right-to-defend-when-lawyers-refuse-to-defend-accused

Recently, The Hubli Bar Association submitted that it would take back the resolution after Karnataka High Court observed that it is unethical and illegal for lawyers to pass resolutions against representing accused in court. 

What was the issue?

  • The Karnataka High Court stated that it would not dispose of the petition filed by 24 lawyers until the resolution passed by the Hubli Bar Association is not withdrawn.
  • Earlier the Hubli Bar Association has passed a resolution that none of its members would appear for three Kashmiri students arrested on charges of sedition, for posting pro Pakistani Slogans.

Previous incidents of passing such resolutions: 

  • 2008 terror attack in Mumbai: Resolution was passed against Ajmal Kasab.
  • 2012 Delhi Gang Rape: lawyers in Saket court passed a resolution not to defend the accused.
  • Bar Association of Hyderabad passed a resolution against representing four men who had been arrested for the rape and murder of a veterinary doctor.

What did the Court say?

  • Petition affecting the right of legal representation: Issues involved in the petition affect the right of legal representation of the accused and the dignity of the legal profession.
  • Earlier Supreme Court has also stated that affecting this right is against constitutional norms and professional ethics.

Rules on Professional Standards: Under the advocate act rules on professional standards are to be followed by lawyers which are part of the Standards of Professional Conduct and Etiquette.

  • As per the rules, at a fee consistent with his standing at the Bar and the nature of the case an advocate is bound to accept any brief in the courts or tribunals.

 

Right to be defended

Constitution about the right to be defended

  • Article 22(1) gives the fundamental right to every person not to be denied the right to be defended by a legal practitioner of his or her choice. 
  • Article 14 provides for equality before the law and equal protection of the laws within the territory of India.
  • Article 39A states that equal opportunity to secure justice must not be denied to any citizen by reason of economic or other disabilities, and provides for free legal aid.

Judgments/Observations of various Courts

  • An S Mohammed Rafi vs State of Tamil Nadu, 2010: The issue arose from a confrontation between a lawyer and policemen. Madras High court called it completely unprofessional.
  • Such Resolutions are  NULL and VOID: SC cited various examples of the right to be defended. for instance, revolutionaries against British rule and alleged assailants of Mahatma Gandhi.
    • SC made an observation that such resolutions are wholly illegal and against all traditions of the bar.
    • Also, such resolutions are “a disgrace to the legal community”.
  • Ryan School Case: In 2017the Supreme Court directed lawyers of the Gurgaon District Bar Association not to obstruct any lawyer defending the accused in the murder of a seven-year-old schoolboy.
  • Kuldeep Agarwal V Kotdwar Bar Association: Kotdwar Bar Association passed a resolution stating that anyone who represented the accused in the murder case of an advocate would have their membership of the Bar terminated.
    • Uttarakhand High Court directed the State Bar Council to initiate action against office-bearers of the Bar Association if such resolutions were passed in the future.
    • The court also said they can be punished under section 15(2) of Contempt Of Court act 1971.

If a single advocate refuse to accept a particular brief

  • Uttarakhand High Court 2019: the court clarified that these special circumstances refer to an individual advocate who may choose not to appear in a particular case, but who cannot be prohibited from defending an accused by any threat of removal of his membership of the bar association.

 

JV’s Prelims Snippets

What is Contempt of Court? 

  • It is the offense of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the court. Contempt of Courts Act, 1971
  • The Contempt of Courts Act of 1971 is one of the most powerful statutes in the country. It gives the constitutional courts wide powers to restrict an individual’s fundamental right to personal liberty for “scandalizing the court” or for “willful disobedience” of any judgment, writ, direction or order.
  • The Act divides contempt into civil and criminal contempt.
  • Civil contempt refers to the willful disobedience of an order of any court.
  • “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act which scandalizes the authority of Court.
  • Criminal contempt includes 1. Restrictions on writings or speeches affecting matters pending in court 2. Punishment for defiance of Court Orders 3. Punishment for Scandalous attacks on judges or the court
  • ‘Scandalising the Court’ broadly refers to statements or publications which have the effect of undermining public confidence in the judiciary.

Also readThe Laws On Rape And Sexual Crimes

Cabinet Approves The IIIT Laws (Amendment) Bill, 2020

 

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