BACKGROUND

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 mis happenings, 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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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.

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.

JUDGEMENT OF THE COURT

The supreme court held ‘such resolutions are wholly illegal, against all traditions of the bar, and
against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted,
loathsome, execrable, vicious 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’.

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REASON OF THE JUDGEMENT

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 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.

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. 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, execrable, 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.”1 This judgement essentially indicates the
importance of the ‘Right to Representation’.

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DUTY TO DEFEND

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.”2 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, 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.

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PRINCIPLES 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.

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.

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ARTICLE 22(1) OF THE 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 THE INDIA CONSTITUTION

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.” 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.”

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

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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.

OPINION ABOUT THE CASE

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.”