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Advocate And The Advocate Protection Bill, 2021: Issues And Challenges

Advocate is an essential profession for the society to aid the person whose Fundamental Rights are violated and others who became aggrieved in any case. In such situations, an Advocate is the only option for Justice, because the Advocate plays an important role to bring Justice to the aggrieved person through his/her personal knowledge and experience in the field of law. Judges only conclude justice on the basis of evidence, facts and arguments which is given by an Advocate.

We all know that advocate is a private profession that is based on the client fees and barred to practice another profession by both Bar Council and Advocate Act 1961. That's why during the period of lockdown Advocate faces the worst financial situation. In some cases like in the report of "THE TIMES OF INDIA"- Aditya Kashyap turns to vegetable vendors, and delivery boys to make up for lost income[1].

The problem is not ended in this stage another huge problem in their profession is constant assault, kidnapping and threats against the advocates is bringing insecurity in their profession. Recently on April 11, 2022, a 65-year-old advocate of Andhra Pradesh high court was murdered, police suspected that a real estate-related legal dispute for which the advocate was appearing may have led to his murder.[2]

Another such incident took place on September 8, 2021, in which an advocate Mahesh Nagar was returning home at kachara from Noida in his car at 10 pm, Mr. Nagar was stopped by police personnel near a check post, seized his mobile phone and illegally detained for 3 hours by police[3].

Understanding Advocate Protection Act
Black Law's dictionary defines an Advocate as the one who renders legal advice and aid and pleads the cause of another before a court. According to Advocate Act 1961:- an Advocate is a person authorized to appear in litigation on behalf of a party and who possesses a law degree enrolled with the bar council.

Just like the profession of the advocate its dress code also has a meaning like:
  1. Black coat: is the color of authority, power and submission to justice
  2. White band and shirt: shows light, goodness, innocence, purity and hope of justice.

This shows that the profession of lawyer is an elite profession that's why in layman's term lawyer call as "Vakil Shahab".

Now after so many years of struggle finally Bar Council of India on July 2, 2021, constitute a seven-member committee to draught the law, which deal with the problem encountered by an Advocate in their profession. The bill contains the "Preamble" in which 9 points describe the statement of object and reasons for the greater protection of the advocate and their functions in the discharge of professional duties.

Preamble 9 points are:
  1. Deal with incidents of assault, killing, intimidation and regular threat caused to advocate cause obstruction and deficiencies in rendering professional services by advocates to their clients.
  2. Deal with protect Advocate from such assault and threat, it is necessary to bring a legislation for the protection of Advocate.
  3. Provide social security to the Advocate and ensure the basic and minimum necessities of their lives.
  4. Eight United Nations Congress on the prevention of crime and the treatment of offenders in which India was a participant where it has adopted the basic principles on the role of a lawyer, clause 16 to 18 of the declaration deals with guarantees for the functioning of the lawyer.
  5. Supreme Court of India in case Ramon services Pvt. Ltd vs Subash Kapoor (AIR 2001, SC,207) has observed person belonging to the legal profession is concededly the elite of the society.
  6. An Advocate also faces malicious and frivolous prosecution while discharging of their duty. Which also intended to interfere with the performance of their duties.
  7. Another hurdle for the advocate is difficult to communicate with their representing detainee which is also observed by the United Nations Human Right Council resolution, on the "independence of judges and lawyers", that principle of confidentiality in lawyer communication with a client is violated and that they are denied free access to their client and documents.
  8. Supreme court case of O.N. Mahindroo v. The Bar Council of Delhi and Ors. (1968). It is observed that advocates can render professional services without fear or external influence for the ultimate cause of the administration of justice and rule of law.
  9. Advocate protection bill 2021 seeks to achieve the above objectives.

Proposal of the bill:
The bill also defines the Advocate with the same meaning as provided under section 2(1)(a) of the Advocate Act 1961. The bill also deals with the act of violence against the Advocate, which is also an essential object for an Advocate, it refers to an act committed by any person against an Advocate with an intent to prejudice or derails the process of impartial, fair and fearless conduct of any litigation before any court, tribunal or authority in which such Advocates is engaged or acts of retribution towards the outcome of a proceeding before any of the above forums.

Under section 3 of the bill which contains the punishment for offenses, whoever commits or abets the commission of an act of violence except for grievous hurt against an Advocate shall be punishable with imprisonment for a term, not less than 6 months but which may extend to five years and with fine, not less than fifty thousand up to one lakh rupees depending on the gravity of the offense. Whoever has already been convicted of an offense under this act shall be punishable with imprisonment for two years which may extend to ten years and a fine which shall not be less than ten lakh rupees depending on the gravity of the offense.

The person so convicted shall also be liable to pay compensation such amount as may be determined by the court for causing any act of violence against any Advocate. In the case of damage of property, the compensation payable shall be twice the amount of fair market value of the damaged property as may be determined by the court. Failure to pay the compensation awarded, such amount shall be recovered as an arrear of land revenue under the "Revenue Recovery Act 1890".

Nature of offense and jurisdiction of the court
In section 5 of the bill describe as notwithstanding anything contained in the Cr.P.C 1973:-An offense punishable under section 3 shall be cognizable and non-bailable. Any case registered under section 3 shall be investigated by a police officer, not below the rank of deputy superintendent of police. Investigation of a case shall be completed within thirty days from the date of registration of the F.I.R. no court inferior to that of the rank of a district and session judge shall try an offense under section 3.

For every inquiry or trial of a case under section 3 the proceeding shall be held as expeditiously as possible and an endeavor shall be made to ensure that the inquiry or trial is concluded within a period of one year. A person committing an offense punishable under section 3 such offense may with the permission of the court be compounded by the person against whom such act of violence is committed.

The topic of police protection is also covered in section 7 of the bill which says:
Any Advocate who is under the threat 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. Every High Court shall before passing such order scrutinize the personal antecedent of such Advocate including criminal record and in order to satisfy itself of the character and conduct of Advocate and the bona-fides of the application filed and proper may call for a report from the concerned state Bar Council about the conduct or otherwise of the applicant Advocate.

Whenever the police security is provided to the Advocate the superintendent of the police shall before taking a decision to withdraw or reduce refer the matter to the registrar of the court in which that Advocate is practicing. No decision shall be taken by the superintendent of the police to withdraw and reduce the security provided to the Advocate unless prior notice of one week and intent of the superintendent of the police is approved by the concerned court.

Protection from illegal arrest and malicious prosecution of Advocate:
No police officer shall arrest an advocate or investigate a case against an Advocate without the specific order of the chief judicial magistrate. If the chief judicial magistrate finds that F.I.R has been lodged because of some malicious reason then the concerned may grant bail to Advocate. Any person found to have initiated a vexatious or malicious proceeding against an Advocate shall be liable to pay the amount as may be determined by the court which amount shall not be less than rupees two lakh and extended to rupees ten lakh upon the nature of the allegation and extent of damages.

The government shall recognize and respect all communication and consultation between lawyer and their client and be treated as confidential. In any case, the public servants having the power to investigation under chapter XII of Cr.P.C and which can be shown to be obtained from an Advocate it shall be presumed that such privileged communication was obtained by such public servant by coercion.


Social security:
The central government, as well as the state government, may make provisions to provide financial assistance to the needy Advocate during any unforeseen situation like an epidemic, with a minimum of rupees 15,000 every month assistance given to the needy Advocate[4]. This is a huge step taken by the government to provide financial security to lawyers. Furthermore, besides financial security, social security should also be given to such lawyers whose lives are threatened because of the nature of their cases. sometimes they are blackmailed either to drop their cases or to destroy the evidence. when an advocate faces such problems it is not only a threat to them but also to the 'Justice'.

Conclusion:
Advocate is an important and elite profession, which we also clearly seen in our history lessons in which most of the popular leaders are lawyers. That is why in layman's language lawyers are known as "Shahab" or "Vakil Shahab". After the pandemic, the condition of the Advocate has become very sensitive. Today an Advocate faces financial problems as well as life-threatening problems in their profession which not only affect the life of an Advocate but also have negative consequences on the society and legal system as well.

The Advocate Protection Bill focuses on most of the major problems faced by an Advocate. This bill can be considered a pioneer in protecting the rights of an Advocate. There are other problems that may arise from time to time and thus it should be considered and tackled by the concerning State Bar Councils.

Here one can note that unlike the other profession of doctors, engineers and alike the profession of advocate comes with more challenges. There is no financial security provided for practicing this profession; furthermore, many incidences shows that sometimes the life of advocates is also at risk. This is one of the major problems of the legal profession and should be catered properly and to this, Advocate Protection Bill is a huge step.

End-Notes:
  1. http://timesofindia.indiatimes.com/articleshow/77569538.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
  2. https://timesofindia.indiatimes.com/city/vijayawada/andhra-pradesh-hc-advocate-found-dead-near-kurnool/articleshow/90769315.cms
  3. https://www.hindustantimes.com/cities/noida-news/gb-nagar-advocates-protest-at-police-commissioner-s-office-alleging-harassment-by-cops-101631039575002.html
  4. https://www.livelaw.in/pdf_upload/press-release-dated-02072020-regarding-advocate-protection-bill-english-395933.pdf
Written By: Akshay Mishra - Institution: Allahabad State University, Prayagraj
Email: [email protected], Mob No: 9532869033

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