Critical Analysis of The Advocates Protection Bill, 2021

Introduction

On July 2, 2021, the Bar Council of India passed the Advocates Protection Bill, 2021. The law was written by a seven-member committee with the problems and challenges that advocates and their families experience in consideration. The bill’s main goals are supposed to be the safety of advocates and the elimination of barriers to their ability to carry out their duties. The bill mentions a number of situations that prevent tasks from being completed. This measure was also written in response to the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, which was held in Havana, Cuba from August 27th to September 7th, 1990. India attended the Congress and accepted the “Basic Principles on the Role of the Lawyer.” Advocates, like the police and the judiciary, play a critical role in ensuring that the people are treated fairly. Given this, the police and the judiciary have gotten safety and privileges, but Advocates have still not. There appear to be no laws safeguarding advocates, which is one of the causes for the rise in attacks, deaths, and wrongful detainment of advocates.

What is the Need?

The protection of advocates and the reduction of barriers to their execution of their duty are said to be the main goal of the law. The bill mentions a number of factors that prevent the completion of responsibilities. A significant rise in attacks, abductions, harassment, and regular threats against advocates is one of the main reasons. When a lawyer’s safety is threatened as a result of their profession, the government must step in to safeguard them. To safeguard workers, such a measure is necessary. As per the legislation, lawyers must also be provided with social benefits and the necessities of life.

• On the Pune-Bengaluru Highway, a cyclist was detained a few days ago for beating a 41-year-old corporate attorney[1].
• Using swords, a gang of about 20 people assaulted two lawyers who were meeting with their customers. [2]
• In October 2020, three men were caught for abduction and murdering a lawyer, then dumping his corpse in a Pune jungle. [3]

All of these efforts have induced terror in the hearts of lawyers, preventing them from performing their duties effectively, leading to a decrease in the delivery of justice.

As a result, this Bill was drafted in attempt to stop such events from occurring in the future and to help Advocates in performing their duties. It was also established to provide basic necessities to Advocates in times of adversity.

For the reasons highlighted previously, the Council has agreed to propose a bill to protect Advocates. It emphasised social security in addition to physical security and unlawful detention and imprisonment.

Significant Elements of the Bill

The bill’s introduction indicates that it is intended to protect advocates and their duties when conducting their obligations. The Bill’s goals and justifications are then outlined in nine bullet points.

Section 2  (acts of violence defined)

The meaning of “advocate” in Section 2 of the bill will be the same as in the Advocates Act of 1961. The word “advocate” describes a person who has been qualified as a lawyer in accordance with the Act’s provisions. In the same section of the bill, the word “acts of violence” is defined.

Threats, extortion, false prosecution, bullying, attack, criminal force, loss, hurt, injury, and other ‘acts’ are example of ‘acts’ that may have an impact on advocates’ living and working situations. Property loss or damage is also a factor. These should be non-bailable crimes that are admissible as evidence.

Section 3 and 4 (Penalties and remuneration)

What happens if the Advocate is the target of a “act of violence”? Is that person going to be held responsible? Will the advocate against whom the crime is fone to obtain any compensation?

The answer to all of these issues can be found in Sections 3 and 4 of the Bill. Section 3 deals with penalty, while Section 4 deals with compensation.

Anyone who commits or simply assists and helps an act of violence against a Lawyer will be imprisoned to at least six months and a maximum of 5 years in jail, as per Section 3(1) of the Bill. Based on the nature of the crime, the fine could vary from 50,000 to one lakh rupees.

Moreover, under Section 3(2) of the Bill, anybody who has already committed the act but does so a second or consecutive times faces a sentence of imprisonment varying from two to ten years, as well as a fine of more than ten lakh rupees and not less than that.

 If the loss is to any property, regardless of compounding in Section 6, the amount of reimbursement will be double the market value of that destroyed property, according to Section 4(3).

Furthermore, if compensation is not granted under Sections 4(1) or 4(2), the amount will be seized as property tax arrears under the Revenue Recovery Act of 1890, according to Section 4(4).

Sections 5(2) and 5(3) require an officer not below the rank of DSP to conduct an investigation.

As per Sections 5(2) and 5 (3) of the Bill, a case filed under Section 3 of the Bill can only be probed by a police officer with at least the rank of Deputy Superintendent of Police (DSP), and the investigation must be finished within 30 days of the submission of the First Information Report (FIR) under Section 154 of the Indian Penal Code, 1860.

Sections 5(4) and 5(5) (Jurisdiction)

Section 5(4) prohibits matters from being filed in courts with less than the standing of District and Sessions Judge.

Section 5(5) makes it simple that no postponement will be given unless it is really necessary, and that all witnesses will be cross-examined numerous times starting day 1.

If the case is not completed within the prescribed period, the time restriction might be increased for a maximum of six months, with the magistrate noting the reasons for non-completion.

Section 7 and Section 15 (Social Security)

Under Section 15, the Advocates (Protection) Bill, 2021 acknowledges and guarantees for the social security of Advocates. It stipulates that in the event of unforeseeable catastrophes such as epidemics or other natural disasters, the federal government, and state governments, may provide financial help to lawyers in need.

The Local District Judge or District Court, on the recommendation of the State Bar Council, may provide a minimum of Rs. 15,000 to Lawyers in Need until the epidemic or other natural catastrophe has passed.

The State Bar Council will bear the other half of the costs, with the Central Government covering half. Aside from that, the government may create some insurance policies. The central government has the power to grant money to such advocates.  It may issue a directive ordering Public Sector Undertakings and Scheduled Banks to provide loans at reasonable interest rates.

Police protection, the development of a grievance redressal board, the safety of lawyers against unlawful arrest and false imprisonment, and other provisions are included in the bill.

Lawyers who the court believes are or may be victim of any of the crimes enumerated in Section 2 of the Bill may be provided with police protection. The length of such protection will be determined by the judges. This is provided for under Section 7 of the Bill.

Section 12 (Assumption as to coercion if public servant gaining confidential information from lawyer)

Section 12 specifies that any confidential material or communication obtained by a public servant with detain or investigation authority under the CrPC that can be confirmed by an advocate in custody or is found to be useful or advantageous in the investigation is presumed to have been obtained by coercion from that public servant.

Redressal Committee

The formation of a redressal committee is the bill’s second key component. A three-member panel for Redress of Grievances of Advocates and Bar Associations has been constituted at each stage, i.e. District, High Court, and Supreme Court. This panel will be led by the chief judge of that court, such as a District Judge for the District Court, a Chief Justice or his nominee for the High Court, and a CJI or his candidate for the Supreme Court.

The other two members will be selected by their respective Bar Councils based on nominations. The head of the Bar Council shall be a Special Invitee to the redressal committee sessions.

Protection From Lawsuits and Illegal Detention

An attorney who has carried out his or her job with integrity will not be prosecuted. Lawyers and their clients’ interactions must be respected, and privacy should be kept.

In a similar case, the Bombay high court ordered an investigation into a 37-year-old Mumbai lawyer’s suspected illegal incarceration. The high court lately appointed a principal district as well as sessions judge in Thane to investigate whether the Kharghar police station in Navi Mumbai “illegally detained” a lawyer, Vimal Jha, from April 3 to 5 and “illegally handcuffed” him while presenting him before a judge on April 5 to claim his remand.

The new Bill specifies that advocates be given with social security and the essential requirements of life, which is another first in post-independence India because, despite being referred to as an intellectual profession, a large proportion of older advocates remain in poverty.

Conclusion

In this regard, the Advocates (Protection) Bill of 2021 could be immensely helpful. The committee of experts produced this Bill with great care after thoroughly analysing and examining all pertinent aspects. All of the significant issues that the Advocates community is facing have been examined and argued.

The Bill details recent incidents of assault, criminal force, harassment, and threats directed at Advocates while they are performing their professional duties, which frequently result in Advocates’ failure to provide efficient services to clients and inculcate an intense feeling of fear in Advocates’ head. One of the other grounds for introducing this Bill is the danger of malicious and malicious prosecution by opposition parties, which is also intended to obstruct the execution of its duties, so meddling with the judicial process.

The Bar Council of India’s recommendations will be properly considered by the Council, which will then consider implementing any necessary changes. The ultimate drafted Bill will be presented to Parliament by the Hon’ble Minister for Law and Justice.

Prisoners, or people who are detained or jailed, are also a problem for advocates. Lawyers are interrogated about protected conversations with their clients in order to help in the investigation of potential crime. If the bill is passed, all of the above challenges that the advocates are encountering will be resolved.

To sum up, this Bill should be converted into an Act and made effective across India in effort to protect and save our Lawyers from criminal charges while also allowing them to carry out their duties without being in danger.

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References:

[1] Cyclist booked for attacking lawyer in road rage incident on Pune-Bengaluru highway | Pune News – Times of India, The Times of India (2021),

[2] Mumbai: Lawyers attacked with swords on busy Dahisar road in daylight | Mumbai News – Times of India, The Times of India (2021), https://timesofindia.indiatimes.com/city/mumbai/mumbai-lawyers-attacked-with-swords-on-busy-dahisar-road-in-daylight/articleshow/84555618.cms (last visited Sep 4, 2021).

[3] Pune: 3 held for kidnapping, killing lawyer | Pune News – Times of India, The Times of India (2021), https://timesofindia.indiatimes.com/city/pune/pune-3-held-for-kidnapping-killing-lawyer/articleshow/78755495.cms (last visited Sep 4, 2021).

Other Sources:

• New Advocates Protection Bill (2021), Times of India Blog (2021), https://timesofindia.indiatimes.com/readersblog/legal-writing/new-advocates-protection-bill-2021-34871/ (last visited Sep 4, 2021).
• Hrishika Rawat, “Advocate Protection Bill 2021: An Overview” | The Law Communicants The Law Communicants (2021), https://thelawcommunicants.com/article-on-advocate-protection-bill-2021/ (last visited Sep 4, 2021).
• Rachit Garg, An analysis of the Advocates Protection Bill, 2021 – iPleaders iPleaders (2021), https://blog.ipleaders.in/analysis-advocates-protection-bill-2021/#Introduction (last visited Sep 4, 2021).
• Nupur Thapliyal, Advocates Protection Bill : BCI Calls For Suggestions From Bar Councils, HC Bar Association Livelaw.in (2021), https://livelaw.in/news-updates/advocates-protection-bill-bci-calls-for-suggestions-from-bar-councils-hc-bar-association-176737 (last visited Sep 4, 2021).