Advocate
An Advocate is a person who argues for the cause of another person in front of any other judicial authority. Black Law’s Dictionary defines ‘Advocate’ as the one who assists defends, or pleads for another; one who renders legal advice and aid and pleads the cause of another before a court.[1]
An advocate engages in a case in multiple capacities, it may be as a lawyer representing the parties, a standing counsel for an organisation, or as a party in person.
Official Definition of Advocate
An Advocate is a person authorized to appear in litigation on behalf of a party who possesses a law degree, enrolled with the Bar Council per the prescriptions laid by the Advocates Act, 1961. According to the act, an “advocate” means an individual who entered any role under its provisions.
"Advocate" means and includes an advocate entered in any role maintained under the provisions of the Advocates Act, 1961[2] and shall also include government pleaders/advocates and officers of the Department of Prosecution.
Types of Advocates
Senior Advocates
Section 16 of the Advocates Act, 1961 states that a lawyer, with his consent, may be designated as senior advocate if the Supreme Court or a High Court is of the opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law, he is deserving of such distinction.
The Bar Council of India Rules imposes certain restrictions in the matter of practice to which Senior Advocate shall be subject.[3] A senior advocate shall not:
- file a Vakalatnama or act in any court or tribunal in India
- appear without an advocate on record in the Supreme Court or without any other junior advocate in any other court or tribunal in India
- accept instructions to draw pleadings or affidavits, advice on evidence, or engage in any drafting work of analogous nature in any court or tribunal in India
- undertake conveyancing work of any kind. However, this prohibition does not extend to settling such matters in consultation with a junior advocate.
- accept directly from a client any brief or instructions to appear in any court or tribunal in India.
Further, Order 4 Rule 7 of Supreme Court Rules 1950, provides that senior advocate shall not draw pleadings, Affidavit, Advice on evidence, and Statement of cases or do any drafting work of any kind in any court. This restriction does not apply to discussing the same work with the junior Advocate.
The appointment of Senior Advocates in High Courts is governed by rules[4] made by the High Courts under Section 34(1) r/w Section 16(2) of the Advocates Act, 1961 and in accordance with the guidelines laid down by the Supreme Court of India in its Judgment dated 12.10.2017 in writ petition no. 454 of 2015[5]. The rules/guidelines for the appointment of Senior Advocate[6] have been laid down by the Supreme Court of India in Ms. Indira Jaising Vs. Supreme Court of India and others.[7]
Advocate on Record (AoR) at Supreme Court
An Advocate on Record (AOR) in the Supreme Court of India is an advocate who has cleared the exam held by the Supreme Court of India and has registered as an Advocate on Record. An AOR is entitled under the Order VI of the Supreme Court Rules, 2013 to act and plead for a party in the Supreme Court.
Other significant provisions dealing with an AOR are
- Only an AOR can file a Vakalatnama in the Supreme Court on behalf of the client.
- No Advocate other than an AOR can appear and plead in any matter unless an AOR instructs him.
- Any notice or order/correspondence by the Supreme Court is sent to the AOR.
- It is necessary to get a certificate issued by an AOR, to file an SLP under Article 136 of the Constitution.
- An AOR is personally liable for the due payment of all fees/charges payable to the Court.
Advocates for the Government
Attorney General of India
The Attorney General (AG) of India is the top legal official in the nation and a member of the Union Executive, as stated in Article 76 of the Indian Constitution. The Law Officers (Conditions of Service) Rules, 1972 defines Attorney General “Attorney-General” as a person appointed under clause (1) of Article 76 of the Constitution as the Attorney-General for India and includes any person appointed to act temporarily as the Attorney General for India
The Attorney General is responsible for providing legal counsel to the government on situations that the president has submitted to him; standing before any High Court or Supreme Court on behalf of the federal government; and carrying out the legal responsibilities given to him by the President and other obligations granted to him by the Constitution. Section 23(1) of the Advocates Act, 1961 provides that the Attorney-General of India shall have pre-audience over all other advocates.[8]
Solicitor General
The Law Officers (Conditions of Service) Rules, 1972 defines “Solicitor-General” as a person appointed as the Solicitor General for India; and “Additional Solicitor-General” as a person appointed as the Additional Solicitor-General for India. Section 23(1) of the Advocates Act, 1961 provides that the Solicitor-General of India shall have a right of pre-audience, after the Attorney-General of India.
Advocate General of State
The Advocate General of the State is regarded as the top state legal official. The Advocate General of State is appointed in accordance with Article 165 of the Indian Constitution. Additionally, the governor of the state appoints this highest legal official. The Indian Constitution discusses the duties of the Advocate General of State in Articles 165 and 177. Under Article 177 he is conferred with the right to audience before the Legislature of a State both in the Assembly and the Council. Infact, he is treated on par with the Minister. The Advocate General and his office defends and protects the interest of the State Government and give invaluable legal guidance to the State Government in the formulation of its policy and execution of its decisions.[9]
Public Prosecutors
Section 24 of the Code of Criminal Procedure, 1973 (or Section 18 of the Bharatiya Nagrik Suraksha Sanhita) provides for the appointment of public prosecutors. A Public Prosecutor is considered the agent of the state seeking the prosecution of an accused.
The public prosecutor is required to supervise the functioning of the additional public prosecutor in the Sessions Court and the High Court. The role of the Public Prosecutor in the investigating process includes making an appearance in the Court and obtaining an arrest warrant, obtaining search warrants for conducting a search in specified premises, obtaining police custody remand for interrogation (including custodial interrogation) of the accused, etc.
Amicus Curiae
The Supreme Court enjoys the jurisdiction to appoint an amicus curiae or a 'friend of the court' in certain limited circumstances.[10]
- To defend and argue the case of the accused in cases where a petition is received from jail or in any other criminal matter if the accused is unrepresented
- If it is necessary in the case of an unrepresented party in civil matters
- In any matter of general public importance or in which the interest of the public at large is involved.
Legal Aid Counsels
Legal Aid Counsels (LAC)
Remand and bail lawyers are appointed by the legal services institution under the NALSA 1998 Model Scheme. They are assigned to each magistrate court to oppose remand, apply for bail and move miscellaneous applications for those in custody.
The remand lawyer has several duties to fulfil which include getting a copy of the application made for remand, interacting with the arrestee, challenging the arrest, making bail application in relevant cases, etc. The DLSA deputes Remand Advocates in the Magisterial Courts, Sessions Court and also in the courts of Executive Magistrate as per the requirement. Legal assistance can be claimed as a right in any of the stages of arrest or pre-arrest and this includes the remand stage, where if the prosecution seeks to remand an accused (request for extending custody of the accused for collection of evidence or completion of an investigation), the individual has the right of representation.
Legal Aid Defence Counsels (LADC)
Legal Aid Defense Counsel System (LADCS) is a pilot program of NALSA[11] where it involves the full-time engagement of lawyers in order to make legal aid services more efficient and to ensure that more persons in need actually access legal aid. Legal Aid Defense Counsel Office shall be dealing exclusively with legal aided matters in criminal matters of the District or HQ, wherein it is established. It shall be providing legal services from the early stages of criminal justice till the appellate stage, and the same shall include visits to jails to cater to the legal needs of unrepresented inmates.
In the first instance, the Legal Aid Defense Counsel System was conceived to be implemented on a pilot project basis for providing legal aid in criminal matters in Sessions Courts in a few districts. After its success as a pilot project, it is being extended to other districts and to all criminal courts including Courts of Executive Magistrates.
Appearance in Database
List of Law officers
The Department of Legal Affairs, Government of India (GoI) maintains an updated list of law officers, along with the archives on its website.
Advocate on Rolls
It is the list of advocates enrolled under the state bar council which contains the bar enrolment no. along with other identification details.
Advocate Codes
Many High Courts assign advocate codes to the Advocates. These codes are generated in the CIS and are important for retrieving advocate-wise cause lists and e-filing.
Similarly, Patna High Court assigns Advocate Unique Identification Number (AUIN)
E-Courts
E-Courts provides a search by advocate filter where a search can be processed by Advocate details and bar enrolment number. For Example, Supreme Court allows one to access the status of cases by AoR Codes here.
E-Filing
Advocates are provided with Portfolio Management in e-Filing accounts. Client communication with mail or WhatsApp is enabled. A provision is made for sharing uploaded documents with other Advocates or parties through mail. Cases of interest can be saved and managed in the software. Personalised cause lists can be generated for any date.
A facility is developed where any advocate can register himself on the e-Filing portal by e-KYC or submit his documents. Advocates can start managing their cases through e-Filing accounts even though e-Filing is not started in their District or Court Complex.
Research that engages with 'Advocate'
Fostering an Independent Bar[12]
This is an article by Alok Prasanna Kumar that goes on to lay out the current situation of the politicization of the advocates in contrast with their necessary independence. They highlight the importance of an independent bar to preserve an independent judiciary. The author cites lamentations from practicing lawyers who observe explicitly political lawyers that do not at the same time engage with concerns of an independent judiciary. There's a message being sent that advocates need to have a political opinion matching that of ruling party to become judges. They also highlight the procedures of appointments at the bar, arguing the surface-level independence of the Bar Associations being veiled by the political considerations of the ex officio members. However they also point out the on-ground realities that advocates face and respond to, citing examples of various ways they have protested undue influence on judicial processes. As a whole the author paints the bar as the vanguard in assessing and responding to the threat to an independent judiciary.
Commonwealth Human Rights Initiative: Hope Behind Bars?[13]
Hope Behind Bars is a report by the Commonwealth Human Rights Initiative on the legal aid that is available to people who are put in custody. It lays the statistical research from various sources to examine the level of legal aid that is available to accused in police stations, courts and prisons. It further examines recommended practices of delivering such aid in various areas. However the study is limited to access in criminal cases only.
References
- ↑ Black's Law Dictionary on 'Advocate'https://thelawdictionary.org/advocate/
- ↑ Section 2(a) of Advocates Act, 1961
- ↑ CHAPTER – I Restrictions on Senior Advocates, PART VI RULES GOVERNING ADVOCATES, Bar Council of India Rules, available at http://www.barcouncilofindia.org/wp-content/uploads/2010/05/BCIRulesPartVonwards.pdf
- ↑ THE HIGH COURT OF KARNATAKA (DESIGNATION OF SENIOR ADVOCATES) RULES, 2018 https://karnatakajudiciary.kar.nic.in/SrAdvoateDesgNotifications/Senior%20Advocate-rules-2018.pdf THE HIGH COURT OF MADHYA PRADESH (DESIGNATION OF SENIOR ADVOCATES) RULES, 2018 https://mphc.gov.in/PDF/web_pdf/RR/Amendment%20Gazette%20Notification%20Senior%20Advocates%20Rules.pdf
- ↑ WRIT PETITION (C) NO. 454 OF 2015https://main.sci.gov.in/supremecourt/2015/21817/21817_2015_Order_12-Oct-2017.pdf
- ↑ Guidelines for Designation of Senior Advocates by the Supreme Court of India, 2023 available at: https://main.sci.gov.in/pdf/LU/17072023_042844.pdf
- ↑ Writ Petition(Civil) No. 454 of 2015 (Under Article 32 of the Constitution of India)
- ↑ S. 23 , Advocates Act, 1961 https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_46_00001_196125_1517807320172&orderno=28
- ↑ State of U.P. & Others v/s U.P. State Law Officers Associations & others (1994) SCC 204
- ↑ Jurisdiction of the Supreme Court https://main.sci.gov.in/jurisdiction
- ↑ Legal Aid Defense Counsel Scheme, 2022 (Modified Scheme 2022) https://nalsa.gov.in/acts-rules/guidelines/legal-aid-defense-counsel-system-2
- ↑ Alok Prasanna Kumar, "Fostering an Independent Bar" Economic and Political Weekly, 58(11) 2023. available at: https://vidhilegalpolicy.in/research/fostering-an-independent-bar/ (accessed 14/2/2024)
- ↑ Raja Bagga et al. CHRI, "Hope Behind Bars?" available at: https://www.humanrightsinitiative.org/download/CHRI%20Legal%20Aid%20Report%20Hope%20Behind%20Bars%20Volume%201.pdf (accessed 14/2/2024)
