Protect Advocates from false implications & improper interference from the authorities

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WHO WILL DEFEND THE DEFENDERS?

Dear Friends, Colleagues, and Seniors:

The contribution of advocates cannot be ignored in strengthening the “Rule Of Law” in a criminal justice system. By defending an accused in a biased, corrupted and politically motivated criminal case, the advocate not merely discharge his duties toward the client & judiciary, but also undertakes a fight against an interconnected system of investigative agencies and power abusers.  In such scenarios, many advocates have faced death threats, physical attacks, assault on them and their family members, harassment through false implications, disciplinary proceedings, surveillance, enforced disappearances, criminal intimidation, and unreasonable interference while discharging their professional duties.

False Implication of an Advocate Sanjiv Punalekar by CBI, Mumbai

Recently, Advocate Sanjiv Punalekar has become a victim of such attacks.  He was a defense counsel for accused persons in a bomb blast case, the accused were later acquitted by the court.  In October 2018, a news channel conducted a sting operation on these acquitted persons to revive theory of “Hindu terror”.  One of the acquitted person Mr. Hemant Chalke then complained to PMO, Central Vigilance Commission, Director (CBI) etc about Mr. Nandkumar Nair (who is a supervisory officer in this case and presently SP of CBI and is currently posted as Head of Branch, Special Crime Branch, CBI, Mumbai) having leaked contact information including residence of all such accused to the journalists of news channel for facilitating the sting operation. Thereafter Sanjiv Punalekar followed up the complaint with all the authorities. The complaint is under consideration at an appropriate level.

Besides this, when Sachin Andure (one of the accused in Narendra Dabholkar murder case) was in CBI’s police custody, Mr. Nair showed him photographs of Advocate Punalekar and threatened him to name Punalekar as accused in Dabholkar case otherwise his wife would be raped. On this point, a press conference was also held by Advocate Punalekar.  When such criminal intimidation did not work, the CBI officer made Advocate Sanjiv Punalekar an accused in Dabholkar murder case by false implication.  He is currently under police custody in Pune.

Advocate Sanjiv Punalekar is not an alone advocate who has become the victim of false implications by the investigative agencies or have faced death threats or assault while discharging their professional duties.  Few of the recent victims of abuse of power by errant, corrupt officers and power abusers across India are listed below.

1.   May 2019 – Punjab – Advocate Ajay from Hoshiarpur was made accused in a fake criminal case;

2.   April 2019 – West Bengal - Police attacked Howrah Lawyers within court premises.

3.   April 2019 – Chandigarh - Three young Advocates practicing in the High Court of Punjab & Haryana High Court were brutally attacked by some individuals.

4.   March 2019 – Delhi - Three held for attacking advocate in Delhi court

5.   February 2019 – Punjab - Bar Association of Ropar observed complete strike against beating up of two lawyers by miscreants and gave a call for a strike to pressurize police to arrest the culprits.

6.   December 2018 – Maharashtra – A lawyer who had filed a PIL in the Bombay High Court against the new legislation providing reservation to Maratha community in Maharashtra was attacked outside the court premises

7.   September 2018 – Orissa - The Orissa High Court today directed for a Crime Branch probe into the alleged incident of assault on a lawyer by police personnel in Cuttack that sparked off widespread protests across the State with several bar associations resorting to cease-work

8.   January 2018 – Delhi - Delhi High Court today came down heavily on Delhi Police for trying to shield people involved in the arson attacks on the properties of senior lawyers in the national capital

9.   August 2017 - A 63-year old senior civil lawyer in Maharashtra being assaulted by a former corporator.

10.    December 2017 – An advocate Ashok Vishwakarma was hit in his head with a hard object by the three accused persons.

11.    December 2017 – Madhya Pradesh - Advocates abstain from court work to protest rising attacks

12.    January 2017 - Senior advocate Subhash Gupta was stabbed to death on Tuesday in broad daylight in Hisar, Haryana.

13.    Year 2012 - Advocate Rekha Praganiya was arrested for involvement with naxal activity. Rekha was shown as absconding in an ongoing criminal case in which she herself had been representing the accused. In 2013, she was acquitted by court.

14.    Year 2009 – Maharashtra – Advocate Shahid Azmi was killed for defending accused in terror acts.

POLITICAL RESPONSE

In view of the recent arrest of Advocate Sanjiv Punalekar and various attacks on the advocates, state bar councils from Haryana, Madhya Pradesh, Bihar, West Bengal, Maharashtra, Jharkhand have approached the respective governments to enact legislation which will protect the advocates from assaults and politically motivated interferences by investigative agencies and executives.  As usual, advocates have received only fake assurances from the political leaders.

JUDICIARY RESPONSE

At times, the Indian judiciary has condemned such attacks on advocates.  Recently, Delhi High Court issued notice on a writ petition by advocates Tajinder Singh, Anurag Chauhan, and Yakub Raza to appoint a committee/panel to examine and give recommendations for the protection of advocates when they are discharging their duties in the administration of justice. Likewise, a legal practitioner Ajaykumar Waghmare has filed a petition in Bombay High Court praying an appointment of a judicial committee to look into cases of assault on advocates while stressing the need for a law to be out in place to protect advocates and their dignity.

However, till today, there is neither any statutory protection nor any judicial precedent that can facilitate the protection of advocates from assaults of power abusers while discharging their duties in the administration of justice.

INTERNATIONAL ACCEPTANCE OF ATTACKS ON ADVOCATES AND INDEPENDENCE OF THE LEGAL PROFESSION

The UN has adopted Basic Principles on the Role of Lawyers in the year 1990, wherein governments are required to ensure guarantees to the lawyers for properly discharging their duties.  The principles formulated includes, inter alia,:-

16. 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.

17. Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.

Currently, the Council of Europe’s has started work on the drafting of a Convention on the profession of lawyer. The purpose of the Convention is to strengthen the Rule of Law and, in so doing, the protection of lawyers whose work is fundamental to the administration of justice and the protection of fundamental rights. The convention will ensure effective protection of the profession of lawyer, whose mission is crucial for access to justice and the protection of human rights and fundamental freedoms, in particular, the rights of the defense and the guarantees of a fair trial.

 

WHO WILL DEFEND THE DEFENDERS IN INDIA

Criminal Justice system involves judges, judicial officers, public servants, police officers and advocates to ensure administration of justice in India. 

The Judicial Officers’ Protection Act, 1850; The Judges (Inquiry) Act, 1968; and The Judges (Protection) Act, 1985 are among the legislations where the protection is available to judicial officers and judges while discharging their duties.  Moreover, various supreme court’s precedents of law can be found ensuring no harassment of the judicial officers and judges by investigative agencies.

Section 197 and other sections of The Code of Criminal Procedure protects responsible public servants against the institution of possibly vexatious criminal proceedings for offenses alleged to have been committed by them while they are acting or purporting to act as public servants.

Apparently, advocates are the only stakeholders in the criminal justice system which have been left on its own to face corrupt and power abusers. 

Therefore, we urge you to sign this petition and pray to the central & state legislators, respective bar councils and bar council of India to take necessary actions.

1.   The Central Government must enact a Legislation of Advocate Protection Act to ensure the protection of the advocates and any organization of the advocates from intimidation, hindrance, harassment or improper interference from any person while discharging their professional duties in the current parliament session. Meanwhile, the central government must pass an ordinance to ensure the protection of the advocates against interferences and false implications.

2.   The legislation must take all necessary measures to respect, protect and promote the freedom of exercise of the profession of a lawyer without discrimination and without improper interference from the authorities or the public.

3.   Penal Provisions should be provided within the Advocate Protection Act against such persons interfering advocates while they are discharging their duties.

4.   Advocate Protection Act must ensure that an appropriate approval must be sought from the state bar council to initiate any criminal proceedings against the advocate.

5.   The Bar Council of India must set up a dedicated complaint channel to receive complaints about such interferences from the advocates and take appropriate actions with state or central authorities to address these complaints.

We humbly request you to support, sign and share this petition so that lawyers should not suffer or be threatened with any sanctions or pressure when acting in accordance with their professional standards. 

Advocate Tej Singh Gurjar

Advocate Dharmaraj Chandel

Advocate Ankush Mahajan