Can Bar Associations refuse to represent an accused? What does the law say?
What is the Supreme Court’s take? The Supreme Court has consistently held that every accused has the right to fair trial and legal representation and
What is the Supreme Court’s take? The Supreme Court has consistently held that every accused has the right to fair trial and legal representation and it is illegal, unconstitutional and contrary to professional ethics to deny that right. In a Supreme Court judgment in 2010, A.S. Mohammed Rafi v. State of Tamil Nadu, the case arose out of a confrontation between lawyers and police personnel in Coimbatore. Following the incident, a local Bar Association passed a resolution that none of its members would represent the accused police personnel. A Division Bench of Justices Markandey Katju and Gyan Sudha Misra held that such resolutions by Bar bodies were “wholly illegal, against all traditions and professional ethics”. Justice Katju observed, “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 court declared in the judgment 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 court said that “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.” The Supreme Court judgment authored by Justice Katju further referred to the national freedom struggle, where revolutionaries against British rule were defended. The court had said that it was “disturbed” by news reports of Bar Associations refusing to defend certain accused persons.
The court even mentioned that at the Nuremberg trials in the aftermath of the Second World War, the Nazi war criminals responsible for killing millions of people were yet defended by lawyers. What is the accused’s right to be defended? Article 22(1) of the Constitution guarantees that no arrested person shall be denied the right “to consult, and to be defended by, a legal practitioner of his choice”. Article 14 provides for equality before the law and equal protection of the laws within the territory of India. The Supreme Court has recognised the right to a fair trial as an integral part of the right to life and personal liberty under Article 21. Article 39A, a Directive Principle of State Policy, further requires the State to ensure that the legal system promotes justice on the basis of equal opportunity and that no citizen is denied access to justice because of economic or other disabilities, including through free legal aid. Together, these provisions form the constitutional foundation of an accused person’s right to legal representation. What do the Bar Council of India Rules say? The ‘Standards of Professional Conduct and Etiquette’ chapter of the Bar Council of India Rules says that “an advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.” Though the rules provide “special circumstances” for refusing to accept the case, the Uttarakhand High Court in Kuldeep Agarwal v. State Of Uttarakhand And Others (2019) clarified that “special circumstances mentioned in Clause II, justifying refusal of an advocate to accept a particular brief, refers, by the use of the word “his”, to the advocate in his individual capacity, and not to the Bar Association whose members are advocates”.
The BriefWire