A CRITICAL ANALYSIS ON LEGAL PROFESSION AND ADVOCATES ACT, 1961

ABSTRACT

The topic of this research article covers delves into a major and one of the most significant for everyone is legal profession. Since Vedic times dispensation of justice has considered as sacred “ Dharma”. The Regulation Act 1772 recognized ‘ legal profession’ for the first time in India. It was further modify by the ‘Legal Practitioners Act, 1846’ regulate both ‘ vakils and also barristers’. Finally, the Advocates Act, 1961 replaced laws and gave autonomy to the Bar Council of India and the establishment of an All-India Bar were addressed in this newly instituted legislation.

The Advocate Act, 1961 make a significant response, to transformative shifts in legal profession in post- independence. Section 34(1)of the Advocates Act existing since time immemorial, has been subjected to restarined interpretations by the Apex court in numerous judgements, resulting in a discordant perspective among the Bar and the Bench.

Notably, the main aim of the law commissions of India is to help the government to shape the public policies and also must ensure the justice. It always worked towards enhancement of law reforms in India. It introduced legal reforms to correct the government’s wrong decisions. Therefore, it is the responsibility of both the government and the law commissions to work in close coordination, because at the end it is for public interest that matters. In 1835 the first law commission was appointed by the ‘Governor General- in- Council’under the chairmanship of T.B Macaulay.

Further, this paper goes on the analysis of history of legal profession in ancient, medieval and in British India, and also it covers the major acts which are mentioned below. The analysis comprehensively considers all stakeholders, evaluating the distinct roles played by each one of them.

Keywords

Legal Profession, Sacred, Dharma, Vakil, Barrister, Legislation, Advocates Act, Section 34(1), Apex Court, Law Commission Report, Code of Civil Procedure

INTRODUCTION

India’s legal profession was managed under the Advocates Act, 1961 which was set up by the Indian parliament after the Independence. India has considered as the second largest legal profession with more than 6,00,000 lawyers. Justice Krishna Iyersays that, “ law is not trade not briefs not merchandise, and so heaven of this commercial competition should not vulgarize the legal profession”.

The inception of the Advocates Act was rooted in the primary objective of actualizing the recommendations put forth by the All-India Bar Committee, 1951 as endorsed by the fourteenth report of the law commission in 1955. The pivotal aim of the Act of 1961, was to revise and consolidated laws governing the legal practitioners. While, establishing the framework for State Bar Councils and All India Bar Council. It encompassed aspects such as, practice, ethics, privileges, regulation, discipline, and the enhancement of the legal profession.

The Advocates Act, 1961 vested control over law reforms within the profession itself, the Act marking a significant credit to its establishment. The India’s legal profession was managed under this Act. This act result of the report of the All-India Bar Committee, the government of India enacted the “ Advocates Act, 1961”.This act brought revolutionary changes in legal profession in India.

Functioning as a quasi- judicial body, the Advocates Act 1961 assumes the role of adjudicating penalties for professional misbehaviour by advocates. It is pertinent to note that the only form of misbehaviour not falling under the purview of the Bar Council of India in competent of court. The designated organisation to address misconduct by an advocate in the Bar Council of India, constituted under the provisions of the Act. Despite of its authority the act has faced criticism for its power to penalite professional and other forms of misconduct.

Furthermore, the descriptive analysis has been given under each heading, which is discussed in the subsequent parts of this paper along with some cases. This study guides readers through various interpretations of the section, drawing on judicial pronouncements and the underlying principles behind its formulation. The authors aim to spotlight the evident loopholes in Section 34 and seek to present a lasting solution. Moreover, the paper scrutinizes Part X of the code of civil procedure in conjunction with Article 227(2)(b) of the Indian constitution. This both combination could empower High Courts to frame rules and regulations, adjudicate matters and serving as an interim mechanism to address the prevailing issues.

WHAT IS LEGAL PROFESSION

The profession of law is one of the oldest and noblest profession. The person, who is in the legal profession is called “ Advocate or Lawyer”. An advocate is an officer of justice and also like a friend of the court. An advocate assist the parties in drafting economic transactions like, contracts, agreement, deeds, wills, etc. An advocate should also be provided, the free legal aid to the poor people and deserving people on compassionate grounds.

HISTORY OF LEGAL PROFESSION IN INDIA

The development of the legal profession in India, can be divided into the following phases:

Legal profession in Ancient India
Legal profession in Medieval India
Legal profession in British India
Legal profession in India after the Independence

Legal Profession in Ancient India

In India, during the earlier period people lived in small groups. The head to these groups or tribes delivered justice under the open sky before all the members. There was no specialists like a lawyer during those days. There kingship is established, the king delivered justice. king was advised by his “ councillors”. The law, in those days was rooted in Hindu religion and custom.

From the stories of Maryada Ramanna and Vikramaditya, we all are well aware of the wise men, who solved the critical cases of those days. During those days the sufferer presented complaints infront of king and the king with the help of his councillors and religious heads and wise courtier delivered the judgment.

Legal Profession in Medieval India

In the Muslim period, there was an existence of the legal profession as the party of the litigation appoints their vakils. However in this Muslim period the legal profession was not well organized. Vakils do their work as an agent for the principal but not as a lawyer.

Legal Profession in British India

During the British period in India, the model legal system developed in India. Before 1726, the courts derived their power, not from the British crown but the East India Company.

Charter of 1726

The year of 1726 marked the beginning of a new phase in the evolution of judicial institutions in India. By this charter of 1726 the “ Mayor’s Court” was established in the presidency towns of Bombay, Madras and Calcutta, they were the royal courts. All these courts heard only all civil cases, no jurisdiction for criminal cases. The criminal cases were deals by “ Governor”. Mainly they followed the procedure based on English law. But persons who do not know even the basic rules, and law were used to practice before the courts.

Charter of 1753

The Charter Act of 1753 was issued to modify the charter of 1726. This charter was also ignored the legal training and education related to legal practitioners. The legal profession not recognized in this charter.

Charter of 1774

By this charter, well organized the legal profession. The British crown established this charter of 1774 by which the “ Supreme Court of Judicature”was established at Calcutta. According to this charter, clause 2 empowered the Supreme Court to approve and enroll as Advocates and Attorney- at- law. The supreme court had also the powers to remove any advocate or attorney in reasonable causes.

Even, the charter of 1774 didn’t provide for the appearance of the Indian legal practitioners to plead before the Supreme Court.

Advocate means ‘ British & Irish Barrister’

Attorney means ‘ the British Attorney or Solicitor’

Bengal Regulation Act, 1793

This Act, first time provided for a regular legal profession for the company’s court. Under the regulation, only Hindu and Muslim were entitled to be enrolled as pleaders.

Indian High Court Act, 1861

In 1861, the Indian High Court Act was passed by the British parliament. The aim of this act is “ to abolish the Supreme Court and Adalat Courts ( Sadar Diwani Adalat and Sadar Nizamat Adalat)”, and in their place to establish High Courts in the presidency towns of Bombay, Madras and Calcutta. This was established because, to avoid conflicts between Supreme Court and Adalat Courts.

Legal Practitioners Act, 1879

This act came into force on 1^st January 1880. The Legal Practitioners Act, 1879 enacted to consolidate and amend the law relating to legal practitioners. All the six grades of practitioners i.e., Advocates, attorneys, vakils, pleaders, mukhtars, and revenue agents were brought into one system under the jurisdiction of the High Court, to appoint or enroll a vakil. The High courts were conducted the vakils examination.

According to Section 5 of the Legal Practitioners Act, 1879 states that, if any person entered as an attorney on the roll on any High Court would be entitled to practice in any subordinate court.

According to Section 41 of the Legal Practitioners Act, the High Court was empowered to make rules consistent with the act as to suspension and dismissal of mukhtars and pleaders under the disciplinary actions. Pleaders and mukhtars were Indian lawyers but advocates were to be Barrister’s.

As per Section 7 of the Legal Practitioners Act, says that, made provisions in respect of issue of certificate to pleaders and mukhtars.

As per Section 9 of the Legal Practitioners Act, 1879 empowered the mukhtars to practice in the courts after enrollment in any court or revenue office.

Indian Bar Committee, 1923

In 1923 a committee called the Indian Bar Committee was constituted under the chairmanship of Sir Edward chamier. It was to consider the issue of organisation of the bar on an Indian basis. The committee didn’t suggest to establishment of an All- India Bar Council. It was a view that a bar council should be constituted for each High Court. The committee suggested that in all High Court, a single grade of the practitioners should be appointed, and they should be called as “ Advocates”. Further, the committee suggested that a Bar Council should have power to make rules in matters, such as qualifications, admission of persons to be advocate of the concerned High Court.

Indian Bar Council Act, 1926

The central Legislature enacted the Indian Bar Councils Act, 1926 to give effect to some of the recommendations of the Indian Bar Committee,1923. The main object of this Act of 1926 is, ‘ to provide the constitution and incorporation of Bar Councils for certain courts to confer powers and impose duties on such bar councils, and to consolidate and amend the laws relating to legal practitioners entitled to practice in such courts’. This act made provisions for the establishment of the Bar Council for every high court. Every bar council consist of 15 members- 4 Advocate- General, 1 judge, 10 members elected by the advocates of the high court from amongst themselves.

Legal Profession in India After Independence

All India Bar Committee, 1951

All India Bar Committee was constituted under the chairmanship of Justice R.S Das. The committee recommended to establishment of an All-India Bar Council for whole India and state bar council for each state. Further, it recommended the powers of enrollment, suspension or the removal of advocates to the Bar Council and also recommended that there should be no further appointment of non- graduated pleaders or mukhtars.

Advocates Act, 1961

The central government enacted the Advocates Act, 1961. This act has being force in entire India. The Act of 1961 brought revolutionary changes in the legal profession in India, it sets to achieve “ unity and dignity in profession of law”.

ADVOCATES ACT, 1961

As a result of the report of the All-India Bar Committee, the government of India enacted the Advocates Act, 1961. The president signed it on 19^th May 1961. This act applies to whole India. The preamble of the act says that, “ it is an act to amend and consolidate the laws relating to legal practitioners and provide, the constitution of Bar Councils and an All-India Bar”. This act has undergone, several amendments since it’s enactment in 1961, to bring many changes with the changing time and solve the practical problems. This act brought revolutionary changes in the profession in India.

The Advocates Act,1961 main object was to amend the laws relating to legal practitioners and provides uniform qualification for admission to the Bar for the Advocates. This act contains 60 sections in all set out in 7 chapters.

Let’s get into depth to understand the Advocates Act, 1961.

Some Important Definitions under the Advocates Act, 1961

Advocate[1]: According to Section 2(1)(a), An Advocate means, A person who is registered on any roll created by this act is known as Advocate.

Appointed day: the term ‘Appointment day’ was defined under Section 2(1)(b) of the act. The appointed day refers to the day provisions took effect.

Bar Council of India[2]: the term ‘ Bar Council of India’ discussed under Section 2 (1)(e) of the act, with section 4 of the act establishes the Bar Council for the territories to which this act applies.

Law graduate: the term ‘ law graduate’ was defined under Section 2(1)(h) of the act, A law graduate is an individual who has successfully completed a bachelor’s degree in law from any recognized university by Indian law.

Legal practitioner: the term ‘ legal practitioner’ defined under Section 2(1)(I) of the act. Legal practitioner who are advocates or vakils, practice in any High Court.

High Court: the term ‘ High Court’ defined under Section 2 (1)(g) of the act, high court excluding a court for judicial commissioner except in certain specified sections. High Court based on the jurisdictions of the state bar council.

Main Features or Characteristics of Advocates Act, 1961

The Advocates Act had the following features:

The Act mainly focuses on consolidates existing laws on the legal profession
By the Advocates Act established, the Bar Council of India and the State Bar Councils
An advocate cannot enroll more than one state bar council but can transfer from one state bar council to another state bar council.
The Advocates Act 1961, abolishes the difference between a vakil and Advocate. Therefore all those who practice law are now they all are called “ Advocates”.
A self-governing authority has given to the Bar Council.
The bar council was given control over an autonomous body that has assigned certain duties.
Every state must consist of one state bar council.

Some Important Provisions under the Advocates Act, 1961

Section 1: Applicability of the Act

The Advocates Act, 1961 applicable to whole of India. The state of Jammu and Kashmir as well as union Territories of Goa, Daman and Diu, which comes into effect on the day that the central government specifies in a notice published in official gazette in their behalf.

Section 3: State Bar Council

According to Section 3 of the Act, empowers to establishment of a bar council in each state. This is based on All India Bar Committee’s recommendations. The state bar council has power to elect it’s own chairman and vice chairman.

Section 4: Bar council of India

Section 4 of the Act, permits the establishment of an All-India Bar Council. There shall be a bar council of India consists of the Attorney-General of India and the Solicitor General of India as the ex- officio members of the bar council of India. Besides it has one member elected by each state bar council from among the members. The council elects it’s own chairman and vice chairman.

Section 7A: Membership in international legal body

According to Section 7A of the Advocates Act, 1961, the bar council of India is permitted to join organizations that represent in international law, such as the International Legal Aid Association( ILAA) and International Bar Association( IBA).

Section 8: Term of office of members of state bar council

As per Section 8 of the Act, the state bar council members term of five years from the starting date of joining. The bar council of India will extend the term of office by examine the reasons, if the state bar council fails to hold elections for their members before the expiry of the term of office provided that the extension does not exceed the period of six months.

Section 11: The staff of the Bar Council

According to Section 11 of the Act deals with the appointment of personal to the bar council. Every bar council needs to have a secretary and accountant and other staff are required for the offices efficient operation may be appointed by bar council.

Section 16: Senior and other Advocates

According to Section 16 of the Act, there shall be two classes of advocates namely, Senior advocates and other Advocates. The supreme court or High court confirmation given that if a person has the professional skill, long standing in the bar, then title ‘Senior Advocate’, they may use it only after the court’s approval.

Section 20: Enrolment of Supreme Court Advocates

As per Section 20 of the Advocates Act, states, the certificate of enrollment for the enrollment of an advocate. A certificate would be issued. Any changes related to permanent address must be reported to their respective State Bar Council within 90 days.

Section 24A: Disqualification of Enrolment

According to Section 24A of the Advocates Act, 1961 no person shall be admitted as an advocate on a state roll-

He is convicted an offence involving, moral turpitude.
He is convicted of an offence under the provision of the untouchability offences act, 1955
He is dismissed or removal from employment or office under the state on any charge involving moral turpitude.

STATE BAR COUNCIL

As per Section 3 of the Advocates Act, 1961 says that, each state there shall be a Bar Council. It is an autonomous body. The Advocate-General of the state is it’s Ex- officio member, and these are 15-25 elected advocates. These members are to be elected for a period of 5 years in accordance with the system of proportional representation by means of single transferable vote from amongst advocates on the roll of the state bar council. The state bar council has power to elect it’s own chairman and vice chairman.

Functions of State Bar Council

According to Section 6 of the Advocates Act, 1961 the functions of State Bar Council are as follows:-

To admit persons as advocates on its roll,
To prepare and maintain such roll,
To safeguard the rights, privileges and interests of advocates on its roll,
To promote the growth of Bar Association for the purpose of effective implementation of the welfare schemes,
To promote and support law reforms,
To conduct seminars and publish journals and papers of legal interest
To provide election of its members,
To visit and inspect Universities.

Every state bar council prepares and maintains a roll of advocates and an authenticated copy of the roll is to be sent to the bar council of India. An application for the admission of as an advocate.

A state bar council has an enrollment committee consisting of three members elected by the Council.

BAR COUNCIL OF INDIA

The Act established an “ All India Bar Council” for the first time. According to Section 4 of the Advocates Act, 1961 there shall be a Bar Council of India consisting of the Attorney- General of India and the Solicitor General of India as the ex- officio members of the Bar Council of India. Besides it has 1 member elected by each state bar council from among its members. The council elects it’s own chairman and vice chairman.

Functions of Bar Council of India

The Bar Council of India as per Section 7 of the Act, has been entrusted with the following functions:-

To lay down standards of professional conduct for advocates,
To safeguard the rights and privileges and also interest of the advocates,
To promote and support law reforms,
To deal with and dispose of any matter arising under this Act, which may be referred to it by a state bar council,
To promote legal education,
To recognised the Universities whose degree in law shall be qualification for enrollment as an advocate and for that purpose, to visit and inspect the Universities in India,
And also, To conduct seminars, organize talks on various legal topics by eminent jurists and publish journals and papers of legal interest,
To manage and to invest the funds of the Bar Council.

Section 5 of the Advocates Act, 1961 says that, every Bar Council shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property, both movable and immovable and to contract and may by the name by which it known sue and be sued.

CERTIFICATE OF ENROLMENT

Section 22 of the Advocates Act, 1961 provides the provision for the certificate of Enrolment. As per this section, a certificate should issued for the enrolment of an advocate. The certificate is issued by the state bar council. Any changes made in the place of permanent address of the person is to get notified to concerned state bar council within 90 days.

QUALIFICATIONS TO BE ENROLLED IN STATE ROLL

As per Section 24 of the Advocates Act, 1961 provides qualifications required to a person to get enrolled as an advocate. The below qualifications for the enrolment in the state roll are as follows:-

The person who is a citizen of India,
The person must have completed the age of 21 years,
The person should have qualified five years integrated course or three years course from any recognised university in India and the degree must be recognized by the Bar Council of India (BCI),
Enrolment fee must be paid by the advocate,
And final one, fulfills any other conditions are required.

VARIOUS RIGHTS AND DUTIES OF AN ADVOCATE UNDER THE ADVOCATES ACT, 1961

Rights of an Advocate under the Act

In India, an advocate has following rights:

Right to practice and freedom of speech and expression:-

Pre-audience rights
Right to opposition to arrest
Right to appear in any other court
Right to see an accused person in jail
Right to professional communication
Right to pay the fee
Right to protect the secrecy of communications
Right with respect to vakalatnama
Right to refuse the case

Duties of an Advocate

An advocate must be perform the following duties:

An Advocate‘s obligation to client:

Client briefs and charging fee: An advocate duty is to accept client briefs and fee based on case’s circumstances.
Declining cases involve testimony: An advocate must be decline cases, where they would act as a witness. If the advocate, become aware of the need to testify during the case they should refrain from proceeding.
Provision of best advice: The main duty of an advocate are bound to give best advice to their clients with full and honest disclosures of involved parties.
Management of client funds: An advocates must track and account for client funds, providing a record upon a request.
Confidentiality: An advocate is required to uphold the confidentiality clause, and not reveal the clients private information in anywhere.

PUNISHMENT OF ADVOCATES FOR MISCONDUCT( SECTION 35)

Section 35 of the Advocates Act, 1961 provides punishment for an advocate for misconduct. This section provides that when a complaint is received or State Bar Council has reason to believe that an advocate on a roll is guilty of professional misconduct. The matter gets referred, to the Disciplinary Committee for disposal. The committee then, decided the date of hearing. The notice gets served to the concerned advocate and the Advocate-General of India.

In N.G. Dastane v. Shrikant S. Shind, in this case, the Supreme Court held that, an advocate seeking continuous adjournments without making alternate arrangements for examining present witnesses, causing inconvenience to the opposing party, amounts to a dereliction of duty. This behavior was deemed as to misconduct, highlighting the advocate’s obligation to the court and the duty to avoid actions that, hinder the expeditious conduct of proceedings.[3]

In Noratanman Courasia v. M. R. Murali, in this case, the SC delve into the scope and extent of the term professional misconduct as mentioned in Section 35 of the Advocates Act, 1961. The factual background involved an advocate acting in the capacity of a respondent rather than an advocate in a rent control proceeding, physically assaulting and admonishing the complainant to desist from pursuing the case.

The Supreme Court maintained that a lawyer obligate to adhere to expected norms of behavior, reflecting qualities that instill confidence in community regarding, his role of an officer of the Court. Despite the advocate not acting in his capacity as advocate and his conduct was deemed unsuitable for someone in the profession. Subsequently, the Bar Council was deemed justified in initiated to disciplinary proceedings against him.[4]

CONCLUSION

The Advocate Act, 1961 holds a significant importance role in legal profession in India, as it delineates mention all the guidelines and regulations that individuals enrolled as advocates must adhere to. This legislation, imposes penalties for any offenses committee by the advocates, thereby ensuring their accountability, and contributing to the smooth functioning of the legal system. The Act clearly mentioned the functions of the State Bar Council and the Bar Council of India, along with granting specific powers to them. Furthermore, it assigns responsibilities to advocates, including right to practice, provide services to clients, meet the clients in jail without restrictions, explicitly prohibits advocates from being admitted to the State Bar Council, if the client is a close relative or his family member.

REFERENCES

https://primelegal.in/2023/03/19/analysis-of-legal-profession-and-advocate-act-1961/#:~:text=The%20Advocates%20Act%2C%201961%20had,than%20one%20State%2DBar%20Council visited on 24/04/2024.
Blogipleaders, https://blog.ipleaders.in/advocates-act-1961/ visited on 25/04/2024.
Legal services, https://www.legalserviceindia.com/legal/article-5371-comprehensive-note-on-the-advocates-act-1961.html visited on 25/04/2024.

[1] Section 2 renumbered as Sub-section (1) of that section by Act 60 of 1973, S. 3 ( w. e. f 31-1-1974)

[2] Clause (c) omitted by Act 60 of 1973, S. 3 ( w. e. f 31-1-1974).

[3] N.G Dastane v. Shrikant S. Shind, AIR 2001

[4] Noratanman Courasia v. M. R. Murali, AIR 2004

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A CRITICAL ANALYSIS ON LEGAL PROFESSION AND ADVOCATES ACT, 1961

Published by Admin on May 4, 2024May 4, 2024