Can Bar Associations refuse to represent an accused? What does the law say?

What is the Supreme Court’s take?

The Supreme Court has consistently held that every accused has the right to fair trial and legal representation and it is illegal, unconstitutional and contrary to professional ethics to deny that right.

In a Supreme Court judgment in 2010, A.S. Mohammed Rafi v. State of Tamil Nadu, the case arose out of a confrontation between lawyers and police personnel in Coimbatore. Following the incident, a local Bar Association passed a resolution that none of its members would represent the accused police personnel. A Division Bench of Justices Markandey Katju and Gyan Sudha Misra held that such resolutions by Bar bodies were “wholly illegal, against all traditions and professional ethics”.

Justice Katju observed, “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, and correspondingly, it is the duty of the lawyer to defend him.”

The court declared in the judgment that “all such resolutions of Bar Associations in India are null and void and the right-minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country”.

The court said that “the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the statute and professional ethics.”

The Supreme Court judgment authored by Justice Katju further referred to the national freedom struggle, where revolutionaries against British rule were defended. The court had said that it was “disturbed” by news reports of Bar Associations refusing to defend certain accused persons. The court even mentioned that at the Nuremberg trials in the aftermath of the Second World War, the Nazi war criminals responsible for killing millions of people were yet defended by lawyers.

What is the accused’s right to be defended?

Article 22(1) of the Constitution guarantees that no arrested person shall be denied the right “to consult, and to be defended by, a legal practitioner of his choice”. Article 14 provides for equality before the law and equal protection of the laws within the territory of India.

The Supreme Court has recognised the right to a fair trial as an integral part of the right to life and personal liberty under Article 21.

Article 39A, a Directive Principle of State Policy, further requires the State to ensure that the legal system promotes justice on the basis of equal opportunity and that no citizen is denied access to justice because of economic or other disabilities, including through free legal aid.

Together, these provisions form the constitutional foundation of an accused person’s right to legal representation.

What do the Bar Council of India Rules say?

The ‘Standards of Professional Conduct and Etiquette’ chapter of the Bar Council of India Rules says that “an advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.”

Though the rules provide “special circumstances” for refusing to accept the case, the Uttarakhand High Court in Kuldeep Agarwal v. State Of Uttarakhand And Others (2019) clarified that “special circumstances mentioned in Clause II, justifying refusal of an advocate to accept a particular brief, refers, by the use of the word “his”, to the advocate in his individual capacity, and not to the Bar Association whose members are advocates”.

“While an advocate may chose, in special circumstances, not to appear in a particular case, his right to appear on behalf of an accused cannot be denied by any threat of removal of his membership of the Bar Association which cannot, legally or ethically, prohibit an advocate from appearing for a particular accused,” the High Court noted.

Have such resolutions been passed before?

Yes. Similar resolutions have been passed by Bar Associations in several high-profile criminal cases.

Following the 2008 Mumbai terror attacks, a Bar resolution opposed legal representation for arrested terrorist, Ajmal Kasab. The legal aid lawyer initially assigned to him declined to appear, while another advocate who agreed to defend him faced political threats before a lawyer was eventually appointed under police protection.

After the December 16, 2012 Delhi gangrape case, lawyers at the Saket courts passed a similar resolution refusing to represent the accused. Likewise, lawyers declined to defend the accused in the 2019 Hyderabad veterinary doctor’s rape and murder case.

An accused should not be denied access to a lawyer, the Supreme Court said in 2017, when the Gurgaon Bar Association passed a resolution banning any of its lawyers from representing a senior official of the Ryan Group of schools in the Pradyuman Thakur murder case. The court said, “For the rule of law to be upheld, it is essential that the right to counsel is zealously protected.”

How have courts dealt with such resolutions?

As mentioned earlier, the Uttarakhand High Court had in 2019 declared null and void a resolution passed by the Kotdwar Bar Association threatening to terminate the membership of any lawyer who represented an accused in the murder of an advocate. The court directed the State Bar Council to initiate action if similar resolutions were passed in future and observed that advocates obstructing court proceedings could face action under the Contempt of Courts Act.

In 2020, the Karnataka High Court criticised the Hubballi Bar Association after lawyers objected to advocates representing Kashmiri students accused of raising pro-Pakistan slogans. The Bench described the conduct of lawyers on the Dharwad court premises who prevented advocates from filing bail applications as “sheer militancy” and observed that even Ajmal Kasab had received a fair trial with legal representation. It also indicated that such resolutions could amount to criminal contempt.

More recently, the Madras High Court in Manikandan Nair v. State of Tamil Nadu in 2025 reiterated that Bar Associations cannot formally or informally prevent advocates from appearing for any accused. Justice B. Pugalendhi observed that “the Bar is not a trade union; it is an institution of constitutional significance,” and that any attempt to dictate who may or may not be represented before a court undermines the rule of law.

Such resolutions violate the rights of both the accused and victims of crime. They are not only unethical, but violate the fundamental rights of the accused to a fair trial.

In the case of J. Jayalalithaa v. State of Karnataka, (2014), the Supreme court observed that “fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case”.

Thus, the Supreme Court has consistently held that the right to legal representation is a core feature of a fair trial.