Advocates are the pillars of the legal system. A person requires an advocate to reach a legal remedy or file any suit. According to Black Law’s Dictionary, an Advocate is “one who renders legal advice and aid and pleads the cause of another before a court.” He helps his clients by protecting their rights in a court of law. But the question arises whether advocates are also entitled to some rights and privileges? Well, the answer to this question is “yes”. While performing the job of an advocate, he also has certain rights and privileges inferred on him.
The Article contains all the rights and privileges conferred on an advocate.
Table of Contents:
- Rights of Advocates in India
- Right to Pre-audience
- Order of Priority for the Right of pre-audience
- Dissatisfaction among Advocates with Regards to Section 23(5)
- Right to Practice
- General Protection
- Special Protection
- Right to Practice: Not an Absolute Right
- Right to Enter in any Court
- Advocates alone entitled to Practice
- Right of Fees
2. Privileges enjoyed by an Advocate
- Privilege of Exemption from arrest
- Privilege related to Vakalatnama
- Privilege to Review Parliamentary Bills
- Privilege to meet the accused in jail
- Conclusion
RIGHTS OF ADVOCATES IN INDIA
In India, the profession of advocacy is regulated by the Advocates Act, 1961 (hereafter referred to as 1961 Act). The said Act provides for rights as well as duties of an advocate.
- Right to Pre-audience
In general terms, the Right to Pre-audience, means the right to be heard before others.
Under section 23 of the 1961 Act, an advocate is being conferred with the right to be heard first when he/she speaks something before the court of law.
The right establishes his authority by putting him above others who are in the same category as him. Further, advocates also have the right to not to be interrupted before they complete their statement.
Advocates have to represent their clients in the court of law, but the said duty can not be exercised unless the advocate has been conferred with the right to speak till the moment he disturbs the decorum of the court.
Order of Priority for the Right of Pre-audience
Section 23 of the 1961 Act provides a hierarchy in which the right of Pre-audience is to be exercised.
The list is as follows: –
- The Attorney-General of India shall have pre-audience over all other advocates.
- Solicitor-General of India
- Additional Solicitor-General of India
- Second Additional Solicitor-General of India
- Advocate General of any State
- Senior Advocates
- Other Advocates
In the case of Re: Pre-Audience of the Acting Advocate General, a petition was raised by an acting Advocate General before the Bombay High Court to give clear directions on his right of pre-audience in the concerned Court. The Court observed that the rights of Pre-audience of an advocate of the High Court should be determined by their seniority. Further, the Advocate General should have pre-audience over all other advocates. Similarly, the acting Advocate General is also entitled to this right in the same manner.
Dissatisfaction among Advocates with Regards to Section 23(5)
Section 23(5) of the 1961 Act, states as follows: –
Subject as aforesaid–
(i) senior advocates shall have pre-audience over other advocates, and
(ii) the right of pre-audience of senior advocates inter se and other advocates inter se shall be determined by their respective seniority.
Recently, in the case of Indira Jaising v. Supreme Court of India, a writ petition challenging the constitutional validity of section 23(5) of the 1961 Act was filed before the Court. The 3 Judge Bench here referred the case of National Lawyers’ Campaign for Judicial Transparency and Reforms & Anr. v. The BCI & Another, where section 23(5) was earlier challenged to be unconstitutional. The Bench said that the matter needs to be heard in the Court.
After many interventions in the proceedings and solutions proposed for improvements, it was admitted by the Court that designation of the lawyers according to the existing procedure mentioned in the 1961 Act appears to have caused considerable dissatisfaction among a section of the bar.
- Right to Practice
Advocates have an exclusive right to practice law before the courts and tribunals. The said right is protected at two below-mentioned levels: –
General Protection
Indian Constitution under Article 19(1)(g) protects the rights of citizens by providing them with the fundamental right to practise any profession, any occupation, trade or business.
Specific Protection
To represent and defend his client in court, the right to practice is necessary for an advocate to practice his profession. Section 30 of the 1961 Act provides an advocate with the right to practice advocacy in a court of law in India.
It states as follows-
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.
Right to Practice: Not an Absolute Right
The Apex Court in the case of N.K. Bajpai v. Union of India cleared that right to practice can be regulated and is not an absolute right that is free from restriction or without any limitation.
Supreme Court observed “an advocate alone is the person who can practise before the courts, tribunals, authorities and persons. But this right is statutorily regulated by two conditions – one, that a person’s name should be on the State rolls and second, that he should be permitted by the law for the time being in force, to practise before any authority or person. Where the advocate has a right to appear before an authority or a person, that right can be denied by a law that may be framed by the competent legislature.”
- Right to enter in any Court
According to section 30 every advocate whose name is entered in the State roll is entitled to practice. Therefore, an advocate is entitled to enter any court and sit to observe the ongoing proceedings whether he has a case or not.
- Advocates alone entitled to Practice
A person who is enrolled or registered as an advocate is only entitled to practice in the court of law.
Section 33 of the 1961 Act states 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.
Section 32 of the Act however needs to be looked into under which the Court has the power to allow non-advocates to appear before them for a party.
It states 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.”
- Right of Fees
Under Rule 11 of Chapter 2 of part VI of Bar Council of India Rules, entitles an advocate to receive fees.
For representing his clients in the court of law and to handle their matters, an advocate has a right to get reasonable fees.
The Right does not depend on winning or losing the case.
However, the fees which lawyers charge from their client is largely unregulated in India. As per Supreme Court Rules 2013, a lawyer should charge a maximum of Rs. 8000 per hearing. This is not even half of what lawyers usually charge from their clients. Top lawyers in the Supreme Court charge 10 to 20 lakhs for one hearing.
There have been instances where lawyers are seen demanding a certain percentage of the amount received by the client in an accident claim case.
The Supreme Court acknowledged this issue of the large amount of fees charged by the lawyers in the case of Sunitha v. State of Telangana. The Apex Court held that fees of an advocate based on a certain percentage of the amount in litigation is illegal.
PRIVILEGES ENJOYED BY AN ADVOCATE
Privilege is a certain kind of special right or advantage or immunity granted only to a person or a group.
- Privilege of Exemption from arrest
An advocate enjoys exemption from arrest under civil process while going to the court or during the process or while returning from the Court. However, it is to be noted that the said exemption will not apply to arrest for contempt of court or arrests for criminal offences. It is being provided under Section 135 of the Civil Procedure Code, 1908.
- Privilege related to Vakalatnama
When the client signs Vakalatnama in favour of an Advocate, such an Advocate the exclusive privilege to represent his client in that particular case. No other advocate can represent or appear in that case without his consent or permission.
- Privilege to Review Parliamentary Bills
It is a privilege given to advocates that they can review the Parliamentary Bills and can also give suggestions for amendments.
- Privilege to meet the accused in jail
An advocate can visit the jail to meet his client as many times as he wants. No restriction is levied on the number of times he can meet his client in jail.
Conclusion
Advocates play a very important role in the society. It can be observed that the advocates enjoy various rights and privileges. This is done to facilitate them in administering justice in society. Thus, it is necessary that the rights and privileges should not be misused as the same would be liable to for punishment.
