LexA.S. MOHAMMED RAFI versus STATE OF TAMIL NADU REP. BY HOME DEPT. AND ORS.
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A B [2010] 14 (ADDL.) S.C.R. 792 A.S. MOHAMMED RAFI v. STATE OF TAMIL NADU REP. BY HOME DEPT. AND ORS. (Criminal Appeal No.2310 of 2010) DECEMBER 6, 2010 [MARKANDEY KAT JU 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. F Disposing of the appeals, the Court 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 accused is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against B 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] Powell v. Alabama 287 US 45 1932; In Re Anastaplo 366 US 82 (1961) - referred to. Case Law Reference: F 287 us 45 1932 366 us 82 (1961) referred to referred to Para 23 . G 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 B Court of Madras in W.P. No. 716 of 2007. WITH Civil Appeal No. 10304-10308 of 2010. 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 KAT JU, 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. G 4. The facts have been set out in the impugned judgment and order and hence we are not repeating the same here. 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 ass
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