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Advocates (Protection) Bill, 2021

On 2nd July 2021, the Bar Council of India released the Draft of the Advocates Protection Bill 2021. A seven-member committee had been constituted to frame the bill keeping in mind the problem and adversities faced by advocates and their families.

The committee consisted of the following members:
  1. Mr. S. Prabakaran, Sr. Advocate, Vice-Chairman, Bar Council of India
  2. Mr. Debi Prasad Dhal, Sr. Advocate, Executive Chairman, Bar Council of India Trust;
  3. Mr. Suresh Chandra Shrimali, Co-Chairman, Bar Council of India;
  4. Mr. Shailendra Dubey, Member, Bar Council of India;
  5. Mr. A. Rami Reddy, Executive Vice-Chairman, Bar Council of India Trust;
  6. Mr. Shreenath Tripathi, Member, Bar Council of India; and
  7. Mr. Prashant Kumar Singh, Member, Bar Council of India.
Object of the Bill:
  1. The preamble states that the Bill is for the protection of advocates and their functions in the discharge of professional duties. It then states an extensive 9 points of the objectives and reasons for the Bill.
  2. The main reasons for the bill are stated to be the protection of advocates and to remove obstructions in the discharge of their duties. There are various reasons mentioned in the bill that obstruct the performance of duties.
  3. The Bill came up also to implement the 8th United Nations Congress on Prevention of Crime and Treatment of Offenders (1990) to which India was a party. It was in this congress that the Basic Principles on Role of Lawyers' was also adopted. In this declaration, some clauses guarantee the functioning of lawyers. It sought to make sure that Governments protect lawyers and they can perform their duties.
  4. The recent high rise in incidents of assault, kidnappings, intimidations, and regular threats caused to advocates is a major reason. Where the security of lawyers is threatened as a result of their duty, they shall be adequately safeguarded by the authorities. To protect advocates, such an act is necessary. It also states to ensure social security and the minimum necessity for life for advocates.

Acts of Violence Defined:
In total, the draft bill locates 16 sections in respect of its objectives:
  1. Under Sec.2 of the bill, the definition of advocate' is to be the same as in that of the Advocates Act, 1961. There, ��advocate�� means an advocate entered in any roll under the provisions of that Act.
  2. The same section also defines acts of violence. These include all such acts committed against the advocates with an intent to prejudice or derail the process of impartial, fair, and fearless litigation. These acts' could be of threat, harassment, coercion, assault, malicious prosecution, criminal force, harm, hurt, injury, etc. that potentially impact the living and working conditions of advocates. This also includes loss or damage of property. These offences are to be cognizable and non-bailable.

Punishment and Compensation:
Sections 3 and 4 talk about punishment and compensation. Punishments can start from 6 months and extend up to 5 years; and for a subsequent offence, up to 10 years. Fines start at Rs.50,000 and go up to Rs.1 lakh, and for subsequent offences fines can go up to Rs.10 lakhs. The Bill also empowers the court to award compensation to advocates for the wrongs committed against them.

An investigation by Officer above the rank of DSP:
The bill proposes that the investigation in these offences shall not be done by any person below the rank of Superintendent of Police and must be completed within 30 days of the registration of the FIR. The bill also proposes the right of police protection to advocates, upon proper investigation by the court.

Redressal Committee:
  1. The important provision in the bill is that of constituting a redressal committee. A three-member committee for Redressal of Grievances of Advocates and Bar Associations have been provided at each level i.e District, High Court, and Supreme Court. The head of this committee is to be the head of Judiciary of that level such as District Judge for District Level, Chief Justice or his nominee for High Court level and CJI or his nominee for Supreme Court level.
  2. The appointment of the remaining two members is to be done by nomination by the respective Bar Councils. The president of the Bar Council shall be the Special Invitee at the meetings of the redressal committee.

Protection Against Arrest and Prosecution:
  1. Section 11 provides that No Police Officer shall arrest an Advocate and/or investigate a case against an Advocate without the specific order of the Chief Judicial Magistrate. When information is given to an Officer-in-Charge of a Police Station of a commission of any offence by an Advocate, the Police officer shall enter or cause to be entered the substance of information with a book to be kept by such officer and refer the information with other connected materials to the nearest Chief Judicial Magistrate, who shall hold a preliminary inquiry into the case, and the Chief The judicial Magistrate concerned shall issue notice to the advocate and give the opportunity of hearing to him or his counsel or representative.
  2. After hearing if the CMJ finds that FIR has been filed against the Advocate for some malicious reasons emanating from the discharge of official duties of the Advocate then CMJ shall grant bail to the Advocate.

Social Security:
Another huge provision made in the act is that of Social Security. The act proposes that the State and Central government have to make provisions to provide financial assistance to all needy Advocates of the country in unforeseen situations such as natural disasters or epidemics. A minimum of Rs.15,000 every month shall be provided. Compounding of offences Where a person is prosecuted for committing an offence punishable under Section 3, such offence may, with the permission of the Court, be compounded by the person against whom such act of violence is committed.
  • Police Protection:
    1. Any Advocate who is under the threat of being a victim of the act of violence shall be entitled to Police Protection for a duration which the Court deems fit, upon making an application before the High Court of the State within which he is registered to practice law.
    2. Every High Court shall, before passing orders under Sec. 7(1), scrutinize the personal antecedents of such advocate, including his criminal record and any other necessary material which it requires, to satisfy itself of the character and conduct of such advocate, and the bona-fides of the application filed under Sec. 7(1).
    3. Wherever the Police security is provided to the Advocate, the Superintendent of Police shall, before deciding to withdraw, reduce or discontinue such security, refer the matter to the Registrar of the District Court or in the case of an Advocate ordinarily prosecuting in the High Court, the Registrar General of the High Court for their concurrence.
    4. No decision shall be taken by the Superintendent of Police to withdraw, reduce or discontinue the security provided to the Advocate, unless a notice of one week is first served on the advocate in this regard.

Advocate deemed to be an officer of the Institution
An advocate pleading for a party before the Court, Tribunal or Authority, including the Police, shall be deemed to be an officer of such Institution, and be extended same treatment available to other officers of such institution.

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 another legal proceeding shall lie against any Advocate for anything which is in good faith done or intended to be done in the due conduct of duties of such Advocate in pursuance of the provisions of this Act and any rule, 6 order, notification thereunder or under any direction of a Court or any other authority which is empowered to give directions to Advocates.

Malicious Prosecution of Advocates:
  1. Where any suit, prosecution, or another legal proceeding instituted against an Advocate by any person is found by the Court hearing such proceeding to be vexatious in nature, or motivated by a malicious intention to derail the process of impartial, fair, and fearless conduct of any litigation before any court, tribunal or authority in which such Advocate is engaged, or, is an act of retribution towards the outcome of proceedings before any of the above forums, the said proceedings shall be liable to be dismissed, with costs.
  2. Any person found to have initiated a vexatious or malicious proceeding against an Advocate shall be liable to pay, by way of compensation, such amount as may be determined by the Court, which amount shall not be less than Rs.100,000/-.

Presumption as to coercion in case of a public servant obtaining privileged communication from the legal practitioner:
Whenever any public servant having powers of investigation under Chapter XII of the Code of Criminal Procedure, 1973 (2 of 1974) or such other powers of detention, arrest, and investigation under any other law or purporting to so act under any law is found in possession of or found to use in his investigation privileged communication or material which can be shown to be obtained from a barrister, attorney, pleader, vakil, or any other legal practitioner duly practicing the profession of law it shall be presumed that such privileged communication or material was obtained by such public servant by coercion.

Act not in derogation of any other law:
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

Power to make rules:
  1. The Central The government after consultation with the Bar Council of India may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
  2. Every rule made under this Act shall be laid, as soon as maybe after it is made, before each House of Parliament, while it is in a session for a total period of thirty days which may be comprised of one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter affect only in such modified form or be of no effect, 7 as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything is previously done under that rule.

Application of Code of Criminal Procedure, 1973 to proceedings under the Act:
Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds and appeals) shall apply to the proceedings before the Court.

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