Advocates Protection Act – A Much Needed Safeguard To Protect The Beacon Of Rule Of Law
Naman Sharma
1 May 2023 12:53 PM IST
The recent case of brutal murder of an advocate Virendra Kumar in Delhi has once again ignited a question of security of advocates in India. In recent years, there has been an alarming increase in crimes against advocates in India. There are many instances like murder of Jugraj Chauhan in Jodhpur; murder of Darvesh Yadav, the first woman president of Agra bar council; murder of Devji Maheshwari, a lawyer from Dalit community, in his office in Kutch, Gujarat; murder of high court advocate couple, Gattu Vaman Rao and Gattu Nagamani in Peddapalli, Telangana; attack on advocate Akshat Sehgal of Jabalpur, Madhya Pradesh; attack on Advocate Satyadev Joshi in Mumbai etc. are just the few examples which show how unsafe are the advocates in India. These crimes reveal a careless and lax attitude on the side of the police department and administration. The recent killing has instilled fear among lawyers, violating both their right to the practice of any profession or to carry on any occupation, trade, or business under Article 19(1)(g) of the Indian Constitution and their right to life under Article 21. Several writs have also been filed by advocates around the country demanding a separate law for the protection of advocates in India. Recently, a petition has been filed by advocates Deepa Joseph and Alpha Phiris Dayal in Delhi High Court seeking direction for the Union of India and Delhi Government to consider enacting the Advocates Protection Act in the national capital. The plea states, “That the Petitioners firmly feel that it is high time now that a decision is taken for enactment of the Advocates Protection Act in Delhi, particularly when recently the State of Rajasthan has also recently passed such an Act. Only an Act that guarantees protection to the fraternity of lawyers practicing in Delhi will help remove the sense of fear that has embedded in the minds, particularly among young first-generation lawyers like the Petitioners herein due to the repeated acts of firing inside court premises and altercations to state the least'' (DEEPA JOSEPH & ANR. Vs UNION OF INDIA AND ANR.) Similar plea was also filed in the Madhya Pradesh High Court by advocate Chandra Kumar Valeja seeking direction to expedite the work on the bill and execute and enforce the promise/declaration made by the Chief Minister of Madhya Pradesh High Court with regard to implementation of Advocates Protection Act but the High Court noted that the court has its own limitations and stressed that no mandamus can be issued for promulgating a particular law by the legislature (CHANDRA KUMAR VALEJA Vs UNION OF INDIA AND OTHERS). Another plea was filed by Advocate Sai Deepak in Supreme Court but the apex court refused to entertain the plea and stated, “Make a representation to the law ministry. We cannot do anything.” Apart from filing petitions, advocates from several courts across the country are calling for strike and an indefinite boycott of judicial work. They are demanding a separate law for the protection of advocates and their families but their plea fell on deaf ears.
Independence of Advocates, a sine qua non for the Rule of Law
Advocates, who are supposed to uphold the rule of law and ensure justice, have become targets of violence, harassment, and intimidation. Advocates play an important role in the administration of justice, the defense of human rights, democracy and the rule of law. Nonetheless, it is evident that attacks on lawyers, both personally and institutionally, are becoming more frequent, putting their ability to practice law independently and securely at risk. The difficulties that the legal profession faces are serious and appear to be becoming worse. Attacks on lawyers' liberty that are regular or systematic may have a chilling impact on the legal profession as a whole. “Lawyers' fearlessness in court, independence, uprightness, honesty, equality are the virtues which cannot be sacrificed” (R. Muthukrishnan vs. The Registrar General of the High Court of Judicature at Madras AIR 2019 SC 849). Independence of the legal profession is essential for maintaining respect for fundamental freedoms and human rights. The rule of law cannot be sustained, nor justice be properly administered, if advocates are unable to act freely, impartially, objectively, and with integrity, autonomy, and neutrality in the performance of such a sensitive function that comes with a high level of responsibility. The independence of the legal profession allows lawyers to act in the best interest of the client and society without fear of arbitrary prosecution and free of any improper influence. As a result, it is essential that advocates are able to carry out their tasks without interference from the state, society, or any other governmental or non-governmental actors, as well as without fear of being persecuted or subject to coercion. The failure to investigate and bring legal action against those responsible for such violence and intimidation, when reported, not only results in impunity for such behavior but also contributes to a climate of fear, which can itself make advocates feel intimidated or dissuaded from providing legal services to those who may require them.
Laws for the protection of Lawyers across the world
Attacks against lawyers are a growing concern not only in India, but also in the international arena, posing a serious threat to the pillars of justice and the rule of law. Several countries around the world have special laws in place to protect lawyers from attacks or threats. Many Countries have recognized that lawyers face unique risks in their line of work, and due to growing demand, countries are working to frame a separate law concerning the protection of lawyers. In Russia, a lawyer, his or her family members and their belongings are protected by the State under the Federal Law on Lawyers’ Activities and Advokatura. Article 296 of THE CRIMINAL CODE OF THE RUSSIAN FEDERATION 1996 provides safeguards for the lawyers and persons participating in the administration of justice. Section 1503 of title 18 of United States Code (18 U.S.C. 1503) provides protection to officers of court while in Egypt, Article 54 of Law No. 17 of 1983 (Advocacy Law) and in Indonesia, article 15 of Law No. 18 of 2003 guarantees protection to the legal profession. The Charter of Core Principles of the European Legal Profession of 25 November 2006 provides as principle (a) the independence of the lawyer, and the freedom of the lawyer to pursue the client’s case. It says that “A lawyer needs to be free - politically, economically and intellectually - in pursuing his or her activities of advising and representing the client.” This means that the lawyer must be independent of the state and other powerful interests. Recently, the National Assembly of Pakistan has also passed a law titled “the Lawyers Welfare and Protection Act, 2023” to ensure that the advocates can render professional services without fear or external influence for the ultimate cause of the administration of justice and the rule of law. This implies that countries are now providing special protection to Lawyers. India must also join these countries due to growing incidents of attacks on Advocates in India.
International standards for the Protection of Lawyers/Advocates
Lawyers are entitled to the numerous rights and safeguards outlined in regional and international human rights treaties. They include provisions pertaining to equality before the law, the right to life, liberty, and personal security, as well as the prohibition of torture and other forms of cruel, brutal, or degrading treatment or punishment (other ill-treatment).
The independence of the legal profession is firmly established as the distinguishing feature of a democratic system by the 1990 Basic Principles on the Role of Lawyers (the "Basic Principles") and the 1993 Vienna Declaration on Human Rights, which were later supported by several states' resolutions at the UN Human Rights Council (UNHRC) and General Assembly (UNGA). According to the United Nations Basic Principles on the Role of Lawyers (UN Basic Principles), the independence of the legal profession is a critical foundation for upholding the rule of law in a democratic society. As per the International Covenant on Civil and Political Rights, harassing legal professionals may lead to infringement of clients' rights, particularly their right to due process (article 14 of the Covenant). Article 16 of The Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Cuba says that “Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics”.
Article 12 of the Declaration on Human rights defenders also says that States must take all necessary measures to ensure the protection of human rights defenders including lawyers. Principle 7 of the ICJ Geneva Declaration on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis, 2011 states, “All branches of government must take measures to protect lawyers from violence, threats, retaliation, de facto or de jure discrimination, pressure, and other arbitrary actions.” Principle 12 of UN principles and guidelines on access to legal aid in the criminal justice system published by the United Nations Office on Drugs and Crime (UNODC) also imposes obligations on the state for the Independence and protection of legal aid providers. In order to achieve Sustainable Development Goal 16 of the 2030 Agenda for Sustainable Development, the independence of advocates and the legal profession are undeniably essential components. These many international standards and regulations make it abundantly evident that states have a responsibility to safeguard advocates and the legal profession.
Exigency of a new law
In pursuant to these resolutions, the Bar Council of India formulated the draft of Advocates Protection Bill, 2021 on July 2, 2021. The major goal of this draft bill is to ensure the security and safety of advocates and their families against crimes like assault, kidnapping, unlawful imprisonment, and many more. The Advocates (protection) Bill, 2021 includes provisions for advocate safety and financial aid for the poor advocates. Furthermore, it provides compensation to the advocates if someone tries to violate their rights. The Chairman of Bar Council of India, Sr. Advocate Manan Kumar Mishra, in a press release on 2nd July 2021 stated that “lawyers act as the link between the Police and Judiciary, and while the police and the judiciary have access to protection, social security, and privileges, advocates who argue in a court of law still do not have the necessary safeguards.” Since then, the Bar Council of India has urged many states to enact a law concerning the protection of advocates but their request and the demands of thousands of advocates have gone unheeded. The BCI had already submitted a draft legislation of the Advocates Protection Law to the Union Ministry of Law in 2021 but there is no central legislation till now. The BCI had requested the Rajasthan Government to expedite the framing of a law on the protection of lawyers and their families amid a boycott by state lawyers in protest over the murder of a lawyer in Jodhpur. Rajasthan government agreed to the proposal, passed THE RAJASTHAN ADVOCATES PROTECTION BILL, 2023, and is now the first state in the country to enact a law granting protection to advocates. Other states can certainly learn from Rajasthan's experience in enacting this law and implement similar measures to protect advocates in their own jurisdictions without waiting for the protest from advocates. The protection of advocates can only be ensured if the Central Government and other state governments also enact a similar law. The ultimate goal of administering justice and upholding the rule of law can be achieved by such a law, which can guarantee that the advocates can carry out their professional duties free from intimidation and external influence.
Naman Sharma is currently a 1st year student of Maharashtra National Law University, Nagpur pursuing B.A. LL.B (Hons. in Adjudication and Justicing) Course.
