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Lawyers can't refuse to defend accused, says SC

December 07, 2010 20:19 IST

The Supreme Court has ruled lawyers or their associations cannot refuse to appear for accused whether they are terrorist, rapists, murderers or any others as such refusal would be a violation of the Constitution, Bar Council norms and tenets of the Bhagavad Gita.

A Bench of Justices Markandeya Katju and Gyan Sudha Mishra in an order deplored the growing tendency among bar associations across the country to pass resolutions against appearing for certain accused persons for some reason or the other.

"Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the statute and professional ethics.

"It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the right-minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country", the apex court said.

It is the duty of a lawyer to defend no matter what the consequences and a lawyer, who refuses to do so, is not following the message of the Gita, " the Bench said. The bench passed the order while quashing the counter criminal cases filed by policemen and lawyers of Coimbatore during an agitation in 2007.

In this case the Madras High Court had on the basis of the recommendations made by Justice(retd)K P Sivasubramaniam, Commission of Inquiry, ordered a compensation of Rs 50,000 to advocate A S Mohammed Rafi who was allegedly assaulted by policemen during a clash with them.

At that time both the lawyers and women police constables involved in the fracas lodged counter criminal cases. The Bar Association of Coimbatore had also passed a resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case against them.

Rafi who was not satisfied with the quantum of compensation moved the apex court for a higher compensation. The apex court while enhancing the compensation to Rs 1.50 lakh as advised by amicus curiae and senior counsel Altaf Ahmed, however, minced no words in expressing displeasure at the manner in which the bar associations have been frequently passing resolutions asking advocates not to appear for certain persons.

"Sometimes, there are clashes between policemen and lawyers and the Bar Association passes a resolution that no one will defend the policemen in the criminal case in court. Similarly, sometimes the Bar Association passes a resolution that they will not defend a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case.

The bench cited Article 22(1) of the Constitution which says "no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for which arrest has been made nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice".

It also referred to legendary American lawyer Clarence Darrow (1857-1930) who was strongly of the view that every accused, no matter how wicked, loathsome, vile or repulsive he may be regarded by society has the right to be defended in court.

"Most lawyers in America refused to accept the briefs of such apparently wicked and loathsome persons e.g brutal killers, terrorists, etc. but Clarence Darrow would accept their briefs and defend them because he was firmly of the view that every person has the right to be defended in a court and correspondingly it was the duty of the lawyer to defend.

"His defences in various trials of such vicious, repulsive and loathsome persons became historical and made him known in America as the Attorney for the Damned", the bench recalled.

The apex court cited traditions across the world where lawyers defended the clients however wicked their offences might be.  "In our opinion, such resolutions are wholly illegal, against all traditions of the bar and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him," the bench said.

"At the Nuremberg trials, the Nazi war criminals responsible for the killing millions of people were defended by lawyers. Indian lawyers have followed this great tradition. The revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were defended in the Meerut conspiracy case, razakars of Hyderabad were defended by our lawyers, Sheikh Abdulah and his co-accused were defended by them, and so were some of the alleged assassins of Mahatma Gandhi and Indira Gandhi.

"In recent times, Dr Binayak Sen (Maoist sympathiser) has been defended. No Indian lawyer of repute has ever shirked responsibility on the ground that it will make him unpopular or that it is personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court lawyer Bhulabhai Desai defended the accused in the INA trials in the Red Fort at Delhi (November 1945 – May 1946), the bench said.

Hence, it said any attempt by the bar associations to pass resolutions asking lawyers not to appear for certain accused was illegal and unconstitutional. "The Registry of this court will circulate copies of this judgement/order to all High Court Bar Associations and State Bar Councils in India. The High Court Bar Associations are requested to circulate the judgement/order to all the District Court Bar Associations in their States/Union territories," the order added.

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