Sunday, June 4, 2023

Beware of Attacking Advocates

The proposed Bill aims to protect these professionals who are increasingly the target of assaults and intimidation and are prevented from discharging their professional duties.

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The Bar Council of India (BCI) on July 2, 2021, released the draft of the Advocates Protection Bill 2021. A seven-member committee had been constituted on June 10, 2021, to frame the Bill keeping in mind the problem and adversities faced by advocates and their families. The BCI has circulated it to all Bar Councils, High Court Bar Associations, the Supreme Court Bar Association and all other Bars in the country.

A BCI press release said that suggestions received by it shall be considered and changes incorporated, if necessary. The final draft Bill shall be sent to the law minister to table before Parliament.

The advocates’ fraternity is one of the essential wings of the justice delivery system, akin to the police and the judiciary. But while the police and the judiciary have access to protection, social security and other privileges, advocates are not given proper protection from anti-social elements. The Committee deliberated on the need for social security for advocates, apart from physical security and protection against illegal arrest and detention, and redressal of their grievances.

The press release said: “The Committee has endeavoured to take all these connected issues into consideration and drafted the Advocates Protection Bill. The Bill, if passed by the Parliament will ensure adequate protection to members of the legal fraternity, so that they can carry on their duties as officers of the court, fearlessly without having to worry about their and their family’s social and physical safety.”

According to the Bill, the recent incidents of assault, killings, intimidation and regular threats to advocates, due to proper and honest discharge of their professional duties, have reached alarming heights. This has also resulted in a law and order situation and sometimes causes obstruction and deficiencies in rendering professional services by advocates to their clients. Apart from this, due to such incidents and threats, there is a deep sense of apprehension in the minds of advocates while discharging their professional duties. In order to protect them, it is necessary to bring legislation for their protection. This will provide social security to the advocates and ensure them basic and minimum necessities.

The press release stated that lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning law, the administration of justice and the promotion and protection of human rights. They shall also have the right to join or form local, national or international organisations and attend their meetings without suffering professional restrictions. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognised standards and ethics of the legal profession.

There is a provision in the draft that whoever commits or abets the commission of an act of violence, except grievous hurt covered by sub-section (2), against an advocate shall be punishable with imprisonment for a term not less than six months, but which may extend to five years and with a fine of not less than Rs 50,000 and up to Rs 1 lakh depending on the gravity of the offence.

Further, whoever has already been convicted of an offence under this Act and is convicted for the second or subsequent offence, shall be punishable with imprisonment for a term not less than two years, but which may extend to ten years and fine, which shall not be less than Rs 10 lakh depending on the gravity of the offence.

Moreover, for an offence under Section 3, the person so convicted shall also be liable to pay, by way of compensation, an amount that will be determined by the Court for causing any act of violence against any advocate. Notwithstanding the compounding of an offence under Section 6, in case of damage to any property or loss caused, the compensation payable shall be twice the fair market value of the property or the loss caused, as may be determined by the Court. Upon failure to pay the compensation awarded under sub-section (1) and (2), that amount shall be recovered as an arrear of land revenue under the Revenue Recovery Act, 1890.

Coming to police protection, the Act says:

  • Any advocate who is under the threat of being a victim of an 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.
  • Every High Court shall, before passing orders under Section 7 (1), scrutinise the personal antecedents of such an advocate, including his criminal record, if any, and any other necessary material which it requires, in order to satisfy itself of his character and conduct and the bona fides of the application filed under this Section. The High Court, if it thinks fit and proper, may call for a report from the concerned State Bar Council or Bar Council of India about the conduct or otherwise of the applicant advocate.
  • Wherever police security is provided to an advocate, the Superintendent of Police (SP) shall, before taking a decision to withdraw, reduce or discontinue such security, refer the matter to the Registrar of the district court or in the case of an advocate in the High Court, the Registrar General of the High Court; and in case of an advocate practising in the Supreme Court, the secretary general for their concurrence.
  • No decision shall be taken by the SP to withdraw, reduce or discontinue the security provided to the advocate unless a notice of one week is first served on him and the intent of the SP is approved by the concerned district court, High Court or Supreme Court, as the case may be.

The draft has also provided social securities for advocates, according to which the central government as well as state governments may make provisions to provide financial assistance to all needy advocates during any unforeseen situation like an epidemic or any other natural calamities. A minimum of Rs 15,000 every month may be made available to each needy advocate through the local district magistrate/district court on the recommendation (s) of the concerned State Bar Council. Out of the total financial assistance, 50 percent may be borne by the centre and the rest by the concerned State Bar Council. This assistance may be granted till the end of the pandemic or the ill-effects of the calamity are over.

Similarly, the centre may provide for some insurance and mediclaim schemes for advocates. If needed, the centre may issue appropriate circulars directing PSUs and scheduled banks to grant loans to needy advocates at a reasonable rate of interest.

Ashutosh Gupta, an advocate of the Lucknow High Court, told India Legal: “Nowadays, it is very difficult for advocates to discharge their professional duties with honesty and dedication. Almost every alternate day, we get information regarding the killing, threat to life and various assaults on advocates. A strict act must be enforced which can protect them and their families from these mishappenings. Advocates play an essential role in the mechanism of justice. They are professionals and must get all the privileges  given to other privileged professionals. I hope the Bill will soon be converted into an Act.”

Saaransh Sarkar, another advocate, said: “It’s a very good move by the BCI towards the lawyer fraternity as it is one of the essential wings of justice. Lawyers deserve the same respect and dignity as other professions. Hopefully, this Bill will become an Act soon to save advocates from any kind of violence.”

—By Adarsh Kumar and India Legal News Service

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