The Karnataka HC on Thursday, 20 Feb, observed that the Hubli Bar Association’s decision that none of its members would defend three Kashmiri students accused of sedition appeared to violate the law laid down by the Supreme Court of India, & requested the association to reconsider the same.
The HC has directed that the Hubli Bar Association should be sent copies of the Supreme Court’s judgment in the Mohammed Rafi case in 2011. In the said case, the Top Court had held that a resolution by a Bar Association saying none of its members will appear for a particular accused “is against all norms of the Constitution, the Statute & professional ethics” & a “disgrace to the legal community”.
The judges also ordered that the lawyers who have volunteered to appear for the accused students, including for their bail applications, should be given police protection.
The case will be taken up again on 28 Feb. If the Hubli Bar Association refuses to reconsider its resolution, it will need to explain its stance & why it isn't illegal to the court on that day.
Why Was the Karnataka HC Hearing This Case?
On 14 Feb, an First Information Report ( FIR) was registered against three Kashmiri students of KLE Engineering College in Hubballi, Karnataka, on the basis of a complaint by the principal of their college. The students were booked under provisions for hate speech (Sections 153A, 153B & 505 of the Indian Penal Code) as well as sedition (Section 124A) for a video that they allegedly made & shared on the anniversary of the Pulwama attack.
The executive committee of the Hubli Bar Association – the local lawyer’s body – then passed a resolution on 15 Feb, which said that none of its members would file a vakalath for the three students, ie, take up their briefs. When the students were produced before a Hubli magistrate on 17 Feb, no lawyer agreed to represent them, & they were remanded to judicial custody for 14 days.
In response to these developments, a group of 24 advocates filed a petition in the Karnataka HC asking for:
1. The Hubli Bar Association’s resolution to be quashed;
2. An investigation conducted into the violence wherein the students were assaulted;
3. Police protection for the advocates representing the three accused students.
The petitioners argue that the Hubli Bar Association’s resolution violates Rule 11 of the BCI Rules – the ‘bar-rank rule’ – which says that an advocate “is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practice.”As long as the client is willing to pay the lawyer’s fees, the lawyer can't refuse a brief.
The petitioners also argued that the resolution violated the Mohammed Rafi case, in which Justice Markandey Katju (for the Supreme Court) had said such resolutions are “null & void” & that “right minded lawyers should ignore & defy such resolutions if they want democracy & rule of law to be upheld in this country”.
They noted that the Hubli Bar Association was preventing lawyers from performing their duty as officers of the court, also part of the BCI Rules, as it was illegally curtailing the accused’s fundamental right to legal representation & their right to a fair trial.
High Court’s Interim Order
While the Karnataka HC hasn't quashed the Hubli Bar Association’s resolution at this time, it noted that the resolution was “ex facie against the law of the Supreme Court” in the Mohammed Rafi case.
After taking note of the submissions of the petitioner, Chief Justice Oka held that they would need to consider further whether the resolution amounted to interference with judicial proceedings, for which they would need to get the Hubli Bar Association’s response.
In the meanwhile, the judges clarified that any lawyers who want to represent the students could do so, including members of the Hubli Bar Association. Any such lawyers have been directed to intimate the police, who have been ordered to arrange protection for them.
The court also affirmed that the police had a duty to protect the constitutional rights of the accused, & therefore the police had to ensure that their advocates are allowed to do their job effectively.
Source Link
