The Advocates Protection Bill, 2021, which will be the first of its type in the country to protect advocates from arrest, empowers the courts to compensate advocates for wrongs done to them. “No Police Officer shall arrest an Advocate or investigate a case against an Advocate without the explicit direction of the Chief Judicial Magistrate,” states section 11 of the new law. This is a path-breaking legislation which will revolutionise the profession of advocacy after it is implemented.
This law will come into force following a mob attack on two advocates in Dahisar on Sunday, proving attacks on advocates are becoming the norm. Two advocates had visited a plot of land to conduct a survey when the mob of 20 persons took out swords and iron rods to slash them, as there was a dispute over ownership of the land. Just as doctors have been attacked, brutal attacks and even the murder of advocates has been on the rise.
The Bill has fructified to implement the 8th United Nations Congress on Prevention of Crime and Treatment of Offenders (1990) to which India was a party. It was at this congress that the ‘Basic Principles on Role of Lawyers’ was also adopted. In this declaration, there are clauses that guarantee the functioning of lawyers. It sought to make sure that governments protect lawyers to enable them to discharge their duties to their clients and the courts.
The dire need for such a law was felt after , on a busy highway in Peddapalli district of Telangana in February, which led to widespread protests from lawyers across Telangana state. The Bar Council of Telangana condemned the murder, even as advocates abstained from their duties and took to the streets blocking roads and holding candlelight vigils. Even the Supreme Court Bar Association (SCBA) condemned the murder of the lawyer-couple.
The lawyer-couple had earlier alleged they were getting threatening phone calls from police. Telangana Pradesh Congress Committee President Uttam Kumar Reddy said he would raise their murder of in Parliament. He explained the lawyer-couple was murdered as a result of a larger conspiracy hatched by the sand mafia, which was directly linked to the custodial death of a Dalit, Seelam Rangaiah, in Manthani police station of Ramagundam police commissionerate in Telangana state.
'Illegal' detention of lawyer
In a separate incident, the Bombay high court ordered an inquiry into the alleged illegal detention of a 37-year-old lawyer from Mumbai. The high court recently appointed a principal district and sessions judge, Thane to ‘independently’ enquire if Kharghar police station, Navi Mumbai, had ‘illegally detained’ a lawyer, Vimal Jha, between April 3 and 5 and ‘illegally handcuffed’ him while producing him before the magistrate on April 5 to seek his remand.
To return to the new law, the Bar Council of India published the Bill on July 2, 2021. A seven-member team was formed to draw up the law to protect advocates and remove obstacles while discharging their duties. The bill lists the factors that obstruct the discharge of their duties. These are the spike in assaults, kidnappings, intimidation, and constant threats to activist-advocates.
The new Bill stipulates that advocates must be provided social security and the bare necessities of life, which is again a first in post-Independent India because though termed a profession of intellectuals, a sizable number of aged advocates are in penury.
Ironically, doctors seem to be a step ahead of advocates. Nineteen states passed what is called the Protection Of Medicare Service Persons And Medicare Service Institutions (Prevention Of Violence And Damage To Property) Act, also known as the Medical Protection Act (MPA), which is similar to but not identical to The Advocates Protection Bill, 2021. This law was passed to protect doctors from assaults.
Just like doctors, advocates have been beaten and murdered because they are seen as creating conflict in society, although they comprise part of the justice-delivery mechanism. Just as there are black sheep among doctors, there are also black sheep among advocates. Quite often, those who brutally thrash the advocates are goondas who fear being exposed. An advocate was attacked in Goa on September 27, 2018, during a site inspection of illegal houses because of an alleged nexus between the local MLA and the deputy superintendent of police.
In the new law, the term ‘acts of violence’ has been defined. All acts done against advocates to disrupt an impartial, fair, and neutral litigation fall under this category. These ‘acts’ might include threats, harassment, coercion, assault, malicious prosecution, criminal force, harm, hurt, injury, and so on, all of which could have an impact on advocates’ living and working conditions.
'Acts of violence'
The expression ‘acts of violence’ has been widened to include threats, harassment, coercion, assault, malicious prosecution, criminal force, harm, hurt, injury, all of which could have an impact on advocates’ living and working conditions. This also involves property loss or damage.
As in the general penal code, these criminal acts have been classified as cognizable or non-cognizable. Sections 3 and 4 discuss punishment and restitution. Punishments can range from six months to five years, with a maximum of ten years for repeat offences. Penalties range from Rs 50,000 to Rs 1 lakh for the first offense, while fines for consecutive offences can reach Rs 10 lakh. Hence, the law includes penal provisions, which gives it more teeth.
The bill also gives the court the authority to compensate advocates for wrongs done to them. The new Bill goes on to state when an advocate provides information to an officer-in-charge of a police station about the commission of any offence, this officer-in-charge will have to enter or cause to be entered the gist of the information in a book.
The statute also includes a significant provision for social security. In unforeseen events like natural catastrophes or epidemics, the new law recommends the state and Central governments establish arrangements to offer financial help to all needy advocates in the nation. Every month, a minimum of Rs 15,000 must be supplied, which seems idealistic because all governments are cash-strapped in view of the corona pandemic.
Section 12 of the new law states that if any public servant with investigative or arrest power under the CrPC is found to possess or use in his investigation any privileged communication or material that can be shown to have been obtained from an advocate, it is presumed that such privileged communication or material was obtained by coercion. The word “privileged” means confidential because communications between advocates and their clients are immune from disclosure in courts.
There is no doubt that this new law is the most progressive, with penal provisions to ensure advocates can function fearlessly. The police often use coercion to obtain privileged documents which they sometimes misuse to blackmail victims.
In sum, if there were no bad people, there would be no good advocates. Just as there are good and bad doctors, there are good, bad and poor advocates. This new law tries to redress afflictions of advocacy which continue to plague the country. How far it is successful remains to be seen.
The writer holds a PhD in law and is a senior journalist-cum-advocate of the Bombay high court
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