The All India Lawyers’ Association for Justice (AILAJ) has learnt through media reports that the National Investigation Agency (NIA) has issued summons to the advocates representing the accused in the Bhima Koregaon matter for questioning on 28.08.2020 and strongly condemns such action of the NIA, which is not only an assault on the rights of the advocates, concerned but poses a very real threat to Advocates across the country and the right to legal representation itself.
The Constitution under Article 22(1) recognises the right of all persons accused to be represented. This has been reiterated by various Constitutional Courts repeatedly. The
Hon’ble High Court of Uttarakhandh has held in Kuldeep Agarwal v. State Of
Uttarakhand and ors:
“18. 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. ..
Article 39-A, in Part IV of the Constitution, relates to equal justice and free legal aid, and requires the State to secure the operation of a legal system which promotes justice on the basis of
equal opportunity and, in particular, to provide free legal aid by suitable legislation, or scheme or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The object sought to be achieved thereby is that no accused is denied his fundamental right to be defended by a lawyer merely on the ground of economic or other disabilities which he may suffer from; and the State is obligated to provide
such an accused free legal aid. 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.”
This right to be represented is mirrored by the right of Advocates to freely practice across the country, recognised in Section 30 of the Advocates Act 1961, and is an essential ingredient in the fair administration of justice. Any attempts to coerce, influence or to use pressure tactics on Advocates is a direct attack on these concomitant rights to represent and the right to legal representation itself.
The fundamental principle of attorney client privilege is guarded under Section 126 of the Indian Evidence Act, 1872 which prevents any advocate from disclosing any communication made to him in the course and for the purpose of his employment by or on behalf of his client, or to state the contents or condition of any document with which
he has become acquainted in the course and for the purpose of his professional
employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment. The actions of the NIA are contrary to these fundamental principles.
The actions of the NIA, which appear to be with the intention of intimidating the concerned advocates, is an attempt to come in the way of Advocates to fearlessly uphold the interests of his client, which is in fact a duty of the Advocate mandated under Rule
15 “Standards of Professional Conduct and Etiquette” laid down by the Bar Council of India Rules, which mandates that “It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.”
These actions of the NIA are in furtherance of the attempts of the Government to come down against human rights activists especially those who have openly questioned the
actions of the State. In fact, on 28th August, 2020 it will be two years of the arrest of Sudha Bharadwaj and Arun Fereira, well known human rights advocates, in connection with the Bhima Koregaon case. Surendra Gadling, who was arrested in June, 2018 is also a well known human rights advocate. The Government has been using the Bhima Koregaon case as a way of stifling dissent by arresting various human rights activist,
including Sudhir Dhawale, Rona Wilson, Shoma Sen Mahesh Raut, Varavara Rao, Gautam Navlakha, Vernon Gonsalves, Anand Teltumbde and Prof Hany Babu.
The issuance of the summons by the NIA against the advocates indicates the
beginning of a very dangerous time when tactics of intimidation are used not only against those who are critical of the State but also those who represent them. Such actions are an attack on the foundations of the Constitution and the principles of democracy itself.
AILAJ strongly condemns such arm-twisting tactics being carried out by the State and demands the immediate withdrawal of such summons. AILAJ also demands that all
human rights advocates and activists be immediately released and such witch-hunt being carried out by the State be immediately stopped