Monday, 7 January 2013

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

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 aright 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 )
  Published in Hindustan Times on 01/01/2013

13 comments:

  1. good one. Sounded philosophical and impractical initially but the truth cannot be evaded that each being has a right to being defended before being judged in a court of law

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  3. Absolutely right. The sacred canon of a free society and democracy is the right to defend as per law.And it will be its violation if the Bar council sticks to this unwise stand.
    I would think that the lawyer who agrees to represent the accused may take their confessions of guilt and instead of concocting evidences and throwing aspersion on the characters of the victims as is usually done, plead to the court to be lenient in sentencing and dispose the case.
    Is this not a solution, I wonder ?

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  5. The resolution was undemocratic in nature and lack of professionalism on our part!

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  6. It is shameful that the Saket Bar Association has refused to represent the accused. The bar has not only colluded to impinge upon the constitutional right of the accused for a fair trial, but by denying them legal representation, it has also made itself look more like a vigilante brigade. Apart from being illegal, their unethical stand has far reaching ramifications.

    By their action, all members of that association have henceforth surrendered their moral ability to represent the accused in the case. Anyone taking up their case now could be suspected, by the accused and their well-wishers, of bias against their interests, particularly if the accused are found guilty. Similarly, Saket Judicial Center has also been rendered a tainted venue for the gang rape trial to take place.

    In keeping with the highest traditions of a fair trial, it may be obligatory to move the case to a neutral venue. Appearance of a fair trial, after all, is just as important as the fair trial itself.

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  7. Somebody out there will prove that Justice and Equal Rights are not dead yet!!!

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  8. ABSOLUTE BULL SHIT BY KATJU ..KHUDIRAM BOSE ARRESTED ON 8TH JUNE.1906 AT AGE OF..17 YEARS.11 MONTHS HANGED ON 13TH JUNE...FOR THROWING BOMB ON..ENGLISH OFFICIAL KINGSFORDS WIFE..NO GIVE COUNSEL HANGED IN FIVE DAYS......SO MNAY EXAMPLES..GANDHI NEHRU KATJUS FELLOW..KASHMIRI PANDIT AND..REFUSING..BREIFS,,OF SO MANY..FREEDOM FIGHTERS.......THIS.ENGLISH NORM....OF DEFENDING..ABSOLUTE INHUMANS..IS..BEYON COMPERHENSION..

    THOSE WHO HAVE NOT PROPERLY PRACTICED THE START PREACHING LAWYERS....ESPECIALLY...JUDGES OF RETIRED VARIETY..

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  9. Didn't the same thing happen initially when Kasab needed to be defended? Even non-lawyers like me know that everyone is allowed a trial and defense, so that innocent people are not victimised. Its quite disturbing that Indian lawyers don't understand the very concept of a legal defense.

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