Right to due process

Context: On February 17, Hubli (Hubballi) bar association has decided not to represent and passed a resolution to prevent lawyers from outside from representing three Kashmiri students facing charges of sedition.

Background:

• In January 2020, the Mysore bar association had passed a resolution to prevent lawyers from representing and defending a student facing sedition charges as it considered seditionaccusedan anti-national. The student was later defended by a group of 170 lawyers from Bengaluru.
• On February 17, Hubli (Hubballi) bar association has also taken a similar step. A petition against the resolution was filed before Karnataka High Court.
• On February 26, Karnataka High Court directed the office bearers of Hubli (Hubballi) bar association to be present before Court. The High Court was later informed that the association had withdrawn its resolution.

Criticisms of bar association’s efforts to prevent lawyers from defending sedition cases:

Against fundamental right of accused: Bar association’s efforts toprevent lawyers from representing or defending the citizens facing sedition cases are against the rule of law and individual’s fundamental right to be represented by a lawyer (legal practitioner) of his choice. Article 22 of the Constitution provides arrested citizens and foreignersa right to consulta legal practitioner of his choice. Article 22 also provides them the fundamental right to be defended by a legal practitioner of his choice. Under the rule of law, citizens cannot be denied these fundamental rights.

Prevent delivery of justice to arrested person: Bar association’s efforts toprevent lawyers from representing or defending the citizens facing sedition cases prevent delivery of justice to the accused. Defenceof accused by lawyers will only make it clear whether the state has applied sedition charges carefully or carelessly because, during the legal process, Courts scrutinize actions of state and its agencies. The efforts to prevent lawyers from representing sedition cases block legal process and scrutiny of actions of state and its agencies.

Against Bar Council of India’s rules and standards: Bar Council of India has set up standards that govern the professional conduct of lawyers. As per the standards, lawyers are bound to accept any case in courts where they practice at a fee as per his stature and nature of the case. Layers should also justify refusing to represent a case. The cab-rank rule prevents lawyers from refusing cases on the bases of their personal opinions and biases. As per the rule, a lawyer should accept cases in the field in which they are competent and in which they usually practice at a court. The lawyers should accept the cases by a client in the field of his competency and experience without being influenced by opinion about guilt or innocence of approaching client.

Against the judgments of Supreme Court: In 2010, the Supreme Court has said that every person has the right to be defended in a court of law. The Court has also said that the lawyer has a duty to defend every person having the right to be defended in a court of law. In A S Mohammed Rafi vs State Of Tamil Nadu, Supreme Court has ruled against a resolution of Coimbatore Bar Council. Apex Court declared the resolution as null and void. The resolution was passed to prevent lawyers from defending policemen accused of attacking lawyers. Recently, Supreme Court Judge has also said that increasing trend of bar associations passing resolutions to prevent lawyers from representing cases in which the act of accused is considered as anti-national obstructs justice.

Conclusion:

When Bar associations make efforts or pass resolutions to prevent lawyers from representing and defending accused persons, they violate the fundamental rights of individuals, disobey the rules and standards of professional conduct and go against the judgments of the Supreme Court. Several bar associations in India make efforts to prevent the defense of accused by lawyers or pass resolutions not to defend accused, and this trend has been rising. In the case of a resolution passed by Hubli (Hubballi) bar association, the High Court has rightly intervened to protect the fundamental right provided to accused by the Indian Constitution.