Rights of an Advocate in India

An advocate has not to engage himself in any other trade or business while carrying on the legal profession. Persons who wish to take up this profession must take their choice. Advocate is deemed to be the responsible person in society.

The provisions relating to rights of advocates have been described under Sections 29, 30, 32, 33 and 34 of Advocates Act, which are as follows:

Section 29 of the Advocates Act, 1961 provides that "subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely advocates."

This section came into operation on 1st June, 1969. Section 29 provides for a unified Bar for the whole of India. This section has been enacted in response to a demand by the legal profession for the unification of the Bar. It may be noted that under this section, only one category of persons, the advocates, are authorised to practise, subject to the provisions of this Act.

In Nibaran Bora v. Union of India, AIR 1992 Gau. 54, the Gauhati High Court has held that only advocates can practise in a court of law. The meaning of the word "practise" is, repeated action, habitual performance, a succession of acts of a similar kind." A person (non advocate) habitually representing the parties in the Court, would amount to practising the profession of law and it would not be violation of the provisions of the Act. In other words, it is absolutely clear that anyone who is not an advocate cannot, as of right, claim to plead for another. Nevertheless, it is open to a person who is a party to the proceeding to get himself represented by a non-advocate in a particular case as provided under Section 32.

It is relevant to mention Section 55 of this Act, which saves the rights of certain legal practitioners such as, pleaders, vakils, attorneys, mukhtars and revenue agents, who shall continue to enjoy the same rights to practise, as if the provisions of Legal Practitioners Act, 1879, were not repealed. The self-explanatory provisions of Section 55 are as follows: -

Notwithstanding anything contained in this Act-

(a) every pleader or vakil practising as such, immediately before the date on which Chapter IV comes into force (hereinafter in this section referred to as the said date). By the virtue of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (Bombay Act, 17 of 1920) or any other law, who does not elect to be, or is not qualified to be enrolled as an advocate, under this Act;

(b) every mukhtar practising as such immediately before the said date by virtue of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), or any other law, who does not elect to be, or is not qualified to be, enrolled as an advocate under this Act;

(c) every revenue agent practising as such immediately before the said date by virtue of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), or any other Law:

shall notwithstanding the repeal by this Act of the relevant provisions of the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (Bombay Act 17 of 1920) or any other law; continue to enjoy the same rights as respects practice in any Court or revenue office or before any authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed or, as the case may be, to which he was subject immediately before the said date and accordingly the relevant provisions of the Acts or law aforesaid, shall have effect in relation to such persons as if they had not been repealed.

Similarly, Section 30 lays down that subject to the provisions of this Act, every advocate whose name is entered in the State Roll shall be entitled as of right to practise throughout the territories to which this Act extends:

(i) in all Courts including the Supreme Court;

(ii) before any Tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force. entitled to practise.

It may, however, be noted that the Advocates Act, 1961, came into existence for over four decades back, but still Section 30 of this Act, is not enforced.

Advocates alone are entitled to practise

Section 33 of the Advocates Act, 1961 is relevant in this context. The self-explanatory provisions of Section 33 provides that "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 practise in any Court or before any authority or person, unless he is enrolled as an advocate under this Act." It means advocates alone are entitled to practise in a Court, Tribunal or any authority.

But Section 32 of this Act emphatically provides that "notwithstanding anything contained in this Chapter (Section 29 to Section 34) any Court, authority or person, may permit any person, not entitled as an advocate under this Act to appear before it or him in any particular case.

In Hari Shankar v. Girdhari Sharma, AIR 1978 SC 1019, the Supreme Court has held that a private person who is not an advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court, for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may, even after grant of permission, withdraw it half way through, if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.

However, in Derby Textiles Ltd. v. Mahamantri, Derby Textiles Karmachari and Shramik Union, (1994) 3 LLJ (Supp) 528 (Rajasthan), it has been held that an office-bearer of a trade union, who is a qualified law graduate but not registered as an advocate, can be permitted to represent the union and argue the case.

However, under Section 34 of the Advocate s Act, 1961, the High Court is empowered to make rules about the conditions under which an advocate shall be permitted to practise in the High Court and subordinate courts.

It may, however, be noted that while Section 15 of the Advocates Act, 1961, empowers both the State Bar Council as well as Bar Council of India to make rules to carry out the purpose of the provisions of Chapter II of the Advocate Act, which is entitled as, "Bar Council". Section 49 empowers the Bar Council of India and not State Bar Councils to make rules for discharging various functions under the Act. The rules framed by the Bar Council of India, are essential for the advocates as the conditions for their right to practise in a Court of law - or before any Tribunal or authority established by law.

Courtesy:- Legal Point Foundation