The Karnataka High Court on Thursday, 20 February, 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, and requested the association to reconsider the same.
The high court has directed that the Hubli Bar Association should be sent copies of the apex court’s judgment in the Mohammed Rafi case in 2011. In the said case, the Supreme 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 and professional ethics” and a “disgrace to the legal community”.
The bench, headed by Chief Justice AS Oka, expressed the opinion that once this case and other relevant materials were sent to the Hubli Bar Association, it would reconsider its decision, in light of the constitutional right to legal representation and the rules of the Bar Council of India.
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 February. If the Hubli Bar Association refuses to reconsider its resolution, it will need to explain its stance and why it is not illegal to the court on that day.
Why Was the Karnataka High Court Hearing This Case?
On 14 February, an 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 and 505 of the IPC) as well as sedition (Section 124A) for a video that they allegedly made and 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 February, 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 February, no lawyer agreed to represent them, and they were remanded to judicial custody for 14 days.
An attempt was also made to assault the students within the court premises, and after the police protected the students and got them away, some people threw slippers and stones at the police van.
In response to these developments, a group of 24 advocates filed a petition in the Karnataka High Court asking for:
- the Hubli Bar Association’s resolution to be quashed;
- an investigation conducted into the violence wherein the students were assaulted;
- 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 cannot refuse a brief.
While there is an exception for special circumstances, the petitioners argued that this was not applicable to the Bar Association’s resolution as this exception dealt with a lawyer’s individual circumstances, and did not justify a resolution by the association itself.
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 and void” and that “right minded lawyers should ignore and defy such resolutions if they want democracy and 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 and their right to a fair trial.
“That the practice of passing such resolutions has the effect of creating an atmosphere of terror and intimidation wherein advocates are coerced and forced, sometimes physically as well, from discharging their duties as advocates in appearing for the accused; these resolutions vitiate the entire legal arena and have a chilling effect on the free practice of the legal profession.”as mentioned in the petition
High Court’s Interim Order
While the Karnataka High Court has not 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.
He also asked the Bar Association to reconsider its decision – if they refuse to do so, their reasons will be heard at a subsequent hearing, with the next date set for 28 February.
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, and therefore the police had to ensure that their advocates are allowed to do their job effectively.
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