Context
- The Supreme Court, while hearing a case arising from the Faizabad Bar Association’s resolution refusing to represent the accused in the Ayodhya Ram Temple theft case, held that Bar Associations cannot collectively resolve to deny legal representation to an accused person.
- The Court declared such resolutions illegal, unconstitutional, and contrary to professional ethics, reaffirming that the right to legal representation is an essential component of the Right to Fair Trial under Article 21.
Constitutional Provisions
- Article 21 – Right to Life and Personal Liberty; includes the Right to Fair Trial and Right to Legal Representation.
- Article 22(1) – Every arrested person has the right to consult and be defended by a legal practitioner of his/her choice.
- Article 39A (DPSP) – Directs the State to provide free legal aid and ensure equal access to justice.
Supreme Court’s Observations
- Every accused, irrespective of the nature of the offence, has the constitutional right to legal representation.
- Bar Associations cannot pass resolutions directing advocates not to appear for a particular accused.
- Such resolutions violate:
- Fundamental Rights of the accused.
- Professional ethics governing advocates.
- Rule of Law and fair trial principles.
- Advocates have the freedom to accept or decline a brief individually, but Bar Associations cannot collectively prohibit representation.
Bar Council of India (BCI) Rules
Under the Bar Council of India Rules (Standards of Professional Conduct and Etiquette):
- An advocate is generally bound to accept any brief in courts or tribunals where he/she ordinarily practices.
- An advocate may refuse a brief only for special and sufficient reasons.
- The decision to accept or refuse a case rests with the individual advocate, not the Bar Association.
Important Judicial Pronouncements
1. A.S. Mohammed Rafi v. State of Tamil Nadu (2010)
- Supreme Court held that Bar Associations cannot prevent advocates from defending an accused.
- Declared such resolutions illegal and unconstitutional.
2. A.S. Kureshi v. High Court of Gujarat (2009)
- Gujarat High Court held that refusal by a Bar Association to accept briefs is unlawful.
- Distinguished between individual refusal by an advocate and collective boycott by a Bar Association.
3. Jayalalithaa v. State of Karnataka (2014)
- Supreme Court observed that a fair trial is the cornerstone of criminal justice.
- Every accused must receive a fair, impartial, and reasonable trial.
Historical Precedents of Bar Boycotts
Despite clear legal rulings, Bar Associations have historically passed such resolutions during highly publicized or sensitive criminal cases:
- 2008 Mumbai Terror Attacks: A Bar resolution opposed representing Ajmal Kasab.
- 2012 Delhi Gangrape Case: Lawyers at Saket courts passed a resolution refusing representation.
- 2019 Hyderabad Vet Case: Lawyers collectively declined to defend the accused.
| About Bar Council of India (BCI) Statutory Body established under the Advocates Act, 1961. Regulates legal education and professional standards. Prescribes the Code of Professional Ethics for advocates. |
Which of the following Articles of the Constitution are directly related to the right to legal representation and access to justice?
1. Article 21
2. Article 22(1)
3. Article 39A
Select the correct answer using the code below:
(a) 1 and 2 only
(b) 2 and 3 only
(c) 1 and 3 only
(d) 1, 2 and 3
The correct answer is D. 1, 2 and 3.
Explanation:
• Article 21: The Supreme Court has repeatedly held that the right to a fair trial and legal representation is a core feature and an integral part of the right to life and personal liberty under Article 21.
• Article 22(1): This article explicitly guarantees a fundamental right stating that no person who is arrested shall be denied the right to "consult, and to be defended by, a legal practitioner of his choice."
• Article 39A: A Directive Principle of State Policy (DPSP) that mandates the State to ensure the legal system promotes justice on a basis of equal opportunity, specifically requiring the provision of free legal aid to ensure access to justice is not denied due to economic or other disabilities.