INTRODUCTION
Advocates possess the authority to influence legislation, uphold the rights of the innocent, and construct persuasive arguments on behalf of individuals whose rights have been infringed upon and others who have suffered grievances. Through the application of their comprehensive legal acumen, advocates serve as vital agents in the administration of justice, diligently working to secure equitable remedies for those aggrieved.
The legal profession is recognized as one of the most demanding and rewarding vocations. It requires an in-depth knowledge of the law, superior analytical abilities, and proficiency in addressing multifaceted legal issues. The practice of law is not without its perils, as it can subject practitioners to threats, potential physical harm, harassment, or assaults on their professional integrity.[i]Notwithstanding these hazards, attorneys remain unwavering in their dedication to pursuing justice, employing their legal expertise to champion the cause of righteousness and safeguard the disenfranchised. The devotion and fortitude necessary in this field are considerable. Yet, the contributions made by legal professionals to both individuals and the broader society are of inestimable value, rendering the legal profession a noble and gratifying pursuit. For this precise reason, the Advocates Protection Bill has garnered significant attention in recent times. It is imperative to engage in a thorough examination and comprehensive analysis of this Bill to fully comprehend its implications and provisions.
THE ADVOCATES PROTECTION BILL
This bill is a proposed legislation that aims to safeguard the rights and interests of lawyers in the country. The Bar Council of India appointed a seven-member committee in 2021 to help develop an Act to protect and secure advocates from threats or other kinds of violence throughout the country. The idea behind the bill is to recognise that while practicing litigation it may cause emotional stress to the advocates or the ones involved in it and can cause to develop hatred against the advocates. Considering the risk and the mental anguish that this can cause, and to cut down on the possibility of this risk even reaching their families, it is important to bring in this legislation.
The Object of the Bill–
The Bill encapsulates the ‘Preamble’ which gives forth 9 points describing the statement of objects and reasons. It deals with the incidents of assault, killings, regular threats, and intimidation to Advocates while conducting their professional duty most honestly, making it one of the objectives of the Bill to protect Advocates from such acts being inflicted upon them. It includes providing social security to the Advocates and even ensuring the necessities of their lives. The Bill also states to put into effect the 8th‘United Nations Congress on Crime Prevention and Treatment of Offenders(1990)’. [ii]The Principles on the Role of Lawyers were approved herein. Malicious and frivolous prosecution of the Advocates while they are discharging their duties also tends to interfere with the performance.
Some Key Provisions Contained in the Bill[iii]–
- Definition:
The Definition Section of the Bill provides various definitions and one of them is for ‘Advocates’ where it defines it as one who is enrolled with any State Bar Council or the Bar Council of India under the Advocates Act,1961.
- Punishments for Offences–
Section 3 discusses punishment and penalties range from 6 months to 5 years for a first offense and for a second offense it is up to 10 years. A fine of Rs. 50,000 to Rs. 1 Lakh is charged for first-timeoffenders and up to 10 Lakh for repeated ones.
- Nature of Offence and Jurisdiction of Courtsare dealt with under Section 5, which talks of the case to be dealt with by a police officer, not below the Rank of Deputy Superintendent of Police.
- Redressal Committee–
At each level, a three-member commission for the Redressal of Grievances of Advocates and Bar Associations has been established.
- Protection against arrest and prosecution–
Section 11 provides for this protection against an Advocate unless the Chief Judicial Magistrate orders so.
- Provision of Social Security–
The Bill provides social security arrangements that the Central and the State governments may provide to the needy Advocates during an unforeseen situation or other calamity.
- An Advocate needs to be deemed as an officer of the Institution if he is appearing before a Court, Tribunal, or authority.
- Malicious Prosecution of Advocates–
If there is any suit or other legal proceeding that is motivated by malicious intent against the Advocate then such person shall be liable to pay an amount decided by the Court as a form of compensation which would not be less than Rs. 100,000.
- Power to make Rules-
The Central Government inconsultation with the Bar Council of India shall make rules by notification in the Official Gazette, which would be laid down before each House of Parliament.
- Code of Criminal Proceedings,1973 applies to the proceedings under this Act.
EXISTING INTERNATIONAL LAW FOR PROTECTION
It becomes important to effectively implement a framework that guides protecting the lawyers and promoting their independence and safety. It has become a growing concern at international levels as well regarding the attacks and threats against lawyers and it poses a threat to the pillars of justice and the rule of law. It becomes important to recognize their protection mechanism present at the international level.
The United Nations Basic Principles on the Role of Lawyers emphasize that the independence of the legal profession is essential for maintaining the rule of law within a democratic society. Furthermore, the International Covenant on Civil and Political Rights indicates that the harassment of legal professionals can result in violations of clients’ rights, especially their right to due process as articulated in Article 14 of the Covenant. The Guidelines and Principles on the Right to a Fair Trial and Legal Assistance in Africa stipulate that legal representation is deemed the paramount mechanism for safeguarding against violations of human rights and fundamental freedoms. Article 38.1 of the Statute of the International Court of Justice delineates that the hierarchy of international norms safeguarding legal practitioners encompasses general principles of international law and customary international law, to the extent that these norms uphold the rule of law, ensure equal access to justice and non-discrimination within the judicial system, preserve the independence of the judiciary and legal profession, and guarantee the right to a fair trial.[iv] Principle 14 of the UN Guidelines on Legal Aid throws light on the need for states to recognise the contribution of lawyers in providing legal aid. Numerous nations have acknowledged that legal practitioners encounter distinct risks in their professional duties, and in response to increasing demand, are endeavoring to establish specific legislation for the protection of lawyers. In the Russian Federation, legal professionals, along with their family members and possessions, are afforded protection by the State according to the Federal Law on Lawyers’ Activities and Advokatura. According to Article 296 of the Criminal Code of the Russian Federation (1996), it delineates protections for lawyers and individuals involved in the administration of justice. The Charter of Core Principles of the European Legal Profession, issued on 25 November 2006, asserts as principle (a) the independence of lawyers and their freedom to advocate on behalf of their clients. It states that a lawyer must operate free from political, economic, and intellectual constraints when advising and representing clients.[v] It further becomes important to work towards independence of advocates and the legal profession so that it further supports in achieving the ‘Sustainable Development Goal 16 of the 2030 Agenda’. Even Principle 12 of the UN Principles on accessing legal aid in criminal justice advocates for the protection of legal aid providers and puts an obligation on the State for independence and protection. These various Sections in other countries aim to uphold the independence of the law officers and ensure protection such as – Section 1503 of Title 18 of the United States Code confers protections upon officers of the court. Similarly, in Egypt, Article 54 of Law No. 17 of 1983 (Advocacy Law) provides safeguards for legal practitioners, and in Indonesia, Article 15 of Law No. 18 of 2003 ensures the protection of the legal profession.[vi]
INTRODUCTION OF NEW KARNATAKA PROHIBITION OF VIOLENCE AGAINST ADVOCATES ACT, 2023
The assault on a young lawyer in Chikkamagaluru precipitated the enactment of the Karnataka Prohibition of Violence against Advocates Act, 2023. This legislation incorporates principles from Clauses 16 and 17 of the UN Declaration. Clause 16 obligates the State to ensure that lawyers can perform their professional duties without obstruction, harassment, or any form of interference. Clause 17 provides adequate safeguards for lawyers when their scrutiny is threatened during the discharge of their functions.[vii]
The Karnataka Prohibition of Violence against Advocates Act, 2023 defines violence comprehensively as any action that endangers the life of an advocate, inflicts bodily harm, or causes intimidation. Such acts are recognized as obstructive to the advocates’ ability to perform their professional duties effectively. The Act specifies stringent penalties for perpetrators of such violence, including imprisonment for a term ranging from six months to three years, and/or a monetary fine that may extend up to 1 Lakh rupees. The dual nature of the punishment—imprisonment and fine—emphasizes the seriousness with which such offenses are regarded. The overarching objective of the Act is to provide robust protection to advocates, ensuring they are shielded from any forms of violence, threats, or intimidation, thereby enabling them to carry out their professional responsibilities with confidence and without fear of retribution or harm.[viii]
CONCLUSION
Advocates are vested with the capacity to influence legislative developments, uphold the rights of the innocent, and present compelling arguments on behalf of individuals whose rights have been violated or who have experienced grievances. However, the practice of law is not devoid of risks, as practitioners may encounter threats, potential physical harm, harassment, or attacks on their professional integrity. In light of these concerns, the Advocates Protection Bill has attracted considerable attention, as it proposes a legislative framework aimed at safeguarding the rights and interests of legal professionals. Key provisions of the Bill encompass penalties, the categorization of offenses, the establishment of a redressal committee, and other pertinent regulations. Additionally, it is crucial to examine analogous international frameworks to ensure comprehensive protection for lawyers and to facilitate the unhindered execution of their duties without intimidation or undue interference. The recent Karnataka Prohibition of Violence against Advocates Act, 2023, enacted and effective as of June 10, underscores the necessity for a comprehensive Advocates Protection Act at the national level.
[i]https://www.juscorpus.com/exploring-the-advocates-protection-bill-impact-on-lawyers-rights-and-responsibilities/
[ii]https://blog.ipleaders.in/proposed-advocates-protection-bill-how-will-it-help-in-reducing-violence-against-lawyers/
[iii]https://www.livelaw.in/pdf_upload/press-release-dated-02072020-regarding-advocate-protection-bill-english-395933.pdf
[iv]https://www.ibanet.org/MediaHandler?id=c0a1f2cc-0a0c-4e97-a180-fa6fc53b4a32
[v]https://www.livelaw.in/lawschool/articles/advocates-protection-act-rule-of-law-udhr-iccpr-unhrc-227638
[vi] Ibid
[vii]https://prsindia.org/bills/states/the-karnataka-prohibition-of-violence-against-advocates-bill-2023#:~:text=The%20Karnataka%20Prohibition%20of%20Violence%20Against%20Advocates%20Bill%2C%202023%2C%20was,effectively%20render%20their%20professional%20services
[viii]https://indianexpress.com/article/cities/bangalore/new-karnataka-bill-to-protect-lawyers-from-violence-9064931/
This blog is authored by Aishwarya Agnihotri, a student at the Institute of Law, Nirma University.