Ayodhya Bar Decision To Not Represent Accused In Ram Temple Donation Theft Cannot Be Ever Justified

The following article examines the constitutional, legal, and ethical implications of the Ayodhya Bar Association's decision not to represent the accused in the alleged Ram Temple donation theft case. It discusses professional ethics, Article 21, legal aid, Supreme Court precedents, and the duties of advocates under Indian law.

Introduction And Background

I have just no hesitation whatsoever in saying that it is definitely a matter of extremely grave concern that the Ayodhya Bar Association in Uttar Pradesh has decided to stop its members, who are all advocates bound by the rules applicable to advocates under the Advocates Act, from representing the accused in the alleged Ram Mandir donation embezzlement case, which has most commendably triggered a huge furor and very serious legal concerns, with legal experts very seriously questioning it and calling the move completely contrary to constitutional ethics and established judicial precedent. There can be just no denying or disputing it! Such unprofessional conduct has to be most strongly condemned, and one still hopes that ultimately good sense will prevail over lawyers of the Ayodhya Bar Association!

Core Legal Concerns Raised By The Resolution

• Professional ethics of advocates
• Constitutional protections
• Right to legal representation
• Due process of law
• Judicial precedents
• Bar Council of India Rules

Undoubtedly, those who are guilty of huge embezzlement in the Ram temple donation case must be most strictly punished, but it has to happen by following all legal procedures, as happened with so many terrorists who killed former PM late Rajiv Gandhi, and when convicted, we saw that some, after being in jail for some decades, were ultimately set free some time back! It also must be mentioned here that in the Ram temple donation case, we have seen how serious charges of embezzlement of crores of rupees were involved. Apart from gold and silver, the lawyers of Ayodhya made a blanket refusal by a resolution to defend, forbidding all lawyers not to defend the accused solely because of the serious gravity of the crime, which runs against professional ethics entirely contrary to constitutional protections and binding judicial precedents, which cannot be ever forsaken under any circumstances! No denying!

It must be noted that the huge controversy over this most serious issue follows allegations of misappropriation of donations in huge amounts that were received by the Shree Ram Janmbhoomi Teertha Kshetra Trust. It is most baffling to note that the Faizabad/Ayodhya Bar Association recently passed a most strange resolution that none of its members would appear for the arrested accused. This definitely under no circumstances can ever be justified by anyone!

What is even more confounding to note is that it also further declared that any advocate who wished to represent them would have to seek the Association’s permission, and what is most astounding to note is that a condition has also been attached along with permission of the Faizabad/Ayodhya Bar Association: to deposit Rs 5 lakh per accused, which is wholly whimsical, completely arbitrary, and in contravention to what is stated in the Constitution! This cannot, under any circumstances whatsoever, ever be justified! We need to note that many eminent, senior Supreme Court lawyers, like the late Mr. Soli J. Sorabjee and the late Mr. Ram Jethmalani, among others, have time and again reiterated that "No advocate can refuse to accept a brief of a client." What to talk about is barring all advocates in any bar association from representing any accused in any crime no matter how heinous because ultimately the accused, being defended properly, may get acquitted and the charges leveled may turn out to be completely false.” Absolutely right!

Constitutional And Professional Issues

To be sure, one has to concede graciously that such resolutions barring all advocates from representing any accused are not only a very serious matter but are also entirely illegal and against the professional ethics, which have to be most strongly deplored! Needless to say, the legal opinion among eminent top lawyers in the Apex Court has time and again taken the most professional stance that such a resolution has absolutely just no legal standing and cannot ever be legally unenforced even by any bar body under any circumstances whatsoever, as it is prima facie illegal! No denying or disputing it!

It would be instructive to note that under the Bar Council of India rules, an advocate is expected to accept a brief in any court where he practices subject to some special exceptions and exceptional situations like prior engagement or non-availability! There can be just no gainsaying the most irrefutable fact that these rules also make it indubitably clear that a lawyer’s duty is to the law and that no person should be punished without adequate evidence to justify the punishment inflicted! Where can there be any doubt on this most irrefutable ostensible fact?

Supreme Court Precedents

AS Mohammad Rafi v. State of Tamil Nadu (2010)

It also has to be borne in mind that the Apex Court in so many leading cases time and again not only just frowned upon and expressed its disdain and disenchantment against such unprofessional resolutions by lawyers’ bodies, which under no circumstances can ever be justified at all! It would be worth recalling here that in AS Mohammad Rafi v. State of Tamil Nadu (2010), the Apex Court most passionately and most unambiguously underscored that any Bar Association resolution that mandated preventing lawyers across the spectrum from appearing for a particular accused was against the Constitution, statutory law, and professional ethics. What also cannot be ever allowed to go unnoticed is that it declared such resolutions “null and void” and urged lawyers to ignore them. Very rightly so!

Right To Counsel Under Article 21 Of The Constitution

Subedar v. State of Uttar Pradesh (2021)

We also need to take into account this core fundamental principle as stated hereinabove, which was again reinforced in another leading case titled Subedar v. State of Uttar Pradesh (2021), where the Apex Court was of the unflinching view, which it underscored while holding most indubitably, that the right of an accused to be represented by counsel is part of the due process guarantee under Article 21 of the Constitution. It has also been made crystal clear that if a lawyer is unavailable, the court must appoint an amicus curiae, but the accused cannot be left unrepresented. The most fundamental point that I wish to underline here is that mere seriousness of the crime cannot ever be a specious excuse to justify denial of legal representation to the accused under any circumstances!

Importance Of Legal Representation In Criminal Trials

• Protects the constitutional guarantee of a fair trial.
• Ensures compliance with due process.
• Allows the accused to present a defense.
• Maintains public confidence in the justice delivery system.
• Prevents arbitrary deprivation of liberty.

The billion-dollar question is: How can the most basic inviolable legal right of an accused to be defended by a lawyer of his/her own choice be ultimately consigned to the flames with no lawyer ready to defend by providing legal aid to the accused? What is the purpose left for the court and lawyers if an accused is condemned to be punished with no lawyer defending the accused and the accused being sentenced to jail or sent to the gallows without any legal aid being imparted to put forward his/her version before the court? How can an accused ever be left to be convicted without being heard by providing legal aid of a lawyer?

High Court View On Similar Bar Association Resolutions

Observations Of Karnataka High Court

In this regard, we also must recollect and jog our memory a little back to recall that even the High Courts have also taken a most strict view of similar resolutions that cannot be ever lost sight of. In this context, it would be pertinent to note that in Karnataka, Hon’ble Mr Justice Abhay Shreeniwas Oka while he was the then Chief Justice of Karnataka High Court most strongly deprecated Bar Associations for refusing to defend accused persons in politically sensitive cases, maintaining steadfastly that every person has the right to a fair trial and that “kangaroo trials” have no place in India! How can one dare to differ or disagree with what such a learned Judge like Hon’ble Mr Justice Abhay Shreeniwas Oka who even served as a Supreme Court Judge for many years and has an impeccable reputation and unblemished track record?

Recent Supreme Court Reaffirmation

Rupashree HR v. State of Karnataka

Interestingly enough, it must be pointed out that more recently, we witnessed how in Rupashree HR v. State of Karnataka, the Apex Court had most laudably quashed a Mysore Bar Association Resolution that had emphatically sought to completely prevent its members from defending an accused, reiterating most unflinchingly and most firmly that the right to defend oneself is a fundamental right! How can any person in his right senses ever question rationally even the Apex Court's most balanced and pragmatic approach in this regard? What Apex Court has pointed out is hundred percent right!

Constitutional Provisions Supporting Legal Representation

It merits just no reiteration that the right to legal representation of an accused directly stems from Articles 14, 21, and 39A of the Constitution, which in no uncertain terms guarantee the right to life and liberty, the right to equal justice, the right to free legal aid, and over and above all, equality before the law. To put it differently, this undoubtedly means that every accused, regardless of the charge that is leveled against him/her, is without fail definitely entitled to be represented by a lawyer of his/her choice. It also must be added that if the accused is unable to afford one, the accused is entitled to free legal aid. This definitely cannot at all be denied under any circumstances!

Natural Justice And Fair Trial

Audi Alteram Partem

What must also be added here is that legal representation is also incumbent to ensure the dignity of the trial itself. There can be just no quibbling about it at all! It is an undeniable truth that while affirming to the most fundamental tenet of the right of an accused to be represented by a lawyer, which is also in consonance with the Latin maxim titled ‘audi alteram partem,' which means 'listen to the other side,' which is just not possible without a lawyer, the courts have most commendably previously set aside convictions where the accused was not properly heard or represented.

Examples From India's Justice System

• Ajmal Kasab
• Nathuram Godse
• Nirbhaya Convicts
• Representation through Amicus Curiae
• Constitutional guarantee of defence

Interestingly enough, it is most gladdening to note that India’s justice system has abided most strictly by this principle even in the most sensitive cases, which also notably included cases involving Ajmal Kasab, Nathuram Godse, and the Nirbhaya convicts, among others. It cannot be ever dismissed lightly that none other than senior and eminent Supreme Court lawyer Raju Ramchandran, who has himself played a leading role in representing the accused in several leading and high-profile cases as amicus curiae, lambasted the Ayodhya Bar Association’s resolution to not defend the accused! While taking potshots at it, Ramchandran said most explicitly that it violated the constitutional right of an accused to legal representation and the Bar Council’s standards of professional conduct, which must definitely be complied with in their entirety! No denying!

Sanjeev Sirohi, Advocate,
s/o Col. (Retd) BPS Sirohi, A - 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.

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