Advocates act 1961 was formed to amend and consolidate the law, relating to legal practitioners and to provide for the constitution of the Bar councils and All India Bar. It extends to the whole of India. This act came into force in all the states and union territories of the country by the notification of the central government in an official gazette. Certain terms are to be understood before understanding the concept of pre audience defined under the advocates act, 1961. Advocate refers to an advocate entered in any role under the provisions of this act. Roll means a roll of advocates prepared and maintained under this act. And legal practitioner means an advocate or any high court, a pleader or revenue agent. Hence if we draw an analogy all advocates are legal practitioners but all legal practitioners are not advocates. One more important part to notice is that the state here does not include a union territory. Now, let’s discuss the Right to Pre Audience under Advocates Act, 1961.
Right to Pre Audience
In order to understand the right to pre audience, understanding the term pre audience is a pre-requisite. Pre means before, and pre audience means right to be heard before another is heard. The term ‘audience’ in the right of pre-audience implies the full rights of advocates of addressing before the court on all legal and factual issues involved in a case; the advocate is appearing. It 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 on the basis of their seniority. It is provided to the Attorney general, solicitor general, additional solicitor general, advocate general and senior advocates as per their seniority.
Section 23 of the advocates act, 1961 provides for the right to pre audience to the authorities mentioned above.
The Attorney general is the highest law officer in India. Article 76 of the constitution provides for the position of attorney general in India. He is referred to as chief legal advisor to the government. He is the lawyer representing the union government in the Supreme Court of India. President can seek advice from him in any legal matters for clarifications. The tenure of attorney general is not fixed but he should qualify as a supreme court.
The current attorney general of India is K.K. Venugopal.
He is one of the authorities to have the right to pre audience over all other advocates. He can precede over all the advocates. He can hear the proceedings of the court as per section 23(1) of advocates act, 1961.
The Solicitor general is subordinate to the attorney general; he is the second law officer. He performs the same function as attorney general. He assists the attorney general as well. The major difference between the attorney general and solicitor general is that the post of solicitor general is statutory and that of attorney general is constitutional. Another difference is the fact that the tenure of solicitor general is determined and that is 3 years.
He also has the right to pre audience over all other advocates who are subordinate to him under section 23(2) of advocates act, 1961.
The current solicitor general of India is Tushar Mehta.
Additional solicitor general
Additional solicitor general is subordinate to solicitor general; he is there to support solicitor general of India. He is like the other two officers have the right to pre audience owing to his seniority from section 23(3) of the aforementioned act. They are more than one in number. The appointment of the additional solicitor general is in the hands of the solicitor general and hence, Tushar Mehta, the solicitor general appointed 6 new additional solicitor generals and extended the tenure of 5 existing solicitor generals. The newly appointed additional solicitor generals are Balbir Singh, Suryaprakash V. Raju, Rupinder Singh Suri, N. Venkatraman, Jayant K. Sud and Aishwairya bhati. Moreover, the tenure has been extended to 5 additional solicitor general, namely Vikaramjit Banerjee, Aman Lekhi, Madhavi Divan, K.M. Nataraj and Sanjay Jain.
The advocate general is parallel to the attorney general at state. He is the highest law officer of a state. He obtains his authority from art 165 of the constitution. The advice in the legal matters can be sought by the state government from him. He is the lawyer of the state government. There are different advocate generals in each state. In the order of precedence, he is below the additional solicitor general.
He has the authority to pre audience all the advocates below him, and the right of pre audience among advocate generals of different state is determined by their respective seniority. These provisions are provided under section 23(4) of advocates act, 1961.
The last subsection of the act, i.e. 23(5) provides the same right of pre audience to senior advocates. The right amongst themselves is decided on the basis of seniority. As it is noticeable that seniority plays an important role while deciding the right of pre audience, it is because it is deemed that senior advocates have more experience and are in a better position to understand the case before them.
Advocates act, 1961 provides the right to pre audience on the basis of seniority to the authorities. It assumes seniority to be a determinant of the experience and knowledge, so it allows the right of pre audience in the hierarchical structure. The Advocates act provides all the duties, rules, responsibilities and privileges of the advocates. Right to pre audience is one of the important rights available to the advocates.
However, the provision merely confers the right to pre audience but it is not mandatory. The respective lawyer may waive his right of pre audience in favour of another lawyer if he seems it to be appropriate. Moreover, this right only exceeds Indian citizens. The client also has the right to choose a lawyer of his own so he may also refuse to choose him/her as a representing attorney.
Hence, the right to pre audience is a matter of discretion.