An Open Stautory Notice to Union of India

: An Open Statutory Notice:

The Union of India

through Ministry of law and justice,

Government of India,

Shastri Bhavan,

New Delhi :110001.

Sir,

It shall be incumbent upon me to file the Writ Petition in the nature of mandamus seeking to promulgate the Ordinance/Notification in Govt. Gazette for the Advocates ( Protection against Prosecution ) Rules, 2008 duly passed by the Bar Council of India's Resolution No. 59 of 2008 at its meeting held on 13^th & 14^th April 2008. through Public Interest Litigation before the Hon'ble Supreme Court of India, New Delhi, in the matter under Article 32 of the Constitution of India and the Advocates Act, 1961 and Bar Council of India Rules, 1975 after the expiry of statutory period on receipt of this Statutory Notice.

Grounds: Union of India is under international obligation by virtue of Basic Principles on the Role of Lawyers :Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. particularly on the article mentioned below:

Guarantees for the functioning of lawyers

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.

18.Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.

19.No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles.

20.Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.

21.It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.

22.Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.

Relief:

A. The Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus directing the Respondent Authority to promulgate ordinance/notification in the official Government gazette regarding the Advocates ( Protection against Prosecution ) Rules, 2008, namely,

Proposed Draft of Rules :

Statement of Objects & Reasons : Unfortunately, there is no provision

in the Law of Land for an Advocate against the offence purported to

have been committed during the course of discharging professional duty

even performed with utmost care, diligence and reasonable prudence for

securing justice for the client while safeguarding professional dignity,

honour and self respect, therefore, it is considered necessary to enact law

to protect the Advocates from Arrest, Detention and remand of Police

custody for the offence purported to have been committed during the

course of discharging professional duty :In exercise of the powers

conferred by sec. 49-A of the Advocates Act, 1961, the Central

Government, hereby, makes the following rules, namely:-

1. Short title and commencement : These rules may be called the

Advocates (Protection against *Malicious Prosecution ) Rules, 2008.

2.It shall come into force at once.

3. Prosecution of Advocate : When any person who is an Advocate is

accused of any offence alleged to have been committed by him while acting or

purporting to act in the course of discharging his professional duty, no court ,

shall take cognizance of such offence except with the previous sanction of the

State Bar Council. -where such person is duly enrolled as an Advocate and

only after prima-facie case is duly adjudged by the Disciplinary Committee of

the State Bar Council.

4. Appeal: As otherwise provided in the Advocates Act, 1961 and the Bar

Council of India Rules, 1975 an appeal from the order of the State Bar

Council shall lie to the Bar Council of India.

(The word *Malicious is deleted by the Bar Council of India. Thus making the ambit of

protection enlarged.)

B. Your Lordships may pass any other appropriate and just relief/s in the interest of justice.

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE PETITIONER SHALL AS IN DUTY BOUND FOR EVER PRAY.

Surat:

Dated: 06-07-2009 A. Patrawala Advocate

Enclosed : Annexure : A : Draft Rules.

Annexure : B : BCOI Resolution

Annexure : A