Advocates cannot be arrested under the new Advocates (Protection) Bill 2021.
In the case of Hari Shankar Rastogi v/s. Giridhar Sharma, (1978) 2 SCC 165, the Supreme Court of India made the following observation:
“Indeed, the Bar is an extension of the system of justice, an advocate is an officer of court. He is master of an expertise, but more than that, accountable to the court and governed by a high professional ethics. The success of the judicial process often depends on the services of the legal profession”.
India was a participant of the Eight United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba 27August to 7 September 1900, which had adopted the “Basic Principles on the Role of Lawyers”. Clauses 16 to 18 of the declaration dealt with “Guarantees for the functioning of lawyer.” which states the following:
Clause 16 said “Governments shall ensure the lawyers,
That they are able to perform all of their professional services/functions without intimidation, hindrance, harassment or improper interference,
They are able to travel and to consult with their clients freely both within their own country and abroad; and
They 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.”
Clause 17 stated that, “Where the security of lawyers is threatened as a result of discharging their duty, they shall be adequately safeguarded by the authorities”.
Clause 18 states that, “Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.”
There were a few more issues that arose and were prevalent when the advocates discharged their duties like facing threats of malicious and frivolous prosecution by the rival parties with the intention of interfering with the advocates performance of their duties, which in turn also interferes with the administration of justice itself. When advocates are representing detainees or arrested or incarcerated persons, they are questioned about privileged communication with an aim of making the detection of alleged crime relatively easier. This, however, militates against the basic tenets of the legal profession and violates the sanctity which the law enjoins the Advocate to maintain with respect to such privileged communication or materials and as observed in the United Nations Human Rights Council, Resolution on the independence of judges and lawyers – A/HRC/RES/29/6 requires immediate attention in acknowledging the principle of confidentiality in lawyers’ communication with clients is violated, and that they are denied free access to their clients and documents. Therefore, a mechanism to ensure that the advocates are able to render professional services without fear or external influence for the ultimate cause of the administration of Justice and Rule of Law must be put in place.
The Advocates (Protection) Bill, 2021 was brought in consideration of the above made observations. The bill has 14 sections, the important points/take aways are as follows:
Section 1- Deals with the short title and commencement which calls the bill Advocates (Protection) Bill, 2021, which extends to the whole of India.
Section 2- Deals with the definitions present in the Act.
(1) (a) “act of violence” refers to acts committed by any person against an advocate, with an intent to prejudice or derail the process of impartial, fair and fearless conduct of any litigation before any court, tribunal or authority in which such Advocate is engaged or acts of retribution towards the outcome of proceedings before any of the above forums and includes the following:
- Harassment, coercion, assault, criminal force or threat à impacting lives or living conditions.
- Harm, injury, hurt, either grievous or simple, or danger to the Advocates life’s à within the premises of the courts or otherwise
- Coercion à to reveal or part with privileged communication or material à bound to hold in confidence under law
- Coercion à to NOT represent or to withdraw his Vakalath or appearance to act, plead or appear on behalf of a client
- Loss or damage to any property or documents or materials à bound to hold under law
- Using derogatory language during judicial and quasi-judicial proceedings
- (b) The term “Advocate” has the same meaning as provided under Section 2 (1) (a) of the Advocates Act, 1961.
- The words and expressions used in this Act, but not specifically defined shall have the same meaning as assigned to them in the Advocates Act, 1961, the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015 and the Indian Penal Code, 1860.
Section 3- Deals with the punishments for the offences.
- Whoever commits or abets the commission of an act of violence covered under Sub-Section (2) shall be imprisoned for a term not less than six months but which may extend to five years along with a fine up to one lakh rupees.
- Whoever commits or abets the commission of an act of violence covered under Sub-Section (2), the second or subsequent offence shall be punished with an imprisonment of a term not less than a year but which may extend to ten years and fine which shall not be less than two lakh rupees.
Section 4- Deals with the compensation of the offences.
- In addition to the punishments under Section 3 of the Act, the person convicted shall also be liable to pay a compensation an amount determined by the court.
- In case of damage to any property or loss caused, the compensation payable shall be twice the amount of fair market value of the damaged property or the loss caused, as may be determined by the Court.
Section 5- Deals with the Nature of Offence and Jurisdiction of Courts
Notwithstanding anything contained in the Code of Criminal Procedure, 1973-
- an offence punishable under Section 3 shall be cognizable and non-bailable;
- registered case under Section 3 shall be investigated by a police officer not below the rank of Superintendent of Police;
- investigation of a case under Section 3 shall be completed within a period of thirty days
- No court inferior to that of a District and Sessions Judge shall try an offence
- The proceedings shall be held as expeditiously as possible and the enquiry or the trial must be concluded within the period of a year.
Section 6- Deals with the compounding of offences
A person prosecuted under Section 3 may be compounded by the person against whom such act of violence is committed, with the permission of the said Court.
Section 7- Deals with Police Protection
- Can be availed upon making an application before the High Court of the State within which he is registered to Practice law for a duration that the said court deems fit.
- High court shall scrutinise the personal antecedents of such advocate, including his criminal record and any other necessary material which it requires, in order to satisfy itself of the character and conduct of such advocate, and the bona-fides of the application filed under Sec. 7(1).
- To withdraw, reduce or discontinue such security, the police superintendent must refer the matter to the Registrar of the District Court or in the case of an Advocate ordinarily prosecuting in the High Court, the Registrar General of the High Court for their concurrence.
- A week notice must be served to the advocate without which no decision can be taken by the Superintendent of Police to withdraw, reduce or discontinue the security provided to the Advocate.
Section 8- Deals with Advocate deemed to be officer of the Institution
An advocate pleading for a party before the Court, Tribunal or Authority, including the Police, shall be deemed to be an officer of such Institution.
Section 9- Deals with Protection of action in due conduct of duties by Advocates
An act done in good faith done or intended to be done in the due conduct of duties of such Advocate in pursuance of the provisions of this Act and any rule, order, notification thereunder or under any direction of a Court or any other authority which is empowered to give directions to Advocates.
Section 10- Deals with the Malicious Prosecution of Advocates
- If a proceeding is found to be vexatious in nature, or motivated by a malicious intention to derail the process of impartial, fair and fearless conduct of any litigation before any court, tribunal or authority in which such Advocate is engaged, or, is an act of retribution towards the outcome of proceedings before any of the above forums, the said proceedings shall be liable to be dismissed, with costs.
- Any person found to have initiated a vexatious or malicious proceeding against an Advocate shall be liable to pay, by way of compensation, such amount as may be determined by the Court, which amount shall not be less than Rs.100,000/-.
Section 11- Deals with the Presumption as to coercion in case of a public servant obtaining privileged communication from legal practitioner
Powers of investigation under Chapter XII of the Code of Criminal Procedure, 1973 (2 of 1974) or such other powers of detention, arrest and investigation under any other law or purporting to so act under any law.
Section 12- Deals with Act not in derogation of any other law
This Act shall be in addition to and not in derogation of the provisions of the any other law for the time being in force.
Section 13- Deals with the power to make rules
- The Central Government after consultation with the Bar Council of India may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act
- Each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made.
Section 14- Deals with the application of Code of Criminal Procedure, 1973 to proceedings under the Act
Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds and appeals) shall apply to the proceedings before the Court.
Conclusion: This is a very important step taken by the Bar Commission of India to protect advocates so that they can continue to discharge their legal duties with utmost professionalism, ethics and without any fear of being hurt.