Take swift action against Bar associations passing resolutions asking lawyers not to defend accused: Karnataka High Court to State Bar Council

KEY TAKEAWAYS

• Strong action against Bar Associations that pass resolutions instructing their members not to defend a specific accused.
• Supreme Court judgment in AS Mohamed Rafi vs State of Tamil Nadu
• Bar Association resolutions in India are null and void and that right-thinking lawyer should disregard and defy them if they want democracy and the rule of law to flourish in this country.

INTRODUCTION

The Mysore District Bar Association had previously released a resolution prohibiting its members from representing Nalini Balakumar, who is accused of sedition for carrying a 'Free Kashmir' placard during anti-CAA protests at Mysore University.

The Court was hearing a petition alleging that the Mysore District Bar Association had passed a resolution refusing to defend a student arrested for sedition during an anti-CAA rally.

The remark was made in response to a resolution passed by a banning lawyer from defending Nalini Balakumar, who is accused of sedition for carrying a 'Free Kashmir' placard during anti-CAA protests.

The Karnataka High Court made it clear on Monday that if Bar Associations pass unconstitutional resolutions, they would not be silent.

DETAILS

The Karnataka High Court recently stated that the Karnataka State Bar Council should take swift and strong action against Bar Associations that pass resolutions instructing their members not to defend a specific accused.

According to the Supreme Court judgment in AS Mohamed Rafi vs State of Tamil Nadu, Bar associations passing resolutions that their members will not appear for convicted terrorists, rape suspects, mass murderers, and other cases is against the Constitution, rules, and professional ethics, according to a division bench led by Chief Justice Abhay Shreeniwas Oka and Justice Suraj Govindaraj.

"Every Bar Association's conduct in passing such a resolution that none of its members will appear for a specific accused, whether on the ground that he is a policeman or on the ground that he is a convicted terrorist, rapist, mass murderer, etc. is against all forms of the Constitution, the Statute, and professional ethics," the Supreme Court had said. This is the statute that binds the entire Bar Association and its members. The Karnataka State Bar Council has been informed of the legal situation, and we are confident that if any bar association violates the law established in AS Mohammed Rafi vs State of Tamil Nadu, the State Bar Council will act swiftly "According to the Court.

The Court was hearing a petition filed by Advocate Ramesh Naik against the Mysore District Bar Association for allegedly passing a resolution refusing to represent Nalini Balakumar, a student who was charged with sedition for carrying a "Free Kashmir" poster during an anti-CAA protest last year.

The Association told the court that more than a hundred of its advocates had come forward to file vakalat on the accused's behalf, and the court eventually granted her anticipatory bail. The Court expressed its gratitude in writing.

The resolution was pasted on the association's notice board by "unknown miscreants," according to advocate Basavaraj S Sappanavar, who represents the association.

"Some miscreants did it shortly after I (the Bar Association) learned that (the resolution) had been deleted."

The council also told the court of a response from the Mysore City Advocates Multipurpose Cooperative Society, which stated that the impugned resolution had not been passed.

"It is not in question that a notice was published on Respondent 2's notice board," the court wrote in its order. The respondent has lodged a statement of complaints, claiming that it has not passed such a resolution and that representatives appeared on behalf of the accused and that the accused was released on bail. The bar association has filed a memo in response to the March 16 order. A copy of a letter from the Mysore City Advocates Multipurpose Cooperative Society dated March 25 is published. It is claimed there that the aforementioned community has not passed such a resolution.”

"As a result, no one knows who posted the notice on the bar association's notice board," the Court noted.

PRECEDENTS

A.S.Mohammed Rafi vs the State Of Tamilnadu on 6th December 2010

The court in the following case said, Before we leave this case, we'd like to make a point about a legal and constitutional issue that has caused us much concern in this case. It appears that the Coimbatore Bar Association has passed a resolution stating that no member of the Coimbatore Bar will defend the accused cops in the criminal case.

Several bar associations across India, whether High Court or District Court, have passed resolutions stating that they will not defend a certain individual or persons in a specific criminal case. When police officers and attorneys argue, the Bar Association passes a resolution stating that no one can defend police officers in criminal cases in court. Similarly, the Bar Association could pass a resolution stating that they will not defend a terrorist, a person accused of a cruel or heinous crime, or a person charged with rape.

Such resolutions, in our view, are completely unconstitutional, go against all bar traditions, and violate professional ethics. Every individual, no matter how wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious, or repulsive he may be regarded by society, has the right to be represented in a court of law, and it is the lawyer's responsibility to do so.

When the great revolutionary writer Thomas Paine was imprisoned and tried for treason in England in 1792 for writing his popular pamphlet "The Rights of Man" in support of the French Revolution, he was briefed by the great advocate Thomas Erskine. Erskine was the Prince of Wales' Attorney General at the time, and he had been warned that if he accepted the brief, he would be fired. Erskine, undeterred, welcomed the brief and walked away.

This great practise has been continued by Indian lawyers. Our lawyers defended the Bengal revolutionaries during British rule, the Indian communists in the Meerut conspiracy case, the Razakars of Hyderabad, Sheikh Abdulah and his co-accused, and some of the suspected assassins of Mahatma Gandhi and Indira Gandhi. Dr Binayak Sen's case has recently been defended. No reputable Indian lawyer has ever shied away from liability on the grounds that it would make him controversial or personally dangerous.

Article 22(1) of the Constitution of our own nation-states:

"No person who is arrested shall be held in custody without being told of the reasons for his arrest as soon as possible, nor shall he be denied the right to consult with and be defended by a legal practitioner of his choosing."

It goes against the Bar's long-standing history of protecting those convicted of crimes. A resolution like this is a disgrace to the legal profession. We declare that all such Bar Association resolutions in India are null and void and that right-thinking lawyers should disregard and defy them if they want democracy and the rule of law to flourish in this country. A lawyer's responsibility is to protect regardless of the consequences, and a lawyer who refuses to do so is not following Gita's message.

CONCLUSION

This is the statute that binds the entire Bar Association and its members. The Karnataka State Bar Council has been informed of the legal situation, and we are certain that if any bar association violates the law set out in paragraph 24 of the said decision in the case of AS Mohammed Rafi vs State of Tamil Nadu, the state bar council will act swiftly."Following that, the court dismissed Advocate Ramesh Naik L.'s petition.

A lawyer cannot deny a brief if the client is able to pay his fee and the lawyer is not otherwise engaged, according to professional ethics. As a result, any Bar Association's conduct in passing a resolution that none of its members will testify for a specific accused, whether on the grounds that he is a police officer or a convicted terrorist, rapist, mass killer, or other, is in violation of all constitutional, statutory, and professional ethics norms.