Right to Pre-audience under Indian Advocates Act, 1961

By | January 20, 2021
Right to Pre-audience

The objective of this article ‘Right to Pre-audience’ is to give a brief overview of the rights and privileges of advocates, as enshrined under the Advocates Act, 1961, with a special focus on the right of pre-audience of advocates. There have been few amendments brought in the provision dealing with advocates’ right of pre-audience, and the present article seeks to list all the details on who all have been conferred with this right under the act.

The right is explained through several relevant case laws to give the readers a better understanding on the right of pre-audience and overview of the rising conflict of dispute because of sub-section 5 of section 23 of the act.

Introduction

Every advocate in India has a statutory right to practice.[1] An Advocate is an officer of the court. This status has gained statutory recognition with Section 49 of the Advocates Act, which empowered the Bar Council of India to frame rules and regulate advocates’ professional conduct standards.[2]

In view of section 23, 29[3], and 33[4] of the Advocates Act, the bar members have certain courtroom privileges being officers of the court, and they are even conferred with some privileges among the members of the bar, because of their unique position and ranking, such as the seniority.[5]

One of te important rights of advocates as enlisted under the Advocate Act, 1961 is the right of pre-audience. Right of pre-audience, a privilege granted to the advocates which are entitled to be heard in their respective order, according to the rank and position. In English law, the hierarchy of order is topped by the King’s Attorney General and ends with barristers at large.

In India, the right of pre-audience is governed under section 23 of the Advocates Act, in which the attorney General of India, the Solicitor General of India, and the Additional Solicitor General of India have in that order pre-audience over all other advocates. A second additional Solicitor General was later appointed for better discharge of Government’s legal business on India, based on the same terms and conditions of service as of the Additional Solicitor General and with the same functions. It is therefore proper that his right of pre-audience should be recognized in statutory terms.

In reference to that, an amendment was brought in 1980 under the section 23 of the Advocates Act, to provide the second additional solicitor general with the right of pre-audience, in immediate hierarchy after the other prominent three law officers of India.

Right to Pre-audience

Right to Pre-audience or precedence is referred to, “the right to be heard before another is heard”.[6]It means that an advocate has the right to represent or present his client in the court when he/she wants to speak in the front of the audience present in the court and cannot be stopped unless he disturbs the court decorum.

Section 23 of the Indian Advocates Act, 1961 governs the provision on the right to pre-audience. The provision is reproduced as under:

  1. The Attorney General of India shall have pre-audience over all other advocates.
  2. Subject to the provision of sub-section (1), the Solicitor General of India shall have pre-audience over all other advocates.
  3. Subject to the provision of sub-section (1) and (2), the Additional Solicitor General of India shall have pre-audience over all other advocates.[7] (3A) Subject to the provision of sub-sections (1), (2), (3) the second Additional Solicitor-General and (3A) the Advocate General of India shall have pre-audience over all other advocates.]
  4. Subject to the provisions of sub-section (1), [8][(2), (3) and (3A)] the Advocate-General of any State shall have pre-audience over all other advocates, and the right of pre-audience among Advocates General inter se shall be determined by their respective seniority.
  5. Subject as aforesaid-
  • Senior advocates shall have pre-audience over other advocates and
  • The right of pre-audience over senior advocates inter se and other advocates inter se shall be determined by their respective seniority.”[9]

This provision corresponds to sub-section (4) of section 8 of the Indian Bar Council Act, 1926, which is mentioned as : “(4) The respective rights of pre-audience of Advocates of the High Court shall be determined by seniority:

Provide that the Advocate General shall have pre-audience over all other Advocates.”[10]

Scope of the Provision

Section 23 of the Advocates Act lays down the order in which he advocates shall be entitled to address the court of law. The right of pre-audience related to the priority given to the superior advocates while addressing courts. The scheme of priority, i.e., right to address before the court of law, has been laid down in the following under:

  1. Attorney General: He/she has pre-audience over all other advocates.
  2. Solicitor General of India
  3. Additional Solicitor General of India
  4. Second Additional Solicitor General of India
  5. Advocate General of any State
  6. Senior Advocates
  7. Other Advocates

Therefore, it is explicit that once an applicant is enrolled as an ‘advocate’ in the ‘state roll’ maintained by the Bar Council of the state, the concerned advocate gets the right of audience pertaining to the scheme of priorities as mentioned in section 23 of the act. The term ‘audience’ in the right of pre-audience implies for the full rights of advocates of addressing before the court on all legal and factual issues involved in a case; the advocate is appearing.[11]

The rights of other advocates inter se have to be determined based on their respective seniority determined in accordance with sections 17 and 21 of the act. But this determination does not affect an advocate’s right to conduct a case on behalf of his client. Though Senior Counsel has a right of pre-audience over other advocates, but on instructions of the client, the advocates appearing for a party can agree on a different choice. However, any such arrangement does not affect the validity of a notice given to any counsel of the party. After service of such notice, the court is absolved of its duty to give further notice.

It may also be seen that the provision merely confers a right of pre-audience, but the order of pre-audience given in this section is not mandatory. The respective Counsel can waive his right of pre-audience in favour of another counsel if he so deems fit.

Functions of Attorney General and Advocate General of India

The Attorney General does not represent the Executive, the legislature, or the Judiciary in disciplinary proceedings before the disciplinary committee. The function of the attorney general is advisory and more akin to amicus curiae. He is not to take sides except that his arguments lend weight to the case of the one side or that of the other. Besides that, he is not to be interested in the dispute either in his personal capacity.

Section 23 merely determines the rights of advocates inter se to the pre-audience of the court on the basis of their seniority. To note, this is matter to be settled among advocates themselves, and in case there arose any dispute, based on the seniority of the advocate, the right of pre-audience shall be conferred. However, the section does not impose any statutory bar on a junior advocate in the matter of conducting proceedings of a case, when no other advocate is present on behalf of the client.[12]

In the case of In Re: Pre-Audience of the Acting Advocate General,[13] a petition was raised by an acting Advocate General before the Bombay High Court to give clear directions on his right of pre-audience in the concerned court. It was observed by the court that rights of pre-audience of advocates of the High Court should be determined by their seniority, and the Advocate General shall have pre-audience or precedence over all other advocates. Similarly, the acting Advocate General is also entitled to this right in the same manner.

The constitutional validity of Section 23 (5) has been challenged in a number of writ petitions before Indian courts that right of pre-audience given to the senior advocates over other advocates is void and unconstitutional. The main ground of the challenge is that this privilege creates division/classification of lawyers into two classes, and affords discriminatory treatment with the pre-audience privilege given to a particular superior class of lawyers, designed as senior advocates. Hence, it is violative of the equality clause under Article 14, the fundamental structure of the Indian Constitution and Articles 19 and 21 as well.[14]

Recently, a writ petition was filed in case of Indira Jaising v. Supreme Court of India[15], challenging the constitutional validity of section 16 and section 23(5) of the Advocates Act, 1961. The provisions provide for the statutory basis for designation of lawyers as senior advocates. The 3-judge bench in the present case referred to the writ petition filed before the Delhi HC in the National Lawyers’ Campaign for Judicial Transparency and Reforms & Anr. v. The BCI & anr,[16]case where the mentioned provisions were earlier challenged to be unconstitutional. Hence, the bench said that if the source of the power of such statutory designation is itself under challenge, the matter is to be heard in this court.

Following, a large number of intervention in the proceedings and solutions proposed at the bar for improvement in the system, the bench admittedly said that the issues concerning the designation of lawyers as per the prevalent procedure mentioned in advocates act appear to have caused considerable dissatisfaction among a section of the bar.

Conclusion

The Advocates Act, 1961 is the primitive act for advocates in India, governing their rights, duties, and privileges. There are several rights and privileges granted to the advocates practising in Indian courts, and right of pre-audience is one such significant right of advocates. However, in recent years, section 23 of the act that deals with advocates’ right to pre-audience have become a topic of debate.

A section of advocates are dissatisfied with the particular sub-section five and wants the Apex Court to declare it unconstitutional. Nonetheless, the provision is effective and in the application as of now, so the eyes are on the Supreme Court if it will re-consider the legality of section 23 (5) of Advocates Act, 1961 in the years to come.


[1] Section, 29 to 34 of the Advocate Act, 1961.

[2] AIR 1997 Kerala 243.

[3] Section 29, Advocates Act 1961: Advocates to be the only recognised class of persons entitled to practise law.

[4] Section 33, Advocates Act 1961: Advocates alone entitled to practise.

[5] B.R. Sinha, Encyclopedia of Professional Education. Vol. 8. (2003).

[6] Definition of preaudience, Merriam-Webster, https://www.merriam-webster.com/dictionary/preaudience.

[7] Ins. by Indian Advocates Act No. 47 of 1980, sec.3. 

[8] Subs. by Indian Advocates Act No. 47 of 1980, sec.3, for the brackets, figures and work “(2) and (3)”.

[9] Section 23, Indian Advocates Act, 1961.

[10] Section (8) (4), Indian Bar Council Act, 1926.

[11] V Sudheer v. Bar Council of India and Anr, 1999(3) SCC 176.

[12] 1975 Cri LJ 337 (All).

[13] (1931) 33 BOMLR 1500.

[14] Rohini M. Amin v. The Bar Council Of India & Ors on 8 May 2017.

[15] 2017 SCC OnLine SC 3.

[16] Writ Petition (C) No.6331 of 2016.


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