This Article is written by Riya Mali, Vivekanand Education Society’s College of Law, an intern under Legal Vidhiya.
ABSTRACT
The freedom of speech granted to advocates in court proceedings is integral to the administration of justice in India. While Article 19(1)(a) of the Constitution protects freedom of speech, the Advocates Act, 1961 sets the boundaries within which advocates must operate, ensuring a balance between expressive liberty and professional decorum. This article explores the legal contours, judicial pronouncements, and ethical implications of advocates’ speech within courtrooms. The discourse analyses how these right functions as a necessary tool for fearless advocacy while also evaluating the reasonable restrictions necessary for maintaining dignity, discipline, and respect toward judicial institutions.
KEYWORDS
Freedom of Speech, Advocates Act, Professional Ethics, Judicial Proceedings, Bar Council, Article 19(1)(a), Contempt of Court
INTRODUCTION
Advocates hold a position of immense responsibility within the legal system, not merely as representatives of their clients but also as officers of the court. Their role extends beyond personal interest; it is inherently tied to the larger goal of ensuring justice. One of the most important aspects of this role is the right to freedom of speech, guaranteed under Article 19(1)(a) of the Indian Constitution. This fundamental right empowers advocates to put forth arguments fearlessly and to challenge even the most powerful authorities when required. The ability to argue without fear or favor forms the backbone of effective advocacy and contributes significantly to the preservation of the rule of law.
However, it is equally important to recognize that this right is not absolute. Within the confines of the courtroom, certain limitations are both necessary and inevitable. Unlike in public discourse, where speech may have wider latitude, courtroom advocacy requires a delicate balance between assertiveness and restraint. The Advocates Act, 1961, along with the Bar Council of India Rules, imposes duties on advocates to maintain decorum, dignity, and respect toward the judiciary, opposing counsel, and even witnesses. This framework ensures that while advocates can argue their client’s case with vigor, they must also uphold the integrity of the judicial process.
The essence of advocacy lies in persuasive reasoning and legally sound arguments. Advocates are expected to combine intellectual rigor with professional ethics, ensuring that their submissions are not only powerful but also respectful. Any form of contemptuous, offensive, or disruptive behavior may undermine both the dignity of the court and the credibility of the advocate. Hence, the freedom of speech in the courtroom is carefully circumscribed by the principles of judicial discipline and professional responsibility.
The real challenge, therefore, lies in striking the right balance between robust advocacy and the demands of courtroom discipline. An advocate must be fearless in defending the rights of their client, yet mindful of the decorum that sustains the authority of the judiciary. When this balance is achieved, the advocate not only fulfills their duty to the client but also strengthens the justice delivery system and public confidence in the rule of law.
CONSTITUTIONAL FRAMEWORK OF FREEDOM OF SPEECH
Article 19(1)(a) of the Constitution of India guarantees the right to freedom of speech and expression to all citizens, including advocates. However, Article 19(2) permits the state to impose reasonable restrictions on this right in the interest of sovereignty, public order,
decency, and contempt of court. The Supreme Court has affirmed that these restrictions extend to speech in the courtroom and must be interpreted contextually.
In In Re Arundhati Roy, the Court emphasized that “freedom of speech does not include the right to scandalize the judiciary or lower its authority.”[^1] Similarly, while advocates are entitled to criticize judgments, such criticism must be constructive and devoid of malicious intent.
ROLE OF THE ADVOCATES ACT, 1961
The Advocates Act, 1961 provides for the regulation of legal practice and professional ethics. Sections 35 to 44 deal with misconduct and disciplinary proceedings against advocates. An advocate’s speech in court that breaches decorum may attract disciplinary action under Section 35 for professional misconduct.
The Bar Council of India Rules prescribe duties toward the court, including Rule 1 of Chapter II, Part VI, which mandates that an advocate must act with dignity and respect in court proceedings.[^2] Advocates are not permitted to use intemperate language, interrupt court proceedings without cause, or argue disrespectfully.
JUDICIAL PRONOUNCEMENTS ON ADVOCATES’ SPEECH
Indian courts have examined the extent and limits of advocates’ speech in various cases:
In Pravin C. Shah v. K.A. Mohd. Ali, the Supreme Court held that advocates must maintain court dignity and cannot overstep boundaries in the guise of free speech.[^3]
In Mahipal Singh Rana v. State of UP, the Court emphasized that lawyers must be conscious that their conduct affects the justice delivery system and excessive rudeness or arrogance in arguments is unacceptable.[^4]
The Kerala High Court in In Re: Advocate M.V. Dhandapani disbarred an advocate for making derogatory comments against the judiciary, reaffirming that freedom of speech is not a license to slander judges.[^5]
These cases underline that freedom of speech for advocates is crucial but not unqualified, especially when weighed against the need for decorum.
ADVOCATES AND CONTEMPT OF COURT
An advocate can be held liable for contempt of court if their speech is disrespectful, obstructive, or scandalizes the judiciary. Under the Contempt of Courts Act, 1971, a distinction is drawn between fair criticism and contempt.
In P.N. Duda v. P. Shiv Shankar, the Court acknowledged the right of lawyers to criticize judgments but held that scandalous or abusive language crosses the line into contempt.[^6] The courts have urged advocates to express their views responsibly, using legal arguments rather than personal attacks.
Contempt actions are not aimed at curbing criticism but at preserving judicial independence. Advocates must therefore strike a balance between critique and courtesy.
BALANCING FEARLESS ADVOCACY AND PROFESSIONAL RESTRAINT
The courtroom demands advocates to be fearless in their arguments while being restrained in their demeanor. It is through this balance that justice is achieved without eroding the respect for the institution.
Bar Council rules encourage strong representation while upholding civility. Advocates must not merely represent the client’s interest but also ensure their conduct fosters public confidence in the justice system. This dual role of loyalty to the client and duty to the court necessitates measured speech.
THE GLOBAL PERSPECTIVE
In several democracies, similar principles apply. For instance, in the UK, the Bar Standards Board Code of Conduct emphasizes courteous speech and bans personal criticism of judges. In the US, while the First Amendment provides strong speech protections, courtroom speech is still subject to rules of professional conduct and judicial respect.
The Indian legal framework, through the Advocates Act and judicial interpretations, aligns with international norms in ensuring that advocates enjoy protected speech within bounds of dignity and legality.
NEED FOR ETHICS TRAINING AND DISCIPLINARY MECHANISMS
Given the rise in instances of professional misconduct, law schools and bar councils must emphasize courtroom ethics. Training modules should include judgment analysis, persuasive speaking, and respectful advocacy. Regular workshops for advocates on court decorum can bridge the gap between theory and practice.
The Bar Council must also expedite disciplinary proceedings to ensure that violations do not go unchecked, thereby deterring abuse of speech privileges.
CONCLUSION
The freedom of speech granted to advocates in court proceedings is one of the most powerful instruments for ensuring justice, but it carries with it an equally great responsibility. While Article 19(1)(a) of the Indian Constitution provides the foundational guarantee of free expression, this right in the courtroom must be understood in the context of constitutional limitations, statutory provisions such as the Advocates Act, 1961, and the ethical framework laid down by the Bar Council of India. Judicial pronouncements over time have consistently emphasized that the right to speak freely before the court does not extend to undermining the dignity of the institution or obstructing the administration of justice.
Advocates are expected to be fearless in their advocacy, raising every legitimate legal point that serves their client’s cause. Yet, this boldness must not translate into disrespect or disregard for the court’s authority. The art of advocacy lies in balancing courage with courtesy, ensuring that arguments remain sharp, persuasive, and legally grounded, without crossing into offensive or contemptuous territory.
When advocates respect these boundaries, their freedom of speech becomes a tool that not only protects individual rights but also strengthens the justice system as a whole. It upholds the rule of law, fosters judicial accountability, and preserves public faith in courts. On the other hand, when this freedom is misused—whether through derogatory remarks, baseless allegations, or contemptuous conduct—it risks eroding the very institution it is meant to protect.
Therefore, the true value of this freedom lies not in its unrestrained use but in its disciplined exercise. A fearless yet respectful advocate embodies the spirit of constitutional democracy, ensuring that the courtroom remains a place where truth is pursued with dignity, fairness, and unwavering commitment to justice.
REFERENCES
1. In Re: Arundhati Roy, (2002) 3 SCC 343.
2. Bar Council of India Rules, Part VI, Chapter II.
3. Pravin C. Shah v. K.A. Mohd. Ali, (2001) 8 SCC 650.
4. Mahipal Singh Rana v. State of UP, (2016) 8 SCC 335.
5. In Re: M.V. Dhandapani, 2022 SCC OnLine Ker 2150.
6. P.N. Duda v. P. Shiv Shankar, (1988) 3 SCC 167.
7. The Advocates Act, 1961.
8. The Contempt of Courts Act, 1971.
9. Constitution of India, Article 19(1)(a) and 19(2)
10. Bar Council of India, “Professional Standards and Ethics,” [Online] Available at: https://www.barcouncilofindia.org
Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is personal.
