In the past month, the state of Karnataka has seen two Bar Associations issue resolutions against representing those accused of sedition – first, the Mysuru Bar Association in the case of a student booked for sedition for holding up a ‘Free Kashmir’ poster at a protest against the Citizenship Amendment Act; and the second by the Hubli Bar Association in the case of three Kashmiri students who are booked for sedition for allegedly saying ‘Pakistan Zindabad.’ The resolutions have been contested in the Karnataka High Court, and on Thursday, Chief Justice Abhay Oka expressed extreme displeasure at the resolution.
Under the Constitution, it is the fundamental right of every citizen in India to get legal aid. Section 39A of the Constitution speaks about the right to equal justice and free legal aid to all citizens in the country. So what do the recent resolutions, passed by two Bar Associations in Karnataka not to represent the accused in cases, mean? Are they legally valid, and are they in the spirit of the Constitution of India and tenets of justice?
Maitreyi Krishnan, an advocate in the Karnataka High Court, says that though the Supreme Court has held that such resolutions are illegal and unconstitutional, such resolutions are being passed, and more so, in cases that are specifically anti-government. “Such resolutions are in complete negation of what the Constitution stands for and the role of a lawyer and the oath taken by a lawyer. The Supreme Court has clearly stated that Bar Associations cannot pass such resolutions,” she says.
This is not the first time that a Bar Association has adopted a resolution not to represent someone. This happened in the 2012 Nirbhaya gangrape case and more recently, the Pollachi sexual abuse case and the Telangana veterinarian gangrape and murder case. Advocate BT Venkatesh says that earlier, such boycotts were announced in cases where advocates were directly affected, like the case where advocates were injured at Karnataka High Court in 2012. However, of late, moral turpitude is not being accepted, prompting lawyers to refrain from representing certain accused, he adds.
“A tendency to be moralistic is inbuilt in our culture. Law comes later. Many lawyers choose not to represent those accused in gruesome cases, but when it comes to other cases, say corruption cases, some lawyers take pride in representation. We have no issue there because only money is involved. But of late, to keep a popular sentiment, you find bar associations boycotting such cases,” says Venkatesh.
He also adds that a particular kind of atmosphere in the country may also be prompting lawyers to maintain their distance from controversial cases. "Because of the intolerance that has increased in the political atmosphere, it also gets reflected in the court system, especially in advocates,” Venkatesh adds.
Maitreyi says that such resolutions in these specific cases also contribute to spreading a certain amount of fear among lawyers who are not unwilling to represent the said accused.
"The Supreme Court has clearly said that such resolutions are void, illegal and are of no value. But such resolutions vitiate the entire atmosphere, and even if it is illegal, it means that the entire system and lawyers are forced into a state of fear, you don't know what will happen to you, you don't know if you will get beaten up," she says.
However, such resolutions are unlikely to stand the test of legality. In the current case, the Karnataka High Court has asked the Hubli Bar Association to reconsider its resolution. “Well, we have no other choice than to obey. Law is supreme,” a member of the Bar Association in Hubbali tells TNM.
TNM got in touch with one of the advocates who had signed the Hubbali Bar Association resolution, who justifies the resolution saying they weren’t barring anyone from representing the accused, but just declaring that they will not represent them. “We passed it only in the interest of the nation. We have not asked anyone not to represent, we have said that we will not represent. We passed it because what they have uttered is against the country and such a resolution will also remind the coming generation not to do such things, let them also understand,” one of the signees of the resolution, who did not wish to be named, tells TNM.