Unit-IV

A-DUTIES OF JUDGES IN ADMINISTRATION OF JUSTICE

The administration of justice serves as the bedrock of any civilized society. It embodies
the principles of fairness, equity and the rule of law, ensuring that individuals’ rights are
protected and disputes are resolved in an orderly manner.
Administration of Justice refers to the system and processes that have historically
governed the judicial decisions and actions related to the restriction of liberty. The
administration of justice has played a significant role in promoting the interests of the ruling
party and maintaining social order.

OBJECTIVES OF ADMINISTRATION OF JUSTICE

The primary objectives of the administration of justice are to maintain order, protect
individual rights, ensure fairness and uphold the rule of law.
This multifaceted concept includes both criminal and civil justice systems, with the former
focusing on the punishment of offenders and the latter on providing remedies and
compensation to those who have suffered harm. A well-functioning administration of justice
is essential for promoting social harmony and resolving conflicts within a community.
ORIGIN AND GROWTH OF THE ADMINISTRATION OF JUSTICE

It is human nature to want to live together in a community. We are social beings and
this social nature compels us to be part of a society. However, when people live together, their
different interests can sometimes lead to conflicts, which is why we need a system for
administering justice. In the early days, people would turn to their elders to settle disputes
among them.
This marked the beginning of the development of human societies, progressing from
simple, natural communities to more complex and civilized ones. This progression is
considered the historical foundation for the evolution of systems to administer justice.
As the need for a formal system of justice became evident, the concept of the State was born.
In the beginning, these early forms of the State didn’t have the strength to effectively control
crime and punish wrongdoers. However, today, we have Magistrates and Judges who are
responsible for carrying out this essential function.
TYPES OF ADMINISTRATION OF JUSTICE
CRIMINAL ADMINISTRATION OF JUSTICE
The administration of criminal justice deals with public wrongs, which are offences
outlined in the Indian Penal Code (IPC). Its primary aim is to punish offenders. Punishment, in
this context, refers to the imposition of consequences, typically considered undesirable (e.g.,
imprisonment or death penalty), by the state authority upon individuals found legally guilty of
committing a crime.
The primary objectives of criminal justice are to punish wrongdoers (offenders) and
maintain law and order in society. The state is responsible for punishing criminals. Punishment
serves various purposes, including deterring individuals from repeating crimes, expressing
society’s disapproval of antisocial behaviour and seeking to reform and rehabilitate offenders
while protecting society from criminal activity.
CIVIL ADMINISTRATION OF JUSTICE
Civil justice administration aims to provide relief, often in the form of compensation or
other remedies, to the injured party. It deals with the enforcement of two types of rights:
primary rights and sanctioning rights.
Primary rights are those inherent rights that exist independently and do not stem from any
wrongdoing.
Sanctioning rights emerge as a result of the violation of primary rights. When a primary right
is infringed upon, a sanctioning right comes into play. For instance, if a valid contract (a
primary right) is breached, the right to claim damages for the losses suffered due to the breach
becomes a sanctioning right.
Primary rights can be enforced through specific performance while sanctioning rights are
enforced through sanctioning enforcement proceedings.
ETHICS OF JUDGES & JUDICIAL ACCOUNTABILITY
In a Democracy, the Judiciary, as a custodian of constitutional rights and obligations
cannot be above public accountability. Judicial independence and accountability are
interlinked. Hon'ble Mr. Justice S.H. Kapadia, Chief Justice of India said: “When we talk of
ethics, the judges normally comment upon ethics among politicians, students and professors
and others. But I would say that for a judge too, ethics, not only constitutional morality but
even ethical morality, should be the base.

History teaches us that no justice can gain public respect by making it immune from
public criticism; instead public confidence is reposed on an institution on the basis of its
performance and transparency of its action. The same holds ground from the Indian Judiciary.
Besides the aforesaid, a criminal law on defamation itself provides adequate safeguards to
protect the reputation and dignity of the honest Judges in the country.

For proper implementation of this concept of judicial accountability, it is necessary that

the Judges should follow a code of conduct which may be broadly called as ethics for Judges.

THE JUDGE’S ROLE IN CRIMINAL JUSTICE ADMINISTRATION

Judges play many roles. They interpret the law, assess the evidence presented, and
control how hearings and trials unfold in their courtrooms. Most important of all, judges are
impartial decision-makers in the pursuit of justice.

Legal cases are contests between opposing sides, which ensures that evidence and legal
arguments will be fully and forcefully presented. The judge, however, remains above the fray,
providing an independent and impartial assessment of the facts and how the law applies to
those facts.

Almost all civil cases and criminal ones are heard by a judge sitting without a jury. The
judge is the “trier of fact,” deciding whether the evidence is credible and which witnesses are
telling the truth. Then the judge applies the law to these facts to determine whether a civil claim
has been established on a balance of probabilities or whether there is proof beyond a reasonable
doubt, in criminal cases, that the suspect is guilty.

Anyone who faces five years or more in prison if convicted of a crime has the right
under the Charter to request a jury trial. The jurors become the triers of fact and assess the
evidence while the judge takes on the role of legal advisor, explaining the law to the jurors.
The jurors then retire to deliberate on a verdict.

In civil cases, the judge decides whether a claim is valid and assesses damages, grants
an injunction or orders some other form of redress to the plaintiff, unless a jury has been
empanelled to make these decisions. In criminal cases, if the defendant is convicted of a crime,
the judge passes sentence, imposing a penalty that can range from a fine to a prison term
depending on the severity of the offence.

Criminal Justice reflects the responses of the society to crimes and criminals. The key
components engaged in this role are the courts, police, prosecution, and defence. Administering
criminal justice satisfactorily in a democratic society governed by rule of law and guaranteed
fundamental rights is a challenging task. It is in this context that the subordinate judiciary
assumes great importance. The role of magistrate is effectively summed up in the words of
Former Chief Justice Ranganath Mishra in a writ petition relating to conditions of subordinate
judiciary in the case of All India Judges’ Association vs. Union of India (1992) 1 SCC 119.

Right to speedy trial is implicit in the right to life and liberty guaranteed by Article 21
of the Constitution of India. However, there is a huge pendency of criminal cases and inordinate
delay in the disposal of the same on the one hand and very low rate of conviction in cases
involving serious crime.

As per the latest amendment, Section 309 of the Cr.PC has been inserted with an
explanation to its sub-clause. With an aim to speed-up trials, the amendment states that no
adjournment should be granted at the party’s request, nor can the party’s lawyer being engaged
in another court be ground for adjournment. Section 309 contains a mandatory provision that
in every inquiry or trial the proceedings shall be held as expeditiously as possible and in
particular when the examination of witnesses has once begun the same shall be continued from
day to day until all witnesses in attendance have been examined unless the court finds the
adjournment of the case beyond the following day to be necessary for reasons to be recorded.
When the enquiry or trial relates to an offence under Section 376 to 376D IPC, the same shall
be completed within a period of two months from the date of commencement of the
examination of witnesses.

The introduction of Plea Bargaining included under sections 265A to 265L of the Code
of Criminal Procedure has also been noticed very effectively. Judicial Officers must be aware
of “offences affecting the socioeconomic condition of the country” for the purpose of Section
265A. A judge should be well versed with the latest amendments and further developments
which take place in law and put them into practice to give effect to the intent of the legislature
which is to speed up the process of delivering justice.

Section 165 of the Indian Evidence Act grants sweeping powers to the Judge to put
questions. The rationale for giving such sweeping powers is to discover the truth and indicative
evidence. Counsel seeks only client’s success; but the Judge must watch justice triumphs. If
criminal court is to be an effective instrument in dispensing justice, Presiding Officer must
cease to be a spectator and mere a recording machine. He must become an active participant in
the trial evincing intelligence and active interest by putting questions to witness in order to
ascertain the truth.

The Code of Criminal Procedure delineates the powers and functions of judicial
magistrates at every stage both pre-trial, during trial and posttrial. I am confident that you are
aware of these provisions and the same require no repetition. However, I wish to remind you
that these powers and functions bestowed upon you are to be exercised as public trust in full
compliance with the Constitutional mandates of fair and speedy trial for both the accused and
the complainant.

Criminal system to be truly just must be free of bias. There should be judicial fairness
otherwise the public faith in rule of law would be broken. One of the cardinal principles of
criminal law is that everyone is presumed to be innocent unless his guilt is proved beyond
reasonable doubt in a trial before an impartial and competent court. Justice requires that no one
be punished without a fair trial and judicial officers play their part in ensuring the same.

FAIR TRIAL TO ACCUSED: CO-RELATIVE DUTIES OF MAGISTRATE

It is well settled today that the accused has fundamental right to know the grounds of
his arrest, right to legal aid in case he is indigent, right to consult his lawyer and such other
rights guaranteed by Constitution and equivalent safeguards incorporated in CrPC. Let’s pause
here and dwell more on the corresponding duties of a magistrate in ensuring fair trial to the
accused.

Article 22(2) provides that every person who is arrested and detained in custody shall
be produced before the nearest magistrate within a period of 24 hours of such arrest and no one
shall be detained in custody beyond the said period without the authority of a magistrate. The
magistrate can pass order of remand to authorise the detention of the accused in such custody
as such magistrate thinks fit, for a term not exceeding 15 days in the whole. Justice Bhagwati
summed up the purpose of these safeguards in Khatri II vs State of Bihar (1981) 1 SCC 627.

“This healthy provision enables the magistrates to keep check over the police
investigation and it is necessary that the magistrates should try enforcing this requirement and
where it is found disobeyed, come down heavily upon the police... There is however, no
obligation on the part of the magistrate to grant remand as a matter of course. The police have
to make out a case for that. It can’t be a mechanical order”.
 Right to know the ground of arrest is conferred the status of fundamental right under
article 22(1). It is reasonable to expect that grounds of arrest communicated in language
understood by the accused. Further, the accused has right to inform his friend or relative of his
arrest. Arrest of a person is a denial of an individual’s liberty which is fundamental to one’s
existence. The fundamental rights will remain mere promise if Magistrates do not ensure
compliance of the same. Hence, magistrates have been given the fundamental duty under
amended section 50A of the Criminal Procedure to satisfy that the police has informed the
arrested person of his rights and made an entry of the fact in book to be maintained in the police
station.

There have been frequent complaints about the police’s noncompliance of the above
mentioned requirements. The magistrates are empowered under section 97 to issue search
warrant which is in the nature of a writ of habeas corpus for rescue of a wrongfully confined
person by intervention of police directed by a magisterial order. If magistrate has reason to
believe that any person is confined under circumstances that amounts to an offence, he may
issue a search warrant and person if found shall be immediately taken before a magistrate.

The accused has a right to be medically examined and if such a request is made, the
Magistrate shall direct examination of the body unless he considers it is made for purpose of
delay or defeating the ends of justice. In Sheela Barse vs State of Maharashtra (1983) 2 SCC
96, it was held by the Hon’ble Supreme Court that the arrested accused person must be
informed by the magistrate about his right to be medically examined in terms of section section
54. In this case, High court directed magistrates to ask the arrested person as to whether he has
any complaint of torture or maltreatment in police custody.

The state under constitutional mandate is required to provide free legal aid to an
indigent accused person and this arises not only when the trial commences but when the
accused is for the first time produced before the magistrate, as also when he is remanded from
time to time. In Anil Yadav v State of Bihar 1982 (2) SCC 195 commonly referred to as
Bhagalpur Blinding case, the judicial magistrates failed in their duties to inform blinded
prisoners of their rights. As a result, the Supreme Court hadto cast a duty on all magistrates and
courts to promptly and duly inform the indigent accused about his right to get free legal aid as
without this the right may prove to be illusory. The right to legal aid today is enshrined in
Article 39A and further institutionalised with the coming into force of the Legal Services
Authorities Act, 1986. This assumes more significance as denial of the same may even vitiate
the trial at later stage.

Further, in Hussainara Khatoon V Case (1980) 1 SCC 108 it was held that it is the duty
of the magistrate to inform the accused that he has a right to be released on bail on expiry of
statutory period of 90 or 60 days as the case may be. Suffice is to say that magistrates are the
best persons to oversee that the accused is not denied his rights.

Criminal justice requires cooperation of the two arms of the state directly involved i.e.
the judiciary and the police machinery. While direct interference is not desirable in
investigation process, the magistrate is kept in the picture at all the stages of the police
investigation. On a conjoint reading of section 57 and 167 of the Code, it is clear that the
legislative intention was to ensure speedy investigation after a person has been taken in
custody. It is expected that investigation is completed within 24 hours and if not possible within
15 days. The role of magistrate is to oversee the course of investigation and prevent abuse of
law by investigating agency. However, you must understand that your role is complementary
to that of police. In doing so, you must preside without fear or favour.

RECORDING CONFESSIONS & DYING DECLARATION

Confessions and dying declarations recorded by magistrate constitute valuable

evidence as they may form the basis of conviction of the accused. Although there is no hard
and fast rule as to proper manner of recording the same, the Magistrate must follow certain
broad guidelines to ensure that the document inspires confidence of the court assessing it.

Just as the FIR recorded is of great importance because it is the earliest information given soon
after the commission of a cognisable offence before there is time to forget, fabricate or
embellish. Similarly the confession made to magistrate is highly valuable evidence. Section
164 empowers magistrate to record even when he has no jurisdiction in the case. Before
recording any such confession, the magistrate is required to explain to the person making
confession that

a) He is not bound to make such a confession

b) If he does so it may be used as evidence against him

These provisions must be administered in their proper spirit lest they become mere
formalities. The magistrate must have reason to believe that it is being made voluntarily. You
must exercise your judicial knowledge and wisdom to find out whether it is voluntary
confession or not. The magistrate must see that the warning is brought home to the mind of the
person making the confession. If the recording continues on another day, a fresh warning is
necessary before a confession is recorded on the other day.

After giving warnings, the magistrate should give him adequate time to think and
reflect. There is no hard and fast rule but the person must be completely free from possible
police influence. Normally such a person is sent to jail custody at least for a day before his
confession is recorded. How much time for reflection should be allowed depends on
circumstances in each case?

The act of recording confession is a solemn act and in discharging such duties the
magistrate must take care to see that the requirements of law are fully satisfied. The magistrate
recording the confession must appreciate his function as one of a judicial officer and he must
apply his judicial mind to the task of ascertaining that the statement the accused is going to
make is of his own accord and not on account of any influence on him.

A dying declaration is an admissible piece of evidence under section 32 of Indian

Evidence Act as it is the first-hand knowledge of facts of a case by the victim himself. I myself
have held in Surinder Kumar vs. State of Haryana (2011) 10 SCC 173, a case relating to wife
burning, that if the dying declaration is true and voluntary, it can be basis of conviction without
corroboration. Thus, proper recording of the dying declaration by the magistrates assumes
significance. There is no exhaustive list of procedures to be followed rather depends on case to
case basis. It may be recorded in the form of question and answers in the language of the
deceased as far as practicable. Before proceeding to record the dying declaration, the magistrate
shall satisfy himself that the declarant is in a fit condition to make a statement and if medical
officer is present, a fitness certificate should be obtained. It is the duty of the magistrate to
ensure the making of a free and spontaneous statement by the declarant without any prompting,
suggestion or aid from any other justice. If possible, at the conclusion of recording, the
declaration must be read out to the declarant and signature must be obtained symbolic of
correctness of the same.

LAW ON ELECTRONIC EVIDENCE

The creation of computers, the social influence of information technology and the
ability to store information in digital form have all required Indian law to be amended to include
provisions on the appreciation of digital evidence. In the year 2000 Parliament enacted the
Information Technology (IT) Act 2000, which amended the existing Indian statutes to allow
for the admissibility of digital evidence. The IT Act is based on the United Nations Commission
on International Trade Law which adopted the Model Law on Electronic Commerce together
with providing amendments to the Indian Evidence Act 1872, the Indian Penal Code 1860 and
the Banker’s Book Evidence Act 1891, recognizing transactions that are carried out through
electronic data interchange and other means of electronic communication. Digital knowledge
has become prerequisite for effective judgeship.

SUMMARY TRIALS: ROLE OF MAGISTRATES IN DELIVERING SWIFT JUSTICE

The magistrates are empowered to deal with summons cases and few specific warrant
cases in a summary way with the clear intention of ensuring speedy justice. They can give an
abridge version of regular trial in offences like petty thefts, house trespass, cattle trespass, insult
to provoke breach of peace and other such offences punishable with imprisonment not
exceeding 2 years.
The inclusion of additional forms of crime, for example, section 138 cases under the
Negotiable Instruments Act or section 498A cases under the Indian Penal Code have
contributed a large number of cases in the criminal courts. Over 38 lakh cheque bouncing cases
are pending in various courts in the country. Huge backlog of cheque bouncing or dishonoured
cheque cases need to be speedily disposed, lest the litigants lose faith in the judicial system and
the purpose of the Act be defeated. In this context, the Law Commission in its 213th Report
has recommended setting up of fast track magisterial courts to for fast disposal of cheque. The
provisions of section 143, as inserted in the Act in 2002, state that offences under section 138
of the Act shall be tried in a summary manner. It empowers the Magistrate to pass a sentence
of imprisonment for a term up to one year and an amount of fine exceeding five thousand
rupees. It also provides that if it appears to the Magistrate that the nature of the case is such
that a sentence of imprisonment for a term exceeding one year may have to be passed, he can
do so after hearing the parties and recalling any witness who may have been examined. Under
this provision, so far as practicable, the Magistrate is expected to conduct the trial on a day-to
day basis until its conclusion and conclude the trial within six months from the date of filing
of the complaint. Further, section 147 makes the offence punishable under section 138 of the
Act compoundable i.e. it can be settled between the parties. The court can note the same and
record the settlement reached. In Damodar S Prabhu vs Sayed Babalal (2010) 5 SCC 663, the
Court laid down certain broad guidelines to ensure that application for compounding is made
at an early stage of trial. The guideline empowers the magistrate to
(a) Give directions making it clear to the accused that he could make an application for
compounding of the offences at the first or second hearing of the case and that if such an
application is made, compounding may be allowed by the court without imposing any costs on
the accused.
(b) If the accused does not make an application for compounding as aforesaid, then if an
application for compounding is made before the Magistrate at a subsequent stage,
compounding can be allowed subject to the condition that the accused will be required to pay
10% of the cheque amount to be deposited as a condition for compounding with the Legal
Services Authority, or such authority as the Court deems fit.
CROSS CASE
In a recent case Dr. Mohammad Khalil Chisti vs. State of Rajasthan involving free fight
where there was cross case, I myself observed with regret the duplication of proceedings in the
same case which should have been ideally heard and disposed of together at both trial and
appellate stage. You may come across similar circumstances where there are allegations and
counter allegation. Where there are two different versions of same incident resulting into two
criminal cases are described as “case and counter case” In such a scenario, you must try the
two cases together. Trial of cross cases presents a variety of ticklish practical issues and
challenges. Under section 319 of the Code, if a magistrate upon hearing a case against certain
accused finds from the evidence that some person, other than the accused before him, is also
concerned in that very offence or in connected offence he should hold trial together.
In State Of M.P vs Mishrilal (2003) 9 SCC 426, both the parties lodged an FIR against
each other in respect of the same incident. The Supreme Court while giving guidance as to the
procedure to be adopted in such cases has observed as follows: -
“The cross- cases should be tried together by the same court irrespective of the nature of the
offence involved. The rationale behind this is to avoid the conflicting judgments over the same
incident because if cross cases are allowed to be tried by two courts separately there is
likelihood of conflicting judgments.”
FINAL REMARK
Section 89 of the CPC allows judges to refer disputes for settlement through ADR
procedures in cases where elements of settlement are discernible. The provisions of Section 89
should be employed wherever the opportunity arises since the same encompasses two
objectives. The referral to ADR decreases the caseload and arrears of the court and thus
increases the time, which can be devoted to contentious matters which cannot be settled through
ADR methods. In addition, the regular employment of Section 89 shall also foster and promote
the method of ADR.
judicial service as service in the sense of employment. The judges are not employees.
They exercise the sovereign judicial power of the state as prime dispensers of justice. Working
in court of law is not purely mechanical but demands ability, alertness, resourcefulness, tact
and imagination. Changing dynamics of our legal system demands that judges be in continuous
training and education.
If independent and efficient judicial system is to remain the basic structure of our
Constitution, a competent subordinate judiciary is its indispensable link. I have full faith that
you will fulfil this role dutifully and efficiently.
B-Duties of Advocates in Administration of Justice
Lawyers play an important part in the administration of justice. The Profession itself requires
the safeguarding of high moral standards. As an officer of the Court the overriding duty of a
lawyer is to the Court, the standards of his profession and to the public. Since the main job of
a lawyer is to assist the Court in dispensing justice, the members of the Bar cannot behave with
doubtful scruples or strive to thrive on litigation. Lawyers must remember that they are equal
partners with Judges in the administration of justice. If lawyers do not perform their function
properly, it would be destructive of democracy and the rule of law. "Law is no trade, briefs no
merchandise". An advocate being an officer of the Court has a duty to ensure smooth
functioning of the Court. He has to revive the person in distress and cannot exploit the
helplessness of innocent litigants. A wilful and callous disregard for the interests to the client
may in a proper case be characterized as conduct unbefitting an advocate. See : In Re :
Rameshwar Prasad Goyal, Advocate, AIR 2014 SC 850.
Right to practice as an advocate is not a fundamental right under Article 19(1)(g) of the
Constitution but only a statutory right:
Right of an advocate to practice is not a fundamental right under Article 19(1)(g) of the
Constitution of India but a statutory right under the Advocates Act, 1961. Therefore, subject to
conditions laid down in the Act and Rules, expression "subject to" occurring in Section 30 is
included in Section 34 of the Act viz. the rule-making power of High Court. See: Bar Council
of India Vs. High Court of Kerala, AIR 2004 SC 2227 (Three-Judge Bench).
Legal Profession and Lawyer-Client Relationship and Duties of Lawyers :
The relationship between the lawyer and his client is one of trust and confidence. The client
engages a lawyer for personal reasons and is at liberty to leave him also for the same reasons.
He is under no obligation to give reasons for withdrawing his brief from his lawyer. The lawyer
is not an agent of his client but he is dignified and responsible spokesman. He is not bound to
tell the court every fact or urge every proposition of law which his client wants him to do,
however relevant it may be. He is essentially an advisor to his client and is rightly called a
counsel in some jurisdictions. Legal profession is essentially a service-oriented profession. The
lawyer of the Govt. or a public body is not its employee but is a professional practitioner to do
the specified work, though the lawyers on the full time rolls of the Govt. and the public bodies,
are described as their law officers. It is precisely for this reason that in the case of such law
officers, the saving clause of rule 49 of the Bar Council of India Rules waives the prohibition
imposed by the said rule against the acceptance by a lawyer of a full time employment. The
Supreme Court has quite elaborately discussed in this case the role and powers of legal
professionals, lawyers-client relationship, position and powers of Legal Remembrancer in the
context of U.P. Legal Remembrance Manual. See : State of U.P. vs. U.P. State Law Officers
Association, (1994) 2 SCC 204.
Advocates as officers of courts:
An Advocate being an officer of the Court has a duty to ensure smooth functioning of the Court.
See: In Re : Rameshwar Prasad Goyal, Advocate, AIR 2014 SC 850.
Lawyers are equal partners with the Judges in the administration of justice :
Lawyers are equal partners with the Judges in the administration of justice. See : In Re :
Rameshwar Prasad Goyal, Advocate, AIR 2014 SC 850.
Lack of proper knowledge of an advocate is bound to adversely affect the rights of
litigants and also the administration of justice:
The administration of justice is a sacrosanct function of the judicial institutions or the
persons entrusted with that onerous responsibility and principle of judicial review has now been
declared as a part of the basic structure of the Constitution. Therefore, if anything has the effect
of impairing or hampering the quality of administration of justice either due to lack of
knowledge or proper qualification on the part of the persons involved in the process of justice
dispensation or they being not properly certified by the Bar Council as provided under the
Advocates Act, 1961 and the Rules made thereunder, it will surely affect the administration of
justice and thereby affect the rights of litigants who are before the courts seeking justice. See :
Jamshed Ansari Vs. High Court of Judicature at Allahabad & Others, (2016) 10 SCC 554 (para
19).
Advocate not to substitute his name for the name of party:
An advocate cannot maintain a petition on behalf of his clients (accused persons). In
view of Sec. 30 of the Advocates Act, 1961, an advocate cannot file a writ petition in his own
name to pursue the cause of his clients. See : Vinoy Kumar vs. State of U.P., (2001) 4 SCC
734.
Party not to suffer for a bonafide mistake or negligence of his counsel:
If there is a bonafide mistake or negligence on the part of the lawyer, the party should
not be made to suffer. But it is equally true that for the negligence of the counsel of one party,
the other party should not suffer. See : Smt. Leela Bhanott vs. Petrolube India, (2006) 64 ALR
403.
Advocate has no right to remain absent from court :
An advocate has no right to remain absent from court when the case of his client comes
up for hearing. He is duty bound to attend the case in court or to make an alternative
arrangement. Non-appearance in court without “sufficient cause” cannot be excused. Such
absence is not only unfair to the client of the Advocate but also unfair and dis-courteous to the
court and can never be countenanced. When a party engages an advocate, who is expected to
appear at the time of hearing but fails to so appear, normally, a party should not suffer on
account of default or non-appearance of the Advocate. In terms of the explanation to Order 41,
Rule 17 CPC, an appeal can be dismissed in default and not on merits. In the event of default
by the appellant or his counsel, the appeal can only be dismissed in default. See: 1. Secretary,
Department of Horticulture, Chandigarh vs. Raghu Raj, (2008) 13 SCC 395.
Advocate has duty to represent an arrested/detained person:
Where the Advocate husband of a selected Civil Judge (Junior Division) was practicing
as an Advocate in the courts at Markapur (Andhra Pradesh) and the said Advocate was engaged
and representing certain accused persons allegedly belonging to CPI (Maoist) Party, a
prohibited organization, and on receiving a verification report from police to that effect, the
selected female Civil Judge (Junior Division) was not issued appointment letter on the ground
that her Advocate husband was representing the said accused persons belonging to a prohibited
organization like CPI (Maoist) Party, setting aside the said decision of the Government of
Andhra Pradesh regarding not issuing appointment letter to the said selectee on the ground
aforesaid, it has been held by the Hon'ble Supreme Court that in view of the provisions of the
Article 22(1) of the Constitution of India, Section 49 of the Advocates Act, 1961 and Rules 11
& 15 of the Bar Council of India Rules, 1975, an Advocate representing an arrested or detained
person cannot be criticized and every arrested/detained person has constitutional right to be
defended lawfully and an Advocate has corresponding duty to represent him. See : Smt. K.
Vijaya Lakshmi Vs Govt. of AP, AIR 2013 SC 3589.
Counsel deemed to represent the party in court unless withdraws from the case under
order of court (Order 3, rule 4 CPC):
According to Order 3, rule 4 CPC a counsel is deemed to continue to represent the party
in the court unless he formally withdraws from the case under order of the court. See : 1. Ashok
Kumar Dhiman vs. Smt. Chandrawati Mehta, 1996 (27) ALR 6 (All) 2. Smt. Champa Devi vs.
U.P. State Electricity Board, 1992 (2) ARC 634.
Withdrawal from case by counsel without leave from court & its effect :
Where the counsel engaged by the party had recorded an endorsement to the effect “I
withdraw” it has been held that such endorsement is to be treated as an action without any leave
from the court which cannot be taken as a good ground for setting aside the exparte decree by
way of an application under Order 9, rule 13 CPC. See: Smt. Veena Agarwal vs. M/s. Unjha
Ayurvedic Pharmacy, 2007 (67) ALR 282.
Punishment of Advocates for misconduct (Section 35):
Section 35 of the Advocates Act, 1961 empowers the State Bar Councils to refer
complaint received against an Advocate for misconduct to its Disciplinary Committee. Similar
power has also been conferred by Section 36 on the Bar Council of India which is also the
appellate authority against the punishment awarded by the State Bar Councils. On being found
guilty, the Bar Council may suspend or debar the Advocate from practicing in any court or
before any authority or person in India. Important cases on disciplinary proceedings against
Advocates are as under: (i) N.G. Dastane Vs. Shrikant Shivade, AIR 2001 SC 2028 (ii) S.
Narayanappa Vs. CIT, Bangalore, AIR 1967 SC 523

Duties of an Advocate
There are duties of an advocate. As officers of the court and advocates of justice,
advocates play a crucial role in the legal system of India. Advocates are expected to fulfil their
duties diligently, ethically, and in accordance with the law to ensure the proper administration
of justice. The legal profession in India is governed by the Advocates Act, 1961, which outlines
the rights, privileges, and responsibilities of advocates.
In this article, we will explore the various duties of an advocate in India, including their ethical
obligations, responsibilities towards the court, clients, and society, and the relevant provisions
under the Advocates Act, 1961.
Introduction to the Advocates Act and Bar Council Rules
The Advocates Act, 1961 is a comprehensive legislation that regulates the legal
profession in India. It defines the term “advocate” and lays down the qualifications, rights, and
duties of an advocate. The Act provides for the creation of the Bar Council of India (BCI),
which is the regulatory body for advocates in India, as well as the state bar councils.
The Advocates Act, 1961 empowers the bar councils to prescribe the standards of
professional conduct and etiquette for advocates and also empowers them to take disciplinary
action against advocates for professional misconduct.
Bar Council of India Rules, also known as the “Standards of Professional Conduct and
Etiquette” lays down the specific duties and responsibilities of advocates.
Any violation of the ethical duties and professional responsibilities by an advocate may result
in disciplinary proceedings before the Bar Council. The Bar Council of India has the authority
to take disciplinary action against advocates who are found guilty of professional misconduct.
The disciplinary proceedings may include inquiries, hearings, and imposition of penalties,
including suspension or cancellation of the advocate’s license to practice law.
Advocates are also subject to the jurisdiction of the courts, and the courts have the authority to
take action against advocates for any act of misconduct or breach of duties during court
proceedings. The courts may impose fines, reprimand, or take other appropriate actions against
advocates who violate their ethical duties or professional responsibilities.
1. Duties of an Advocate towards the Court
Duty to uphold the dignity and decorum of the court
Advocates have a solemn duty to maintain the dignity and decorum of the court. They
must conduct themselves in a manner that upholds the dignity and respect of the judiciary, and
refrain from engaging in any act or behaviour that may undermine the integrity or authority of
the court.
Advocates are expected to address the court with respect, use appropriate language, and follow
the court’s rules and procedures.
Duty to assist the court in the administration of justice
Advocates have a duty to assist the court in the administration of justice. They must
present their cases honestly, fairly, and with utmost sincerity. Advocates are officers of the
court and have a duty to ensure that justice is served and that the truth is brought before the
court. They must not withhold any material information from the court or mislead the court in
any manner.
Duty of confidentiality
Advocates have a duty to maintain the confidentiality of their client’s information. They
must not disclose any confidential information or privilege without their client’s consent unless
required by law. Advocates must protect their client’s interests and ensure that their client’s
information is not divulged to unauthorized persons.
Duty to be candid with the court
Advocates have a duty to be candid and forthright with the court. They must not
misrepresent facts, cite false authorities, or present misleading arguments.
Advocates must present their cases honestly and must not engage in any activity that
may undermine the integrity of the legal profession or the administration of justice.
Duty to respect the orders of the court
Advocates have a duty to respect and abide by the orders of the court, whether they
agree with them or not. Advocates must comply with the orders of the court and must not
engage in any activity that may obstruct or interfere with the administration of justice.
Disrespecting or disregarding the orders of the court can have serious consequences,
including disciplinary action by the bar council.
Duty to be punctual and prepared
Advocates have a duty to be punctual and prepared for all court hearings and
proceedings. Advocates must arrive in court on time, be fully prepared with all necessary
documents, evidence, and arguments, and be ready to present their case before the court.
Advocates must also be familiar with the relevant laws, rules, and procedures applicable to
their case, and must not cause any delays or adjournments due to their lack of preparation.
Duty of fair and honest advocacy
Advocates have a duty of fair and honest advocacy in court. Advocates must not
knowingly make false statements, suppress material facts, or mislead the court or opposing
parties.
Advocates must present their case honestly, fairly, and in good faith, and must not
engage in any conduct that may compromise the integrity of the judicial process. Advocates
must also not indulge in any sharp practice or unethical tactics to gain an unfair advantage in
court.
Duty to refrain from criticism of the court
Advocates have a duty to refrain from making any unwarranted criticism of the court
or its officers. Advocates must not make derogatory remarks, use disrespectful language, or
engage in any conduct that may undermine the dignity or authority of the court.
Advocates must always maintain a respectful and professional demeanour in their interactions
with the court, even if they disagree with a court’s decision or ruling.
Duty to comply with court orders and directions
Advocates have a duty to comply with court orders and directions. Advocates must not
defy or obstruct the implementation of court orders or directions and must take necessary steps
to ensure compliance.
Advocates must also not engage in any conduct that may be deemed contumacious or
disobedient towards the court, as it undermines the authority and integrity of the judicial
system.
Duty to avoid frivolous
Advocates have a duty to avoid initiating or pursuing frivolous or vexatious litigation.
Advocates must thoroughly examine the merits of a case and advise their clients accordingly.
Advocates must not file or defend a case that lacks legal or factual basis or is intended solely
to harass or burden the court or the opponent.
2. Duties of an Advocate towards Clients
Duty of loyalty and commitment
Advocates have a primary duty towards their clients. They must act in the best interests
of their clients and diligently represent their clients’ legal rights and interests. Advocates must
maintain a high level of loyalty, commitment, and confidentiality towards their clients.
They must strive to achieve the objectives of their client’s cases to the best of their abilities,
within the bounds of law and ethics.
Duty to provide competent and diligent representation
Advocates have a duty to provide competent and diligent representation to their clients.
They must possess the requisite knowledge, skill, and expertise to handle the legal matters
entrusted to them.
Advocates must stay updated with the developments in the law and diligently prepare
and present their cases in a competent manner. They must also communicate with their clients
regularly and keep them informed about the progress of their cases.
Duty of disclosure and informed consent
Advocates have a duty to disclose all relevant facts to their clients and obtain their
informed consent before taking any action on their behalf. Advocates must provide complete
and accurate information to their clients regarding the legal implications, risks, and possible
outcomes of their cases.
Clients have the right to be fully informed about their legal matters and make informed
decisions based on the advice and information provided by their advocates.
Duty to avoid conflicts of interest
Advocates have a duty to avoid conflicts of interest between their clients and
themselves or their associates. Advocates must not represent conflicting interests that may
compromise their loyalty, integrity, or objectivity towards their clients.
They must disclose any potential conflicts of interest to their clients and obtain their informed
consent before proceeding with the representation.
Duty to maintain professional integrity and independence
Advocates have a duty to maintain professional integrity and independence. They must
not engage in any act that may compromise their integrity, independence, or impartiality.
Advocates must not allow any undue influence, pressure, or consideration to interfere with
their professional judgment or compromise the interests of justice.
Duty to maintain communication and updates
Advocates have a duty to maintain regular communication and updates with their
clients. Advocates must keep their clients informed about the progress of the case, court dates,
developments, and any other relevant information.
Advocates must also promptly respond to their client’s queries, concerns, and instructions, and
not ignore or neglect their clients’ interests.
Duty to act in the best interests of the client
Advocates have a primary duty to act in the best interests of their clients. Advocates
must always prioritize their client’s rights, interests, and instructions, and not compromise their
clients’ position for their own personal gain or interests.
Advocates must act with loyalty, sincerity, and professionalism in advancing their client’s
cause.
3. Duties of an Advocate towards Society
Duty to promote access to justice
Advocates have a duty to promote access to justice and ensure that justice is accessible
to all, irrespective of their social, economic, or personal background. Advocates must not refuse
legal representation to any person on the grounds of discrimination, bias, or prejudice.
They must strive to provide legal aid and pro bono services to the indigent and marginalized
sections of society.
Duty to promote legal education and awareness
Advocates have a duty to promote legal education and awareness among the general
public. They must strive to educate the public about their legal rights, obligations, and
remedies. Advocates must also contribute to legal research, writing, and publications to
enhance the knowledge and understanding of the law in society.
Duty to uphold the rule of law and social justice
Advocates have a duty to uphold the rule of law and promote social justice. They must
use their legal skills and knowledge to prevent and redress any violation of human rights,
injustice, discrimination, or abuse of power.
Advocates must also strive to eradicate corruption and promote transparency, accountability,
and fairness in the legal system.
4. Duties of an Advocate towards Colleagues
Duty of professional courtesy and cooperation
Advocates have a duty to treat their colleagues with professional courtesy, respect, and
cooperation. They must not engage in any conduct that may harm the reputation or interests of
their colleagues. Advocates must strive to maintain a cordial and professional relationship with
their colleagues and promote a healthy and harmonious working environment within the legal
profession.
Duty to report professional misconduct
Advocates have a duty to report any instance of professional misconduct by their
colleagues to the appropriate authorities, such as the Bar Council or the court. Advocates must
not shield or protect their colleagues who engage in unethical or illegal conduct.
Reporting professional misconduct is essential to maintain the integrity and reputation of the
legal profession and uphold the interests of justice.
Duty to mentor and guide junior advocates
Advocates who have gained experience and expertise in the legal profession have a
duty to mentor and guide junior advocates. They must share their knowledge, skills, and
experience with junior advocates and help them in their professional development.
Advocates must also strive to maintain a healthy and respectful relationship with their juniors,
providing them with guidance, support, and constructive feedback.
5. Duties of an Advocate towards the Bar Council
Duty to comply with the code of ethics
Advocates have a duty to comply with the code of ethics and professional standards
laid down by the Bar Council. Advocates must be familiar with the rules, regulations, and
guidelines of the Bar Council and must adhere to them in their professional conduct.
Advocates must also cooperate with any inquiries, investigations, or disciplinary proceedings
initiated by the Bar Council and provide all necessary information and documents.
Duty to pay dues and fees
Advocates have a duty to promptly pay their dues, fees, and subscriptions to the Bar
Council. Advocates must also promptly respond to any communications, notices, or
requirements from the Bar Council and comply with their regulations and procedures.
Duty to participate in Bar Council activities
Advocates have a duty to actively participate in the activities of the Bar Council, such
as elections, meetings, seminars, and workshops. Advocates must also contribute to the welfare
and development of the legal profession by providing feedback, suggestions, and inputs to the
Bar Council for its better functioning.
Duty to abide by the rules and regulations of the Bar Council
Advocates have a duty to abide by the rules, regulations, and code of conduct prescribed
by the Bar Council of India or the State Bar Council. Advocates must familiarize themselves
with the applicable rules and regulations and must comply with them in all their professional
activities.
Advocates must also keep themselves updated with any changes or amendments to the rules
and regulations of the Bar Council, and must adhere to them at all times.
Duty to report misconduct
Advocates have a duty to report any misconduct or unethical behaviour of fellow
advocates to the Bar Council. If an advocate becomes aware of any violation of the Advocates
Act, the Bar Council rules, or any other ethical standards by another advocate, they must
promptly report such misconduct to the Bar Council for appropriate action.
Advocates must also cooperate with the Bar Council in any investigation or disciplinary
proceedings related to such misconduct.
6. Duties of an Advocate towards Opposite Party and Opposite Counsel
Duty of fairness and respect towards the opposite party
Advocates have a duty of fairness and respect towards the opposite party. Advocates
must not engage in any conduct that may harass, intimidate, or bully the opposite party.
Advocates must also not indulge in any acts of misconduct, such as misrepresentation,
suppression of evidence, or manipulation of facts, that may prejudice the rights and interests
of the opposite party.
Duty of professional courtesy towards opposite counsel
Advocates have a duty of professional courtesy towards the opposite counsel.
Advocates must treat the opposite counsel with respect, dignity, and professionalism. They
must not engage in any conduct that may undermine the reputation or interests of the opposite
counsel.
Advocates must also not make any personal attacks or use derogatory language against
the opposite counsel during court proceedings.
Duty to avoid conflicts of interest with the opponent
Advocates have a duty to avoid conflicts of interest with the opponent. Advocates must
not represent conflicting interests that may compromise their ability to provide unbiased and
effective representation to their clients.
Advocates must also not engage in any activities that may be deemed as collusive or unethical,
which may result in a compromise of the opponent’s rights or interests.
7. Duties of an Advocate Towards the Legal Profession
Duty to uphold the dignity and honour of the legal profession
Advocates have a duty to uphold the dignity, honour, and integrity of the legal
profession. Advocates must maintain high standards of professional conduct, ethics, and
morality.
Advocates must not indulge in any conduct that may bring disrepute to the legal
profession or erode public confidence in the legal system. Advocates must also not engage in
any activities that may compromise their independence, impartiality, or integrity as a legal
professional.

Duty to promote legal education and professional development

Advocates have a duty to promote legal education and professional development.
Advocates must continuously update their knowledge, skills, and expertise in the field of law
through regular study, research, and training.
Advocates must also share their knowledge and experience with junior advocates and
law students to contribute to the growth and development of the legal profession. Advocates
must actively participate in legal seminars, workshops, and training programs to enhance their
professional competence and stay updated with the latest legal developments.
Duty to maintain professional conduct and etiquette
Advocates have a duty to maintain professional conduct and etiquette in their
interactions with clients, opponents, judges, court staff, and other stakeholders in the legal
system. Advocates must conduct themselves with dignity, courtesy, and respect towards all
parties involved in a case, irrespective of their personal opinions or differences.
Advocates must also refrain from engaging in any behaviour that may be deemed
unprofessional, unethical, or contemptuous of the court.
Duty to avoid misleading or false statements
Advocates have a duty to avoid making misleading or false statements in the course of
their professional practice. Advocates must not make any false, exaggerated, or misleading
claims about their qualifications, experience, or success rates to attract clients or gain an unfair
advantage in a case.
Advocates must also refrain from making any false statements or presenting fabricated
evidence in court, as it undermines the integrity of the legal profession and the justice system.
Duty to respect the authority of the court
Advocates have a duty to respect the authority of the court and uphold the dignity and
integrity of the judicial system. Advocates must not indulge in any behaviour that may
undermine the authority of the court or obstruct the administration of justice.
Advocates must comply with the rules, procedures, and orders of the court, and not
engage in any conduct that may be deemed disrespectful, disobedient, or contemptuous of the
court.
Advocacy is a noble profession that plays a crucial role in the administration of justice.
Advocates, as officers of the court, have certain duties and responsibilities towards the court,
their clients, opposing counsel, and the Bar Council. The duties of an advocate are enshrined
in the Advocates Act, 1961, and the Bar Council of India Rules, and advocates are expected to
uphold them with the utmost professionalism and integrity.
The various duties of an advocate in India, including their duty to the court, duty to the
client, duty to opposing counsel, and duty to the Bar Council. We have highlighted the relevant
provisions from the Advocates Act, 1961, and the Bar Council of India Rules that outline these
duties. With duties, there are rights of advocate too.
By upholding their duties, advocates can contribute to the effective functioning of the
legal system, protect the rights and interests of their clients, maintain the dignity and integrity
of the legal profession, and promote justice in society.
Rules on an Advocate's Duty Towards the Court
1. Act in a dignified manner
During the presentation of his case and also while acting before a court, an advocate should
act in a dignified manner. He should at all times conduct himself with self-respect. However,
whenever there is a proper ground for serious complaint against a judicial officer, the advocate
has the right and duty to submit his grievance to proper authorities.
2. Respect the court
An advocate should always show respect towards the court. An advocate has to bear in mind
that the dignity and respect maintained towards judicial office is essential for the survival of
a free community.
3. Not communicate in private
An advocate should not communicate in private to a judge with regard to any matter pending
before the judge or any other judge. An advocate should not influence the decision of a court
in any matter using illegal or improper means such as coercion, breach, bribe etc.
4. Refuse to act in an illegal manner towards the opposition
An advocate should refuse to act in an illegal or improper manner towards the opposing
counsel or the opposing parties. He shall also use his best efforts to restrain and prevent his
client from acting in any illegal, improper manner or use unfair practices in any mater towards
the judiciary, opposing counsel or the opposing parties.
5. Refuse to represent clients who insist on unfair means
An advocate shall refuse to represent any client who insists on using unfair or improper means.
An advocate shall excise his own judgment in such matters. He shall not blindly follow the
instructions of the client. He shall be dignified in use of his language in correspondence and
during arguments in court. He shall not scandalously damage the reputation of the parties on
false grounds during pleadings. He shall not use unparliamentary language during arguments
in the court.
6. Appear in proper dress code
An advocate should appear in court at all times only in the dress prescribed under the Bar
Council of India Rules and his appearance should always be presentable.
7. Refuse to appear in front of relations
An advocate should not enter appearance, act, plead or practice in any way before a judicial
authority if the sole or any member of the bench is related to the advocate as father,
grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother,
daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law
daughter-in-law or sister-in-law.
8. Not to wear bands or gowns in public places
An advocate should not wear bands or gowns in public places other than in courts, except on
such ceremonial occasions and at such places as the Bar Council of India or as the court may
prescribe.
9. Not represent establishments of which he is a member
An advocate should not appear in or before any judicial authority, for or against any
establishment if he is a member of the management of the establishment. This rule does not
apply to a member appearing as “amicus curiae” or without a fee on behalf of the Bar Council,
Incorporated Law Society or a Bar Association.
10. Not appear in matters of pecuniary interest
An advocate should not act or plead in any matter in which he has financial interests. For
instance, he should not act in a bankruptcy petition when he is also a creditor of the bankrupt.
He should also not accept a brief from a company of which he is a Director.
11. Not stand as surety for client
An advocate should not stand as a surety or certify the soundness of a surety that his client
requires for the purpose of any legal proceedings.
Rules on Advocate's Duty to Opponents
1. Not to negotiate directly with opposing party
An advocate shall not in any way communicate or negotiate or call for settlement upon the
subject matter of controversy with any party represented by an advocate except through the
advocate representing the parties.
2. Carry out legitimate promises made
An advocate shall do his best to carry out all legitimate promises made to the opposite party
even though not reduced to writing or enforceable under the rules of the Court.
Rules on an Advocate's Duty Towards Fellow Advocates
1. Not advertise or solicit work
An advocate shall not solicit work or advertise in any manner. He shall not promote
himself by circulars, advertisements, touts, personal communications, interviews other than
through personal relations, furnishing or inspiring newspaper comments or producing his
photographs to be published in connection with cases in which he has been engaged or
concerned.
2. Sign-board and Name-plate
An advocate's sign-board or name-plate should be of a reasonable size. The sign-board
or name-plate or stationery should not indicate that he is or has been President or Member of
a Bar Council or of any Association or that he has been associated with any person or
organisation or with any particular cause or matter or that he specialises in any particular type
of work or that he has been a Judge or an Advocate General.
3. Not promote unauthorized practice of law
An advocate shall not permit his professional services or his name to be used for promoting
or starting any unauthorised practice of law.
4. An advocate shall not accept a fee less than the fee which can be taxed under rules when
the client is able to pay more.
5. Consent of fellow advocate to appear
An advocate should not appear in any matter where another advocate has filed a vakalt
or memo for the same party. However, the advocate can take the consent of the other advocate
for appearing.
In case an advocate is not able to present the consent of the advocate who has filed the
matter for the same party, then he should apply to the court for appearance. He shall in such
application mention the reason as to why he could not obtain such consent. He shall appear
only after obtaining the permission of the Court.
C-Rights and Privileges of Advocates
In India, the rights of advocates are protected by the Advocates Act, 1961 which
outlines the legal framework governing the legal profession in the country. These rights ensure
that advocates can effectively perform their duties towards their clients, the court, and the legal
system while upholding the principles of professional ethics and integrity.
Advocacy is a noble profession that plays a crucial role in the administration of justice.
Advocates, also known as lawyers, are legal professionals who represent their clients in courts
and provide legal advice and assistance in various legal matters.
Right to Practice (Section 30)
The right to practice law is a fundamental right of advocates in India. Section 30 of the
Advocates Act, 1961, explicitly recognises the right of advocates to practice in all courts,
including the Supreme Court, High Courts, and subordinate courts. Advocates have the right
to appear, plead, and act on behalf of their clients in any court or tribunal, and to perform all
other functions conferred upon them by law.
 This right ensures that advocates can freely exercise their professional skills and
represent their clients without any undue restrictions, thus upholding the principles of access
to justice and the rule of law.
However, this right is subject to certain conditions, such as the advocate being enrolled
with the appropriate Bar Council, complying with the code of conduct for advocates, and
possessing the necessary qualifications and experience as required by law.
Rights of Advocate to Pre-audience
Advocates in India have the right to pre-audience, which means the right to access and
inspect the records, documents, and proceedings of a case before it is taken up for a hearing in
court. This right allows advocates to prepare their cases thoroughly, understand the facts and
legal issues involved, and effectively represent their clients.
The right to pre-audience is essential for advocates to provide competent legal
representation and ensure that their client’s interests are adequately safeguarded. This right is
recognised by various provisions of the Advocates Act, 1961, and the rules of procedure of the
courts, which provide advocates with the opportunity to examine the case records and gather
relevant information before presenting their arguments in court.
Right to Freedom of Speech and Expression of a Advocate
Advocates have the right to freedom of speech and expression, which includes the right
to express their opinions or criticisms about the legal system, judiciary, its functioning, or its
decisions. This right is recognised as a fundamental right under Article 19(1)(a) of the
Constitution of India, which guarantees the freedom of speech and expression to all citizens.
Advocates play a vital role in advocating for the rights and interests of their clients, and
they have the right to voice their opinions or concerns on legal matters that affect their clients
or the legal profession as a whole. However, this right should be exercised responsibly and in
adherence to the code of conduct for advocates, which prohibits any disrespectful or derogatory
remarks about the judiciary or other legal professionals.
Advocate’s Right to Enter any Court and Observe the Proceedings
Advocates have the right to enter any court and observe the proceedings, even if they
are not representing any party in the case. This right allows advocates to gain knowledge and
insights into the functioning of the court, understand the legal process, and stay updated with
the latest developments in the law.
Advocates can also learn from the arguments and strategies of other advocates, observe
the judicial process, and enhance their legal skills through this right. This right is recognised
by the provisions of the Advocates Act, 1961, and the rules of procedure of the courts, which
permit advocates to be present in courtrooms and observe the proceedings.
Rights of Advocate Against Arrest
Advocates have the right against arbitrary arrest or detention while performing their
professional duties. This right ensures that advocates can freely and fearlessly represent their
clients without any hindrance or intimidation.
The Advocates Act, 1961, specifically provides for this right under Section 32, which
states that no advocate shall be arrested or detained in any civil or criminal case while going to
or attending a court, or while returning from a court. However, this right is subject to certain
exceptions, such as when an advocate is reasonably suspected of committing a cognisable
offence, or when an arrest warrant is issued against the advocate by a competent court.
Rights of Advocate Meet with Accused
Advocates can meet and consult with their clients, including accused persons, in
private, without any interference or monitoring. This right is essential for advocates to
effectively represent their clients and provide legal advice and assistance.
The right to meet with accused persons in private is recognised by various provisions
of the Advocates Act, 1961, and the rules of procedure of the courts. Advocates can meet their
clients in police custody or in jail, and have the right to discuss the case, gather information,
and prepare the defence strategy in confidence.
This right ensures that advocates can uphold the principles of attorney-client privilege and
maintain the confidentiality of their communication with their clients.
Rights of Advocate to Secure the Privacy of Communication
Advocates have the right to secure the privacy of their communication with their clients,
which includes the right to protect the confidentiality of information shared by their clients.
This right is crucial for advocates to maintain the trust and confidence of their clients, and to
effectively represent their interests.
The Advocates Act, 1961, and the rules of professional conduct for advocates,
specifically provide for this right under various provisions, which prohibit advocates from
divulging any information or communication received from their clients, except with their
consent or as required by law. Advocates are also duty-bound to protect the privileged
communication and legal documents of their clients from any unauthorised access or
disclosure.
Right to Take Fee
Advocates have the right to receive reasonable fees for the professional services
rendered to their clients. This right ensures that advocates can earn a livelihood from their
practice and sustain their profession.
The Advocates Act, 1961, and the rules of professional conduct for advocates,
recognise this right and provide guidelines for determining fees and the mode of their recovery.
Advocates are entitled to charge fees based on their professional expertise, experience, and the
nature of the case, and are duty-bound to be transparent and fair in their fee agreements with
their clients. Advocates also have the right to sue their clients for their unpaid fees, subject to
the rules of professional conduct and the applicable laws.
Rights of Advocate to Refuse a Case
Advocates have the right to refuse to accept a case if they have sufficient reasons to
believe that the case is against their professional ethics or principles, or if they have a conflict
of interest. This right ensures that advocates can maintain their independence and integrity, and
avoid any compromise on their professional duties towards the court and their clients.
The Advocates Act, 1961, and the rules of professional conduct for advocates, recognise this
right and provide guidelines for advocates to refuse a case. Advocates are not bound to accept
every case that comes their way, and they have the right to decline representation if they have
valid reasons to do so.
However, this right is subject to certain exceptions, such as when an advocate is
appointed by the court to represent a party in a criminal case, or when an advocate is engaged
by the State to provide legal aid services. In such cases, advocates may be required to accept
the case, subject to the rules of professional conduct and the applicable laws.
The rights of advocate in India are crucial for ensuring their independence, integrity,
and effectiveness in representing their clients and upholding the rule of law. These rights, as
enshrined in the Advocates Act, 1961, and the rules of professional conduct, provide advocates
with the necessary tools and protections to discharge their duties towards the court, their clients,
and society at large.
Advocates have the right to practice their profession, express their opinions freely,
observe court proceedings, refuse cases, and receive reasonable fees for their services. They
also have the right against arbitrary arrest, the right to meet with accused persons in private,
and the right to secure the privacy of their communication with their clients.
These rights empower advocates to act as fearless and competent officers of the court
and play a vital role in upholding justice and protecting the rights and interests of their clients.
However, it is important to note that these rights also come with duties for advocates.
Advocates must adhere to the highest standards of professional conduct, ethics, and integrity
while exercising their rights.
They are duty-bound to maintain the confidentiality of information, avoid conflicts of
interest, and diligently represent the interests of their clients within the bounds of law and
professional ethics. Any violation of these responsibilities may result in disciplinary action by
the Bar Council or other authorities, and may also adversely impact the reputation and
credibility of the legal profession.
In conclusion, the rights of advocates in India are fundamental to the functioning of the
legal system and the administration of justice. These rights, along with the corresponding
responsibilities, empower advocates to effectively represent their clients, protect their interests,
and contribute to the advancement of the rule of law.
Advocates play a vital role in upholding the principles of justice, fairness, and equality,
and their rights are essential for maintaining the independence, integrity, and effectiveness of
the legal profession in India.
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.
 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.