Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.  2310       of 2010 (arising out of S.L.P.(Crl.) No.6820 of 2008)

A.S. Mohammed Rafi .. Appellant(s)

-versus-

State of Tamil Nadu ..        Respondent(s) 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)

J U D G M E N T  

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.

2

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  of  

Rs.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-4  

Police  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.

3

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 13  

of  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  

4

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 a  

right to be defended in a court of law and correspondingly it is the duty  

of the lawyer to defend him.

5

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 Wales  

and 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. 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  

6

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.  

7

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  

8

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”.

9

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 loathsome  

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 :

1

“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.

1

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  

1

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 who  

refuses 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.

1

34. With these observations, these appeals are disposed of.  No costs.

…………………………….J. (Markandey Katju)

……………………………J. (Gyan Sudha Misra)

New Delhi; 6th December, 2010

1