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An Open Letter to the Bar Council of India - Advocates Protection against Malicious Prosecution Rules, 2008

Written by: Renuka Aloria - student 4th year, GNLU
Arbitration Law
Legal Service
  • To
    The Chairman & Members of the Bar Council,
    The Bar Council of India,
    New Delhi.

    Dear Sir/s,
    Sub: Protection of Advocate from Arrest, Detention and remand of Police custody for the offence purported to have been committed during the course of dis-charging professional duty:
    An Advocate, at all times, has the status of an officer of the Court, a privileged member of the community and a gentleman. Standards of Professional Conduct and Etiquette are prescribed in Chapter II of the Bar Council of India Rules, 1975 made under section 49(1) (C) of the Advocates Act, 1961 to be strictly followed both in letter and in spirit.

    Apart from the above mentioned rules, there are statutory privileges for the clients regarding professional and confidential communications with legal advisers under secs. 126 to 129 of the Evidence Act, 1872.

    There is statutory protection for the Judges and Public Servants under sec.197 of the Code of Criminal Procedure,1973 against criminal prosecution. Unfortunately, there is no provision in the Law of Land for an Advocate against the offence purported to have been committed during the course of discharging professional duty even performed with utmost care, diligence and reasonable prudence for securing justice for the client while safeguarding professional dignity, honour and self respect.

    Now a days, the profession of Advocate is not without hazards due to advancement of science and technology in general and increases in the white collar crimes in particular in our society and the Advocates are meant to deal with them, so closely, in everyday life while discharging their professional duty sometimes unwittingly prone to professional hazards. Therefore, it is incumbent upon Advocates to raise the voice to safeguard their dignity, honour and self-respect against the criminal prosecution for an unintentional offence purported to have been committed during the course of discharging professional duty even after taking due care, diligence and applying reasonable prudence...commensurate to the Bar Council of India Rules, 1975.

    Therefore, I humbly propose to take action for passing the unanimous resolution to compel the Parliament to pass the following draft rules for the legal remedy of Advocates in the form of statutory protection through the auspices of the Bar Council of the States and the Bar Council of India in the following way...

    Proposed Draft of Rules:

    In exercise of the powers conferred by sec. 49-A of the Advocates Act, 1961, the Central Government, hereby, makes the following rules, namely:-
    1. Short title and commencement: These rules may be called the Advocates (Protection against Malicious Prosecution ) Rules, 2008.

    2. It shall be deemed to have come into force on Republic Day, the 26th day January, 2008 OR It shall come into force at once.

    3.Prosecution of Advocate: When any person who is an Advocate is accused of any offence alleged to have been committed by him while acting or purporting to act in the course of discharging his professional duty, no court , shall take cognizance of such offence except with the previous sanction of the State Bar Council. -where such person is duly enrolled as an Advocate and only after prima-facie case is duly adjudged by the Disciplinary Committee of the State Bar Council.

    Kindly pass the resolution to this effect and endeavour to take the matter with the Central Government so as to further this matter with the Parliament and make this draft see the light of the day in the form of enacted rules in the larger interest of noble and privileged community of Advocates.

    Thanking you.
    Dated:18-03-2008 A. Patrawala Advocate: Surat
    Copy to: The Hon’ble Minister of Law: Govt. Of India: New Delhi.

    The Author: Abdulraheman Patrawala, Practicing Advocate since 1981 can be reached at: [email protected]

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