Was Jethmalani's decision right?

    

DEVIL'S ADVOCATE?

Jethmalani has defended the killers of former prime minister Indira Gandhi.

He was also the defence lawyer of market scamsters like Harshad Mehta and Ketan Parekh.

He also fought, free of cost, the cases of the prime accused in the 2001 Parliament attack case Mohammed Afzal, Shaukat Hussain Guru and the Delhi University lecturer, S A R Geelani, who were awarded the death sentence.

He was also the defence lawyer of the Hinduja Brothers in the Bofors case.

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Keywords: Manu Sharma, Ram Jethmalani

Who the hell is the Press to decide who is indefensible? Please don’t talk of this bullshit to me.

— Ram Jethmalani

New Delhi: He stunned many with his decision to play the 'devil's advocate' in the high-profile Jessica Lall murder case. But senior criminal lawyer and former law minister Ram Jethmalani remains steadfast about his decision to defend Manu Sharma, the main accused in the case. A livid Jethmalani told CNN-IBN the media is carrying out a "malicious campaign" against Manu Sharma, who he says enjoys as much right as anybody else to be defended in the court of law.

Jethmalani - who had also defended the main accused in Parliament attack case, Afzal Afsan Guru who was awarded the death penalty last month - had decided that he would not take up cases unless they were in greater public interest or national issues. So, should a lawyer of Jethmalani's stature have taken up the Jessica Lall case, choosing to defend the prime accused Manu Sharma?

That was the topic of discussion on CNN-IBN show Face the Nation with senior editor Sagarika Ghose. Among the panelists were senior Supreme Court lawyers Kamini Jaiswal and Mukul Rohatgi.

SC lawyer Kamini Jaiswal says she was disillusioned by Jethmalani's decision

Jaiswal said that there was no reason for a lawyer of Jethmalani’s stature to take up the case that had attracted much public wrath. "I didn’t confront him. I requested him as a friend telling him 'this is what is going to happen, don’t do it as there is no need'. There are so many lawyers and I am not denying that the accused has the right to have the best lawyer. But a lawyer who has decided that he is not going to take any matters except what is in greater public interest or national issues, why should a matter like this, especially where the public perception is that there has been a travesty of justice," she said.

However, Rohatgi did not agree with Jaiswal and stood by Jethmalani’s opinion on the case. "I entirely agree with him. It is for a lawyer to decide as to which case he will take. It is not anybody’s job to either influence that decision or go brouhaha and say that on TV. If a lawyer decides to do a case he must do it to the best of his ability. Every accused whether in a murder case, a case of terrorism, in a case of sedition or in a case of a crime against the nation, is entitled to the defence that he wants. He is entitled to pay and obtain the best lawyer he can afford," he said.

But Jaiswal seemed to be in no mood to buy the logic and said the outcry was anticipated. "Here is a girl who is shot dead in a party with hundred people around and the accused go away scot-free and that is what has incensed the common man. The common man is incensed because they all look up at Ram Jethmalani as somebody great. I anticipated this kind of outcry if he would take up that matter and start defending it. That is the only reason why I had talked to him and told him that he should not to do this. I am not trying to pressure anybody, as I am nobody’s conscience-keeper," she added.

But why this anger against the media? Why is this public posture against the media?

"These are two different issues. I have no issues against the media. I think a good, outspoken and fearless media is an important facet of democracy and freedom and speech, which is good. The media is entitled to say whatever they want but I don’t think that anybody in the media or a section of the public has the right to decide whether a particular gentleman is guilty or not guilty," Rohatgi said.

SC lawyer Mukul Rohatgi says there's no question of moral dilemmas.

Jaiswal wasn’t every hopeful of an early trial if that happened. "In case, the case does gets shifted, the hearing will have to start again. In fact, the public prosecuter will have to start all over again and God only knows when the case would come up," she said.

"A lawyer has no business to refuse if he wants to take up a case merely because the public thinks otherwise. In fact your sensors shows that 78 per cent people say that he should take up the case. Please also consider that this is a case of murder. It may be a very horrible murder but at the end of the day there are much larger crimes that are mentioned, crimes against the nations and so on. Do you think that in such cases people should not get a chance to get defended?" he added.

According to Congress spokesperson and a noted Public Prosecutor Abhishek Manu Singhvi "no criminal justice system can even begin to be effective unless the public prosecutor comes from the best lawyer of the land".

Jaiswal added, "True, ultimately when it's an appeal against the state of the order of the acquittal of the accused, public prosecutor really has an uphill task, in this case it’s Ram Jethmalani."

Do criminal lawyers have no moral dilemmas?
While Jethmalani categorically denied having any moral restrictions in taking up Manu Sharma’s case, Rohatgi was of similar opinion.

"I don’t think there’s any question of any moral dilemma. A lawyer must appear for the client if the client wants him for defence. That’s the ethics by which we are governed and that’s how we should take up the cases," he said.

Rohatgi went on to argue that neither public nor media has the right to decide whether a public person is guilty or not.

"There is no doubt that this is a horrendous murder and has shaken the confidence of the public in the police and the judicial system. But no one knows for sure unless the final court decides who’s guilty. This gives an impression that public or media has decided that Manu Sharma is guilty," he said.

However, Jaiswal – who has been against Jethmalani’s decision – disagreed.

"It’s all very well to say that it’s a lawyers’ duty to take up a case when it comes to him. But how is that the Bar Association has passed resolutions in the past stating that that no lawyer will defend certain cases – like, for example, the Jammu and Kashmir sex scandal?" she asked.

However, Rohatgi countered by saying that the resolution, in itself, was immoral. "Because of a resolution that was totally wrong, immoral and illegal that a petition was moved in the Supreme Court by the accused and the trial was shifted out of J&K court to Chandigarh court where all kinds of lawyers are appearing. How can we have a system where all lawyers decide that they won’t take up a particular case?"

At the end of the show, while Jaiswal remained of the opinion that Jethamalani’s decision had disillusioned her, Rohatgi remained steadfast and said that media and public trial of cases must stop.

Results of the SMS poll:
Should Jethmalani have taken up Manu Sharma’s case?

Yes: 80 per cent
No: 20 per cent