“Advocate Protection Bill 2021: An Overview”
Written By: Hrishika Rawat
After a long wait and the refusal of many motions in court, the Bar Council of India formed a committee to develop the “The Advocates (Protection) Bill, 2021.”
The Bar Council of India in its resolution dated June 10, 2021, had noted, “it is imperative that such act be passed by the Parliament at the earliest as the Advocates fraternity is literally acting as one of the essential wings of the justice delivery system akin to the Police and the Judiciary and while the Police and judiciary have access to protection and privileges, but, the most important link between the two who argue and present the case/matters in Court is/are not given proper protection against the nefarious activities of anti-social elements.”
The Committee Consisted Of The Following Members
- Mr. S. Prabakaran, Sr. Advocate, Vice-Chairman, Bar Council of India;
- Mr. Debi Prasad Dhal, Sr. Advocate, Executive Chairman, Bar Council of India Trust;
- Mr. Suresh Chandra Shrimali, Co-Chairman, Bar Council of India;
- Mr. Shailendra Dubey, Member, Bar Council of India;
- Mr. A. Rami Reddy, Executive Vice-Chairman, Bar Council of India Trust;
- Mr. Shreenath Tripathi, Member, Bar Council of India; and
- Mr. Prashant Kumar Singh, Member, Bar Council of India.
Object Of The Bills
The purpose of the Bill, according to the preamble, is to protect advocates and their functions when performing professional tasks. The Bill’s objectives and justifications are then stated in detail in 9 points.
The bill’s major motivations are stated to be the protection of advocates and the removal of impediments to their performance of their duties. The bill mentions a number of factors that inhibit the discharge of responsibilities.
The Bill was also introduced to put into effect the United Nations’ 8th Congress on the Prevention of Crime and the Treatment of Offenders (1990), to which India was a participant. The ‘Basic Principles on the Role of Lawyers’ were also adopted at this congress. There are clauses in this statement that guarantee the functioning of lawyers. It sought to make sure that Governments protect lawyers and they are able to perform their duties.
The Supreme Court of India in the case of Hari Shankar Rastogi v/s. Giridhar Sharma, has observed that “Indeed, the Bar is an extension of the system of justice, an advocate is an officer of the court. He is a master of expertise, but more than that, accountable to the court and governed by high professional ethics. The success of the judicial process often depends on the services of the legal profession”.
A key reason is a recent spike in assaults, kidnappings, intimidation, and continuous threats against advocates. When the security of lawyers is jeopardized as a result of their work, the government must provide the necessary protection. Such a measure is required to protect activists. It further provides that advocates must be provided with social security and the bare necessities of life.
Act Of Voilence Defined
In total, the draft bill locates 16 sections in respect of its objectives.
Under Sec.2 of the bill, the definition of ‘advocate’ is to be the same as in that of the Advocates Act, 1961. There, “advocate” means an advocate entered in any roll under the provisions of that Act.
The same section also defines ‘acts of violence. These include all such acts committed against the advocates with an intent to prejudice or derail the process of impartial, fair, and fearless litigation. These ‘acts’ could be of threat, harassment, coercion, assault, malicious prosecution, criminal force, harm, hurt, injury, etc. that potentially impact the living and working conditions of advocates. This also includes loss or damage of property. These offenses are to be cognizable and non-bailable.
Punishment And Compensation
Sections 3 and 4 discuss punishment and restitution. Punishments can range from six months to five years, with a maximum of ten years for subsequent offenses. Fines range from Rs.50,000 to Rs.1 lakh for the first offense, while fines for subsequent offenses can reach Rs.10 lakhs. The bill also gives the court the authority to compensate advocates for wrongs done to them.
Invetigation By Officer Above The Rank Of Dsp
The law recommends that no one below the level of Superintendent of Police conducts an inquiry into certain offenses and that the investigation be finished within 30 days of the FIR being filed. The bill also suggests that advocates have the right to police protection if the court conducts a thorough investigation.
Protection Against Suits
No legal action should be brought against a lawyer who has been acting in good faith. The advocates’ and their clients’ communications must be respected, and the clients’ privacy must be maintained.
Protection Against Arrest And Prosecution
Section 11 provides that “No Police Officer shall arrest an Advocate and/or investigate a case against an Advocate without the specific order of the Chief Judicial Magistrate. When an Advocate provides information to an Officer-in-Charge of a Police Station about the commission of any crime, the Police officer shall enter or cause to be entered the substance of the information in a book to be kept by such officer, and refer the information and other related materials to the nearest Chief Judicial Magistrate, who shall hold a preliminary inquiry into the case and the Chief Judicial Magistrate concerned shall issue notice to the advocate and give the opportunity of hearing to him or to his counsel or representative.
Following the hearing, if the CJM determines that the FIR was brought against the Advocate for malicious reasons arising from the discharge of the Advocate’s professional duties, the CJM will grant bail to the Advocate.
The statute also includes a significant provision for Social Security. In unanticipated emergencies such as natural catastrophes or epidemics, the act proposes that the state and federal governments establish measures to provide financial help to all needy Advocates in the country. Every month, a minimum of Rs.15,000 must be provided.
Presumption As Tocoercion In Case Public Sevant Obtaining Privileged Communication From Legal Practitioner
Section 12 states that if any public servant with investigative or arrest power under the Cr.P.C is found in possession of or using in his investigation any privileged communication or material that can be shown to have been obtained from an Advocate, it is presumed that such privileged communication or material was obtained by coercion.
The suggestion received in the Bar Council of India shall be duly considered by the Council and thereafter, the Council will consider about incorporation of necessary changes, if any. The final draft Bill shall be sent to Hon’ble Minister for Law and Justice to table the same before the Parliament.
The committee has endeavoured to take all these connected issues into consideration and drafted the “Advocates Protection Bill”, if passed by the Parliament will ensure adequate protection to members of the legal fraternity, so that they can carry on their duties as officers of the court, fearlessly without having to worry about their and their family’s social and physical safety.