The Right to Practise: Sections 29 to 34

The lesson beyond this section, and it is one of the standing rules of this whole book: check commencement, not merely enactment. An Act on the statute book is not necessarily law in force.

What the right actually covers

"Entitled as of right" means the advocate does not ask for permission. He does not need the leave of the court, a local enrolment, or a sponsoring local advocate.

"Throughout the territories to which this Act extends" means the whole of India, section 1(2).

The three limbs are wider than "courts". Limb (ii) covers any tribunal or person legally authorised to take evidence, which brings in the whole machinery of tribunals, commissions and enquiries. Limb (iii) covers any other authority or person before whom such advocate is by or under any law entitled to practise, and that limb is important precisely because it is conditional: before some authorities a special statute restricts or excludes representation by advocates, and limb (iii) respects that.

The two limits

Section 32: the court may let a non-advocate appear in a particular case.

Three points. It begins "notwithstanding anything contained in this Chapter", so it overrides sections 29, 30 and 33. It is available to any court, authority or person. And it is confined to a particular case: it is a permission, not a licence, and it creates no status.

Section 32 is what allows a party to appear in person through a relative in a small matter, a next friend to be heard, or a person with a special interest to assist. It does not make the person an advocate, and it does not entitle him to appear in the next case.

Section 33: nobody else may practise.

Section 33 is the mirror of section 29. Its opening words matter: "Except as otherwise provided in this Act or in any other law for the time being in force." The Act's own exception is section 32. The exception in another law is the reason a chartered accountant may appear before certain tax authorities, and a party may appear in person: those are permissions given by other statutes.

The sanction is section 45: a person who practises in any court or before any authority when he is not entitled to do so is punishable with imprisonment which may extend to six months.

Section 34: the High Court's own rules

Section 34(1): the High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate to it.

This is the provision that reconciles the statutory right in section 30 with a court's control of its own proceedings, and it is not a small qualification. It is the source of rules about dress, about appearance, and, in the case that matters most here, about audience after a contempt.

In Pravin C. Shah v. K.A. Mohd. Ali, AIR 2001 SC 3041, the Supreme Court upheld a rule made by a High Court refusing audience to an advocate found guilty of contempt until he purged the contempt. The Court held that the right to practise and the right of audience before a particular court are not the same thing, that a court has power to regulate who may appear before it, and that purging is by conduct showing genuine remorse and not by the mere expiry of a sentence. That case is worked fully in Module IV, where contempt by an advocate is dealt with.

Section 34(1A) requires the High Court to make rules for fixing and regulating, by taxation or otherwise, the fees payable as costs by a party in respect of his adversary's advocate's fees, in the High Court and in the courts subordinate to it.

Section 34(2) lets the High Court at Calcutta make rules for the Intermediate and Final examinations for articled clerks referred to in section 58AG.

A worked example

Farhan is enrolled with the Bar Council of Maharashtra and Goa. Four questions arise in one week.

He is briefed in a matter before the Calcutta High Court. He may appear. Section 30 entitles him as of right to practise throughout India in all courts, and since 15 June 2011 that provision is in force. He does not need to enrol in West Bengal, and section 17(4) would in any case forbid him from being on two rolls.

He is briefed before a debt recovery tribunal. He may appear, under limb (ii) of section 30, because a tribunal legally authorised to take evidence is expressly covered.

He is asked to appear before a departmental authority whose governing statute says a delinquent employee may be represented only by a fellow employee. He may not appear. Limb (iii) of section 30 covers an authority before whom an advocate is by or under any law entitled to practise, and here the law says otherwise. This is exactly why limb (iii) is drafted conditionally and limbs (i) and (ii) are not.

His client's brother, who is not an advocate, wants to argue a small matter himself. Section 32 allows the court to permit a person not enrolled as an advocate to appear in a particular case. It is for the court to decide, and the permission does not extend to any other matter.

Change one fact. Suppose the brother, having been permitted once, starts appearing regularly for a fee in other matters. He is now practising, he is not enrolled, and he is liable under section 45 to imprisonment which may extend to six months. Section 32 gave him a permission in one case and nothing more.

What beginners get wrong

Section 30 is not the source of the whole right. It is the right of an enrolled advocate; the closure of the profession is sections 29 and 33.

Section 30 was not in force from 1961. It came into force on 15 June 2011.

Section 32 does not create a class of permitted representatives. It is per case.

The right in section 30 is not absolute. It is "subject to the provisions of this Act", so it yields to a suspension under section 35(3)(c), to the restrictions on senior advocates under section 16(3), and to High Court rules under section 34(1).

A right to practise is not a right of audience in every court on every occasion. Pravin C. Shah is the authority for the distinction.

Quick revision

• Section 29: only one class of persons is entitled to practise the profession of law, namely advocates.
• Section 30: every advocate on a State roll is entitled as of right to practise throughout India, (i) in all courts including the Supreme Court, (ii) before any tribunal or person legally authorised to take evidence, and (iii) before any other authority or person before whom he is by or under any law entitled to practise.
• Section 30 came into force on 15 June 2011, by S.O. 1349(E) dated 9 June 2011, fifty years after the Act.
• Section 32: any court, authority or person may permit a non-advocate to appear in a particular case, notwithstanding the rest of Chapter IV.
• Section 33: nobody may practise unless enrolled, except as otherwise provided in this Act or in any other law.
• Section 45: practising without entitlement, imprisonment up to six months.
• Section 34(1): the High Court may make rules laying down the conditions subject to which an advocate is permitted to practise in it and in the courts subordinate to it. Section 34(1A): rules for taxing the adversary's advocate's fees as costs.
• Section 31 is omitted with effect from 1 January 1977.

Test yourself

1. State the three limbs of the right in section 30. In all courts including the Supreme Court; before any tribunal or person legally authorised to take evidence; and before any other authority or person before whom the advocate is by or under any law for the time being in force entitled to practise.

2. When did section 30 come into force, and why does the date matter? On 15 June 2011, by notification S.O. 1349(E) dated 9 June 2011. It matters because until then an advocate's right to appear outside his own State did not rest on a statutory right at all, which is why older books describe the right to practise throughout India as notional.

3. What is the scope of a permission under section 32? It permits a person not enrolled as an advocate to appear before the court, authority or person granting it in a particular case only. It confers no status and does not extend to any other matter.

4. A statute provides that before a particular authority a party may be represented only by a serving employee. Can an advocate insist on appearing under section 30? No. Limb (iii) of section 30 covers only an authority before whom the advocate is by or under any law entitled to practise. Where the governing law excludes representation by advocates, the limb does not apply.

5. How is a statutory right to practise reconciled with a court's control over who appears before it? By section 34(1), which lets the High Court make rules laying down the conditions subject to which an advocate is permitted to practise in it and in its subordinate courts. In Pravin C. Shah v. K.A. Mohd. Ali the Supreme Court upheld such a rule refusing audience to an advocate convicted of contempt until he purged it, holding that the right to practise and the right of audience are not the same thing.

6. What is the penalty for practising without being entitled to do so? Under section 45, imprisonment for a term which may extend to six months.