By Anchit Jain & Lovish Jain
“It is the law, Lakshman,” said Ram calmly. “The law cannot be broken. It is supreme, more important than you or me. Even more important than…”
Ram choked on his words as he could not bring himself to take her name.
“Complete your sentence, Dada!” Bharat lashed out harshly. Ram looked up. He raised his hand towards Bharat, wincing in pain. “Bharat…”
Bharat strode into the room, his eyes clouded with sorrow, his body taut, his fingers trembling, yet unable to adequately convey the storm that raged within. “Finish what you were saying, Dada. Say it!”
“Bharat, my brother, listen to me…”
“Let it out! Tell us that your damned law is more important than Roshni!” Fierce tears were flowing in a torrent from Bharat’s eyes now.
“Say that it matters more to you than that rakhi around your wrist.” He leaned over and grabbed Ram’s right arm. Ram did not flinch. “Say that the law is more important to you than our promise to protect our Roshni forever.”
“Bharat,” said Ram, as he gently freed his arm from his brother’s vice-like grip. “The law is clear: minors cannot be executed. Dhenuka is underage and, according to the law, will not be executed.”
“The hell with the law!” shouted Bharat. “This is not about the law! This is about justice! Don’t you understand the difference, Dada? That monster deserves to die!”
“Yes, he does,” said Ram, tormented by the guilt that wracked his soul. “But a juvenile will not be killed by Ayodhya. That is the law.”
“Dammit, Dada!” shouted Bharat, banging his hand on the table.
This extract of the conversation between the princes of Ayodhya is taken from Amish Tripathi’s book Scion of Ikshvaku. Taken from The Treta Yug (the second yug), it is the epitome of an ideal society. It shows that sometimes there may be intersections between law and justice, and to resolve such inextricable situations, weightage must be given to both things.
Recently, Assistant Solicitor General SV Raju during a hearing before the Delhi High Court mentioned that the Gujarat High Court Bar Association had passed a resolution about not handling cases of “black marketers”.
Bar association resolutions barring advocates from appearing for a particular accused violate the Constitution. Only the judiciary can declare a person guilty, that too after a just and fair trial.
The controversial statement was made when Delhi restaurateur Navneet Kalra filed an anticipatory bail application after an FIR was registered against him under the Essential Commodities Act and various other Sections, including 420/188/120B and 34 of the IPC for black-marketing and hoarding of oxygen concentrators, oximeters, N95 marks and other Covid-related equipment.
It is not the first time that a bar association has passed a resolution not to provide legal services to a person against whom allegations have been levelled which are yet to be decided by a competent judicial authority. So what are the implications and repercussions of such resolutions?
Legal representation of any person is strongly advocated by the principle of natural justice. These principles are not codified, but they are being followed and enforced in practical terms. These principles are the guiding factor in the course of serving justice and in deciding judgement in every case of judicial conscience.
The principles of Audi Alteram Partem (listen to the other side) mean that no party should be condemned unheard. It gives a party an appropriate opportunity for telling his perspective on the matter. Any judgement in which either party allegedly lacked an equal opportunity of being heard is itself biased and prejudiced.
In the case of Peerless General Finance & Investment Co. Ltd. vs Dy. CIT, it was observed that the principles of natural justice can be presumed as necessary unless there exists a statutory prohibition. However, when a statutory provision and the opportunity of being heard conflict with each other, the one which would prevail is the former one. This was held in Asiatic Oxygen Ltd. vs STO.
Hence, it is evident that passing such resolutions and barring a person’s remedy for a just and fair trial by merely presuming his guilt in the alleged crime is violative of basic principles on which justice is served. And when this is done by those who are supposed to be the conveyers of law—advocates and legal practitioners—it is frightening.
The Constitution under Article 22(1) protects a person against unlawful arrest and the right to choose a counsel of his choice. Article 39A secures the operation of the legal system and ensures justice and equal opportunity among the citizens. Refusing to defend someone due to presumptions is against the idea of “justice”, “equality” and “the dignity of the individual” as embedded in the Preamble to the Constitution. Therefore, bar association resolutions barring advocates from appearing for a particular accused violate Articles 21, 22 (1), and 39-A of the Constitution. They also violate the apex court’s ruling in Dataram Singh vs State of Uttar Pradesh & Another which provides “a person is presumed to be innocent till proven guilty”. Only the judiciary can declare a person guilty, that too after a just and fair trial. Hence, it is clear that such resolutions are prejudicial and inconsistent with not only constitutional provisions but violate the principles of natural justice and human rights.
In the landmark judgment of A.S. Mohammed Rafi vs State of Tamil Nadu, Bar Associations across the nation passed a resolution not to represent the accused. The Supreme Court declared the resolution illegal and quoted the special circumstances to be the reason for the brief’s refusal. But here too, the Court did not define these circumstances.
The Advocate’s Act states that the Bar Council of India can make rules for discharging its functions under the Act and set the standards for professional etiquette which have to be followed by advocates. Under Chapter II of Bar Rules called “Standard of Professional Conduct and Etiquette”, an advocate’s duty towards a client is laid down.
It says that an advocate is bound to accept any nature of brief. Bar Rules don’t discriminate between citizens or residents and explicitly mention “any brief” which puts an advocate under the obligation to pursue the matter. These are, if:
- It is before a judicial body where he practices.
- The nature of matter meets his practice area.
- The party agrees upon the fee for the matter.
However, the Rules exempt an advocate to accept any specific brief under “Special circumstances”. This term is vague as it is not defined.
However, the Rules allow an advocate to deny a brief if:
- A client persists with the advocate in an improper manner.
- An advocate himself is the executive committee member of the organisation which is a party to the case. However, amicus curiae or pro bono appearances on the behalf of the Bar Council, Law Society or Bar Associations are exempt.
- An advocate himself has a pecuniary interest in the matter.
- An advocate has reason to be a witness in the case.
Also, as “Special Circumstance” has not been defined, there have been instances when Bar Associations have refused briefs or passed illegal resolutions to boycott an accused. In the landmark judgment of A.S. Mohammed Rafi vs State of Tamil Nadu, Bar Associations across the nation passed a resolution not to represent the accused. The Supreme Court declared the resolution illegal and quoted the special circumstances to be the reason for the brief’s refusal. But here too, the Court did not define these circumstances.
Any judgment is a moral text of professional etiquettes based on historical precedents. These include:
- Thomas Erskine defending revolutionary writer Thomas Paine in 1792 for writing the pamphlet “The Rights of Man” against the State. This was despite the fact that Erskine was attorney general for the Prince of Wales and was warned against accepting the brief.
- Indian revolutionaries were defended against British Rule.
- The alleged assassin of Gandhi was defended.
- Nazi war criminals were defended during the Nuremberg trials.
The Court further referred to the fictional character of Atticus Finch from Harper Lee’s book To Kill a Mockingbird where he argued for a black man despite getting threats from society. Similarly, in Kuldeep Agarwal vs State of Uttarakhand, the Bar Associations of Kotdwar, Uttarakhand, passed a resolution to not defend a particular person accused of murder. The Uttarakhand High Court quashed the resolution on constitutional grounds, imposing a fine of Rs 25,000 on the Association. The Court said: “The ‘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.”
Therefore, except for designated judicial authorities, no one can declare a person guilty merely based on allegations against him. Legal associations and advocates should realise that it is their legal and moral responsibility to defend the person who comes to them and even if someone is not willing to take up the case, he shouldn’t restrain others from handling it.
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It was reported that Senior Advocate Abhishek Manu Singhvi wanted to quote Ram Jethmalani, but wasn’t allowed. However, he tweeted: “I decide according to my conscience who to defend. A lawyer who refuses to defend a person on the grounds that people believe him to be guilty is himself guilty of professional misconduct.”
—Anchit Jain is a final year student of BBA, LL.B (Business Law Hons.) at the Institute of Chartered Financial Analysts of India University, Dehradun. Lovish Jain is doing a Company Secretary Course