The Bar Council of India (BCI) on July 2 has come up with the highly anticipated draft Advocates (Protection) Bill, 2021 (hereinafter to be referred to as ‘the Bill’).
The BCI is a statutory body constituted under the Advocates Act, 1961 which regulates legal practice and legal education in India.
The statutory body on a meeting dated June 10, 2021 noted in its resolution the immediate need and importance of enacting an Act (legislation) of Parliament to ensure that the Advocates can have access to protection and privilege like the Police and Judiciary being the most important link between the two. The reason being that the Advocate fraternity is working as an essential wing of the justice delivery system but still they are not given proper protection against the nefarious activities of the anti-social elements.
In the meeting of the BCI came up the incidents of violence against advocates and their family members, which were discussed at length. In one of the cases, a lawyer from Jodhpur Advocate Shri Ram Sharma and his wife were attacked physically, which left behind serious injuries. And in another more heinous incident an Advocate Couple was hacked to death in broad daylight (Gattu Vaman Rao and his wife P. V. Nagamani) in the state of Telangana, condemning which, back in February, the BCI stated that “independence of bar under severe attack” and demanded proper protection for the lawyers of the country by passing appropriate law from the Central Government.
And in light of the resolution taken on June 10, the BCI on June 13 nominated a seven-member committee to frame the draft of the law taking into consideration the problems faced by the advocated and their families.
The objectives behind the Bill that can be deduced from its ‘Statement of Object and Reasons’ are as follows:
- To provide protection to advocates from incidents of assault, criminal force, intimidation and threats while they are discharging their professional duties.
- To remove obstructions in the discharge of an Advocate’s duties by preventing incidents of malicious and frivolous prosecution by rival parties which can also be termed as interfering with the administration of justice itself.
- To implement certain provisions of the 8th United Nations Congress on Prevention of Crime and Treatment of Offenders (1990) to which India was a party. It was in this congress that the ‘Basic Principles on Role of Lawyers’ was also adopted. In this declaration, clauses 16 to 18 guarantee the functioning of lawyers. It sought to make sure that Governments protect lawyers and they are able to perform their duties.
- To prevent Advocates from being questioned about the privileged communications with their clients, to make detection of alleged crime easier, by the enforcement agencies. So that they face no hurdle representing their clients who are either detenues or arrested or incarcerated persons. In this regard the United Nations Human Rights Council, in July 2 adopted the Resolution on the independence of judges and lawyers – A/HRC/RES/29/6 wherein, it acknowledged the fact that the principle of confidentiality in lawyers’ communication with clients is violated, and that they are denied free access to their clients and documents and this needs immediate attention.
- To be put in place, a mechanism to ensure that the Advocates can render professional services without fear or external influence for the ultimate cause of the administration of Justice and Rule of Law.
Notable Provisions Under the Law
Definition of the Offence:
Section 2(1)(b) of the Bill states that the term ‘advocate’ will be the same as in the Advocates Act of 1961. There, the term ‘advocate’ is defined as a person who has been registered as an advocate under the terms of that Act.
Section 2(1)(a) of the Bill defines the term ‘acts of violence’. All acts done against advocates with the purpose to disrupt the process of impartial, fair and fearless conduct of any litigation before any court, tribunal or authority in which such Advocate is engaged or acts of retribution towards the outcome of proceedings before any of the above forums. These acts might include threats, harassment, coercion, assault, malicious prosecution, criminal force, harm, hurt, injury, and so on, all of which could have an impact on an advocate’s living and working conditions. This also involves loss or damage to property or materials and use of derogatory language during the course of the proceedings against the advocate.
Section 3 lays down the punishment for anyone who commits any of the abovementioned ‘acts of violence’. Imprisonment can range from six months to five years, with a maximum of ten years for repeat offenses. Fine can range from Rs.50,000 to Rs.1 lakh for the first offense, while fine for consecutive offenses cannot be less than Rs.2 lakhs.
Section 4 of the Bill lays down that the convicted person shall be liable to pay compensation as may be determined by the Court for committing any of the acts of violence. And if any damage or loss is caused to any property, notwithstanding the compounding of the offence under Section 6 of the Bill, the compensation payable shall be twice the amount determined by the Court.
Nature of Offence and Police Investigation:
Section 5 of the Bill lays down the nature of the offence mentioned in Section 3 shall be cognizable and non-bailable. It also states that any case registered under Section 3 shall be investigated by a police officer not below the rank of Superintendent of Police and such an investigation shall be completed within a period of thirty days from the date of registration of the First Information Report (FIR).
Jurisdiction of Courts:
According to Section 5 only a District and Sessions Judge and no subordinate court can try an offence punishable under Section 3. Section 5 also directs that the proceedings shall be held as expeditiously as possible so that the inquiry or trial is concluded within a period of one year. And the Judge shall record the reasons for non-conclusion of the inquiry or trial within such period of one year.
According to Section 7 of the Bill, if an advocate is under the threat of being a victim of act of violence, upon making an application under Section 7(1) before the High Court he can be given police protection for a duration which the High Court deems fit. It also directs the High Court to scrutinise the personal track record of such advocate, including his criminal record and any other necessary material which it requires, in order to satisfy itself of the character and conduct of such advocate.
Protection of Action in Due Conduct of Duties by Advocates:
Section 10 of the Bill states that no legal proceeding like suit or prosecution shall lie against any Advocate for anything which is done or intended to be done by the Advocate in good faith in the due conduct of duties. The duties must have been in pursuance of the provisions of this Act or any rule, order, notification thereunder or under any direction of Court or any authority which has the power to give directions to the Advocates.
According to Section 10(2) the government should recognize and respect all communications between advocates and their clients in their professional capacity and they shall be treated as confidential.
Protection from Illegal Arrest and Malicious Prosecution:
Section 11 of the Bill deals with illegal arrest and malicious prosecution of Advocates.
According to Section 11, no Police Officer shall arrest an Advocate or investigate a case against an Advocate without the explicit direction of the Chief Judicial Magistrate.
Subsection (2) of section 11 states that if the Court finds any suit, prosecution or any other legal proceeding against an Advocate, during the hearing of the proceeding, to be vexatious in nature or motivated by malicious intention of the person who filed the legal proceeding to disrupt the process of impartial, fair and fearless conduct of any litigation before any court, tribunal or authority in which such Advocate is engaged, the proceeding shall be dismissed with cost.
It further states that such person shall be liable to pay compensation of certain amount that has been determined by the Court and that amount shall not be less than Rs.1 lakh.
Privileged Communication If Obtained by Public Servant:
According to section 12 of the Bill, if any public servant having powers of investigation under Chapter XII of the Code of Criminal Procedure, 1973 is found to be in possession of or has used privileged communication between an accused (client) and his Advocate or material which can be shown to be obtained from an Advocate or any other legal practitioner, it shall be presumed that such privileged communication or material was obtained by such public servant by coercion.
Social Security for Advocates:
Section 15 of the Bill proposes that the State and Central government have to make arrangements to provide financial support to all needy advocates of the country in situations of natural calamity and pandemic, which may affect their profession livelihood like now. A minimum of Rs.15,000 shall be provided to them every month.
The notable and significant provisions of the Advocates (Protection) Bill, 2021 have been discussed above at length.
What remains to be seen is the Government and the Parliament’s reaction to this historic Bill. If this Bill is enacted by the Parliament, it will ensure adequate safety both physical and financial to the legal practitioners of the country as a result of which we can hope that the legal system of the country will become stronger and more capable to ensure justice to all and help justice reach every nook and corner of the country.
If you are interested in participating in the same, do let me know.
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.