Justice required, without representation?Justice required, without representation?

The Saket Bar Association has resolved that its 2,500 members must not represent the six Delhi men accused of the rape and murder in order to ensure “speedy justice”, as the court’s fast-track court that will hear the case will be inaugurated today.

Saket Bar Association president Rajpal Kasana told Firstpost: “If the accused requires a lawyer, they can go for legal aid. That is the fundamental right of the accused. An advocate from the Delhi Legal Services Authority (DLSA) can defend the case.”

Another local bar member, Sanjay Kumar, told Agence France-Presse: “We have decided that no lawyer will stand up to defend them. It would be immoral to defend the case.”

The 2,500 lawyers of the association would” stay away” to ensure “speedy justice”, he reportedly said. According to Firspost, the DLSA had not received any requests to appoint legal representation for the accused yet.

Under the Bar Council of India’s (BCI) conduct rules, an “advocate is bound to accept any brief”. However, “special circumstances may justify his refusal to accept a particular brief”.

On the contrary, 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 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.”

The fast-track court to hear the alleged gang-rape of 16 December, which resulted in domestic protests and has also attracted major international media attention, will be inaugurated at Saket at 530pm today.

The Supreme Court today accepted a public interest litigation (PIL) filed by an IAS officer that all rape cases should be tried by a fast-track court.

Update (via @linuxlala): In a 2010 case of a bar association resolving not to defend a number of policemen (AS Mohammed Rafi vs State Of Tamilnadu Rep) Justice Markandey Katju 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.

Photo by Ramesh Lalwani

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Like +1 Object -0 Pondering Lawyer 02 Jan 13, 19:07
Protesting lawyers:

Is this a resolve for all rape cases and murder cases that are out there or this is an one time event. I doubt that this is the first ever rape case in this country.

If they believe in justice they should represent the accused and lead them to logical conclusion and ensure that there actually is a speedy trial.
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Like +0 Object -0 Izzat 03 Jan 13, 03:06
Just when you thought the average Indian lawyer had stopped bringing out surprises, there's yet another googly. What an interesting creature the Indian lawyer is. Perfect for appearing in front of Khap panchayats.
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Like +1 Object -0 Izzat 03 Jan 13, 03:13
To some extent, the hesitation to defend these accused and others like Kasab is because of the average Indian lawyer's belief that a lawyer is bound to get the accused off the hook by hook or crook. Many lawyers tell lies in court to save their clients. No lawyer gets penalised for this in India even when caught out. The Bar Council ought to take the lead in educating lawyers that lawyers who intentionally mislead the court are guilty of an offence, that if a lawyer knows his client is guilty, s/he must ensure that a guilty plea is put up and ameliorating circumstances (if any) are set out. Advocates are officers of the court and their duty is to help the court reach the correct verdict. A lawyer who knew his client was guilty and put up an innocent plea should be punished if the above can be proved. Finally, if only all Indian lawyers can be made to read Rumpole Omnibus, they will get a basic idea of the correct ethics for a criminal lawyer.
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Like +0 Object -0 professionalism 10 Jan 13, 11:24
the point here is that its not the lawyers who r liars...its the client that lie about their conduct. and as a part of their job they will defend the accused at any cost. if a thief goes to a doctor to get some medical care..then should the doctor refuse??...the code of conduct of lawyers never say that if a rapist has confessed that he did rape, the lawyer is not suppose to go to the court of law and say that "see he confessed that he did rape"...wont it sound foolish??..thats y ppl like Ram Jethmalani are actually a living examples of strict professionalism....
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Like +3 Object -0 Saurabh 03 Jan 13, 11:07
see the interesting thing is, these guys are in any case not the kind who would pay up.

P N Lekhi defended the killers of Indira gandhi, and the rest is history.

Not defending these guys is pretty dumb move actually.
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Like +0 Object -0 Joby 03 Jan 13, 11:15
Its surprising to see lawyers refusing to defend an accused. As officers of the Court and functionaries in the Criminal and Civil Justice systems, it is the duty of every lawyer to represent his/her client and ensure that the accused is given all the opportunities to defend himself/herself before law. Such abdication of duties and responsibilities by lawyers on the specious ground that it would be "immoral to defend such cases" should be visited with penalties under the Advocates Act.
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Like +0 Object -0 BIG problem - BAD behaviour 03 Jan 13, 12:06
It is doubtful that the Saket Bar's resolution is unanimous. Unfortunately, lawyers who may otherwise be willing to defend unpopular clients are unable to do so because they fear being excommunicated/ stigmatised by collegaues who pass such resolutions. Same when it comes to lawyers' strikes. Really unfortunate - lawyers must not conduct themselves in this way.
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Like +1 Object -0 Cab rank rule 03 Jan 13, 12:09
We need to introduce the cab rank rule and sanctions against lawyers who violate the rule.
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Like +0 Object -0 Saurabh 03 Jan 13, 12:09
A rich smart alec should say, "well, for the majesty of law, I will pay anyone 20 lakhs who defend these guys. "

would love to see my brothers refusing to defend the accused after that.

my prediction would be, these guys (my fellow brothers) will then come forward not for money (of course!) but for upholding the majesty of law.

and if any money comes along the way, then well, whats the harm ?
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Like +2 Object -0 Ramu 04 Jan 13, 16:01
What if a doctor refused to treat a "dishonest" lawyer.

What if the top specialist in cardiology in the country, totally disgusted by RK Anand's and special prosecutor (no less!)IU Khan's attempt to bribe the prosecution witness - refused to perform a rare bypass which he could only perform?

If it is immoral then there are thousands of such immoral cases pending in the courts, for which our brethren from the noble profession is making their daily bread (and butter as well in a lot many cases).

This move is so childish, naiive and utterly stupid - a professional is not swayed by emotions.

Had any of the perpetrators been injured and if the doctors refused to provide treatment? Would that have been OK and a substitute for due process?

God, how low has our profession plunged to!
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Like +2 Object -0 Think! 04 Jan 13, 21:58
A lawyer is an officer of the court and continued to be so even while defending an accused. Therefore his role is to assist court in reaching the appropriate conclusion in light of the facts and the applicable law.

The problem arises when lawyers are themselves confused about their role as defense counsels and start thinking that by representing the accused they are in some way endorsing the criminal's conduct.

In crimes of the type that happened in Delhi, the correct approach would be for one of the lawyer(s) to represent the accused(s) and help the fast track court to evaluate all facts (including mitigating circumstances, if any exist) and the law and reach the right decision.

The key point for lawyers to realise is that merely by agreeing to represent an accused they are not duty bound to "lie" and/or mislead the court to get their client acquitted, in fact to so would amount to professional misconduct.
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Like +2 Object -0 Finally! 04 Jan 13, 23:44
Finally, some sensible comments on LI. Had enough of :my law firm/law school is better than yours."
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Like +1 Object -0 satvchan 05 Jan 13, 18:09
jethmalani rk anand legues lawyesrs can easily clean n defend such dirt but for a price u know , corporate dirt is cleaned n flushed for a hefty price , for individuals hefty money is reqiured too , there r bus cnductor n drivers
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Like +0 Object -0 Sana 09 Jan 13, 17:15
Humans deserve fair trials and these men are monsters. The lawyers getting up to defend these men should loose their licenses.
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