This article has been written by Anshita Arora, pursuing a Diploma in US Contract Drafting and Paralegal Studies from LawSikho and edited by Shashwat Kaushik.

Introduction

July 2, 2021, witnessed the inception of a momentous event as the Bar Council of India, cognizant of the escalating wave of violence and intimidation directed towards advocates within the Indian legal system, unveiled the draft Advocates (Protection) Bill, 2021. In response to these concerns, the bill proffered an array of comprehensive safeguards, entailing shielded fortification from physical assault, criminal intimidation, and property desecration.

Subsequently, in September 2021, the Bill made its grand debut in the Lok Sabha, the lower house of the Indian Parliament. The former Minister of Law and Justice, Kiren Rijiju, spearheaded the introduction of the bill, underscoring the government’s commitment to addressing this grave issue. Progressing further, October 2021 marked a pivotal juncture as the bill was entrusted to the Parliamentary Standing Committee on Law and Justice for meticulous review and scrutiny and the formulation of pertinent recommendations. March 8, 2022, a date that remains etched in the annals of legislative chronicles, witnessed the submission of the Standing Committee’s comprehensive report on the bill to the Lok Sabha. This meticulous report, borne out of painstaking deliberation, advocated for several key amendments to the bill. Notably, the committee recommended the deletion of the “assault on court premises” provision and the reduction of the punitive measures for lawyers found guilty of abusing the Act from a three-year term to a two-year term. Adding to this, March 22, 2023, unfolded as a moment of triumph as the Advocates Protection Bill was successfully passed by the Rajasthan Assembly, thereby becoming the maiden state legislature to endorse this groundbreaking legislation. April 2023 signalled the arrival of a new chapter in the pursuit of advocate protection as the Lok Sabha demonstrated its support for the bill, incorporating the amendments proposed by the diligent standing committee.

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Important provisions of the Advocates (Protection) Bill, 2021 

The pertinent need for this Bill lies in the intermingled series of incidents happening against advocates nationwide. The Bill has several provisions, which are as follows: 

Classification of violent acts

The Bill encompasses a comprehensive framework consisting of 16 sections that serve its core objectives. Section 2(1)(b) of the Advocates Protection Bill aligns the definition of “advocate” with the one stated in Section 2(1)(a) of the Advocates Act of 1961. Furthermore, within the same section, acts of violence are precisely delineated. These acts encompass a broad range of intentional actions committed against advocates, aiming to obstruct or undermine the process of fair, unbiased, and fearless litigation. These acts encompass various forms of misconduct such as threats, harassment, coercion, assault, malicious prosecution, criminal force, harm, injury, and other offences that significantly impact advocates’ living and working conditions. Additionally, the bill designates these offences as cognizable and non-bailable.

Sanctions and restitution

Sections 3 and 4 delve into the realm of penalties and compensatory measures. The punitive measures for these offences commence after a minimum of 6 months and may extend up to 5 years. In the case of subsequent offences, the penalties may reach a maximum of 10 years. Correspondingly, fines range from Rs. 50,000 to Rs. 1 lakh, and for repeat offences, fines can escalate up to Rs. 10 lakh. Moreover, the Bill empowers the court to grant compensation to advocates who have suffered harm or wrongdoing.

Investigation by senior police officer

The Bill proposes that investigations regarding these offences be conducted exclusively by officers holding the rank of Superintendent of Police or higher. Furthermore, these investigations must be concluded within 30 days from the date of filing the First Information Report (FIR). Additionally, the bill emphasises the entitlement of advocates to police protection, subject to a thorough investigation by the courts. 

Safeguard against arrest and prosecution

Section 11 stipulates that no police officer shall arrest or investigate an advocate without explicit orders from the Chief Judicial Magistrate. When an advocate reports the commission of an offence to the officer-in-charge of a police station, the police officer must register the information and forward it, along with other relevant materials, to the nearest Chief Judicial Magistrate. The Chief Judicial Magistrate conducts a preliminary inquiry into the case, ensuring the advocate’s right to be heard or represented. If the Chief Judicial Magistrate determines that the FIR is malicious and pertains to the discharge of official duties, bail shall be granted to the advocate.

Grievance redressal committee

An integral provision of the Bill is the establishment of a redressal committee. Each level, including the district, high court, and Supreme Court, will have a three-member committee responsible for addressing the grievances of advocates and bar associations. The head of the respective judiciary at each level, such as the district judge, chief justice, or their nominees, will lead this committee. The president of the Bar Council will also serve as a special invitee during committee meetings.

Social security measures

A noteworthy provision in the Bill is the inclusion of social security measures. Both the state and Central governments are required to establish provisions for offering financial assistance to advocates in need during unforeseen circumstances like natural disasters or epidemics. A minimum of Rs. 15,000 per month is to be provided to eligible advocates. Additionally, offences can be compounded with the permission of the court when an act of violence is committed against an advocate.

Police protection

Advocates facing potential acts of violence are entitled to seek police protection by submitting an application to the High Court in their registered state. The High Court, before issuing any orders under Section 7(1), thoroughly scrutinises the advocate’s personal background, including criminal records and any other relevant material, to ascertain their character and conduct. The decision to withdraw, reduce, or discontinue police security must be referred to the Registrar of the District Court or the Registrar General of the High Court, depending on the advocate’s usual jurisdiction. Additionally, the advocate must be provided with a notice of one week before any such decision is implemented.

Advocates recognised as institution officers

While representing a party before a court, tribunal, or authority, including the police, an advocate is considered an officer of that institution and is afforded the same treatment as other officers.

Protection of advocates in the course of duties

Irrespective of any contrary provision in existing laws, no lawsuit, prosecution, or legal proceeding can be initiated against an advocate for any act performed in good faith and in the due discharge of their duties under this Bill or any associated rules, orders, or court directives that empower advocates.

Malicious prosecution of advocates

If a court determines that any suit, prosecution, or legal proceeding instituted against an advocate by an individual is vexatious or motivated by malicious intent to hinder fair, impartial, and fearless litigation, the court may dismiss such proceedings with costs. The person initiating the vexatious or malicious proceeding is liable to pay compensation determined by the court, with a minimum amount of Rs. 100,000.

Authority to establish rules

In consultation with the Bar Council of India, the Central Government holds the power to establish rules necessary for the effective implementation of this Bill. These rules are to be published in the Official Gazette. Each rule made under this Bill must be presented before both houses of Parliament within a session period of thirty days. If both houses agree on modifying or annulling the rule during this period, it will be enforced accordingly or deemed ineffective. This modification or annulment does not invalidate any actions taken based on the previous rule.

Loopholes and intersections with other laws

Some provisions in the Rajasthan Advocates Protection Bill, 2023, and the Advocates Protection Bill, 2021, are in conflict with the provisions of the Indian Penal Code (IPC), 1860, and the Criminal Procedure Code (CrPC), 1908, so there exists a nexus between state laws and the IPC, which is generally governed by the doctrine of legislative competence. As per this doctrine, if there is a conflict between a state law and a provision of the IPC, the state law may prevail insofar as it falls within the state’s legislative competence.

However, there are certain limitations to the state’s legislative powers. State laws cannot contravene or be inconsistent with the laws enacted by the Parliament of India, including the IPC, in matters that fall within the exclusive domain of the central government. If there is a conflict between a state law and a provision of the IPC in such matters, the provision of the IPC will generally prevail. So although it is explicitly mentioned in the bill that those provisions are notwithstanding anything in the IPC or CrPC, this opens a door for conflict in many instances because advocates are also humans like any other, so this creates a diaspora between the rights of advocates and normal civilians. 

Fundamental appendages or integral enhancements 

There are several other ways that can be further included in the bill in the future; they are as follows: 

  • Personal protection measures: Advocates shall be endowed with the prerogative to avail themselves of an array of personal protection measures along with their families, encompassing the deployment of trained security personnel, implementation of panic devices, and the establishment of other pertinent security arrangements as determined by the competent commission. These measures are expressly designed to fortify the physical well-being and overall security of advocates while they diligently discharge their professional duties, thereby firmly situating them within the purview of the redressal and protection framework.
  • Confidentiality protection (non-disclosure of facts and evidence): Any act of disclosure or breach concerning the sacrosanct realm of confidential information proffered by a client to an advocate shall be met with stringent legal repercussions. This will indisputably assume a pivotal role within the redressal and protection framework, assiduously upholding the trust of clients in their advocates and buttressing advocates’ unwavering commitment to professional responsibilities.
  • Specialised fast-track tribunals : A specialised tribunal will help in expeditiousness and shall be meticulously instituted to accelerate the investigative and prosecutorial processes vis-à-vis offences perpetrated against advocates. The establishment of these specialised fast-track tribunals represents an additional pivotal component within the expansive spectrum of complaint and reporting mechanisms, furnishing a judicial mechanism uniquely tailored to efficiently address and resolve offences against advocates.

Apart from these, provisions for methods of recovery of compensation and protection from sexual harassment by female advocates should be encompassed in the Bill.  

Conclusion

After a thorough examination and exploration of pertinent factors, the parliament meticulously crafted this Bill by delving into intricate accounts of recent gruesome incidents involving assault, criminal coercion, harassment, and explicit threats specifically targeted at advocates while they discharge their professional duties. These incidents not only impede advocates’ ability to provide effective legal services to their clients but also instill profound fear and terror in their hearts for their families and themselves. Additionally, the Bill seeks to counteract the pernicious practice of malevolent and baseless prosecutions orchestrated by opposing parties, which aim to disrupt the Advocates’ performance of their duties and undermine the very fabric of justice administration. Advocates also face the arduous task of representing detainees and high-profile criminals, which further increases the impending risk. Furthermore, the Bill acknowledges the need to address concerns surrounding privileged communications between advocates and their clients during trials and investigations of alleged misconduct. The Bill will now provide effective remedies for all the aforementioned challenges and hurdles faced by advocates around the nation. The need of the hour is to imperatively strengthen the process and core structure of the judiciary and legal arena nationwide. 

References

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