The Madras High Court recently recalled instances of lawyers defending politically sensitive accused persons, including Ram Jethmalani and Pran Nath Lekhi, to emphasise that professional obligations must take precedence over political loyalty.

The Court also appealed to the Kanyakumari Bar Association not to pass resolutions preventing lawyers from appearing for accused persons, while clarifying that its appeal was to the conscience of the Bar and not a judicial directive.

A Division Bench of Justice G.R. Swaminathan and Justice M.D. Sumathi made the observations while dismissing a writ petition seeking a direction to the Bar Council of Tamil Nadu and Puducherry to initiate disciplinary action against a former Additional Public Prosecutor over his handling of a criminal case.

The Court held that the allegations against the former prosecutor did not fall within the ambit of professional misconduct warranting the Bar Council's disciplinary intervention.

Madras HC Recalls Pran Nath Lekhi, Ram Jethmalani

In its October 13 order, the Bench recalled how Pran Nath Lekhi, a prominent lawyer associated with the BJP, defended Satwant Singh, one of the assassins of former Prime Minister Indira Gandhi.

The Court noted that the party felt embarrassed by Lekhi's decision and asked him to return the brief. However, Lekhi placed his professional obligations above party loyalty.

"Lekhi was made of sterner stuff. Professional obligations came first. It ranked above party loyalty. He quit the party and fought the case till the bitter end" the Court recalled.

The Bench also recalled Ram Jethmalani's decision to defend Coomar Narain, the prime accused in a spy scandal during the 1980s. Jethmalani was then the BJP's Vice-President, and the party was troubled by his decision to appear for the accused.

The Court observed that Jethmalani, like Lekhi, chose his professional duty to the client over political considerations.

The Bench also referred to the Supreme Court’s 2011 decision in A.S.Mohammed Rafi Vs State of Tamil Nadu, wherein other examples of lawyers defending accused persons despite political or public pressure were mentioned.

These included Thomas Erskine, who defended revolutionary writer Thomas Paine when he was tried for treason in England in 1792, and Bhulabhai Desai, who defended the accused in the Indian National Army trials at the Red Fort in Delhi.

The Top Court had recalled lawyers who defended Indian revolutionaries, communists in the Meerut conspiracy case, Sheikh Abdullah and his co-accused, and persons accused of assassinating Mahatma Gandhi and Indira Gandhi. It also referred to lawyers who represented Nazi war criminals at the Nuremberg trials.

Madras HC Appeals To Kanyakumari Bar Association Against Such Resolutions

The observations arose in the context of a resolution passed by the Kanyakumari Bar Association prohibiting its members from appearing for the accused in a criminal case in which the petitioner was the de facto complainant.

The petitioner, a practising advocate, was himself the complainant in Crime No. 219 of 2021, registered at Asaripallam Police Station. The case had been charge-sheeted and was pending trial before the First Additional District and Sessions Judge, Tirunelveli.

According to the judgment, the case should ordinarily have been tried in Kanyakumari district. However, because the complainant was a practising lawyer and the local Bar Association had passed the resolution preventing its members from representing the accused, the accused approached the Supreme Court and obtained an order transferring the case to Tirunelveli district.

Against this backdrop, the High Court observed that the Supreme Court's ruling in A.S. Mohammed Rafi should be mandatory reading for every Bar Association office-bearer.

The Bench stated: "The Kanyakumari Bar Association should not pass such a resolution in future."

It clarified, however, that the observation was not a judicial direction. "This is not a judicial directive but an appeal to the conscience of the members of the Bar Association" it said.

Madras HC says Bar Council cannot initiate action against Prosecutor merely for not following Police advice

The petitioner had sought disciplinary action against former Additional Public Prosecutor M. Karunanithi, alleging that he had failed to discharge his duties properly while handling the criminal case.

One of the principal allegations was that the prosecutor did not move an application seeking cancellation of the accused's bail despite a written request from the investigating officer.

The petitioner also alleged that the prosecutor did not seriously oppose the accused's request for the return of his vehicle's registration certificate and pointed out that certain material records relating to the case were missing.

The Bench, however, held that the prosecutor was not bound to follow the investigating officer's advice and had to exercise independent judgment in conducting the prosecution.

It observed: "The fifth respondent was the prosecutor for a given period. He is no mouth piece of the Police. Merely because the Investigation Officer recommends that a petition for cancellation of bail should be filed, the Prosecutor is not obliged to abide by that advice. He has to take an independent decision."

The Court added that decisions on whether to mark a document or examine a witness rested with the prosecutor, not the police.

"The call is his and his alone. A Prosecutor must function fearlessly": the division bench remarked.

The Bench warned that subjecting a prosecutor to disciplinary scrutiny merely because the police disagreed with his decisions could undermine the rule of law.

It held that only prima facie material indicating professional misconduct could justify the Bar Council being called upon to examine a complaint.

If a presiding judge found something seriously amiss in the prosecutor's conduct and recorded an adverse finding in a judicial order, that could provide a basis for disciplinary action, it said.

The Court further emphasised that a prosecutor's role was to establish the alleged crime fairly, rather than to persecute the accused or simply repeat the police version.

"The Prosecutor will not parrot-like echo the Police version": the Court said.

Ultimately, the Bench held that the allegations against Karunanithi did not constitute professional misconduct attracting the Bar Council's disciplinary jurisdiction. Finding no ground to issue a direction, it dismissed the writ petition without costs.

Case title - R.A.Jaikumar v. The Home Secretary, Government Of Tamil Nadu And Ors