Understanding the Rights of Advocates under the Advocates Act, 1961

1. Introduction to Rights of Advocates

The Advocates Act, 1961 outlines the rights of advocates in Sections 29,
30, 32, 33, and 34. These provisions define who is entitled to practice law,
the scope of practice, and conditions under which non-advocates can
represent parties in court.

2. Section 29: Only Advocates are Entitled to Practice Law

 Section 29 states that only advocates are authorized to practice law
in India. The section was enforced on June 1, 1969, and marks the
creation of a unified Bar across the country. It ensures that no one
other than an advocate can represent a client in legal matters.
 Case Law Example: In D.A.S. Swami v. Kubendram (1967), the
Madras High Court clarified that someone not enrolled as an
advocate in a High Court cannot represent an accused in legal
proceedings.
 Case Law Example: In Nibaran Bora v. Union of India (1992), the
Gauhati High Court emphasized that only advocates have the right
to practice law, and non-advocates cannot habitually represent
clients in court.

3. Section 30: Right to Practice in All Courts and Tribunals

 Section 30 grants every advocate enrolled on the State Roll the right
to practice law in all courts across India, including the Supreme
Court, before any tribunal, and before any authority or person
legally authorized to take evidence.
 Unenforced Provision: Although this provision has been in the Act for
over four decades, it has not yet been enforced, leaving certain
aspects of the practice of law undefined.

4. Section 32: Permitting Non-Advocates in Specific Cases

Section 32 allows a court or authority to grant permission for a non-

advocate to represent a party in a specific case. This is a discretionary
power, meaning the court can choose whether or not to allow a non-
advocate to appear.

 Case Law Example: In Hari Shankar v. Giradhari Sharma (1978), the

Supreme Court ruled that a non-advocate cannot claim the right to
represent a party without prior court approval. The decision depends
on the court’s discretion and the circumstances surrounding the
case.
  Case Law Example: In Derby Textiles Ltd. V. Mahamantri (1994), the
court permitted a qualified law graduate, who was not enrolled as
an advocate, to represent a trade union in a legal case, as the
individual had sufficient legal knowledge.

5. Section 33: Exclusive Right to Practice for Advocates

 Section 33 specifies that, with certain exceptions, only advocates
are entitled to practice law in any court or before any authority. This
means that from the appointed day, no one can represent clients
unless they are enrolled as advocates under the Advocates Act.
 Exception under Section 32: Section 32 provides a mechanism for
courts to allow non-advocates to represent clients in specific cases,
but this is not a general right.

6. Section 34: High Court’s Rule-Making Power

Under Section 34, the High Court has the authority to make rules
governing the conditions under which an advocate may practice in that
particular High Court and in subordinate courts. This allows for the
regulation of the legal profession at the state level by setting specific
requirements for advocates practicing within the jurisdiction of the High
Court.

7. Section 55: Rights of Other Legal Practitioners

 Although Section 29 creates a unified Bar, Section 55 preserves the
rights of certain legal practitioners, such as pleaders, vakils,
mukhtars, and revenue agents, who were practicing under the Legal
Practitioners Act, 1879, to continue practicing law even after the
Advocates Act came into force.
 This provision ensures a smooth transition for practitioners who
were already active in the legal profession before the new Act.

8. Role of the Bar Council of India

Section 15 and Section 49 grant the Bar Council of India the power to
make rules for advocates, regulating the profession and the conditions
under which they can practice law. The State Bar Councils also play a role
in the creation of rules, but the Bar Council of India has the final authority
over national-level regulations.

Section 15: Allows both the State Bar Council and the Bar Council of India
to make rules to regulate the legal profession.

Section 49: Grants the Bar Council of India the authority to make rules for
advocates’ rights and duties.
Understanding the Status and Qualities of an Advocate

1. Status of an Advocate: Officer of the Court

An advocate holds a distinguished position as an officer of the court. This

title reflects their unique role in the legal system, where they are
responsible not only for assisting the court in delivering justice but also for
providing professional legal advice to the public for a fee. Advocates wield
considerable influence over society due to their training and practice, and
their actions—whether positive or negative—have a profound impact on
the public’s perception of the legal profession.

2. Core Qualities of an Advocate

To be a successful advocate, one must embody several key virtues,

including:

 Courage and Straightforwardness: An advocate must exhibit

courage in handling complex legal issues. According to W.R. Riddle,
the courage of an advocate is not physical but intellectual—the
courage to tackle difficult questions, explore all angles, and stand by
their findings, regardless of the outcome.
 Knowledge and Expertise: While a law degree is a prerequisite,
knowledge alone does not guarantee success. As Lord Brougham
stated, “A lawyer must know everything about something and
something about everything.” Comprehensive knowledge and
experience are essential for an advocate’s growth, which requires
years of learning and practical exposure.
 Patience and Maturity: A young advocate, eager to start earning,
should first focus on gaining experience rather than rushing into
business. A “little knowledge” can be dangerous and lead to costly
mistakes for clients. Advocates must be patient, learn through
practice, and avoid taking on cases prematurely.
3. The Importance of Speaking Skills and Argumentation

Contrary to popular belief, fluent speaking alone is not a guarantee of

success for a lawyer. While good oratory skills can help, a lawyer’s
primary strength lies in their ability to construct logical arguments and
apply legal knowledge effectively. Constant practice, experience, and hard
work contribute to the development of this skill.

4. Moral Integrity and Responsibility

The legal profession requires a high degree of moral excellence.

Advocates are entrusted with significant responsibilities, as they manage
matters of great public and personal importance. As G.W. Warvelle
emphasized, the integrity of an advocate is paramount, and moral
character is a foundational element of professional success.

 Industriousness: Lord Eldon and Lord Atkin emphasized the

importance of hard work and dedication in the legal profession. An
advocate must be industrious, willing to work long hours and
constantly refine their skills to achieve success.
 Cicero’s View on Diligence: Cicero believed that diligence is crucial
for success, as it encompasses all other virtues. In law, industry is
key to professional achievement, as it fosters continuous growth and
expertise.

5. Art of Advocacy

Advocacy is an art that involves not only presenting a case but doing so in
the most effective way possible. The manner in which an advocate
presents their case is just as important as the substance of the case itself.
Even a weak argument can be more persuasive if delivered with
confidence and professionalism.

 Court Manners and Posture: Advocates must pay attention to their

posture, gestures, and court manners, as these contribute
significantly to their success. Good manners, politeness, and respect
for the court enhance an advocate’s chances of making a positive
impression.
 Cross-Examination: A critical skill for an advocate is cross-examining
witnesses. The key to successful cross-examination is to address all
material facts and present the case effectively, ensuring the witness
provides testimony that supports the advocate’s position.

6. Presenting Case Citations

 After presenting the case, an advocate’s ability to cite relevant case
law is crucial in supporting their arguments. Selecting the right
precedents strengthens the case and helps the court in making a
decision.
 Selecting Relevant Cases: A lawyer should be aware of relevant
legal precedents and select only the most important cases to cite.
The highest court decisions are preferred, but if unavailable, the
advocate should reference cases from higher courts or co-ordinate
courts on similar points of law. The goal is to support the case with
strong, relevant legal backing.

Understanding Bench-Bar Relations

 1. The Relationship Between the Bench and the Bar

The Bench (judges) and the Bar (lawyers) are integral parts of the judicial
system, working together to ensure justice is served. A harmonious
relationship between the two is essential for the proper functioning of
courts. However, tension can arise due to disagreements or
misunderstandings in their roles. Despite differences, both parties must
remember that they share the common goal of ensuring justice is
delivered effectively.

2. The Role and Responsibilities of Lawyers

As officers of the Court, lawyers have a significant role in assisting the

judiciary in the administration of justice. They must present their cases
with respect and dignity while adhering to proper conduct. Lawyers are
expected to:

 Maintain Respect: Lawyers owe a duty to respect the Court and

assist in arriving at the correct decisions through their knowledge
and conduct.
 Behavioral Standards: Good behavior is crucial in helping lawyers
win their clients’ cases. A lawyer’s conduct—alongside their legal
expertise—can influence the Court’s perception and the case’s
outcome. Lawyers are obligated to be fair, sober, and cordial in all
dealings with the Court, avoiding insults or aggressive conduct.

While respect for the Court is essential, lawyers also have the right to
object to improper behavior by judges. If a lawyer feels their rights are
being violated, they can raise the matter with higher authorities.

3. The Importance of Self-Restraint in Advocacy

In the case In Re V.C. Mishra (1995), the Supreme Court emphasized that
self-restraint and a respectful attitude towards the Court are fundamental
for good advocacy. Advocates should present correct facts and law without
overstatements, distortion, or embellishment. A balanced and composed
demeanor aids in making a strong case.

4. The Judge’s Role and Responsibilities Towards the Bar

Just as lawyers have duties towards the Court, judges also owe certain
responsibilities towards the Bar:

 Impartiality: Judges must be free from bias and should treat all
advocates equally and fairly.
 Respect for Counsel: Judges are required to give lawyers the
courtesy of patient hearing while they are presenting their case.
 They should avoid forming preconceived opinions before hearing the
case and should not interrupt the lawyer unless necessary for clarity.

A judge’s behavior should foster a cooperative and dignified atmosphere

in the courtroom, as this is crucial for the proper administration of justice.

5. Avoiding Confrontation Between Bench and Bar

The relationship between the advocate and judge is delicate. While

advocates must remain firm in representing their clients, judges must
maintain their authority while ensuring fairness. A lawyer should avoid
being insolent, but judges should not be overly sensitive to remarks made
during arguments. A balanced approach by both parties helps in
preserving the integrity and dignity of the judicial process.

6. Duty of Lawyers to Assert Their Rights

Lawyers must assert their right to a fair hearing without being intimidated
by judicial authority. In the case of Mahant Hukumat Rai v. Emperor
(1943), the Lahore High Court held that lawyers should be independent
and assertive in their duties, especially when they feel they are not being
treated fairly. If a judge interrupts or behaves inappropriately, lawyers are
justified in protesting and insisting on being heard.

7. Principles of Fairness and Mutual Respect

The Supreme Court in P.D. Gupta v. Ram Murti (1998) stressed that
lawyers have a duty to be fair to both their clients and the court. Judges
and lawyers should complement each other, working together to uphold
justice. A well-reasoned and strong presentation by the advocate is crucial
for the Court to reach a just decision. The freedom to present a case
without unnecessary interruptions is a fundamental right of the lawyer.

8. Judicial Duty to Safeguard the Bar’s Privileges

Judges have an obligation to respect the privileges of the Bar. This

includes offering lawyers the opportunity to argue their case patiently and
without undue interruption. Judges should not pre-judge cases or display
bias in favor of or against the advocates.

9. The Need for Professional Etiquette and Independence

A free and independent Bar and an impartial judiciary are both essential
for a functioning justice system. Neither is superior to the other. The
strength of the judicial system lies in the balance between both entities.
Judges must maintain their independence while respecting the rights and
independence of the Bar. Similarly, the Bar must act responsibly and
ethically to preserve the dignity of the judiciary.
 10. Conclusion: Reciprocal Adjustment of Conduct

The smooth functioning of courts depends on the mutual respect and

cooperation between the Bench and the Bar. Judges and lawyers must
engage with each other professionally, maintaining decorum in the
courtroom, while understanding each other’s roles and responsibilities. A
well-behaved, cultured, and learned Bar ensures the independence of the
judiciary, while an impartial judiciary allows the Bar to carry out its duties
effectively.

Understanding Professional Ethics for Advocates

Introduction to Professional Ethics

The term “professional ethics” refers to the moral principles and rules of
conduct that guide the behavior of individuals within a particular
profession. In the case of an advocate, these ethical guidelines are crucial
for maintaining the dignity of the profession, ensuring justice, and
promoting a harmonious relationship between the judiciary, clients, and
society. Legal ethics is a subset of moral science that focuses on the
duties and responsibilities of a lawyer toward the court, their clients, their
opponents, and society.

Importance of Professional Ethics for Advocates

An advocate, by virtue of being an officer of the court, has significant

responsibilities. Professional ethics ensure that advocates maintain the
integrity and trust of their profession, ensuring that justice is served
impartially. These ethical standards guide the conduct of lawyers,
ensuring their actions reflect respect, fairness, and honor both within and
outside the courtroom.

Core Duties and Responsibilities of an Advocate

1. Duty to the Public and Society

Advocates have a primary duty to uphold the Constitution, promote

justice, and assist in enforcing fundamental rights. The legal profession
serves the public interest by ensuring the rule of law and protecting the
rights of individuals.

2. Duty to Clients

Honest and Fair Advice: Advocates are required to provide honest,

accurate, and moral advice, never acting in a way that could deceive or
manipulate clients.
  Confidentiality: A lawyer must maintain confidentiality regarding
matters shared by a client and cannot use this information for
personal gain.
 Devotion to the Client’s Cause: Lawyers must dedicate themselves
fully to their clients’ interests, using their expertise and skills to the
best of their ability.

3. Duty to the Court

Advocates must maintain the dignity of the court and assist in the proper
administration of justice. They are expected to be respectful, professional,
and fair when presenting facts and arguing cases.

4. Duty to Opponents

Advocates should not engage in unfair or dishonest practices with

opposing counsel. They must maintain respect and fairness in all dealings,
fostering a cooperative atmosphere in the pursuit of justice.

Declining Unjust Litigation: Lawyers should refrain from taking on cases

intended solely to harass or oppress the opposing party.

Code of Professional Ethics

The Bar Council of India, under the Advocates Act, 1961, has outlined a
set of ethical standards that advocates must follow:

1. Duty to Uphold the Constitution and Rule of Law

Advocates must work towards promoting justice and safeguarding the

constitutional rights of individuals.

2. Honesty in Advice and Actions

Advocates should act with integrity, ensuring that they never mislead the
court, their clients, or any party involved.

3. Dignity and Self-Respect

The lawyer’s conduct must reflect dignity and self-respect both within and
outside the courtroom.

4. No Withdrawal from Employment without Good Cause

Lawyers must not withdraw from a case once accepted unless there is a
valid reason, ensuring that clients are not left without representation.

5. Handling Client’s Property

Advocates must handle their client’s property with honesty, maintaining

accurate accounts and avoiding any misuse of the trust placed in them.
 6. Avoidance of Financial Conflicts

Lawyers should refrain from lending money to clients for legal purposes or
getting involved in financial transactions that could create a conflict of
interest.

7. Refusing Unjustifiable Litigation

Lawyers must not engage in litigation that is solely intended to harass or

harm others.

8. Conflict of Interest

Advocates should avoid cases where accepting a brief would create a

conflict with their professional responsibilities.

9. No Involvement in Unethical Practices

Lawyers must not engage in activities that are deemed unethical, such as
purchasing property in a case they are involved with or becoming
personally financially entangled in cases.

Necessity of Professional Ethics

Legal ethics are fundamental for the smooth functioning of the legal
profession. They ensure that advocates maintain a professional standard
that benefits their clients and the justice system as a whole. The
observance of these ethical guidelines is essential for maintaining the
public’s trust in the legal profession. Without these principles, the
profession would lose its credibility and its ability to serve the needs of
society.

Conclusion: Upholding the Honor of the Profession

Professional ethics in the legal field not only guide individual behavior but
also shape the integrity of the profession. As Chief Justice Marshall of the
U.S. Supreme Court put it, the ultimate goal of legal ethics is to maintain
the honor of the profession, promote justice, and foster a spirit of
cooperation between the Bench and the Bar. By adhering to these ethical
standards, lawyers ensure the smooth functioning of the justice system
and contribute to a fair and just society.

Seven Lamps of Advocacy

The “Seven Lamps of Advocacy” are qualities that an advocate must

possess to be successful in the legal profession. These virtues guide an
advocate’s behavior and practice, ensuring effective representation and
high standards in the legal field. They are:
 1. Honesty

Core Principle: Honesty is paramount for an advocate. It is not only the

best policy but should be the foremost policy in their practice. An
advocate must always provide truthful representation, avoiding any form
of deceit or misrepresentation to the court, clients, or the public. Integrity
in legal practice fosters trust and credibility.

2. Courage

The Power of Boldness: Courage is the backbone of an advocate’s

success. It comes from a deep understanding of the law and a
commitment to doing what is right, regardless of external pressures. An
advocate must be bold in presenting the case, challenging injustices, and
upholding the law, even when faced with adversity.

3. Industry

Hard Work and Dedication: Industry refers to the tireless work ethic an
advocate must demonstrate. A successful lawyer is industrious,
consistently studying the brief, preparing meticulously, and working hard
to master the details of the case. Much like an actor rehearsing for a role,
an advocate must prepare thoroughly to deliver their best in court.

4. Wit

Quick Thinking and Cleverness: Wit is an advocate’s ability to use

intelligence and sharp thinking to present their case persuasively. Wit
allows an advocate to craft arguments that are both logical and
compelling, often helping to sway the court in their favor with strategic
insights and creative approaches.

5. Eloquence

Mastering the Art of Speech: Eloquence is not just about speaking well but
communicating with clarity, conviction, and persuasiveness. An advocate
must possess both physical eloquence (the way they speak) and
psychological eloquence (the ability to emotionally connect with the
audience), influencing the court’s perception effectively.

6. Judgment

The Power of Sound Decision-Making: Judgment is the advocate’s ability to

make well-informed decisions based on perceptions, intuition, and
knowledge. It is the quality that helps them determine the best course of
action at every stage of litigation, from strategy planning to courtroom
conduct, ensuring success in their advocacy.

7. Fellowship
Collaboration and Mutual Support: Fellowship reflects the sense of
camaraderie and mutual respect among advocates. By supporting fellow
advocates and working together in the spirit of collective progress, an
advocate strengthens the legal profession. Fellowship encourages the
sharing of wisdom and experiences, fostering professional growth.

The Eighth Lamp: Tact

The Art of Diplomatic Action: Tact is the eighth quality that refines an
advocate’s approach. It is the intellectual ability to handle sensitive
situations diplomatically. Tact involves using judgment to act wisely and
with consideration, ensuring that the advocate can manage relationships,
challenges, and difficult situations without causing conflict or harm.

These seven (and the eighth) lamps together illuminate the path to a
successful legal career, guiding advocates in their daily professional
conduct and helping them navigate the complexities of the law with
confidence and respect.

Section 17 of the Advocates Act, 1961: Maintenance of Roll of

Advocates

Overview of Section 17

Section 17 of the Advocates Act, 1961, outlines the provisions regarding

the maintenance of the roll of advocates by the State Bar Councils. The
roll includes the names and addresses of individuals entitled to practice
law in India.

Key Provisions:

1. Preparation and Maintenance of Roll

Every State Bar Council is required to prepare and maintain a roll of

advocates.

This roll should include:

(a) Names of individuals who were enrolled as advocates under

the Indian Bar Council Act, 1926, before the appointed day,
including those who were citizens of India before August 15,
1947, and had been enrolled as advocates in areas that were
part of India before independence
(b)Names of individuals admitted as advocates on the roll of the
State Bar Council after the appointed day.
2. Structure of the Roll- The roll is divided into two parts:

Part 1: Contains the names of senior advocates.

Part 2: Contains the names of other advocates.

3. Seniority Determination

Seniority is determined based on specific criteria:

(a) Advocates enrolled under the Indian Bar Council Act, 1926 will
be ranked based on their enrolment date.
(b)Senior advocates of the Supreme Court before the appointed
day will be ranked according to principles set by the Bar
Council of India.
(c) New senior advocates enrolled after the appointed day will be
ranked based on their enrolment date.
(d)Seniority for attorneys will be determined based on their
enrolment date as an attorney.
4. Enrollment Limitation

An individual can only be enrolled on the roll of one State Bar Council.

5. Gauhati High Court Case

In Bhadreshwar Tanti v. S. N. Choudhary (1985), the Gauhati High Court

ruled that once an individual’s name is entered on the roll of advocates,
they are entitled to practice law in all courts, including the Supreme Court.

Section 19 of the Advocates Act, 1961: Reporting to the Bar Council of

India

Under Section 19, the State Bar Council is required to send an

authenticated copy of the roll of advocates to the Bar Council of India
when it is first prepared. Additionally, any alterations or additions to the
roll must be communicated to the Bar Council of India as soon as they are
made.

State Bar Councils: Establishment and Constitution

The Advocates Act, 1961, provides for the establishment of State Bar
Councils for each State or Union Territory. These councils are responsible
for regulating the legal profession within their respective regions.

Section 3: Establishment of State Bar Councils

State Bar Councils are to be established for specific States and Union
Territories. For example:

Bar Council of Andhra Pradesh, Bar Council of Gujarat, Bar Council of

Delhi, etc.

The Act also creates provisions for the establishment of Bar Councils for
areas such as Assam, Nagaland, Tripura, and others.
Section 4: Bar Council of India

In addition to State Bar Councils, a Bar Council of India is also established.

The Bar Council of India regulates the profession at the national level.

Section 5 of the Advocates Act, 1961: Powers and Functions of the State
Bar Councils

Section 5 outlines that each State Bar Council is a body corporate with the
following powers:

 Perpetual succession: The council continues to exist indefinitely.

 Common seal: It has an official seal for its operations.
 Legal capacity: It can acquire and hold both movable and
immovable property.
 Contractual authority: It can enter into contracts in its name.
 Legal proceedings: The Bar Council can sue and be sued in its own
name.

Constitution and Functions of the State Bar Councils

Composition of State Bar Councils (Section 3):

The State Bar Council will include:

 Ex-officio members: For example, the Advocate-General of the

State.
 Elected members: Based on the size of the electorate, with rules for
proportional representation. At least half of the elected members
must have been advocates for at least ten years.
 Chairman and Vice-Chairman: The State Bar Council will elect a
Chairman and Vice-Chairman from among its members.

Leadership Transition:

Before the amendment of 1977, the existing Chairman or Vice-Chairman

continues in office until a new one is elected post-amendment.