Twice in the recent past, bar associations are alleged to have passed resolutions refusing to offer legal assistance to the accused — the J&K Bar Association in the sex scandal case that rocked that state and the NOIDA Bar Association in the Nithari killings. A valiant effort was also made by all and sundry to dissuade Ram Jethmalani from appearing for Manu Sharma in the Jessica Lal case.

The above instances reveal a shocking intolerance on the part of lawyers. The Constitution gives every citizen a right to be defended. It is a fundamental principle of criminal law that every accused is presumed innocent till proven guilty. It is therefore not the role or duty of the advocate to form a judgement on the basis of his opinion, but to assist the judge in coming to a correct conclusion by placing the relevant facts and correct position of law.

In England, the rule has been called the ‘cab-rank’ rule, according to which a barrister is ‘to accept any brief to appear in a court in which he professes to practise’, irrespective of the client, the nature of the client and any belief or opinion which the barrister may have formed as to the character, reputation, cause, conduct, guilt or innocence of that person. The principle is provided for in the Code of Conduct of the Bar of England and Wales. Lord Irvine QC has explained it as the duty of the advocate to “appear for the Yorkshire ripper or another defendant against whom there may be a hostile climate of public opinion”. The purpose of the ‘cab-rank’ rule is “to acknowledge a public obligation based on the paramount need for access to justice”. It is to be noted that a similar rule is there in the Australian legal profession. The American bar has a diluted version of the same.

Unfortunately, in India, the absence of the ‘cab-rank’ is weakening the fabric of rule of law. Today’s advocates are identified with the cause they serve and consequently, as advocates selectively choose whom they represent. The public perceives them as endorsing the character, views, reputation and conduct of the clients. Consequently, society also decides who ought to be defended. A lawyer choosing not to appear for a client because of alleged acts committed by him, his conduct, character, cause and reputation is a gross violation of professional ethics. The consequences of granting such liberty to other professionals are catastrophic.

Article 21 provides that no one is to be deprived of their life without the due process of law and such resolutions deprive citizens of legal counsel and is also an impediment to the swift and efficient administration of justice. The casualty of such a practice is the accused in a criminal trial and the cause of justice itself.

The fact that the trial is now being prosecuted in a different state because of the policy of the respective bar associations is a sad reflection of the commitment of the bar associations to the cause of justice. The associations have, ironically, aided the very persons they have condemned unheard. Shifting cases outside courts will be a nightmare in logistics and other issues relating to procedure — examination of documents, witnesses, experts etc.

In times of public madness driven by caprice and misplaced passion, it would be good to remember the wise words of Jesus Christ, “Let he among you who has not sinned, cast the first stone.”

The writer is a Delhi-based lawyer