 74 days.