Rights and Duties of Advocates under the Advocates Act, 1961

30 June, 2023

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The Advocates Act was enacted in 1961 and applies to the whole of India. This Act was introduced “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.” The primary aim of the Advocates Act, 1961, is to constitute a single class of legal practitioners, ‘Advocates’ as well as to introduce the powers of the Bar Council of India and the State Bar Council. According to this Act, only Advocates, who are enrolled in the Bar Council, have the power to practice the law in the court. Through this, it can be demonstrated that an advocate registered under the Bar Council is free to practice in the Supreme Court, High Court, any other judicial court, quasi-judicial courts, or before an individual or group, legally authorized to take documentary or oral evidence. The Act also defines that an advocate who has registered in one State Council cannot enroll in another State Council at the same time. Despite this, an Advocate can transfer from one State Council to another. It is clearly noticeable that every individual has their own rights and duties delivered by the state whereas a right is an entitlement and a duty is an obligation. Similarly, the Advocates Act of 1961, provides certain rights (entitlement) and duties (obligations) of an advocate. These duties and rights are to be fulfilled by the Advocates for a better Bar-Bench relationship. In this article, a brief regarding the entitlements and obligations of an advocate under the Advocates Act of 1961 is discussed.

Rights of Advocates

In India, Advocates possess various rights which are protected and provided under the Advocates Act, some of them are listed as follows:

Advocate’s Right to Practice: It is an exclusive right given to the advocates enrolled in the Bar Council of India that allow them to practice in any court all over India. As per Article 19(1)(g) of the Indian Constitution, all citizens have the right “to practice any profession, or to carry on any occupation, trade or business;” therefore, an advocate has full right to practice in any court.
Advocate’s Right to Enter Any Court and Observe the proceedings: It is the right of an Advocate to enter into any courtroom either of the Supreme Court, High Court, or any other Court to observe any live proceedings under Section 30 of the Advocates Act, 1961.
Advocate’s Right to Freedom of Speech and Expression: As Article 19(1)(a) of the Indian constitution enables every citizen the right to freedom of speech and expression, Advocates also have this right even in a court of law. While arguing in litigation, an Advocate cannot be stopped or prohibited from presenting his point of view until or unless he/she violates the rules and regulations of the court of law.
Advocate’s Right to Meet with Accused: It is the right of an advocate to meet with the accused even if he/she is in jail. These meetings help the advocate to gain sufficient information related to the facts and evidence that further help him for fighting the case in Court. Despite the fact that time for the meeting is limited, Advocates have the right to meet the client every day in jail.
Advocate’s Right to Take the Fee: Every advocate has the right to take a fee from a client if they give any service to them. It is clearly mentioned in Rule 11 of Chapter 2 of Part VI of the Bar Council of India that an advocate has the ability to take fees from his client.
Advocate’s Right Against Arrest: As per Section 135 of C.P.C. (Civil Procedure Code), “No Judge, Magistrate or other judicial officers [Advocate] shall be liable to arrest under civil process while going to, presiding in, or returning from, his Court.”
Advocate’s Right to Refuse for a Case: This right allows the advocates to refuse to take a case that they feel deals with illegal things.
Advocate’s Right to Secure the Privacy of Communication: This right of the Advocate is provided under Section 129 of the Indian Evidence Act of 1872 which states that an advocate has the right to protect or secure the privacy of the communication with his client. Along with this, this Section also illustrates that no one can threaten an advocate to disclose the information collected via tête-à-tête. In short, it can be demonstrated that the advocate himself is not liable to share information with anybody regarding the conversation between him and his client as well as no third person can threaten him to disclose the same.

Duties of Advocates against the Court

It is the duty of an Advocate to refuse to perform any kind of illegal work to win the case while representing the client in the Courtroom.
It is the duty of an Advocate to not act in a way that breaks the rules and regulations of the Court and disrespects the court as well as the judges in the courtroom for hearing the case.
It is the duty of an Advocate to appear in the Court well-dressed as per the dress code defined by the Bar Council of India while representing the case.
It is the duty of an Advocate to wear Gowns or Bands only in the court and not in public places except while attending the ceremonial function by the BCI.
It is the duty of an Advocate to refuse to fight a case where the judge is in any kind of relation (either blood or any other) with the advocate.
It is the duty of an Advocate not to perform any unethical practice such as communicating with the judge regarding the Case pending before the Court.

Conclusion

Advocates are an important part of the judicial mechanism along with the judiciary. The Rights given to Advocate make sure that they have smooth operation and the duties ensure that there is no conflict between Bar and Bench. So it is important for Advocates to exercise their rights and perform their duties in a righteous manner to ensure harmonious existence between the Judiciary and Advocates. According to Gray’s theory of jurisprudence, A legal right is: “that power which the man has, to make a person or persons to do or restrains from doing a certain act or acts so far as the power arises from society imposing a legal duty upon the person or persons.”