The Role of the Lawyers or Advocates Under the Constitutional Norms

The Role of the Lawyers or Advocates Under the Constitutional Norms

The lawyers/advocates have immensely contributed to shaping the framework of Indian society for more than the past 200 years. Apart from the legal profession, the lawyers have contributed to the freedom struggle, drafting the constitution of India, legislative members, teachers, social reformers, bureaucrats etc.

In England, the right to be represented by counsel has been in system for almost three centuries. Great lawyers, such as Cicero, Scaevola, Crassus, and others, defended the accused in ancient Rome. Indeed, the higher the human race’s civilization grew, the clearer and stronger that right became, and the more firmly it was held and asserted. Even in the Nuremberg trials, Nazi war criminals who were responsible for the deaths of millions of people were given legal representation.

Constitutional Mandate:

A lawyer cannot deny a brief if the client is willing to pay his fee and the lawyer is not otherwise engaged, according to professional ethics. No Bar Association can approve a resolution stating that none of its members will represent a certain accused, whether or not he is charged with a horrible crime. Article 22(1) of the Constitution mandates that no person who is arrested should be held in custody without being informed of the grounds for his arrest as soon as possible, nor shall he be denied the right to consult and be represented by a lawyer of his choice.

Mandate of Bar Council of India:

‘Standards of Professional Conduct and Etiquette’ in Chapter II of the Rules framed by the Bar Council of India ensures that any brief before the Courts or Tribunals, or before any other authorities in or before which an advocate wishes to practice must be accepted at a fee consistent with his status at the Bar and the nature of the case. An advocate may refuse to accept a particular brief due to exceptional circumstances.

English backdrop on the legal ethics:

When the great revolutionary writer Thomas Paine was imprisoned and tried for treason in England in 1792 for producing his famous pamphlet ‘The Rights of Man’ in support of the French Revolution, he was represented by the eminent advocate Thomas Erskine (1750-1823). Erskine was the Prince of Wales’ Attorney General at the time, and he had been informed that if he accepted the brief, he would be fired. Erskine, undeterred, accepted the brief and was fired from his position. He practiced the legal profession with professional ethics at its highest level. Erskine believed that the freedoms of England are at an end the moment any advocate may say whether he will or will not stand between the Crown and the subject accused in the court where he regularly sits to practice. Further, if the advocate refuses to defend the accused, regardless of what he thinks of the charge or the defense, he assumes the role of Judge; in fact, he assumes it before the hour of the judgment; and, in proportion to his rank and reputation, he wields the heavy influence of perhaps a mistaken opinion against the accused, in whose favor the principles of English law make assumptions. Even today, his immortal ideas in this connection shine like a bright beacon.

American import on the legal ethics:

In Powell vs. Alabama 287 US 45 1932, Mr. Justice George Sutherland of the U.S. Supreme Court emphasized the importance of the right to be heard by counsel. The relevant paragraph of the judgment is explained below:

It has always included, historically and in reality, the right to the assistance of counsel when wanted and provided by the party exercising the right, at least in our own country. In many circumstances, the right to be heard would be useless if it did not include the right to be heard by counsel. Even the most knowledgeable and educated layperson has limited, if not no, knowledge of the law. He is often incapable of evaluating whether the indictment is good or bad if he is charged with a crime. He doesn’t know how to follow the rules of evidence. If he is not represented by counsel, he may be tried without a proper charge and convicted based on incompetent evidence, evidence that is irrelevant to the issue, or evidence that is otherwise inadmissible. Even if he has a superb defense, he lacks the necessary skill and understanding to properly prepare it. At every stage of the proceedings against him, he requires the assistance of counsel. Even if he is not guilty, he risks being convicted if he does not have it because he does not know how to prove his innocence. If it is true of intelligent folks, imagine how much more true it is of the illiterate and uneducated, or those with a feeble mind. If a state or federal court refused to hear a party via counsel, employed by and appearing for him, in any action, civil or criminal, it is reasonable to believe that such a refusal would be a denial of a hearing, and thus of due process in the constitutional sense.

The Rich Heritage of our Great Nation:

This remarkable heritage has been followed by Indian lawyers. The lawyers of our great nation had defended the Bengal revolutionaries during British rule, the Indian communists in the Meerut conspiracy case, the Razakars of Hyderabad, Sheikh Abdulah and his co-accused, and some of the alleged assassins of Mahatma Gandhi and Indira Gandhi. Dr. Binayak Sen’s case has recently been defended. No reputable Indian lawyer has ever shied away from duty on the grounds that it would make him unpopular or personally hazardous. The distinguished Bombay High Court lawyer Bhulabhai Desai represented the accused in the INA trials in the Red Fort in Delhi in this great tradition.

In the administration of Justice, the function of the lawyer is critical. Professional ethics bind the advocate, and he must uphold a high level. His obligations are to the court, his own client, the opposing party, and to maintain the respect of opposing counsel. What is appropriate for others in society may not be appropriate for him to do since he belongs to the society’s renowned intellectual class and is a member of the noble profession, where higher expectations are placed on him. In today’s society, advocates are respected. People have a great deal of faith in the judiciary and judicial system, and a lawyer is the first person who deals with them. Litigants put their trust in a lawyer and disclose privileged information with them. They signed their names everywhere a lawyer requested them to. An advocate’s job is to protect the rights of his clients and to guarantee that justice is served in a fair and impartial manner. The roles of Judges and lawyers are complementary in the task of administering justice, and practising lawyers as a class are an integral part of the system, assisting Judges in the discharge of their function of reaching justice for litigants appearing before the Courts. In other words, practising lawyers, who are essentially partners in the Judges’ work of administering justice, have a vested interest in the preservation of a brave and independent judiciary to ensure that litigants receive fair and fearless justice.

Following the tradition of our great nation, the Hon’ble Supreme Court at numerous occasion have held that the right of an accused to be defended by lawyer is a constitutional right and cannot be taken away. The Hon’ble Supreme Court even held that the criminal appeal could not be dismissed for default of appearance of the appellants or their counsel. The Court has to either adjourn the hearing of the appeal or it should consider the hearing the appeal on merits and pass final orders.


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