A dirty job, but somebody's got to do it

The Bar Association of Saket's refusal to allow its lawyers to defend the gang rape accused is unconstitutional and unethical, writes Markandey Katju.

The Bar Association of Saket's s resolution that none of its lawyers will defend the accused in the Delhi gangrape case is not only illegal but also against all traditions of the bar and professional ethics.

As observed in AS Mohammed Rafi vs State of Tamil Nadu, AIR 2011 SC 308. "Every person, however wicked, depraved, 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."

When the great revolutionary writer Thomas Paine was tried for treason in England in 1792 for writing his famous pamphlet titled 'The Rights of Man' in defence of the French Revolution, the great advocate Thomas Erskine was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepted the brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.

However, his immortal words in this connection stand out as a shining light even today: "From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel".

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 Abdullah and his co-accused were defended by them, and so were the alleged assassins of Mahatma Gandhi and Indira Gandhi.

In recent times, Binayak Sen has been defended and so was 26/11 terrorist Ajmal Kasab. 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).

In this connection reference may be made to the legendary American lawyer, Clarence Darrow, 1857-1938 (see his biography, Attorney for the Damned), who took up cases of persons regarded as vile, depraved and loathsome by society for instance, brutal killers, terrorists, etc, whose brief no other lawyer would touch because he believed that everyone had a right to be defended.

Article 22(1) of the Constitution states: "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice".

Chapter II of the Rules framed by the Bar Council of India states: "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."

Professional ethics require 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 a resolution that none of its members will appear for a particular accused, whether on the ground that he is a suspected terrorist, rapist, mass murderer, etc, is against all norms of the Constitution, and professional ethics. It is against the great traditions of the bar which has always stood up for defending persons accused of a crime. Such a resolution is, in fact, a disgrace to the legal community. 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.

Markandey Katju is chairman, Press Council of India, and former judge, Supreme Court of India
The views expressed by the author are personal