Advocates Challenge Hubli Bar Association Resolution Refusing Legal Aid To Kashmiri Students Arrested On Sedition Charges [Read Petition]

The petition filed by advocate B T Venkatesh and others was mentioned before a bench headed by Chief Justice A S Oka, which asked the petitioners to file an affidavit in court stating on oath the names of advocates who would file vakalath for the accused before the trial court. Following which all the advocates, (petitioners), filed their personal affidavits stating their consent to appear for the accused. The petition will now be taken up for hearing on Thursday, February 20.

The petition reads, "The Petitioners, are all advocates practicing within the State of Karnataka. They are filing this petition as a public interest litigation, as the issues involved in this petition affect the right of legal representation of accused and the dignity of the legal profession. The issues raised herein affect the larger public interest and the fundamental right to all persons to legal representation."

Further the petition seeks quashing of the resolution passed by the Bar Association, Hubli dated 15.02.2020, that has prohibited any advocate from appearing for the accused in Cr. No. 10/2020 registered by the Gokul Road police station, Hubbali. The Petition also seeks for appropriate action to be taken in regard to the attempted attack on these students by Advocates and other persons within court premises.

The plea states that the resolution passed by the Hubli Bar Association is illegal, without the force of law and violates the fundamental right of the accused under Article 22(1) of the Constitution of India, which states that all persons who are arrested or detained have a fundamental right to be represented by a legal practitioner of his or her choice. It is also in flagrant violation of the order of the Hon'ble Supreme Court in A.S. Mohammed Rafi Vs. State of Tamil Nadu Rep. by Home Dept. and Ors. [(2011) 1 SCC 688, AIR 2011 SC 308]

Further, it is stated that the said resolution has resulted in the creation of an atmosphere of fear and intimidation due to which none of the Advocates feel safe and secure to appear before the Hon'ble Court and this has had a chilling effect on advocates coming forward to represent the accused.

The petition makes a mention of a similar resolution passed by the Mysuru Bar Association preventing all members of the Association from appearing in respect of the bail petitions file in Crime No. 2/2020 of Jayalakshmipura Police Station, Mysuru under Section 124-A of the Indian Penal Code, for accused Nalini Balakumar, who was charged for holding a Free Kashmir placard.

Such resolutions, the petition says have been held to be illegal by the Apex Court on several occasions. Despite the same, such resolutions continue to be passed resulting in creating a situation of fear and intimidation.

As regards the effect of the resolution the petition states that "Impugned actions and omissions of the respondents deprive the fundamental right of accused to have a free and fair trial, which is the sine qua non of Article 21 of the Constitution as held in Sri Jayendra Saraswathy Swamigal (II) v. State of T.N. (2005) 8 SCC 771 and K. Anbazhagan v. Supdt. of Police (2004) 3 SCC 767.

It also violates the common law "cab-rank rule" which is encoded into Indian statutory law in Rule 11 of the Bar Council of India Rules, under Section II titled "Duty to the Client' of Chapter II on "Standards of Professional Conduct and Etiquette"

It states that "The impugned resolution cannot be defended on the basis of the Rule 11 exception for "special circumstances" which justify a refusal to accept a particular brief. Indeed, such special circumstances can never exist for a collective refusal by a whole Bar Association to accept a particular brief. This was recognised by the Uttarakhand High Court in Kuldeep Agarwal v. State Of Uttarakhand and ors. 2019 SCC OnLine Utt 856.

By way of Interim relief the plea prays for directions to stay the operation of the resolution. Ensure the police protection for the advocates who represent the accused. Further direct the authorities to secure all evidence of CCTV in from the Court premises and produce the same before this Hon'ble Court.

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