In Interest of Justice – Aaditya Gore

How serious is an attack on or interference with the duties of a judge presiding over a Court of Law? Does it not impede the course of justice? How serious is an attack or interference with the duties of an officer conducting an investigation? Does that also not impede the course of finding out the truth? If so, why should an attack or interference with the work and duty of an Advocate be any different? Advocates are an integral part of the system of administration of justice. Any attack or interference with their duties is an attack on the administration of justice. The duties of an Advocate are three-fold : those towards the Court, towards the other side and towards the client. The first two cease with the conclusion of a matter in a Court. It is the third which is the most enduring of all. The duty of an Advocate towards his/her client to maintain confidence and privilege of whatever is communicated by the client during the subsistence of the client-Advocate relationship outlasts even a particular Advocate’s holding the licence to practice. This means that even if one fine day, the Advocate decides that he/she wants to quit legal practice, whatever was shared by a client during the subsistence of the client-Advocate relationship will have to be honoured. This is what the law mandates. Advocates who are equipped and even privileged (no other profession can appear before all Courts, tribunals and quasi-judicial authorities with the possible exception of Chartered Accountants who may appear before Tax Tribunals) to conduct cases before Courts of Law are duty-bound ethically and even legally not to refuse a brief, i.e. no Advocate may refuse to take up a case just because he/she has a particular opinion about a client. Indeed, it is not an Advocate’s job to judge a person before the judgment. It is to assist the Court in coming to a conclusion after a wholesome and full representation of all possible merits of the party that an Advocate is engaged to represent. In this way, Advocates act as and are indeed Officers of Court. So the first duty of an Advocate is to the process of justice and to ensure that no party to a proceeding goes unheard.

Charged with the duty of impartially representing parties to legal proceedings and to maintain privilege of clients’ communication, Advocates may be hauled up for misconduct under the Advocates Act, 1961 if they happen to breach these duties. However, with these lofty ideals that Advocates are called upon to maintain, the law does not provide for protection of these duties. In the case of judges or public servants, a person may be punished for impeding with their duties or trying to use coercive techniques to make judges or public servants do things against their mandated duties and rightly so. However, in the case of Advocates, a person trying to extract privileged information by use of unlawful and coercive means, there is no express punishment provided in the law governing Advocates as a profession. This leaves a major lacuna in the whole system of administration of justice. Whereas it is possible to haul up an Advocate for breach of the duties that he/she is supposed to perform and the privilege that he/she is bound to maintain at all times, there is no express punishment for someone trying to coerce an Advocate to reveal privileged information. This lacuna is sometimes misused by public servants enjoying plenary powers of detention and arrest to force Advocates to reveal privileged information or else face the threat of facing manufactured charges connecting them with the offences that their clients may have allegedly committed. If the law expects an Advocate to maintain privilege it must also provide for severe punishments for those seeking to destroy it. Sometimes, opinions rendered by Advocates are also made use of against them if the person seeking such opinion happens to have presented wrong or fraudulent documents. It is also observed that in order to bear pressure on an adverse party, the Advocate representing the adverse party is sought to be roped into some false complaint. The tendency of investigating and prosecuting agencies and even private parties to legal proceedings to rope in Advocates into such offences has been repeatedly decried in cases like Siddaiah and Anr. v/s. State of Andhra Pradesh, 1997 CriLJ 2599 (AP), Mohana Nair v/s. CBI ACB and Ors., Criminal Writ Petition No. 727 of 2012 (Bombay High Court) and in CBI, Hyderabad v. K. Narayana Rao, Criminal Appeal No. 1460 of 2012 (Supreme Court). However, in the absence of a clear provision of the law mandating that a public servant will face punishment if he/she tries to unlawfully arraign an Advocate on the basis of offences allegedly committed by his/her client or that there must be a preliminary inquiry when a private party seeks to arraign an Advocate representing a party opposed to the complainant, no Advocate may be able to defend a client or even do so much as render an opinion without facing the prospect of wrongful arraignment by overzealous investigating agencies whose personnel enjoy the status and statutory protection of being public servants or wrongful arraignment by unscrupulous litigants. It is this imbalance that is sought to be addressed by the Advocates (Protection) Bill drafted and proposed by the author for the consideration of the Hon’ble Parliament wherein certain amendments to the law governing Advocates as a profession are proposed. The proposed amendments are summarized as follows:

i. to the Advocates Act, 1961 – provision of a new Chapter V-A providing for protection of action taken in due conduct of duties and sanction for prosecution of advocates in respect of matters related to conduct of duties by advocates. I have included in the draft Bill the provision of a Professional Monitoring Committee with the powers of a Court for ensuring due compliance with the need for upholding the confidentiality of professional communication;

ii. to the Indian Penal Code, 1860 – adding of Section 353A providing for punishment for coercion, assault or criminal force to deter a legal practitioner from discharge of his duty and of Section 353B providing for punishment for willful violation by a public servant of provisions of the proposed Chapter V-A of the Advocates Act, 1961 (25 of 1961);

iii.  to the Indian Evidence Act, 1872 – adding of Section 126A creating presumption as to coercion in case of a public servant obtaining privileged communication from a legal practitioner and of 126B creating presumption as to malice in case of a public servant obtaining privileged communication from a legal practitioner;

iv. to the Code of Criminal Procedure, 1973 – providing for making proposed Section 353A to be added to the Indian Penal Code, 1860 cognizable and non-bailable and proposed Section 353B to be added to the Indian Penal Code, 1860 non-cognizable and non-bailable.

The proposed amendment is necessary in the interest of maintaining the impartiality of the system of administration of justice. If Advocates are left open to overzealous and sometimes unscrupulous attacks on their duties by investigative agencies, the whole process of administration of justice is bound to fail. Although such incidents are very few, the very fact that there ever was a single such incident cries out for the need for adequate statutory protection for Advocates.

Citizens of an enlightened nation guided by a Constitution which is the result of the toil and wisdom of many an enlightened mind cannot write off its life-blood, fairness by allowing those who struggle to maintain fairness to be vulnerable to wrongful attacks. Advocates, the defenders of human rights and the conscience of the Constitution, cannot be left statutorily unprotected. The Advocates Act was passed in 1961 when perhaps Advocates were not indiscriminately arraigned or roped into manufactured complaints. The situation has changed ever since and this calls for a legal amendment to answer the challenges posed by the changing necessities of today. The Advocates (Protection) Bill is proposed in this context and is a necessity to maintain the impartiality and honesty expected of Advocates, on the same reasoning and logic that a public servant deserves statutory protection in respect of the performance of his/her duties. The Rule of Law and fairness in democracy rest preciously on the impartiality of the system of administration of justice. It cannot be left open to be plundered by unlawful attacks, because that would imply a dismantling of the structure of a free and fair democracy which cannot be allowed by our collective omission in a country which prides itself on its collective wisdom.

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