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The Faizabad Bar Association recently passed a resolution that no lawyer within its membership would represent the accused in the Ram Temple embezzlement case. The resolution is constitutionally indefensible, and the Supreme Court has said so clearly, invoking its 2010 judgment in A.S. Mohammed Rafi v. State of Tamil Nadu, which declared such resolutions “wholly illegal, against all traditions and professional ethics.”

Article 22(1) of the Constitution mandates that no arrested person shall be denied the right to consult and be defended by a legal practitioner of their choice. A bar association cannot pass a resolution that nullifies a fundamental right. The court is correct on the law.

What the court reached for beyond the law, however, deserves attention.

What the law already says

The Mohammed Rafi judgment is unambiguous. Every person, “however wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society,” has a right to be defended in a court of law. An advocate is professionally bound to accept any brief, provided the client is willing to pay the fee and the lawyer is not otherwise engaged. A boycott of the accused, even if he is a suspected terrorist, rapist or mass murderer is against all norms of the Constitution.

This is sufficient. The constitutional principle requires no literary scaffolding to stand. That the court nevertheless reached for it tells us something worth examining.

The Erskine reference: this one holds

Justice Katju’s 2010 citation of Thomas Erskine defending Thomas Paine against charges of seditious libel in 1792 is a legitimate historical reference, and it maps onto the constitutional principle being affirmed. Erskine took the brief knowing it would cost him his position as Attorney-General to the Prince of Wales. It did.

Paine was convicted in absentia, having already fled to France,........

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