 "Can lawyers boycott cases over ethical reasons? What does the law say?")
The Madhya Pradesh High Court Bar Association on November 19 resolved that its members will not represent farmers accused of stubble burning, citing environmental and public health reasons. According to an official from the association, stubble burning contributes significantly to pollution and leads to the destruction of living organisms.
DK Jain, president of the association, said that during an executive committee meeting, members expressed serious concerns about the adverse impact of stubble burning on public life. Supporting the ban on the practice, the association decided that its members would not appear for farmers accused in such cases.
Reports highlight that Madhya Pradesh ranks first in stubble burning incidents nationwide, worsening air quality and impacting lives, particularly in northern states.
Past instances of resolutions against legal representation
This is not the first time that bar associations have passed such resolutions, despite a Supreme Court ruling that these are “against all norms of the Constitution, the statute and professional ethics”.
This decision echoes a broader trend where bar associations have passed resolutions refusing to defend certain individuals.
Some notable cases include:
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>2024 Badlapur rape case: Lawyers refused to represent Akshay Shinde, accused of sexually assaulting two children, sparking debates on mob justice and the fundamental right to defense.
>2019 Hyderabad rape case: In the gang rape and murder of a veterinary doctor, the State Bar Association declared it would not defend the accused, leading to criticism for undermining judicial integrity.
>2012 Nirbhaya case: The Saket Bar Association resolved not to represent the accused in the brutal gang rape and murder case, raising concerns about the accused’s constitutional right to a fair trial.
>2008 Mumbai terror attacks: Lawyers initially declined to represent Mohammad Ajmal Kasab, the only terrorist captured alive, citing societal outrage. Eventually, a legal aid lawyer was appointed under significant public scrutiny.
What does the Constitution say about an accused’s right to defense?
The Constitution of India guarantees every accused individual the right to legal representation. Under Article 22(1), no person can be denied the right to defend themselves through a legal practitioner of their choice. Additionally, Article 14 ensures equality before the law, while Article 39A mandates equal access to justice and free legal aid to citizens, irrespective of economic or social barriers.
What has the SC said about such resolutions by bar associations?
In the landmark 2010 case (A S Mohammed Rafi vs State of Tamil Nadu), the Supreme Court unequivocally declared such resolutions by bar associations as unconstitutional, unethical, and a violation of 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”, the apex court had said.
The Court referred to historical examples, such as Thomas Erskine’s defence of Thomas Paine in 1792 and the representation of Nazi war criminals at the Nuremberg trials. It underscored that every accused, no matter how reviled, is entitled to a defence. Resolutions barring representation were termed a “disgrace to the legal community” and nullified as being against the Constitution.
The Court added that lawyers cannot assume the role of judges by refusing to represent clients, emphasising that professional ethics demand advocates defend all accused individuals, regardless of public opinion.
Karnataka High Court reiterates SC’s stance in 2020
In 2020, the Karnataka High Court reiterated that such resolutions are both illegal and unethical. The observation followed objections by local bar associations to lawyers defending four students arrested for sedition. The court reminded bar associations that lawyers cannot face professional repercussions for appearing in court.
The Bar Council of India’s code of conduct also mandates advocates to offer their services to any litigant who approaches them, barring valid reasons for refusal. It further prohibits bar associations from interfering in individual decisions to represent clients.
What is the ongoing debate around legal aid?
The decision by the Madhya Pradesh High Court Bar Association has reignited the debate on the ethical responsibilities of lawyers versus societal pressures. While the Supreme Court has consistently upheld the constitutional right to legal representation, bar associations across the country continue to grapple with balancing professional duties with public sentiment.