Advocates Protection Bill 2021: Need and Requirement in the Society

This article titled ‘Advocates Protection Bill 2021: Need and Requirement in the Society’ is written by Milan Pithadiya and discusses the bill related to the protection of advocates.

I. Introduction

“If the advocates and judges will be safe then our judicial system would work properly”

It is high time for us to make a law on the protection of advocates and they play a quintessential role in the judicial system of our country and for that Bar Council of India presented a draft termed as Advocates Protection Bill on 2 July 2021.

The main objective of this bill is to make the safety and protection of advocates and their families from assault, kidnapping and illegal detention and many more offences. The Advocates Bill 2021 contains safety measures for advocates, financial assistance to the poor advocates. Furthermore, it provides compensation to the advocates if someone tries to violate their rights.

A police officer cannot arrest an advocate unless there is an order against an advocate for the arrest, procedure needs to be followed according to this bill. The safety of Advocates was always questionable because judges have protection and police personnel have protection, there were no specific laws regarding the safety and protection of advocates from threat, coercion or illegal detention. This bill gives confidence to advocates while performing their duties.

II. Historical background of the Indian Judicial System

The History of the legal fraternity can be found by the British Court established in Bombay in 1672 by Governor Aungier. During the British period and formation of mayor’s courts in three presidency towns of Bombay, Calcutta and Madras in the Charter of 1726. The establishment of Crown Courts and Governor in Council was the first jurisdiction for appeal and after that privy council comes for the right to appeal. But there were some loopholes in the formation of the mayor’s courts that it was the duty of the attorney to protect the right of their clients unfortunately it was upheld in each of the presidency towns.

After the failure of functioning of mayor’s courts, the supreme court was established under the Regulating Act of 1774 which is also known as the “Royal Charter” and it was first established in Calcutta, because of the burden of cases it was later established in madras in 1801 and later on Bombay in 1823. The formation of the Supreme Court brought confidence, wealth and recognition to the Indian judicial system. After the successful functioning of the supreme court, Chamier Committee was found to remove the distinction between barristers and vakils and this step was taken by Munshi Prasad Ishwar in February 1921 by passing a resolution in the legislative assembly.

This is also known as Indian Bar Committee and this committee was recognised by the Government of India in 1923 under the chairmanship of Sir Edward Chamier who was a retired Chief Justice of Patna High Court. The Chamier Committee was consisting of Four barristers, one attorney, one civilian and three representatives of the vakil bar. Later on, the Indian Bar Councils Act was found in 1926 to establish bar councils for the British courts in India and it was applicable to the whole of British India. Formation of the All India Bar Committee in 1951 because the legal system was not satisfied with the Indian Bar Councils Act and it was merely an advisory body.

In 1961, The Parliament passed the Advocates Act 1961 in order to establish the All India Bar Council and the State Bar Councils in each state respectively. The Purpose and objective behind the establishment of Bar Councils are to protect and safeguard the rights of an advocate and to promote legal aid for those who can’t afford and to develop practice, legal ethics, regulation, discipline and improvement in our legal system.

III. Advocates Protection Bill 2021

Advocates protection bill was passed on 2 July 2021 which was drafted by a seven-member team considering the difficulties from their side. The primary objective of this bill is to protect the advocates from physical and mental harm, and we have also witnessed in this country that Police and judges have been given protection but advocates have not, Advocates also play a vital role in bringing justice to society and it is now a need to make a law and to stop these crimes against advocates.

Nowadays, Crimes against advocates have been increasing, as we can see several cases which says that the life of an advocate is not easy as it seems:

1. The Brutal Murder of Advocate Gattu Vamana Rao and his wife PV Nagamani killed which shocked the law community and The Chairman of Telangana Bar Council urged the Central Govt to make a law on the protection of advocates. [1]
2. In the Case-law of Hari Shankar Rastogi v. Girdhar Sharma (1978)
   [2], it says that Advocate is an Officer of the Court and is considered as a master of an expert and they play an important role in the functioning of the judicial system
3. P Sharma v. High Court of Punjab and Haryana [3](2011) The Hon’ble Supreme Court of India says that Advocates are Officers of the court and they are necessary for the functioning of the judicial system.
4. Recently Rohini Court Incident took
   place where 2 criminals entered the court in an outfit of an advocate and they killed Gangster Gogi and police killed them during an encounter which results in the death of a total of 4 people. With this incident lives of advocates, interns, judges and citizens are not safe.

1. Need of The Advocates Bill 2021

This bill encourages and protects the interests of advocates, Advocates are playing an important role in the functioning of the judicial system, Incidents of killing, assault and illegal detention of advocates result in injustice to their clients. There is a need to provide security to them and to ensure their requirements in these professional services.

This bill aligns with the resolution of the United Nations Congress on the Prevention of Crime and the Treatment of Offenders in the year 1990 which says and gives the basic roles and principles of the advocates. We have also seen cases where advocates have been threatened by rival parties while a case pending. Legal Profession is a Profession of Administration of Justice and without the security of advocates this system would be failed and this bill is going to address the needs and requirements of an advocate.

2. Main Provisions of Advocates Bill 2021

The Main Objective of this bill is to prevent and provide security to advocates from physical and mental harm for the functioning of the administration of justice. The Advocates Protection Bill 2021 consists of a total of 16 sections as following:

1. Section 2 of this following act talks about the definition of an Advocate which is according to section 2(1)(a)
   of the Advocates Act 1961 which means Advocate who has been registered according to the provisions of this section. Acts of Violence stated in the section of this act which means any act which disturbs, affects which is not biased and is of unfair means and any other means results in the working and living condition of an advocate may fall under this category.
2. Section 3 of this act talks about the punishment of up to six months and a maximum of five years if anyone who commits, aid or abets any crime against an advocate may fall under this particular section.
3. Compensation Section covers under Section 4 of this act which is of fifty thousand rupees and it will extend up to one lakh rupees and may further increase up to ten lakh rupees for the same offence.
4. Investigation under section 3 of this act shall be commenced not below the rank of Deputy Superintendent of Police, This Particular section also defines the provision of speedy trial and remedy under this section and specific investigation shall be completed within the thirty days from the registration of the complaint as specified under section
   5(2) and section 5(3) of this particular act.
5. Jurisdiction to file a complaint must be brought in those who are lower than the district and sessions judge. Cross-examination would be there until the final judgement of the matter and there shall be no adjournment until and unless it is required according to section 5(5) of this act.
6. Section 6 talks about compounding of offences if any person is having committed an offence under section 3 that offence if the court is satisfied will be compounded by that person.
7. Protection of Advocates from threats and violence is covered under section 7 of this act by police protection for the duration of which the court deems fit before filing an application before the Hon’ble High Court with proper jurisdiction.
8. Section 8 of this act says that an advocate is an officer of the institution before the court, tribunal or authority including the police department.
9. 3 Member
   Committee for Redressal of Grievances of Advocates which provides that central and state government if necessary, shall constitute a committee in every district court and in both High courts and Supreme Court according to section 9 of this act. The respected committee is Consisted of a Chairperson and that shall be a District Judge and the Chief Justice of High Court and The Chief Justice of India and 2 persons shall be nominated by the respective State Bar Councils of the Country and then final consultation must be taken from the Bar Council of India. This Committee has the authority to issue notices and directions to the proper authorities for the grievances.
10. Section 10 talks about the protection of advocate which says no proceedings shall be commenced against an advocate if he/she has done something in a good faith or in the conduct of their duties, This Particular Section also states that advocates can form or join professional groups and associations to raise their interests, education, legal aid services, professionalism, without any undue influence.
11. Protection of Advocates from Illegal detention and Malicious Prosecution is granted under section 11 of the Advocates Protection Bill 2021 which talks about that no police officer shall arrest or investigate any matter against an advocate unless the specific order was given by Chief Judicial Magistrate or Metropolitan Magistrate, If any information has been received regarding the commission of an offence by an advocate then Officer-In-charge of the police station shall enter the premises where the offence has been committed and the police officer shall further refer the information to the nearest magistrate of the jurisdiction or any other magistrate who is empowered to take cognizance of the particular matter.
12. Section 12 talks about when a public servant having authority and investigation powers vested according to the chapter XII of the Criminal Procedure Code 1973 or any other power in any other law is found in possession or maybe Investigation and communication which has been received by an advocate, it shall be presumed that information is obtained by public servant falls under the category of coercion.
13. Central Govt. has the power to make rules after the consultation of Bar Council of India, by notification in the Official Gazette according to section 13 of the Advocates Bill 2021.
14. Section 14 talks about the applicability of Provisions of Criminal Procedure Code such as Bail, Bonds and appeals which shall be applied before the proceedings of the court.
15. Central Government and the State Government may make rules and provisions regarding the
    financial assistance to all needy Advocates in situations like pandemics, e.g.- Coronavirus, the Global Pandemic and any other natural calamities. It says a minimum of 15,000 rupees to every needy advocate shall be given through the Local Magistrate or District Magistrate after the recommendation of the respected State Bar Councils. Section 15 talks about Loan facilities to the needy advocates if the Central Government may issue proper circulars and directions to the Public Sector Undertakings and Scheduled Banks at a reasonable rate of interest.

IV. Conclusion

Advocates play an important role in the functioning of judicial administration and so for their protection and their rights also need to be analysed, Advocates Bill 2021 comes a positive approach towards the advocates for their safety and better functioning of the system and this bill will give financial encouragement to the needy advocates as well and it will develop a fearless approach of the advocates in the country.

Furthermore, this bill develops a relationship of trust between advocates and their clients and we know every right comes with a responsibility and advocates should also follow and remember their social service towards the country because they are also an important pillar in our judicial system.

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References

[1] Rahul V Pisharody, After the lawyer couple’s murder, advocates protest across Telangana courts and demand protection, Available Here.

[2] 1978 SCR (3) 493

[3] 2011 AIR SC 2101

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