MODULE 5

1. ADVOCATES RIGHT TO PRACTICE

In the legal profession, the right to practice law is an important right that grants the
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.
The Advocates 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 field 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.

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

-Section 29 of the Advocates Act, 1961, establishes the exclusive right of advocates to
practice law.
-This section mandates that, subject to the provisions of the, only those individuals
who are enrolled as advocates with the Bar Council of India (BCI) shall be entitled to
practice the profession of law.
-By restricting the practice of law to qualified individuals, this section helps ensure
that legal services are provided by people who have the necessary education,
training, and ethical standards.
-It safeguards the public by ensuring that legal matters are handled by professionals
who are committed to upholding the law and justice.
-This provision helps ensure that clients receive competent and effective legal
representation, regardless of their socioeconomic background.
-By limiting the practice of law to qualified individuals, this section contributes to the
overall integrity and fairness of the legal system.

-To become an advocate, individuals must complete a law degree from a recognized
university, pass the Bar Council examinations, and enroll with the BCI.
-Once enrolled, advocates have the exclusive right to appear before all courts in
India, including the Supreme Court and High Courts.
-Section 29 strictly prohibits any person who is not an enrolled advocate from
practicing law. This means that non-lawyers, such as paralegals or legal consultants,
cannot represent clients in court.
In conclusion, by restricting the practice of law to qualified individuals, section 29 of
the Advocates Act, 1961, helps in protecting the rights of citizens and contributes to a
just and equitable society.

Section 30: Right of advocates to practice

-Section 30 of the Advocates Act, 1961, is a crucial provision that grants advocates
the fundamental right to practice law in India.
-Once an individual becomes an enrolled advocate, by completing the necessary legal
education and passing the Bar Council examinations, they have the right to represent
clients in all courts and tribunals across the country.
-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.”

-Thus, this section ensures that advocates have the freedom to practice their
profession without any unnecessary restrictions. They can appear before any court,
including the Supreme Court, High Courts, and lower courts, to represent their
clients.
-By guaranteeing the right to practice, this section promotes access to justice for all
citizens. It ensures that individuals have the opportunity to seek legal representation
and have their cases heard by qualified legal professionals.
-The right to practice law is essential for upholding the rule of law. It enables
advocates to challenge unlawful actions, protect individual rights, and ensure that
laws are interpreted and applied fairly.
-Section 30 empowers advocates to exercise their professional judgment and act
independently in the best interests of their clients. It ensures that advocates are not
subjected to undue interference or control by non-legal authorities.

While Section 30 guarantees the right to practice, it is subject to the conditions that
The advocates must be enrolled with the appropriate State Bar Council to practice
law in that particular state and the advocates are expected to adhere to the Code of
Conduct for Advocates, which outlines ethical standards and professional conduct.
Therefore, Section 30 empowers advocates and ensures that the public has access to
qualified legal representation, promotes the fair administration of justice, and
upholds the rule of law.
Section 32: Power of court to permit appearances in particular cases.
-Section 32 of the Advocates Act, 1961, provides a specific exception to the general
rule that only enrolled advocates can practice law.
-This section allows courts, tribunals, or other authorities to permit individuals who
are not formally trained as lawyers to appear before them in certain specific cases.
-It states that 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.

In some cases, specialized knowledge or expertise may be required that is not

commonly possessed by lawyers. For example, experts in technical fields like
engineering, medicine, or finance may be called upon to provide expert testimony or
legal advice.
In certain situations, allowing non-lawyers to appear before a court or tribunal may
be in the public interest.
In certain administrative proceedings, it may be more convenient to allow individuals
who are familiar with the specific subject matter to represent themselves or their
organizations.
However, it's important to note that this exception is limited and should be exercised
judiciously. The court or authority must be satisfied that the non-lawyer is competent
to represent themselves or their client and that their appearance will not prejudice
the rights of others.
In essence, Section 32 provides a flexible mechanism to ensure that justice is
administered effectively, even in cases where the strict application of the exclusive
right to practice law might hinder the proceedings.

Section 33: Advocates alone entitled to practise.

-Section 33 of the Advocates Act, 1961, is a crucial provision that upholds the
exclusive right of advocates to practice law in India.
-This section states that, unless specifically permitted by law, only individuals who are
enrolled as advocates with the Bar Council of India (BCI) can represent clients in
courts, tribunals, and other legal proceedings.
-No person shall be entitled to practice in any court or before any authority or person
unless he is enrolled as an advocate under this Act.
-By restricting the practice of law to qualified individuals, this section helps ensure
that legal services are provided by competent professionals who adhere to ethical
standards. It helps maintain high standards of legal education and training, ensuring
that lawyers are equipped with the necessary knowledge and skills to represent
clients effectively.
Section 34: Power of High Courts to make rules
Section 34 of the Advocates Act, 1961, empowers High Courts to make rules that
govern the practice of law within their respective jurisdictions.
This allows High Courts to establish specific guidelines and regulations to ensure that
advocates practice in a professional and ethical manner.
1. Conditions for Practice: High Courts can set specific conditions that advocates must
fulfill to practice in their courts and subordinate courts. These conditions may
include:
 Enrollment with the Bar Council: Advocates must be enrolled with the relevant
State Bar Council.
 Compliance with Code of Conduct: Advocates must adhere to the Code of
Conduct for Advocates, which outlines ethical standards and professional
conduct.
 Possession of Necessary Qualifications and Experience: In some cases, specific
qualifications or experience may be required to practice in certain specialized
areas of law.
2. Fee Regulations: Section 34(1A) empowers High Courts to make rules for fixing and
regulating the fees that can be charged by advocates. This ensures that fees are
reasonable and fair, and that clients are not charged exorbitant amounts. High Courts
can also make rules on other matters related to the practice of law, such as the
conduct of court proceedings, the filing of pleadings, and the service of notices.

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.

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.
2. ADVOCATES RIGHT TO STRIKE
The legal profession is a dignified profession and it comes with certain rights and
duties as well as regulation for behaviour.
The legal profession has a code of conduct which differentiates it from all the other
professions.
Lawyers, as officers of the court, have a sacred duty to uphold the principles of justice
and fairness.
A strike by lawyers can disrupt the administration of justice, leading to delays,
backlogs, and denial of justice to countless individuals. This is fundamentally
incompatible with the ethical obligations of the profession.

The Advocates Act, 1961, and the Bar Council of India Rules provide the ethical
framework for lawyers. These rules emphasize the duties of lawyers towards their
clients, the court, and the society.
A strike, by its very nature, undermines these duties. It can lead to the neglect of
clients' interests, delay in the resolution of disputes, and erosion of public confidence
in the legal system.

Striking does not fall under the code of conduct for lawyers and hence it is frowned
upon by the regulations of the codes of conduct.
Delaying or denying clients of justice is not a noble act and as such it is not expected
from advocates.
Advocates have to carry out various duties, which include duty to the client, duty to
the court, duty to their fellow advocates and duties to the society.
All the duties of the advocate promote that the advocate should, with all his strength
and skills, seek to represent his client and promote justice and the name of the court
in all his actions.
The advocate should ensure speedy, expert and competent delivery of justice.
Striking does not promote the delivery of competent and speedy delivery of justice
and is completely against the conduct of advocates.

In India the Supreme Court held that lawyers have no right to go on strikes or to give
calls for boycott, not even on token strike.
The protest, if any is required can only be by giving press statements, Television
interviews, carrying out of court premises banners and/or placards, wearing black or
white or any colour armbands, peaceful protest marches outside and away from
court premises.
It was also held by the Supreme Court that lawyers strike and suspension of court
shall be illegal.
Thus, lawyers do not possess the right to strike given the noble nature of their
profession and the duties which they owe to the society, clients, courts and other
advocates.
In the landmark judgment given by the supreme court in case of –
Ex-Capt. Harish Uppal v Union of India and Another, the Court held that lawyers have
no right to go on strike or give a call for boycott, not even on a token strike.
The protest, if any is required, can only be by giving press statements, TV interviews,
carrying out of court premises banners and/or placards, wearing black or white or
any colour armbands, peaceful protest marches outside and away from court
premises, etc.

It was held that if on the grounds of strike, a lawyer abstains from appearing in court
then he is conducting professional misconduct, a breach of contract, a breach of trust
and breach of professional duty.
According to section 35 of Advocates Act 1961, which provides for the punishment
of advocates responsible for profession misconduct, the disciplinary committee shall,
after hearing both parties:
1. Dismiss the complaint or where the proceedings were initiated at the instance of
the State Bar Council direct that proceedings be filed
2. Reprimand the advocate
3. Suspend the advocate from practice for such a period as it deems fit
4. Remove the name of an advocate from the State Roll of advocates.
Recently in Odisha, 29 protesting lawyers who had participated in the strike had their
licenses suspended for 18 months by the Bar Council of India. Thus, this shows that
no tolerance will be given to lawyers who decide to exercise the prohibited right to
strike.

Conclusion
The Indian Constitution provides for the right to unions under article 19, however,
the right to strike does not fall within this ambit.
The right to strike is indeed essential as it allows for better workplace management as
it gives the workmen a chance to freely express their concerns.
However, the legal profession is a noble profession which is renowned for its role in
speedy delivery of justice and its code of conduct.
Any action or activities which are not within the code of conduct or do not promote
the speedy delivery of justice will attract punishment under the definition of
professional misconduct under section 35 of the Advocates Act 1961.
It is important that advocates give all their effort to meeting the duties they owe to
the clients, courts, fellow lawyers and the society.
It is important that advocates continue their work without unnecessary stoppages
and continue their provision of justice to their clients and the society as a whole.

3. RIGHTS OF ADVOCATES