How practical is the Advocate's Protection Act? To learn more about it, continue reading the blog.

THE ADVOCATES ACT , 1961 – IS IT VIABLE OR NOT ?

?BY : AMA Legal Solutions

Living in a diverse country with differential aspects seen in everything ranging from religion to language to culture , provides for an increase in advocacy , for which the need of a regulatory act has been inevitable , The Parliament of India enacted The Advocates Act , 1961 with an aim to provide a code of conduct for the legal practitioners in the State . It is an umbrella of unity to create a single class of attorneys called advocates .

HISTORY OF ADVOCATES ACT?, 1961

Following Independence, Parliament established the Advocates Act of 1961 to regulate the practice of law in India. To monitor and regulate the Indian judiciary following Independence in 1947, the government formed the All India Bar Committee in 1953. The All-India Bar Committee's suggestion to Parliament led to the creation of the Advocates Act and the Bar Council of India in 1961. The Legal Practitioners Act established in the year 1879 , classified the category of practitioners under advocates , lawyers , barristers etc. for the removal of which the bill was drafted for the act .

?The proposal addresses violence directed at an advocate, which is also a fundamental duty of an advocate. It refers to acts of retaliation against the outcome of a case before any of the aforementioned forums as well as acts committed against an advocate with the intent to impede or obstruct the impartial, fearless, and fair conduct of all lawsuits before any court, tribunal, or authority in which the attorney is involved. The "Preamble" of the bill comprises a few sentences that briefly summaries the declaration of purpose and justifications for the increased protection of the advocate and their roles in the performance of professional obligations.

HIGHLIGHTS OF THE ACT

The Indian Bar Council and State Bar Councils were made possible by this statute.

Enrolment Requirements: The Act specifies the requirements for enrolment as an advocate, comprising the requisite age, educational needs, and the need to pass a certain exam.

Responsibilities and Rights of Advocates: According to the Act, advocates have certain rights and privileges, including the ability to practice law, appear in court, and argue matters on behalf of clients. The ability to participate in legislative body sessions is also granted to advocates.

Disciplinary Mechanism: The Act creates disciplinary bodies to look into claims of advocacy professionals' professional misconduct. If found guilty, the committees have the authority to suspend or strike an advocate's name from the list of advocates.

Legal Education and Training: According to the Act, Bar Council of India Trusts can be established. These trusts are in charge of advancing legal education and provide financial aid to law students. Additionally, it promotes ongoing legal education and establishes requirements for legal education institutions.

Advertising Prohibition: Unless otherwise permitted by the Bar Council of India, the Act forbids advocates from marketing their services. The goal is to uphold morality and professionalism.

Fees for Advocates: Under the Act, the Bar Council of India is given the authority to establish minimum rates for the services that advocates may provide. It attempts to safeguard fair compensation for legal services and avoid exploitation.

Foreign Attorneys: The Act permits foreign attorneys to practice law in India with the Bar Council of India's authorization and subject to a few restrictions.

Offences and Punishments: The Act outlines the wrongdoing that constitutes advocacy misconduct and lays out the punishments that must be met. It also outlines the penalties for illegal legal practice.

Legal Aid: The Act acknowledges the significance of offering legal assistance to the underprivileged and excluded groups in society. It makes it possible for the State Bar Councils and the Bar Council of India to sponsor and promote legal assistance initiatives.

ANALYSIS OF ADVOCATE PROTECTION BILL

The Act has already been passed by the Rajasthan government and established there. The Punjab and Haryana State Bar Councils handed the States of Punjab and Haryana two draughts of the Punjab Advocates (Protection) Bill 2023 and the Haryana Advocates (Protection) Bill 2023, urging that the laws be passed as soon as possible.

PROS

Enhanced Security: By making acts of violence or intimidation against activists illegal, the measure seeks to strengthen their sense of safety. This guarantees their security and gives them the freedom to carry out their jobs without worry.

Justice Upholding: The concepts of justice are upheld in large part thanks to the work of advocates. By ensuring their protection, the law makes sure that the judicial system can operate effectively, resulting in the fair and unbiased settlement of disputes.

Encouragement of Advocacy: By giving advocates more self-assurance, the measure encourages the profession of advocacy. This may encourage more people to seek legal careers, strengthening the legal system and improving access to justice.

CONS

Misuse of Provisions: There is a chance that some people would abuse the defense offered by the law to insulate themselves from fair examination or criticism. This could make it harder for the legal profession to be transparent and accountable.

Adequate Enforcement: The efficacy of the law depends on how well it is implemented and applied. Advocates can still risk threats and violence if the provisions are not enforced properly, making the law ineffectual.

Potential Bias: According to the bill's opponents, advocates may unintentionally feel privileged, which might give the impression that the legal system is biased. This may damage the public's faith in the justice system.

Viability of the Advocates Act

The Act establishes the requirements necessary to practice law in India and establishes a system of legal education and training. The suitability and applicability of these credentials and training programmed for preparing advocates for the legal profession determine the sustainability of the Act. A few points listed below assess the viability of the act :

Professional Regulation: The Act offers a framework for the regulation of the legal profession, including registration and disciplinary procedures for solicitors. It seeks to uphold professional norms, ethics, and behavior. The Bar Council of India's capacity to carry out these regulatory duties effectively is essential to the Act's continued existence.

Rights and Privileges: The Act describes the privileges and rights of advocates, such as the right to represent clients in court and to practice law. The Act's success will rely on how well it safeguards and respects these privileges, preserving the independence and autonomy of the legal profession.

Disciplinary Mechanism: Under the Act, disciplinary bodies are established to hear complaints against advocates and take the proper measures in cases of misconduct. The effectiveness and openness of these disciplinary systems in resolving complaints and upholding professional integrity are essential to the Act's survival.

Access to Justice: The effectiveness of the Act is strongly correlated with how it affects access to justice. It is critical to determine whether the Act supports equitable access to legal services, especially for disadvantaged and marginalised groups in society. The Act's ability to guarantee justice for all is strengthened by provisions like those relating to pro bono services and legal assistance.

Dynamic Landscape: The flexibility of the Advocates Act to adapt to the changing legal environment, which includes societal requirements and technological improvements, is essential to the Act's continued existence. The Act must to be flexible enough to accommodate new fields of legal practise as well as current issues facing the legal industry.

CASE LAWS

Pratap Chandra Mehta vs. State Bar Council of Madhya Pradesh

According to Section 15(3) of the Advocates Act, the State Bar Council's regulations won't take effect until they have been approved by the Bar Council of India. The State Bar Council must maintain its behaviour in accordance with democratic ideals while keeping in mind the high ethical standards of the lawyers. As a result, when read in concert with other provisions, Section 15's purpose and extent do not extend beyond this power. Additionally, it was determined that Section 15(3) of the Advocates Act's language is unambiguous and that the Bar Council of India has approved the new regulations.

T. N. Raghupathy vs High Court of Karnataka and others.

In this instance, the appellant requested a writ of mandamus in order to establish new rules that would be in accordance with Section 16(2) of the Advocates Act's requirements on the selection of Senior Advocates. In light of the public interest, the Court noted that the appellant lacked locus standi to bring a writ petition.??Some of the problems brought up in the writs did call for thought. Because the High Court is responsible for creating the rules, regulations, and standards governing the selection of Senior Advocates, it was only the High Court that it was concerned with. The contested order was so annulled, and the High Court was asked to evaluate the case on its merits.

Mahipal Singh Rana vs State of UP

In this case, the Bar Council of India argued that Section 24A of the Advocates Act prohibits a person from being admitted as an advocate if they have been found guilty of any crime involving moral turpitude. Additionally, it stipulates that the bar may be lifted two years following discharge.??It was also argued that, in accordance with the requirements of Section 35 of the Advocates Act, only the Bar Council has the authority to penalize an advocate for professional misconduct. The attorney further argued that a broad directive addressing the conviction of an advocate for moral turpitude must be sent to all courts.

CONCLUDING PERSPECTIVES

The Advocate Act is crucial in that it establishes the requirements that everyone who enrolls as an advocate must meet. It also provides justification for any punishment meted out to them should they commit an offence. It maintains the advocates under the principle of check and balance, which aids in the efficient operation of the judicial system. The Advocate Act's ambiguity has been made explicit by a number of important rulings.