Why Ayodhya Lawyers' Refusal To Represent Accused In Ram Mandir Donation Theft Case Violates Law

In the wake of alleged embezzlement of donations received by the Shree Ram Janmbhoomi Teertha Kshetra Trust for Ayodhya's Ram Mandir, the Faizabad/Ayodhya Bar Association in Uttar Pradesh recently passed a resolution restraining its members from representing the accused.

The resolution stated that none of its members would represent persons arrested in connection with the alleged misappropriation of temple funds. Further, if any advocate still wishes to represent such accused, they must apply to the Association as well as deposit Rs.5 lakhs (per accused) in its account.

This article discusses how the latest resolution by Faizabad Bar Association is patently illegal, given its ignorance of a long line of judicial precedents on an accused's rights and a lawyer's duties.

In the past, the Supreme Court and High Courts have taken a strong view against Bar Association resolutions of the nature passed by Faizabad Bar Association. The Courts have heavily deprecated the practice of lawyers' bodies passing such resolutions, as they affect an accused's right to representation and curtail access to justice.

Notably, as per Bar Council of India's Rules, an advocate is bound to accept a client's brief in connection with any court or authority where they propose to practice. Special circumstances (such as non-availability due to engagement in another case) may justify an advocate's refusal to accept a brief. But in absence of any such circumstances, they must defend a person accused of a crime, regardless of their personal opinion about the person's guilt.

"An advocate should always remember that his loyalty is to the law, which requires that no man should be punished without adequate evidence", the BCI rules state.

Among the decisions given by the Supreme Court on the subject, key observations can be traced to AS Mohammed Rafi v. State Of Tamil Nadu (2010), where a 2-judge bench of the Court categorically said that any resolution by a Bar Association to the effect that its members will not appear for a particular accused is against all norms of the Constitution, the Statute and professional ethics.

The bench went on to call such resolutions a "disgrace to the legal community" and noted that even Nazi war criminals were defended by lawyers. It declared all such Bar Association resolutions "null and void" while urging the "right minded lawyers" to ignore and defy the resolutions.

"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 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", the Court held.

Subsequently, in Subedar v. State of Uttar Pradesh(2021), the Court held that an accused's right to be represented through an advocate is referable to the fundamental right to life (under Article 21).

"It is well accepted that right of being represented through a counsel is part of due process clause and is referable to the right guaranteed under Article 21 of the Constitution of India. In case the Advocate representing the cause of the accused, for one reason or the other was not available, it was open to the Court to appoint an Amicus Curiae to assist the Court but the cause in any case ought not to be allowed to go unrepresented", a 3-judge bench observed.

In 2021, ex-Supreme Court judge Justice Abhay Oka, while he was Chief Justice of the Karnataka High Court, observed that State Bar Councils should take swift action against Bar Associations which pass resolutions calling upon their members to not defend a particular accused. Justice Oka, as the Chief Justice of the Karnataka High Court, pulled up the Hubbali and Mysuru Bar Associations for passing resolutions to deny legal representation to persons who were accused of flashing provocative posters during anti-CAA protests. "Everyone has the right to a fair trial and kangaroo trials are not permitted in the country," CJ Oka said then.

Three years later, the Supreme Court, in Rupashree HR v. The State of Karnataka, quashed a Mysore Bar Association resolution resolving to not represent an accused, holding that right to defend oneself is a fundamental right under the Constitution, and no resolution could be passed by the Bar Association to forbid other members of the bar to appear on behalf of the accused (who appeared in person to defend its case).

Infact, right to legal representation is traceable to the Constitution itself. The broad spectrum of rights circumscribed under Article 21's 'right to life' includes the right to legal aid. Article 39A as well guarantees equal justice and free legal aid. The Equality principle enshrined in Article 14 further guarantees equality before the law, which rules out any discrimination against an accused based on the alleged offense.

As such, every accused has a right to be represented by a lawyer of his choice. If he cannot afford a lawyer, he is entitled to free legal aid.

While the above provisions and judicial decisions stress upon proper legal representation of an accused to safeguard their rights, they also indicate that such representation is not just in the interest of the accused. It holds significance for the prosecution as well, inasmuch as an accused's conviction can be set aside on the ground of improper representation.

For instance, the Madras High Court, in M/s RK Emu Farms v. State, overturned conviction of the accused in a cheating and criminal conspiracy case, noting that the accused was not heard.

With this understanding, our system has ensured legal representation for the accused even in some of the most gut-wrenching cases across history. From Mahatma Gandhi's assassin Nathuram Godse, to 2008 Mumbai terror attack's Ajmal Kasab, to 2012 Nirbhaya rape convicts - all were provided legal representation.

Despite moral dilemmas, this exhibited our country's commitment to the legal principle that no person shall be condemned unheard; at the same time, it provided the judges tasked with adjudicating these cases to arrive at irreproachable, reasoned decisions.

In this context, the comment made by Senior Advocate Raju Ramachandran, is quite relevant : "As a lawyer who has represented Ajmal Kasab and the Nirbhaya killers ( as amicus ), and Yaqub Memon etc, I am distressed by the resolution of the Ayodhya Bar Association to deny legal representation to the accused in the temple funds case. It goes against the constitutional right of an accused to be represented by a lawyer of his choice. It violates the Bar Council's Standards of Professional Conduct and Etiquette. Dear colleagues, God expects you to do your duty. If you can't , shed your robes and join the mob."

In the Ram Mandir donation case therefore, wherein 8 persons have been booked so far on charges including theft, cheating and criminal conspiracy, the accused are entitled to legal representation just like any other. Any lawyer's denial to represent them, only due to the nature of the alleged offense, violates Constitutional principles and is in the teeth of judicial precedents declaring such resolutions void.