CHANAKYA NATIONAL LAW UNIVERSITY

SUBJECT-
PRIVATE INTERNATIONAL LAW

PROJECT WORK ON
THEORIES OF PRIVATE INTERNATIONAL LAW

AUTHOR- RAJ VARDHAN TIWARI

5th YEAR B.A LLB (HONS.)
ROLL NO. 955
EMAIL ID- [email protected]

SUBMITTED TO
DR. P. P. RAO1

TOTAL NUMBER OF WORDS IN PROJECT– 11,811

1
ASSISTANT PROFESSOR OF LAW Anshuman, a scholar having deep knowledge of law is visiting Faculty
at Chanakya National Law University, Patna. He is a well known advocate practicing in Patna High Court,
Earlier he has taught as Lecturer in Patna Law College, Patna as well as in Bihar Institute of Law, Patna. He has
taught refresher classes in Bihar Judicial Academy, Bihar, Patna. He has attended many National & one
International Conference. He has experience of argument in other High Courts, various Civil Courts, Tribunals,
CAT, Forums etc.
 ACKNOWLEDGEMENT

This is probably the first and last time in my law school life that I am making a project
on Private International Law. There are many people whom I want to thank and acknowledge.
Without their help this project wouldn’t have been possible.

First of all I am very grateful to my teacher of Dr. PP Rao, who gave me this project
work. Without the kind support of his, completion of my project would have been impossible.
He donated his valuable time and guided me till the completion of this project.

I am very thankful to the librarian who provided me books on this topic which proved
beneficial in completing this project.

I acknowledge my Classmate Riya and my brother Ichchhit who gave their valuable
time and meticulous advice which proved very useful and could not be ignored in writing the
project. I want to convey a most sincere thanks to my Parents and brother Harsh Vardhan for
motivating and helping me throughout the project.

Raj Vardhan Tiwari

Roll No. 955
9th Semester
 CHAPTERISATION

AIMS AND OBJECTIVES……………………………………………………………………4

HYPOTHESIS………………………………………………………………………….......…4

SOURCES OF DATA…………………………………………………………………………4

RESEARCH METHODOLOGY………………............………………………………….....4

1. INTRODUCTION..................................................................................................................

2. CASE STUDY A.S. MOHAMMED RAFI V. STATE OF TAMIL NADU..................

3 LANDMARK JUDGEMENTS.........................................................................................

4. CASE ANALYSIS ……………………............................................................................

5. CONCLUSION............................................……………………………………………..

BIBLIOGRAPHY………………………………………………………………………….
 AIMS AND OBJECTIVES OF RESEARCH –

The aim of researcher, in doing the research work is to do a detailed outline and
analysis of ‘Refusal to defend the accused amounts to misconduct’ with judicial
interpretation .

HYPOTHESIS –

The researcher assumes that an advocate has a legal right to refuse to defend an accused.

SOURCES OF DATA-

For doing the research work various sources has been used. Both primary and secondary sources
have been perused for in depth research work.

RESEARCH METHODOLOGY –

The researcher’s work would be traditional method of research i.e, doctorinal research which is
library based.
 “REFUSAL TO DEFEND ACCUSED AMOUNTS TO MISCONDUCT”

CHAPTER ONE
INTRODUCTION

“Ethics is not definable, is not implementable, because it is not conscious; it involves not
only our thinking, but also our feeling.”

Valdemar W. Setzer

It seems that ethics in this globalizing world is getting lost. It is unwritten,

unimplementable yet any profession is incomplete without it. It is the principle which
determines our action. Professional ethics is the standard of behaviour to be followed in a
profession. People’s personal interest and greed for money or assests have made them forget
about moral obligations. In legal profession Advocate Act and Bar Council Acts are the bible
for the advocates. Legal ethics include attorney-client privilege, legal billing, disclosures
which lawyers are obligated to make, professional and personal relationships with other
members of the legal profession, relationships with jurors, situaations in which lawyers and
judges must refused from taking up a case, ethical conflicts which can arise in the law, and
situations in which people can offer legal advice.2 Legal representatives ethics are the “Code
of Professional Responsibility” that delineates the expectations from lawyers, and the “Code
of Judicial Conduct” that expressly applies to those in the Judiciary.3 The question before us
is that whether a lawyer can refuse a brief or not.
The answer to above question lies in Chapter II, Part VI of the Rules of the Bar
Council of India. The advocates need to maintain these Rules on the professional standards.
Advocates, in addition to being professionals, are also officers of the courts and play a vital
role in the administration of justice. The set of rules that govern their professional conduct
arise out of the duty that they owe the court, the client, their opponents and other advocates 4.
These rules have been placed there under section 49(1)(c) of the Advocates Act, 1961.

2Representation through Counsel in Criminal Cases : The Law Examined Available at

http://mowingthelaw.blogspot.com/2012/12/professional-ethics-in-legal.html last visited on 7th November.2017
3Professional Ethics in the Legal Profession:- A Dying Concept? Available at
https://blog.ipleaders.in/professional-ethics-in-the-legal-profession last visited on 7th November 2017
4 Rules on professional standards, available at http://www.barcouncilofindia.org/about/professional-
standards/rules-on-professional-standards/ last visited on 8th November, 2017.
 If the conduct of an advocate is such as to make him unworthy to remain a member of
the honourable legal profession and unfit to be entrus;ted with the responsible duties that an
advocate is called upon to perform, he will be guilty of misconduct and may be punished
therefore.
One such ground which amounts to misconduct is refusal to defend an acccused. It is
one of the Rules which talks about an advocate’s duty towards the client. According to rule
11 of chapter ii an advocate is bound to accept briefs:

An advocate is bound to accept any brief in the courts or tribunals or before any other
authority in or before which he proposes to practise. He should levy fees which is at par with
the fees collected by fellow advocates of his standing at the Bar and the nature of the case.
Special circumstances may justify his refusal to accept a particular brief5.

Illustration. In a criminal case against C, C could not Secure the services of any senior
members of the bar she went to every member of the bar however each one of them refuse to
represent see some senior members of the bhaiya refuse to appear because of the connection
with the complainant and all others had been retained by the complainant it was held that a
lawyer has no right to reject a brief offer to her on payment of the fee agreed upon between
the parties on Grounds of connection to the opposing party.6

Duty to not withdraw from an engagement

An advocate can not ordinarily withdraw from an accepted engagement
-without sufficient cause and
 unless reasonable and sufficient notice is given to the client
If an advocate withdraws from an engagement the Advocate must refund any part of
unearned fee to the client.7
Illustration:
An advocate wanted to retire from a case. A did not, however, file any instruction providing
sufficient cause to retire. Further, A did not provide any sufficient notice to the client C. A

5 Bar Council of India Rules, Part VI, Chapter 2, Section 2, Rule 11.
6 Lalta V Zahoor Ahmad, AIR 1925 Oudh 672.
7 Ibid, Rule 12.
also did not ensured the refund of the parts of the fees that was unearned. A would not be
allowed to retire from the case.8

Duty to not accept brief where an advocate selected to be called as a witness

An advocate should not accept a brief or appear in the case in which an advocate has
reason to believe that she will be a witness. If after being a engaged in a case it becomes clear
to the Advocate that she is a witness on a material question of fact, she would not continue to
appear as an advocate if the Advocate can retire without putting at risk the client's interests9.
A Civil Court has inherent power to order a person to cease the to appear as an
advocate, if the Advocate has become a material witness and a Bonafide application for
withdrawal of the Advocate is made10.

Illustration:

In a partition suit 'A' an advocate was representing defendant 'D'. D submitted an affidavit
from 'P' which was critical to the case. The affidavit contained an identification by the
advocate A. A here is a material witness to prove the genuineness of that affidavit. A is
disbarred from appearing in the case due to the possibility being called as a witness.11

An advocate has a duty to uphold the interest of the client regardless of the personal
opinion.

An advocate must fearlessly uphold the interest of the client by all fair and
Honourable means without regard to any unpleasant consequences to herself or to any other.
An advocate shall defend a person accused of a crime regardless of the advocate's personal
opinion as to the guilt of the accused. An advocate must understand that and advocates
loyalty is to the law and the law requires that no person should be convicted without adequate
evidence.12

8 Patel Maganlal Dhanijbhai V. Patel Laxmidas Narainbhai Kansagara, AIR 1988 Guj 48.
9 Bar Council of India Rules, Part VI, Chapter 2, Section 2, Rule 13.
10 Section 151 of Code of Civil Procedure, 1908.
11 Chhatrapti Shivaji v. State of Bihar, AIR 1990, Pat 197.
12 Bar Council of India Rules, Part VI, Chapter 2, Section 2, Rule 15.
Illustration:

A is retained by C, the client, to defend C from an offence C allegedly committed

under Section 28913 of the Indian Penal Code. She was charged with criminal negligence in
taking care of a pet which had aggressive tendencies. The pet caused serious harm to a person
J. Assume that A is very scared of aggressive pets and feel strongly that pet which can harm
human beings have no place in society. A also believes that such owner should be taught a
lesson. Here, A is obligated under the rules to not let A's personal opinion come in the way of
an effective defence for C in a criminal matter. A cannot be concerned about unpleasantness
as to anyone else in the course of defending C either. A must also appreciate that she should
be not be convicted without adequate evidence14.

But according Rule 5 it is an advocate’s duty towards the court that he can refuse to
represent clients who insist on unfair means. this rule reads-

“An advocate shall refuse to represent any client who insists on using unfair or improper
means. An advocate shall excise his own judgment in such matters. He shall not blindly
follow the instructions of the client. He shall be dignified in use of his language in
correspondence and during arguments in court. He shall not scandalously damage the
reputation of the parties on false grounds during pleadings. He shall not use
unparliamentary language during arguments in the court.”

CHAPTER TWO

CASE STUDY: A.S.MOHAMMED RAFI V. STATE OF TAMILNADU15

The Supreme Court of India has time and again ruled lawyers or their associations cannot
refuse to appear for accused whether they are terrorist, rapists, murderers or any others as
such refusal would be a violation of the Constitution, Bar Council norms and tenets of the
Bhagavad Gita.16 This case upholds the above view of Honourable Suprme Court.

14 Muhammad Sadique V Emperor, 1904, 1 CR LJ 1059 All

15 AIR 2011 SC 308.
 This case best illustrates the Bar Council of India Rules, Part VI, Chapter II, Rule 11
which says that an Advocate is bound to accept briefs. It is one of the Advocate’s Duty
Towards The Client.

FACTS OF THE CASE

Now coming to the facts of the case which is going to be dealt in this project i.e.
A.S.Mohammed Rafi vs State Of Tamilnadu on 6 December, 201017. This case came before
the Bench of Justice Markandey Katju and Justice Gyan Sudha Misra.
An advocate, the second petitioner enrolled in Coimbatore Bar Association boarded a
bus to reach his home, he and Miss Sathyabama the respondent, a police constable dashed
against each other which resulted in a verbal fight. The advocate was abused and beaten up
by Sathyabama and about four constables who had gathered there, they pushed him down
and dragged him to the nearby All Women Police Station and then to another police station
few feet away and he was beaten up again, even after he had revealed his identity as an
Advocate. The police also refused to take up his complaint. Later he was taken to the
Government Hospital and was not given proper treatment and the defendants also attempted
to falsely issue a Drunkenness Certificate (DC). The Coimbatore Bar Association passed a
resolution that no one will defend a policemen in a criminal case the court. The two judge
bench held that such resolutions are wholly illegal, against all traditions of the bar, and
against professional ethics. The case was firstly filed as Coimbatore Bar Association vs State
Of Tamil Nadu 2008 and then was filed in Supreme Court through an appeal.

LEGAL PROVISIONS

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".
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".

Right To Free Legal Aid

Legal Aid which means giving free legal services to the poor and needy who are
unable to afford the services of an advocate for the conduct of a case or a legal proceeding in
any court, tribunal or before an Judicial authority.
The preamble of the Indian constitution basically aims to secure to the people of India
justice – socio economic and political. His Lordship Justice P.N. Bhagwati aptly stated that
legal aid means providing an arrangement in the society which makes the machinery of
administration of Justice easily accessible and in reach of those who have to resort to it for
enforcement of rights given to them by law. Article 38(1) avows that the State shall promote
the welfare of the people by securing and protecting the social order including justice. Article
21 clearly says that every person has an equal right to life and liberty except according to the
procedure established by the law.
The State shall secure that the operation of the legal system promotes justice, on a
basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure that opportunities for securing justice
are not denied to any citizen by reason of economic or other disabilities.
In the case of Hussainara Khatoon vs. State of Bihar, it was held that if any accused is
not able to afford legal services then he has a right to free legal aid at the cost of the state.
It is the duty of the State to see that the legal system promotes justice on the basis of
equal opportunity for all its citizens. It must therefore arrange to provide free legal aid to
those who cannot access justice due to economic and other disabilities.18
If the accused does not have sufficient means to engage a lawyer, the court must
provide one for the defense of the accused at the expense of the state.19
The Constitutional duty to provide legal aid arises from the time the accused is
produced before the Magistrate for the first time and continues whenever he is produced for
remand20.

18
Art.39 A of the Constitution of India.
19
Sec. 304 of Code of Criminal Procedure,1973.
20
Khatri II Vs. State of Bihar, (1981) 1SCC; 1981 SCC (Cri) 228; 1981 Cri. LJ 470.
 A person entitled to appeal against his/her sentence has the right to ask for a counsel,
to prepare and argue the appeal.21
Some cases related to our case are mentioned below:

CHAPTER THREE
LANDMARK JUDGEMENTS

Mr. Vishveshwara Bhat vs. A.P. Ranganatha and Others22

Criminal Procedure Code, 1973 - Section 303 - Right of an accused before a Criminal
Court to be defended by a Pleader of his choice - Advocate for the accused was prevented
from a section of advocates from attending the Court to defend the petitioner/Executive
Managing Editor of Vijaya Karnataka Newspaper - Order passed by the Learned Magistrate
to issue Non Bailable Warrant(N.B.W) against the petitioner as the Advocate for the accused
did not file the exemption application.Prayer sought by the petitioner seeking transfer of his
case to any other Court outside, Bangalore. The court prevented Council from filing an
application for exemption on behalf of the petitioner has ultimately led to issuance of N.B.W.
and had not the High Court stepped in by granting an order of stay, the petitioner, in all
probability, might have been arrested and his liberty curtailed. - It is rather unfortunate that a
section of advocates did put Counsel on threat and because of that, he could not file an
application for exemption on behalf of the petitioner.
The Members of the Association equally have a sacred duty to ensure that no Member
of the Association, whether a junior or a senior, is prevented from going to the Court and
filing application on behalf of the accused in whose defence the Counsel wants to appear in
the Court. The case of "Thomas Erskine", would inspire every Member of the Advocates
Association, Bangalore to live upto the high standards of the legal profession, - The second
option before the Court is that if for any reason, the Court finds it difficult to have the
proceedings conducted in a peaceful atmosphere, the Court is always at liberty to take the
technology into assistance and also consider recording of the evidence by way of video
conference. When the help of the Court is sought to proceed under Section 303 of the
Cr.P.C., the Learned Magistrate could have and ought to have exempted the petitioner from
appearance.

21
Madav Hayavadanrao Hoskot Vs. State of Maharastra (1978)3 SCC 544) (Art. 142 of the Constitution r/w
Articles 21 and 39A of Indian Constitution
22 https://indiankanoon.org/doc/91041200/ last visited on 9th November, 2017.
 In Md. Sukur Ali vs. State of Assam 201123, the question was whether in a criminal
case if the counsel for the accused does not appear, for whatever reasons, should the case be
decided in the absence of the counsel against the accused, or the Court should appoint an
amicus curiae to defend the accused ?
In the present case, it appears that Criminal Appeal 137 of 2003 was decided by the
Gawahati High Court on 01.06.2010 in the absence of the counsel for the Appellant-accused
and the conviction was upheld.
The counsel for the Appellant-accused was Mr. A.S. Choudhury but the Appellant
changed his counsel and appointed Mr. B. Sinha in the year 2007 as his new counsel, and this
fact is corroborated by affidavit. Unfortunately, the name of Mr. Sinha as counsel for the
Appellant was not shown in the cause list when the case was listed and the name of the
former counsel Mr. Choudhury was shown. In these circumstances, Mr. Sinha who was
engaged by the Appellant as his new counsel did not appear.24
I am of the opinion that even assuming that the counsel for the accused does not
appear because of the counsel's negligence or deliberately, even then the Court should not
decide a criminal case against the accused in the absence of his counsel since an accused in a
criminal case should not suffer for the fault of his counsel and in such a situation the Court
should appoint another counsel as amicus curiae to defend the accused. This is because
liberty of a person is the most important feature of our Constitution. Article 21 which
guarantees protection of life and personal liberty is the most important fundamental right of
the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart
and soul' of the fundamental rights.
In Man Singh and Anr. vs. State of M.P. 200825 the Appellant convicted for offences under
various sections of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS) the case
was apealled to High Court,advocate appointed for appellant through Legal Aid Committee
(LAC) did not appear and Single Judge heard matter with assistance of panel lawyer for
respondent. The High Court dismissed the appeal, it was held that the High Court ought to
have appointed another counsel through LAC considering seriousness of case .Later on,
Judgment of High Court set aside and matter remitted back to High Court for fresh hearing.

23 AIR2011SC1222
24 Sukur Ali (Md.) vs. State of Assam GUHC) 2011 ( 2 ) GLT 69
25 2009GLH(1)180
 In Bapu Limbaji Kamble 26 ,the High Court had convicted the Appellant under
Section 302 of the Indian Penal Code on the charge of murdering his wife by strangulating
her to death. At the time of hearing of the appeal, the counsel for the accused did not appear.
The High Court perused the evidence and decided the matter.
I am of the view that the High Court should have appointed another advocate as
amicus curiae before proceeding to dispose of the appeal. From the aforesaid passage, it is
demonstrable that this Court has not stated as a principle that whenever the counsel does not
appear, the court has no other option but to appoint an amicus curiae and, thereafter, proceed
with the case.
In Maneka Gandhi vs. Union of India27, it has been held by a Constitution Bench of
this Court that the procedure for depriving a person of his life or liberty should be fair,
reasonable and just. It is not fair or just that a criminal case should be decided against an
accused in the absence of a counsel. It is only a lawyer who is conversant with law who can
properly defend an accused in a criminal case. Hence, if a criminal case (whether a trial or
appeal/revision) is decided against an accused in the absence of a counsel, there will be
violation of Article 21 of the Constitution.

CHAPTER FOUR
CASE ANALYSIS:

The right to appear through counsel has existed in England for over three centuries. In
ancient Rome there were great lawyers e,g, Cicero, Scaevola, Crassus, etc. who defended the
accused. In fact the higher the human race has progressed in civilization, the clearer and
stronger has that right appeared, and the more firmly has it been held and asserted. Even in
the Nuremberg trials the Nazi war criminals, responsible for killing millions of persons, were
yet provided counsel. Therefore when we say that the accused should be provided counsel we
are not bringing into existence a new principle but simply recognizing what already existed
and which civilized people have long enjoyed.28
Advocates in England & Wales must accept all briefs on the basis of the cab-rank rule,
subject to few exceptions. Under the Bar Standards Board’s code of conduct, barristers:
“must not withhold [advocacy] services (a) on the ground that the nature of the

26 2005 11 SC 412
27 AIR 1978 SC 597
 case is objectionable to him or to any section of the public; (b) on the ground that
the conduct opinions or beliefs of the prospective client are unacceptable to him
or to any section of the public…”

In 1999 the then-Lord Chancellor, Lord Irvine, said in UK parliament:

“The ‘cab rank’ rule is one of the glories of the Bar. It underscores that every
member of the Bar is obliged, without fear or favour, to represent clients who
offer themselves, regardless of how unpopular they may be in the community or
elsewhere.”

Justice Markandey Katju in the judgement said:

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.

The Hon’ble Supreme Court’s decision in this case was appropriate because it upheld
the principles of legal ethics. The moral obligation of an advocate not to refuse a brief which
was vanishing from the noble profession. As the apex court that resolutions of the bar not
representing a particular person 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.

The decision is in accordance with the existing laws i.e.

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".
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".
Under Article 51(c) of the Constitution, Indian courts are also required to adhere to and
promote Principle 1 of the United Nations Basic Principles on Role of Lawyers, which states
that “all persons are entitled to call upon the assistance of a lawyer of their choice to protect
and establish their rights and to defend them in all stages of criminal proceedings”.
Eminent jurist Seervai has said in his "The right to be defended by counsel does not
appear to have been stressed, and was clearly not considered in any detail in Ajaib Singh's
case29. But the right of a person accused of an offence, or against whom any proceedings
were taken under the Cr.P.C. is a valuable right which was recognized by Section 340 Cr.P.C.
Article 22 (1) on its language makes that right a constitutional right, and unless there are
compelling reasons, Article 22 (1) ought not to be cut down by judicial construction. It is
submitted that Article 22 (1) makes the statutory right under Section 340 Cr.P.C. a
Constitutional right in respect of criminal or quasi-criminal proceedings.30 Author is fully in
agreement with Mr. Seervai regarding his above observations. The Founding Fathers of our
Constitution were themselves freedom fighters who had seen civil liberties of our people
trampled under foreign rule, and who had themselves been incarcerated for long period under
the formula `Na vakeel, na daleel, na appeal' (No lawyer, no hearing, no appeal). Many of
them were lawyers by profession, and knew the importance of counsel, particularly in
criminal cases. It was for this reason that they provided for assistance by counsel under
Article 22 (1), and that provision must be given the widest construction to effectuate the
intention of the Founding Fathers.

The decision also conforms with various decisions of the courts:

US Supreme Court in Powell Vs. Alabama31 in which it was 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. 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 requires the guiding hand of
counsel at every step in the proceedings against him. Without it, though he be not guilty, he

29 1953 SCR 254.

30 Seervai Constitutional Law of India Third Edition, Vol. I, Pg. 857
31 287 US 45 (1932)
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".
In Brewer vs William32 Mr Justice Stewart delivering the opinion of the US Supreme
Court observed;-

"The pressures on state executive and judicial officers charged with the
administration of the criminal law are great. But it is precisely the predictability of those
pressures that makes imperative a resolute loyalty to the guarantees that the Constitution
extends to us all.”

The court justified its reasoning by giving various previous incidents:

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).
At the Nuremberg trials, the Nazi war criminals responsible for killing millions of people
were yet defended by lawyers.
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

32 430 US 387 (1977)

warned that if he accepts the brief, he would be dismissed from office. Undeterred, Erskine
accepted the brief and was dismissed from office33.
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". The
interpretation of law was done greatly by the apex court.

CHAPTER FIVE
CONCLUSION

As to ethics, unfortunately, we are still at sea. We never did have any popular base for
what little ethics we knew, except the religious theories, and now that our faith is shaken in
those theories we cannot account for ethics at all. It is no wonder we behave badly, we are
literally ignorant of the laws of ethics, which is the simplest of sciences, the most necessary,
the most continuously needed.
-Charlotte Perkins Gilman

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.
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. The legal profession works on
the ideal that none should be condemned without sufficient evidence in a fair trial conducted
after following due procedure, and an advocate is duty bound to ensure that this principle is
complied with at all times. Veiled as camaraderie and unity of the legal profession, it is
possible that an advocate or a group of advocates is able to influence the views of another
advocate or a group of advocates so much so that, unknowingly, the independence of the
legal profession may be compromised. One does not even have to open the newspaper to
learn new ways by which professionals betray or take advantage of their clients. An ordinary

33
Refusal to Defend and Duties of Advocates : The Law, available at http://www.legalblog.in/2011/09/refusal-
to-defend-and-duties-of.html last visited on 9th November, 2017.
person in her/his whole life will at least once catch a glimpse of unethical practices by
professionals first hand.
Now what can be a possible solution to this problem? More stringent law? As
explained earlier, having too tightly knit laws overlooking members of a profession is neither
desirable nor practical. The laws can of course be better and should keep improving but their
scope will always be limited. Bigger problems involve implementation of already existing
laws. Professionals do not violate the code of ethics thinking what they legal, but rather
knowing that it is illegal and that they will still never be caught.

There again, there is scope for improvement, but even implementation is not the most
important aspect.

What is most important is inculcating a spirit of professionalism. When one believes

that it is worth living up to the reputation of the profession one belongs to, then maybe, just
maybe, we’ll live in a society where lawyers, doctors, teachers and chartered accountants are
not hated, but revered.
 BIBLIOGRAPHY

Primary Sources

1. Constitution of India

2. Bar Council of India Rules

Internet Sources

1. http://www.barcouncilofindia.org/

2. http://www.legalservicesindia.com

3. https://indiankanoon.org/

4. http://www.manupatrafast.com/