The “right to practice” law in India is a significant aspect of the legal profession and plays a crucial role in the administration of justice. This right, however, raises an important legal question: Is it a fundamental right or merely a statutory privilege granted under the Advocates Act, 1961? The answer lies in understanding the constitutional and statutory provisions that govern this right, especially in light of Article 19(1)(g) of the Constitution of India.
This essay explores the scope, nature, and legal standing of the right to practice law in India and whether it should be considered a right or a privilege.
Constitutional Framework: Article 19(1)(g)
- Article 19(1)(g) guarantees citizens the fundamental right to practice any profession, or to carry on any occupation, trade, or business.
- This includes the right to practice law, making it a fundamental right, subject to reasonable restrictions imposed under Article 19(6).
- The right is available only to citizens of India, not to foreigners.
Key Judgement: O.N. Mohindroo v. Bar Council of Delhi (AIR 1968 SC 888)
- The Supreme Court held that the right to practice law is not only a statutory right under the Advocates Act, 1961, but is also protected as a fundamental right under Article 19(1)(g).
Statutory Framework: Advocates Act, 1961
- The Advocates Act, 1961 governs the enrolment, regulation, and discipline of advocates.
- Section 29 of the Act states that only advocates enrolled with the Bar Council have the right to practice law in India.
- Section 30 provides that an advocate is entitled to practice in all courts, tribunals, and authorities.
Privilege through Regulation
- The right is conditional upon registration with the Bar Council and compliance with the rules framed under the Act.
- Hence, it is considered a statutory privilege for those who meet the legal qualifications and standards of professional conduct.
Right vs. Privilege: The Distinction
Right
- A legal entitlement guaranteed either by statute or the Constitution.
- Once conferred, cannot be arbitrarily taken away.
- Under Article 19(1)(g), the right to practice a profession is fundamental, but subject to regulation.
Privilege
- A special permission or concession, which can be withdrawn under specific conditions.
- The right to appear and plead in court is not absolute and can be regulated or restricted.
Regulation and Reasonable Restrictions
Disciplinary Control
- Advocates are subject to the disciplinary control of State and Bar Councils.
- Professional misconduct can lead to suspension or disqualification, thereby curtailing the right.
Qualifications
- One must possess a law degree, pass the All India Bar Examination (AIBE), and get enrolled with the State Bar Council.
- Failing to meet these requirements means one cannot claim the right.
Example Case: Bar Council of India v. Bonnie Foi Law College & Ors (2017)
- The Supreme Court clarified that the standard of legal education and criteria for enrolment are within the powers of the Bar Council of India to regulate.
Judicial Interpretation and Important Case Laws
1. Smt. Triveniben v. State of Gujarat (1989)
- Reiterated that rights under Article 19 can be regulated, especially in professions where public interest is involved.
2. Ex-Captain Harish Uppal v. Union of India (2003)
- SC held that lawyers do not have a fundamental right to strike or abstain from work, even under the guise of practicing their profession.
3. Indian Council of Legal Aid and Advice v. Bar Council of India (1995)
- The Supreme Court upheld rules and conditions imposed by the Bar Council for practicing as reasonable and valid.
Practical Limitations: When the Right Can Be Curtailed
- Suspension or disbarment due to misconduct.
- Failure to renew enrollment or pay requisite fees.
- Non-compliance with BCI rules such as not practicing law for five continuous years.
- Pending disciplinary actions may also put a hold on the right to practice.
Professional Ethics and Responsibilities
- Practicing law is not just a right but a responsibility to the court, the client, and society.
- Lawyers are considered officers of the court and must adhere to the Bar Council of India Rules.
- Professional misconduct can lead to loss of right or privilege to appear in court.
Comparative Analysis with Other Professions
- Like medicine or engineering, law is a regulated profession.
- However, unlike others, legal practitioners have the right to audience before courts, which is considered a judicial privilege in some countries.
- In India, this aspect is both a right and privilege depending on context—Constitutionally protected but statutorily regulated.
Conclusion: Dual Character – Right and Privilege
- The right to practice law in India has a dual character.
- It is a fundamental right under Article 19(1)(g).
- It is also a statutory privilege regulated by the Advocates Act, 1961.
- While the entry into the profession is governed by legal rights, continuation and conduct are governed by professional privileges, which can be curtailed based on disciplinary mechanisms.
- Thus, it is both a right and a privilege, the enjoyment of which is dependent upon continuous compliance with legal and ethical standards.
Memory Code Table: Summary at a Glance
| Point of Law | Key Reference | Remarks |
|---|---|---|
| Constitutional Right | Article 19(1)(g), Constitution of India | Right to practice a profession |
| Statutory Framework | Advocates Act, 1961 | Sections 29 and 30 govern practice of law |
| Regulation | Bar Council of India | Controls qualification, discipline, conduct |
| Right vs Privilege | Fundamental Right with regulated privilege | Dual nature recognized |
| Landmark Case | O.N. Mohindroo v. Bar Council of Delhi (1968) | Recognized dual nature |
| Limitations | Suspension, Disqualification, Exam requirement | Right not absolute |
| Legal Profession Status | Regulated profession with public responsibility | Held to higher ethical standards |