Duty to defend

The right-minded lawyers of Rewari and Kosli should defy the resolutions of their Bar Associations
The Rewari and Kosli Bar Associations in Haryana have passed resolutions that none of their members will defend the accused in the recent case of gang-rape of a teenage girl from Rewari district. This resolution is wholly illegal, and goes against the decision of the Supreme Court in A.S. Mohammed Rafi v. State of Tamil Nadu (2010). That decision declared null and void a resolution of the Coimbatore Bar Association that none of its members will defend policemen who had allegedly assaulted some lawyers. Several Bar Associations in India have passed resolutions that their members would not defend persons accused of heinous crimes. The Supreme Court declared all such resolutions to be wholly illegal, against all traditions of the Bar, and against professional ethics. The court observed, “Every person, however wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law, and correspondingly it is the duty of the lawyer to defend him.”
When revolutionary writer Thomas Paine was jailed and tried for treason in England in 1792 for his famous pamphlet The Rights of Man , in defence of the French Revolution, the lawyer Thomas Erskine was briefed to defend him. Erskine was then Attorney General of the Prince of Wales, and he was warned that if he accepted the brief he would be dismissed from office. Undeterred, he accepted the brief, and was promptly dismissed. 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, and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale of justice against the accused, in whose favour the principles of law make all assumptions.” Indian lawyers have defended the revolutionaries of Bengal during British rule, the Indian communists charged with waging war against the British King in the Meerut Conspiracy Case, the Razakars of Hyderabad, Sheikh Abdullah, the Indian National Army accused, the assassins of Mahatma Gandhi and Indira Gandhi, and in recent times Binayak Sen and Ajmal Kasab. No Indian lawyer of repute has shirked his duty to defend someone claiming that it would make him unpopular or that it was personally dangerous for him to do so. The right-minded lawyers of Rewari and Kosli should defy the resolutions of their Bar Associations.
The writer is a former judge of the Supreme Court and former Chairman, Press Council of India

Source : https://www.thehindu.com/todays-paper/tp-opinion/duty-to-defend/article25000815.ece

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