Introduction
We all recently witnessed Advocate Jugraj Singh Chauhanwas stabbed to death in Jodhpur while he was on his way home. The video footage showed the gruesome nature of the act. This incident is one of such cases in the recent past where advocates were illegally arrested, murdered or threatened. A debate of whether advocates should have a dedicated law for their security was stirred after this and protests for the same were conducted in Jaipur and Jodhpur of Rajasthan. While there has been a past attempt by the Bar Council of India in the form of a dedicated Advocates (Protection) Bill, 2021 but was unfortunately not successful and is still lurking in the books of the Ministry of Law and Justice of India.
This issue has sporadically been raised by many advocates of India. In the words of current Chairman of Bar Council of India Adv. Manan Kumar Mishra, “The Advocates fraternity…is one of the essential wings of justice delivery system akin to police and judiciary while they have access to protection, social security, and even privileges but the most important link between the two i.e. advocates who argue and present cases in courts have not been given proper protection against nefarious activities of anti social elements”.
Origin of such acts
These acts usually stem from threats of malicious and frivolous prosecution by rival parties, representing detainees or arrested or incarcerated person. Basically when lawyers represent anyone they have threats from opposition parties of the case and from the person(s) who lost the case because of that lawyer.
Definition of protection vis a vis advocates
While ‘protection’ in itself does not needs to be defined but for clarification protection for lawyers not only entails physical protection for their body but also protection against arbitrary arrests and threats which inhibit their delivery of justice. It also includes adequate remedies for the victims and punishment for those who are found guilty of such acts.
Past incidents of acts of violence against advocates
- Akhilnath (34), a resident of Kavangarai, and a lawyer who was practising in the Judicial Magistrate Court in Ponneri, was murdered by a six-member gang. (July 2016)
- Nutan Yadav(35) hailed from the Berhan area of Agra where she was murdered. (August 2019)
- Advocate Pradeep Gaikwad of Mumbai was illegally arrested for 35 minutes while visiting the police station on behalf of his client. (August 2021)
- A 38-year-old lawyer was shot in the head and killed at the Shahjahanpur district court in Uttar Pradesh (October 2021)
- Advocate Kuldeep was arrested illegally and subsequently assaulted by Karnataka police. (Jan 2023)
These cases just show a tip of an iceberg prevailing in Indian society where regularly advocates and lawyers are being subjected to such acts of violence.
Past cases of Supreme Court
- Ramon Services Pvt. Ltd. V/s Subbash Kapoor(2001):- “Persons belonging to the Legal Profession are concededly the elite of the society. They have always been in the vanguard of progress and development of not only law but the polity as a whole. Citizenry looks at them with hope & expectations for traversing on the new paths and virgin fields to be marched on by the society. The profession by & large, till date has undoubtedly performed its duties and obligations and has never hesitated to shoulder its responsibilities in larger interest of mankind.”
- Hari Shankar Rastogi V/s Giridhar Sharma (1973):– ” The Bar is an extension of the system of justice, an advocate is an officer of the court. He is a master of expertise, but more than that, accountable to the court and governed by a high professional ethics. The success of the judicial process often depends on the services of the legal profession”.
- P. Sharma V/s High Court of Punjab and Haryana (2011)Advocates are the officers of the court and they are an essential part of the justice system and they make it run with full potential to uphold justice and rights of citizens
The point of concern here is to prove that lawyers are an indispensable part of justice system and they are the one who make justice available to common citizenry. So it is a really immense problem if they are subjected to violence, illegal arrests, etc.
International provisions regarding this problem
- Clause 16:Governments shall ensure that the lawyers are able to perform their professional service without any threat or harassment. They should not be threatened with prosecution for honest service rendered by them.
- Clause 17: Lawyers should be safeguarded by relevant authorities if threatened for discharging their duty
- Clause 20: Lawyers shall enjoy civil and penal immunity for statements made in good faith in written or oral pleadings or in their professional appearances before a court
Note:- India was a part of the Congress where it had adopted the Basic Principles of Role of Lawyers of which the aforementioned clauses are part of.
Previous attempt by Bar Council of India
As stated earlier a 7 membered committee of the Bar Council of India in 2021 drafted a bill titled Advocates (Protection) Bill, 2021for greater protection of Advocates and their functions in discharge of professional duties. The following are some of the proposed provisions of the said bill
- Section 3(1) Punishment of 6 months to 5 years and fine of ₹50,000 to ₹1,00,000 for acts of violence committed once
- Section 3(2) Punishment of 2 years to 10 years and a minimum fine of ₹10,00,000 for subsequent offence of act of violence
- Section 5(1) The offence is non-bailable and cognizable
- Section 7(1) Police Protection for those threatened of being a victim of act of violence
- Section 11 Protection from illegal arrests and malicious prosecution of advocates
The need of a central enactment of such act stems from the fact that Advocates all over India need to render their service without any fear or external influence and the apex court in past has interpreted the Advocates Act, 1961 to fall within the scope of Entry 77 and 78 of List I of Schedule VII.
Conclusion
The issue at hand is of an immense nature as acts of violence against advocates or their family members make young people stay away from the law as a profession in turn affecting the delivery of justice as anyone involved in legal profession can be subjected to such acts. The Advocates (Protection) Bill, 2021 was an initiative in right direction but did not yield the appropriate results it strived to achieve.
Author(s) Name: Akshat Sharma (Gujarat National Law University, Gandhinagar)
