PROFESSIONAL ETHICS

I have come across several instances of State Bar Councils and lawyers’ associations passing
resolutions prohibiting lawyers from appearing for certain persons. On 15 February 2020, the
Hubli Bar Association passed a resolution stating none of its members would defend three
Kashmiri students who had allegedly posted a pro-Pakistan video on social media and were
charged with sedition. The resolution was withdrawn on the order of the Hon’ble Karnataka
High Court. In 2019, Ranga Reddy Bar Association in Telangana said that it was their “moral
and social responsibility against the heinous crime” to not defend those accused of the rape
and murder of a veterinary doctor in Hyderabad. The scenario is grimmer when it comes to
terrorism. Lawyers pay a heavy personal price for defending alleged terrorists. Abbas Kazmi,
who was given the brief to defend Ajmal Kasab, faced constant threats by lawyers as well as
political parties. Advocate Shahid Azmi defended another accused in the Mumbai terror
attack, Faheem Ansari. Faheem was acquitted in May 2010, months after Shahid Azmi was
shot dead by gunmen inside his office. Shahid was killed because throughout his seven-year
long career, he defended those accused in terrorist attacks.

The pattern of resolutions, threats and violence towards Advocates defending persons of
heinous crimes is in flagrant violation of the Bar Council’s Standards of Professional
Conduct and Etiquette. Rule 11 of the Standards, under ‘Duty to the Client’, states:
“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 practise 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.”1

The law has been laid down with immense clarity by the Hon’ble Supreme Court in 2010. 2
The Court said, “such resolutions are wholly illegal, against all traditions of the bar, and
against professional ethics.” Highlighting Article 22(1) of the Constitution of India, the Court
stressed that all “right-minded lawyers should ignore and defy such resolutions if they want
democracy and rule of law to be upheld”. Over the course of time, the ruling has not been
honoured. In my humble opinion, it is essential to implement the Apex Court’s decree
effectively on the ground. My belief stems from the fact that mounting a defence for an
accused is not synonymous with supporting his alleged actions. This is best summed up by
the rule in the USA corresponding to the aforementioned Rule 11, which states, “A lawyer’s
1
Bar Council of India Rules, 1975, Part VI, Chapter II, Section II, Rule 11.
2
A.S. Mohammed Rafi v. State of Tamil Nadu Rep. by Home Dept., Criminal Appeal No. 2310 of 2010.
representation of a client, including representation by appointment, does not constitute an
endorsement of the client’s political, economic, social or moral views or activities.” 3
Additionally, the presumption of innocence is available to each and every accused, regardless
of the crime allegedly committed by them.

Further Discussion

Often, majoritarian undertones are evident in resolutions preventing lawyers from defending
those accused of terrorist attacks- especially if the accused is Muslim. Lawyers are also
intimidated and threatened by their peers when they defend those accused of crimes deemed
to be ‘anti-national’, such as sedition.

Secondly, the resolutions against defending those accused of heinous crimes, such as gang
rape or murder of a child, betray a mob mentality of punishing those who are considered
dispensable to the social order – lower class or lower caste men – as a symbolic sacrifice,
while leaving the systems of oppression that engender such crimes undisturbed.

3
American Bar Association ‘Model Rules of Professional Conduct’, Rule 1.2b.