Sunday, 30 January 2022

The Role of The Advocates Under the Constitutional Norms

 The Role of The Advocates Under the Constitutional Norms

For more than 200 years, lawyers or advocates have played a significant role in establishing the framework of Indian society. Lawyers have contributed to the freedom movement, framing the Indian constitution, legislative members, teachers, social reformers, and bureaucrats, among other professions.

The right to be represented by a counsel has been in place in England for about three centuries. In ancient Rome, great lawyers such as Cicero, Scaevola, Crassus, and others defended the accused. Indeed, as the human race's civilization advanced, that right became clearer and stronger, and it was held and asserted with more vigor. Even Nazi war criminals who were responsible for the deaths of millions of people were given legal representation during the Nuremberg trials.

Constitutional Mandate:
According to professional ethics, a lawyer cannot refuse a brief if the client is willing to pay his fee and the lawyer is not otherwise occupied. No Bar Association can pass a resolution stating that none of its members will represent a certain defendant, regardless of whether he is charged with a heinous crime. Article 22(1) of the Constitution mandates that no one should be held in custody without first being informed of the reason for his detention and that he should be given the opportunity to speak with and be represented by a lawyer of his choice.

Bar Council of India:
Any brief before the Courts or Tribunals, or before any other authorities in or before which an advocate wishes to practise must be accepted at a fee consistent with his status at the Bar and the nature of the case, according to the 'Standards of Professional Conduct and Etiquette' of the Rules framed by the Bar Council of India. Due to unusual circumstances, an advocate may reject to accept a particular brief.

English backdrop:
When Thomas Paine was imprisoned and prosecuted for treason in England in 1792 for publishing his renowned pamphlet "The Rights of Man" in support of the French Revolution, he was represented by eminent lawyer Thomas Erskine (1750-1823). At the time, Erskine was the Prince of Wales' Attorney General, and he had been told that accepting the brief would result in his dismissal.

American import on the legal ethics:
Mr. Justice George Sutherland of the United States Supreme Court underlined the importance of the right to be heard by counsel in Powell vs. Alabama 287 US 45 1932.

Our heritage:
Indian lawyers have followed in the footsteps of this illustrious past. During British occupation, our great lawyers defended Bengal revolutionaries, Indian communists in the Meerut conspiracy case, the Razakars of Hyderabad, Sheikh Abdulah, and his co-accused, and several of Mahatma Gandhi and Indira Gandhi's alleged assassins. The case of Dr. Binayak Sen was recently defended. No reputable Indian lawyer has ever refused to execute his duty because it would make him unpopular or personally dangerous. In this great heritage, the eminent Bombay High Court lawyer Bhulabhai Desai represented the accused in the INA trials in the Red Fort in Delhi.

The role of the lawyer is crucial in the administration of justice. The advocate is bound by professional ethics, which he must uphold to a high standard. His responsibilities include the court, his own client, the opposing party, and maintaining the opposing counsel's respect. Because he belongs to society's known intellectual class and is a member of the noble profession, where higher demands are placed on him, what is appropriate for others in society may not be proper for him to perform.

Advocates are valued in today's culture. People have a high level of trust in the judiciary and legal system, and a lawyer is often the first person they contact. Litigants invest their faith in a lawyer and trust them with protected information. They had to sign their names everywhere a lawyer asked them to. An advocate's responsibility is to protect his clients' rights and ensure that justice is administered fairly and impartially.

In the task of administering justice, the duties of Judges and attorneys are complimentary, and practising lawyers as a class are an essential part of the system, assisting Judges in the performance of their function of obtaining justice for litigants before the Courts. In other words, practising lawyers, who are basically partners in the process of administering justice with the Judges, have a vested interest in the preservation of a brave and independent judiciary to ensure that litigants obtain fair and fearless justice.

Following our great nation's tradition, the Hon'ble Supreme Court has repeatedly decided that an accused's right to be represented by a lawyer is a constitutional right that cannot be taken away. The Hon'ble Supreme Court even ruled that the criminal appeal could not be dismissed due to the appellants' or their counsel's failure to appear. The Court must either adjourn the hearing of the appeal or evaluate the merits of the appeal and pass final orders.


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