Right of pre-audience
April 24, 2021
This article is written by Anshal Dhiman.
It talks about Right to Pre-audience as provided under the Advocates Act, 1961.
Table of Contents
Introduction
Pre-audience in general terms means the right
to be heard before others. It puts the person who has the right to pre-audience
above others in the same category as him so as to establish his authority. It
is an important term because there are some places and offices which need to be
superior to others in order to get quick decisions during the times when there
is an impasse. In India, Right to Pre-audience is provided under Section 23 of the Advocates Act, 1961, which will be discussed further in
the article. Merriam-Webster
dictionary in its definition of ‘Pre-audience’ also writes
‘precedence at the bar among other law officers and advocates.’
This is precisely what the Right to
Pre-audience does in India. It provides a superior right to those mentioned in
Section 23 of the Advocates Act so as to maintain their superiority over others
in India. Each advocate in India has a legal backing to practice. An Advocate
is an official of the court. This status has acquired legal acknowledgment
under Section 49 of
the Advocates Act, which engaged the Bar Council of
India to outline leads and control advocates expert direct
norms. An advocate’s duty is to represent his client in the best way he can at
the court, but one cannot do that if he is not given the chance to speak at the
court. So an advocate while representing his client must be allowed to speak in
the court of law till the moment he disturbs the decorum of the court.
Advocates
Act, 1961
· Advocates Act is the legislation which
regulates the conduct of advocates in India. This Act provides the rights and
duties of the advocates and also the disqualifications which the advocates
might get if they behave in any way as opposed by the law.
· Advocates Act is one of the most important
Acts enacted in independent India. It created a group of ‘advocates’ by which
every lawyer enrolled in bar is referred to as now in India, and abolished all
the other terms that would have been used for advocates in absence of the
Act.
· Under the Advocates Act, Advocate is defined
as ‘Advocate means an advocate entered in any roll under the provisions of this
Act.’ Before this Act, there were various classes of lawful professionals under
the Legal Practitioners Act. They were advocates, legal counselors, vakils, and
so forth the Advocates Act annulled these classes and recognized just one class
of advocates. They are delegated ‘Senior Advocates’ and ‘different advocates’
on a legitimacy premise.
· Under the related provisions of the Advocates
Act, 1961, Advocates just reserve the right to practice under the watchful eye
of any court (vide Section 33). Albeit just advocates have the freedom to
rehearse/carry on suit in courts, there is an arrangement under the Act which
gives the court the ability to permit/deny any individual to show up before
it.
· Thus, according to Section 32 of the Advocates Act, 1961; an individual who
has not been enlisted under the Advocates Act 1961 has the freedom to show up
under the watchful eye of the court however just on the ground that the court
permits him to do as such.
· The status of a senior advocate is conceded by
the High Court or the Supreme Court with assent of the advocate. Just an
advocate who has tried out the regular roll is qualified for training in the
Supreme Court or in any court, council and in whatever other body where a
backer can rehearse.
· Advocates Act also provides for the setting up
the Bar Council of India, which now regulates all activities of advocates, and
acts as a united body of lawyers in India. Under the pertinent arrangements of
the Advocates Act, 1961, advocates just reserve the option to rehearse under
the steady gaze of any court (vide Section 33).
· Albeit just advocates have the freedom to
rehearse/carry on prosecution in courts, there is an arrangement under the Act
which gives the court the ability to permit/deny any individual to show up
before it.
Right
to Pre-audience
Basics of Section 23
Section 23 of the Advocates Act provides for
the right of pre-audience to certain people in India. One of the significant
privileges of advocates as enrolled under the Advocate Act, 1961 is the
privilege of pre-audience. It is the right of being heard before another. The
concept is believed to have started in English practice, under the common law
system. It means people of higher ranks will be heard before those who are
below them in ranks. When a court is under conflict, it follows this rule and
this principle of conduct. A junior can’t address the court before a senior
advocate without the permission of the latter. Right of pre-audience, an
advantage conceded to the advocates which are qualified for be heard in their
individual request, as indicated by the position and position. In English law,
the progression of request is topped by the King’s Attorney General and
finishes with counselors on the loose. Generally, barristers had privileges of
audience in each court in England and Wales, and, starting in 2018, they
actually appreciate the privileges of the audience in each court in England and
Wales. Notwithstanding, specialists have consistently had privileges of
audience in the officers’ court and the province court.
Specialists’ agents have additionally generally
been permitted to be heard in procedures in chambers in the High Court, for
example, summonses for bearings, and resulting changes have safeguarded these
rights, The Attorney General of India, the Solicitor General of India, and the
Additional Solicitor General of India have in a particular request pre-audience
over any other advocates A second additional Solicitor General was consequently
assigned for better arrival of government’s authentic business in India,
considering comparative terms and conditions of organization as of the
Additional Solicitor General and with comparative limits. It is in this manner
appropriate that his privilege of pre-audience ought to be perceived in legal
terms. Regarding that, a change was made in 1980 under the part 23 of the
Advocates Act, to furnish the second extra specialist general with the
privilege of pre audience, in prompt chain of command after the other prominent
three law officials of India.
Order of priority for the
right of pre audience
Section 23 of the Advocates lays down a full
order of priority for the right of Pre audience in which he advocates will be
qualified to address the courtroom. The privilege of pre audience is given to
senior advocates, as the hierarchy may suggest, and the courts have also tended
to listen to elder advocates before younger advocates. The plan of need, i.e.,
option to address under the watchful eye of the official courtroom, has been
set down in the given order:
· Attorney General: He/she has pre-audience over
all other advocates.
· Solicitor General of India
· Additional Solicitor General of India
· Second Additional Solicitor General of India
· Advocate General of any State
· Senior Advocates
· Other Advocates
The privileges of different advocates must be
resolved depending on their particular rank decided as per Section 17 and 21 of
the act. Yet, this assurance doesn’t influence an advocate’s entitlement to
direct a case for the benefit of his customer. In spite of the fact that Senior
Counsel has a privilege of pre audience over different advocates, yet on
directions of the customer, the advocates showing up for a gathering can concur
on an alternate decision. In any case, any such course of action doesn’t
influence the legitimacy of a notification given to any direction of the
gathering. After assistance of such notification, the court is cleared of its
obligation to give further notification. It might likewise be seen that the
arrangement simply gives a privilege of pre-audience, yet the request for
pre-audience given in this segment isn’t required. The separate Counsel can
defer his privilege of pre-audience for another guidance in the event that he
so considers fit.
View of the Judiciary
On account of In Re:
Pre-Audience of the Acting Advocate General, a request was
raised by an acting Advocate General under the steady gaze of the Bombay High
Court to give clear bearings to his right side of pre-audience in the concerned
court. It was seen by the court that privileges of pre-audience of advocates of
the High Court ought to be dictated by their status, and the Advocate General
will have pre-audience or priority over any remaining advocates. Essentially,
the acting Advocate General is likewise qualified for this privilege in a
similar way. The constitutional legitimacy of Section 23 (5) has
been tested in various writ petitions under the watchful eye of Indian courts
that privilege of pre-audience given to the senior advocates over different
advocates is void and illegal.
The fundamental ground of the test is that
this advantage makes division/arrangement of attorneys into two classes, and
manages the cost of prejudicial treatment with the pre-audience advantage given
to a specific predominant class of legal counselors, planned as senior
advocates. Consequently, it is violative of the balance provision under Article 14,
the crucial design of the Indian Constitution and Articles 19 and 21 as
well. As of late, a writ request was recorded in the event of Indira
Jaising v.Supreme Court of India, testing the
protected legitimacy of Section 16 and 23(5) of the Advocates Act, 1961. The
arrangements accommodate the legal reason for assignment of legal lawyers as
senior advocates. The 3-judge bench in the current case alluded to the writ
appeal recorded before the Delhi HC in the National
Lawyers’ Campaign for Judicial Transparency and Reforms and Anr. v. The BCI and
anr, case where the referenced arrangements were before
tested to be unlawful. Subsequently, the bench said that if the wellspring of
the force of such legal assignment is itself under test, the matter is to be
heard in this court. Numerous intercessions in the procedures and arrangements
proposed at the bar for development in the framework, the bench honestly said
that the issues concerning the assignment of legal advisors according to the
pervasive methodology referenced in advocates act seem to have caused extensive
disappointment among a part of the bar.
Conclusion
Right of pre-audience doesn’t occupy the minds
of major thinkers in the country at the moment. It is one of those basic rights
which have been adopted into professional lives just as such rules and rights
are observed in daily life, because of its moral nature. But yet, it is
recognized as one of the important parts of the Advocates Act which continues
to regulate the actions of advocates in India. The right of pre-audience can
also be adjudged as a moral right, which can be related to the years old Indian
practice of respecting elders, which is now incorporated into legal practice
through the right of pre-audience. Although the topic is not the most
researched because of its directness, and its technicality, it still may need
some referencing as to how the whole concept of pre-audience works as to why
the right is necessary to have under the Advocates Act, 1961. A segment of
advocates are disappointed with the specific sub section 5 and need the Apex
Court of the country to pronounce it unlawful. Regardless, the arrangement is
compelling and in the application as of now, so the eyes are on the Supreme
Court on the off chance that it will re-think about its lawfulness.
References
· https://legislative.gov.in/sites/default/files/A1961-25.pdf
· https://www.lawyersclubindia.com/experts/meaning-274301.asp
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