RIGHTS AND DUTIES OF ADVOCATES
The profession of advocacy had its seed in Europe as well as in the east. Since 12th century, this profession came into existence in England, in the reign of Henry – II. In 1883 bar committee representing the barristers was set up in England for the first time. Before it was known as Benchers. Supreme Court of Calcutta was established and allowed legal practicing according to the Regulating Act, 1773. Later in the year of 1793 the Bengal Regulation Act, 1793 was formed and the main objective of which was to regularise and to control both recruitment and conduct of legal practitioners in the company’s courts. In those days, there were different kinds of legal practitioners i.e., Barristers, Mukhtars, Vakils etc. After 1850, the education in the graduation level was started, Act of 1853 stopped recruitment of pleaders, mukhtars who did not possess graduation, as the number of graduates was sufficient. Thereafter, “The Legal Practitioners Act, 1879” was enacted, which enlarged the rights of advocates, vakils and attorneys of High Courts. In 1923, the British government appointed an Indian Bar Committee. This committee has made several recommendations for the establishment of Indian bar and to remove several defects in legal professions. As a result of the recommendations of Indian Bar Committee, the new act named The Bar Councils Act, 1926 has been passed. But it adopted only some of the recommendations of the committee. It did not establish an all-India Bar Council. It did not extend to entire India. In the same year another act names “The Legal Practitioners Act, 1879” was passed regulating the rights and liabilities of legal practitioners. But yet again this act also had flaws.
After Independence, the Indian Government appointed “All India Bar Committee” in the year of 1953. This committee has observed various suggestions and after thorough examination it has made some recommendations to the Government of India. As a result of the report submitted by “All India Bar Committee” Parliament has passed “The Advocates Act, 1961”. Now Professional ethics is governed by “The Advocates Act, 1961” and “Bar Council of India”. The Act provides for the constitution of Bar Councils and All India Bar for regularization of legal profession, whereas Bar Council of India is an autonomous and independent body. It is a legal person and body corporate. It shall have perpetual succession and a common seal with power to acquire and hold property, both movable and immovable and to contract, and may by the name by which it is known, sue and be sued. Section 7 of the Advocate’s Act, 1961 states the functions of Bar Council of India. The first and foremost function is that it has to lay down the professional conduct and etiquette for advocates throughout India.
MAIN CONTENT:
Lawyers and advocates are the pillars of the Indian judiciary and these are known as the court officers. The advocates are the one who finds the mistakes in the law so that the court can take the process for the interpretation of statute. However, only an advocate has the right to represent his client in a court of law. In this article, we will discuss the rights of an advocate and the duties of advocates by which you will understand how the advocates are confident and ready to take any cases.
Who is a lawyer?
A person who is pursuing or completed the degree of law or who is a law graduate. Any person who has completed the degree of law, whether of 3 year LLB course or 5-year law course, that person is known as a lawyer. But can a lawyer represent his client in the court of law by just having a law degree? The answer is no. A person who has only a law degree doesn’t mean that he is fit to represent his client in bi Court for arguments.
Who is an advocate?
When a lawyer enrols himself with a bar council then he becomes an advocate. It means that when a person represents himself as an advocate it means he has enrolled himself under the bar council. He has the right to represent his clients in Court. Basically, this is the main difference between a lawyer and advocate.
Advocate Act 1961 says that only an advocate has the power to practice the law in the court. It means, any person who did not enrol his name in the bar council, cannot practise as an advocate in the court. Section 2 (a) of the advocates’ act 1961 says that every advocate whose name has been enrolled in the state bar council has the right to practice throughout the territory of India to which the act extends. In simple words, once you have registered your name in the Bar council, you are free to practice in Supreme Court and High court, any other judicial court, quasi-judicial courts or before any person who is legally authorized to take the oral and documentary evidence. Though there are some criteria to practice before the supreme court of India. Only the Advocate on Record (AOR) can file the case in the Supreme Court of India. It is well-known fact that every person has rights and duties given by the state where he lives or does any work, business or job. Similarly, the Advocates Act 1961 provides the rights of an advocate and duties of an advocate as well.
Whenever a person feels that his fundamental rights have been infringed, or there is anything wrong has been done with him, he moved to the court to represent himself in the court for the need of justice. But as you know that, generally, a person cannot fight his case in a court of law, so he needs an advocate for that. The reason behind this, that the advocates’ act 1961 has given rights to the advocate which allow him to deal with the case in more accurate and professional ways.
RIGHTS OF AN ADVOCATE:
The Advocates act 1961 provides and protects the following rights to an advocate in India:
- Right to Practice (Section 30):
The right to practice in the court is the exclusive right that is given to an advocate who is enrolled in the Bar Council of India. Section 30 of the Advocates act provides specific protections for the right of an advocate to practice in any court or tribunal in India if his name is registered in the Bar Council list. Section 30 of the Advocates act 1961 came into force on June 15, 2011. - Right to freedom of speech and expression:
An advocate while arguing in litigation cannot be stopped from speaking unless he violates the terms and rules of the court of law. Article 19 (1) (a) of the constitution of India gives the right to freedom of speech and expression. This fundamental right is available to all the citizens of India. Being an advocate, a person can also enjoy the right to speech and expression even in the court of law. - Right to enter any court and observe the proceedings:
As per section 30 of the Advocates Act 1961, any person who has enrolled in the bar council of India can practice in any Court of law in any tribunal. This section also enables the right of an advocate to enter into any courtroom to observe the proceedings. The point will not affect whether he was connected to that case or not. An advocate has the right to enter the Supreme Court to hear any live proceedings. - Right against arrest:
An advocate is known as the judicial officer of the court. Section 135 of the civil procedure code exempt the advocates from rest under civil case while he is:
• Going to the court
• Presiding his case in the court
• Returning from the court - Right to meet the accused:
When an advocate takes any case in which the accused is in jail, the right to meet the accused person comes into force. As per law, a person is innocent until proven guilty. So, it becomes important for an advocate to understand the case properly by meeting his client even in the jail to discuss all the related facts and evidence of the case which will help an advocate to fight the case in the court of law. An advocate can meet the accused even in jail however the meeting in jail will be limited. It is the right of an advocate to meet his client even every day.
DUTIES OF AN ADVOCATE:
The Advocates Act 1961 also provides some necessary duties against the advocate. The law provides the duties of an advocate towards his client and towards the court which are as follows:
A. DUTIES OF AN ADVOCATE TOWARDS HIS CLIENT: –
- Duty not to withdraw from the case:
An advocate should not withdraw from giving his service to the client once he has agreed to give him that service. An advocate can only withdraw his service if he has a reasonable cause or he has given sufficient notice to his client. Also, when an advocate withdraws his service, he must refund a genuine part of the fees. - Duty of full disclosure to the client:
It is the duty of an advocate to disclose all defects and connections with the parties and any interest which may affect the judgement of the case. - Not suppress evidence or fact:
An advocate who is appearing before the court of law in a criminal case should not suppress any evidence which is important for the judgement. The motive of the advocate should not lead to the conviction of an innocent person. - Not appear in a matter where he is a witness:
An advocate should not plead in a case where he is also a witness. If an advocate sees any case related to him then he should not take that case for pleading. The advocate should retire from that case and let other advocates continue that case. - Misuse of confidential information:
It is the duty of the advocate that he should not misuse the confidential information which he gains from his client. An advocate should not blackmail his client for the confidential information given to him by the client.
B. DUTIES OF AN ADVOCATE AGAINST THE COURT: –
- Respect the court:
It is the duty of an advocate against the court that he should respect the court and judges in the court. He should not do any act which breaks the rules and regulations of the court. - Refused to act in an illegal manner:
An advocate should refuse to do any illegal work while representing his client in court. He should also stop his client from doing any illegal act to win the case. There should not be any illegal practice from the account of an advocate towards the pleadings in the court. - Appear in proper dress code:
The advocate should appear in the proper dress while addressing the court in a case. The bar council of India has defined the dress code for an advocate to represent the case before the court of law. - Not wear gowns or bands in public places:
The advocate should only wear the gown while proceeding in the court. He should not wear the gown and band in public places unless he is in the ceremonial function by the Bar Council of India.
CASE LAWS:
- V.C. Rangadurai vs D. Gopalan:
In this case V. C. Rangadurai was an advocate and Devasenapathy was an old deaf man, aged 70 years and Smt. D. Kamalammal was also aged. They had given two promissory notes to rangadurai and also paid the fees as was asked to the advocate. Nevertheless, the advocate did not file the case in time. The limitation was over. - Aeltemesh Rein Vs. Union of India and Others : had issued a writ of mandamus to the Central Government to consider, with in sis method whether Section 30 of The Advocates 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 on 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.
As every individual has a code of conduct, in the same way advocate also has conduct or duties which are to be performed towards himself, his clients, opponents, colleagues, court etc. it is the duty of the advocate to maintain the decorum of the court and act properly with his opponents or colleagues. He must always act in the best interests of his clients and should not do any kind of act that betrays their trust upon him. All these duties, ethics and morals help an advocate to be in a better position in his career and become a successful lawyer. The Advocates Act 1961 has given many rights of an advocate and also some duties related to his client and court while dealing with the case. The act also protects the advocate from the arrest in a civil case so that justice should be provided to his client while he is representing his client in the court proceedings. The rights of an advocate are to protect justice because advocates are the ones who help the court to serve justice in civil and criminal cases.