A.S. Mohammed Rafi vs.

State of Tamil
Nadu Rep. by Home Dept. and Ors.
(06.12.2010 - SC)

Appellants: A.S. Mohammed Rafi

Vs
Respondent: State of Tamil Nadu Rep. by Home
Dept. and Ors.
 ADDITIONAL INFORMATION

 Hon'ble Judges/Coram: Markandey Katju and Gyan Sudha Misra

 Counsels: For Appellant/Petitioner/Plaintiff: Satya Mitra Garg and N. Raja Raman,
Advs.
 For Respondents/Defendant: P.V. Dinesh, S. Thananjayan and N. Shoba, Advs.
 Subject: Criminal
 Decided On: 06.12.2010
 Case Note: Bar Council of India Rules, Part 6, Chapter II - Standards of
Professional Conduct and Etiquette--Bar Associations passing resolutions exhorting
lawyers not to accept briefs from particular persons is null and void. Professional
etiquette requires that a lawyer cannot refuse a brief, provided a client is willing to
pay his fee, and the lawyer is not otherwise engaged.
 Provisions Involved

 Article 22(1) of the Constitution of India

 Article 14 of the Constitution of India
 Article 21of the Constitution of India
 Rule 11 of Section II of Part VI of Bar Council Rules
framed under Section 49(1)(c) of the Advocates Act,
1961
 BACKGROUND OF THE CASE

 In 2010, in the State of Tamil Nadu there were regular instances of numerous
clashes between the Bar and the Police. As a result of such mishappenings, some
of the lawyers were assaulted by certain policemen. The matter between them
worsened and a criminal case was filed against the policemen in the Court, for
assaulting the lawyers and against the illegal means that they had adopted. When
the matter was to be tried in the Court, The Coimbatore Bar Association passed a
resolution claiming that no member of the Coimbatore Bar Association would
defend the accused police officers before the Court for the criminal case brought
against them. A Special Leave Petition was subsequently filed in the Supreme
Court of India, against the resolution passed by the Bar Association of
Coimbatore that no member of the concerned Bar Association of Coimbatore
would defend the accused policemen in the criminal case filed against them.
 FACTS
 In this particular case, the bone of contention is the resolution that was passed by
the Bar Association of Coimbatore stating that none of its members would defend
the accused policemen during the trial, which was the result of a criminal
complaint filed against the policemen as they had assaulted the lawyers. As a
result of this, a Special Leave Petition was filed by the policemen, in the Supreme
Court of India against that very resolution claiming that it violated the
Constitution of India, precisely Article 22(1); the Rule 11, Chapter 2, Part 6 of
the rules framed by the Bar Council of India, titled as the ‘Standards of
Professional Conduct and Etiquettes’; and the Professional ethics.
 ISSUES

 Whether the resolution passed by the Bar Association of Coimbatore is illegal and
against professional ethics?

 Whether a lawyer can refuse a brief if a client is willing to pay his fee and the
lawyer is not otherwise engaged ?

 Whether it is the duty of a lawyer to defend no matter what the consequences?

 APPELLANT’S ARGUMNETS

 Every citizen is entitled to the ‘Right to Representation’ and the resolution that
was passed by the Bar Association of Coimbatore stands in clear contradiction of
that.
 It is the duty of every legal practitioner to defend the people in all the situations,
except when there is conflict of interest i.e. they all have the ‘Duty to Defend’.
 The resolution violates the Article 22(1) of the Constitution of India, as the article
clearly states that the person in custody for a criminal charge can be defended by
a legal practitioner of his choice.
 The resolution also violates the fundamental rights of citizens stated in Article 14
and 21.
RESPONDENT’S ARGUMNETS

 The resolution passed by the Bar Association of Coimbatore was a result of the
assault done by the policemen on the Lawyers of the Bar.
 The resolution was passed keeping in mind the security issues that the lawyers
experienced.
 The lawyers felt threatened in the proximity of the policemen because of the
previous incidents of assaults on them and hence they could not represent the
policemen in the trial of the criminal case that was filed against them.
 RIGHT TO REPRESENTATION

 In the words of Judge Markandey Katju who presided over “A. S. Mohammed V. State of
Tamil Nadu” case in the Supreme Court, “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.”
 In the opinion held by the bench, such resolutions are wholly illegal, against all traditions of
the bar, and against professional ethics. Accused policemen had “Right to be defended”.
“When Bar Association of Coimbatore had passed a resolution to not to defend the accused
policemen in the criminal case against them, such resolution was wholly illegal, against all
the traditions of the bar and against professional ethics.
COMPARISON WITH U.S. (THEORY AND PRACTICE)

 We can also see the example of legendary American lawyer Clarence Darrow in this
regard. “He strongly believed that every accused, no matter how evil, loathsome, vile or
repulsive as the society may consider him to be, has the right to stand trial.
 The ‘Right to Representation’ is a universal right that has been guaranteed and is practiced
by all the democracies on a ground level. In USA, the same has been laid down in the 6th
Amendment as, “In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and District wherein the crime shall have
been committed, which District shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favour, and to have
the assistance of counsel for his defence.”
 DUTY TO DEFEND

 The duty to defend essentially means that it is the duty of the people, who are granted with the powers to defend any
person before the Court of Law, to defend them in each and every possible situation and they cannot deny access to
their services on any grounds, except when there is conflict of interest. This duty is universal and its importance has
been highlighted in both national and international arena.
 The anecdote involving Thomas Paine illustrates the vital principle of the Duty to Defend and access to legal
representation. Despite the government's warning, Paine's lawyer, Thomas Erskine, chose to defend him in court,
emphasizing that an advocate must always stand between the state and the accused. Erskine's statement highlights
the significance of legal representation, ensuring that justice is not influenced by personal opinions or biases. This
principle is relevant in cases like A. S. Mohammed v. State of Tamil Nadu, emphasizing the importance of fair
defense and upholding the liberties of individuals.
 according to the Rule 11 of Section II of Part VI of Bar Council Rules framed under Section 49(1)(c) of the
Advocates Act, 1961, it is provided that, “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.”
 PRINCIPLE OF NATURAL JUSTICE

 In the Constitution of India, nowhere the term “natural justice” has been used and yet it is the most
sacred principle of law on which the whole of the Indian legal system is based. The principle of
Natural Justice essentially means that the principles relating to the procedure are required to be
followed by authorities entrusted with the task of deciding disputes between the parties even when
no procedure is laid down by the rules. This principal is basically based on two Latin maxims:-
1. Nemo judex in causa sua- This maxim literally translates to “no-one should be Judge in his own
cause”.
2. Audi Alteram Partem- The literal derivation of this legal maxim is, “let the other side be heard as
well”.
 The principle of Natural Justice essentially makes sure that a person should be given a fair
opportunity to be heard and if we take the case of A. S. Mohammed Rafi V. State of Tamil Nadu, the
policemen in this case were denied access to the legal representation, by the Bar Association of
Coimbatore, in relations to the criminal appeal that was filed against them, on the grounds of some
prior clash that existed between the policemen and the lawyers.
 ARTICLE 22(1) OF INDIAN CONSTITUTION

 Article 22(1) of the Constitution states: "No person who is arrested shall be detained in
custody without being informed, as soon as may not be, of the grounds for such arrest nor
shall he be denied the right to consult, and to be defended by, a legal practitioner of his
choice".
 This fundamental right clearly states that each person has the right to be defended in the
Court of Law by a legal practitioner of his own choice. In this case the policemen were
denied access to the legal practitioners of their own choice because of a resolution that was
passed by the Bar Association stating that none of its members would take up the case of
the policemen because the policemen were previously indulged in assaulting some
lawyers. This is a clear violation of the fundamental right and the same cannot be
entertained by any Court of law.
 ARTICLE 14 OF INDIAN
CONSTITUTION
 According to the Article 14 of the Constitution of India, “The State shall not deny to any
person equality before the law or the equal protection of the laws within the territory
of India.” This article strikes the root of arbitrariness by guaranteeing to all the citizens of
India ‘equality before law’ and ‘equal protection of law’.
 Seeing the facts of the A. S. Mohammed Rafi V. State of Tamil Nadu case, in the light of the
aforementioned Article 14 of Indian Constitution clearly indicates the fact that the article
was violated in this particular case. The policemen, though wrong on their part, were
denied access to the lawyers during the trial of the criminal appeal that was filed against
them for assaulting some lawyers due to certain pre-existing clashes between the lawyers
and the policemen. Here, the principle laid down in the Article 14 was grossly violated, as
by denying access to the rightful legal representation they were not given equality before
law. The basic fundamental right that has been guaranteed to all the citizens of India was
not provided to the appellants in this case
ARTICLE 21 OF INDIAN CONSTITUION

 According to the Article 21 of Indian Constitution, “No person shall be deprived of his life
or personal liberty except according to procedure established by law.” In this case, the
policemen were also deprived of their personal liberty when they could not hire any
lawyers to fight their case just because a resolution was passed by the Bar Association of
Coimbatore; that no member of the concerned Coimbatore Bar Association would defend
the accused policemen in the criminal case filed against them, due to the previous assault
done on some lawyers by the policemen. The fundamental right of the policemen were
clearly violated in this case and the resolution passes by the Bar Association is not
constitutional at all.
CRITICAL OVERVIEW OF JUDGEMENT

 Professional ethics needs an attorney not to deny a brief, unless a client is not able to pay his fee and
the attorney is not otherwise involved i.e. there is a possibility of conflict of interest. Consequently,
the action taken by any bar association to pass such a resolution that none of its members would
appear on the ground for a specific accused whether on the ground of being a police officer or on the
ground of being a convicted terrorist, a rapist, a mass killer, etc., is contradictory to all the standards
of the Constitution, the Legislation and professional ethics. It is against the Bar's great values which
have always stood up to defend people accused of a crime. Indeed such a resolution is a mockery to
the legal community.
 In the words of Markandey Katju, “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.”
 PRECEDENTS CITED

 Thomas Erskine (1750-1823) defended Thomas Paine in England in 1792 for writing his famous
pamphlet "The Rights of Man" in defence of the French Revolution.

 Clarence Darrow (1857-1930) was strongly of the view that every accused, no matter how wicked,
loathsome, vile or re- pulsive he may be regarded by society has the right to be defended in court.

 Atticus Finch, a fictional American lawyer in Harper Lee's famous novel To Kill a Mocking Bird.

 The US Supreme Court appointed all members of the local Bar to serve as defence counsel in a case.
 Conclusion

 In conclusion, the case of A. S. Mohammed Rafi v. State of Tamil Nadu presents

a critical examination of the fundamental right to legal representation and the
ethical obligations of lawyers in India. The case reaffirms the principle that
denying legal representation violates the essence of democracy and rule of law. It
is imperative for the legal community to uphold the values enshrined in the
constitution, ensuring equal access to justice for all, even in the face of
challenging circumstances. This case serves as a reminder of the enduring
importance of the right to legal representation, an indispensable pillar of a just
and democratic society.