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Sad but true: the law is ill-equipped to punish violent Patiala House lawyers

Saurav Datta | Updated on: 14 February 2017, 5:44 IST

The rampage

  • Some lawyers went on a violent rampage at the Patiala House court complex in Delhi last week
  • They beat up journalists and, later, sedition-charged JNUSU president Kanhaiya Kumar

The pretext

  • The lawyers say they have a duty to \'act\' against \'anti-national\' elements, and that traitors must be taught a lesson
  • The Delhi Police has charged them with criminal conspiracy and attempt to murder

More in the story

  • Why the police can\'t invoke stronger charges against the brazen lawyers
  • What the Supreme Court could have and can do

When a few brazen lawyers went on the rampage at the Patiala House court complex on 15 February, there was great public outrage. Not only did they beat up journalists and protestors, but, two days later, also JNUSU president Kanhaiya Kumar, who was being produced in court.

The Delhi Police, headed by Bhim Sain Bassi, has invoked the following criminal provisions against the lawyers - Section 120B (criminal conspiracy) and Section 323 (attempt to murder). However, it has been accused of deliberately going soft on the 'goonda' lawyers.

Police has invoked sections 120B (criminal conspiracy) & 323 (attempt to murder) against the lawyers

The National Human Rights Commission has made unflattering remarks about the police, indicting its personnel of "severe dereliction of duty".

However, as the law of the land stands, the police's hands are tied. Legally speaking, if the cops had invoked stronger charges against the violent lawyers, they would have found it difficult to make them stick in court.

Surcharged atmosphere

The lawyers were led by Vijay Singh Chauhan, who has gone on record to assert that "traitors ought to be taught a lesson" and has dared the law enforcement authorities to take strict action against him and his mates.

Not only that, a former chairperson of the Bar Council of Delhi (with whom the violent lawyers are affiliated), unhesitantingly stated that lawyers are duty-bound to 'act' against what they consider 'anti-national activities'.

Chauhan and company severely intimidated Kanhaiya's defence lawyers, and also shouted death threats.

In this surcharged atmosphere (which Kanhaiya's lawyers have cited as a reason to shift the venue of his trial away from Patiala House), it could be assumed that these threats aren't hollow ones.

But does that mean the police can liberally apply the strictect charges - for instance, attempt to murder - against the assaulters?

Legal constraints

If legal experts are to be relied upon, the answer is no.

Senior advocate KTS Tulsi, an old hand at all sorts of criminal cases, says the more stringent the charge, the more difficult it is to prove in court. He strongly condemns the lawyers' acts as 'deplorable', but believes that an attempt to murder charge would easily collapse in court.

Sanjay Hegde, Senior Advocate in the Supreme Court, voices a similar view.

"The criminal law is neither designed, nor equipped to, effectively tackle lawyers espousing what they believe to be a 'nationalist' ideology". The police has acted within the limits of its legal constraints, but the Supreme Court, which was approached to provide safety and security to Kanhaiya's lawyers, and ensure the sanctity of a free and fair trial to him, did not really do what it ought to have done," Hegde says.

Criminal contempt?

The Supreme Court, on Friday, 19 February, issued a detailed order directing the Delhi Police to act against all lumpen elements, even if some of them were clad in lawyers' gowns.

But it is arguable why the Supreme Court didn't invoke criminal contempt charges against the lawyers.

Going purely by the letter of the law, under Section 14(1) of the Contempt of Court Act, if one "causes any obstruction in the course of justice", he becomes liable for criminal contempt.

It is arguable why the Supreme Court didn't invoke criminal contempt charges against the lawyers

Although they beat up journalists and Kanhaiya outside the immediate premises of the court, Undoubtedly, Chauhan & Co. did indeed create an atmosphere of fear, which could potentially endanger Kanhaiya's access to justice. Therefore, a charge of criminal contempt could well be made out against them.

In the recent past, the judiciary has used the criminal contempt law as a swashbuckling sword, applying it to Booker Prize-winning author Arundhati Roy for penning a magazine article criticising a Bombay High Court decision.

What held back the Supreme Court in Kanhaiya's case? No lawyer, not even the members of Kanhaiya's defence team Catch spoke to, was willing to venture forth an opinion or an informed guess. Nobody wants any prejudice to creep into Kanhaiya's bail case, which is due for hearing this week.

Inept Bar Council

According to the Advocates Act and the rules under it (which govern the legal profession in India), the State Bar Council has the power to take disciplinary (civil law) action against lawyers who act in a potentially illegal manner.

However, the Bar Council of Delhi, with which Chauhan and the other violent lawyers are enrolled, has not acted against them till date.

Maninder Singh, an Additional Solicitor General and the present president of the BCD, refused to speak on record, but senior advocate Manan Kumar Mishra, its former president, did. He said the acts of violence were 'wrongful', but is also firm in his view that the police couldn't have slapped stricter charges.

Not only that, he was also critical of the media for 'bashing' lawyers who "wear their patriotism on the sleeve".

Feeling of helplessness

Lawyers' violence isn't something new - in October last year, a seven-judge Bench of the Allahabad High Court passed strictures against protesting lawyers, who were indulging in acts of vandalism and arson.

Then in September, the Madras High Court was constrained to direct the Central Industrial Security Force (CISF) to protect the court premises from lawyers, who resorted to rioting.

On Monday, the various parties in the matter - the Delhi Police, the lawyers' association and others - were directed to submit reports before the Supreme Court. They did so in sealed covers, and the next hearing in the case has been set for 10 March.

In September, the Madras High Court had to direct the CISF to protect it from rioting lawyers

Additional Solicitor General Ranjit Kumar requested the court not to make any observation that could prejudice Kanhaiya's case. The court agreed, and stated that it was not dealing with Kanhaiya's case, but was concerned only with the violence.

But, the long and short of it is that there's meagre little the law or its enforcement agencies can do about the violent lawyers.

Edited by Shreyas Sharma

First published: 22 February 2016, 4:17 IST
Saurav Datta @SauravDatta29

Saurav Datta works in the fields of media law and criminal justice reform in Mumbai and Delhi.