Aunslf as

Aunslf as
Badaun with a
ffences under knife. After
vas section 307 IPC iinvestigation
nvestigatlon for

sentenced for three and section

25
he wa
he was
prosecuted

Act
and
he

raudulent letter said years

imprisonment. But he t.
A ofof the
he
the ms

remained
free on a

to have come re
onviction. The II Additlonal from the
spending
ending
the

complaint containing these District and Sessionsgove ge,

Judge
Badaun
sent a

The
facts to the of U.P.

disciplinary committee of U.P Bar CouncllChairman,

dirman, Bar
Bar from practicing for
to
ouncil

Couacticing
a period of two years. The debarred him of India
advocate appealed to the Bar
Bar
Council

wnich set aside the order of the Bar Council of U.P. The imat
appena
All Khan complained against the advocate and prayed for fresh in In

the said proceedings, the advocate appeared and filed nis return
of U.P
statement but thereafter he did not appear. Hence, the Bar Coune
o
committee
proceeded ex-parte against him and the disciplinary e
years.
state Bar Council of U.P debarred for a
period of three
aside
had set
Bar Council of India and it
advocate again appealed to the Court. The
to the Supreme
Then Himat Ali filed appeal should be
the punishment. that his n a m e
conduct was such
held that his of an
Supreme Court was found guilty
advocates as he
rule of
removed from the state for it and as
he w a s
convicted
murder and
commit
attempting
to
offence
profession.
remaining
in the
unworthy of
ADVOCATES:
PRIVILEGES
OF
AND
RIGHTS
IV
R i g h t o f A d v o c a t e s :

lawyer
conferred to a
important
of right
most
The which has
Practice:
plethora of c o n d i t i o n s
to are a
1. Right
there
but
p r a c t i c e . This
is
This is
to practice rcise his right
right to practice.
to
his/her
right
lawyerto
exercis
his
the
is
for allowing been
a
codifiedand placed in
fulfilled
that ha has
to be lawyers. This
code of conduct of
a d v o c a t e s

of
right d u t i e s and
t h e onlyy with the
are
1961 to a s
to of people who
e t of
set
Act, erred conferred
been and
A d v o c a t e s

has friends
friends
right and thers.
othe Earlier
Earlier ev
e ve
enn

exclusive represent
demand
of
an to due to
is qualified facts but
but
o
onn
to be accused

deemed an
r e p r e s e n t

could
family
nification of bar, section 29 was
incorporated whereby there will be only
ane
recognized class or
persons entitled to
3 practice the profession of law
i.e the
advocates._Advocates have been conferred
rights to practice not
only in all courts including the
Supreme Court but also before any
nerson legally tribunal
ar
authorized-te-take-evidence
and also before any other
authority or person berore whom such advocate is
by or under any law for
the time being in force entitled to
practice." Section 30° lays down the
right in clear words and Section 33° that is
worded negatively to exclude
everyone other than an advocate from practicing.
nora)
As a rule, a person who is not an advocate roll of
on a high court can not
represent accused but there are situations where the courts have used
their discretion to allow a power of attorney holder to plead on behalf of
the parties. However it is imperative to mention here that an advocate
does not include a person in whose favour a power of attorney has been
executed to take proceedings in court as he cannot be placed in the

has been given a vakalatnama."

position of an advocate, who
there
lawyer to practice is not an absolute right
as
However, the right of a
Section 34° of the Act
are a number of fetters placed upon the same.
 empowers
empowen
high court to
which an
advocate will be make rules prescribing litions subject to

courts below. permitted to practice in the

cond and the
Hence,
to the rules made an
advocate's right to the High
Hign *in Court

courts issubject
by High practice in a
Court.
One thing to be noted in this into
regard is that Section 30 the provisions of
come

as not

operation as yet. Section na

1(3) of the Act
the Act will come into effect from thesuggests that
day notified by the Central
icial
GOvernment and since no such date has been notified in the
wa
position
Gazette, the Act has not come into full force. This
V.
KE"*

Substantiated by the Supreme Court in the case of Altmeish ourt

Union of India, AIR 1988 sc 1768 at 1771,
wherein the Apex o
to a
facto entitled
advocate is not ipso
neld that a person enrolled as an This also
brought into force.
section is first
right of audience unless this an absolute
confer
does not
that Section 30, in its present form,
means
provisions of
the Act.
other
but is subject to
right to practice
advocates has
instances where this right of
been several Kaur v. State
of
There have in case of J a s w a n t
instance
Courts for and
by the full Bench of Punjab
upheld 221,
where a
1977 P&H Ceilings on
AIR under Haryana
Haryana,
that the provisions
Court held before any authority
High cate from appearing
Haryana
an
advocate
1
Act
prohibiting

were
unconstitutional in light of the
Holdings
has not been
e x c e p t F i n a n c i a l C o m m i s s i o n e r ,

Council's Act,
ACt,
even
even though Section 30
tnough
the Bar
14 of
Section
brought into effect.

has been
instances wherein the right
have
h ave been enough
been en
cases
in this
here
th ere
of the most important
One
One
AIR 1977
1977 SC
However,

easons.
AIR
r e a s o n s .

other
for
T r u s t v.
Trust Their Workmen,
Workmen,
restricted
Port
of
Paradip forbids parties
is that Industrial Disputes Act that
the
regard
Section
36(4) of the except
with
h e r e sented by a lawyer
vyer
represe etc.
to be tribunal
tribunal
dispute court,
ourt,
industrial ission of the labour
permission
be
and not
to parties would
other
Advocate's
Act
consent
of
Section
Section 30 of the
30
that
held
court
The
analicable in this case as Industrial Disputes Act is legislation with avowed

biect of labour welfare and representation before adjudicatory

asthorities has been specially provided. It was also held that a special Act
wOuld override the provisions of Advocate's Act which is a general law.

There are a number of other restrictions placed upon the right to practice

of a lawyer as they do not have a right to represent others in

departmental enquiries. It is also to be noted that the Section does not

confer any right on the litigant to be represented by the lawyer but only

on a lawyer to practice.

Once a lawyer has been engaged in a case, his right continues to be in

existence unless and until it is terminated by writing signed by him or his
client with the leave of the court; it will also come to an end with the
termination of the proceedings or with the death of the lawyer or that of

the client.

It is however to be noted here that the right to practice the profession of

law is a statutory right and not a fundamental rightj. 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.

rtefh'o
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 hecessity

in certain cases and we need to reply upon the wisdom of the courts to

Basudeb Dutta v. State of WB, (1981) II Cal HN S6.

10
Penalty for persons illegally practicing in courts and before other authorities. Any person who practisesthe
in
any court or before any authority or person, in or before whom he is not entitled to practise under
montns.
provisions of this Act, shall be punishable with imprisonment for a term which may extend to six
 the
take the
right
case of decision in
he case
T.K this
ready toto d
Kodandaram regard. This
brother to defend the case, the v. E. Manohar position was was substantiated by
powers underrepresent him. wher
where was
court no lawyer
this However,
Section have
decidedto allow
it is to allow petitioner's to the
special be kept mind that the
circumstances and they
been given to the court jrts and tribunals
for
Another ought to be
important exercised )ujudiciously
power of High aspect that is needed the
Court to to
be
advocates. However, it make rules cons idered
has been
regarding right to
Conditions subject to specified that the words laying the
which an advocate shall be permitted ctice'
under Section 34 must be given a tP
restricted meaning or Pe
physical appearance of the advocate
and not his general right to ctice.
2. 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
losing of the case and in either case the client will have to pay
winning or
has no legal remedy if his/her fee is not paid, but he
up the fee. A lawyer
in accordance with the bargain
client is willing to pay
accepts what the
can reruse O appear before the court. The
such cases advOcate
but in
to walve this rignt and take up a case without
also a right
advocate has
fee at all.
charging any
c c o u n t here is that be
t o be
account
into a
he taken into is that an
an advocate can
Another aspect to of
derault or
he makes is found quilty
when
aareed fees
denied dgreed fees where the case has
duct but he
cannot be deprived o
reasons d n d
ie advocate has done s o m e work
ithdrawn for policy
een
case".
particular
that
in
124.
U (Cr) 261.
Mad 1 9 8 9 MP
1985 AIR
1 S h a r m a
v.
State ofMP,
huu
 To Lien Over Client's Papers:
To
Lier
R i g h t
Lawyers
3
independence
ned independ
indep
a t t a i n e
different High Courts in India had
India
B e f o r e
adopteddiferent vie
iews regarding the question whether an advocate hasa
over the

tion files kept with him. In P. Krishnamachariar vs.

litigation
lien ov cianee o
Assignee
off Madras'3
Madras*",a Division Bench held that an
O f f i c i a l
The not have
have s uich
sucic a lien unless there
could
not was an express
advocate
to contrary.
cor
A Full Bench of the Patna High Court in In re
agreement
to the
the view that an advocate could not claim
Advocate',
held a right
B.N.
copy or the judgment obtained by him the
the certified
on
retain
was to De riled against it. The Bench further said
nremice that an appeal
instructed him to do so it is open to him
the client had specifically
that if
to keep it.
After independence the position would have continued until the enactment
of the Advocates Act 1961 which has repealed a host of enactments
including Indian Bar Council Act. When the new Bar Council of India came
into existence it framed Rules called the Bar Council of India Rule_ as
empowered by the Advocates Act. Such Rules contain provision
Speciticaly prohibiting an advocate from adjusting the fees payable to him
Dy a client against his own personal liability to the client. As a rule an
Advocate
shall anything whereby he abuses or takes advantage
o pf the
confidence reposed in
Posed in him by his
his client, (vide Rule 24). In this
uoho
okosap contexta reference can
D be
c
e made to Rules 28 and 29 which are extracted
below:
made to 2o Rules
Rule 28. After the
liberty to termination of the
the proceeding,
Or the Advocate shall be
at
appropriate toward
towards the due to him, any sum
remaining settled fee
r a s the
nexpended outt h
of e amount paid or sent
to him for
the amount
13
AIR 1932 Madras 256.
14
AIR 1933 Pat 571.
 ses, or
expenses, or a
any
proceeding. amount that has t h a t
Rule 29.
Rule 29. come into his hands

in
Where his
the
entitled to deduct,
fee has
been Advocate shall be
at the out of left
termination any unsettled,
nsettled, the hands,
fee
payable
of the moneys of the
under the proceeding for whichclient
remaining
rene thenin in
engaged,

his
the
then settled rules of h he
he had beer or b
byy
the Court, in force forna he
or
and the being,
balance,
time
The issue if any,
"Y, shall be
cliene.
was
Shallbe refunded
refundeo to the
Saxena settled by the in
R.DD.
Balram Prasad decision of the su
Court
v. eme
the Supreme Court
declared in the Sharmals where
what is negative. In
holdingythat
that giving of lien
(unlike
allowed to a
giving the right d i s a s t r o u s
Solicitor in
England) WOuld lead to
Consequences in as much as the flow woula impede
Couurt
would be
also noted
that given the of|justice
Justice
wo the
socio-economic conditions
Country, holding such a right of the
susceptible
to
legal
practitioner may e
great abuse and exploitation The Court setting aside the i ical
ODJection that such papers were under an agreement of bailment declared
that it was upon the ordinary process of law that the lawyer sio
ould
recover his dues but not by retaining the files of the client. The Supreme
Court also went on to declare that while it was a professional duty and
moral obligation of the lawyer to return the brief when the client
required
to change counsel but also declared that not
returning the files would be
considered as professional misconduct/on the part of the erring
lawyer.
4 Right to Access to Judge:
One right of the
lawyer is to have
access to the
judge. Though the
of this right has not been defined anywhere, it is scope
right of a lawyer to have access to the Judge in
understood that it is the
urgent judicial
any time during the day Or night and the matters at
of lawyer that has been
judge has to
look into it.
Another right a
considered quite odd
15 AIR 2000 SC 3039. is that
a
 a right
right to fuse to recognize and appear before a presiding
has a
lawyer
at in the prescribed robe of a judge in the court. The legal
not.
who
is
judge,
p r o f e s s i o n s e e m s
to be more comfortable with the idea of allowing a
professi
judge to disallow a lawyer in improper robe but not to this right of lawyers
which it is never
exercised.
result of
as a

Privileges of Advocates:

and priviieges or advocates are similarly worded and

ah the rights
nere
areminor differences between the two
similarly treated, objectiveiy
be said that privileges are granted to a person by a
canceots. It can
for speciriC purpose or being on a certain post, while
higher authority
vested in a person by virtue of his being in a particular position.
rights are

of right to vote that is vested in all citizens of

One simple example is that
attached to the post of an ambassador are
a country, while the privileges
by virtue of that post.

between the two as

In context of lawyers, there is hardly any difference
are derived from his
dutiess
the rights as well as privileges of the lawyers
his duties in the court
and have been granted to him for better conduct of
be and have been
of law and hence, the words rights and privileges can
have been
the lawyers
used ntercnangeably. Some of the privileges of
discussed below.

claim auaiene
One or the most important nrivileaec af an advocate is to
the
from the court of law. In other words, any person who fulfils
it is
of the Bar;
prescribed qualifications of the Bar and becomes memberl a v a n d to claim
his/her privilege to represent his clients in the court of as he is
the audience in courts him as long
and courts have to listen to

acting in accordance with the the court.

decorum of
for
privilege
absolute
It is not be noted that of
the English doctrine
law of
acts and statements of
chglish law
law doc to the
criminal

lawyers
I n not
applicable
to
attend a

defamation in India, however going

to the
court

lawyer
a awyer
l
goi
 while
ter or while

otherthreturning from
ess
other than a
process issued is(exemptnpt)from arres
the court under/civil
court.
fro
t h a t

by such court te
contempt
of

for
Tor
one of
One of the
special things is

privileged
privileg
of the
to
defend his client
about this
profession
ssion is that
the
l a w y e r

is
guilty

crime. till the last he

However, despite
that

this is still
not a
kno of
pite knowin
the
lawyer.

A
lawyer is also personal priv al privileg
life without a n y

entitled to
restrictions or fear and lenter public and po life
of
his

hence
choice. He can contest electionshas the privilege o litica
political

of
C e n t r a l
oor

and become
m e m b e r

a
State legislature as
well.
e i n g o f f e r e d j u d g e s h i p ,

Another privilege that a lawyer has is that of being a

Judge,

which means that he is made eligible for holding an on Attorney

State,
or a
District Government counsel, Advocate General
General or Solicitor General of India.

Governments e n s u r e s
that
In addition to this the
functions
professional
all of their
are able to perform
1. Lawyers or improper
h arassment
harassment
intimidation,
hindrance,
without

interference;
with their clients
freely
consult
travel and to
are able to
2. Lawyers
country and abroad; and
own
within their oor
both De threatened with, prosecution
or
shall not surrer,
3Lawyers
otner anctions for any action taken in
economic or
dministrative,

with
professional duties,
recognized professional
recognized duties, standards and
accordance

the case in India.

which is not
ethics,

1nast important
important
privilege that an
priVlege that an advocate has is that of
least
the
Iast but not nis is to say that a lawyer has the privilege of being
independence. Thi

and
ndent
independent ass
a he stands for
justice and fights for
frank,
fearless

This
miaht
privilege
might not not
be absolute as there are
justice
along. certain
jus
 restrictions
reasonable restrict
hle
on the same but the reality is that the lawyers are

more often than

restricted on one or the other ground from being honest

foarless, one such restriction being the fear of contempt of courtin

fea
others.
addition tothe
RFUn, r u e r Proces
V RECIPROcITY AS PARTNERS IN ADMINISTRATION OF
JUSTICE:

1. A lawyer, as a member or the legal profession, is a representative of

clients, an officer of the legal system and a public citizen having

special responsibility for the quality of justice;
2. As a representative of clients, a lawyer performs various functions. As
advisor, a lawyer provides a client with an informed understanding of
the client's legal rights and obligations and explains their practical
implications. As advocate, a lawyer zealously asserts the client's
position under the rules of the adversary system. As negotiator, a
awyer seeks a result advantageous to the client but consistent with
eguirements of honest dealings with others. As an evaluator, a lawyer
acts by examining a client's legal affairs and reporting about them to
the client or to others;
. Ln adaition to these representational functions, a lawyer may serve as

CLdparty neutral, role helping the

a nonrenresentational parties to
resolve a
dispute or other matter. Some of these Rules apply directly
to lawyers who are Rules 1.12
or a
n have third-party neutrals
served as third-pa
v e served as
and 2.4. In
additioh e r e are Rules that apply to lawyers who are not
active in the
they
practice
of law or
or to practicing lawyers
or
even when
are acting in a nonprofessional prac who
ESSional capacity. For
example, a lawyer
commits fraud in for
the subject to discipline
engagingg conduc
in
u c t of a business is

conduct involving
involving dishonesty, fraud, deceit or

misrepresentation; dis
4. In all
professional funal comnetent. prompt