Lawyers are the most indispensable part of any Judicial System, they are officers of the Court and help in administration of justice in society.
The Lawyers in the State are on strike for more than 12 days and demanding stern action against the Police Officials, accused of atrocities on Lawyers in Hapur.
In the present scenario, there is no “Advocate Protection Act” for Lawyers in India, But the Rajasthan Government, after long protest/strike of lawyers, brought Advocate Protection Act in the state through special session of the assembly.
At various occasions, the Bar Council of India, as well as several Bar Associations, have requested the Central Government and respective State Governments to enact a law for the protection of Advocates.
Why Advocate Protection Act is Required?
A fearless and strong Bar is the bedrock of the administration of justice in society. Therefore, a legislative framework for the protection of Advocates is need of the hour, so that lawyers can carry out their duties without any fear.
Several states in India have passed legislation for protection of Doctors and Hospitals. For example in Uttar Pradesh, the “UP Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage to Property) Act 2013 has been enacted.
Under this law, an act of committing violence against a medicare service person or causing damage to property of medicare Institution is punishable with imprisonment upto 3 years or fine upto 50 thousand rupees.
The offences under the act are cognizable and non-bailable. In addition to the punishment, the court may also award damages for the loss caused to property.
Though the Medical Professionals are also not happy with the provisions of Act and are continuously demanding stricter provisions for protection of Medical Practitioners.
Considering the nature of public service given by the Lawyers and risk involve in it, no doubt a comprehensive law for protection of lawyers should be enacted.
Section 197 of the Code of Criminal Procedure protects the Judges and Public Servants from criminal prosecution for acts done in the course of discharge of professional duty. But on the contrary the Advocates who are also inseparable part of the Judicial System, have no protection under the law.
In most cases, the lawyers face assault due to cases they take up, but there are no explicit provisions to protect advocates. Lack of laws compels a lawyer to avoid taking up cases where they fear for their lives or where the accused are rapists, terrorists etc. as they receive flack from the public.
Due to lack of laws to protect Advocates, sometimes certain parties like terrorists, rapists etc. fail to get a lawyer. And if the situation is not correcte soon, then lawyers might think twice before taking up a case of certain parties accused of heinous crimes.
Advocates Protection Bill 2021
The Advocates Protection Bill 2021, released by the Bar Council of India on 2nd July 2021, aims to safeguard advocates and their families from various adversities they face while discharging their professional duties. The bill has been formulated by a seven-member committee, taking into consideration the challenges encountered by advocates in the performance of their duties.
The primary objective of the bill is to ensure the protection of advocates and remove any impediments that hinder their work. It also seeks to implement the Basic Principles on the Role of Lawyers, which was adopted during the 8th United Nations Congress on Prevention of Crime and Treatment of Offenders in 1990. This declaration emphasizes that governments should protect lawyers and enable them to carry out their duties.
One of the key reasons for the bill is the increasing incidents of assault, kidnapping, intimidation, and threats faced by advocates. It highlights the need for adequate safeguards by the authorities when the security of lawyers is compromised due to their professional obligations. The bill also aims to provide social security and the basic necessities of life to advocates.
The draft bill identifies 16 sections to address its objectives. It defines “advocate” as per the Advocates Act, 1961 and also outlines the various acts of violence that can be committed against advocates. These acts include threats, harassment, coercion, assault, malicious prosecution, and damage to property. Such offenses are deemed cognizable and non-bailable.
Punishments for these offenses range from six months to five years, with subsequent offenses attracting penalties of up to ten years. Fines can range from Rs.50,000 to Rs.10 lakhs. Additionally, the bill empowers courts to award compensation to advocates who have suffered wrongs.
The bill proposes that investigations of these offenses must be conducted by officers above the rank of Superintendent of Police and completed within 30 days of the FIR registration. It also recommends police protection for advocates, subject to proper court investigation.
A significant provision in the bill is the establishment of a redressal committee at each level, including the district, high court, and supreme court. These committees, headed by the judiciary at their respective levels, will address the grievances of advocates and bar associations. The president of the Bar Council will also attend these committee meetings as a special invitee.
The bill also seeks to protect advocates from suits and ensures the confidentiality of communications between advocates and their clients. It stipulates that no police officer should arrest or investigate an advocate without the specific order of the Chief Judicial Magistrate. If an FIR is filed against an advocate based on malicious reasons, the Chief Judicial Magistrate may grant bail after a preliminary inquiry.
Furthermore, the bill proposes the provision of social security for advocates. It mandates that both the state and central governments should provide financial assistance to needy advocates in unforeseen circumstances such as natural disasters or epidemics, with a minimum of Rs.15,000 per month.
In cases where a public servant is found in possession of or using privileged communication or material obtained from an advocate during an investigation, it will be presumed that coercion was involved, as stated in section 12 of the bill.
Overall, the Advocates Protection Bill 2021 aims to protect advocates and their families, provide social security, and ensure the effective and unhindered delivery of legal services. It addresses the various challenges faced by advocates and seeks to implement international principles emphasizing the crucial role of lawyers in society.
In the 35th Session (June 2017) of the Human Rights Council of United Nations, a resolution has been adopted for protection of judges, lawyers, prosecutors and other officials, dealing with human rights. (Click here to read Resolution)
Clause 1 of the Resolution provides:
Calls upon all States to guarantee the independence of judges and lawyers and the objectivity and impartiality of prosecutors, as well as their ability to perform their functions accordingly, including by taking effective legislative, law enforcement and other appropriate measures that will enable them to carry out their professional functions without interference, harassment, threats or intimidation of any kind;
Clause 7 provides
Emphasizes that lawyers should be enabled to discharge their functions freely, independently and without any fear of reprisal;
Clause 9 and 10 says:
9. Condemns all acts of violence, intimidation or reprisal, from any quarter and for any reason, against judges, prosecutors and lawyers, and reminds States of their duty to uphold the integrity of judges, prosecutors and lawyers and to protect them, as well as their families and professional associates, against all forms of violence, threat, retaliation, intimidation and harassment, whether from State authorities or non-State actors, resulting from the discharging of their functions, and to condemn such acts and bring the perpetrators to justice;
10. Expresses its deep concern about the significant number of attacks against lawyers and instances of arbitrary or unlawful interference with or restrictions to the free practice of their profession, and calls upon States to ensure that any attacks or interference of any sort against lawyers are promptly, thoroughly and impartially investigated and that perpetrators are held accountable;
So, from the above it is apparent that even Internationally Organizations recognize this problem, and therefore the Government of India has no hindrance in bringing such a law.
In 2015 Mónica Pinto was appointed as UN Special Rapporteur on the Independence of Judges and Lawyers. She wrote a report “Human Rights Lawyers at Risk” in which she has dealt with the issue of protection of lawyers for ensuring Rule of Law in society.
Report recommends to provide guarantees, immunities and protection to lawyers and Judges for ensuring a free and independent judicial system.
Therefore, that the Centre and State government should bring Advocate Protection Act to protect Advocates. While some state governments have given their approval for the new act but its implementation has not started yet.
Rajat Rajan Singh
Editor-in-Chief at Law Trend
Advocate, Allahabad High Court Lucknow