Morbi Tragedy: Lawyers Refuse to Defend Accused, But It's Not Their Job to Judge

Do the Bar Associations have the right to unanimously refuse representation?

Who is to blame when a bridge collapses, taking 135 lives? 

A total of nine people have been arrested in the Morbi bridge collapse case. These include managers of the company that renovated the bridge (Oreva), bridge repair contractors, and also ticket collectors and security guards. Four are in police custody and five are already in judicial custody.

So, should we paint them all black, hang the albatross around their necks, lock them up and get on with our lives?

The Bar Associations of Morbi and Rajkot seem to think so, for they have reportedly passed unanimous resolutions against representing the accused in this case. 

Even though, every accused derives his right to representation from Article 21 of the Constitution of India.

Even though, the prosecution cannot effectively and unimpeachably prove its case without a defence lawyer arguing to the contrary.

Even though, as pointed out by Supreme Court Advocate Ahmad Ibrahim:

“To judge is the job of a judge, not a lawyer.”

But surely, there is nothing unconstitutional about lawyers refusing to represent an accused, right? RIGHT? 

Actually, it is.

According to Supreme Court Advocate Paras Nath Singh: 

“It is unconstitutional. It goes against professional ethics, the fundamental rights of the accused and it is basically against the fundamental principle which says the accused is innocent until proven guilty.”

What? Why?

A three judge bench of the Supreme Court had noted in 2020 (Subedar Vs. State of Uttar Pradesh), that: 

“It is well accepted that the right of being represented through a counsel is part of the due process clause and is referable to the right guaranteed under Article 21 (protection of life and personal liberty) of the Constitution of India.”

Further, Article 22(1) of the Constitution says:

“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for which arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."

Fine, those are the rights of the accused. But do the Bar Associations not have the right to unanimously refuse representation?

Um. No.

According to a Supreme Court Judgment from 2011, such Bar Association resolutions are “wholly illegal”.

“Several Bar Associations all over India, whether High Court Bar Associations or District Court Bar Associations, have passed resolutions that they will not defend a particular person or persons in a particular criminal case…In our opinion such resolutions are wholly illegal, against all traditions of the Bar, and against professional ethics.”

Supreme Court in AS Mohammed Rafi vs State of Tamil Nadu

Also, as per, Bar Council of India (BCI) Rules an advocate is bound to accept any brief at a fee consistent with his standing at the Bar and the nature of the case. 

This is, of course, barring special circumstances which may, as explained by experts, include sickness or leave due to family emergency etc. 

Further, according to Chapter II of the rules framed by BCI, a lawyer “shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused.”

But why?

“An advocate should always remember that his loyalty is to the law, which requires that no man should be punished without adequate evidence.”

Bar Council of India

Besides, according to the apex court judgment in AS Mohammed Rafi : “right-minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country.”  

The judgment also quoted renowned British lawyer Thomas Erskine as having said that when a lawyer refuses to defend an accused based on his own personal views, he —

"assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused…”

Advocate Ibrahim said this more simply, pointing out:

“It is not up to the lawyer to judge a client. The judge is there for that. A lawyer just has to put across legal submissions, represent the facts on behalf of someone. It is a judge’s job to judge, lawyer’s job is just to represent.”

Further elaborating on the harm such resolutions may do to the accused, Ibrahim said that at times this can be done to create a sentiment that these accused are the only villains in this tragedy.

“Also as an accused person, I will also always have this apprehension that the whole bar is against me. And fair trial is my right.”

However, given that there is no actual penalty on any lawyer for judging an accused or refusing to defend an accused, we can expect to stumble upon such ‘unanimous’ resolutions in the future as well.

But, hey, what about a lawyer’s free will? If all lawyers feel this way —

Hang on!

Advocate Ibrahim also wondered about the nature of such resolutions, asking how it could be the choice of every single one among the hundreds of members of the Morbi and Rajkot bar associations. 

“They don’t get a referendum done, they don’t ask every lawyer about their individual choice, the office bearers of the bar associations simply arrive at a decision and pass the resolution. But can 5-7 people be the voice of everyone? Even if we have elected someone as head of the bar, it does not mean that we completely agree with whatever they say.”

Advocate Ibrahim

According to Supreme Court advocate Shrey Sherawat as well, “if any bar association says no lawyer is going to take up this case, it does not mean that all the members of the bar might be thinking along the same lines.”

So can't a lawyer simply refuse to comply with a resolution? 

“Some do,” Sherawat told The Quint.

However, according to Ibrahim several lawyers end up complying, because they have to stay in that bar association and want to avoid tussles. 

“Because if any one of those 500 (or so) members appear for the accused, those who passed the resolution don’t like it,” Ibrahim said.

Then, is this is it? Is this kind of refusal the end of the case? 

Not really.

Sometimes cases are transferred to a different court and sometimes the court asks the bar association to reconsider their decision. 

Earlier this year, the Madras High Court ruled that in the absence of a lawyer, the trial court should appoint an amicus to represent the accused.

Also, at times the accused try to engage lawyers from outside. 

There it is! Problem solved?

The problem is far from solved. 

As pointed out by Advocate Singh, an accused “technically can engage outside lawyers”, but the “bar association lawyers in most cases, will influence them to not take it up.”

“It’s like a domino effect,” he observed. “And that, technically is obstructing the course of justice.”

Also, “imagine how much trouble these accused will now have to endure,” Advocate Ibrahim added. 

“They will have to engage lawyers from outside. Or get the matter transferred. If the matter is transferred somewhere else, then everyone will have to face logistical difficulties. The trial should take place in the local jurisdiction where the crime has been committed. If it is taken out, then all witnesses will have logistical difficulties as well.”

Advocate Ahmad Ibrahim

However, agreeing that there are logistical difficulties, Advocate Sherawat did say that the state government makes provisions for paying money to witnesses traveling from one jurisdiction to another. So, at least, there’s that.

In the meantime, it remains to be seen, who will represent the managers, the contractors, the ticket collectors and the security guards, who have been refused their right to representation and denied their right to free trial by two bar associations of their state. 

True that the death of 135 people in Morbi is a devastating tragedy. But should that tragedy not result in intensive introspection, rigorous investigation, and a fair trial? Or should it become another excuse for unconstitutionality, and by extension, injustice?

(With inputs from LiveLaw)