Editor’s Note: In this article, the author discusses the importance of the right of legal representation and the perils of denying an accused the same. He contextualizes his thesis with pertinent examples and case laws. Then he finally suggests an attitudinal change among the members of the legal fraternity to safeguard the constitutional right of the accused.  

Recently, the lawyers of District Bar Association, Gurgaon adopted a resolution to not represent the accused in the killing of a five-year student in Ryan International School. It was only after the case was transferred to the Central Bureau of Investigation that an older student was taken to be an accused instead of Ashok Kumar, who was earlier said to have committed the heinous crime. This is not a unique or a one-off incident where lawyer(s) have put the fair trial of the accused in serious jeopardy due to their personal bias or by succumbing to the media and public pressure. In several instances of terrorism, rape, murder, where the accused requires competent legal counsel the most, such unilateral statements of denial of representation by a lawyer or Associations resurface. These actions raise serious questions about the efficacy of criminal justice system and the vulnerability of the right-holder.

When a lawyer denies representing an accused, it involves some level of prejudging the case even before it proceeds to trial. Such an act goes against the fundamentals of criminal law that presumes no guilt on the accused until proven. “We want to send across a strong message that our lawyers will not represent anyone in such cases. A person, who has murdered a seven-year-old, cannot seek legal help from us”, this statement by Suresh Yadav, President of the District Bar Association of Gurgaon in reference to the Ryan International School murder case is an apt representation of this element of prejudgment. The basis of denying representation is the presumption that Ashok Kumar was guilty of the offence (again, this which was falsified after the subsequent investigation). The preamble to Chapter II of the Bar Council of India Rules (hereinafter: “BCI Rules”) gives an impression of a differentiated standard of morality that guides the persons engaged in the legal profession than that of a layperson. It reads, “…what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate”. Therefore, publishing such statements under the influence of public opinion and potential media backlash is tantamount to putting aside the conscientiousness, morality and ethics expected by the profession. The remarks of Thomas Ersikne, the lawyer who was briefed to defend the revolutionary political activist Thomas Paine when he was tried for treason, when he was admonished that the acceptance of brief and representation would lead to dismissal from his office, further appositely captures this point–

“…….If the advocate refuses to defend from what he may think of the charge or of the defense, 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 favor the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel.”

Moreover, Rule 11 of Section II of the same chapter of the BCI Rules mandates an advocate to accept the briefs, and he cannot refuse to do so except for exceptional circumstances. Rule 15 of Section II further goes on to oblige the advocate to defend the accused irrespective of his opinion about the guilt in order to uphold the valued principle of law that the accused should not be convicted without adequate evidence. Therefore, the denial of representation owing to predilection and to uphold lawyer’s own moral high ground is not only inconsistent with the cherished principles of law but also directly violate the duty that they owe to their clients and to the profession.

The right to counsel is enumerated textually as a fundamental right under Article 22(1) and is also interpretatively recognized by the Apex Court in several instances as a part of the right to life under Article 21. In a similar situation where the Bar Association Coimbatore had issued a resolution to deny representation on behalf of A.S. Mohammed Rafi v. State of Tamil Nadu, the division bench of Justices Markandey Katju and Gyan Sudha Mishra observed, “[p]rofessional ethics requires 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 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.” Further, in Mohd. Shuaib & Ors. v. Bar Council Of India & Ors., Supreme Court issued directions so as to facilitate the lawyer to represent clients in an environment free of fear of repercussions of taking up such case, and empowered the Chairman of the concerned Bar Association to initiate disciplinary proceedings under the Advocates Act, 1961 against the lawyers who create hostile environment by threatening others from accepting briefs. Notably, in the case of Md. Sukur Ali v. State of Assam, the Supreme Court held that a criminal case should not be decided in the absence of counsel and equated the decision of the High Court against the accused bereft of legal representation to be violative of his right under Article 21 of the Constitution. Being aware of the sacrosanctity of the constitutional values and principles of criminal law, human rights, and natural law, the Supreme Court in the matter of Ryan International School accused also rightly directed the lawyers to not obstruct the proceedings of the case.

Any direction, statute, the rule would be largely ineffective until the lawyers themselves realize the important role that they play in the criminal justice system, or else the coercion by the external agency would just be an illusory remedy. As Upendra Baxi points, “human rights have a future only when human suffering is taken seriously”, the lawyers should not see these as news or inconsequential events but be empathetic towards the suffering that an innocent person might go through deprived of competent legal representation. Without such realization, these starkest manifestations of impeding the exercise of rights of an individual by the very people who are endowed with the task of facilitating justice will be a commonplace and the problem would grow to become even more institutionalized.

Hardik Subedi is a B.A., LL.B. candidate in NALSAR University of Law. The article was internally copy-edited by Siddharth Aiyanna.