- For years, advocates have been subjected to threats and assaults due to their profession.
- They protect the rights of the people and in turn they and their family’s rights are violated by the parties.
- The profession of law deserves as much respect as any other profession. The Advocates’ Protection Bill proposes for the protection of the advocates from harassment that they are subjected to and for making it easier to render their services.
- The reasons, objectives and the benefits are all discussed in the article.
The people all over the world are recognised from the work that they do. One’s profession is the deciding factor for their position in the society. There are various professions in India and being an Advocate is one of the most crucial professions.
In earlier times, law was a profession which was feared and looked down by many families. There used to be so many stereotypes that people refrained from getting married into a family where someone is in the law background unless someone in your own family belongs to the law profession. With the changing trends in career options and the changes in the legal system, the law as a profession has gained a lot of importance.
Even with numerous pending cases in the country for over decades, in case of any dispute, the people threaten of approaching the courts. This is the kind of faith and trust the citizens have on the judiciary and the advocates.
Importance of the Bill
From the name of the Bill itself, it is evident that the Bill is proposed for the protection of the advocates. Now the question is why do the advocates need protection and from whom?
The advocates are responsible for getting the citizens justice. They argue before the Court of law on behalf of the parties, for the Court to come to a decision and for the parties to be protected from crimes, violation of their rights and any wrongdoings.
The advocates are threatened by the very parties or any party that has any interest in the case. They are subjected to assault, criminal force, intimidation and various threats to them and their families. When an advocate is involved in a case of a party, the opposite party threatens the advocate for him not render his services to the party. There are instances where the party itself threatens of the dire consequences of not getting the expected decree from the Court. There are also instances where the advocates are beaten up in relation to them rendering their professional duties.
The advocates are also subjected to malicious prosecution by the opposite party to delay the proceedings and administration of justice. Not only this, the privileged communication between the client and the advocate is questioned. This situation of has caused a lot of law and order discrepancies in the country and it was high time for the ones who protect you from the injustice in your life, to be protected from the same injustice just because of their professional conduct.
Objective of the Bill
The main objective of proposing the Bill is to protect the advocates. This came in relation to the Eight United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba from 27 August to 7 September 1900, where India had adopted the “Basic Principles on the Role of Lawyers”.
The clauses 16 to 18 of the Declaration provided for the Government to ensure that the advocates can perform their professional services without any abuse, assault or intimidation and that they have the freedom of travel and consult their clients in their countries and abroad as well and in case of such threat to the security of the lawyers, the authorities are to safeguard them.
In the case of Hari Shankar Rastogi v. Giridhar Sharma, it was laid down that, “Indeed, the Bar is an extension of the system of justice, an advocate is an officer of Court. He is the master of an expertise, but more than that, he is 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.”
The advocates are needed to be protected and ensured that they can render their services without any fear to them or their families for providing justice and maintaining the Rule of Law.
Provisions of the Bill
A Committee of various members of the Bar Council of India was nominated to draft the Bill that would ensure the protection of the advocates and for providing solutions to the problems faced by them.
Acts of Violence
In order to achieve its objectives, the proposed law contains a total of 16 provisions. According to Section 2 of the bill, the definition of advocate must be the same as it was in 1961 under the Advocates Act. A lawyer in any position as defined by the Act is referred to as an ‘advocate’. The lawyer is not a public defender. Acts of violence are defined in the same section. This includes any actions taken against advocates in order to undermine the process or to prevent unbiased, fair, and brave litigation. This Act may have an impact on advocates' living and working conditions, including threats, harassment, coercion, malicious prosecutions, criminal force, harm, hurts, and other damages, among other things.
Sections 3 and 4 of the penalty and indemnification acts are discussed. Criminal charges include a minimum term of six months and a maximum sentence of five years. Penalties range from Rs. 50,000 to Rs. 1 lakh, with fines up to Rs. 10 lakhs for repeated offences. The Bill also gives the Court the power to pay advocates for wrongdoings.
The law recommends that no one below the level of Superintendent of Police can conduct an inquiry into certain offences, and that the investigation has to be finished within 30 days of the FIR being filed. The Bill also provides that advocates have the right to police protection if the Court conducts a thorough investigation.
The second major provision contained in the Bill is the establishment of a Redressal Committee. At each level, i.e. District, High Court, and Supreme Court, a three-member Commission for Redress of Grievances of Advocates and Bar Associations has been established. The leader of the judiciary at that level, such as a District Judge for the District Court, a Chief Justice or his nomination for the High Court, and a CJI or his nominee for the Supreme Court, will lead this Committee.
The remaining two members will be appointed by nomination from their respective Bar Councils. At the meetings of the Redressal Committee, the president of the Bar Council will be a Special Invitee.
Protection from Suits
A lawyer who has performed his or her duties in good faith will not be prosecuted. Communication between advocates and their clients should be honoured, and confidentiality should be maintained. Section 11 states that no police officer may arrest a lawyer or investigate an advocate case without a specific order from the Chief Judicial Magistrate.
If a police officer receives information about an advocate committing a crime, the officer enters or causes the substance of the information to be entered into a book that the officer must keep and refers the information to the nearest Chief Judicial Officer, who conducts a preliminary investigation into the case and the Chief Judicial Magistrate concerned shall issue notice to the advocate and give opportunity of hearing to him or to his counsel or representative. If the Chief Judicial Magistrate discovers that the application was filed out of hatred or malice, the lawyer will be granted bail.
An advocate, who represents a party before a court, tribunal, or authority, including the police, is considered an officer of that institution and is entitled to the same treatment as other officials.
No suit, prosecution, or other legal proceeding shall lie against any Advocate for anything done or intended to be done in good faith in the due conduct of such Advocate's duties in pursuance of the provisions of this Act and any rule, order, or notification thereunder, or under any direction of a Court, notwithstanding anything to the contrary, in any other law for the time being in force.
The Bill also proposes inclusion of a significant provision for social security. In unanticipated emergencies, such as natural disasters or epidemics and pandemics, 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 to the advocates. Offenses are compounded. When a person is charged with committing an offence punishable under Section 3, the offence may be compounded by the person who performed the act of violence, with the Court's authorization.
The Bill goes into detail about recent incidents of assault, criminal force, intimidation, and threats directed at Advocates while they are performing their professional duties, which have resulted in law and order issues and inadequacies in Advocates’ provision of professional services to their clients, as well as instilling a deep sense of fear in Advocates’ minds.
Whenever a public servant with powers of investigation under Chapter XII of the Code of Criminal Procedure, 1973 (2 of 1974) or other powers of detention, arrest, and investigation under any other law or purporting to act under any other law is found in possession of or using privileged communication or material obtained from a barrister in the course of his investigation,
These provisions surely are a step towards the protection of advocates. The Government is also given the rule making power which would ensure that any further threat is taken care of.