Cracking down on Touts: The Advocates (Amendment) Act, 2023

Introduction

Recently, the Ministry of Law and Justice introduced the Advocates Amendment Bill, 2023, aimed at amending the Advocates Act, 1961 (‘Principal Act’). The Bill promptly passed through both Houses of Parliament and received the President’s assent, officially becoming the Advocates (Amendment) Act, 2023 (‘Amended Act’). This legislation introduced some significant changes in the Principal Act, including the repeal of the Legal Practitioners Act, 1879 (‘1879 Act’). Effective from 08.12.2023, the primary objective of the Amending Act is to weed out touts from the legal system and streamline legal practice in India.

Why Parliament Passed the Amended Act?

The Parliament passed the Amended Act to address certain issues arising from the Principal Act, which was enacted in independent India to establish a unified regulation for the legal profession in Indian courts. While the Principal Act repealed a majority of the 1879 Act, it left out provisions related to its scope, definitions, and powers to formulate and publish lists of touts. These left-out provisions gave rise to difficulties within the legal profession, such as the engagement of touts to secure the services of a legal practitioner in exchange for payment. To remove such difficulties, Parliament enacted the Amended Act, incorporating changes to the Principal Act and repealing the 1879 Act.

Touting is a term that refers to the practice of soliciting or procuring legal services or employment for oneself or others in exchange for remuneration, often persistently and aggressively. It can be viewed as unethical and unprofessional, as it may undermine the integrity and reputation of the legal profession, as well as interfere with the accessibility to justice.

Key Changes

The key points of the Amended Act can be summarised as follows:

1. Introduction of the New Provision in the Principal Act

The Amended Act introduces a new section, s. 45A, which is inserted after s. 45 of the Principal Act. According to s. 45A, High Courts, District Judges, Sessions Judges, District Magistrates, and certain Revenue officers (not below the rank of a district collector) are authorised to frame and publish a list of persons who habitually act as touts. This provision empowers these authorities to identify individuals engaged in the habitual practice of acting as touts in legal matters based on evidence of general repute or other means. A resolution by an association of legal practitioners can serve as evidence of general repute.

The term ‘touts’ is defined in s. 45A of the Amended Act as follows, encompassing a person who-

i) Procures the employment of a legal practitioner in any legal business, receiving remuneration from the legal practitioner.

ii) Proposes to a legal practitioner or anyone interested in legal business to procure the employment of the legal practitioner in such business, with remuneration coming from either of them.

iii) For the purpose of such procurement, frequents the areas around Civil or Criminal Courts, revenue offices, railway stations, landing stages, lodging places, or other public places.

The provision stipulates that no person shall be included in such a list unless he has had an opportunity to show cause against such inclusion. Authorities empowered under this provision can send names of alleged touts to subordinate courts for inquiry, whereby the subordinate courts can conduct inquiries and report names proved to be touts to the ordering authorities.

Further, this section mandates lists of identified touts to be displayed in relevant courts while empowering courts and judges to issue orders to exclude listed persons from court precincts. With regard to penalties, any person who acts as a tout while his name is included in the list of touts shall be punishable with imprisonment, which may extend to three months, or with a fine, which may extend to Rs. 500, or with both.

2. Repeal of the 1879 Act and Amendment of Certain Provisions in the Principal Act:

The Amended Act introduced a new sub-section, s. 50(6), which is inserted after s. 50(5) of the Principal Act. On the date of enforcement of s. 45A of the Amending Act, the following sections of the 1879 Act stand repealed-

       i.  S. 1- Short title

      ii.  S. 3- Interpretation clause

     iii.  S. 36- Power to frame and publish lists of touts.

Analysis

The principal aim of the Amended Act is to streamline and modernize the Indian judicial legal system by eliminating touts from the premises of Indian courts. This action aims to eradicate cases brought fraudulently by touts, ensuring equitable treatment and a fair trial for victims. Furthermore, the Amended Act endeavours to ‘reduce the number of superfluous enactments in the statute book.’ By addressing longstanding issues within the legal system, particularly the exploitation of legal intricacies by touts, this legislative update establishes a comprehensive framework.

Conclusion

In a nutshell, the Amended Act strikes a balance between the needs of the legal profession and legal practice by repealing old laws and amending existing ones. These amendments are expected to enhance the integrity and efficiency of legal practice in India, thereby contributing to a more transparent and accessible legal system. this, in turn, will curb the presence of brokers in Indian courts, ultimately reducing the number of cases and litigations in the Indian judicial system.

Authored by Manmohan Bhola, Advocate at Metalegal Advocates. The views expressed are personal and do not constitute legal opinion.