By Palak Jain
Introduction
Over the years, the legal profession in India has evolved into a very diversified and advanced field of profession. It plays a very significant role as not only the advisor of the society but also in maintaining and upholding their rights.
The Advocates act as the caretaker of the society and perform their duty towards the society by dissolving disputes between parties, upholding the rights of individuals, advising the clients, providing legal remedies, and acts as the protector of the grundnorm i.e. the most fundamental or basic part of law, the constitution.
As it’s properly said,
Start with one’s duties and the rights will follow like winter follows spring
Similarly, alongside duties and obligations that are caused upon Advocates towards the Court, his/her clients, his/her colleagues, the general public everywhere, the advocates are likewise qualified for rights.
The Advocates Act, 1961 was enacted to amend and consolidate the law relating to legal practitioners and to provide the constitution of the State Bar Councils and an All India Bar- the Bar Council of India as its pinnacle body.
The act provides provisions for the enrollment and admissions of advocates, their rights, punishments for misconduct, the constituency of bar councils, etc.
Rights of Advocates under the Advocates Act, 1961
In India under the Advocates Act, 1961, only Advocates enrolled in India are entitled to practice and profess the field of law which comprises of various tasks such as drafting of legal documents, appearing and presenting for a client in a court, providing legal advice to a client, etc.
The act also distinguishes Advocates into two broad categories- senior Advocates and Advocates. To document an appearance under the steady gaze of the Supreme Court of India, one should either be an advocate on record or be instructed by an advocate on record.
Part IV (Sections 29 to 34) of the Advocates Act, 1961 provides provisions dealing with rights of an advocate to practice in India.
- Section 29- Advocates as the only class of persons recognized to profess law
Section 29 of the Advocates Act, 1961 provides that -subject to the provisions of the Advocates Act, 1961, and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practice the profession of law i.e. is the Advocates.
The Guwahati High Court, in the case of Nibaran Bora vs. The Union of India[1] held that in a court of law, only advocates are entitled to practice.
- Section 30- Right to Practice
The term right to practice in the lawful calling alludes to a chief right given to Advocates to specialize in legal matters under the watchful eye of courts and tribunals. The right to practice is secured at two levels and they are as per the following:
- General Protection-
The Indian Constitution under Article 19(g) secures the rights of people to practice any profession of their choice within the territory of India.
- Specific Protection
Section 30 under the Advocates Act, 1961, states that an individual enrolled with the State Bar Council has the right to practice before any court or tribunal or authority in India which also includes the Supreme Court. The Central Government has recently made this section effective through a notification in the Official Gazette.
In the case of N.K. Bajpai vs. Union of India & Anr.[2], the court held that the right to practice as an advocate is not only a statutory right under the provisions of Advocates Act, 1961, but also is a fundamental right under Article 19 (g) of the Constitution, subject to reasonable restrictions.
As per the provisions of section 30 of the act, every Advocate is entitled with the right to practice through the entire territory to which this act extends; to practice in all courts including the Supreme Court of India, before any tribunal or person 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.
In Re Lilly Isabel Thomas[3] a Constitution Bench of the Supreme Court and a three-Judge Bench of the Supreme Court in Bar Council of Uttar Pradesh v State of UP[4] held that;
“…the right to practice the profession of law under the 1961, Act is relatable only to the advocates practicing the profession of law before Courts/Tribunals/any other authority.”
- Section 32- Power of the Court to permit appearances in court
According to section 32, notwithstanding any provision that is mention under the chapter IV of the act, any court or authority or person is empowered under this section to call upon any individual before it or him in any particular case even though the concerned person is not an advocate on roll.
In the case of Derby Textiles Ltd. v. Mahamantri, Derby Textiles Karmachari and Shramik Union[5], it was observed that an office bearer of a trade union who was a qualified law graduate was permitted to represent the union and argue its case even though he was not registered as an advocate on roll.
- Section 33- Advocates alone entitled to practice
Section 33 of the Advocates Act, 1961, is self-explanatory, it prescribes that except as otherwise provided in the act, or some other law for the time being in force, no person shall, on or after the appointed day, be qualified for practicing in any Court or before any authority or individual except if he is enlisted as an advocate under this Act. It simply means that only advocates are entitled to practice in a tribunal or before an authority or in a court of law.
In the case of Hari Shankar vs. Girdhari Sharma[6], it was that held a private individual who is not an Advocate, has no privilege to jump into Court and claim to contend for a party. He should get the earlier consent of the Court for which the motion should come from the party itself. It is available to the Court to give or retain consent in its discretion.
Truth be told, the Court may even after giving authorization pull out it partially through if the representative substantiates himself indefensible. The predecessors, the relationship and purposes behind ordering the administrations of the private individual and an assortment of different conditions should be assembled before the grant or refusal of permission.
- Section 34- Power of High Courts to make rules
Section 34(1) of the act, empowers High Courts to lay down rules and conditions subject to which Advocates are permitted to practice in high Courts and the subordinate Courts there under.
Fitting guidelines are needed to be outlined by high Courts under section 34 by clarifying that strike by Advocates would be viewed as obstruction with administration of justice and concerned advocates might be banished from practicing under the watchful eye of courts (Harish Uppal vs. Union of India[7])
Section 34 (1) (s) prescribes high courts to formulate rules for the fixation and regulation in respect of the fees of its adversary’s Advocate upon all the proceedings in the high Court or any subordinate Court thereto through either taxations or otherwise fees payable by cost by any party.
As per section 34(2) Without bias to the arrangements contained in sub-section (1), the High Court at Calcutta may make rules accommodating the holding of the Intermediate and the Final assessments for articled clerks to be passed by the people alluded to in section 58AG to be conceded as advocates on the State roll and some other matter associated therewith.
A designated senior Advocate is not supposed to file restoration application, for dismissal of the petition in default and Vakalatnama by his signature. It is not in consonance with provisions of the 1961 Advocate act and 1975 rules of the bar council of India. He cannot say that since earlier he was a junior council, he has legal right to file a restoration application in his signature along with sworn affidavit of his clerk[8] (Ram Sagar Shukla vs. Uttar Pradesh Textile Printing Corporation Ltd.[9])
Conclusion
The establishment of the Advocates Act, 1961 was the result of changes to the legal profession after Independence. There was a need for a bound-together bar, rules regulating the State Bar Councils, and most essentially, the enactment of an All India Bar, which was all a newly established law.
The Advocates Act is a crude demonstration in referencing the rights of an advocate is an elaborative demonstration managing in different angles corresponding to the legal profession and it is prominent to express that as per Section 29 to 34 of the Advocate Act, 1961; Practicing is a right of Advocates.
Taking into account the above provisions, it is completely clear that no one, aside from an advocate who is enlisted with the State Bar Council, can contend a case under the watchful eye of the Hon’ble Supreme Court, High Court, Tribunal, Appellate Authority, Assessing Authority, or individual.
- AIR 1992 Gau, 54 ↑
- (2012) 4 SCC 653 ↑
- AIR 1964, SC 855 ↑
- 1973) 1 SCC 261 ↑
- (1994) 3 LLJ (Supp) 528 (Rajasthan) ↑
- AIR 1978 SC 1019 ↑
- AIR 2003 SC 739 ↑
- asF8yc15.pdf ↑
- AIR 2004 All 209 ↑