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. You check the difference between lawyer and advocate in our recent article. 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.
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 (AOA) 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. So let’s start with the rights of an advocate given under the Advocates act 1961.
Table of Contents
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. The Government of India issued a Gazette notification on June 9, 2011, that section 30 of the Advocates act 1961 shall come into force from the date of June 15, 2011.
It was a major step taken by the government to provide the right to an advocate for the practice. After the enforcement of this section, now an Indian advocate can practice in the Supreme Court, high court, other lower courts, quasi-judicial courts, tribunals or before any person who has the legal authority to take the pieces of evidence.
Article 19 (1) (g) of the constitution of India also gives the general protection for the right to practice in court. Article 19 (1) (g) clearly says that “every person has the right to practice any profession, trade or business”.
Praveen Pandey Vs State of Madhya Pradesh
The court held in this case that if an advocate has been restricted from doing his legal work, it will be termed as a violation of his right given under article 19 (1)(g) of the constitution of India.
Right to Pre -audience
Section 23 of the advocate Act 1961 deals with the right to pre audience rule. This rule can be seen as a privilege to an advocate. It is the right of being heard before another is heard. In simple words, the law provides the right to advocate who is upper in the hierarchy system.
The advocate hierarchy system in India is as follow:
- Attorney General
- Solicitor General
- Additional Solicitor General
- Second additional solicitor General
- Advocate general of the state
- Senior advocates
- Other advocates
This is the advocate hierarchy in India. As per the right to pre-audience, the Attorney General will be the first advocate who can represent his case first in the court of law before another advocate.
For example, an attorney general is representing his client in a case where a fresh advocate is representing the opposing party in the case. In this situation, the Attorney General will be heard first.
This rule also gives a wider sense that an advocate has the right to represent his client before the court of law and he has the right to speak before an audience present in the courtroom.
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
These are the circumstances in which the police cannot arrest an advocate in a civil matter.
Right to meet with 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.
Right to secure the privacy of the communication
It is an exclusive right of an advocate given by section 129 of the Indian Evidence Act 1872. According to this section, the advocate has the right to secure the privacy of the communication with his client. The advocate is not liable to tell anybody about the discussion done between him and his client related to the case. Section 129 of the Indian evidence Act 1872 also provides that no person can threaten an advocate to disclose the communication done between him and his client.
Right to take the fee
Rule 11 of chapter 2 of part VI of bar council of India rules enables an advocate to take fees from his client. Any advocate who has done something for his client or gives any service to any client for a person has the right to take a fee from that person.
Right to refuse for a case
It is the right of an advocate that he can refuse to take the case which is dealing with illegal things.
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. So let’s discuss them.
Duties of an advocate towards his client
Bound to accept the briefs
It is the duty of the advocate to know the brief of the case while he is dealing with the case in the court or tribunal or any other legal authority. An advocate must know about the nature of the case and on related and necessary facts of the case.
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 to handle the case without any fear
It is the duty of the advocate to deal with the case of his client without any fear or without any pressure. He should deal with the case fearlessly and the proceedings in the case should be fair.
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.
Loyalty in the case
The Advocate must not have any personal interest in the case. He must represent his client in court without any personal gain.
Duty related to the confidential communication
If a client made any confidential communication with his advocate then it is the duty of the advocate to maintain the confidentiality of that communication between him and his client.
Work only on the instruction of the client
An advocate should take the instructions from his client for any authorized person from his client only. The advocate should not take any instruction from another person who is not in the favour of his client or not authorized by his client.
The fee of the case should not charge on the success of the case
Sometimes the advocates take the percentage for some shares in the property after winning the case which is a bad practice. The advocate should not charge on the success of the case.
Not purchase the property rising from the case
The advocate should not purchase or bid on the property which is the matter in a legal proceeding. However, there is no restriction where an advocate is bidding or buying the property on the behalf of his client.
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.
Not appear in the opposition of his client
It is the duty of an advocate that he should not appear in a case where he has given legal advice to a party and now he is opposing him in the case. In such a case an advocate should quit the case or shift the case to another advocate.
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.
No private communication with the judge
An advocate should not communicate with a judge related to the case which is still pending in the court because it is unethical to practice.
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.
Refuse to appear in the court where the judge in relation
An advocate should not fight the case in a court where the judge is in relation with the advocate. The relationship can be anything whether it’s a blood relationship or any other relation.
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.
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. But if any advocate misuses the powers given by the law, the act also specifies the punishments for the same.