The Significance and Necessity of the Advocates (Protection) Bill of 2021
Introduction Advocates Protection Bill of 2021
Advocates play a crucial role in the pursuit of justice in this nation, but they frequently encounter insurmountable obstacles. In this regard, on 2 July 2021, the Bar Council of India published the Advocates (ProtectionBill, 2021 (hereinafter referred to as the “Bill”), which could provide the legal community with much-needed protection. The bill is intended to protect advocates not only physically, but also financially.
Constitutional provisions with respect to the Advocates Protection Bill of 2021
Article 19 of the Indian Constitution grants every individual, regardless of their position in society, the right to freedom. The framers of the Constitution regarded Article 19 as one of the fundamental liberties of the American people. Attorneys enjoy the same freedoms of expression, speech, association, and assembly as all other citizens. It means that they have the right to participate in matters of public opinion and the law, the administration of justice, and the preservation of human rights, to engage in meetings or associations with any local, national, or international organizations, and to do so without professional restrictions. While exercising these rights, attorneys must adhere to the law and uphold the recognized standards and ethics of the legal profession.
The Advocate Act, 1961 (from now on referred to as the Act) was enacted by the Indian Parliament to provide a legal framework for legal practitioners as well as guidelines for the establishment of the Bar Council and an All India Bar Association. This Act consolidates all of the legal system’s statutes into a single document. In the 1968 case O.N.Mohindroo v. The Bar Council of Delhi and others, the Supreme Court ruled that the Advocate Act is an integral component of the legislation governing those who may practice before the Supreme Court, the High Court, or any other court. To accomplish the ultimate goal of the administration of justice and the rule of law, this Act establishes a central statute to ensure that attorneys provide their professional services without threat, intimidation, harassment, or external influence.
In the 1978 case Hari Shankar Rastogi v. Giridhar Sharma, the court stated that the Bar is an extension of the system of justice and that an advocate is a court officer. The Advocate is regarded as the expert’s supervisor and is accountable to the court and governed by the higher courts while providing ethical and standardized professional service. Frequently, the successful administration of justice depends on the techniques of the legal profession. Therefore, attorneys played a crucial role in the legal system.
In a comparable instance, Ramon Services Pvt. The Supreme Court stated in Ltd. v. Subhash Kapoor (2001) that the legal profession is regarded as a social elite. They have progress and development pillars not just in the realm of law, but throughout the entire political system. Lawyers are respected by society because they have never hesitated to fulfill their duties and obligations in the greatest interest of humanity.
In O.P Sharma v. High Court of Punjab and Haryana (2011), the Supreme Court ruled that advocates are court officers and, as such, an integral part of the justice system; with their assistance, the justice system will work with vigor to uphold justice and protect the rights of citizens. However, in the recent case of Secretary v. Ishwar Shandilya and others (2020), the Supreme Court ruled that the advocates’ boycott or strike of the courts was illegal and did not fall within the scope of Article 19(1)’s guarantee of freedom of speech and expression. (a). Articles 14 and 21 of the Indian Constitution recognize the right to prompt justice as a fundamental right. The bench also stated that attorneys must act in the public’s interest to achieve the ultimate objective of swift justice. The attorneys could have assisted the courts in handling criminal prosecutions while they were on strike.
Other regulations and statutes with respect to Advocates Protection Bill of 2021
Article 39A of the Indian Constitution stipulates that each state must ensure the effective implementation of the legal system by promoting justice based on equal opportunity and by providing free legal aid. By taking up such cases, it has been observed that attorneys have also contributed to access to social justice in every aspect of society. While providing free legal aid, the statutory procedure appointed criminal defense attorneys for judicial redress. The Legal Services Authorities Act, of 1987 was enacted by the Indian parliament to promote free access to legal assistance for the poor if they fell within the categories outlined in the Act’s provisions.
In addition, the United Nations Human Rights Council Resolution on the Independence of Judges and Lawyers stipulates the confidentiality of attorney-client communications. The declaration states that states must guarantee the independence of attorneys to promote and protect human rights and justice. Moreover, it should assist human rights defenders and journalists by actively participating and taking other appropriate measures while they carry out their professional responsibilities without interference, threat, intimidation, or harassment of any kind.
Why is it important to introduce the Bill?
The followings are the reasons and objectives for the necessity of introducing the Bill:
The recent increase in assaults, murders, threats, and terror experienced by advocates while carrying out their professional duties is alarming and has led to inconsistencies in the quality of services provided to their clients.
The following recent incidents of assault, criminal force, and threats against advocates have caused apprehension among advocates, which in turn delays the administration of justice.
Therefore, legislation must investigate the issue and provide an effective solution.
It is necessary to provide advocates with social security and ensure that their needs and requirements are met, given that they also provide professional services.
The recent Bill is consistent with the 1990 United Nations Congress resolution on the Prevention of Crime and the Treatment of Offenders, which outlines the fundamental principles governing the role of attorneys.
The Declaration stipulates that the government must ensure that attorneys can perform their duties without impediment or intimidation. While performing their professional duties and standards while traveling domestically or internationally, attorneys are not subject to any prospect of prosecution or other administrative action. The Declaration also stipulates that the government must take action against authorities who illegally jeopardize the safety of attorneys.
It has been observed that attorneys frequently encounter intimidation from opposing parties during the administration of justice.
A fundamental principle of the legal profession is the protection of privileged communications between the attorney and client. Advocates who represent detainees or detained persons are frequently questioned about the confidentiality of their communications to uncover the alleged crime; however, this violates the fundamental principle of the legal profession. Therefore, the legislature must act immediately and protect the Advocates’ interests.
The Bill addresses the following concerns and issues raised by proponents and provides the effective means to achieve the aforementioned goals.
Provisions central to the Advocates (Protection) Bill of 2021
The primary objective of the bill is to protect advocates and their functions while they are performing their duties. The total number of sections in the bill is sixteen. The following are the most important provisions of the bill:
In Section 2 of the Bill, the term “Advocate” is defined by Section 2(1)(a) of the Advocates Act of 1961, which states that the term refers to any advocate entered on a register under the provisions of said Act.
The Advocates Protection Bill of 2021 Section 3 addresses the “punishment for offenses,” which ranges from six months to five years for the first offense and up to ten years for the second.
Section 4 of the Bill addresses “compensation,” which ranges from Rs. 50,000 to Rs. 1,00,000 for the first offense and up to Rs. 10,000,000 for subsequent offenses.
investigation of any case under Section 3 must be concluded within thirty days of the registration of the initial information report, as stipulated by the bill.
Under Section 7 of the Bill, if an advocate is at risk of becoming a victim of any act of violence while providing professional services, the advocate should be provided with police protection for the duration specified by the court.
While arguing before the court, the advocate should be regarded similarly to other officers of the institution.
The bill establishes a three-member committee for redressing the grievances of attorneys and Bar associations at all levels of the judicial system. The bill provides the committee with the authority to issue appropriate directions and suggestions to the concerned police officers or the appropriate government authority for the redressal of attorney or bar association grievances.
The government must ensure and recognize the confidentiality of all communications and consultations between attorneys and clients during the provision of legal services. In addition, attorneys are free to associate and convey their opinions within any association. In addition, attorneys are free to promote their education and training and to protest their rights, duties, and privileges without interference from the outside. However, these rights should be exercised by the conduct of their attorneys.
Section 11 of the Advocates Protection Bill of 2021 plays a crucial role in the entirety of the Bill, as it provides for the “protection of advocates from illegal arrest and malicious prosecution,” which states that no police officer may arrest an advocate or investigate a case against an advocate without the Chief Judicial Magistrate’s specific order.
The bill also provides financial assistance to all indigent advocates in the country in the event of unforeseen circumstances, such as an epidemic or other natural disasters. The federal or state government should provide at least $15,000 to deserving advocates until the conclusion of the current crisis. The bill also provides Advocates with insurance, medical claims, and a loan facility.
Suggestions for the Advocates Protection Bill of 2021
It is essential to note that the Bill addresses all unwarranted issues and concerns that impede the administration of justice, thereby hindering the ability of advocates to perform their duties. However, the Bill does not address the issue of receiving payment from clients while providing professional services. The nonpayment of bills by clients results in multiple unmet bills for advocates, thereby impacting their ability to make a living. Therefore, a provision providing a method for collecting or receiving fees if the client refuses to pay must be included.
The Advocates Protection Bill assures adequate protection for members of the legal community so they can perform their professional duties without delaying the administration of justice. The Bill proposes the protection of attorneys and the elimination of obstacles, as well as the provision of a variety of aids and facilities to assist them in carrying out their duties. The effective implementation of this bill, however, will be observed in the future.