Examining the Advocate’s Legal Right to Practice

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Introduction

In the legal profession, the right to practice law is an important right that grants advocates the authority to represent clients in legal matters. This right also allows the advocates to contribute to the administration of justice. The right to practice is only enjoyed by advocates who are enrolled under the Bar Council as per the Advocates Act, 1961. This Act was enacted in 1961 with the aim “to amend and consolidate the law relating to legal practitioners and to provide for the constitution of the Bar Councils and an All-India Bar.” There are multiple rights and duties of Advocates but the Right to Practice is the most prominent. According to Article 19(1)(g) of the Constitution of India, “All citizens shall have the right to practice any profession, or to carry on any occupation, trade or business,” therefore, any person, entitled as an Advocate, in the realm of law has full right to practice in the Supreme Court, High Courts, other judicial courts, quasi-judicial courts or before any individual or group. In this article, we will discuss the Advocates' right to practice law along with certain privileges enjoyed by Advocates.

Right to Practice Law 

In the Advocates Act of 1961, the provisions related to the right to practice are mentioned under Chapter IV which are illustrated as follows:

Section 29: Advocates to be the only recognized class of persons entitled to practice law

According to Section 29 of the Advocates Act, 1961, Advocates (enrolled in the Bar Council of India) are the only recognized class of persons with the power to practice the law in the court. It states “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 practice the profession of law, namely, advocates.” This Section makes the advocate’s right to practice an exclusive right permitting only the advocates to practice law than any other person.

Section 30: Right of Advocates to practice

Every advocate whose name is entered in the registers of State Bar Councils should be entitled to the right to practice before any court of India such as the Supreme Court, High Courts, and Tribunal Courts. Section 30 of the Advocates Act states 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 practice throughout the territories to which this Act extends-

• in all courts including the Supreme Court;
• before any tribunal or person legally authorized to take evidence; and
• before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.”

Section 32: Power of court to permit appearances in particular cases

It states that “Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.” In short, this provision of the Act gives authority to any court, authority, or person to permit the appearance of any person who is not enrolled as an Advocate to appear before them in any specific case. 

Section 33: Advocate alone entitled to practice

As per Section 33 of the Advocates Act, 1961, “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 practice in any court or before any authority or person unless he is enrolled as an advocate under this Act.” It means that no person other than an advocate, who is enrolled under this Act, is entitled to practice in any court or before any authority or person.  

Section 34: Power of High Courts to make rules

This Section allows the High Court to make rules laying down the conditions subject to which an advocate should be permitted to practice in the HC and the subordinate courts. Moreover as per Section 34(1A) of the Advocates Act, 1961, “The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary's advocate upon all proceedings in the High Court or in any Court subordinate thereto.” 

In case, a person practices in any court or before any authority or person, whom he/she is not entitled to practice under the provisions of the Advocates Act then as per Section 45 of the Act, he/she should be punished with imprisonment for a term extending to 6 months.

Privileges

Certain privileges enjoyed by advocates are mentioned below:

• An advocate has the privilege of exemption from civil arrest. It means an advocate cannot be arrested in case of civil matters while going to the court or returning from the court and during the proceedings of the court. The same is not applicable in case of arrest for criminal offences and contempt of court.
• In case an advocate does any negligence then no action is taken against him/her. 
• An exclusive privilege to represent the client in a particular case is given to the advocate if the client signs Vakalatnama.
• An advocate has the privilege to review Parliamentary bills for remuneration. It means advocates can also suggest amendments concerning a particular bill.

Related Case Laws

• O.N. Mohindroo vs. Bar Council of Delhi (January 08, 1968)
• Harishankar Rastogi vs. Girdhari Sharma (March 13, 1979)
• Pratap Chandra Mehta vs. State Bar Council of M.P.& Ors. (August 09, 2011)
• Mahipal Singh Rana, Advocate vs. State of Uttar Pradesh (July 05, 2016)

Conclusion

The Advocates Act of 1961, provides various rights to advocates to ensure the smooth functioning of the legal system thus promoting a harmonious balance within the law realm. Among different rights, the Advocate’s right to practice is the most important as it allows the advocate alone to practice the law before the court or any other authority or person. Despite the privileges and rights entitled to advocates, if they misuse their power then they are liable to punishment which is also illustrated under the provisions of this Act. Therefore, to administer justice in society, advocates should appropriately use their rights.