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No Accused Can Be Denied Right To Legal Representation

At the outset, I must say that no matter how heinous the crime may be, no accused can be denied the right to legal representation under any circumstances and no lawyer can refuse a brief unless he/she is engaged in some other case as per the legal professional ethics which many of those in the legal profession fail to appreciate. No matter how strongly a lawyer may feel in any particular case, he/she cannot refuse to defend a case unless there are strong and compelling reasons nor can a resolution be passed by any Bar under any circumstances whatsoever forbidding others to defend a particular accused for being involved in a very heinous crime which jolted the entire society as a whole. Let us be very clear on this.

We had heard some years back how the Saket City Bar Association passed a resolution exhorting lawyers to desist from defending the accused in the brutal gang rape incident in our national capital which shocked the entire nation. This is something which the lawyers must refrain from doing because it goes against the professional ethics. To substantiate my valid argument, I would cite here the eminent legal wizard and former Attorney General of India late Soli J Sorabjee who minced no words in making the picture clear on this by pointing out in the editorial of “The Sunday Express” dated January 13, 2013 that, “The resolution passed by a City Bar Association calling upon lawyers to refrain from appearing for the defence of the accused in the rape case betrays gross misconception about the role and obligation of a lawyer. Article 21 of the Constitution guarantees fair trial to every person. Denial of legal representation is tantamount to denial of fair trial. Constitutional guarantees cannot be jettisoned because of the heinousness of a crime. A lawyer who appears for an accused does not subscribe to the innocence of his client. In fact, it is improper and unprofessional for a lawyer to say that he is convinced about the innocence of his client. It is not the function of a lawyer to judge the guilt or innocence of an accused. That is the function of the court. The lawyer’s function is to take all legal defences and pleas which in law are available to an accused person and which the accused could have taken if he had the requisite legal training and competence. This is a well recognized principle. The great fearless advocate Thomas Erskine who appeared for Thomas Paine, who was charged with serious offences against the Crown, was severely criticised for his defence of Paine. Erskine’s reply is memorable. “If the advocate refuses to attend, 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 judgment. I will for ever, at all hazards, assert the dignity, independence, and integrity of the English Bar; without which, impartial justice can have no existence”. Erskine’s example should be emulated in all democratic countries committed to dispensation of impartial justice as in the case of our country.”

Needless to say, late Sorabjee is not alone in holding such pragmatic views which are completely in consonance with our legal professional ethics and our Constitution. Justice Markandey Katju whom all admire for his legal acumen and who is an eminent former judge of Supreme Court also known for his excellent and fearless decisions and is also the former chairman of the Press Council of India also holds similar such views. While delivering the judgment in the landmark case of AS Mohammad Rafi v State of Tamil Nadu (2011) 1 SCC 688, para 24, Justice Markandey Katju  minced absolutely no words in pointing out unequivocally that, “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 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.”

What more should I say on this? There is no need also as I cannot be above them whom I have quoted who are internationally acclaimed legal luminaries and will speak nothing but the gospel truth only! We have to adhere to it always.

 

At the same time, I would like to add now that many times those lawyers who in consonance with the highest professional ethics have ventured in defending terror suspects have had to face all types of risk and innumerable problems which should not have been the case and they should rather have been revered as they have set an outstanding example for others to follow. To substantiate what I have said, I would like to cite here from what I read in “The Indian Express” dated October 2, 2012 that, “Lawyers attacked – on streets, in police stations, inside courtrooms – When legal defence of a terror suspect is seen as a betrayal of the nation” on page 1 and 2 by Muzamil Jaleel. He is at pains in the extreme to point out that, “A 65-year-old lawyer in Ujjain was beaten inside the court room in front of the judge. In Indore, an advocate found that his junior for three months was actually a sleuth from Crime Branch. The police in Thiruvananthapuram arrested and “tortured” a 43-year-old lawyer. The common thread in the stories of all these lawyers is that they represent Muslim men accused of being terrorists or members of SIMI. It’s not just the system that has turned their back on them, even the legal defence of a terror suspect is seen as a betrayal of the nation – with lawyers facing hostility and attacks on the streets, in police stations and inside courtrooms. In 2008, Noor Mohammad went to Dhar district in 2008 to represent a few alleged SIMI activists. “The bar association there had passed a resolution saying they would neither allow any lawyer from their bar to represent these suspects nor let anybody come from outside.” He was at the entrance of the court, Mohammad says, when a group of BJP, VHP and Bajrang Dal activists started beating him. “I somehow ran inside the court. I told the magistrate about the attack. He didn’t say anything. By then, lawyers inside the courtroom started kicking and pushing me. The magistrate did ask them to stop. But they didn’t and the magistrate sahib didn’t take any action.” Three months later, Mohammad says, he went to Dhar again to pursue the bail application of his clients because the prosecution had not filed government sanction within the stipulated time. “The prosecution submitted the sanction as soon as they saw me and our bail plea was rejected. As I was leaving, a large group of Sangh activists beat me up. They hit me on my head and I fell unconscious … At the hospital, the police offered to take me home to Ujjain under their protection. They said Sangh activists would come and attack me inside the hospital as well. I was scared and decided to go with them. On the way, they stopped at a police station, where they told me to give in writing that I had not been attacked by anybody or else they would drop me on the road and leave me to my fate. I was scared and saw no way of getting out of Dhar alive without police protection.  So I signed. Then they dropped me at Ujjain,” he says. Because it was impossible for him to go to Dhar, he sought transfer of the case. A year later, the case was transferred to Indore. “When the people who assassinated Indira and Rajiv Gandhi have a right to defend themselves, why not these boys? The police have no evidence against them and they know their concocted stories will fall flat, that’s why they hate to see a defence lawyer,” Noor Mohammad says. He gives the example of a case regarding an alleged training camp at Unhel in which five men are in jail. “The police arrested these men in September 2008 saying they were running an arms training camp at Unhel. They said it was happening at three in the night. They even claimed to have recovered an air gun allegedly used to give arms training. There was a huge hue and cry because the place where the police had claimed that the camp existed is a field with roads around it and with constant public movement. Realising that the story could not stick for too long, the police came up with another place. They said the training camp was being held in a narrow alley near the mosque. These men were given five-year imprisonment,” Mohammad says. Then something very “interesting” happened, he adds. The MP government released them after serving half of their term as amnesty for good conduct on Republic Day last year. “The government came under so much pressure from the Sangh Parivar that within days of their release, they (government) issued another circular saying that people arrested for SIMI links were barred from such amnesty. They were re-arrested. We petitioned before the high court. This appeal is pending for the past year and a half years and these five men have almost completed their terms,” the advocate says. The process itself has become punishment, Noor Mohammad explains, giving the example of cases related to 153A of the IPC. “Look anywhere in the country, this section is generally invoked against anything, a speech or written material, that has potential to create communal disharmony. And the accused persons get bail immediately. But here (in MP ), it takes years.” A lawyer in Ujjain since 1973, Noor Mohammad admits “consistent pressure” to stay away from such cases. “Even my family has been asking me to leave these cases. But I know these Muslim boys are being constantly booked in fictitious cases. I am sure if legal processes are followed, not a single case can stand the scrutiny of the courts.”

 

Truth be told, the saga does not end here only. There are many more such cases which most of the times go unnoticed. In the same newspaper which I have just quoted above, there are few more such cases which have been illustrated and which I will again quote to reinforce my point made in above paras. To start with , the case of Wajid Ali of Indore is illustrated. Noting that anybody representing those accused of SIMI links is seen with suspicion, 61-year-old Ali tells the story of his junior who turned out to be a Crime Branch man. “I had this junior who was working with me for three months. One day, a relative of mine, who is a policeman, came to see me. He told me that my junior is a policeman working in the Crime Branch. I was shocked and angry. Later, I received a phone call from this junior and he admitted that he was sent to keep tabs on me and my clients.”

But this is nothing. There are many more serious cases which again I will quote from the same newspaper “The Indian Express” page 2 dated October 2, 2012 and now I will begin with Kuttichal Shahnawas of Thiruvananthapuram. A 43-year-old Thiruvananthapuram-based lawyer, Shahnawas has represented several Muslim men arrested for alleged SIMI links, including in the Hubli case of 2007. “I had gone to represent them in the Hubli case, where 16 Muslim men were held from different parts of the country for their alleged SIMI and terror links. This is when the police and the government started accusing me of representing anti-national cases,” he says. The cases in which he has represented Muslim youngsters before the UAPA tribunal include the Panayikulam one involving an alleged secret meeting of SIMI activists at Panayikulam near Aluva, Kerala (August 15, 2006), and the Vagamon training centre case (a secret training camp near Idukki allegedly held in 2007). Shahnawas’s troubles began when the newspaper Madhayamam carried a report in January this year, exposing how the Kerala Police had put the email accounts of 285 citizens under surveillance, 250 among them prominent Muslims with no previous criminal record. “These email accounts that were put under surveillance included my account as well. The report led to a political storm,” he says. But instead of investigating the surveillance, the government ordered an inquiry into how the list was leaked. Two police officers were held responsible. Then the police turned on Shahnawas. On April 30 this year, he was picked up from his home and remanded in police custody. The police accused Shahnawas of masterminding the “theft” of the surveillance list and leaking it to a senior journalist of Madhyamam. “It was a strange accusation. My own email accounts were part of the surveillance list. I am a victim of this illegal surveillance. But they arrested me,” says Shahnawas. What was even stranger, says the lawyer, was that while he was in custody, the police didn’t mention the email account surveillance case. “They only kept asking me to stay away from cases against Muslim men who had been booked in alleged terror cases,” he says. Shahnawas got out on bail nine days later. “I told the magistrate everything – that I had been framed because the police didn’t want me to represent my clients. He listened but didn’t say anything.” It was his lawyer-friend Sasthamangalam Ajith who helped him, Shahnawas says, “The Bar didn’t show any support even when I filed a written complaint regarding the police harassment.”

Adding more to it, the last case that I would now cite here from the same newspaper mentioned above is that of Prem Kishen Sharma of Jaipur. It is stated that, “In 2008, the Jaipur High Court Bar passed a resolution against representing any terror suspect. The situation, however, changed when two top lawyers decided to oppose the resolution. Advocate Prem Kishen Sharma, who has been practising since 1958, termed it wrong. “Everybody has a right to a legal defence and I made it very clear that I don’t agree with the boycott,” he says. It helps his case that another top Jaipur advocate, Ajay Jain, backed him. Sharma hasn’t faced any hostility in the court, though. “Many of these younger lawyers have a mob mentality. How can a lawyer question another lawyer’s right to do his professional work?” he says.”

I would also like to recollect here that when certain lawyer bodies declined to take late Mohammad Ajmal Amir Kasab, the lone militant to be captured alive in the Mumbai terror attack case, senior, eminent and one of India’s most distinguished lawyer Ram Jethmalani came out very strongly against it. He maintained unequivocally that no lawyer has the right to say that he will not defend an accused. “There is the express rule of the Bar Council of India that no lawyer shall refuse to defend a person on the grounds that it will make him unpopular. That is something that should never worry a lawyer. No lawyer worth the name should even talk about this kind of a thing,” Jethmalani said and asked the legal community not to worry about peer criticism while taking up such cases. He further stated that, “A lawyer should be able to tell him ( the terrorist ) that either hanging or life imprisonment is your option. If you want me to tell the court that you should receive life imprisonment I am prepared to do my best.”

 

It also must be reiterated that the job of a lawyer is not to hold anyone guilty or innocent because that job is best left for the judge to decide. A lawyers job is only to present the facts of the case before the court in the best possible manner and advance all possible arguments to strengthen his/her clients case. It is pertinent to mention here what I read in the internet on this by CS Jacob who very immaculately argued that, “Legal aid is like medical aid or giving food to the person inspite of him being terrorist. Can a doctor say he won’t attend to Kasab for the reason that he has committed mass murders in cold blood? Just as a doctor by treating him does not guarantee cure, a lawyer also does not assure his client that he would make him set free. The Bar Association’s stand not to give legal aid is against professional ethics. It should be left to the individual lawyers to defend Kasab or not. Further, it is in India’s interest that Kasab is given a fair trial and the crimes he committed and the motivation comes before an open court for the entire world to see, than as a press release from the Crime Branch of the confessions said to have been made by him while in custody.”

I would also like to narrate here the esteemed views of Kanad Bagchi which again I read in the internet and which run as follows: “A lawyer’s primary duty is to be absolutely loyal to his client despite the fact whether he has actually done the wrong or not , because that’s for the court to decide. A lawyer should perform his primary duty to safeguard the interests of his client. Every person has the right to be heard and the lawyer makes sure that the right is given to him. After that if he is proved to be the wrong doer punish him, but if he has not been proved so then he must be acquitted. A lawyer just brings the case in front of the court, he doesn’t decide the case in favour of his client, so the statement made by Jethmalani is absolutely true and justified. His responsibility towards his client whoever it may be is justified.”

We also cannot be oblivious of the fundamental canon of criminal jurisprudence viz., the presumption of innocence of an accused till he is found guilty. Article 22 (1) of the Constitution explicitly provides that no person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice. This clearly implies that if any accused wants any particular lawyer to defend his/her case, the lawyer cannot refuse to do so unless there are bonafide reasons for doing so. Thus it is obligatory on lawyers to defend the accused no matter how heinous the crime may be and clearly personal feelings cannot and should not overweigh professional ethics and professional duties. On an equal footing, I would say that it is the duty of the Bar Council of all concerned Bars to desist from passing any resolution whereby it is undertaken by the lawyers not to defend or provide legal aid to a particular accused who is charged of committing a very heinous crime.

 

In my personal capacity, I abhor terrorists the most but in my professional capacity as a lawyer, I too cannot refuse to defend an accused who is charged of being involved in terror acts. By refusing to defend him, I am pronouncing him guilty much before even his actual trial has commenced. This is just not done under any circumstances. No policeman or lawyer or anyone else, not even a judge can declare any particular accused guilty unless and until his/her proper trial takes place in court and both sides are heard in a free and fair manner and accused is given the full opportunity to defend himself. Even after that the evidence from both sides are to be dispassionately analysed and only then can a judgment be arrived at and even then the accused has a right to appeal to higher court and be presumed innocent until he/she is finally convicted by the Apex Court. This is exactly what many of us fail to appreciate and fall an easy prey to “lynch mob mentality”.

Let us not forget what the Supreme Court said in a landmark judgment of Sukhdas v Union Territory of Arunachal Pradesh in 1986 that, “Free legal assistance at state cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty.” Also, how can we be oblivious of the clinching fact that Article 39A of Constitution mandates free legal aid and equal justice. Not stopping here, Section 303 and Section 304 of the Criminal Procedure Code talks about the right of an accused to be defended by a lawyer and the state’s duty to provide legal aid. “The exercise of this fundamental right is not conditional upon the accused applying for free legal assistance,” as per the landmark judgment delivered in 1986 in Sukhdas’s case which further added that a conviction of guilt in such cases cannot be sustained. The Supreme Court in this case further ruled that, “The conviction reached without informing the accused that they were entitled to free legal assistance and inquiring from them whether they wanted a lawyer to be provided to them at State cost which resulted in the accused remaining unrepresented by a lawyer in the trial is clearly a violation of the fundamental right of the accused.” It also cannot be ignored that in recent years there have been many such instances when the Bombay high court didn’t dither in sending back the case to be retried only because the accused was not represented by a lawyer and the most famous being that which involved the murder of a doctor by a mother – daughter duo in Pune where the high court ordered a retrial.

It is not always true that those charged of terror acts are actually terrorists. The best example that I would like to cite here is of Mohammad Aamir Khan from Delhi , Iftikhar from Kashmir and Syed Maqbool Shah from Srinagar who were acquitted after languishing for 14 years in prison and similarly Kanpur’s Syed Wasif Haider who was released after eight years in jail. Even after acquittal, they are without jobs and are considered with a lot of suspicion! Who will compensate for their ruined lives? What an unbeatable irony that while Aamir Khan was locked up in jail, his father died from a liver ailment and his mother also became very weak and mentally shattered and to top it all, they had to face a boycott by their neighbours and community. I was completely moved on reading his harrowing saga and arrived at the sane conclusion that it is not necessary that just because someone is charged by the police with being involved in terror acts, he is guilty and it is the legal duty of each and every lawyer to defend every case even if it pertains to terror related charge  with full enthusiasm and leave the job of pronouncing guilty or innocent on the concerned judge. Even after being released , he did not rant any strong feeling and said that all he sought today was a job and a chance to start his life afresh with honour and reiterated his undying love for his great motherland! He very rightly asked that why a country that can have a rehabilitation policy for surrendered militants doesn’t have one for innocent people who sometimes end up spending decades in jail? Our government must seriously brood over it! Lawyers and Bar Associations too must desist from publicly declaring someone guilty before judgment is pronounced or by getting extremely biased by media trials and passing resolutions of not defending a particular accused as it goes completely against the professional ethics which all lawyers and especially Bar Associations must abstain from because that would not serve in any way in providing free and fair trial to the accused and would rather set an unhealthy precedent which would be repeated time and again on one pretext or the other!

Finally, on a concluding note, I would quote the eminent legal luminary and the former Chief Justice of India and the former chairman of the National Human Right Commission Justice JS Verma who while answering to a journalist Seema Chisthi about the increasing clamour to not defend a lot of accused people, especially in terror cases and quoted in “The Sunday Express” dated February 3, 2013 lamented that, “I am personally disturbed that there should be such a trend. It is wrong. In a civilized system, even the worst criminal, accused of the most heinous crime, is entitled to a fair hearing. That is what establishes the credibility of the judicial process. For example, with Raju Ramachandran appearing for Ajmal Kasab, who can say that he was not represented properly? There is a juristic principle involved: once the entire Bar refuses to appear, you condemn the man before the trial has commenced and that is not consistent with civilized jurisprudence. They should be defended, and they should be given the best legal advice so that ultimately, if they are convicted, no one can say that they didn’t have proper legal advice.”

It cannot be glossed over that even the Karnataka High Court had in 2020 observed that it is unethical and illegal for lawyers to pass resolutions against representing accused in court. This was after local bar associations had objected to four students arrested for sedition being defended in court. The Hubli Bar Association submitted that it would take back a resolution it had passed on February 15 as the Karnataka High Court asked the association to place on record a resolution withdrawing the earlier one.

All said and done, it is in the fitness of things to say that all the accused have the right to legal aid and to be represented by a lawyer. If a lawyer does not find his conscious to be permitting him to defend a case he can then certainly refuse but it would be just not in order if the same lawyer compels or cajoles other lawyers also not to defend a particular accused just because he/she is found to be accused in a heinous offence. It is the job of the Judge to decide and the job of a lawyer is only to argue the case of his/her client to the best of his/her ability! Similarly, it would be just not in order if the Bar Association of any Bar passes resolution for all lawyers not to defend a particular accused for being an accused in a very heinous offence! This has been reiterated time and again by many top and experienced lawyers of the Supreme Court like late Ram Jethmalani, late Soli J Sorabjee among others! So we all who are in the legal profession need to abide strictly by it and ought to always remember that the right of accused to legal aid has always to be upheld and no accused can be denied the right to legal representation under any circumstances!

Sanjeev Sirohi

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