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The Guardians Of Justice: A Study On The Rights Of Advocates As Enshrined In The Advocates Act, 1961

"The courtroom is a stage, but the audience is not for entertainment, but for justice. We, the lawyers,
are not actors, but advocates, wielding words as our weapons, and truth as our shield"-- Maya Banerjee

In the context of legal practice, we advocates are custodian and also referred as a guardian of the justice. using their words to fight for what's right. The Advocate's Act of 1961 is like a rulebook that tells them what they can and can't do. This paper explores these rules and what they mean for advocates.

We look at how these rules have changed over time and how they affect the way advocates work today. By studying real-life examples and talking to experts, we try to understand why these rules are important and how they help make sure everyone gets a fair shake in court. The Advocates Act enshrines a myriad of rights for advocates, ranging from the right to practice law to the right to appear before courts.

These rights are not only essential for the functioning of the legal profession but also crucial for safeguarding the interests of clients and ensuring access to justice. We will study each of these rights, analysing their scope, limitations, and practical implications in legal practice.

The pursuit of justice is a cornerstone of any civilized society, and the Indian legal system stands as a testament to this ideal. Central to this pursuit are advocates, who act as guardians of individual rights and ensure adherence to due process. The Advocates Act of 1961 serves as the foundation for the legal profession in India, not just by outlining its structure but also by enshrining a crucial set of rights for advocates. These rights empower them to fulfil their vital role in upholding the rule of law and ensuring access to justice for all.

Being Advocate is a noble professional in India which helps people with serving the justice by making representations for their clients and providing necessary legal assistance. Advocates having various rights under the law, for example- right to practice, to pre- audience, right to freedom of speech and expression, to enter into a court to observe the proceedings, against arrest, to meet with accused, to have a privileged communication, right to take fee, to refuse for a case etc.

Historical Background
For understanding the history of legal profession , one need to examine the origin from ancient Rome and Greece era. Greece is known for its non-claiming of charges for pleading in the court and this notion was expanded due course of time but with coming of late roman empire the professional was well recognised and emerged into society.

As per James Brundage, the profession was ended in western part of the Europe in the early middle ages of the era, in America the colonies were emerged as powerful lawyers as leaders in 1700 century. As of 21st century 1 million lawyers are holding law degrees and practising in the court of law.

Legal Profession In India
About a long time back, there were specialists knowledgeable in issues of regulation in Sri Lanka. Apparently, their essential job was exhorting the lord on accomplishing equity. These people proficient about legitimate issues were alluded to as 'Vohara,' a term got from the Sanskrit word 'Vyavahara.' This title was given to the people who were capable in the acknowledged acts of equity and goodness in the contemporary society. Because of the impact of the European colonization, its present legitimate structure comprises of a combination of overall sets of laws of English custom-based regulation, Roman-Dutch common regulation and Standard Law.1

Under the English Raj and since India embraced the English general set of laws with a significant job for courts and legal counsellors, as embodied by the patriot chiefs Muhammad Ali Jinnah and Mahatma Gandhi. Most driving attorneys came from high position Brahman families that had long practices of grant and administration, and they benefitted from the numerous claims over land that came about because of these legitimate changes. Non-Brahman landowners loathed the favoured place of this Brahman legitimate elite.

Gandhi in 1920 proposed an elective assertion framework yet not many legitimate experts acknowledged his call to blacklist the laid-out courts. A huge work to lay out elective establishments were known as 'panchayats'. This panchayat explores bombed because of a blend of indifference, restraint, and inner resistance.

The Indian Legal Profession and All India Bar Committee, 1951: Justice S.R. Das served as the committee's chairman when it was established. The committee suggested creating a State Bar Council and an All-India Bar Council in its report. It suggested to the Bar Council that the authority to enlist, suspend, or remove advocates be granted. It was also suggested that no further Mukhtars or pleaders without a degree should be hired.

Advocates Act, 1961: The Advocates Act was passed by the federal government in 1961. All of India has been subject to this statute. It brought about significant shifts in India's legal profession. Its goal is to elevate the legal profession's standing and usefulness throughout the whole country of India.

The Advocates Act, 1961
The Advocate Acts, 1961 lays out the legal framework for legal practitioners, as well as guidelines for the establishment of Bar Councils and an All-India Bar. Basically, the Act lays out the process for registering with state-level bar councils, as well as the credentials that an individual must have in order to practice law. The Bar Council of India is the supreme body that sets the rules and regulations for registration. It also specifies what kind of quality a legal institution can uphold.

The Advocates Acts spread out the structure for legitimate specialists, as well as rules for the foundation of Bar Councils and an All-India Bar Council.[1] Fundamentally, the Demonstration spreads out the cycle for enrolling with state-level bar councils, as well as the certifications that an individual high priority to provide legal counsel. The Bar council of India is the preeminent body that sets the guidelines for enrolment. It likewise indicates what sort of value a legitimate establishment can maintain.

The Act, is a modified form of the Indian Bar Council Act, 1926, or we can expect that it has supplanted the Indian Bar Committees Act. The Indian parliament passed an Act with the reason or thought process of laying out regulations administering legitimate professionals. Under the power conceded by the Act, the Bar Council of India sanctioned such principles known as Bar Council of India Rules, that apply to practice or vital prerequisites for legitimate training, with an emphasis on proficient wrongdoing.

Coming up next are the critical qualities of Act: The Bar Council of India and State Bar Committees were framed because of this Act, Any one doesn't join more than one State Bars; however, he might be moved from one to the next. The Bar Council was allowed self-overseeing status. It specified that comparable rolls of

Supporters be laid out across the world. It likewise included arrangements for joining the overall set of laws' all's regulations into a solitary record. At both the state and government levels, various guidelines for the Bar Councils were established. As recently referenced, different titles like legal counsellor and vakil were dispensed with for a solitary title of Advocate.

Basic Rights Of An Advocate
As per the legislation the advocates have many basic rights emerging from the Advocates act and judicial pronouncements, for example:
  • Right to pre-audience,[2]
  • Right to freedom of speech and expression,[3]
  • Right to enter into any court to observe the proceedings,
  • Right against arrest,
  • Right to meet with accused,
  • Right to have a privileged communication,[4]
  • Right to take fee,
  • Right to Practice,6
  • Right to refuse for a case etc.
But in our paper, we will be focusing on additional or specific rights. Where the legislative and judicial framework have been attracted subjecting to the rights of advocates.

Is Right To Practice An Absolute Right?
The right to practise as an advocate is a statutory right that is subject to control and restriction, according to a ruling of the Supreme Court. The supreme court declared that in order to guarantee the administration of justice, the courts have the authority to monitor and control the right to practise.

The court must and does have significant supervisory and regulating power over the right to present in court and to conduct proceedings, according to a bench of Justices A K Sikri and N VRamana. Therefore, the bench held that courts cannot and should not be relieved of oversight or control over behaviour in court just because it might concern an advocate's right.

The court upheld the Allahabad High Court rules, which stipulate that an advocate who is not registered with the Uttar Pradesh Bar Council may only appear, act, or plead in the said court by filing his "Vakala Nama" with an advocate who is enrolled with the Uttar Pradesh Bar Council and regularly practices in the Allahabad High Court.

The court explained the legal position while upholding these rules. Jamshed Ansari argued that the regulations unreasonably restricted his ability to practise his profession and breached Section 30 of the Advocates Act, but his plea was denied.

Is A Private Person, Having A Right To Practice?
Advocate alone is permitted to engage in practice. According to Section 33 of the Advocates Act, 1961, unless enrolled as an advocate under this Act, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person, except as otherwise provided in this Act or in any other law currently in force. It implies that the only people allowed to practise in a court or before any authority are advocates.

Girdhari Sharma vs. Hari Shankar Rastogi,[5] In this case, the Supreme Court ruled that an individual who is not an advocate is not permitted to storm into court and assert their right to represent a party.

266th Law Commission Report[6] For Regulation Of Legal Profession In India- An Initiative By Government
The Law commission of India, after a review on the Advocates Act, 1961 felt the need to conduct the regulations and rules for Advocates in the country which affects functioning of the court, where the high court were directed to submit reports about loss of working days due to strike of advocates., this bill was put forth the legislature for consideration and necessary amendments.

Judicial pronouncements led to amendment-The Supreme Court issued a directive to the Law Commission of India asking it to investigate all pertinent aspects relating to the regulation of the legal profession in consultation with all parties involved as soon as possible. This directive followed the full bench judgement of the Jharkhand High Court in the case of K K Jha "Kamal & Anr. v. Pankaj Kumar & Anr 9., the full bench judgement of the Allahabad High Court in the case of Sadhna Upadhyay v. State of

U.P., and the most recent judgement of the Apex Court in the case of Mahipal Singh Rana v. State of UP. These cases dealt with professional misconduct of lawyers. Additionally, it asked Parliament to think about passing legislation that would essentially give the authorities more regulatory authority.

The Commission posted a notice on its website dated July 22, 2016, asking for recommendations from all parties involved on how the system could be improved. On August 3, 2016, a letter was sent to the Bar Council of India bringing the aforementioned information to their attention. On August 4, 2016, a similar email was written to the Registrar General of every High Court. All State Bar Councils, the Supreme Court Bar Association, and the Supreme Court Advocates on Record Association received an email at the same time.

The Chairman wrote a letter to all of the High Court Chief Justices on the same day, asking them to use their good offices to promote the Commission's initiative among the various associations of advocates (under whatever name they may go by). The Chief Justices were asked to respond to the letter by email as soon as possible.

In order to carry out the aforementioned, the Bar Council of India, which holds the highest position in the Advocates Act hierarchy, established an Advisory Committee, with Mr. Justice Shivraj Patil, a former Supreme Court judge, serving as its chairman. The BCI submitted a draft Bill for the Commission's consideration in addition to offering thorough recommendations on a number of Advocates Act-related concerns.

The Bar Council of India was of the view that in addition to the regulatory mechanism, other interrelated issues, i.e., constitution of the BCI and the State Bar Councils are also required to be revisited. The BCI made some suggestions in this regard. The draft Bill prepared by the Bar Council of India is annexed as Annexure I to this Report.

Validity Of Advocate's Right To Strike; With Reference To Harish Uppal's Case
The current state of conduct in the courts is really eye-opening, and strangely, it's one of the reasons that over 2.5 crore cases are pending in lower courts. The Supreme Court has ruled time and time again that advocates do not have the authority to call for strikes, that lawyer strikes are unlawful, and that meaningful action needs to be taken to halt this trend. It has been decided that lawyers do not have the right to strike in a number of decisions, starting with Pandurang Dattatraya Khandekar V. Bar Council of Maharashtra, Bombay[7], and ending with Ex Capt. Harish Uppal v. Union of India11.

It is pertinent to note that the Supreme Court addressed advocate strikes in great detail in Ex- Capt. Harish Uppal case. The Court decided:

"lawyers have no right to call for a boycott or go on strike, not even for a token strike. If a protest is necessary, it can only be conducted through statements made to the media, TV interviews, banners and placards carried outside the court premises, arm bands in black, white or any other colour, peaceful protest marches outside and away from the court premises."

The strike by lawyers does not obligate the courts to postpone proceedings. Conversely, it is the responsibility of every court to continue hearing cases on its boards even when solicitors re not present. Stated differently, requests for boycotts or strikes cannot be known to the Court. It was decided that in addition to any damages he might have to pay his client for losses he may have sustained, a lawyer holding a Vakala Nama of a client who misses court due to a strike call will be held personally responsible for the costs.

Access To Justice Through Legible Rights Of Advocates And Judiciary
Ensuring legal counsel or facilitating an individual's access to courts are not the only aspects of access to justice. The ability to seek and secure a remedy for grievances in accordance with human rights norms through formal or informal institutions of justice is known as access to justice.

Where there is a weak justice system, where people lack access to lawyers, where they lack information about their rights, where they are afraid of the system, perceive it as foreign, and avoid it, there is no access to justice. This is especially true for marginalised groups. Normative legal protection, legal awareness, legal aid and counsel, adjudication, enforcement, and civil society scrutiny are all necessary for access to justice. By giving people a more appealing option than using violence to settle personal and political conflicts, access to justice promotes long-term peace. option than using violence to settle personal and political conflicts, access to justice promotes long-term peace.

Advocates' legitimate rights are essential to guaranteeing access to justice because they enable solicitors to successfully represent clients and handle the legal system. Here is a further explanation, supported by pertinent case law and legal research points:

The right to legal representation of an Advocate A vital component of access to justice is the right to counsel, which guarantees that people receive legal advice to protect their rights.

Right to Counsel of an Advocate: This guarantee provides people with legal counsel to protect their rights. In M.H. Hoskot v. State of Maharashtra (1978)[8], the Indian Supreme Court upheld Article 21 of the Indian Constitution's guarantee of the right to counsel, highlighting the necessity of representation and legal assistance for impoverished defendants.

Right to Legal assistance: For people who are unable to pay legal representation, having access to legal assistance is essential. The Supreme Court ruled in Hussainara Khatoon v. Home Secretary, State of Bihar (1979)[9][10] that the state is required by the Constitution to give impoverished accused parties free legal representation, guaranteeing everyone's equal access to the legal system.

Advocates have a privilege against self-incrimination: In order to advise clients about their privilege against self-incrimination, advocates are essential. Section 161(2) of the Indian Evidence Act, 1872, protects people from being forced to answer questions that could lead to their incrimination while a police inquiry is underway, albeit it does not apply to a particular case.

Secrets and Prerogatives: Maintaining attorney-client privilege and secrecy is essential to good legal representation. The Punjab and Haryana High Court upheld the value of attorney- client privilege in State of Punjab v. Ramdev Singh (2011)14, safeguarding communications exchanged in confidence with the intention of receiving legal advice.

Barriers in access of justice:
  • Social Barriers
  • Lack of Education
  • Lack of Awareness
  • Feudalist Society
  • Procedural Barrier

The Advocate Protection Bill, 2021[11]- An Initiative For Safeguarding
Advocate's Right
The Bar Council of India released the Advocates Protection Bill, 2021 on July 2, 2021. When developing the Act, a seven-person team took into account the problems and difficulties that activists and their families faced. The principal objectives of the measure are purportedly to safeguard advocates and remove any impediment to their ability to do their duties. The bill enumerates some scenarios in which finishing assignments is challenging.

This policy was also devised in response to the 8th United Nations Congress on the Prevention of Crime and Treatment of Offenders, which took place in Havana, Cuba, from August 27 to September 7, 1990. India took part in the Congress and supported the "Basic Principles on the

Protection against lawsuits- An advocate who has carried out their responsibilities with integrity won't face any legal action. Confidentiality should be upheld and advocates' interactions with their clients should be respected.

Protection against apprehension and legal action- According to Section 11, a police officer needs a specific order from the Chief Judicial Magistrate before they can arrest a lawyer or look into an advocate case.If a police officer learns of information regarding an advocate committing a crime, the officer must record the information in a book that they are required to keep.

Section 7 and Section 15 of Social Security- Section 15 of the Advocates (Protection) Bill, 2021 acknowledges and establishes the social security of advocates. It stipulates that during unforeseen occurrences like epidemics or other- natural calamities, the Central Government and the State Government may provide financial help to Advocates in need.

The Local District Magistrate or District Court may, at the recommendation of the State Bar Council, provide Advocates in Need with a minimum of Rs. 15,000 till the epidemic or other natural disaster passes. Half of the expenses will be paid for by the State Bar Council and the other half by the Central Government. In addition, the Central Government might create some insurance schemes.

Need For The Bill
The protection of advocates and the reduction of obstacles to their carrying out their duties are listed as the main needs of the bill. The bill lists a number of situations that make it difficult to complete assignments. The sharp rise in attacks, kidnappings, intimidation, and regular threats against advocates is one of the main causes. The government is obligated to provide the required protection when the practice of law puts the security of attorneys in danger.

It is necessary to take such action to safeguard activists. The law also mandates that advocates get welfare payments and the necessities of life. few days ago, a cyclist was detained on the Pune-Bengaluru Highway for beating a corporate lawyer, age. Approximately twenty people in a mob.

Significance Of Legal Reforms Of Advocate's Rights In India- Judicial Interventions And Suggestions
The Law Commission of India has been requested by the Hon'ble Supreme Court of India "to go into all relevant aspects relating to regulation of legal profession in consultation with all concerned" as soon as possible in criminal appeal No. 63 of 2006, Mahipal Singh Rana v. State of U.P.16 The Law Commission of India has started looking into the Advocates Act of 1961 as a result.
  • Bar councils are unable to stop advocates from breaking the rules.
The Supreme Court noted in its ruling in Mahipal Singh Rana v. State of U.P. that the bar councils of India and UP had both neglected to take any action against the aforementioned counsel. Below is an excerpt: We can now move on to the instruction that has to be sent to the Bar Council of India or the Bar Council of Uttar Pradesh. Despite directives from the High Court dating back over a decade, the Bar Council does not appear to have taken any action in this particular issue.

On January 27, 2006, this Court served notice to the Bar Council of India. Despite being informed of all the relevant information, the Bar Council of India has also not responded to this notice. Due to the Bar Council of India's and the State of Uttar Pradesh's inability to fulfil their statutory obligations, this Court is required to exercise its appeal power under the Advocates Act in light of shown misbehaviour that calls for disciplinary action.
  • The general public is ignorant about the obligations of advocates for clients and the norms of conduct
The Advocates Act of 1961 establishes the procedure and guidelines for the formation of State bar councils and the Bar Council of India. It also specifies how these councils can formulate regulations governing the practice of advocacy, including the granting of licences to practice, raising awareness of, and enforcing, standards of professional conduct. However, the public hardly ever learns about the existence of the Advocates Act or how bar councils create regulations to oversee advocates.17 The general public hardly knows where or how to file a complaint if they experience unprofessional behaviour from their attorney. A few recommendations are possible.
  • Advocates who engage in violent, impolite, or illegal actions go unpunished
It is well known that Indian activists occasionally engage in acts of collective disruption, violence, or strikes in all states and cities, including Bangalore, Ghaziabad, Meerut, and Chennai.

There is usually one such piece of news every three to six months.

Conclusion & Findings
All in all, this exploration fills in as a signal enlightening the way of backing inside the Indian legitimate scene. It fastidiously analyses the freedoms, obligations, and difficulties looked by advocates, featuring their essential job as overseers of equity. From following the verifiable underlying foundations of the legitimate calling to taking apart the subtleties of the Promoters Act, 1961, this paper gives a thorough comprehension of the system overseeing lawful practice in India.

Through wise examination and investigation of legal proclamations, it becomes obvious that advocate's rights and privileges are legal arrangements as well as support points whereupon the structure of equity stands. The talk on admittance to equity highlights the irreplaceable job advocates play in guaranteeing decency and value for all people, paying little heed to social standing or monetary status. Moreover, the assessment of proposed regulative changes, for example, the Advocate Protection Bill, 2021, highlights the squeezing need to protect advocates against dangers and guarantee their unbound capacity to satisfy their duties.[12]

In embodiment, this examination isn't just an academic undertaking; it is a clarion call for ceaseless contemplation, development, and change inside the lawful club. It highlights the grave obligation of backers to maintain law and order, champion the reason for equity, and act as immovable gatekeepers of the privileges and freedoms of each and every person in the public arena.

As Maya Banerjee smoothly said:
"We, the legal advisors, are not entertainers, but rather advocates, employing words as our weapons, and truth as our safeguard." Allow this paper to remain as a demonstration of the honourable quest for equity and the vigorous devotion of advocates towards that respectable objective.

Legal Resources Legislation:
  • The Advocates Act, 1961 (India):
Case Laws:
  • Pandurang Dattatraya Khandekar V. Bar Council of Maharashtra, Bombay (1984):
  • Ex Capt. Harish Uppal v. Union of India (2014):
  • MH Hoskot v. State of Maharashtra (1978):
  • Hussainara Khatoon v. Home Secretary, State of Bihar (1979):
  • State of Punjab v. Ramdev Singh (2011):
  • Mahipal Singh Rana v. State of UP (2006):
  • Bar Council of India and the Regulation of the Legal Profession in India by Prof. (Dr.) Upendra Baxi (2012):
  • Access to Justice and the Role of Lawyers in India by Dr. Amita Dhanda (2018):
  • The Indian Legal System by Dr. Paras Kumar (2023):
  • Lawyers and Social Change in India by Patricia Uberoi (2000):
  • Report of the 266th Law Commission of India for Regulation of Legal Profession in India (2018):
  • The Bar Council of India: Advocates Protection Bill, 2021:
  • Journal of the Indian Law Institute (JILI):
  • The Indian Journal of Law and Public Policy (IJLLP):
  • National Law Review (NLR):
  • Bar Council of India:
  • Supreme Court of India:
  • Law Commission of India:

  1. Law Commission of India, "Report on the Implementation of the Advocates Act, 1961 (2019)".
  2. Section 23, The Advocates Act, 1961.
  3. Article 19 (i), The constitution of India, 1950.
  4. Section 24, The Indian Evidence Act, 1872.
  5. Section 30, The Advocates Act, 1961.
  6. AIR 1978 SC 1019.
  7. Report of the 266th Law Commission of India for Regulation of Legal Profession in India (2018).
  8. AIR 2007 Jhar. 67.
  9. AIR 1984 SC 1173.
  10. (2014) 6 SCC 185.
  11. AIR 1978 SC 1548.
  12. AIR 1979 SC 1360.
  13. (4) SCC 406.
  14. Law Commission of India, "Report of the 266th Law Commission of India for Regulation of Legal Profession in India (2018)".
  15. Access to Justice and the Role of Lawyers in India, by Dr. Amita Dhanda (2018).
  16. 16 2011 (4) SCC 406.
  17. Bar Council of India and the Regulation of the Legal Profession in India, by Prof. (Dr.) Upendra Baxi (2012).

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