LEGAL ETHICS AND COURT CRAFT
RIGHTS AND PRIVILEGES OF ADVOCATES
“True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint
no pictures – unless as amateurs for our own principal amusement. There is little of all that
we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we
correct mistakes; we take up other men’s burdens and by our efforts we make possible the
peaceful life of men in a peaceful state.”
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– John W. Davis.
Need for rights and privileges of Advocates
The law regulates complex relationships – relationships between people and relationships
between the people and the state. In a society governed by the rule of law, special knowledge and
skills are needed to administer a “subtle and elaborate system” That is why lawyers are essential
to the rule of law. The basic assumption of the rule of law is that the law is truly defined.
The continuing importance of the lawyers’ function as a defender of both personal and economic
rights against arbitrary interference can hardly be exaggerated. In these days of right and left
wing rulership, the stifling of open discussion, and confiscations of both national and foreign
property interests, the protection of the legitimate interests of the individual, and most especially
of his personal liberties as expressed in the minimum requisites of due process, remains one of
the most important and noblest of the lawyers’ functions.
To perform their appointed function, the members of the practising profession must be
knowledgeable in the law and competent in its application. An Advocate is regarded as an officer
of the Court and is a part and parcel of a court. He must always respect and co-operate with the
proceedings of the court. But, at the same time, it is important that he has certain rights and
privileges as an officer of the Court, which help him in an efficient discharge of his services as a
legal professional. Though the rights and privileges of advocates are similarly worded and
similarly treated, objectively there are minor differences between the two concepts. It can be said
that privileges are granted to a person by a higher authority for specific purpose or being on a
certain post, while rights are vested in a person by virtue of his being in a particular position
Rights of an Advocate
A. Right to practice
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This is the only right of advocates that has been codified and placed in the Advocates Act, 1961
with the duties and code of conduct of lawyers. The expression ‘right to practice’, in context of
the legal profession refers to the exclusive right of persons enrolled as advocates to engage in
practice of law before courts and tribunals. In Re. Lily Isabel Thomas1 the Supreme Court
equated “right to practice” with “entitlement to practice”. This right enjoys protection at two
levels:

General protection – Article 19(1)(g) of the Constitution of India protects the right of
individuals to practice professions of their choice. As members of the legal profession,
advocates partake in this right along with members of other trades, occupations and
professions.

Specific Protection – Section 30 of the Advocates Act, 1961 confers on persons whose
name is enrolled in the registers of State Bar Councils the right to practice before any
court or tribunal in Ind ia including the Supreme Court. This section has been recently
made effective through a notification issued by the Central Government.
Section 29, Advocates Act 1961
Section 29 of the Advocates Act makes the right of practice an exclusive right and precludes all
persons other than advocates from practicing law. It reads as,
“Section 29- Advocates to be the only recognized class of persons entitled to practice law:
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.”
Section 29 thus provides for a unified bar for the whole of India. In order to understand the true
effect of Section 29, it should be read along with Section 552 of the Advocates Act which saves
1
1964CriLJ724
55. Rights of certain existing legal practitioners not affected.—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 virtue of the provisions of the Legal Practitioners Act,
1879 (18 of 1879), the Bombay Pleaders Act, 1920 (17 of 1920), or any other law who does not elect to be, or is not
2
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the rights of certain existing legal practitioners, who can continue to practice the profession of
law as such.
Section 30, Advocates Act 1961
Section 30 of the Advocates Act, 1961 confers rights to practice not only in all courts including
the Supreme Court but also before any tribunal or person legally authorized to take evidence and
also 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. It reads as,
“Right of advocates to practice - Subject to 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)
(ii) Before any tribunal or person legally authorised to take evidence; and
(iii)
(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 practice.”
Section 33, Advocates Act 1961
Section 33 of the Advocates Act, 1961 is worded negatively to exclude everyone other than an
advocate from practicing. It reads as,
qualified to be, enrolled as an advocate under this Act; 1[***] 2[(c) every mukhtar practising as such immediately
before the said date by virtue of the provisions of the Legal Practitioners Act, 1879, or any other law, who does not
elect to be, or is not qualified to be, enrolled as an advocate under this Act; (d) 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 other law, continue to enjoy the
same right 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
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“Section 33- Advocates alone entitle to practise. 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.”
Is the right to practice an absolute right?
The right of a lawyer to practice is not an absolute right as there are a number of fetters placed
upon the same. The right of a lawyer to practice is subject to the rules framed by the Supreme
Court under Article 1453. Section 344 of the Act empowers high court to make rules prescribing
conditions subject to which an advocate will be permitted to practice in the High Court and the
courts below. Hence, an advocate’s right to practice in all courts is subject to the rules made by
the Supreme Court and the High Courts.
The Supreme Court has held in Harish Uppal v Union of India5 that the advocates’ right to
appear and conduct cases in Court is not absolute. Further, it was held in Balraj Singh Malik v
Supreme Court6 that the rules framed by the Supreme Court which impose conditions on an
advocate if he wants to plead before the Supreme Court and become an Advocate on Record are
not discriminatory and violative of Article 14 of the Constitution.
3
145. Rules of Court, etc
(1) Subject to the provisions of any law made by Parliament the Supreme Court may from time to time, with the
approval of the President, make rules for regulating generally the practice and procedure of the Court including
(a) rules as to the persons practising before the Court
4
Section 34. Power of High Courts to make rules.
(1) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to
practise in the High Court and the courts subordinate thereto. 1 [(1A) 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. 2 [(2) Without
prejudice to the provisions contained in sub-section (1), the High Court at Calcutta may make rules providing for
the holding of the Intermediate and the Final examinations for articled clerks to be passed by the persons referred to
in Section 58 AG for the purpose of being admitted as advocates on the State roll and any other matter connected
therewith.]
5
6
2003 AIR SCW 43
AIR 2012 Delhi 79
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Is the right to practice a fundamental right?
The Supreme Court has held in the case of Bar Council of India v High Court of Kerela 7 that
the right to practice the profession of law is a statutory right and not a fundamental right. It is
also to be noted that only advocates, who are enrolled as per this Section can practice, while
others not so entitled and illegally practicing are punishable under Section 45 of the Act.
However, in the case of N.K Bajpai v UOI8, the Supreme Court has held that the right to
practice, which is not only a statutory right would also be a fundamental right under Article 19
(1) (g) of the Constitution, which is subject to reasonable restrictions under Article 19 (6).
Section 32, Advocates Act 1961: An exception
Section 32 of the Act provides for an exception to the application of Section 30 and provides for
situations where persons other than advocates enrolled with the Bar can represent others with the
permission of the court. This provision acts as an antithesis to the provision under Section 30 as
the court has been given discretion to allow any person, not an enrolled advocate to practice law.
However, this might be a necessity in certain cases and we need to reply upon the wisdom of the
courts to take the right decision in this regard. This position was substantiated by the case of T.K
Kodandaram v. E. Manohar, 9 where no lawyer was ready to defend the case, the court decided
to allow the petitioner’s brother to represent him. However, it is to be kept in mind that the
powers under this Section have been given to the courts and tribunals for special circumstances
and they ought to be exercised judiciously. Further, in the case of Surendar Raj Jaiswal v Smt.
Vijaya Jaiswal,10 it was held that the right to practice is different from the right of appearance in
a particular case.
7
AIR 2004 SC 2227
AIR 2012 SC 1310
9
1985 Mad LJ (Cr) 124.
10
AIR 2003 AP 317
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B.
Right to Fee
One of the important rights of the advocate is right to fee. An advocate has a right to his fee and
this right is absolute as it does not depend upon winning or losing of the case and in either case
the client will have to pay up the fee.11 However, even here the advocate has to follow a certain
conduct. The legal profession is not a business but profession and therefore in fixing the fees it
should be kept in mind that it is a branch of administration of justice , and not a mere moneymaking trade.
How can this right be enforced?
According to Rule 28 of the Bar Council of India Rules, after the termination of the proceeding,
the Advocate shall be at liberty to appropriate towards the settled fee due to him, any sum
remaining unexpended out of the amount paid or sent to him for expenses, or any amount that
has come into his hands in that proceeding.
Further, according to Rule 29, where the fee has been left unsettled, the advocates shall be
entitles to detail, out of any moneys of the client remaining in his hands, at the termination of the
proceedings for which he had been engaged, the fee payable under the rules of the Court in force
for the time being or as settled, and the balance, if any, shall be returned to the client.
However, the lawyer does not have a right of lien over the litigation files for his fees.
It has been held by the Supreme Court in R.D. Saxena v. Balram Prasad Sharma12 that giving
the right of) would lead to disastrous consequences in as much as the flow of justice would be
impeded. Court also noted that given the socio-economic conditions prevailing in the country,
holding such a right of the legal practitioner may be susceptible to great abuse and exploitation.
11
12
K. Gururaj Chari, Advocacy and Professional Ethics 125 (7th ed. 2000), 138
AIR 2000 SC 3039
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In New India Assurance Co. Ltd v A.K Saxena13, the Supreme Court further emphasized that
the advocate has no lien over the papers of his client, and hence cannot retain the files of his
client on the ground that his fees has not been paid. The advocate has to resort to other legal
remedies for unpaid fee. It has been held that the dispute regarding fees is a lis to be decided in
an appropriate proceeding in the Court.
The advocate has also a right to waive this right and take up a case without charging any fee at
all. Another aspect to be taken into account here is that an advocate can be denied agreed fees
when he makes default or is found guilty of misconduct but he cannot be deprived of agreed fees
where the case has been withdrawn for policy reasons and the advocate has done some work in
that particular case.14
C. Does an advocate have a right to strike?
The Supreme Court has, in the case of Harish Uppal v UOI15, held that the advocate has no
right to go on strike or give call of boycott. The Court will not adjourn cases because lawyers are
on strike. If an advocate holding the Vakalatnama of a client abstains from attending work, he
shall be personally liable to pay the costs, which shall be in addition to the damages which the
client may have suffered on his account. The Court has further held that only in the rarest of rare
cases where the dignity and integrity of the Bar or the Bench are at stake, the Court may ignore a
protest abstention from work, for not more than a day.
D. Does an advocate have the right to access to Judge at any time?
One right of the lawyer is to have access to the judge. As a matter of practice, an advocate cannot
be said to have the right to access to the judge at any time he pleases, and though the scope of
this right has not been defined anywhere, it is understood that it is the right of a lawyer to have
13
AIR 2004 SC 311
Ram Babu Sharma v. State of MP, AIR 1989 MP 261.
15
Supra 5
14
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access to the Judge in urgent judicial matters at any time during the day or night and the judge
has to look into it.16
Privileges of an advocate
Advocates have certain privileges as officers of the court, for eg, even if a litigant conducts his
case without the aid of counsel, he cannot claim a right to be seated in court at an equal status
with all advocates. It was held in the case of P.C Jose v Nandakumar17 that merely on the basis
of equality clause in the Constitution, a litigant conducting his case himself cannot claim right to
be seated in the Court. Further, the Court held that it is immaterial whether or not there exists a
statutory provision conferring this privilege on advocates.
Another privilege that a lawyer has is that of being offered judgeship, which means that he is
made eligible for holding an office of a Judge, District Government counsel, Advocate General
of a State, Attorney General or Solicitor General of India.18
Another important privilege that an advocate has is that of independence. This is to say that a
lawyer has the privilege of being frank, fearless and independent as he stands for justice and
fights for justice along.19 This privilege might not be absolute as there are certain reasonable
restrictions on the same but the reality is that the lawyers are more often than restricted on one or
the other ground from being honest and fearless, one such restriction being the fear of contempt
of court in addition to the others.
Conclusion
The present rights of lawyers are more in nature of paper rights than real rights. As has been
already mentioned, the rights of lawyers are more in nature of duties as they are granted to the
16
Zonal Manager, LIC v. City Munsiff, Meerut ,AIR 1968 All 270.
AIR 1997 Ker 243
18
Zonal Manager, LIC v. City Munsiff, Meerut ,AIR 1968 All 270.
19
Ibid
17
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lawyers so that they can carry out their duties in proper manner. In fact, it has been seen that
lawyers have negligible rights when compared to their duties and even the minimum rights they
have are provided with so many fetters that the term ‘rights’ becomes misnomer for the same.
Effectively, the right of lawyers is more limited than the right to profession guaranteed by the
Constitution. Even the basic right to fees has not been made absolute. Though it is true that the
lawyers have been given a right to negotiate upon their fees but making the right to fee an
optional right has hit the profession very hard. Right to strike has also not been conferred except
for very limited reasons as that would hamper the course of justice. The Act should be more
descriptive in terms of factors which determining fees like time and effort needed skill of lawyer
etc. There should be a demarcation of rights and privileges, with a focus on rights of lawyers
including those of exemption from criminal defamation, limitation on power of courts to take
action for contempt. The right to fee, right to lien, right to access the judge etc. should be
incorporated in the Advocates Act to make the Act more balanced.
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