JUDGMENT :

Ramesh Ranganathan, J.

"From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practice, from the moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the judge; nay he assumes it before the hour of the judgment; and in proportion of his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel"

2. So said Sir Thomas Erskine who had accepted the retainer to defend Thomas Paine in 1792 when he was prosecuted for treason for publishing the second part of his work "The Rights of Man" in defense of the French Resolution. This speech of Sir Thomas Erskine, and the case of Thomas Paine which he defended, resulted in his losing the office of the Attorney General to the Prince of Wales. (The Barrister: Advocate at the English Bar: by W.W. Boulton; A.S. Mohammed Rafi vs. State of Tamil Nadu and others, (2011) 1 SCC 688).

3. The nobility of the profession, and the high traditions of the Bar, are best reflected in the views of Clarence Darrow (widely renowned as the Attorney for the Damned), that a person, however wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society, has a right to be defended in a court of law and, correspondingly, it is the duty of the lawyer to defend him. (A.S. Mohammed Rafi, (2011) 1 SCC 688).

4. Justice Hugo Black of the US Supreme Court, in his dissenting judgment in Re Antastaplo,1961 366 US 82 , said :-

"Men like Lord Erskine, James Otis, Clarence Darrow, and a multitude of others have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it."

5. Instead of following the path which these eminent lawyers have shown, 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. Unlike Sir Thomas Erskine, the threat which lawyers, such as the petitioner, face is not from outside but from within i.e. from the Association of Advocates of which they are members. 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. (A.S. Mohammed Rafi, (2011) 1 SCC 688).

6. The notice affixed by the Kotdwar Bar Association dated 17.05.2019, the validity of which is under challenge in this writ petition, reads thus:

"Kotdwar Bar Association Kotdwar District Pauri Garhwal Uttarakhand Notice

In accordance with the unanimous decision of Kotdwar Bar Association in the most urgent meeting dated 16.05.2019 all the members of Kotdwar Bar Association, Kotdwar are informed as under:

1. That as per the resolution passed by the members of the Kotdwar Bar Association, present in the most urgent meeting dated 16.05.2019 it is decided that no member of Kotdwar Bar Association/officer bearer shall represent the accused persons of the murder of late advocate Sushil Raghuvanshi in court. It has also come to the knowledge of the association that some advocates are representing the murder accused in court.

2. That in