It has been written by Jagrit Singla, a law graduate from Baba Farid Law College, Faridkot.

Introduction:

Advocacy is a judicious profession to aid the needful, by protecting their Fundamental Rights from being violated and helping the aggrieved persons in any case to keep justice alive in the society. In such situations, an Advocate is the only person who can provide Justice to the victims and aggrieved persons, and thus, the Advocate plays a significant role by maintaining law and order through his/her acquaintance and understanding in the legal field; just like police and judiciary. The protection has been given to the police and judiciary but the advocates are not protected from the various threats, assaults, kidnapping, etc. which are daily threats received by them nowadays, which brings insecurity in the profession.

The Advocates Protection Bill, 2021 was issued by The Bar Council of India on July 2, 2021, which could be much needed by the fraternity. The main objectives of the bill are the protection of advocates and helping them to fulfil their tasks without any limitations, and to provide then the financial security along with the physical security.

Who is an Advocate?

In layman’s language, the Advocates are commonly referred to as “Vakil Sahab” with respect and dignity.

According to the Black Law’s dictionary, “Advocate is the one who gives legal advice and aid and pleads the cause of another before a court.” The Advocates Act of 1961 states that an Advocate is a person who is authorized to appear in litigation on behalf of a party and who possesses a law degree enrolled with the bar council.

Just like the profession of the advocates its dress code also has a meaning:

1. Black Coat: colour of authority, power, and submission to justice.

2. White Band and Shirt: shows light, transparency, innocence, cleanliness, and hope of justice.

Preamble: Objects and Reasons

For the safeguard of Advocates and their efficiency in discharge of proficient duties, it is enacted as follows: -

1. The numerous incidents like assault, killings, coercion, and threats to the advocates have reach to the alarming heights hindering the proper as well as efficient discharge of their duties which also result in obstruction in rendering their legal services as advocates to the clients.

2. To protect Advocates from various types of assaults, intimidation, coercion, and threats, it is necessary to bring a regulation for the protection of Advocates.

3. To provide Social Securities to the Advocates and to ensure the basic and Minimum necessities of their lives.

4. The Supreme Court of India in the case of:

“Ramon Services Pvt. Ltd.” V. “Subbash Kapoor”

observed “persons belonging to the Legal Profession are concededly the exclusive of the society. They have always been in the frontline of progress and development of not only law but the society. The profession by & large, till date has undoubtedly performed its duties and obligations and has never hesitated to shoulder its responsibilities in larger interest of the mankind.” This judgement has restated the earlier view of the Apex Court in the case of:

“Hari Shankar Rastogi” V. “Giridhar Sharma,”

observed that “an Advocate is an officer of the Court, and the Bar is an extension of the justice system. The advocates are the experts of the legal fields as well as are respectable persons in the society having professional ethics. The success of the rule of laws and judicial process depends on the services of the legal profession.”

5. The Advocate’s Act has been interpreted by the Supreme Court in the case of:

“O.N. Mohindroo” V. “The Bar Council of Delhi & Ors.,”

As the Act is a piece of legislation, dealing with entitlement of persons to practice before the Courts including Supreme Court and the High Courts, thus, it becomes essential to formulate a central enactment of such nature which ensures that Advocates are secure from any types of assault, threat, or harassment, etc. The legislation shall also ensure that the professional services are rendered by them without any fear or external influence and there is efficient administration of Justice and Rule of Law.

Need of the Bill:

Advocacy is an elite profession, and the lawyers must be supplied with welfare benefits and the vital needs of life, according to the law as they play a crucial role in perpetuation of the justice and rule of law. The legal counsels represent their clients for the protection of rights within the judicial system and acquaint them with the legal knowledge. However, their work often places them in the problematic and adversarial situations which make them vulnerable to the attacks and undue influence. Nowadays various reports and incidents have been occurred which shows that the assaults, threats, harassments, and ferocity against the advocates are on rise which create an environment of fear that undermines the justice system’s integrity.

All these activities against the Advocates violates the Article 19(1)(g) i.e. Right to practice any profession and Article 21 i.e. Right to life, of the Indian Constitution. Thus, for securing the justice system and make the litigation process impartial, fearless, and fair, before the Courts, tribunal, or any other Authority, the Advocates Protection Bill is very much needed.

#Case: “R. Muthukrishnan” vs. “The Registrar General of the High Court of Judicature at

Madras”

It was stated that the fearlessness, honesty, independence, equality, and uprightness of the lawyer in court are the qualities which cannot be sacrificed.

Recent Incidents:

As advocacy is a private profession, many advocates are facing day-to-day threats, harassment and violence which plant a feeling of fear or intimidation in them. Some recent incidents which make the need of the bill indispensable are discussed below: -

• In October 2022, the National Investigating Agency (NIA) raided the residence-cum-legal office of Advocate Shelly Sharma. It investigated privileged communication on the baseless grounds of an emerging nexus between her and gangsters and drug smugglers. These unjustified and illegal raids infringed the rights, dignity, and pride of the legal fraternity.

• On April 11, 2022, a 65-year-old advocate of the Andhra Pradesh High Court was murdered and the police suspected that there was a dispute related to real estate occurred regarding which the said advocate was appearing which may have led to his murder.

• In July 2021, a 41-year-old corporate lawyer was abused and assaulted by a cyclist in a road rage incident.

• A mob containing over 20 people attacked two lawyers with swords who were meeting their clients.

• Advocate Gattu Vamana Rao and his wife PV Nagamani were murdered by hired killers when he had filed complaints for the prevention of encroachment, against two local leaders in his village from the ruling party.

• Three men were arrested for kidnapping and killing a lawyer and discarding his body in the forest in October 2020.

Key Provisions of the Bill:

The bill deals with the act of violence 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. The provisions laid down in the Bill are: -

• Punishment:

Section 3 and Section 4 of the Advocate Protection Bill provides that whoever commits/abets the act of violence against an Advocate shall be punished with the imprisonment for a term which shall not be less than 6 months but which may extend to 5 years and with the fine up to one lakh rupees.

• Compensation:

The person shall also be liable to pay the compensation of the amount as determined by the Court for causing any type of violence against the Advocate, along with the punishment mentioned under Section 3 and 4 of the Advocates Protection Bill.

In case there is any damage to any property or loss caused, the compensation shall be payable by such person of the amount which shall be twice the fair market value of the damaged property or the loss caused or which may be determined by the Court.

• Protection against arrest and prosecution:

An Advocate shall not be arrested/investigated by any police officer in any case without the specific order of the Chief Judicial Magistrate. When information of any offence by an advocate is given to an Officer-in-charge of a police station, the police officer shall enter or cause to be entered the substance of information in a book which is to be kept by such officer and refer the information with other linked materials to the nearest Chief Judicial Magistrate, and the Chief Judicial Magistrate concerned shall issue notice to the Advocate and give the opportunity of hearing to him/her counsel or representative.

• Police Protection:

Any advocate who is under the threat of being a victim of an act of violence shall be entitled to Police Protection when an application is being made by him/her in this regard before the High Court of the State within which he/she is registered to practice and for a duration which the Court deems fit.

• Protection of action in due conduct of duties by Advocates:

Notwithstanding anything to the contrary in any other law for the time being in force, no suit, prosecution, or other legal proceeding shall lie against any Advocate for anything which is done by him in good faith or intended to be done in the due conduct of his duties, or in fulfilment 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 the Advocates.

• Malicious Prosecution of Advocates:

If any person institutes any proceedings against an advocate and such proceeding is found by the Court, to be vexatious, or is intended to be a malicious prosecution to derail the process of impartial, fair, and fearless conduct of litigation, such proceedings are liable to be dismissed with cost

• Social Security through Financial Assistance:

The Bill also proposes that during unanticipated events such as epidemics or other natural disasters, the Central Government as well as the State Government might grant financial assistance to Advocates in need.

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

Enforcement of Bill in India by States:

• Rajasthan is the first State in the country to pass a law which ensures the safety of the advocates and thus, creates history. On 22nd March 2023, the Rajasthan Legislative Assembly decided to pass the Advocates Protection Bill, in amended form for the prevention of lawyers from the harassment and violence which is to be called as The Rajasthan Advocates Protection Bill, 2023.

Rajasthan’s Law and Legal Affairs Minister, Shanti Kumar Dhariwal stated that, for the welfare of the advocates, every year Rs.5 crore is given by the State Government to the Bar Council.

Rajasthan is the first State in India where a legislation has been brought to prevent assault, grievous hurt, criminal force, and criminal intimidation against any advocate while discharging his professional duties in the State.

• The State Bar Council of Punjab and Haryana has formulated drafts of the Punjab Advocates (Protection) Bill, 2023 and the Haryana Advocates (Protection) Bill, 2023 to be handed over to the respective State Governments.

The Chairman Bar Council, Sh. Suvir Sidhu said the council demanded the enactment of the Bills at the earliest. “In the coming days, if adequate steps are not taken &, if need be, all advocates from Punjab, Haryana and Chandigarh will be compelled to gather at a mass congregation or maha panchayat and initiate a peaceful protest (without suspending any judicial work) by participating in a State-wide agitation in this regard,” he said.

“We sincerely hope that the State Governments of Punjab and Haryana will duly consider our genuine request for the enactment of the Bills at the earliest,” he added.

International Laws and Standards:

• In Russia, the “Federal Law on Lawyers’ Activities and Advokatura” and Article 296 of “The Criminal Code of the Russian Federation, 1996” safeguard the lawyers and persons who participates in the administration of justice.

• In Indonesia, Article 15 of Law No. 18 of 2003 and in Egypt, Article 54 of Law No. 17 of 1983, ensures protection of the legal profession.

• The Charter of Core Principles of the European Legal Profession 2006, provides the liberation of the lawyer, and the freedom of the lawyer to pursue the case of their clients.

• The Basic Principles on the Role of Lawyers, 1990 and The Vienna Declaration on Human Rights, 1993, establish the independence of legal profession as the significant feature of a democratic system.

• The UN Basic Principles on the Role of Lawyers also provides that for upholding the rule of Law, the freedom to the legal profession is a crucial foundation.

• The International Covenant on Civil and Political Rights provides, and harassing the legal professionals and violence against the lawyers may lead to infringement of the rights of the clients as well.
  

Discussion:

In my opinion, Advocate is a confident and noble profession, which we have also witness in our history that most of the renowned leaders are lawyers. Today, an Advocate faces not only financial problems but, life-threatening problems as well in his/her profession, which not only distress the life of an advocate but also have negative consequence on his/her family, society, and the legal system.

The Advocates Protection Bill, 2021 is an enormous step to shield the Advocates from violence, assault, or any type of criminal force. These are some of the major problems of the legal profession faced by the advocates in their day-to-day life and should be catered appropriately and to this, Advocates Protection Bill is a huge step. This Bill can be considered a pioneer in protecting the rights of an Advocate and thus, help in administration of the justice effectively without any fear or undue influence. The Advocate Protection Bill must be enacted as earliest as possible.

Conclusion:

Hence, the Advocates Protection Bill of 2021 can be tremendously advantageous for Advocates fraternity which will help them in providing protection from assault, criminal force, harassment, and threats, etc. aimed directly at Advocates when they are performing their professional responsibilities. These types of violence against the lawyers usually result in shortcomings in Advocate’s provision of effective services to clients as well as inculcating a deep sense of fear in Advocate’s mind, which later hinders the administration of justice and rule of law.

Advocates also have the challenges related to representing detainees and those who are imprisoned or incarcerated, which put pressure on the lawyers by threating them. In order to aid in the investigation of alleged wrongdoing, attorneys are questioned about privileged communication with their clients. All these issues that the Advocates are facing will be relieved if the Act for the protection of the advocates will be passed.

To conclude, the best option is that the Bill should be converted into an Act and made applicable throughout India in order to safeguard and save our Advocates from criminal charges and intimidation and thus, to enable them to carry out their duties without danger.

References:

1. PREAMBLE: STATEMENT OF OBJECTS AND REASONS OF ADVOCATES PROTECTION BILL,2021
2. (AIR 2001, SC, 207)
3. (1978) 2 SCC 165
4. 1968 SCR (2) 709
5. AIR 2019 SC 849
6. SECTION 11 OF THE ADVOCATES (PROTECTION) BILL, 2021

7. SECTION 7 OF THE ADVOCATES (PROTECTION) BILL, 2021

8. SECTION 9 OF THE ADVOCATES (PROTECTION) BILL, 2021

9. SECTION 10 OF THE ADVOCATES (PROTECTION) BILL, 2021

10. NAMAN SHARMA, ADVOCATES PROTECTION ACT- A MUCH NEEDED SAFEGUARD TO PROTECT THE BEACON OF RULE OF LAW, 2023, (https://www.livelaw.in/lawschool/articles/advocates-protection-act-rule-of-law-udhr-iccpr-unhrc-227638)