By Viraj Lahane and Ashit Srivastava

It goes without saying that certain professions require more safety and vigilance than others. Being an advocate is one such profession. Article 19(1)(g) of the Constitution gives the Fundamental Right to have freedom of profession. And this freedom and independence can only come if the government, in some form or the other, provides security to the life and property of advocates.

In this pursuit, the Bar Council of Delhi decided to form a special committee under the leadership of KC Mittal, one of its former chairmen, to constitute the comprehensive Advocates Protection Act. The Act was recently finalised by the committee in the light of attacks on attorneys inside and outside courts. 

Rajasthan too has taken steps in this direction. It became the first state to pass a bill that will secure the safety and practicing rights of advocates and was passed on March 21, 2023 by the state assembly.

The recent murder of Virendra Kumar, an attorney in Delhi, reopened the conversation concerning the safety of attorneys. However, this is not the first time that something similar has happened; atrocities against lawyers have been on the rise, instilling an atmosphere of fear among them and violating both their right to life under Article 21 and their right to practice any profession, trade, or business under Article 19(1)(g) of the Constitution.

Atrocities against attorneys are increasingly common all over India, as evidenced by these murders:

• February 2023: Jugraj Chauhan, a Jodhpur lawyer was attacked by two men with a knife and his head was crushed with a stone.
• June 2021: Gattu Vaman Rao and Gattu Nagamani (a lawyer couple) were hacked to death in broad daylight in Peddapalli, Telangana.
• September 2020: A Dalit rights activist and advocate, Devji Maheshwari, was killed in Gujarat allegedly over his social media posts criticising Brahminism. Lawyers are an active member of society and in most cases, are a reflection of resistance against societal norms.
• June 2019: Darvesh Yadav, the first female president of the Agra Bar Council, was shot dead in the Agra court premises by a long-time acquaintance.
• Akshat Sehgal, a practicing advocate in Jabalpur, Madhya Pradesh, suffered a head injury over a dispute.
• Advocate Satyadev Joshi was assaulted in broad daylight by goons in Mumbai for consulting his client.

Atrocities against lawyers have become so rampant in UP that Kanpur’s attorneys stayed away from court business in protest. They referenced the Prayagraj incident in which advocate Umesh Pal was shot down near his residence on February 24, 2023.

The Bar Council of Delhi stated that the objective of the Act was to provide adequate safety and security and to safeguard advocates from incidents of assaults, killings, intimidation and threats. The proposed Bill protects both freedom of expression and association as well as protected conversations between solicitors and their clients. It outlines acts of violence, offenders, punishment and compensation and applies to advocates protected by the Advocates Act of 1961. The Bill also offers police security for advocates in threat situations. 

Additionally, it shields advocates from wrongful detention and unfair prosecution. But the protection provided by this law will only apply to practicing advocates and not to anyone engaged in any profession, trade, activity, business, etc. So, an advocate involved in any other trade will not fall within the purview of the proposed bill. 

Does that mean that the Bill will be purely for practicing advocates? The Bar Council of India rules provide that an advocate can be a sleeping partner in a firm and do business that is deemed appropriate by the State Bar Council (Rule number 47). That means that there is no limitation on an advocate carrying out any other trade or business apart from his practice. In this scenario, the objective of the proposed Bill might need to be revisited.

However, the creation of a Permanent Grievance Redressal Committee at each district and High Court in Delhi was the Bill’s main selling point. The committees will be made up of the district judge at the district level, the president/secretary of the relevant Bar Association and a representative of the Delhi Bar Council. The chief justice or his designee, the president/secretary of the Delhi High Court Bar Association and the Chairman (or a designee), of the Bar Council of Delhi will make up the committee for the High Court in a similar manner.

These panels will resolve complaints of lawyers and assist in maintaining their safety and security. The Act further suggests that two senior advocates or former office holders of Bar Associations or Bar Councils may be included on each Permanent Grievance Redressal Committee. In the event that any incident takes place on court grounds, this committee will spring into action and make every attempt to mediate. The matter will be sent to the High Court and the Delhi Bar Council if circumstances call for it.

Additionally, based on the information before it, the committee will have the power to give the police or any other authority the necessary instructions. This extra clause in the Bill attempts to offer a thorough system to guarantee the security and safety of lawyers in Delhi.

Although the Advocates Protection Bill appears to be a positive step, there are various legalities that must be considered for its effective implementation. The establishment of Permanent Grievance Redressal Committees at every court level, which will have the authority to settle disputes and escalate cases to higher authorities when necessary, would need the cooperation of law enforcement agencies to provide police protection to advocates.

The implementation of the Act would necessitate the training of police personnel to manage cases related to the safety and security of lawyers and the provision of resources to ensure their protection. Additionally, the Bill proposes compensation to advocates in case of any harm, which would have financial implications. The Act will require allocation of funds to be utilised for payment of compensation to the advocates and a sound mechanism for disbursing of such compensation.

While the legal intricacies involved in the enforcement of the Act looks straightforward, it is the basis of the whole Act. It is necessary that the legal issues are approached with more empirical and pragmatic approach.

The legislative endeavour of Delhi and Rajasthan will inspire and instil courage in other people to pursue careers in law without fear of the consequences. Finally, the attempt is an important step towards providing security to the legal fraternity in Delhi. 

—Viraj Lahane is a third year law student, while Ashit Srivastava is Assistant Professor of Law at Dharmashastra National Law University, Jabalpur

By Viraj Lahane

The aim of the Constitution is to accord to all citizens equal rights and freedoms. These freedoms are naturally restricted if one is convicted of an offence, but there cannot be absolute dissolution.

Does forcing a prisoner to live in horrific conditions have any purpose or is it just punishment for the harm caused to the victim? Due to the recent denial of Mumbai gangster Ejaz Lakdawala’s application to a Mumbai sessions court seeking permission to use a mosquito net this issue has received a lot of attention.
This poses the question: Was the judiciary right to dismiss his application, and if so, what rationale and purpose did it serve? And is making prisoners live in inhabitable conditions justified?

Lakdawala said in his complaint that the jail administration had taken away his mosquito net in May due to security reasons even though he was allowed to use it in 2020 when he was held in judicial custody. When Lakdawala was brought before a sessions court in Mumbai recently, he displayed a plastic container containing dead mosquitoes and said that the inmates of Taloja jail, where he was lodged, have to deal with this issue daily. However, the jail administration rejected the plea, citing security concerns. The court’s statement that Lakdawala could use Odomos and other insect repellents while denying the application is debatable.

There are five principles on which imprisonment is based. The aim or goal of imprisonment is: deterrence, incapacitation, retribution, restitution and finally, rehabilitation of the prisoner. Nowhere is it said that prisoners should be subjected to inhumane and inhabitable conditions. In fact, they should have humane living conditions so that in the future, they are able to fulfill the fifth principle of imprisonment—rehabilitation. Subjecting them to inhabitable conditions can not only severely deteriorate their health, but could in the worst case scenario result in death.

This is not the first case that has raised the issue of inhabitable conditions of prisons. In fact, the judiciary receives a plethora of such cases every year. In State of Maharashtra vs Prabhakar Pandurang Sanzgir, Justice Banwari Lal Hansaria ruled that if someone is detained, one cannot rob him of his fundamental rights and that such conditions should not be extended to the point where these rights are deprived. The Supreme Court further declared that every prisoner preserves all of these liberties, with certain exceptions. This means that every prisoner enjoys the right to live with dignity.

Another important case is Charles Sobhraj vs Supdt Central Jail Tihar where Justice YV Chandrachud had stated: “It is no more open to debate that convicts are not wholly denuded of their fundamental rights. Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed. However, a prisoner’s liberty is in the very nature of things circumscribed by the very fact of his confinement. His interest in the limited liberty left to him is all the more substantial and his rights are not subjected to the whims of the prison administration.”

It was decided that although all of the rights granted to inmates by Articles 14,19, and 21 of the Constitution are restricted, they cannot be characterised as static. This case clearly defined Article 21—which says that it is the right of prisoners to live with dignity.

The Supreme Court in Sunil Batra vs Delhi Administration observed that the right to live with dignity is inextricably linked to the right to life. In this case, some prisoners had died as a result of the jailer’s cruel treatment. Article 21 states that it is impossible to contest the universal reality of a person’s life without an established procedure of law.

A bench headed by Justice YV Chandrachud delivered a similar judgment in D. Bhuvan Mohan Patnaik & Ors vs State Of Andhra Pradesh & Ors where he said: “Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to ‘practice’ a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.”

KI Vibhute in his article “Right To Human Dignity Of Convict Under ‘Shadow Of Death’ And Freedoms ‘Behind The Bars’ In India: A Reflective Perception” explained: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Article 21, which is considered a repository of human rights, has received positive interpretations from constitutional courts. Thus arises the question whether it is fair to reject the application of a prisoner awaiting trial and who is only requesting the right to live in dignity?

—The writer is a second year student of Dharmashastra National Law University, Jabalpur