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On 8 September 2017, a child studying in Class II of Ryan International School, Gurgaon, was found dead in the school toilet with his throat slit. The police acted with extreme urgency and arrested Ashok Kumar, who was working as a bus conductor for the school, for the murder. Other than the alleged perpetrator, the Police also arrested Francis Thomas, regional head of Ryan International School, and Jeyus Thomas, head of Human Resources for the School.
The very next day the Gurgaon District Bar Association and the Sohna Bar Association passed resolutions declaring that none of their members would represent the "accused who murdered the boy/student" of Ryan International School. Note the word "murdered."
One of the cardinal principles of the criminal justice system in India is that an accused is deemed innocent until proven guilty. The Bar associations clearly ignored this principle...
One of the cardinal principles of the criminal justice system in India is that an accused is deemed innocent until proven guilty. The Bar associations clearly ignored this principle by pre-judging that the accused had "murdered" the child. Also, by passing such a resolution they provided the accused grounds to seek transfer of the trial out of Gurgaon, which is exactly what happened.
On 18 September, the Supreme Court heard a petition filed by Francis Thomas seeking transfer of the case out of Gurgaon on the basis of the resolutions passed by the Bar associations. However, the Supreme Court refused to grant relief after the Gurgaon Bar Association informed it that the resolutions had been withdrawn and no hindrance would be caused in dispensation of justice. The Court called it a "redeeming act." In my opinion, the court should have imposed punitive fines on the associations for passing the resolutions in the first place.
Of course, this is not the first time that such resolutions have been passed. In the past, various nationalistic Bar associations have passed similar resolutions refusing to defend people accused of terrorism and physically assaulted lawyers who dared take up such cases for the accused. Such actions were challenged in 2010 by lawyers from Uttar Pradesh, Madhya Pradesh, Rajasthan and Maharashtra before the Supreme Court by way of a writ petition titled Md. Shuaib & Ors. vs. Bar Council of India and Ors.
The Supreme Court while disposing of the petition framed guidelines to address such issues in future and directed the Bar Council of India and state Bar councils to ensure that disciplinary action is taken against erring lawyers upon receipt of complaint. In a subsequent matter, the Supreme Court decided that any attempt by the bar associations to pass resolutions asking lawyers not to appear for an accused was illegal and unconstitutional.
Lawyers are considered officers of the court, which burdens them with the duty of putting aside their personal opinions in order to ensure that justice is effectively dispensed.
Even in the petition filed by Francis Thomas the Supreme Court restated that any person, irrespective of the offence he or she is accused of, has the right to be represented by a counsel of his or her choice. Such resolutions come in the way of access to justice, and are in contravention of the guarantee provided by Article 22 of the Constitution of India to seek legal representation of one's choice. In fact by denying legal representation such resolutions also violate principles of natural justice which provide the right of being heard—this would be a hollow right in absence of legal representation of one's choice.
Lawyers are considered officers of the court, which burdens them with the duty of putting aside their personal opinions in order to ensure that justice is effectively dispensed. The Bar Council of India and the state Bar councils are the regulators of the legal profession and must ensure that lawyers fulfil this duty towards their clients. The Bar councils have to be more proactive in ensuring that such resolutions are not passed and no lawyer is obstructed from appearing for his or her client, and no accused is obstructed from engaging a lawyer of his or her choice.
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