This article is written by Ronika Tater, from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses the need and the importance of the bill thereby providing suggestions for the effective implementation of the bill.
Table of Contents
Advocates play a quintessential role in the pursuit of justice in this country, but often they face indefinite hurdles in their endeavours. To that end, on 2nd July 2021, the Bar Council of India issued the draft of the Advocates (Protection) Bill, 2021, (hereinafter referred to as the “Bill”) which could be much-needed security for the legal fraternity. The Bill aims to protect the advocates not only in terms of physical protection but also provides financial security.
The Constitution of India provides the right to freedom guaranteed under Article 19 of the Constitution of India to every individual irrespective of their role in society. The framers of the Constitution considered Article 19 as one of the vital rights for the people of the country. Lawyers like any other citizens are provided with freedoms of expression, speech, belief, association, and assembly. It means that they have the right to participate in public opinion and matters concerning the law, the administration of justice, protection of human rights, to indulge in meetings or association in any form of local, national, or international organisations without any professional restrictions. While exercising these rights, the lawyers have to conduct themselves as per the law and maintain the recognised standards and ethics of the legal profession.
Further, the Indian Parliament has also passed the Advocate Act, 1961 (hereinafter referred to as the Act) to provide a legal framework for legal practitioners and guidelines for the establishment of the Bar Council and an All India Bar Association. This Act provides a combination of all the legal system laws into a single document. In the case of O.N.Mohindroo v. The Bar Council of Delhi and others (1968), the Supreme Court stated that the Advocate Act is an essential part of the legislation dealing with persons entitled to practice in the Supreme Court, the High Court, or any other courts. Hence, this Act provides a central enactment to ensure that the advocates render their professional services without any threat, intimidation, harassment, or external influence to achieve the ultimate cause of the administration of justice and rule of law.
In the case of Hari Shankar Rastogi v. Giridhar Sharma, (1978) the court stated that the Bar is an extension of the system of justice and an advocate is considered as an officer of the court. The Advocate is considered as the master of an expert and is also accountable to the court and governed by the higher courts while exerting their professional service with ethics and standards. The successful discharge of justice often depends on the devices of the legal profession. Hence the lawyers placed an essential role in the legal system.
In a similar case of Ramon Services Pvt. Ltd. v. Subhash Kapoor (2001), the Supreme Court stated that the legal profession is regarded as a social elite. They have progress and development pillars not only in the sphere of law but also across the polity. Society looks upon them with respect as the lawyers have never hesitated to perform their duties and obligations in the greatest interest of mankind.
In the case of O.P Sharma v. High Court of Punjab and Haryana (2011) the Supreme Court declared that the Advocates are the officers of the courts and hence an essential part of the justice system and with their assistance, the justice system will work with full enthusiasm to uphold justice and rights of citizens. However, in the recent case of Secretary v. Ishwar Shandilya and others (2020), the Supreme Court held that the boycott or strike from the courts by the advocates was illegal and does not come under the ambit of the right to freedom of speech and expression under Article 19(1)(a). The bench also stated that the lawyers have to work in the larger interest to achieve the ultimate goal of speedy justice as recognized as the fundamental rights under Article 14 and Article 21 of the Constitution of India. While going on strike the lawyers could have assisted the courts in the disposal of the criminal trials.
Other provisions and laws
The Constitution of India under Article 39A provides that every State should secure for effective implementation of the legal system by promoting justice based on an equal opportunity by providing free legal aids. It has been seen that the advocates have also contributed to accessing social justice in every sphere of society by taking up such cases. The statutory procedure while providing free legal aid appointed advocates for defending criminal cases for judicial redressal. The Legal Services Authorities Act, 1987 was passed by the parliament of India to promote free access to legal aid among the underprivileged people if they fall under the categories provided in the provisions of the Act.
Further, the United Nations Human Rights Council, Resolution on the Independence of Judges and Lawyers provides the principle of confidentiality in lawyers’ communication with clients. The declaration states that the States has to ensure the independence of lawyers to promote and ensure the justice of human rights. Furthermore, it should help human rights defenders and journalists by actively participating and taking other appropriate measures while performing their professional duties free of interference, threat, intimidation, and harassment of any type.
Why is there a need to introduce the Bill
The followings are the reasons and objects for the need to introduce the Bill are as below-mentioned:
- The recent rise of assault, killing, threat, and fear caused to advocates while honestly discharging their professional duties is an alarming situation and causing discrepancies in rendering professional services to their clients.
- The following recent incidents of assault, criminal force, the threat caused to advocates has led to apprehension in the minds of advocates which in connection leads to delay injustice. Hence, the legislation has to look into it and provide an effective solution.
- There is a need to provide social security and to ensure that the necessities and requirements to the advocates as there are also rendering professional services.
- The recent Bill aligns with the resolution by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 1990 which provides the basic principles on the role of lawyers. The Declaration states that the government has to ensure that the lawyers can perform their professional services without any hindrance or intimidation. While travelling within the country or abroad the lawyers are not faced with any threat of prosecution or any other administrative action while rendering their professional duties and standards. The Declaration also provides that the government should take action against the authorities for unlawfully threatening the security of lawyers.
- It has been seen that the advocates are often faced with threats from the rival parties while delivering the administration of justice.
- One of the essential tenets of the legal profession is the safeguarding of privileged communication between the advocate and the client. In the case where the advocate is representing detainees or arrested persons, the advocates are often questioned about the privilege of their communication to detect the alleged crime, however, this is against the basic principle of the legal profession. Hence, this requires immediate attention by the legislature and safeguard the Advocates interest.
- The Bill provides to address the following concerns and issues of the advocates and provide the effective measure to achieve the above objectives.
Essential provisions under Advocates (Protection) Bill, 2021
The main purpose of the Bill is the protection of the advocates and their functions while dutifully discharging their duties. There are a total of sixteen sections in the whole Bill. The following are the essential provisions provided in the Bill:
- Section 2 of the Bill talks about the definition of “Advocate” as mentioned in Section 2(1)(a) of the Advocates Act, 1961 which means an advocate entered in any roll as per the provisions of the said Act.
- Section 3 of the Bill talks about the “punishment for offences” which starts from six months and extends up to five years and can be up to ten years for the subsequent offence.
- Section 4 of the Bill talks about “compensation” which starts from Rs. 50,000 and extends up to Rs. 1,00,000 and can go up to Rs. 10,00,000 for the subsequent offence.
- The Bill provides the speedy remedy for any offence punishable, registered, investigation of any case under Section 3 shall be completed within thirty days from the date of the registration of the first information report.
- In case if the advocate is under the threat of being a victim of any act of violence while rendering professional services, under Section 7 of the Bill such Advocate should be provided with police protection for the duration as per the court declaration.
- The advocate while pleading before the court should be treated as per with other officers of the institution.
- The Bill provides for a three-member committee for redressal of grievances of advocates and Bar associations at every level of the judiciary. The Bill entails the committee with the power to issue appropriate directions, suggestions to the concerned police officers or the appropriate government authority for the redressal of grievance by the advocate or the bar association.
- The government has to ensure and recognise that all the communication and consultations between the lawyers and the client while rendering the professional device are protected. And also that the lawyers are free to associate and express their view in any association. Moreover, the lawyers are free to promote their education, training and protest their rights, duties, and privilege without any external interference. However, such rights should be exercised within the conduct of their legal professionals.
- Section 11 of the Bill plays a key role in the whole Bill as it provides for the “protection from illegal arrest and malicious prosecution of advocates”, which states that no police officer should arrest an advocate or investigate a case against an advocate without the specific order of Chief Judicial Magistrate.
- The Bill also provides financial assistance to all the needy advocates of the country during times of any unforeseen situation for instance in the case of an epidemic or any other natural calamities. The Central or the State government should at least provide an amount of fifteen thousand to the needy advocates till the end of the specific situation. The Bill also provides for insurance, medical claim, and loan facility for the Advocates.
It is essential to note that the Bill covers all the aspects of unwarranted issues and concerns that hinder the process of justice thereby adversely affecting the advocates to carry out their duties. However, the Bill fails to recognise the issue of receiving fees from the clients while rendering their professional service. The non-payment of bills by the clients leads to multiple unpaid bills in the hands of advocates thereby affecting their livelihood. Hence, a provision providing a mechanism for collection or receiving of fees in a case where the client denies to pay should be incorporated.
The Advocates Protection Bill ensures adequate protection to the members of the legal fraternity so that they can render their professional service without justice being delayed. The Bill claims to be the protection of advocates and the removal of hurdles and also provides various assistance and facilities for the execution of their responsibilities. However, the effective implementation of this Bill will be seen in the times to come.
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