From UPSC perspective, the following things are important :
Prelims level : Right of an accused to be defended
Mains level : Professional ethics for Lawyers (Paper IV)
Recently the Karnataka High Court observed that it is unethical and illegal for lawyers to pass resolutions against representing accused in court. This is not the first time that bar associations have passed such resolutions, despite a Supreme Court ruling that these are “against all norms of the Constitution, the statute and professional ethics”.
What does the Constitution say about the right of an accused to be defended?
- Article 22(1) gives the fundamental right to every person not to be denied the right to be defended by a legal practitioner of his or her choice.
- Article 14 provides for equality before the law and equal protection of the laws within the territory of India.
- Article 39A, part of the DPSP, states that equal opportunity to secure justice must not be denied to any citizen by reason of economic or other disabilities, and provides for free legal aid.
What has the Supreme Court said about such resolutions by bar associations?
- The Supreme Court referred to writer Thomas Paine, who had been tried for treason in England in 1792.
- Thomas Erskine, Attorney General for the Prince of Wales, was warned of dismissal if he defended Paine, but still took up the brief, saying: “… 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…”
- The Supreme Court cited other historical examples of accused being defended — revolutionaries against British rule; alleged assailants of Mahatma Gandhi and Indira Gandhi; Nazi war criminals at the Nuremberg trials.
A matter of professional ethics
- The Supreme Court ruled that such resolutions are wholly illegal, against all traditions of the bar and against professional ethics.
- Every person however wicked, criminal, perverted or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly and it is the duty of the lawyer to defend him.
- It said such resolutions were against all norms of the Constitution, the statute and professional ethics, called these a disgrace to the legal community, and declared them null and void.
How are the professional ethics of lawyers defined?
- The Bar Council of India has Rules on Professional Standards, part of the Standards of Professional Conduct and Etiquette to be followed by lawyers under the Advocates Act.
- An advocate is bound to accept any brief in the courts or tribunals, at a fee consistent with his standing at the Bar and the nature of the case.
- The Rules provide for a lawyer refusing to accept a particular brief in “special circumstances”.
- Last year, The Uttarakhand HC clarified that these special circumstances refer to an individual advocate who may choose not to appear in a particular case, but who cannot be prohibited from defending an accused by any threat of removal of his membership of the bar association.