LAW & SOCIETY SEPTEMBER 21, 2019 vol lIV no 38 EPW Economic & Political Weekly 12 On Ethics of Legal Representation Alok Prasanna Kumar Alok Prasanna Kumar (alok.prasanna@ vidhilegalpolicy.in) is a senior resident fellow at Vidhi Centre for Legal Policy, and is based in Bengaluru. Throughout his long and distinguished career, Ram Jethmalani was a hugely controversial figure, liked or disliked based on who he represented in court. This, however, is the wrong way to frame an understanding of his work as a lawyer. In focusing on “who” he represented, there is a risk that the fundamental right of representation for the accused is undermined, and it prevents us from also critiquing the “how” of representation. T his is not an obituary of Ram Jethmalani. This is an attempt to address one of the most divisive aspects of his life and work: his represen- tation of controversial accused in crimi- nal cases. It is a point that emerges almost immediately in conversations about Jeth- malani and is likely to do so for some time. Starting with K M Nanavati, the naval officer accused of murder, and more recently former Tamil Nadu Chief Minister J Jayalalithaa, accused in the dispropor- tionate assets case, Jethmalani was never one to shy away from taking up the cases of the most high profile of accused, no matter how diabolical their deeds. It has not always been the rich and powerful who have found a lawyer in Jethmalani. He has defended those acc- used of conspiracy in the Indira Gandhi assassination case and also the Rajiv Gandhi assassination case. His defence of S A R Geelani in the Parliament attack case helped in Geelani’s eventual acquit- tal by the Delhi High Court (Haksar 2019). However, his advocacy in the Delhi High Court and firm belief that Kehar Singh was innocent of the offences he was accused of did not prevent the latter’s conviction and eventual execution (Nevatia 2009). His long list of controversial clients has always resulted in the same questions being asked of him again and again: Why do you choose to defend such peo- ple? Again and again, the answer offered is the same: everyone is entitled to rep- resentation and, as a lawyer, one is not supposed to turn away a client for fear of one’s reputation or standing in society. This column, however, is not solely about Jethmalani’s conscience or contro- versies. Rather, I want to focus here on the importance of representation for all in court, specifically in criminal cases. This right is under threat, not specifically from the state or government, but rather from non-state actors, as I will discuss later in the column. While I have written about the right to legal representation in this column in the specific context of sexual assault offences (Kumar 2017), it is worth reiterating in a broader context as well. Eroding Right to Representation It goes without saying that the right to be represented by a lawyer of one’s choos- ing is one of the fundamental aspects of a fair trial in criminal cases. Article 14 of the International Covenant on Civil and Political Rights provides expressly for it, Article 22 of the Constitution of India guarantees it for those arrested, while Section 303 of the Code of Criminal Pro- cedure ( CrPC), 1973, expressly provides for the right to be defended by a pleader of one’s choice at a criminal trial. Even at the time of the Constitution coming into force, Section 340 of the then applicable CrPC, 1898 provided for the same. The Supreme Court in Husainnara Khatoon v State of Bihar (1980) has elevated this statutory right to the status of a funda- mental right by reading this into the right to life and liberty protected under Article 21. The corresponding duty to provide representation is not just of the state and its agencies. The Supreme Court has clarified in A S Mohammed Rafi v State of Tamil Nadu (2011) that the trend of bar associations refusing to represent the accused or certain sections of people (in this case, the police) must be severely censured and that a bar association can- not prevent its members from represent- ing anyone. This is only a reiteration of the Standards of Professional Conduct and Etiquette found in the rules framed by the Bar Council of India, which require that an advocate accept a brief in any court or tribunal they practise, except in special circumstances. The Supreme Court’s exhortation and the Bar Council’s rules, however, have not deterred advocates from passing such resolutions. In June this year, the Aligarh District Bar Association passed a resolution refusing to defend the accused in the murder of a minor girl (Jaiswal 2019). Such resolutions disproportionately