A.S. Mohammed Rafi Vs
State of Tamil Nadu 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.
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.
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 ofRs.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-4Police 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.
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 13of 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 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 aright to be defended in a court of law and
correspondingly it is the duty of the lawyer to defend him.
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 Walesand 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.
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 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.
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 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". 1
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 loath some 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 : "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.
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 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 whore fuses 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.
34.
With
these observations, these appeals are disposed of. No costs.
..................................J.
(Markandey Katju)
..................................J.
(Gyan Sudha Misra)
New
Delhi;
6th
December, 2010
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