The Author, Utkarsh Srivastava is a 1st year BA.LLB student of Dr. Ram Manohar Lohiya National Law University, Lucknow, Uttar Pradesh.
Introduction
In a recent interview with a news agency, Mr. Rajiv Dhawan, senior advocate in the Supreme Court of India, told how he was assaulted and intimidated while he was acting as the counsel for the appellants of the Ayodhya Babri masjid case. Advocates all around the country are seen as the preservers of the legal system and are considered to be an integral part of the judicial system. They are the voices who play a major role in the reformation of the judiciary and the society at large. Yet, several instances take place all over the nation which involve physical violence on advocates.
While, most of such acts of violence emerge from the cases which the lawyers take up, there are no explicit provisions in law to protect them against these heinous acts. This results in a situation where lawyers fear taking up cases which can risk their lives, or cases which involve parties such as terrorists, rapists etc., who receive uncontrolled anger from the society.
Although, there are provisions for free legal aid in the legal system of our country. However, it should not be a situation where every other such party has to apply for these provisions as there would be no lawyer who could take up the case voluntarily. Above all, it is paramount for the State to ensure that the Bar and every person enrolled under it should work fearlessly as this would protect the functioning of the legal system of the nation. A few states, such as Madhya Pradesh, had given their approval for such an act but none have completed the implementation. This article seeks to analyze the need for such a legislation specifically for the advocates, and its implementation in the present legal system of India.
Is the State under a moral obligation and what are the essentials for such an act
Instances of violence against advocates resulting from the suits or any other work related to their practice are on the rise. It’s important to understand that a suit may involve mental stress to the people engaged in it or to any other person who could be affected by its outcome, further paving the way for misdirected anger towards the counsels. Therefore, it can be logically concluded that the quantum of risk involved in professing their job is immense. The fear from the risk involved to their lives, the mental stress which arises from this and the probability of their families being affected from this risk compels the advocates to refuse taking up a risky case.
This results in a situation where certain types of parties such as terrorists, rapists, victims of crimes, fail to get a lawyer who would take up their case willingly. It also demotivates newcomers to the profession from taking up causes which seek reformation in the society. The strong lobbies around the sphere cast a shadow of fear upon the profession which is considered to be one of the most noble amongst others.
The recent R. Muthukrishnan v Registrar of High Court of Judicature of Madras case emphasized upon the importance of the Bar as,
“The legal profession cannot be equated with any other traditional professions. It is not commercial in nature and is a noble one considering the nature of duties to be performed and its impact on the society. The independence of the Bar and autonomy of the Bar Council has been ensured statutorily in order to preserve the very democracy itself and to ensure that judiciary remains strong. Where Bar has not performed the duty independently and has become a sycophant that ultimately results in the denigrating of the judicial system and judiciary itself. There cannot be existence of a strong judicial system without an independent Bar.”
The S. Balasubramanian case of 2018 is also of similar view. Though, the subject matter of this case is different from the subject matter which is discussed in this article. However, this view was one of the obiter dicta of this judgement. Further, R. Muthukrishnan also observed that the bar is an integral part of the judicial administration. While the proper functioning of the judicial system is an important facet for an administration to work upon a population smoothly, it forms an obligation upon the State to ensure that the judiciary is functioning effectively and efficiently.
This independence not only stems from the separation from other organs of the government but is also fostered by protection from such acts which try to misguide an advocate’s conduct in a suit. This calls for the State to take proper measures by way of legislations, ordinances or other mechanisms which are available to the government for the protection of legal practitioners.
A legislation in this regard can be an umbrella legislation which would apply to all the State Bar Councils and the Bar Council of India. Such a legislation should include provisions for stricter punishments for the acts concerned and should also ensure safety of the stakeholders involved. It is important to understand that the scope of protection from this legislation should extend to only those situations where the dispute arises from the suit or other tasks related to the practice of the advocates. Protection from other acts which do not have any nexus with the practice of the advocate should be governed by The Indian Penal Code and The CrPC.
The basic reason for this contention is that the purpose of this legislation is to protect the advocates, thereby further fostering the proper functioning of judicial system. Any personal dispute of criminal nature, which has no relation with the profession or practice of an advocate, is not relevant to the ambit of this bill. So, it is primary for any lawyer seeking relief through this legislation to establish that the dispute in question is linked to his or her practice and this screening should be performed judiciously to prevent misuse.
Further, this bill should also cover maintenance and protection of their families from these acts as it is also seen that the lives of families of advocates are also put under high threat in such situations. The suggestions provided in this article regarding this legislation are not rigid in their approach but only intend to provide a general idea of what can be essential areas which this bill should cover. Its specific provisions for its proper implementation should only be drafted by the persons having the technical knowhow associated with it.
The United Nation’s Resolution
This resolution, adopted in June, 2017, in the 35th session of the Human Rights Council is for protection and independence of the judges, lawyers, prosecutors and other court officials who are dealing with issues of Human Rights. Emphasizing upon frequent attacks on the independence of lawyers by the use of violence, this resolution enacts provisions which would help in reducing the conditions where they are subjected to violence. One of the significant provisions in this resolution calls for a proper training of judges, lawyers and other practitioners in the field of human rights which would in a way help in the reduction of such acts by reducing the probability of a violent dispute arising from a suit. Lack of information comes in one of the major reason for such violent acts and hence, this is a significant provision in this field which would help in imparting knowledge and reducing misinformation.
Though this resolution specifically pertains to the domain of human rights, however, it would be judicious to adopt the provision of conducting a proper legal training for advocates in a legislation meant for protection of advocates. I understand that an Indian litigation court involves a variety of cases and a full detailed training of all the subject matters is not possible due to paucity of time and other reasons. However, a proper legal training providing a basic understanding of the common subject matters to the advocates can mitigate the possibility of creation of such disputes especially in the district courts which deal with a large part of the cases in India and at the basic stage. Though, it is a fact that an advocate already has a legal training prior to practicing by a way of completion of his/her law graduation degree. This particular training should focus on practical aspects of the profession rather than giving theoretical knowledge. This would diminish the possibility of a clash arising from misinformation spreading within the profession. Additionally, this would also help in resolving the pendency of cases and would pave a way for speedy trials.
Conclusion
The parts above this subtopic of this article have conclusively proven that there is an urgent need to enact a legislation which would be capable of providing protection to the advocates from the acts of violence resulting from their practice and act as a barrier shielding their independence from the attacks on it. While, there are provisions in the present Indian legal system which pose an obligation upon the state to take measures in this area. However, no such step has been taken by the governments till now. It can also be concluded that a legislation for the protection of people practising advocacy would require certain spheres to be looked upon with analysis such as stricter punishments, health care benefits for the advocate and their family, security issues etc. Further, it is important to limit the scope of such a law to the acts which result from the suits and other tasks of practice and not to the acts of violence which are not related to the practice and are arising from the personal dispute of the advocate. This will prevent the misuse of such a law. If enacted and implemented in the legal system, this would bring much needed reform in the profession of advocacy by mitigating the lacunae of the legal system thereby affecting the society at large in the near future.
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