The profile of an advocate and his role in the administration of justice Before proceeding to writing about this topic I would like to discuss with my dear facebook friends/readers one thing that in most of the times and cases we oftenly use two words i.e. advocate and lawyer simultaneously for the same and single purpose. But in fact there is a gulf of differences in between these two words in their legal parlence and application. The word advocate is hereby used to denote that person who is an amicus curiae or the person who pleads or advocates before a court of law on behalf of his client. He is the agent or the representative of his client before a law court. On the other hand the word lawyer is a generic term and includes all the persons who reads, practices and deals with the law or the person who has skills in law. Hence a jurist is a good lawyer and similarly a judge who is the member of the bench also may be a good lawyer. Thus, all the advocates are the lawyers but not the vice versa. It is therefore called the Advocates Act but not the Lawyers Act. But for the purpose of brevity and conveniance of the discussison and its applications both the words are equally and simultaneously may be used. Furthermore at the present time both the words have become common and have been used commonly by the common people around the world. Accordingly in my this writing/article also I have used both the words for the single and similar purpose. The word advocate has been derived and emanated from the Latin word Advocatus which means called in to help is sometimes also called an amicus curiae. The words amicus curiae is the combination of the Latin words which literally means the friend of a law court or the agent in a law suit in a court. Hence an advocate is the person or agent who pleades or argues or deals with the law before a court of law on behalf of his client and first and foremost duty of an advocate is to protect the interest of his client transcending all the legal formalities both in the nature of procedural and substantial. The definition of the word advocate:- The following are the definitions of the term advocate in its dictionary and statutory languages:- The Blacks Law Dictionary defines the term advocate as one who assists, defends, or pleads for another; one who renders legal advice and aid and pleads the cause of another before a court. A person learned In the law, and duly admitted to practice, who assists his client with advice, and pleads for him in open court Holthouse. The College or Faculty of Advocates is a corporate body in Scotland, consisting of the members of the bar in Edinburgh. A large portion of its members are not active practitioners, however. 2 Bank. Inst. 486. In the civil and ecclesiastical law. An officer of the court, learned in the law, who is engaged by a suitor to maintain or defend his cause. ( Featuring Blacks Law Dictionary Free Online Legal Dictionary 2nd Ed;) The sec. 2.sub-sec.(1) (a) of the Advocate Act 1961(Act No. 25 of 1961) defines the term Advocate as in this Act, unless the context otherwise requires, “advocate” means an advocate entered in any roll under the provisions of this Act; Furthermore the Part I Order 1 Rule 2(1)(a) of the Supreme Court Rules, 1966, defines the term advocate as in these rules, unless the context otherwise requires advocate means a person whose name is entered on the roll of advocates prepared and maintained by a State Bar Council under the Advocates Act, 1961 (25 of 1961). Again one thing I want to discuss with my readers is that we in most of the occassions use the two terms i.e an advocate and the legal practitioner similarly and equivalently for the same and single purpose but there are also some differences in between these two terms. The sec. 2. sub-sec.(1) (i) of the Advocate Act 1961(Act No. 25 of 1961) defines the term Legal practitioner as in this Act, unless the context otherwise requires, “Legal practitioner” means an advocate [or vakil] ( Substituted by Act 107 of 1976 for “vakil or attorney” w.e.f. 15.10.1976.) or any High Court, a pleader, mukhtar or revenue agent; In the similar manner we oftenly use two words Advocate and Attorney simultaneously for the same and single purpose but there is also a little differences in between them. The word Attorney is Middle English attourne ; from Old French atourne, (one) appointed. In the most general sense this term denotes an agent or substitute, or one who is appointed and authorized to act in the place or stead of another. In re Ricker, 60 N. H. 207, 29 Atl. 559, 24 L. R. A. 740; Eichelberger v. Sifford, 27 Md. 320. It is “an ancient English word, and signifies one that is set in the turn, stead, or place of another; and of these some be private and some be publike, as attorneys at law.” Co. Litt. 516, 128a; Britt 2856. One who is appointed by another to do something in his absence, and who has authority to act in the place and turn of him by whom he is delegated. When used with reference to the proceedings of courts, or the transaction of business in the courts, the term always means “attorney at law,” q. v. And see People v. May, 3 Mich. 605; Kelly v. Herb, 147 Pa. 503, 23 Atl. 889; Clark v. Morse, 16 La. 576. ( The Blacks Law Dictionary;) Again we sometimes get confuse in between the three words i.e Solicitor, Attorney and the Legal Practitioner but there are also some differences in between them as in English law a legal practitioner is in the court of chancery. The words “solicitor” and “attorney” are commonly used indiscriminately, although they are not precisely the same, an attorney being a practitioner in the courts of common law, a solicitor a practitioner in the courts of solicitor.( The Blacks Law Dictionary;) The Wikipedia, the free encyclopedia discusses in details about the meaninig of the term Solicitor and furthermore describes as a solicitor is a legal practitioner who traditionally deals with any legal matter in court in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and enabled to practice there as such. For example, in England and Wales a solicitor is admitted to practise under the provisions of the Solicitors Act 1974. With some exceptions, practising solicitors must possess a practising certificate. There are many more solicitors than barristers in England; they undertake the general aspects of giving legal advice and conducting legal proceedings.( A Dictionary of Law (7 ed.), J Law and EA Martin, Oxford University Press, 2009, e ISBN 9780191726729;) In the United Kingdom, a few Australian states, Hong Kong, South Africa (where they are called attorneys) and the Republic of Ireland, the legal profession is split between solicitors and barristers (called advocates in some countries), and a lawyer will usually only hold one of the two titles. However, in Canada, New Zealand and most Australian states, the legal profession is now for practical purposes fused, allowing lawyers to hold the title of barrister and solicitor and practise as both. The distinction between barristers and solicitors is, however, retained. Some legal graduates will start off as one and then also qualify as the other.( The Differences Between a Solicitor and a Barrister) Sometimes in most of us there may be some doubts or inquests with regards to the clear distinctions in between the two terms i.e advocate and barrister and so, for the clearance of the doubt I hereby define the term barrister what it exactly means. To that effect I hereby define the term barrister as contained in the General Clauses Act, 1897 (Act No. 10 of 1897) in sec. 3(4) which reads as “barrister” shall mean a barrister of England or Ireland, or a member of the Faculty of Advocates in Scotland; Now I hereby go proceeding by writing my prime task here. An advocate has to play his vital roles or has to discharge his various legal and moral obligations before different courts of law in different forms and in different capacity and positions being the amicus curiae or a friend of a court of law within the ambit of law. The subordinate courts in India have the civil and criminal jurisdictions. The Honble High Courts in India also have different jurisdictions likewise its general jurisdiction, powers to issue different writs, powers of superintendence over the subordinate courts including the civil and criminal appellate jurisdictions. Furthermore the Honble Supreme Court of India also has different jurisdictions including its original jurisdiction, civil appellate jurisdiction, criminal appellate jurisdiction, advisory jurisdiction and writs jurisdictions etc. There are numerious administrative tribunals throughout the country which also administer various laws and justice as a quasi-judicial bodies having different jurisdictions. But in fact these all and different jurisdictions of the different courts can be grouped and divided mainly into two divisions i.e civil and criminal as because above all the jurisdictions of the courts are either of civil or of criminal nature. This is because of the fact of effect of courts jurisprudence in India also. And the advocates in India also have to participate their role and discharge their functions before these authorities in different forms and capacity to cope up with their respective jurisdictions. Now I hereby discuss with my readers about the fact that how the advocates work before the law courts and have been classified in these civil and criminal courts and jurisdictions. 1. The advocates in the criminal courts. The advocates in the criminal courts have been divided into two catagories viz. Prosecutor and the defense counsel. (i) The Prosecutor:- I think it is needless to say that a prosecutor is the agent or the amicus curiae of the state or the government. In the Indian federation both the central government and the state governments have their respective prosecutors in all the courts including from the top Honble Supreme Court of India to the bottom the courts of the Magistrates. A crime or an offence being the mischief against the interest of the state or society accordingly the state prosecutes the culprit or an accused where the judges conduct the trial according to the principle of Adversarial system of justice administration system as inherited by the judiciary in India from the common law principles. The hieararchy of prosecutors in India from the top Honble Supreme Court of India to the bottom courts of Magistrates are as follows:- (a) The Attorney-General for India; (b) The Solicitor General of India; (c) The Additional- Solicitor General of India; (d) The Advocate General for the State; (e) The Public Prosecutors; (f) The Assistant Public Prosecutors; (ii) The defense counsel:- Being the defense counsel or an agent an advocate plays a very vital role to protect his client who is an accused in a criminal court. In fact it is also a fundamental right of an accused to be protected by a legal practitioner of his choice as contained in Art. 22 (1) of the Constitution of India. The Art. 22 (1) of the Constitution reads as no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. Hence to be defended by, a legal practitioner of his choice being the basic or fundamental right of any accused person it is available to even notorious criminal even in henious offence subject to following exception:- (a) This right is not available to a person who for the time being is an enemy alien; or (b) To any person who is arrested or detained under any law providing for preventive detention. (Art. 22(3)) 2. The advocates in the civil courts:- Similarly in the civil courts also an advocate or amicus curiae has to play his role being the Ld. Counsel on the side of the plaintiff/petitioner or the person who files the civil suit or brings the cause of action before a civil court and also being the Ld. Counsel on the side of the defendant/respondant or the person against whom a suit has been filed or the cause of action has been brought. It is the first and foremost legal and moral duty of the Ld. Advocate/counsel on the side of the plaintiff/petitioner to succeed the suit or to acquire decree for his client on the other hand it is first and foremost legal and moral duty of the Ld. Advocate/counsel on the side of the defendant/respondent to defend his client in a suit. In the same manner when an appeal has been filed before an appellate court i.e the upper court against the order of decreed or dismissed there also the advocate has to play his vital role either being the Ld. Counsel for the petitioner or the respondent. Similarly in all the courts in India in their all the respective jurisdictions an advocate has to play his vital role standing Ld. Counsel on behalf of his client and it will be only his purpose and duty both the legal and moral to protect the interest of his client. The merit of the case or the genuineness of the character of the client is immaterial and irrelevant but it is his prime duty and the principle of his professional ethics to protect the interest of his client and to assist his client to get relief/justice from the temple of justice i.e court. An advocate or a lawyer is the most learned, intellectual, resource person and the creame of the every civil society. The advocacy or the legal practice is the one of the oldest profession in the world and also in India and the lawyers have always played a pivotal role in the social transformation and have struggled most for the emancipation and upliftment of the expoileted and deprived class of people including emplanting the seeds of awareness in the mind of the people to move forward towards the path of justice and rule of law. If we see the history of the world in the modern times then we see the most of the renoun world leader we find the lawyers who have given leadership to their nations. In the great American and French Revolution many of the leading figures were lawyers. The Abraham Lincoin, the great American President and an extraordinary human being, the statute of love, peace and liberty during the American Civil War of 1861-1865 was a lawyer. Robespiare the great French leader during the French Revolution of 1789 was a great lawyer. Similarly, Lenin, the great revolutionary of the Russian Revolution of 1917 was a student of law. In the Indian cenario also during the war of independence or the freedom movement the nation and the movement was led by the lawyer leaders likewise, Mahatma Gandhi, Pandit Jawaharlal Nehru, Sardar Patel, Dr. Rajendra Prasad, Deshbandhu Chitaranjan Das, Motilal Nehru, Jyoti Basu were the lawyers. Similarly, the most of the present Parliamentarians and the leaders are also the learned and successful lawyers likewise, Arun Jaitly, Kapil Sibal, Sushma Swaraj, Mamata Banerjee and many others. In the His Lordship’s an article “ Legal education in India”, Hon’ble Mr. Justice Markenday Katju writes as the reason why many great leaders in various countries were lawyers is that the legal profession is objectively in the position of producing statesman. This is due to two reasons: (1) Lawyers belong to an independent profession, they are not subordinate to the government or to anyone else, and (2) they are directly in contact with society in its entirety as they have to deal with all kinds of problems of people from all sections of society unlike say doctors who are confined to medical problems or engineers who are confined to technical problems. Hence lawyers are the people who are most conversant with the problems of society as a whole. (Legal education in India, Justice M. Katju, AIR Journal 2002 p. 241.) Though India has second largest legal profession in the world but at present time the plight of the legal profession is very frustrating and there is question mark and the doubts in the mind of the common people in the role and functions of an advocate or lawyer. Every year in India thousands of students get the degree of law and becomes an advocate but very few of them will have quality to become a successful lawyer and to sustain and survive in this very hard competetive market of legal profession. There is also a bad remarks of the people and it has become a trends or belief of the common people that at present time the legal profession has become abusive and despised despite of it being the noble profession. Even the lawyers are being called both the unavoidable scoundrels and necessary evils. The lawyers who turn out to be legislative draftsmen are ridiculed by the following rhyme:- “ I’m the Parliamentary Draftsman I compose the country’s laws And of half the litigation I’m undoubtedly the cause.” (A minuscule profile of a lawyer and his profession, Bimal Crolly, AIR Journal 2000. P. 205.) Same repentence and the thought was also expressed more then 300 years before from now when William Shakespeare perhaps with the grief and agony said about lawyer : “ The first thing we do , let us kill all the lawyers” Similarly Pt. Jawaharlal Nehru who himself was a Bar-at-Law seeing the , conduct, behaviour and cunningness of lawyers said about lawyers: “ This magnificent Constituition that we have framed was later kidnapped and purloined by the lawyers.” Hence sometimes it seems that the words of Pt. Nehru have been proved to be true seeing the present cenario, circumstances and judicial system in India. Nevertheless the role of the advocates or the lawyers in the present legal system is magnificent and the Bar has always been proved to be the good mother of the bench and the good Judges and the Jurists are products of good Bars in India. Lastly I conclude today’s my writing with the words of an ever great column of Indian Judiciary, Hon’ble Justice Krishna Iyer:- “ An advocate has a prior and perpetual retainer on behalf of Truth and Justice. He can never be discharged from that primary and paramount retainer. The vital role of the lawyer depends on his probity and professional life style. The central function of the legal profession is to promote the administration of justice. The Bar can not behave with doubtful seruples or strive to thrive on litigation. ” Jai Hind....................! Soliciting your kind and warm suggestions..........! Sourav Subba, B.A (Law) LL.M, WBJS Date: 11.01.2015 Place: Diamond Harbour, Calcutta.
Posted on: Sun, 11 Jan 2015 02:58:55 +0000
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