A.S. MOHAMMED RAFIversusSTATE OF TAMIL NADU REP. BY HOME DEPT. AND ORS.

                  [2010] 14 (ADDL.) S.C.R. 792


A                    A.S. MOHAMMED RAFI
                                 v.
      STATE OF TAMIL NADU REP. BY HOME DEPT. AND
                           ORS.
             (Criminal Appeal No.2310 of 2010)
B                      DECEMBER 6, 2010
    [MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.]

       Constitution of India, 1950: Right to defend and the
C corresponding duty of lawyer- Held: Every person has a right
  to be defended in a courl of law and correspondingly, it is the
  duty of the lawyer to defend him - Resolutions by Bar
  Associations that its members would not appear for a
  parlicular accused is against the norms of the Constitution and
D professional ethics - Advocates - Ethics - Professional
  ethics - Bar Council of India Rules, 1975 - Parl VI, Chapter
  II.

      The question which arose for consideration in the
  instant appeals was regarding the legality of the
E resolutions passed by several Bar Associations that their
  members would not defend a particular person or
  persons 'in a particular case.

             Disposing of the appeals, the Court
F
      HELD: 1.1. The resolutions were wholly illegal and
  against all the traditions of the Bar, and against the
  professional ethics. Every person, howsoever, wicked,
  depraved, vile, degenerate, perverted, loathsome,
G 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.
  [Para16] [796-E-F]


H                               792
 A.S. MOHAMMED RAFI v. STATE OF TAMIL NADU                793
            REP. BY HOME DEPT.
     1.2. Professional ethics require that a lawyer cannot       A
refuse a brief, provided a client is willing to pay his fee,
and the lawyer is not otherwise engaged. Therefore, 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 the               B
accused 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. It is against the great traditions of the
Bar which has always stood up for defending persons              c
accused for a crime. Such a resolution is, in fact, a
disgrace to the legal community. All such resolutions of
Bar Associations in India are declared to be null and void
and the right minded lawyers sh.ould ignore and defy
such resolutions, if they want democracy and rule of law         D
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. The Supreme Court Registry is directed to circulate
copies of this judgment/order to all High Court Bar
Associations and State Bar Councils in India. The High           E
Court Bar Associations are requested to circulate the
judgment/order to all the District Court Bar Associations
in their States/Union territories. [Paras 32, 33) [801-F-H;
802-A-B]
                                                                 F
    Powell v. Alabama 287 US 45 1932; In Re Anastaplo
366 US 82 (1961) - referred to.
                     Case Law Reference:
    287 us 45 1932            referred to          Para 23       .G
    366 us 82 (1961)          referred to          Para 26
    CRIMINAL ORIGINAL JURISDICTION : Criminal Appeal
No. 2310 of 2010.
                                                                 H
    794    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A       From the Judgment and Order dated 29.04.2008 of High
    Court of Madras in W.P. No. 716 of 2007.

                                  WITH

    Civil Appeal No. 10304-10308 of 2010.
B
          Altaf Ahmad (AC), K.V. Viswanatha, P.H. Parekh, R.
    Balasubramaniam, K.V. Viswanathan, B. Balaji, Satya Mitra
    Garg, N. Raja Raman, Veermanigandhan, Sanjay Gautam,
    Pallavi Srivastava, N. Rajaraman, P.V. Dinesh, Promila, S.
c   Thananjayan, N. Shoba, Sriram J. Thalapathy, Adhimoolam,
    S.P. Parthasarathy, B. Balaji and Satya Mitra Garg appearing
    Pa ties.

          The Judgment of the Court was delivered by

D         MARKANDEY KATJU, J.

    CRIMINAL APPEAL NO. 2310 of 2010

    (arising out of S.L.P.(Crl.) No.6820 of 2008)

E         1. Leave granted .

       . 2. Heard learned counsel for the parties.

       3. This appeal has been file against the impugned
  judgment and order of the High Court of Madras dated
F 29.4.2008 passed in Writ Petition No.716 of 2007.

        4. The facts have been set out in the impugned judgment
    and order and hence we are not repeating the same here.

G         5. The High Court had appointed a Commission of Enquiry
    headed by Hon'ble Mr. Justice K.P. Sivasubramaniam, a
    retired Judge of the High Court of Madras which is on record.

        6. During the course of the proceedings today, we had
    requested Mr. Altaf Ahmad, learned senior counsel, to assist
H
 A.S. MOHAMMED RAFI v. STATE OF TAMIL NADU                  795
  REP. BY HOME DEPT. [MARKANDEY KATJU, J.]
us as Amicus Curiae in this case and we are grateful to Mr.        A
Altaf Ahmad and we appreciate his assistance to us in this
case.

     7. As suggested by Mr. Altaf Ahmad, without going into the
merits of the controversy, we direct that a sum of Rs.1,50,000/    B
- (Rs. One Lakh and Fifty Thousand only) be given to the
appellant by the State of Tamil Nadu as compensation. We
have been informed that the appellant had already received a
sum of Rs.50,000/- (Rs. Fifty Thousand only) and hence the
remaining sum of Rs.1,00,000/- (Rs. One Lakh only) shall be
paid by the State of TamiLNadu to the appellant within a period    C
of two months from today.

     8. FIR No.2105 of 2006 dated 15.12.2006 on the file of
B-4 Police Station (Law and Order), Race Course Police
Station, Coimbatore city against the appellant stands quashed.     D

      9. To put quietus to the matter FIR No.2106 of 2006 on the
file of B-4 Police Station (Law and Order), Race Course Police
Station, Coimbatore city against the police also stands quashed
under Article '142 of the Constitution of India.
                                                                   E
    10. The impugned judgment and order of the High Court
is substituted by our order. The appeal is disposed off
accordingly.

CIVIL APPEAL NOS. 10304-10308 of 2010                              F
(arising out of S.L.P.(C) Nos.26659-26663 of 2008)

     11. Leave granted.

    12. Mr. P.H. Parekh, learned senior counsel, appears for       G
the Coimbatore Bar Association.

     13. We agree with the submission of Mr. P.H. Parekh that
the observations made against the Coimbatore Bar Association
in para 13 of the impugned judgment and order of the High
                                                                   H
    796   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   Court should be quashed. We order accordingly.

       14. Before parting with this case, we would like to comment
  upon a matter of great legal and constitutional importance which
  has caused us deep distress in this case. It appears that the
  Bar Association of Coimbatore passed a resolution that no
B member of the Coimbatore Bar will defend the accused
  policemen in the criminal case against them in this case.

       15. Several Bar Association all over India, whether High
  Court Bar Associations or District Court Bar Associations have
C 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
o 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.

     ' 16. In our opinion, such resolutions are wholly illegal,
  agalnst all traditions of the bar, and against professional ethics.
E 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.
F
       17. We may give some historical examples in this
  connection.

        18. When the great revolutionary writer Thomas Paine was
G jailed and tried for treason in England in 1792 for writing his
  famous pamphlet 'The Rights of Man' in defence of the French
  Revolution the great advocate Thomas Erskine (1750-1823)
  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
  accepts the brief, he would be dismissed from office.
H
 A.S. MOHAMMED RAFI v. STATE OF TAMIL NADU                  797
  REP. BY HOME DEPT. [MARKANDEY KATJU, J.]
Undeterred, Erskine accepted the brief and was dismissed           A
from office.

     19. However, his immortal words in this connection stand
out as a shining light even today :

           "From the moment that any advocate can be               B
    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
    are at an end, If the advocate refuses to defend from what
    he may think of the charge or of the defence, he assumes       C
    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              D.
    assumptions, and which commands the very Judge to be
    his Counsel"

      20. Indian lawyers have followed this great tradition. The
revolutionaries in Bengal during British rule were defended by     E
our lawyers, the Indian communists were defended in the Meerut
conspiracy case, Razakars of Hyderabad were defended by
our lawyers, Sheikh Abdulah and his co-accused were
defended by them, and so were some of the alleged assassins
of Mahatma Gandhi and Indira Gandhi. In recent times, Dr.
                                                                   F
Binayak Sen has been defended. 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 l.N.
trials in the Red Fort at Delhi (November 1945 - May 1946).        G

     21. However, disturbing news is coming now from several
parts of the country where bar associations are refusing to
defend certain accused persons.
                                                                   H
    798    SUPREM!: COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A         22. The Sixth Amendment to the US Constitution states "In
    all criminal prosecutions the accused shall enjoy the right
    ....... to have the assistance of counsel for his defence".

       23. In Powell vs. Alabama 287 US 45 1932 the facts were
  that nine illiterate young black men, aged 13 to 21, were
8
  charged with the rape of two white girls on a freight train
  passing through Tennessee and Alabama. Their trial was held
  in Scottsboro, Alabama, where community hostility to blacks· ·
  was intense. The trial judge appointed all members of the local
C bar to serve as defense counsel. When the trial began, no
  attorney from the local bar appeared to represent the
  defendants. The judge, on the morning of the trial, appointed a
  local lawyer who undertook the task with reluctance. The
  defendants were convicted. They challenged their convictions,
  arguing that they were effectively denied aid of counsel
D because they did not have the opportunity to consult with their
  lawyer and prepare a defense. The U.S. Supreme Court
  agreed. Writing for the court, Mr. Justice George Sutherland
  explained:

E               "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
F         the trial as to amount to a denial of effective and
          substantial aid ..... "

          24. In the same decision Justice Sutherland observed:

                  "What, then, does a hearing include? Historically and
G         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
H         intelligent and educated layman has small and sometimes
 A.S. MOHAMMED RAFI v: STATE OF TAMIL NADU 799
  REP. BY HOME DEPT. [MARKANDEY KAT JU, J.]
    no skill in the science of law. If charged with crime, he is      A
    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
    orr trial without a proper charge, and convicted upon
    incompetent evidence, or evidence irrelevant to the issue         B
    or otherwise inadmissible. He lacks both the skill and
    knowledge adequately to prepare his defense, even though
    he have a perfect one. He requires the guiding hand of
    counsel at every step in the proceedings against him.
    Without it, though he be not guilty, he faces the danger of       c
    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       D
    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".

     25. In this connection we may also refer to the legendry         E
American lawyer Clarence Darrow (1857-1930) who was
strongly of the view that every accused, no matter how wicked,
loathsome, vile or repulsive he may be regarded by society has
the right to be defended in court. Most lawyers in America
refused to accept the briefs of such apparently wicked and            F
loathsome persons, e.g. brutal killers, terrorists, etc. but
Clarence Darrow would accept their briefs and defend them,
because he was firmly of the view that every persons has the
right to be defended in court, and correspondingly it was the
duty of the lawyer to defend. His defences in various trials of       G
such vicious, repulsive and loathsome persons became
historical, and made him known in America as the 'Attorney for
the Damned'; (because he took up the cases of persons who
were regarded so vile, depraved and despicable by society that
they had already been condemned by public opinion) and he             H
    800     SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.


A   became a legend in America (see his biography 'Attorney for
    the Damned').

       26. In Re Anastaplo, 366 US 82 (1961 ), Mr. Justice Hugo
  Black of the US Supreme Court in his dissenting judgment
B praised Darrow and said :

                 "Men like Lord Erskine, James Otis, Clarence
          Darrow, and a multitude of others have dared to speak in
          defense of causes and clients without regard to personal
          danger to themselves. The legal profession will lose much
c         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."

D       27. At the Nuremberg trials, the Nazi war criminals
    responsible for killing millions of people were yet defended by
    lawyers.

        28. We may also refer to the fictional American lawyer
  Atticus Finch in Harper Lee's famous novel 'To Kill a Mocking
E Bird'. In this novel Atticus Finch courageously defended a black
  man who was falsely charged in the State of Alabama for raping
  a white woman, which was a capital offence in that State.
  Despite the threats of violence to him and his family by the
  racist white population in town, and despite social ostracism
F by the predominant while community, Atticus Finch bravely
  defended that black man (though he was ultimately convicted
  and hanged because the jury was racist and biased), since he
  believed that everyone has a right to be defended. This novel
  inspired many young Americans to take up law as a profession
G in America.

          29. The following words of Atticus Finch will ring throughout
    in histo"ry :

                "Courage is not a man with a gun in his hand. It is
 A.S. MOHAMMED RAFI v. STATE OF TAMIL NADU                     801
  REP. BY HOME DEPT. [MARKANDEY KAT JU, J.]
    knowing you are licked before you begin, but you begin             A
    anyway and you see it through no matter what. You rarely
    win, but sometimes you do."

    30. In our own country, Article 22(1) of the Constitution
states:                                                                B

           "No person who is arrested shall be detained in
     custody without being informed, as soon as may be, of the
     grounds for which arrest nor shall he be denied the right
     to consult, and to be defended by, a legal practitioner of
     his choice".                                                      C

     31. Chapter II of the Rules framed by the Bar Council of
India states about 'Standards of Professional Conduct and
Etiquette', as follows :
                                                                       D
          "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'.                                                 E

      32. Professional 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              F
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.
It is against the great traditions of the Bar which has always         G
stood up for defending persons accused for a crime. Such a
resolution is, in fact, a disgrace to the legal community. We
declare that 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
                                                                       H
    802     SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A   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.

      33. The Registry of this Court will circulate copies of this
B judgment/order to all High Court Bar Associations and State
  Bar Councils in India. The High Court Bar Associations are
  requested to circulate the judgment/order to all the District
  Court Bar Associations in their States/Union territories.

           34. With these observations, these appeals are disposed
    of. No costs.

    D.G.                                      Appeals disposed of.