This article is written by Ishan Arun Mudbidri, from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article gives an overview of Section 32 of the Advocates Act 1961.
Advocates play a very important role in the justice delivery system. Advocates help in resolving the grievances of the people and giving them their rights, Therefore, the advocates have gained the trust of the people over the years.
The Advocates Act, 1961
Advocates are an integral part of the judiciary. They are also a part of the judicial proceedings. Hence, advocates have certain duties which must be followed for the smooth functioning of the justice delivery system. The duties of legal practitioners have been laid out in different enactments over the years, starting with the Bengal Permanent Settlement Regulation 1793. As times changed, the legal system evolved and the scope of the legal practitioners also grew. In 1923, the All India Bar Committee was appointed. The main objective of this committee was to fill the gaps in the legal system.
On the recommendations of the All India Bar Committee, the Advocates Act in 1961 was enacted. This extended to the whole of India except Jammu and Kashmir. The main aim of the Act was to govern the professional ethics of an advocate in India. The Bar Council of India and State Bar Council of India were established due to this Act. Before the enactment of this Act, legal practitioners were divided into vakils, lawyers, barristers, advocates, etc. This Act recognized only one category i.e Advocates. Section 2(1) of this act states that an advocate means any person who fulfills the conditions required under this Act is an advocate.
Section 24 of the Act
Section 24 of the Advocates Act mentions the conditions required to be enrolled as an advocate.
- The person is a citizen of India.
- Has completed 21 years of age.
- Has obtained a degree in law after 12th March 1967, after completing a three-year course in law from a recognized University in India.
- Currently, a person wanting to get enrolled as an advocate must pass the All India Bar Council exam.
In the case of V. Sudeer v Bar Council of India & Anr, (1999) the Court observed that a person can be enrolled as an advocate only under the rules or conditions given under Section 24 of the Act and not on the basis of any other factors. However, the candidate must pass the Bar Council exam.
Rights and duties of an advocate under this Act
Right to practice in any court
Section 30 of the Act states that the advocates have a right to practice in any court or tribunal in India. This means that an advocate has a right to enter any court and observe the proceedings.
Right to be heard first
Under Section 23 of the Act, the advocates have the right to be heard first in any court proceedings and also not be interrupted by any third party.
Right to meet accused in jail
This right has no specific mention in the Advocates Act but it is a known fact that the advocates can meet their clients in jail as many times as they want.
Duties of an advocate towards clients
- Advocates must give proper legal advice to their clients about the case.
- In case an advocate wants to withdraw from the case, he/she shall give notice to the client stating the valid reason for the withdrawal. The advocate shall also give a certain amount of fees to the client as a refund in case of withdrawal.
- To update the client on any particular briefing.
- To maintain confidentiality and not disclose any valuable information of the client to the third party.
Duties of an advocate towards the court
- To maintain discipline and a respectful attitude towards the legal system.
- To conduct himself/herself in a dignified manner.
- To enter the courts wearing a proper dress code.
- To not influence the proceedings of the court for personal gains.
Duties of an advocate towards the opposite party
- The advocates should not join the opposite party after withdrawing the case.
- The advocate should communicate only with the opposite party’s lawyer and not with the opposite party directly.
- The advocate should not use illegal means to win over the witnesses of the opposite party.
- The advocate should win against his opponent by arguing well and not by fighting with his opponent.
Duties of the advocate towards co-workers
- Advocates should not be arrogant and egoistic towards their colleagues. This will have a bad impact on the profession of the advocate.
- The advocate should not take up a case for which another advocate is already working. This can be done only after taking prior permission of the Court and the other advocate.
Section 32 of Advocates Act in context of free legal aid
Legal aid is a concept in India wherein, the people who are economically weak in society, or live in rural areas where they don’t have an access to courts are provided with legal assistance.
This concept stands true to Article 14 of the Constitution of India which guarantees equality before the law to all citizens in India. Further, Article 39A of the Indian Constitution guarantees free legal aid to the needy. It states that the legal system promotes justice on the basis of equal opportunity, and shall provide free legal aid in any way, to ensure equal opportunities for all the citizens. Rule 46 of Section 6 of the Bar Council of India states that every advocate shall while practising law bear in mind that any person can be in need of a lawyer, and it is the duty of the advocate to provide legal assistance without asking for any fees.
In the case of Hussainara Khatoon v. the State of Bihar (1979), it was held by the Court that, if an accused is unable to afford a lawyer then, he/she will have a right to free legal aid at the expense of the State. Hence it is clear by now that legal aid is a fundamental right of the citizens and a duty of the legal practitioners. Section 7(1)(b) of the Advocates Act states that the Bar Council of India should organize legal aid to the poor. Section 30 of the Advocates Act mentions the right of advocates to practice in any court inside the territory. But, Section 32 of the Act states that any court or other authority can permit a person, who has not enrolled as an advocate before it.
Further, Article 19 of the Constitution gives a right to practice any profession or occupation to the Indian citizens. Hence, any person has a right to practice law in India so, according to this Section, any person can appear in a court in India. According to Section 33 of the Act, a person who is not enrolled as an advocate shall not be entitled to practice in any court.
Section 45 of the Act also imposes a punishment of six months on the person who has not enrolled as an advocate but is practising in the courts, which is an illegal practice. Hence, according to the provisions of the Advocates Act, only advocates have the right to practice before the courts. However, the right of appearance mentioned in Section 32 is an exception to the right to practice before any court and other provisions mentioned above.
Harishankar Rastogi v Girdhari Sharma (1978)
In this case, the petitioner sought the permission of the Court to be represented by another person in a case who is not an advocate under the provisions of the Advocates Act 1961. The Court examined the provisions of Section 30 of the Act, which state that only the advocates are entitled to practice in any court in India.
With regards to Article 19 of the Constitution which guarantees rights to citizens to practice any occupation, the Court observed that the States are open to imposing reasonable restrictions on the right. So, one of such reasonable restrictions imposed on this right is Section 29 of the Advocates Act which states that only advocates are entitled to practice the profession of law.
The Court finally concluded the case by observing that a person who is not an advocate has no right to enter the court. He/she must take prior permission from the Court. Later it is up to the Court to accept or withdraw the permission.
R.K Chawla v Goa antibiotics and pharmaceuticals Pvt Ltd. (2005)
In a similar verdict to the above-mentioned case, the Court, in this case, observed that, although Section 32 of the Advocates Act permits any person who is not an advocate to appear before the court for a case, there is a difference between a right to appear on behalf of some other person and the Court’s permission to allow a non-advocate to appear before it.
The Court further mentioned Section 29 and Section 33 of the Act which states that only advocates can appear before the court. The Court concluded by stating that a power of attorney holder cannot appear before the court unless the Court has granted permission to the holder under Section 32 of the Act.
Hence if a person is a non-advocate, he/she can appear before the court only after taking permission from the Court. The Court further has a right to ask the person on what basis he/she is appearing on behalf of the concerned party.
T.C Mathai v District and Session Judges, Thiruvananthapuram (1999)
In this case, the petitioner claimed to be the power of attorney holder of a couple. He sought permission of the Court to appear and plead before it. The Court, however, declined the request of the petitioner. The petitioner moved the High Court of Kerala under Article 226 of the Constitution. The High Court also dismissed the plea.
Then the petitioner moved to the Supreme Court. The Supreme Court hence observed that Section 2 of the Power of Attorney Act 1882, gives the right to the donee of a power of attorney to do anything with his own name and signature by the authority of the donor. The Act recognizes that the donee may use his own name and signature for any act where sealing is required, by the authority of the donor. Every act so executed shall be in effect with the law as if it had been done by the donee of the power, in the name, and signature of the donor thereof.
Hence, Section 2 of the Power of Attorney Act, cannot hold true to the general provision of a code which states that a particular act should be done by the party concerned and not anyone else. When the code requires that the concerned party should appear before the court, the power of attorney holder cannot take his/her place. It is a different thing if the court has permitted the parties regarding the right of appearance. Otherwise, the accused can in no way send his/her power of attorney on his/her behalf.
The Constitution of India has made it a duty for advocates to provide free legal aid to the needy and poor. The Constitution has also guaranteed the right to practice any profession or any occupation within the territory of India. But on this basis, any person not having the knowledge or adequate skill of that particular job should not take it up.
The Constitution has guaranteed citizens their rights, but with reasonable restrictions. Therefore, when it comes to allowing a non-advocate person to appear before a court under Section 32 of the Advocates Act, there are certain restrictions that stop a non-advocate person from participating in the Court. Lastly, the Advocates Act 1961 is a great addition to the Indian Legal system. The act has brought integration in the context of advocacy in India.
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