Assignment 02

Question: Right to Practice- a right and privilege

Answer:
1. Introduction :

According to the Section 29 to 34 of the Advocate Act, 1961, Practice of

Advocates is a right. Section 29 of the Advocate Act, 1961, lays down provisions that "the
Advocates are the only recognized class of persons entitled to practice law". It may be noted
that under this section, only one category of person, the Advocates, are authorized to practice,
subject to the Provisions of this Act. In D.A.S. Swami Vs. Kulbendran AIR 1967 it has been
held that a person who is not an Advocate on the roll of High Court, has no right to represent
the accused

2. Right to Practice :

A) Advocates to be the only recognized class of persons entitled to Practice law

(Section.29)

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.

B) Right of Advocates to practice (Article 30)

Subject to 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
—

(i) in all Courts including the Supreme Court;

(ii) before any tribunal or person legally authorized 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 practice..

C) Advocates alone entitled to practice (Section 33)

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.

3.Conditions for Right to Practice

Bar Council of India has framed rules accordingly and Chapter III of the Bar
council of India rules regarding conditions for right to practice provides as follows :

1) Every Advocate shall be under an obligation to see that his name appears in the roll
of State Council within whose jurisdiction he ordinarily practices:

Provided that if an advocate does not apply for transfer of his name to the roll of the State Bar
Council within whose jurisdiction he is ordinarily practicing within 6 months of the start of the
practice, it shall be deemed that he is guilty of professional misconduct within the meaning
of section 35 of the Advocate Act.

2) An advocate shall not enter into a partnership of any other arrangement for sharing
remuneration with any person or legal practitioner who is not an advocate.

3) Every advocate shall keep informed the bar council on the roll of which his name
stands, of every change of his address.

4) The Council or a State Council can call upon an advocate to furnish the name of the
state council on the role of which his name is entered, and call for other particulars.

5) i) An Advocate who voluntarily suspends his practice for any reason whatsoever
shall intimate by registered post to the State Bar Council on the rolls of which his name is
entered, of such suspension together with his certificate of enrollment in original.

ii) Whenever any such advocate who has suspended his practice desires to resume
his practice shall apply to the Secretary of the State Bar Council for resumption of practice
along with an affidavit damping stating whether he has incurred any of the disqualifications
under Section 24A, Chapter III of the Act during the period of suspension.

iii) The Enrollment Committee of State Bar Council may order with the resumption of his
practice and return the certificate to him with necessary endorsement. If the enrollment
committee is of the view that the Advocate has incurred any of the disqualifications the
committee shall refer the matter under proviso to Section 26(1) of the Act.

iv) On Suspension and resumption of his practice the Secretary shall act in terms of
rule 24 of part IX.

6) i) An advocate whose name has been removed by order of the Supreme Court or
a High Court or Bar Council as the case may be, shall not be entitled to practice the profession
of law either before the court or before the authorities mentioned under Section 30 of the Act,
or in Chambers or otherwise.

ii) An advocate who is under suspension shall be under the same disability one in
which he held office.

7) An officer after his retirement or otherwise ceasing to be in service shall not

practice for a period of 2 years in the area in which he exercised jurisdiction for a period of 3
years before his retirement or otherwise ceasing to be in service.

8) No Advocate shall be entitled to practice if in the opinion of the Council he is

suffering from such contagious disease as makes the practice of law hazard to the health of
others. The disqualification shall last for such period as the Council directs from time to time.

4. Advocate Alone entitled to practice

Section 33 of Advocates Act, 1961 provide 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 practice in any court or before any authority or person unless he is enrolled
as an advocate under this Act. it means advocates alone are entitled to practice in a Court or
in any Authority.
5. Case Law -

Hari Shankar Rastogi vs. Girdhari Sharma AIR 1978 SC 1019 In this the Case Supreme
court has held that a private person who is not an advocate , has no right to barge into Court
and claim to argue for a party.

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.