In A.S. Mohammad Rafi v. State of Tamil Nadu, AIR 2011 SC 308, Justice Markandey Katju of the Supreme Court of India took the opportunity “to comment upon a matter of great legal and constitutional importance which has caused deep distress….”
In this case, the Bar Association of Coimbatore had passed a resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case against them. This apparently was a case against policemen for assaulting lawyers in one of the many clashes between the police and the bar.
Taking judicial notice of the fact that “several Bar Associations all over India… have passed resolutions that they will not defend a particular person or persons in a particular criminal case… Sometimes the Bar Associations 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 Supreme Court held that “such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, 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.”
Rule 11 of Section II of Part VI of Bar Council Rules framed under Section 49(1)(c) of the Advocates Act, 1961, provides 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.” Such ‘special circumstances’ have been understood to mean circumstances giving rise to a ‘conflict of interest’. Resolutions similar to the resolution of the Coimbatore Bar Association are known to have been passed by the Bar Association of Faizabad and apparently also by the Bar Association of Pune that prevented the alleged ‘terrorists’ from having any legal representations. The impact of absence of effective legal representation and denial of right to have a counsel of one’s choice would probably be assessed when these cases reach the appellate stage.
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