LEGAL COLUMN

ADVOCATE CANNOT BE
ARRESTED UNDER NEW
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:

• MR. S. PRABAKARAN, SR.

ADVOCATE, VICE-CHAIRMAN, BAR
COUNCIL OF INDIA;

• MR. DEBI PRASAD DHAL, SR.

ADVOCATE, EXECUTIVE CHAIRMAN,
BAR COUNCIL OF INDIA TRUST;
• MR. SURESH CHANDRA SHRIMALI,
CO-CHAIRMAN, BAR COUNCIL OF
INDIA;
• MR. SHAILENDRA DUBEY, MEMBER,
BAR COUNCIL OF INDIA;

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 • MR. A. RAMI REDDY, EXECUTIVE
VICE-CHAIRMAN, BAR COUNCIL OF
INDIA TRUST;
• MR. SHREENATH TRIPATHI,
MEMBER, BAR COUNCIL OF INDIA;
AND
MR. PRASHANT KUMAR SINGH,
MEMBER, BAR COUNCIL OF INDIA.

OBJECT OF BILL
FOR THE PROTECTION OF
ADVOCATES AND THEIR FUNCTIONS IN
DISCHARGE OF PROFESSIONAL
DUTIES. IT THEN STATES AN
EXTENSIVE 9 POINTS OF THE
OBJECTIVES AND REASONS FOR THE
BILL.

THE MAIN REASONS FOR THE BILL IS

STATED TO BE THE PROTECTION OF
ADVOCATES AND TO REMOVE

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OBSTRUCTIONS IN THE DISCHARGE OF
THEIR DUTIES. THERE ARE VARIOUS
REASONS MENTIONED IN THE BILL
THAT CAUSE OBSTRUCTION IN
PERFORMANCE OF DUTIES.

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, THERE ARE
CLAUSES THAT GUARANTEE THE
FUNCTIONING OF LAWYERS. IT
SOUGHT TO MAKE SURE THAT
GOVERNMENTS PROTECT LAWYERS
AND THEY ARE ABLE TO PERFORM
THEIR DUTIES.

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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
MINIMUM NECESSITY FOR LIFE FOR
ADVOCATES.

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IN TOTAL, THE DRAFT BILL LOCATES
16 SECTIONS IN RESPECT OF ITS
OBJECTIVES.

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.

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

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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 COMPENSATIONS.
PUNISHMENTS CAN START FROM 6
MONTHS AND EXTEND UPTO 5 YEARS;
AND FOR SUBSEQUENT OFFENCE,
UPTO 10 YEARS. FINES START AT
RS.50,000 AND GOES UPTO RS.1 LAKH;
AND FOR SUBSEQUENT OFFENCES
FINES CAN GO UPTO RS.10 LAKHS.

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 THE BILL ALSO EMPOWERS THE
COURT TO AWARD COMPENSATION TO
ADVOCATES FOR THE WRONGS
COMMITTED AGAINST THEM.

INVESTIGATION BY OFFICER ABOVE

THE RANK OF DSP
AT 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.

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REDRESSAL COMMITTEE
THE NEXT 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 HAS 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.

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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 SUITS

NO SUIT IS TO BE INSTITUTED
AGAINST A LAWYER WHO HAS BEEN
WORKING IN GOOD FAITH.
COMMUNICATIONS BETWEEN THE
ADVOCATES AND THEIR CLIENTS
MUST BE RESPECTED; THE
CONFIDENTIALITY MUST BE
PROTECTED.

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ARREST

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

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AND THE CHIEF JUDICIAL MAGISTRATE
CONCERNED SHALL ISSUE NOTICE TO
THE ADVOCATE AND GIVE
OPPORTUNITY OF HEARING TO HIM
OR TO HIS COUNSEL OR
REPRESENTATIVE.

AFTER HEARING THE IF THE CJM

FINDS THAT FIR HAS BEEN FILED
AGAINST THE ADVOCATE FOR SOME
MALICIOUS REASONS EMANATING
FROM THE DISCHARGE OF OFFICIAL
DUTIES OF THE ADVOCATE THEN CJM
SHALL GRANT BAIL TO THE
ADVOCATE.

SOCIAL SECURITY

ANOTHER HUGE PROVISION MADE IN

THE ACT IS THAT OF SOCIAL
SECURITY. THE ACT PROPOSES THAT

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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.

PRESUMPTION AS TO COERCION IN
CASE PUBLIC SERVANT OBTAINING
PRIVILEGED COMMUNICATION FROM
LEGAL PRACTITIONER

SECTION 12 PROVIDES THAT WHERE

ANY PUBLIC SERVANT HAVING POWER
OF INVESTIGATION OR ARREST UNDER
CRPC IS FOUND IN POSSESSION OF
OR FOUND TO USE IN HIS
INVESTIGATION ANY SUCH PRIVILEGED

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COMMUNICATION OR MATERIAL WHICH
CAN BE SHOWN TO BE OBTAINED
FROM AN ADVOCATE, IT SHALL BE
PRESUMED THAT SUCH PRIVILEGED
COMMUNICATION OR MATERIAL WAS
OBTAINED BY SUCH PUBLIC SERVANT
BY COERCION.

THANKU

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