CASE ANALYSIS OF

A. S. MOHAMMED RAFI V. STATE OF TAMIL NADU

BY:-
AASTHA SHARMA
INTERN
1st YEAR,
NATIONAL LAW UNIVERSITY ODISHA,
CUTTACK
Mob- 7667060917
Email- sharmaaastha193@gmail.com

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 BACKGROUND OF THE CASE

In 2010, in the State of Tamil Nadu there were regular instances of numerous clashes
between the Bar and the Police. As a result of such mishappenings, some of the lawyers were
assaulted by certain policemen. The matter between them worsened and a criminal case was
filed against the policemen in the Court, for assaulting the lawyers and against the illegal
means that they had adopted. When the matter was to be tried in the Court, The Coimbatore
Bar Association passed a resolution claiming that no member of the Coimbatore Bar
Association would defend the accused police officers before the Court for the criminal case
brought against them. A Special Leave Petition was subsequently filed in the Supreme Court
of India, against the resolution passed by the Bar Association of Coimbatore that no member
of the concerned Bar Association of Coimbatore would defend the accused policemen in the
criminal case filed against them.

FACTS IN ISSUE

In this particular case, the bone of contention is the resolution that was passed by the Bar
Association of Coimbatore stating that none of its members would defend the accused
policemen during the trial, which was the result of a criminal complaint filed against the
policemen as they had assaulted the lawyers. As a result of this, a Special Leave Petition was
filed by the policemen, in the Supreme Court of India against that very resolution claiming
that it violated the Constitution of India, precisely Article 22(1); the Rule 11, Chapter 2,
Part 6 of the rules framed by the Bar Council of India, titled as the ‘Standards of
Professional Conduct and Etiquettes’; and the Professional ethics.

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 I. APPELLANT’S ARGUMNETS
a) Every citizen is entitled to the ‘Right to Representation’ and the resolution that was
passed by the Bar Association of Coimbatore stands in clear contradiction of that.
b) It is the duty of every legal practitioner to defend the people in all the situations,
except when there is conflict of interest i.e. they all have the ‘Duty to Defend’.
c) The resolution violates the Article 22(1) of the Constitution of India, as the article
clearly states that the person in custody for a criminal charge can be defended by a
legal practitioner of his choice.
d) The resolution also violates the fundamental rights of citizens stated in Article 14 and
21.

II. RESPONDENT’S ARGUMNETS

a) The resolution passed by the Bar Association of Coimbatore was a result of the
assault done by the policemen on the Lawyers of the Bar.
b) The resolution was passed keeping in mind the security issues that the lawyers
experienced.
c) The lawyers felt threatened in the proximity of the policemen because of the previous
incidents of assaults on them and hence they could not represent the policemen in the
trial of the criminal case that was filed against them.

RIGHT TO REPRESENTATION

In the words of Judge Markandey Katju who presided over A. S. Mohammed V. State of
Tamil Nadu case in the Supreme Court, “Several Bar Association all over India, whether
High Court Bar Associations or District Court Bar Associations have passed resolutions that
they will not defend a particular person or persons in a particular criminal case. Sometimes
there are clashes between policemen and lawyers, and the Bar Association passes a resolution
that no one will defend the policemen in the criminal case in Court. Similarly, sometimes the

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Bar Association 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.”1

In the opinion held by the bench, such resolutions are wholly illegal, against all traditions of
the bar, and against professional ethics. Accused policemen had “Right to be defended”.
“When Bar Association of Coimbatore had passed a resolution to not to defend the accused
policemen in the criminal case against them, such resolution was wholly illegal, against all
the traditions of the bar and against professional ethics. Hence, the action of the Bar
Association of Coimbatore in passing resolutions that its members would not appear for
accused policeman was not justified, being against all norms of the Constitution of India, the
respective statutes and Professional Ethics.”2 On the same lines, it was held in this case that
“such resolutions were wholly illegal, against all tradition of the Bar, and against professional
Ethics. Every person, however wicked, depraved, vile, degenerate, loathsome, exerable,
vicious, or repulsive, or as may be regarded by the society; had a right to be defended in a
Court of Law and correspondingly it was the duty of the lawyer to defend him. Hence, action
of the Bar Association of Coimbatore in passing resolutions that its members would not
appear for particular accused on the ground that he was a policeman or suspected terrorist or
mass murderer was not justified, being against all norms of the Constitution of India, the
respective statutes and professional ethics.” 3 This judgement essentially indicates the
importance of the ‘Right to Representation’.

III. COMPARISON WITH U.S. (THEORY AND PRACTICE)

We can also give the example of legendary American lawyer Clarence Darrow in this regard.
“He strongly believed that every accused, no matter how evil, loathsome, vile or repulsive as
the society may consider him to be, has the right to stand trial. Most lawyers in America
refused to consider the briefs of these apparently wicked and loathsome men, e.g. vicious
murderers, terrorists, etc. but Clarence Darrow would consider their briefs and defend them,
as he was firmly of the opinion that every person has the right to be defended in Court, and it
was the lawyer's responsibility to defend them accordingly. His prosecutions in numerous
trials against these cruel, repulsive and loathsome people were legendary and made him
1
‘A. S. Mohammed Rafi V. State of Tamil Nadu’, < https://indiankanoon.org/doc/1355688/> accessed on 23
April 2020.
2
‘A. S. Mohammed Rafi V. State of Tamil Nadu’, < https://taxpublishers.in/Ency_ST/ST_Judg_Show?
78190000?a0> accessed on 23 April 2020.
3
A. S. Mohammed Rafi v. State of Tamil Nadu, AIR 2011 SC 308.

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known in America as the 'Attorney for the Damned' (because he took up the cases against
people deemed by society to be so disgusting, depraved and immoral that they were already
hated by popular opinion) and became a celebrity in America.”4

The ‘Right to Representation’ is a universal right that has been guaranteed and is practiced by
all the democracies on a ground level. In USA, the same has been laid down in the 6th
Amendment as, “In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and District wherein the crime shall have
been committed, which District shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favour, and to have
the assistance of counsel for his defence.” 5Here the last part of the amendment clearly states
that the accused, in all cases of criminal prosecutions, has the right to get assistance of
counsel for his/her legal defence. This clearly indicates the vitality of the ‘Right to
Representation’ and how it necessary it is to be practiced on local, national and international
levels.

On the same lines, the landmark case of Powell V. Alabama should be taken into
consideration. In this case, “nine illiterate young men aged 13-21, were charged with the rape
of two white young girls. They were all aboard on a freight train from Tennessee to Alabama.
The trial for the case was held in Scottsboro, Alabama where the community hostility
towards the Black was intense and there was a prominent racial tension. Some members of
the local bar were appointed by the Trial Judge to serve as defence counsel. But due to the
racial issues that were so deep-rooted in this particular case, no attorney from the local bar
appeared on the day of the trial to defend the accused. The judge, at the morning of the trial,
seeing no other option appointed a local lawyer, who also took the case with much
reluctance, to defend the accused. Ultimately the defendants were convicted and held
responsible for the crime. But they challenged their convictions on the grounds that they were
effectively denied the aid of counsel as they were not provided with the opportunity to
consult their lawyers and prepare a defence.”6

4
‘A. S. Mohammed Rafi V. State of Tamil Nadu’, < https://indiankanoon.org/doc/1355688/> accessed on 23
April 2020.
5
‘Sixth Amendment’, Legal Information Institute <
https://www.law.cornell.edu/constitution/sixth_amendment> accessed on 23 April 2020.
6
‘A. S. Mohammed Rafi V. State of Tamil Nadu’, < https://indiankanoon.org/doc/1355688/> accessed on 23
April 2020.

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Justice George Sutherland who had presided over the case stated that, “It is hardly necessary
to say that the right to counsel being conceded, a defendant should be afforded a fair
opportunity to secure counsel of his own choice. Not only was that not done here, but such
designation of counsel as was attempted was either so indefinite or so close upon the trial as
to amount to a denial of effective and substantial aid....”7 In the same judgement he also
observed that, “What, then, does a hearing include? Historically and in practice, in our own
country at least, it has always included the right to the aid of counsel when desired and
provided by the party asserting the right. The right to be heard would be, in many cases, of
little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and
educated layman has small and sometimes no skill in the science of law. If charged with
crime, he is incapable, generally, of determining for himself whether the indictment is good
or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be
put on trial without a proper charge, and convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge
adequately to prepare his defence, even though he has a perfect one. He requires the guiding
hand of counsel at every step in the proceedings against him. Without it, though he is not
guilty, he faces the danger of conviction because he does not know how to establish his
innocence. If that be true of men of intelligence, how much more true is it of the ignorant and
illiterate, or those of feeble intellect? If in any case, civil or criminal, a State or Federal Court
were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it
reasonably may not be doubted that such a refusal would be a denial of a hearing, and,
therefore, of due process in the constitutional sense.”8

This judgement, thus very clearly, set the precedent for the forthcoming years in relations to
the Right to Representation. Powell v. Alabama's immediate effect was relatively minimal,
because in capital cases, each State already needed courts to select counsel. Instead, Powell's
enduring legacy is that it defined a standard that would direct the Court for the next 50 or so
years, based on the principle of "fundamental fairness", as it sought to investigate the
government's statutory duty to offer representation to victims who otherwise could not afford
to do so. And it wouldn't be long before this basic measure of justice was put into effect. The

7
‘A. S. Mohammed Rafi V. State of Tamil Nadu’, < https://indiankanoon.org/doc/1355688/> accessed on 23
April 2020.
8
‘A. S. Mohammed Rafi V. State of Tamil Nadu’, < https://indiankanoon.org/doc/1355688/> accessed on 23
April 2020.

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inputs from this landmark cases are many and all important and needs to be followed in the
Indian scenario as well.

The same can also be seen in the Re Anastaplo, 366 US 82 (1961) case. Justice Hugo Black
of the U.S. Supreme Court, who presided over this case, said that, “Men like Lord Erskine,
James Otis, Clarence Darrow, and a multitude of others have dared to speak in defence of
causes and clients without regard to personal danger to themselves. The legal profession will
lose much of its nobility and its glory if it is not constantly replenished with lawyers like
these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-
fearing individuals is to humiliate and degrade it.”9

DUTY TO DEFEND

The duty to defend essentially means that it is the duty of the people, who are granted with
the powers to defend any person before the Court of Law, to defend them in each and every
possible situation and they cannot deny access to their services on any grounds, except when
there is conflict of interest. This duty is universal and its importance has been highlighted in
both national and international arena.

A vary famous anecdote can also be shared in support of the aforementioned argument.
Thomas Paine, a revolutionary writer, in England, was jailed and tried for treason in 1792. It
was because of his famous pamphlet, ‘The Rights of Man’ that was in complete support of
the French Revolution. Thomas Erskine, who was the Attorney General of the Prince of
Wales, was briefed to defend him. But since Thomas Paine was a revolutionary who spoke
against the autocratic regime of the throne, Thomas Erskine, a representative of the
Government was warned that if he accepted the brief and agreed to present his case before the
Court, he will be dismissed from his office. Needless to say, Paine accepted the brief and was
consequently dismissed from his office. The statement made by him, regarding the Duty to
Defend and access to rightful legal representation is very appropriate in lights of the A. S.
Mohammed V. State of Tamil Nadu case. He said that, “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 practice, from that moment the liberties of England
9
Ibid.

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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 and in proportion to his rank and
reputation puts the heavy influence of perhaps a mistaken opinion into the scale of justice
against the accused, in whose favour the principles of law make all assumptions.”10

The great tradition has been pursued by Indian lawyers. Our lawyers defended the
revolutionaries in Bengal under British rule, the Indian communists were defended in the
Meerut conspiracy trial, our lawyers defended Razakars of Hyderabad, they defended Sheik
Abdulah and his co-accused, and so were some of Mahatma Gandhi and Indira Gandhi's
suspected assassins. Dr Binayak Sen has been defended in recent times. No respectable
Indian lawyer has ever shirked liability on the ground that it will render him infamous, or that
doing so will be personally dangerous to him. It was in this great tradition that eminent
Bombay High Court lawyer Bhulabhai Desai represented the accused at Red Fort in Delhi in
the I.N.A. trials. Nevertheless, alarming news now appears from many parts of the country
where Bar Associations refuse to protect those accused persons.

Additionally, according to the Rule 11 of Section II of Part VI of Bar Council Rules

framed under Section 49(1)(c) of the Advocates Act, 1961, it is provided 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 practice 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.”11

Such 'special situations' were understood to mean 'conflict of interest' circumstances.

Resolutions identical to the Coimbatore Bar Association resolution are known to have been
passed by Faizabad's Bar Association, and apparently also by Pune's Bar Association, which
prohibited the suspected 'terrorists' from getting legal representations. This clearly indicates
the reluctance that has been shown on a wide level by several bar associations on the grounds
that it will hamper their reputation and make them unpopular among the masses, rather than
them focusing on carrying on their duty of providing legal representation to the people who
are entitled by law to receive it.

In the words of Markandey Katju, who was one of the judges who presided over the A. S.
Mohammed Rafi case, “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,
10
Markandey Katju, ‘Duty to Defend’ The Hindu (Delhi, 21 September 2018) <
https://www.thehindu.com/opinion/op-ed/duty-to-defend/article24998250.ece> accessed on 23 April 2020.
11
Bar Council of India Rules, Part 6, Chapter 2, Rule 11.

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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.”12

PRINCIPLE OF NATURAL JUSTICE

In the Constitution of India, nowhere the term “natural justice” has been used and yet it is the
most sacred principle of law on which the whole of the Indian legal system is based. The
principle of Natural Justice essentially means that the principles relating to the procedure are
required to be followed by authorities entrusted with the task of deciding disputes between
the parties even when no procedure is laid down by the rules. This principal is basically based
on two Latin maxims:-

 Nemo judex in causa sua- This maxim literally translates to “no-one should be Judge
in his own cause”. The wider ambit of this principal covers the “Right to free trial” as
well. Now, it is very obvious that if the Right to free trial has to be practiced in reality
then both the parties involved in a particular case have equal right to legal
representation. The absence of the very same can lead to unfair treatment of the
parties from a very initial level and thus violate the principal. To ensure the absence
of existence of any form of biasness and a free trial, all the parties involved in the case
are entitled to legal representation.
 Audi Alteram Partem- The literal derivation of this legal maxim is, “let the other side
be heard as well”. It is a principle of Natural Justice that basically puts forth the idea
that no person should be judged without being given a chance of fair hearing, in
which, again, each party is provided with the chance to respond against all the
evidences that are put forth against them.
12
Markandey Katju, ‘A dirty job, but sombody’s gotta do it’ Hindustan Times ( Delhi, 6 January 2013) <
https://www.hindustantimes.com/india/a-dirty-job-but-somebody-s-got-to-do-it/story-
Y7F2YWi0GcaoYe0irkQ4KM.html> accessed on 23 April 2020.

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 The principle of Natural Justice essentially makes sure that a person should be given a
fair opportunity to be heard and if we take the case of A. S. Mohammed Rafi V. State of
Tamil Nadu, the policemen in this case were denied access to the legal representation, by
the Bar Association of Coimbatore, in relations to the criminal appeal that was filed
against them, on the grounds of some prior clash that existed between the policemen and
the lawyers. Here, though the policemen were wrong in assaulting the lawyers, going
beyond the ambit of rightful legal proceedings, yet they should not be denied access to the
legal representation as it clearly violates the principle of Natural Justice. They have a
justified right to a fair trial and the resolution passed by the Bar Association of
Coimbatore, stating that no member of the Association would take up their case is
completely unjustified and wrong on the ground of Principle of Natural Justice.

ARTICLE 22(1) OF INDIAN CONSTITUTION

Article 22(1) of the Constitution states: "No person who is arrested shall be detained in
custody without being informed, as soon as may not 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".

This fundamental right clearly states that each person has the right to be defended in the
Court of Law by a legal practitioner of his own choice. In this case the policemen were
denied access to the legal practitioners of their own choice because of a resolution that was
passed by the Bar Association stating that none of its members would take up the case of the
policemen because the policemen were previously indulged in assaulting some lawyers. This
is a clear violation of the fundamental right and the same cannot be entertained by any Court
of law.

ARTICLE 14 OF INDIAN CONSTITUTION

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According to the Article 14 of the Constitution of India, “The State shall not deny to any
person equality before the law or the equal protection of the laws within the territory
of India.”13 This article strikes the root of arbitrariness by guaranteeing to all the citizens of
India ‘equality before law’ and ‘equal protection of law’.

“It bars discrimination and prohibits both discriminatory laws and administrative action. Art
14 is now proving to be bulwark against any arbitrary or discriminatory state action. The
horizons of equality as embodied in Art 14 have been expanding as a result of the judicial
pronouncements and Art 14 has now come to have a highly activist magnitude. It laid down
general preposition that all persons in similar circumstance shall be treated alike both in
privileges and liabilities imposed.”14

Seeing the facts of the A. S. Mohammed Rafi V. State of Tamil Nadu case, in the light of the
aforementioned Article 14 of Indian Constitution clearly indicates the fact that the article was
violated in this particular case. The policemen, though wrong on their part, were denied
access to the lawyers during the trial of the criminal appeal that was filed against them for
assaulting some lawyers due to certain pre-existing clashes between the lawyers and the
policemen. Here, the principle laid down in the Article 14 was grossly violated, as by denying
access to the rightful legal representation they were not given equality before law. The basic
fundamental right that has been guaranteed to all the citizens of India was not provided to the
appellants in this case.

ARTICLE 21 OF INDIAN CONSTITUION

According to the Article 21 of Indian Constitution, “No person shall be deprived of his life or
personal liberty except according to procedure established by law.”15 In this case, the
policemen were also deprived of their personal liberty when they could not hire any lawyers
to fight their case just because a resolution was passed by the Bar Association of Coimbatore;
that no member of the concerned Coimbatore Bar Association would defend the accused

13
Article 14, Indian Constitution.
14
Shivaraj, ‘Principles of Natural Justice in Indian Constitution’ <
http://www.legalservicesindia.com/article/1519/Principles-of-Natural-Justice-In-Indian-Constitution.html>
accessed on 23 April 2020.
15
Article 21, Indian Constitution.

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policemen in the criminal case filed against them, due to the previous assault done on some
lawyers by the policemen. The fundamental right of the policemen were clearly violated in
this case and the resolution passes by the Bar Association is not constitutional at all.

CRITICAL OVERVIEW OF JUDGEMENT

Professional ethics needs an attorney not to deny a brief, unless a client is not able to pay his
fee and the attorney is not otherwise involved i.e. there is a possibility of conflict of interest.
Consequently, the action taken by any bar association to pass such a resolution that none of
its members would appear on the ground for a specific accused whether on the ground of
being a police officer or on the ground of being a convicted terrorist, a rapist, a mass killer,
etc., is contradictory to all the standards of the Constitution, the Legislation and professional
ethics. It is against the Bar's great values which have always stood up to defend people
accused of a crime. Indeed such a resolution is a mockery to the legal community.

In the words of Markandey Katju, “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. It is the duty of a lawyer to defend no
matter what the consequences, and a lawyer who refuses to do so is not following the
message of the Gita.”16

REFERENCES

 ‘A. S. Mohammed Rafi V. State of Tamil Nadu’, <

https://indiankanoon.org/doc/1355688/> accessed on 23 April 2020.

16
‘A. S. Mohammed Rafi V. State of Tamil Nadu’, < https://indiankanoon.org/doc/1355688/> accessed on 23
April 2020.

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  ‘A. S. Mohammed Rafi V. State of Tamil Nadu’, <
https://taxpublishers.in/Ency_ST/ST_Judg_Show?78190000?a0> accessed on 23
April 2020.
 A. S. Mohammed Rafi v. State of Tamil Nadu, AIR 2011 SC 308.
 ‘A. S. Mohammed Rafi V. State of Tamil Nadu’, <
https://indiankanoon.org/doc/1355688/> accessed on 23 April 2020.

 Ibid.

 ‘Sixth Amendment’, Legal Information Institute <

https://www.law.cornell.edu/constitution/sixth_amendment> accessed on 23 April
2020.
 ‘A. S. Mohammed Rafi V. State of Tamil Nadu’, <
https://indiankanoon.org/doc/1355688/> accessed on 23 April 2020.
 Ibid.
 Ibid.
 Markandey Katju, ‘Duty to Defend’ The Hindu (Delhi, 21 September 2018) <
https://www.thehindu.com/opinion/op-ed/duty-to-defend/article24998250.ece>
accessed on 23 April 2020.
 Bar Council of India Rules, Part 6, Chapter 2, Rule 11.
 Markandey Katju, ‘A dirty job, but sombody’s gotta do it’ Hindustan Times ( Delhi,
6 January 2013) < https://www.hindustantimes.com/india/a-dirty-job-but-somebody-
s-got-to-do-it/story-Y7F2YWi0GcaoYe0irkQ4KM.html> accessed on 23 April 2020.
 Article 14, Indian Constitution.
 Shivaraj, ‘Principles of Natural Justice in Indian Constitution’ <
http://www.legalservicesindia.com/article/1519/Principles-of-Natural-Justice-In-
Indian-Constitution.html> accessed on 23 April 2020.
 Article 21, Indian Constitution.
 ‘A. S. Mohammed Rafi V. State of Tamil Nadu’, <
https://indiankanoon.org/doc/1355688/> accessed on 23 April 2020.

ABOUT THE AUTHOR

Aastha Sharma is pursuing B.A.LL.B (Hons.) from National Law University Odisha. She is
currently an intern in ProBono India. She is the member of the Legal Aid Society of National
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Law University Odisha and also a research-member in the Centre for Tribal Studies of
National Law University, Odisha. She has interests in Human Rights, International
Humanitarian Law, Criminal Law and Constitutional Law. By being part of Team ProBono,
she is contributing to society through legal aid.

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