Rights of an advocate

Vande Matram! In this article, I am discussing the rights and duties of an advocate. These rights and duties of an advocate are in the light of the Bar Council of India rule and the Advocates’ Act, 1961. Let’s begin.

Introduction

A lawyer or attorney is a person who practices law, as an advocate, attorney, attorney at law, barrister, barrister at law, the bar at law, canonist, canon lawyer, civil law notary, counsel, solicitor, legal executive, or public servant preparing, interpreting, and applying the law, but not as a paralegal or charter executive secretary. Prior to the Advocates’ Act 1961, there were deviant classes of legal practitioners under the Legal Practitioners Act. They were Advocates, lawyers, vakils, etc. The Advocates’ Act 1961 has set aside these classes and has allowed only one class of Advocates which is defined as a lawyer enrolled with any advocates roll provided under the Act. The aim of the Advocates Act is to harmonize and constitute one class of legal practitioners called “Advocates” and to determine uniform qualification for admission to the Bar. Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who hire lawyers to perform legal services. The role of the lawyer varies greatly across different legal jurisdictions.

While performing the job lawyer has certain rights and duties which he needs to follow. He has certain rights which he can use and certain duties which he has to follow. A lawyer not only has certain duties for court but also for clients, society, etc.

There are certain rights given for lawyers under THE ADVOCATES’ ACT 1961 under Sections 23, 29, 30, 32, 33, and 34. And the constitution of India also provides the fundamental right under Article19(1)(g) which protects the right of an individual to practice any profession or to carry on any occupation, trade, or business. This act is only for those advocates who are enrolled in India.

Section 23: Right to pre-audience:

(1) The Attorney-General of India shall have pre-audience over all other advocates.

(2) Subject to the provisions of sub-section (1), the Solicitor-General of India shall have pre-audience over all other advocates.

(3) Subject to the provisions of sub-sections (1) and (2), the Additional Solicitor-General of India shall have pre-audience over all other advocates.

(3A) Subject to the provisions of sub-sections (1), (2), and (3), the second Additional Solicitor-General of India shall have pre-audience over all other advocates.

(4) Subject to the provisions of sub-sections (1), (2), (3), and (3A), the Advocate-General of any State shall have pre-audience over all other advocates, and the right of pre-audience among Advocates-General inter se shall be determined by their respective seniority.

(5) Subject as aforesaid— (i) senior advocates shall have pre-audience over other advocates, and

(ii) the right of pre-audience of senior advocates inter se and other advocates inter se shall be determined by their respective seniority.

Section 23 of the Advocates Act provides the right to pre-audience. Right to pre-audience means right to be heard before another is heard. Pre Audience means that an advocate has the right to represent his/her client when he/she wants to speak in front of the audience of the court and cannot be stopped until and unless he disturbs the court decorum. This right is provided to some authorities based on their seniority. It is provided to the Attorney general, solicitor general, additional solicitor general, advocate general, and senior advocates as per their seniority and at last an advocate in various sub-sections and clauses of Section 23 of the Advocates Act as mentioned above.

Further Chapter IV of the Advocates’ Act comprising of Section 29 to 34 is dedicated to the rights of an advocate and it provides the right to practice.

29. Advocates to be the only recognised class of persons entitled to practise law.―Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.

Before enactment of the Advocates’ Act, 1961 the legal profession was governed by the Legal Practitioners’ Act which was having six different practices which are a) Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) Mukhtars, f) Revenue Agents. This system was quite discriminatory and confusing. The aim of the Advocates’ Act, 1961, crafted based on recommendations of the Law Commission of India, was to unite all the legal professionals of India under one category known as “Advocates”. Section 29 provides that all practicing lawyers are to be known as advocates only. And thus the very first goal of the Act is satisfied. As per Section 2(1)(a) of the Act, “advocate” means an advocate entered in any roll under the provisions of this Act. Thus to become a recognized person entitled to practice law means to get enrolled under any roll provided by the Advocates’ Act.

30. Right of advocates to practise.―Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends,―

(i) in all courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.

This section provides that a lawyer entered in any State roll of the nation, constituted under this Act, known to be as an “advocate”, is having a right to practice the legal profession throughout the territories to which this Act extends, in all courts including Supreme Court of India, before any tribunal, judicial authority, and quasi-judicial authority as well as before any person statutorily authorized to take evidence.

32. Power of court to permit appearances in particular cases.―Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.

In general, a non-advocate is allowed to represent his own case only and he is not allowed to represent or appear before the court on behalf of another person. An advocate is required to be engaged to represent the party in the Court. However, as per Section 32 of the Advocates’ Act, 1961 the Court is empowered to permit a private person who is not an advocate to appear before it in a particular case in some special circumstances. Similarly, Supreme Court can permit any person to appear and address the Court in a particular case if it thinks desirable to do so.

33. Advocates alone entitled to practise.―Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act.

An advocate is entered in any roll provided by the Advocates’ Act 1961. No person, other than an advocate, can be entitled to practice before any Court, before any authority, or before any statutorily authorized person to take evidence, if he is not enrolled as an advocate under this Act. Thus only advocates, means law graduates from recognized law colleges by BCI, who entered in any State roll formed by provisions of this Act are allowed to practice the legal profession.

34. Power of High Courts to make rules.―(1) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto.

(1A) The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary's advocate upon all proceedings in the High Court or in any Court subordinate thereto.

(2) Without prejudice to the provisions contained in sub-section (1), the High Court at Calcutta may make rules providing for the holding of the Intermediate and the Final examinations for articled clerks to be passed by the persons referred to in section 58AG for the purpose of being admitted as advocates on the State roll and any other matter connected therewith.

This section empowers the High Courts of various States of India to make rules regarding the right of the practice of an advocate in the respective High Court. Due to provisions of this section High Court can lay down certain conditions to permit an Advocate to practice in the respective High Court as well as subordinate Courts to that High Court.

Also, High Court can make the rules which fix the fees payable as cost by any party in respect of the fees of his adversary’s advocate upon all proceedings in any subordinate Court as well as in the High Court. Such rules are regulated by taxation laws enacted in that jurisdiction.

Also, there is a special provision for the High Court at Calcutta regarding the examinations for articled clerks for purpose of enrollment on the State roll in the purview of Section 58 AG of Advocates’ Act, 1961 amended in 1976.

So these are the rights of an advocate.

Note: Part in Red words is part of Bare Act – Advocates’ Act, 1961.

If you want to know about specific provisions of the Advocates’ Act, 1961 then let me know in the comments below. Also if you want to know about the History of the development of the Advocates' Act then please write #History in the comment section below.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

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