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Taking critical note of Bar Association resolutions urging lawyers to desist from appearing for accused in certain cases, the Uttarakhand High Court recently reiterated that every accused has a fundamental right to legal representation, regardless of the offence he is accused of. The Court highlighted,
“Every accused has a fundamental right, under Article 22(1) of the Constitution of India, not to be denied the right to consult, and to be defended by, a legal practitioner of his choice..If that be the laudable object of Article 22(1) in Part III of the Constitution, and Article 39-A in Part IV, any fetter placed on the fundamental right of the accused, to be defended by a lawyer of his choice, be it for economic or other reasons, is illegal and unconstitutional.”
The Court proceeded to emphasise that there is a professional duty cast upon lawyers to represent the best interests of their clients, in accordance with law, regardless of personal views as to the guilt of the client.
“Clause 15 in Section II, of Part VI Chapter II of the Bar Council of India Rules, stipulates that it shall be the duty of an Advocate to fearlessly uphold the interests of his client, by all fair and honourable means, without regard to any unpleasant consequences to himself or any other. It requires him to defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.”
The Bench of Chief Justice Ramesh Ranganathan and Justice Alok Verma recounted these principles while setting aside a notice passed by the Kotdwar Bar Association, which had earlier barred advocates from appearing on behalf of the accused in the Sushil Raghuvanshi murder case. The Bench took critical note that,
“…we face a situation today where the miniscule few, who dare to tread the solitary path of taking up the cause of the damned, are threatened with dire consequences, for nothing more than the discharge of their duties as an Advocate…
…Several Bar Associations (in the present case, the Kotdwar Bar Association) have been passing resolutions that no member of their association should defend a particular person or persons in a particular case, or a person accused of a brutal or a heinous crime, though such resolutions are wholly illegal, against all traditions of the Bar, and against professional ethics.“
The original notification dated May 17, 2019 had threatened Association members of membership termination if they were to appear for the accused in the case. However, after the High Court castigated the Kotdwar Bar Association for the same, a clarification was issued that there would be no such termination of membership.
All the same, the Association retained a part of the notification which called on members to refrain from appearing for the accused in the case. The High Court, however, was unequivocal in its disapproval of the same.
“The aforesaid resolution, passed by the Kotdwar Bar Association, is against all norms of the Constitution, the statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused of a crime. Such a resolution of the Bar Association is null and void, and right-minded lawyers should ignore and defy such a resolution if they want democracy and the rule of law to be upheld in this Country. It is the duty of a lawyer to defend, no matter what the consequences “
The Court had been informed by the petitioner in the case, Advocate Kuldeep Agarwal, that he had been harassed by Association members for taking up the case of Vinod Kumar, one of three persons arrested this year for the shooting of a member of the Kotdwar Bar Association, Sushil Raghuvanshi in 2017.
The harassment prompted Agarwal to approach the High Court for relief, through Advocates Dr Kartikey Hari Gupta and Pallavi Bahuguna. The Court was told that Agarwal had been prevented from appearing for his client through oral threats and lock down of court premises following the passage of the May 17 resolution. In response, the Court made it clear that the Association cannot resort to such illegal threats of preventing advocates from appearing for the accused.
The Uttarakhand Bar Council and the Kotdwar Bar Association, through Advocates Piyush Garg and DS Mehta, countered that advocates are allowed to refuse appearance in cases for special circumstances. In this case, it was argued that the Bar Association members had voluntarily chosen to refrain from appearing for the accused as an expression of grief over the murder of their colleague.
However, the Court was unimpressed by the argument, opining that such decisions cannot be made on behalf of the entire Bar. As noted in the judgment,
“…special circumstances may justify his [an advocate’s] refusal to accept a particular brief. The “special circumstances” mentioned in Clause II, justifying refusal of an Advocate to accept a particular brief, refers, by the use of the word “his”, to the Advocate in his individual capacity, and not to the Bar Association whose members are Advocates.
While an Advocate may chose, in special circumstances, not to appear in a particular case, his right to appear on behalf of an accused cannot be denied by any threat of removal of his membership of the Bar Association which cannot, legally or ethically, prohibit an Advocate from appearing for a particular accused…
…Whatever the belief of the members of the Kotdwar Bar Association may be, the fundamental postulates of criminal jurisprudence, and the penal laws in India, are primarily based upon certain procedural values which are the right to a fair trial and the presumption of innocence. A person is presumed to be innocent till proven guilty…”
The Court ultimately quashed the Association’s resolution as null and void, after noting that,
“The Kotdwar Bar Association was…not justified in pre-determining the guilt of the accused even before investigation is completed, and in passing such a resolution based on this premise.“
The Association was also directed to pay Rs 25,000 as costs to the the petitioner within four weeks. Further, the Court directed that no such resolutions should be acted on in the future, lest disciplinary action be invited.
“In case such resolutions are passed in future by any of the recognized Bar Associations, including the Kotdwar Bar Association, the Uttarakhand State Bar Council shall forthwith initiate action against the office-bearers of such an Association, and the Advocates guilty of such acts of misconduct, referring the complaint to its Disciplinary Committee.”
The Court concluded its order by directing the Additional District Judge, Kotdwar to sternly deal with any attempts made by Association members to prevent the petitioner from discharging his lawyerly duties. To this end, directions were also issued to the police to ensure that adequate protection is given if need be.
Further, the Additional District Judge has also been instructed to make a reference to the High Court for initiating contempt proceedings if court proceedings are interrupted by lawyers preventing appearance on behalf of an accused.