Dr G.V. Rao
India is moving towards the diamond jubilee celebrations of its Independence from August 15, 2021 to 2022. The celebration also comes with some soul-searching and an assessment of our achievements and failures during these 75 years of Independence. An objective review of our report card would set the tone and pace for the coming decades so that we may set lofty goals, targets and ideals for our centenary celebrations.
To be seen as an extremely successful, largest functioning democracy of the world essentially entails an independent and unbiased judiciary, which is the backbone of our vibrant democracy.
These ideals are aptly put by the Wisconsin Association for Justice while describing the American judiciary: “Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law.”
If we treat the judiciary and the legal system as the spine that holds the body of the democratic framework together, then it’s our beholden duty to protect this vital organ from damage and attack from within as well as from without. In recent times, we have seen that our legal system has been facing threats, blackmail, harassment and physical attacks. In such circumstances this is a threat to the independent functioning of the entire justice administration system (JAS), and as such would hamper the effectiveness of its decisions as being free of bias, pressure or intimidation.
Many of these attacks are directed against the more vulnerable and less protected sections of the system, namely the district and sessions courts. It’s important to create the necessary framework and a protective umbrella for this section by creating a fool-proof security system.
The recent horrific incident of what appears to be a deliberate hit-and-run case of a district court judge in Jharkhand has shaken the conscience of the whole legal fraternity across the country, especially in view of the widely circulated video footage. Today, more than ever, we need a well-protected system for the administration of justice, which includes both judges and lawyers, who are known as the two wheels of the chariots of justice.
An inadequate attempt was made by The Judges (Protection) Act, 1985, a mere reaffirmation of an 1850 law, which only provides protection to members of the judiciary from any civil or criminal action for anything done by them during the discharge of their official functions or duties. This effort by the legislature to afford protection to the judiciary, under the present circumstances must extend to protection from all other kinds of violent and psychological threats as well. The 104th Law Commission Report did not deal with this aspect at all and it’s high time a comprehensive examination of the issue is initiated.
It appears that in 2013-14, under a directive from the apex court to all state governments, Punjab withdrew security cover to all lower court judges in the state. Perhaps this may have been carried out in other states too. I think the time has come to eschew such ad hoc arrangements of security to courts and the JAS in the country. Similarly, in 2015, the Madras High Court gave directions to provide security to a judge’s residence where some locals had resorted to stone pelting. In February of 2021, a lawyer couple in Telangana who fought for the rights of the poor and downtrodden, G. Vaman Rao and P.V. Nagamani, were hacked to death by culprits hired by the accused persons.
The apex court and various courts have repeatedly held that an advocate is an officer of the court. Interpreting various sections of the Advocates Act 1961 and the Bar Council of India rules, the Karnataka High Court in Advocates Association vs The Chief Minister, Govt of Karnataka AIR – 1997 Kant – 18, held: “A reading of various provisions of the Act and rules framed thereunder, make it clear that Advocate is an officer of the Court and he discharges public duty and has an important role to play in the administration of justice…. Indeed, the Bar is an extension of the system of justice; an advocate is an officer of Court…. The success of the judicial process often depends on the services of the legal profession.”
In November 2019, there was an ugly spat between lawyers and the Delhi Police, which resulted in large scale damage of property and injuries to both sides. For the first time, a need was felt for a professional and specially trained police force for the justice administration system in India.
In modern times, with greater technological tools available with criminals and violent persons, it has become easy to plan and attack officers of the court. Various measures have been taken up in many other democracies such as the UK, US, Australia, etc. In the UK, after numerous complaints of attacks on the judicial fraternity, both online and physical, a survey carried out in 2014-15 revealed that 48 percent female and 36 percent of male judges feared for their safety. In all, 51 percent felt vulnerable. In view of the survey, today the British government spends thousands of pounds for implementing security measures.
In France, since 1995, there has been a reform of the policing system and they created what is known as ‘The Central Directorate of the Judicial Police’ (DCPJ). One of the essential roles of the police is searching for infringements of the law, to observe them, gather evidence, identify the authors of the crimes and apprehend them. Acting thus, the police becomes an ancillary to the judicial authority and has the designation of ‘Judicial Police’. They have varied roles, including protection of the officers of the court and the JAS.
By far, the best and most sophisticated policing system for justice administration has been in the US. In a recent article titled “Modernizing security measures to protect federal judges and their families” by Judge David William McKeauge of the US Court of Appeals, which he wrote after a judge and her family were shot and killed, he stated: “Justice must be dispensed with neither fear nor favour. When judges are fearful, it impedes their ability to do their jobs. Any influence on the judiciary by either the State or the litigants, adversely impacts the fair administration of justice.”
In the US, there is what is known as the United States Marshals Service (USMS), and the Judicial Security Division (JSD). It is committed to the protection of the judicial process by ensuring the safe and secure conduct of judicial proceedings, and protecting federal judges, jurors, and other members of the federal judiciary. Protecting court officials and safeguarding the public is a responsibility that permits no errors. It is a comprehensive effort accomplished by anticipating and deterring threats to the judiciary and by continuously developing and employing innovative protective tactics.
USMS protects more than 2,700 sitting judges and approximately 30,300 federal prosecutors and court officials, along with members of the public who visit and work in federal courthouses nationwide. JSD manages and maintains more than 1,600 residential security systems in judges’ personal residences. As the physical security provider to over 860 federal facilities, the USMS develops, manages and implements security systems and screens equipment that protects each courthouse.
They also provide security for federal court facilities in each of the 94 judicial districts and 12 circuits of the US Court of Appeals. Explicit threats and inappropriate communications against the judiciary, US attorneys and other court officers are assessed to determine the level of danger.
USMS judicial security personnel provide the latest in state-of-the-art protective techniques and equipment in all phases of court proceedings, threat situations and judicial conferences, thus ensuring rapid and safe responses in emergency situations as well as unobtrusive surveillance and protection during routine judicial security operations.
The Office of the High Commissioner of Human Rights (OHCHR) of the United Nations has prescribed standards and laid down the basic principles of the “Independence of the Judiciary” which have been adopted and endorsed by the U.N. General Assembly. These basic principles categorically hold that:“…judges, prosecutors and lawyers are three professional groups that play a crucial role in the administration of justice and in the prevention of impunity for human rights violations. They are consequently also essential for the preservation of a democratic society and the maintenance of a just rule of law…. States may have to take positive actions to protect judges, lawyers, and prosecutors against violence, intimidation, hindrance, harassment or other improper interference so as to enable them to perform all their professional functions effectively.”
Hence, there is a crying need for putting in place a highly trained professional work-force for the policing of the justice administration system, which exclusively caters to the highly technical and special requirements of this branch and pillar of governance.
—The author is a Senior Advocate, Supreme Court of India