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This article has been written by Shivangi Prakash, from Amity Law School, Noida.

Introduction

The Bar Council of India issued the Advocates Protection Bill, 2021 on July 2, 2021. The statute was drafted by a seven-member team with the problems and difficulties faced by advocates and their families in mind. The main objectives for the bill are said to be the protection of advocates and the removal of restrictions to their ability to fulfil their tasks. A variety of circumstances are mentioned in the bill that obstructs the execution of tasks.

This bill was also drafted in compliance with the 8th United Nations Congress on the Prevention of Crime and Treatment of Offenders, which took place in Havana, Cuba from August 27th to September 7th, 1990. India took part in the Congress and accepted the “Basic Principles on the Role of the Lawyer.”

Advocates, like the police and the judiciary, play a vital role in bringing justice to the public. Even after this, the Police and the Judiciary have been given protection and privileges, but Advocates have not. There seem to be no laws protecting advocates, which is one of the reasons we are seeing an increase in assaults, killings, and illegal detentions of advocates.

Need for the bill

The major needs of the bill are stated to be the protection of advocates and the removal of impediments to their performance of their duties. A variety of circumstances are mentioned in the bill that obstructs the discharge of tasks. A primary reason is a sudden increase in assaults, kidnappings, intimidation, and frequent threats against advocates. When the security of lawyers is jeopardised as a result of their work, the government must provide the necessary protection. Such a measure is required to protect activists. Advocates must also be supplied with welfare benefits and the essential needs of life, according to the law.

A cyclist was arrested a few days ago on the Pune-Bengaluru Highway for assaulting a 41-year-old corporate lawyer[1]. A mob of roughly 20 individuals savagely attacked two lawyers who were meeting with their clients with swords.[2]

Three guys were arrested in October 2020 for kidnapping and killing a lawyer and then discarding his body in a forest in Pune.[3]

All of these activities have instilled fear in the minds of advocates, causing them to be unable to adequately fulfil their jobs, resulting in a decrease in the delivery of justice.

As a result, this Bill has been created in order to reduce similar situations and to assist Advocates in carrying out their duty. It was also created to support the Advocates with basic essentials in time of crisis.

The Council has decided to introduce a bill to safeguard Advocates for the reasons stated above. Apart from physical security and illegal arrest and detention, it also stressed social security.

Important features of the bill

The preamble of the bill states that it is meant to safeguard advocates and their responsibilities when performing professional obligations. The Bill’s objectives and arguments are then stated in detail in nine points.

Acts of violence defined (Section 2)

Under Section 2 of the bill the definition of “advocate” will be the same as in the Advocates Act of 1961. There, the term “advocate” refers to a person who has been registered as an advocate as per the requirements of that Act.

The term “acts of violence” is also stated in the same section of the bill.. All acts performed towards advocates with the goal to hinder or disrupt the practice of unbiased, fair, and honest litigation fall under this category. 

Threat, coercion, malicious prosecution, harassment, assault  criminal force, loss, hurt, injury, and so on are examples of ‘acts’ that could affect advocates’ working and living conditions. This also involves property loss or damage. These should be cognizable and non-bailable offences.

Punishment and compensation (Section 3 and 4)

What happens if the Advocate is the victim of an “act of violence”? Will that person be held accountable? Will the lawyer against whom the violence is committed to receive any remuneration?

Sections 3 and 4 of the Bill contain the answers to all of these questions. Section 3 discusses punishment, whereas Section 4 discusses compensation.

According to Section 3(1) of the Bill, anyone who commits or even aids and abets an act of violence against an Advocate would be sentenced to a minimum of six months and a maximum of five years imprisonment.

The fine for the crime might range from 50,000 to one lakh rupees, depending on the seriousness of the crime.

Furthermore, under Section 3(2) of the Bill, anyone who has already done the act but does so for a second or subsequent time shall be penalised with detention ranging from 2 to 10 years and/or a fine of more than ten lakh rupees but not less than that.

If a crime has been committed, the offender will be required to pay compensation in addition to the penalty imposed under Section 3. Depending on the circumstances, the court will estimate the extent and amount of compensation.

However, notwithstanding compounding under Section 6, if the damage is made to any property, the amount of compensation will be twice the market value of that damaged property, as per Section 4(3).

In addition, if compensation is not provided under Sections 4(1) and 4(2), Section 4(4) states that the money will be reclaimed as land revenue arrears under the Revenue Recovery Act of 1890.

Investigation by officer not below the rank of DSP {Section 5(2)and 5(3)}

When a case is filed under Section 3 of the Bill, it can only be investigated by a police officer of at least the position of Deputy Superintendent of Police (DSP), and the investigation must be completed within 30 days of the filing of the First Information Report (FIR) under Section 154 of the Indian Penal Code, 1860, according to Section 5(2) and section 5 (3) of the Bill.

Jurisdiction {section 5(4) and 5(5)}

According to Section 5(4), matters cannot be brought before courts that are lower than the status of District and Sessions Judge.

Section 5(5) makes it abundantly clear that no adjournment would be granted unless it is absolutely required, and that all witnesses will be cross-examined repeatedly from day today.

This Section further states if the trial is not concluded within the specified time, the time limit can be extended for a maximum of six months, with the judge recording the grounds for non-completion.

Redressal committee

The bill’s next major provision is the establishment of a redressal committee. From every level, i.e. District, High Court, and Supreme Court, a three-member commission for Redress of Grievances of Advocates and Bar Associations have been established. The head of the court 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 two remaining 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 against suits

An advocate who has performed his or her duties in good conscience will not be prosecuted. Interaction between advocates and their clients should be honoured, and confidentiality should be maintained.

Protection against arrest and prosecution

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 shall give an opportunity to the advocate to be heard or to his representative by issuing him a notice.

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If the chief discovers that the application was filed out of hatred or malice, the lawyer will be allowed bail.

Social security (Section 7 and Section 15)

This Advocates (Protection) Bill, 2021, recognises and provides for the social security of Advocates under Section 15. It states that the Central Government, as well as the State Government, might grant financial assistance to Advocates in need during unanticipated events such as epidemics or other natural disasters.

On the proposal of the State Bar Council, the Local District Magistrate or District Court may pay a minimum of Rs. 15,000 to Advocates in Need till the epidemic or other natural calamity is over.

The Central Government will cover half of the costs, while the State Bar Council will cover the other half. Apart from that, the Central Government may establish some insurance plans.

The Central Government even has the authority to lend money to such lawyers. It may order Public Sector Undertakings and Scheduled Banks to grant loans at fair interest rates via a circular.

Further sections provide for police protection, the formation of a grievance redressal body, the protection of advocates from illegal arrest and malicious prosecution, and so on.

Advocates who the court believes are or may be the victims of any of the offences listed in Section 2 of the Bill may be given police protection. The courts will decide how long such protection will last. Section 7 of the Bill provides such protection.

Presumption as to coercion in case public servant obtaining privileged communication from legal practitioner (Section 12)

Section 12 states that when a public servant who has powers to arrest or investigate under CrPC has any confidential material or communication that can be proven by being gained by an advocate in possession or is found that it is useful or beneficial in the investigation, it shall be assumed to have been gained through coercion from that concerned public servant.

Conclusion

The Advocates (Protection) Bill of 2021 can be extremely beneficial in this regard. After analysing and investigating every relevant aspect, the committee of specialists drafted this Bill with great care. All of the major concerns confronting the Advocates fraternity have been explored and debated.

The Bill goes into detail about recent events of assault, criminal force, harassment, and threats aimed directly at Advocates when they are performing their professional responsibilities that usually results in shortcomings in Advocates’ provision of effective services to clients as well as instilling a deep sense of fear in Advocates’ minds. The threat of malevolent and false prosecution by opposition sides, which is also aimed to interfere with the performance of its duties, thereby interfering with the administration of justice itself, is one of the other reasons for introducing this Bill.

The suggestions received by the Bar Council of India will be thoroughly evaluated by the Council, which will thereafter consider incorporating any required adjustments. The final draft Bill will be given to the Hon’ble Minister for Law and Justice, who will present it to Parliament.

Advocates also have the challenge of representing detainees, those who are imprisoned or incarcerated. In order to aid in the investigation of alleged wrongdoing, attorneys are questioned about privileged communications with their clients. All of the above issues that the advocates are facing will be remedied if the bill is passed.

To conclude, this Bill should be transformed into an Act and made applicable throughout India in order to safeguard and save our Advocates from criminal charges and to enable them to carry out their duties without danger.

References

[1] Cyclist booked for attacking lawyer in road rage incident on Pune-Bengaluru Highway available at: /timesofindia.indiatimes.com (last visited on 27 July 2021)

[2] Lawyers attacked with swords on busy Dahisar road in daylight available at: timesofindia.indiatimes.com (last visited on 27 July 2021) 

[3] 3 held for kidnapping, killing lawyer available at: timesofindia.indiatimes.com (last visited on 20 July 2021)


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