Recent calls by bar associations of Jammu & Kashmir and Allahabad high courts directing lawyers not to appear and defend suspected militants and terrorists are utterly unprofessional and also unethical. Every accused person, whatever may be the nature and gravity of the accusation, has a constitutional right to legal representation. The presumption of innocence is a fundamental feature of every civilised criminal justice system, including ours. It must always be remembered that when an advocate pleads for the acquittal of his client, it is on the ground that the charges against him do not fulfil the statutory ingredients of the offence and that in any event the evidence on record falls short of establishing his guilt. The personal conviction of the advocate about his client’s innocence is irrelevant. Indeed, it is improper for an advocate to state his personal belief to the court.

Dr Johnson pungently observed that an advocate is briefed to argue and not to act as a judge. Therefore, he should urge all points of law and fact which the accused would do in his defence if he were equipped with the requisite knowledge and skill. An advocate may refuse a brief if he finds himself in a position of conflict of interest or for domestic reasons. But an advocate by reason of his high calling and profession cannot refuse a brief because public opinion is hostile to his client or because the advocate would become unpopular if he defends the accused, incur the displeasure of the powers that be, and be visited with adverse consequences. An advocate who refuses to appear for detenus or suspected terrorists for these considerations is a coward and betrays the independence and high traditions of the Bar. There were quite a few of this species during the Emergency, who, however, sang a different tune in praise of human rights after the Emergency was revoked.

... contd.