Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2310 of 2010
(arising out of S.L.P.(Crl.) No.6820 of 2008)
A.S. Mohammed Rafi .. Appellant(s)
-versus-
State of Tamil Nadu .. Respondent(s)
Rep. by Home Dept. & Ors.
WITH
CIVIL APPEAL NOS. 10304-10308 of 2010
(arising out of S.L.P.(C) Nos.26659-26663 of 2008)
JUDGMENT
Markandey Katju, J.
CRIMINAL APPEAL NO. 2310 of 2010
(arising out of S.L.P.(Crl.) No.6820 of 2008)
1. Leave granted.
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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 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.
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 us as Amicus
Curiae in this case and we are grateful to Mr. Altaf Ahmad and we
appreciate his assistance to us in this case.
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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/-
(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 Tamil Nadu to the appellant within a period 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.
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.
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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
(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 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 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
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Coimbatore passed a resolution that no 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 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.
16. In our opinion, 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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17. We may give some historical examples in this connection.
18. When the great revolutionary writer Thomas Paine was 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. Undeterred, Erskine accepted the brief and was dismissed
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
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 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
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make all 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 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. 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 I.N.A.
trials in the Red Fort at Delhi (November 1945 - May 1946).
21. However, disturbing news is coming now from several parts of
the country where bar associations are refusing to defend certain
accused persons.
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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 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 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 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 :
"It is hardly necessary to say that the right to
counsel being conceded, a defendant should be afforded a
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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....."
24. In the same decision Justice Sutherland observed:
"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 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 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".
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25. In this connection we may also refer to the legendry 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 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 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 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 praised Darrow and
said :
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"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 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."
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 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 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 in America.
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29. The following words of Atticus Finch will ring throughout in
history :
"Courage is not a man with a gun in his hand.
It is knowing you are licked before you begin, but
you begin 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 :
"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".
31. Chapter II of the Rules framed by the Bar Council of India states
about `Standards of Professional Conduct and Etiquette', as follows :
"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".
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
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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. It is against the great traditions of the Bar which has always
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 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
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.
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34. With these observations, these appeals are disposed of. No costs.
..................................J.
(Markandey Katju)
.................................J.
(Gyan Sudha Misra)
New Delhi;
6th December, 2010
advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws
