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The Advocates Act: An Overview
The Advocates Act, 1961, was enacted by the Parliament of India to provide a unified and consolidated law for regulating the affairs of legal practitioners throughout the country. The act provides for the creation of statutory bodies like the Bar Council of India and the State Bar Council. These statutory bodies are to maintain a roll of the registered advocates in the state and for the country and to administer and supervise the conduct of the enrolled advocates.
What does the Advocate Act Define?
The Advocates Act 1961 has been enacted as a central act that is applicable to the whole of India. The Act’s major objective is to regulate the conduct of Indian advocates as legal professionals. The Act provides for the creation of the Bar Council of India and the State Bar Councils to maintain rolls of registered advocates. Prior to the enactment of the Advocate Act 1061, legal professionals were classified into vakils (lawyers), barristers, advocates, etc. However, after enactment of the Advocates Act of 1961, the legal professionals are to be recognised only by the term "advocate."According to Section 2(1) of the Advocate Act, an advocate is someone who satisfies the requirements set forth in this Act.
Eligibility (To Be an Advocate)
The necessary qualifications for a person to be enrolled as an advocate are given in Section 24 of the Advocates Act 1961, which are −
- The person should be a citizen of India.
- The person has completed 21 years of age.
- The person has to be a graduate with a law degree from a recognised university after completing a three-year legal programme after March 12th, 1967. Or must have passed five years integrated LLB program from a recognised university after 12th.
- After 2010, a person must pass the All India Bar Council Exam (AIBE Exam) in order to become an advocate with the right to practice.
Features of the Advocate Act
After having been registered as an advocate with any one of the state bar council, an advocate can practise the legal profession in any state or territory of the country. He is neither required nor permitted to enrol himself with the other state bar council for the purpose of practising law in that state (however, a formal permission is required). Section 29 states that advocates are the only class of person entitled to practise law. Therefore, it eliminates the distinction between an advocate and a vakil. Now all the people who are entitled to practise law are to be called "advocates." The Bar Council of India and the State Bar Council have been constituted and empowered to make rules to regulate the affairs of the legal profession in the country and the state. These are statutory bodies with the power to make rules to lay down the standards of professional conduct and etiquette for advocates, to provide safeguards to protect the rights and privileges of the advocates, and also to adjudicate cases of professional misconduct and provide punishment for the same. The Advocate Act of 1961, being a central act, unified the various laws and regulations that already existed at that time.
Who is an Advocate?
The definition of an advocate is given in Section 2(1)(a) of the Advocates Act, 1961 as - a person listed on any roll in accordance with this Act’s provisions is considered as an advocate. Prior to the enactment of this statute, there were various classes of legal professionals such as, pleaders, vakils, lawyers, and attorneys.
Rights and Duties of an Advocate Under the Advocate Act
As per the provisions of this Act, major rights and duties of an advocates are −
Right to represent a case before any court
According to Section 30 of the Act, advocates have the right to practise in any court or tribunal in India. This implies that an advocate has the right to represent his client before any court and to watch the proceedings before any court in India, provided the concerned court has no objection with regard to maintaining order and decorum in the court during the proceedings.
Privilege to be Heard
The advocates have the right to be heard in the legal proceedings in which they represent a party before the court and are provided safeguards against interruptions from the other side as per the provisions under Section 23 of the Act.
Right to See a Suspect in Jail
The Advocates Act makes no mention of this right specifically, but it is well known that attorneys can visit their clients in jail as often as they like.
It is the duty of the advocate to remain faithful to his client and not discuss the important legal points of the case with the other or opposing advocate. The advocates provide true and correct legal guidance to their clients with the best ability they have on the point of law involved in the case. In case, if an advocate wants to withdraw himself from the court proceedings, he must notify his client of his intention and tell him the stage of the proceedings in his case at that point in time.
Regarding Free Legal Aid (Section 32 of the Advocates Act)
Free legal aid is an idea that is consistent with Article 14 of the Indian Constitution, which guarantees all citizens to be treated equally before the law. The Indian Constitution’s Article 39A further ensures that those in need will receive free legal assistance. In order to guarantee equal possibilities for all citizens, it is stated that the legal system promotes justice on the basis of equal opportunity and shall offer free legal help. Every advocate must keep in mind that anyone may want legal representation while practising law, and it is their responsibility to do so without charging a fee, according to Rule 46 of Section 6 of the Bar Council of India.
Harishankar Rastogi v. Girdhari Sharma (1978)
According to the terms of the Advocates Act of 1961, the petitioner asked the court for authorization to be represented in court by someone else who is not an advocate. The provisions of Section 30 of the Act, which indicates that only advocates are permitted to practise in any court in India, were examined by the court. The Court stated that states have the authority to impose reasonable restrictions on the freedom to practise any occupation, as guaranteed by Article 19 of the Constitution. Therefore, Section 29 of the Advocates Act, which specifies that only advocates are permitted to practise the legal profession, is one of many reasonable constraints placed on this freedom. As its final ruling, the court declared that a person who is not an advocate has no right to enter the courtroom. He or she must get the court’s authorization in advance. The court will ultimately decide whether to accept or reject the application.
Hussainara Khatoon v. State of Bihar
The Court ruled that if an accused person cannot afford legal representation, he or she is entitled to free legal assistance paid for by the state. So it should be obvious by now that access to legal counsel is both a fundamental right of all people and a responsibility of lawyers. According to Section 7(1)(b) of the Advocates Act, legal aid for the needy should be organised by the Bar Council of India. The right of advocates to practise in any court within their jurisdiction is mentioned in Section 30 of the Advocates Act.
According to Section 32 of the Act, a person who has not registered as an advocate, may be admitted before a court or other such authority in any case or matter.
The Advocates Act of 1961 is crucial for providing unified laws for the practise of the legal profession for advocates. According to the statute, both the Bar Council of India and the State Bar Council have been established to regulate and supervise the legal profession in the country. The act provides for the enrolment of advocates on the rolls of the state bar council. It also provides a moral code of conduct for the advocate and the punishment for a violation of that code.
Frequently Asked Questions
Q1. What goals does the Advocates Act of 1961 seek to achieve?
Ans. The Act's goal is to unify and create a single class of legal professionals known as "advocates." The second goal is to prescribe a standard qualification for the members of the bar. Additionally, it sought to establish state bar councils and an All India Bar Council to regulate and supervise the legal profession in the country.
Q2. Who qualifies as an advocate under the 1961 Advocates Act?
Ans. As per the provisions of the Advocate Act 1961, a person having a three-year bachelor's degree in law from a recognised university is entitled to be registered as an advocate on the rolls of the state bar council and on the rolls of the bar council of India. However, the advocate who has been registered on the rolls of the state bar council after 2010 is required to pass the All India Bar Council Exam (AIBE Exam) to acquire the right to practise as a necessary qualification to practise law in the county The Advocates Act recognises only one class of advocates.
Q3. Who are the senior advocates?
Ans. According to the experience and legal expertise of the advocates, they are categorised as "Senior Advocates" and "Other Advocates." It is a special honour conferred on them by the High Court or Supreme Court.
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