Relevance of the (Lapsed) Advocates Amendments Bill 2019.

Recently BCI through its letter dated 09.05.2019 requested the secretaries of the concerned state bar councils to comment or express a view on the Private Member Bill Titled as the Advocates Amendments Bills 2019 which was introduced in the 16^th Lok Sabha. Though the abovementioned bill lapsed after the dissolution of the Lok Sabha still it is important to discuss the abovementioned bill as it highlights the modus operandi / intention of the Hon’ble legislators towards the profession. The heart of the matter was that the said bill tried to amend the section 24A of the Advocate Act 1961 (hereinafter to be referred as Act of 1961) by including various factors which are to be considered for disqualification for enrollment as an advocate. According to the proposed bill a person should not be admitted as an advocate on a State roll if he/she is convicted on an offence under the provision of the Scheduled Cast and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Untouchability (Offences) Act, 1955 or if he/she has been convicted of contempt of court subject to any order or decision of court and if any person has been dismissed or removed from service or employment under the Union or State or its undertaking or any statutory body or corporation. The said bill also proposed to amend section 26A of the Act of 1961. The proposed bill further empowers state bar council to remove an advocate from state roll if an advocate is found guilty of serious misconduct or is abstaining from courts work or causing an obstruction in court’s functioning or who has incurred any disqualification under the proposed section 24A.  

There is no doubt that as stated in the statement of object and reason of the said bill litigation is a noble and legal profession as such has been placed on a very high pedestal acknowledging advocate legal status and authority to plead on behalf of a person in the court of law. However in a country where there is 1 lawyer for every 1800 people more and more law graduates each year are turning their back on litigation and courtroom practice and opting for corporate jobs. Thus it is clear that those who have preferred litigation have not considered this profession solely to earn a living because there are other fields which are much more lucrative. Thus the role of lawyers as an officer of the court becomes more vital for the society like India for the proper administration of justice because there are only 1.3 million lawyers in India till 2011.

In my opinion, the proposed bill instead of uplifting the legal profession was, in fact, trying to curb the freedom/ confidence of lawyers and it might be possible that the proposed amendment could be used to instigate fear especially among young lawyers. The abovementioned proposed bill is demeaning and undervalues the important role played by a lawyer in society. I couldn’t agree more from sub-clause (a) and (c) of clause 1 of proposed section 24 as no one should be admitted as an advocate if he is convicted of an offense involving moral turpitude or contempt of court. The Hon’ble Apex Court in numerous cases has held that a lawyer who is also an officer of the court has certain duties towards the court, clients, and colleagues, therefore, they should uphold the integrity of the profession in order to ensure that justice is secured in a legal manner.

However, sub-clause (b) and (d) are subjective and way too discretionary as these sub-clauses can be used to threaten and instigate fear in the minds of lawyers’ especially young law practitioners. As mentioned in sub-clause (b) a person should not be admitted as an advocate if he is found guilty of Untouchability (offense) Act 1955 (hereinafter to be referred as Act of 1955) and Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (hereinafter to be referred as Act of 1989). It cannot be denied that there are some instances wherein the act of 1989 has been misused. The Hon’ble Apex Court in the case of Dr. Subhash Kaishnath Mahajan vs. State of Maharashtra and Ors. Decided on 20.03.2018 has passed some directions as to curb misuse of the act of 1989. The Hon’ble court in the para 75 of the said judgment has held that At the same time, the said Act cannot be converted into a charter for exploitation or oppression by an unscrupulous person or by police for extraneous reasons against other citizens as has been found on several occasions in decisions referred to above. Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution. This Court must enforce such a guarantee. It is important to mention here that a review petition in the abovementioned case is pending before Hon’ble Apex Court. In recent days we have witnessed series of fake cases have been filed against various distinguished people, therefore, one cannot deny the possibility that any person whomsoever he may be can misuse the provisions of the act of 1989 against a lawyer. Thus without proper safeguards the said provisions can be misused against a lawyer will certainly threaten proper administration of justice and more so it will surely hinder young lawyers career especially those who do not have any resources.

As far as sub-clause (d) is concerned this provision is very wide and vague and violates the fundamental right of a person to practice as an advocate. Earlier the said provision of section 24A debars a person from being an advocate if he is removed or dismissed from employment or office under the state on any charge involving moral turpitude. However, the abovementioned bill covered dismissal not only as state employees but also covers employees under state undertaking or any statutory body or corporation. It is pertinent to mention here that at present section specifically mentions dismissal under moral turpitude whereas the proposed bill is very wide and ambiguous as it fails to mention the ground of dismissal. It is well known that there can be numerous ground for dismissal. The proposed provision is not only ambiguous but also prohibits a person to be admitted as an advocate thus violating his fundamental right to practice any profession as guaranteed by the constitution.   

It really saddens me that those who are responsible for upliftment of the legal profession have ignored/overlooked the everyday issues faced by lawyers especially young legal practitioners. There is a need for some serious reforms so as to attract young law minds who are preferring corporate jobs before litigation. There are many issues which in my opinion are equally important for the upliftment of the legal profession.  

1) Fix monthly stipend:-  Many advocates frustratedly leaves the profession as they were unable to maintain their family because of the lack of monthly stipend. Already many lawyers are facing many problems in their life and instead of taking some action on serious reforms this bill tries to curb the legal profession by putting unnecessary and vague restrictions which can be used to threaten a lawyer. Therefore I strongly believe that some kind of financial assistance should be provided by the Bar or the government so as to attract fresh law graduates.

2) Advocate Protection Act:- It is very surprising that people/public generally failed to notice frequents attacks on lawyers. So far only State of Madhya Pradesh has considered Advocate Protection Act whereas in Rajasthan despite the assurance given by the Hon’ble Deputy Chief Minister no such action has been taken towards this promise. Recently through a letter, an advocate has informed the bar association of Jaipur about the false cases filed against him, therefore, it is apposite to say that an advocate protection act is very much needed. We cannot forget the Howrah incident wherein police use disproportionate force as against the advocates within the precincts of the Howrah District Sadar Court complex. Even the Hon’ble Calcutta High Court termed police action as "unprecedented, crude and barbaric". Thus one cannot deny the fact the Advocate Protection Act is the need of the hour.

3) Banking/Financial Scheme specifically for Lawyers:- Majority of lawyers (especially first-generation lawyer) are unable to avail the benefit of any banking schemes. I firmly believe that the welfare schemes provided by the bar council are inadequate at present, these schemes are provided by the bar council only and the majority of financial institution fails to have specific schemes for lawyers. Thus instead of curbing the growth of the legal profession by this bill, responsible persons should take action towards welfare scheme by banks.

It is important to mention here that through this blog I am not at all questioning the judgment of Mahipal Singh Rana vs State of Uttar Pradesh however it is apposite to say that it is not appropriate to judge the whole legal fraternity based on the action of one man.