By Diksha Sharma
Who is an advocate?
The word Advocate is used for lawyers only but who has completed law degree and qualified to stand in the court. An Advocate is a person who is professional in Law. An Advocate should pass a law degree and get enrolled by Bar Council of India, as recommended under the Advocates Act, 1961. They are the only class of people who can legally practice law.
They give legal advice to their clients. An advocate is a person who speaks, writes or acts in defense of another person, usually in a court of law. He is eligible to put the points of his clients in front of the court.
To become an advocate requires lots of dedication and hard work. The job of an Advocate demands intensive training as he is the one on which some time life and death of an innocent person depends.
Rights of an Advocate
Advocacy is the profession which cannot be compared with other professions like trade, business etc. because it is a part and parcel of judiciary. While any proceeding, an Advocate has to work calmly and with more intelligence.
There are professional ethics which is to be followed by every Advocate. Working as an Advocate means solving an individual’s problem with his legal theories and knowledge.
It is the duty of an Advocate to protect rights of an individual and serve them legally for protection of these fundamental rights. So, it is also a duty of our constitution to protect the rights of Advocates. There are several important rights which are imposed on an Advocate and they must be followed up.
These rights are specified under the section- 23, 30 and 33 of the Advocates Act, 1961.
Section- 23 Right to Pre- Audience
Pre- Audience generally means to be heard before others. It means people of higher ranks will be heard before those who are below them in ranks. It means audience and the judge too have to listen an Advocate till he completes his presentation on behalf of his client.
Section- 30 Right to Practice
Section 30 says:
“Subject to the provisions of this Act, every Advocate shall be entitled as of right to practice throughout the territories to which this Act extends; in all courts including the Supreme Court; before any tribunal or person legally authorized to take evidence; and before any other authority or person before whom such Advocate is by or under any law for the time being in force entitled to practice.”[1].
Earlier, in the case Aeltemesh Rein Vs. Union of India and Others[2] had issues a writ of mandamus to the central government to consider, with in sis method whether Section 30 of the Advocated Act , 1961 should be brought into force or not. The court, however, held that it is the discretion of the central government to bring this into force by issuing the notification in this behalf. In spite of the direction of the Supreme Court, the section has not been brought in force till date and hence advocate cannot practice AS OF RIGHT[3].
Section- 33 Advocates alone entitled to practice
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 practice in any court or before any authority or person unless he is enrolled as an Advocate under this Act[4].
Except these above rights constitution also provides the fundamental right to practice any profession or to carry on any occupation, trade or business under Article19(1)(g).
The activity to be carried on must of course, be legitimate and not anti- social like gambling, trafficking in women. It does not allow any citizen to carry on trade or business in activities should not be violent or should not condemned the conducts of the society.
Enrollment of an Advocate
Every profession has its own special skills, knowledge and training. Each of the professional people has its own identity and its own value. As a graduate, one should enroll himself under certified organizations with respective of their profession.
Professional enrollment means that you are committed to working to high ethical standards with trust and confidence in specific field. It shows that you are committed to integrity and responsibility of public interests. It is just an official confirmation of your professional capability. Doctors, teachers and engineers etc all professional people have to get registered under respective authorized institutions.
Just like lawyers have to enroll themselves under the Bar council of India. Enrollment with the Bar Council ensures that the degree holder has a recognizable title as an Advocate and is required to maintain a standard of conduct and professional manner.
The Bar Council of India also prescribes “Rules of Conduct” to be observed the Advocates in the courts, while interacting with clients and even otherwise. Further, a classified record tends to provide an exact configuration of number of lawyers present in an area[5].
Bar Council of India
According to section- 4 of the Advocates act, 1961 it is a constitutional body which regulates the legal practice and legal education in India. It regulates legal education in universities and law colleges situated all over India as well as it conducts the All India Bar Examination (AIBE) to grant ‘Certificate of Practice‘ to advocates practicing law in India. It set principles for legal education to universities whose degree in law will serve as a qualification for students to enroll themselves as advocates. AIBE (All India Bar examination) is the exam conducted by BCI to examine the capability of a graduated student to practice in the profession of law.
To appear in the exam of AIBE; you have to pass 3 years or 5 years LLB degree from any college recognized by Bar Council of India. This is conducted twice in a year under the guidance of BCI just like syllabus of the exam, date and place of the examination. BCI also set the percentage of marks require passing the examination.
Section- 7 of the Advocates Act 1961 specifies the functions of the BCI which are under a following:
- Laying down professional conduct standards and propriety for Advocates
- Laying down procedures that must be followed by the various disciplinary committees
- Protecting the rights, interests, and privileges of advocates
- Promoting and supporting law reforms
- Dealing with and disposing of any matter that is referred by any of the State Bar Council
- Promoting legal education and laying down legal education standards
- Determining universities whose law degree provides the needed qualification for enrolling as an advocate
- Conducting seminars on legal subjects by renowned jurists and publishing papers and journals of legal interest
- Organizing and providing legal assistance to the poor
- Recognizing foreign law qualifications gained outside India for admission as an advocate
- Managing and investing funds of the BCI
- Providing for electing its members who will manage and administer the Bar Councils
- Organizing and providing legal assistance to the scheduled caste[6]
Section 24 of the Advocates Act, 1961 specifies the qualifications of a person entitled to be enrolled into the Bar and he has to fulfill the following norms to get qualified:
- He must be a citizen of India, although a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practice law in that other country, subject to other restrictions.
- He has completed the age of twenty-one years.
- He has obtained a degree in law of studying three/five years law course from any University in India which is recognized by the Bar Council of India.
- He fulfils such other conditions as may be specified in the rules made the State bar Council under the Chapter.
Can the Bar council remove the name of an Advocate from the roll?
In case of Dr. HANIRAJ Chulani v. Bar Council of Maharashtra and Goa[7], it was held by the Supreme Court that the rule made by the Bar Council restricting the entry of persona already carrying another profession is not admitted and therefore it’s a violation of the Article 19(1)(g), 14 and Article 21 of the Constitution of India[8].
It means State Bar Council has powers to dispose any application if it found that it violates the standards and conduct of the legal profession. No one will be entertained if anyone found guilty of disrespecting or contempt the rule of laws.
Section 25
Explanation: The above stated act says that if the State Bar Council found any application of admission of an Advocate done by misleading or misrepresenting or undue influence by writing to the Bar Council of India that application of admission will directly remove from the roll and that person will also give a chance to be heard for the reasons.
Bar Council and Enrollment Committee can refuse the application with mere discussion and with the grounds that why the application is removed. Immediately after the removal of the application by Bar Council the information regarding that applicant i.e., Name, Address and qualifications etc will be send to the all-State bar Councils with the grounds of refusal.
Section- 26A Power to remove Names from roll
A State Bar Council may remove from the State roll the name of any Advocate who is dead or from whom a request has been received to that effect.
Section- 27 Application once refused not to be entertained by another Bar Council except in certain circumstances.
Where a State Bar Council has refused the application of any person for admission as an Advocate on its roll, no other State Bar Council shall entertain an application for admission of such person as an Advocate on its roll, except with the previous consent in writing of the State Bar Council which refused the application and of the Bar Council of India[9].
The above section means that once an application of admission get refused by the Bar Council of India on written consent of the State Bar Council than it will not be accepted by another State Bar Council. That application will not be entertained by any other state.
Yogendra Prakash Jauhari v. Bar Council of India and Ors.[10], in this case, the petitioner filed an application for enrollment before Bar Council of Punjab & Haryana (BCPH) and also to Bar Council of Delhi (BCD). After enrollment with BCD, the petitioner sought withdrawal of his application to BCPH. The main issue was whether the petitioner could make an application to BCD for enrollment as Advocate even while a similar application made to BCPH was pending. It was held that there was a deliberate misconduct by the petitioner in application filed before BCD and thus, he was guilty of suppression of an “essential” fact. The petition was dismissed and was also held “Candidates must fulfill all requisite conditions for enrolment in services.”
Shivu Yadav v. The Superintendent Police, Chitradurga District and Ors.[11] This case held relevant the fact that right to practice as an advocate under Section 27 of Advocates Acts, 1961 cannot be miss-used by the petitioner and if any misconduct is proved, it is for the State Bar Council to take disciplinary action against the petitioner under Section 35 of the Advocates Act. The learned Advocate has to maintain some discipline in professional life and he cannot unnecessarily indulge himself in unnecessary litigations or should not take personal vengeance which harm social reforms of the society[12].
Both the above cases show that any disrespect or misconduct against the constitutional provisions and the judiciary will not be acceptable on any ground. No one is having right to disappoint the rule of laws for their own benefits. Section- 27 is made to protect and safeguard the society of lawyers against these frauds. This sets an example that if anyone found guilty will not be leaved and will be punished under rule of laws.
Conclusion
Some rules and standards are made to be strictly followed up exclusive of any margin of getting careless. Ethical Standards are the origin of every profession because without these standards every profession is of no use if you cannot follow it mannerly. If a person wants to get respect by his respective profession he must have to follow the rules. No one should challenge the rules and regulations which are made for the safety and respect.
A legal profession plays an important role in administration of the Judiciary. They are the connecting points between the parties and justice. Without lawyers a Judge can never give a satisfactory judgment because lawyer is the first person, who understands the clients. Thus, this is considered to be the most respectful profession for not just providing justice but also legally assisting the people by guiding them about their rights and laws.
- thehindu.com/ ↑
- Aeltemesh Rein Vs. Union of India and Others(AIR 1988 SC 1768) ↑
- lawlex.org ↑
- srdlawnotes.com/ ↑
- lawtimesjournal.in ↑
- .barcouncilofindia.org ↑
- Dr. HANIRAJ Chulani v. Bar Council of Maharashtra and Goa AIR 1996 S.C.1708 ↑
- studymaterial.unipune.ac.in↑
- http://103.25.172.19/bar-council/chapter-3.php ↑
- Yogendra Prakash Jauhari v. Bar Council of India and Ors. 2010 SCC OnLine Del 638 ↑
- Shivu Yadav v. The Superintendent Police, Chitradurga District and Ors. [MANU/KA/7106/2019] ↑
- advocatespedia.com ↑