Police v. Advocates who is more powerful? : Comment.

Police v. Advocates who is more powerful:- Comment

Author: Apratim De, New Law College BVDU, Pune.

People always try to compare between a lawyer and a policeman about who is more powerful between the two. But it has to be understood that both of them represents the various organs of the government i.e. legislature, executive and judiciary so as a result of which both of them have their independent powers and moreover both of them perform their duties within the scope of their service. So in my opinion it is very vague to compare that whether the advocate is superior to the police or vice-versa because each of them has been designated with certain powers and roles which they exercise but with certain restrictions.

Now let us understand about the roles which both the individuals has to play in detail:-

Actually the concept of ‘Rule Of Law’ which is an integral part of the constitution of Britain and is mentioned as follows in the words of Prof. A.V. Dicey which are:-

• • Absence of Arbitrary Power:- Here in the words of Prof. Dicey absence of arbitrary power means that no person can be punished under the law unless there has been any breach of law and as a result this also restricts the power up to a certain extent and thus prevents the exercise of unnecessary powers in the hands of executive.
  • Equality before the law:- Also according to Prof. Dicey’s rule of their (caste, creed, economic status or social status) which means everybody will be equal before the law and as a result punishment will be same for all according to the crime committed by them.

• The primacy of the rights of the individual:-that is, the constitution is the result of the rights of the individual as defined and enforced by courts of law, rather than constitution being the source of the individual rights.

According to most of the jurists and legal theorists the idea of Rule of Law was not proposed for the first time by Prof. A.V. Dicey rather it was known much before that and was already a part of the British constitution according to which judiciary would look upon the acts of the other organs of the government, would prevent the arbitrary actions of the executive and most importantly the judiciary would be the supreme. But according to the Indian constitution all the three organs of the government i.e. legislature, executive and judiciary are interrelated to each other and thus no one is superior over the other. Also, as a result the judiciary plays a vital role by keeping a check over the actions of the legislature and the executive.

The Indian judiciary mainly comprises judges of HC, SC,District courts, solicitors, addl. Solicitors, advocates etc.

But according to the Advocates Act 1961 and the other amendments which came thereafter related to this act has not only given the guidelines according to which the advocates have to act but has also set up certain set of rules breach of which would have adverse effects.

Rule of Law In India

Now as we saw that how the concept of Rule Of Law has came into existence let us now look at how the concept of Rule of law is followed in India. Moreover the concept of Rule of Law existed in India since the constitution of India came into force. But it is very tragic to see that how the political vendetta of some of the selfish politicians always overpowers the Indian judicial system greatest example of which is the National Emergency proclaimed by the then congress government from 1975-77 as a result of which various amendments were made in the Indian constitution and the worst among them was the omission of the judicial review during the period of emergency which meant that the government is now not liable for any of its action during emergency and as a result iit cannot be challenged in the court of law neither during emergency nor after the emergency which meant that now no one is their to protect the people against the arbitrary actions of the government which meant that a situation of tyranny and despotism would prevail in the society which meant that the Indian democracy was at risk.

But thanks to the 44th amendment after which the judicial review was once again restored during emergency which as a result prevented the misuse of power by the government.

Also, under chapter IV and V of advocates act of 1961 the following powers are vested upon to the advocates which are as follows:-

• Under chapter IV the rights vested to the advocates are as follows:-

Chapter-IV Right To Practice

Section-29

This section basically recognises only the advocates as a class of persons who are entitled to practice law.

Section-30

Right of advocates to practice- Subject to provisions of this Act, advocate whose name is entered the [(Note:- Subs. By Act 60 of 1973, sec.22 for the words “common roll”.) State roll] shall be entitled as of right to practice throughout the territories to which this Act extends –

(i) In all Courts including the Supreme Court

(ii) Before any tribunal or person legally authorized to take evidence and

(iii) Before any other authority or person before whom such advocate is by or under law for the time being in force entitled to practice.

Section-31

Omitted

Section-32

Power of Court to permit appearance in particular cases-

Under this section a court can ask any person who otherwise is not enrolled as an advocate to appear before the court in a particular matter or case.

Section-33

Advocates alone entitled to practice-

Under this section any person who is registered as an advocate with the state bar council can only practice as an advocate in the court of law.

Section-34

Power of High Courts to make rules-

(1) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and the courts subordinate thereto.

(1A) The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary’s advocate upon all proceedings in the High Court or in any Court subordinate thereto.

2. Without prejudice to the provisions contained in sub section (1), the High

Court at Calcutta may make rules providing for the holding of the Intermediate and the Final examinations for articles clerks to be passed by the person referred to in section 58AG for the purpose of being admitted as advocates on the State roll and any other matter connected therewith.

So as we saw that under chapter IV of the advocates act of 1961 certain rights are asserted to the advocates along with certain powers vested in the hands of the courts. Now let’s look at the powers which are vested to the law enforcers or the executives. But before that we all need to understand that it is illogical to compare that whether the police is more powerful than the advocates or the advocates are more powerful than the police because there is no such device been developed till date about who is more powerful between the two.

Also, it has to be understood that while judiciary interprets the law at the same time the executives looks after that whether the laws are enforced properly or not which means none of them is superior to the other but are rather complementary to each other.

According to the police act of 1861 the Police officer has a vital role to play as a law enforcer to maintain peace, security and harmony in the state. As it is always seen that if a person has a threat to his/her life then they directly go to the police to safeguard themselves. Also, the overall administration of the police is vested in the hands of the state. Basically the top officials of the police department reports to the home minister of the concerned state and also in turn follows the orders given by the ministry.

Below is the hierarchy of the police department according to which they function:-

In India the entire police department is divided into two cadres:-

1. IPS Cadre appointed through Union Public Service Commission(UPSC)
2. State Cadre appointed through State Public Service Commission.

IPS Cadre

Note:-

• All the above ranks are held by the IPS cadre officers.
• Also,Also, all the above mentioned officers reports directly to the DGP or to the Home Minister of the State.
• Director of Intelligence Bureau is the senior most officer of the cadre and reports directly to the National Security Advisor (NSA) or to the PMO.

          State Police Cadre

Note:-

• All the above mentioned officers belongs to the state police cadre.
• These officers report to the city SP or to the DSP.
• And in rare cases a state cadre police officer makes it to the IPS cadre on the basis of their performance and is further promoted to the cadre.
• Also, below Asst. Sub Inspector comes the Head Constable, Senior Constable and Constable.

Also, the various responsibilities mentioned by the police department are as under:-

1. To maintain law and order in the society
2. To maintain public order and morality in the society.
3. To eliminate the various anti social elements prevailing in the society.
4. To eliminate the terrorists and safeguard the public against them.

Power of the police to investigate:-

The power of the police to proceed with the investigation begins under the following circumstances:-

1. When a FIR is registered under Section-154 of Crpc.
2. When the officer has a clue as a result of which he/she gets the reason to suspect the person for the commission of an offense under section-156(1),157(1).
3. Any Magistrate empowered under section 190 a magistrate can order such an investigation as above- mentioned.
4. Power to investigate under section 155(2)&(3)of Crpc in cases of non-cognizable offenses:-

Under Section-155(2) a magistrate can order a police officer to investigate non-cognizable offenses too but the officer can investigate such a case only after receiving the orders from the magistrate to do the same. And once the officer receives the order from the magistrate to do so hen the concerned officer has same powers which are vested to an officer in charge of that locality.

Also, under Section-155(3) such investigating officer has all the powers vested upon them as the officer in charge of the concerned area has except the power to arrest without a warrant.

5. Power of Police to examine witnesses (Section-160):-

According to section 160 police officer may by order in writing require attendance of witnesses. Provided that no male person under the age of 50 years or above 65 years or a woman or a mentally or physically disabled shall be required to attend at any place other than the place in which such person above mentioned resides.

6. Examination of witnesses by police:-

• Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
• Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
• The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

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Conclusion:- So as we have discussed above about the roles of the advocates and the police, and so we saw that both of them are complementary to one another and none of them is superior or inferior to each other. So it has to be understood by all of us that the general notion which prevails among the people in the society that an advocate is more powerful than a police or vice-versa but actually these type of statements are thus creates confusion and rage among all. So it has to be understood that both of them are separate from each other and indeed have separate roles to play.