This article is written by Mita Sarker of 7th Semester of University Law College , Bangalore, an intern under Legal Vidhiya
The Advocates Act in 1961 marked a significant response to transformative shifts in the legal profession post-Independence. The imperative for a unified bar, regulations overseeing State Bar Councils, and the establishment of an All-India Bar were addressed in this newly instituted legislation. Section 34(1) of the Advocates Act, existing since time immemorial, has been subject to restrained interpretations by the Apex Court in numerous judgments, resulting in a discordant perspective between the Bar and the Bench.
Notably, the Law Commission of India, in its recent report, has overlooked the issues stemming from the seemingly perfunctory Section. This paper endeavors to navigate a middle ground for the Bar and the Bench, concurrently proposing interim measures to mitigate disparities and effectively clarify ambiguities within the said section. The analysis comprehensively considers all stakeholders, evaluating the distinct roles played by each.
The deductive approach employed in 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, as a temporary measure, the paper scrutinizes Part X of the Code of Civil Procedure in conjunction with Article 227(2)(b) of the Constitution. This combination could empower High Courts to frame rules and adjudicate matters, serving as an interim mechanism to address the prevailing issues.
Advocates Act, Section 34(1), Code of Civil Procedure, Law Commission Report, Constitution of India
The inception of the Advocates Act, 1961 was rooted in the primary objective of actualizing the recommendations put forth by the All-India Bar Committee, as endorsed by the fourteenth Report of the Law Commission in 1955. The pivotal aim of the Act was to revise and consolidate the laws governing legal practitioners, while also establishing the framework for State Bar Councils and the All-India Bar Council. It encompassed aspects such as admission, practice, ethics, privileges, discipline, regulation, and the enhancement of the legal profession. The Advocates Act, 1961 vested control over law reforms within the profession itself, marking a significant credit to its establishment.
Functioning as a quasi-judicial body, the Advocates Act, 1961 assumes the role of adjudicating penalties for professional misbehavior by advocates. It is pertinent to note that the only form of misbehavior not falling under the purview of the Bar Council of India is contempt of court. The designated organization to address misconduct by an advocate is the Bar Council, constituted under the provisions of the Act. Despite its authority, the Act has faced criticism for its power to penalize professional and other forms of misconduct.
HISTORY OF THE ADVOCATES ACT, 1961
The management of India’s legal profession underwent a significant transformation with the enactment of the Advocates Act in 1961, a parliamentary initiative following Independence. To oversee and regulate the post-Independence Indian judiciary, the government established the All-India Bar Committee in 1953. The Advocates Act and the Bar Council of India were subsequently established in 1961 based on recommendations presented to Parliament by the All-India Bar Committee.
Prior to the implementation of the Advocates Act in 1961, legal practitioners in India were classified into various categories under the Legal Practitioners Act of 1879, including Advocates, Lawyers, Vakils, Barristers, among others. However, the Advocates Act brought about a significant change by abolishing several classes of legal practitioners and consolidating them into a unified category of advocates.
Post the enactment of the Advocates Act, advocates were further categorized into Senior Advocates and other subdivision advocates based on their qualifications, expertise, and experience. The conferment of the title of Senior Advocate requires confirmation by either the Supreme Court or the High Court, reflecting a recognition of their standing and proficiency in the legal field.
FEATURES OF THE BILL BEHIND ADVOCATES ACT 1961
The key provisions of the bill encompassed:
Formation of All India Bar Council: The mandatory establishment of the All-India Bar Council was stipulated, ensuring a unified regulatory body overseeing the legal profession.
Unified Class of Attorneys: A pivotal aspect was the consolidation of the legal practitioners into a singular class referred to as advocates, eliminating the prior diverse classifications.
Pan-India Practice Rights: Granting advocates the right to practice across the entire nation, allowing them access to any High Court and the Supreme Court of India.
Uniform Qualification Standards: The introduction of a standardized qualification process for the admission and qualification of individuals as advocates, promoting consistency across the legal profession.
Categorization Based on Merit: The bill advocated for the categorization of legal practitioners into distinct classes, differentiating between senior advocates and other advocates based on merit and qualifications.
Autonomous Bar Councils: The establishment of autonomous Bar Councils was emphasized, including one at the national level for the entirety of India and individual councils for each State, reinforcing localized regulation and representation.
On May 19, 1961, during the twelfth year of the Republic of India, Parliament enacted The Advocates Act, 1961, comprising a total of 60 sections distributed across 7 chapters. The implementation of this Act was carried out by the Central Government and extended its applicability throughout India, excluding the State of Jammu & Kashmir. This legislative move ushered in significant transformations in the landscape of the Indian legal profession, aiming to establish its legitimacy and utility across the entire nation.
The preamble of The Advocates Act, 1961 articulates its purpose as amending and unifying the laws pertaining to legal practitioners. The overarching objective of the Act was to foster consistency within the legal profession. This encompassed uniformity in academic qualifications for advocates, standardizing the registration process for state-level Bar Councils, regulating the constraints on enrollment, and delineating disqualifications for legal practitioners, among other facets. The Act’s aspiration was to instill a sense of uniformity and coherence in various aspects of the legal profession throughout India, thereby advancing the overall objectives outlined in its preamble.
DEFINITIONS UNDER THE ADVOCATE ACT, 1961
In this Act unless the context states otherwise requires-
Advocate: The definition of ‘advocate’ is delineated in Section 2(1)(a) of the Act, denoting an individual who is registered on any roll established by this legislation. Preceding the enactment of this Act, various classifications such as pleaders, vakils, lawyers, and attorneys existed to denote legal professionals.
Appointed day: Section 2(1)(b) of the Act elucidates the term ‘appointed day,’ signifying the day on which the provisions of the Act come into effect.
Bar Council of India: The term ‘Bar Council’ is encompassed within Section 2(1)(e) of the Act, with Section 4 establishing the Bar Council for the territories falling under the purview of the Act.
Law graduate: Section 2(1)(h) of the Act defines a ‘law graduate’ as an individual who has successfully completed a bachelor’s degree in law from any university recognized by Indian law.
Legal practitioner: Section 2(1)(i) of the Act covers the term ‘legal practitioner,’ encompassing individuals who are advocates or vakils in any High Court, as well as pleaders, mukhtars, or tax agents.
High Court: Section 2(1)(g) of the Act defines the term ‘High Court,’ excluding a court for Judicial Commissioner, except in specified sections. In the context of a State Bar Council, ‘High Court’ refers to the relevant High Court based on the jurisdiction of the State Bar Council.
Roll: Section 2(1)(k) of the Act discusses the term ‘roll,’ indicating that rolls, i.e., lists of advocates or legal practitioners practicing in a court or frequently present in court, are recorded and maintained under this Act.
State: Section 2(1)(l) of the Act defines ‘State’ as a country or territory organized as a political community with a single state government under the territory. Union territories are explicitly excluded from the definition of a state.
State roll: The term ‘State roll’ is explained in Section 2(1)(n) of the Act. According to Section 17, a State Bar Council is mandated to record, prepare, and maintain a state roll, which serves as a list of advocates associated with that state.
FEATURES OF ADVOCATES ACT 1961
The Advocates Act, 1961 introduced a set of distinctive features:
Establishment of Bar Councils: The Act laid the foundation for the creation of the Bar Council of India and State Bar Councils, setting the stage for their subsequent establishment.
Limitation on Enrolment: While advocates are permitted to transfer between states, the Act restricts them from enrolling in more than one State Bar Council.
Autonomous Authority: The Bar Council was endowed with self-governing authority, providing it with the autonomy to regulate and oversee the legal profession.
Global Professional Mobility: Advocates were granted the flexibility to practice in analogous roles internationally, expanding the scope of their professional opportunities.
Consolidation of Legal System Legislation: The Act included provisions for the amalgamation of various legal system regulations into a singular class or document.
Implementation of Bar Council Regulations: Both state and central laws saw the enforcement of numerous Bar Council regulations.
Unified Title – ‘Advocate’: The Act streamlined the titles conferred upon advocates, replacing diverse designations like legal practitioners, vakils, and attorneys with a singular title – ‘advocate.’
Categorization Based on Qualifications: Legal practitioners were classified into senior advocates and other advocates, contingent on their qualifications, experience, and expertise.
Focus on Consolidation: The Act’s primary thrust was on consolidating existing legal laws related to the legal profession.
Autonomous Control: The Bar Council was granted autonomous control, assuming specific duties and responsibilities as outlined in the Act.
International Affiliation: The Bar Council was positioned as a member of various international organizations, including the International Bar Organisation, signifying its global recognition.
Legal Entity Status: Recognized as a legal entity, the Bar Council gained the ability to acquire both movable and immovable property through legal proceedings.
State Bar Councils’ Autonomy: Numerous state Bar Councils operated under the governance of the All-India Bar Council, each responsible for its respective state, thereby mirroring the functions of the All-India Bar Council.
Mandatory Existence of State Bar Councils: As per the Act’s provisions, State Bar Councils were mandated to exist in every state.
FUNCTIONS OF STATE BAR COUNCILS (SECTION 6 OF ADVOCATES ACT, 1961)
Section 6 delineates the responsibilities entrusted to the State Bar Council, encompassing a spectrum of crucial functions:
Roll Compilation and Maintenance: The Council is mandated to compile, maintain, and meticulously record the roll of advocates, facilitating the inclusion of applicants.
Misconduct Investigation: In instances of misconduct by advocates on its roster, the Council is obliged to conduct thorough investigations and make determinations.
Advocates’ Rights Advocacy: Defending the rights, privileges, and interests of advocates is a paramount duty entrusted to the State Bar Council.
Bar Association Growth: To foster the growth of the bar association, enabling the effective implementation of welfare programs, is a proactive responsibility.
Support for Law Reform: The Council is obligated to lend support and promote initiatives for the reform of laws.
Educational Seminars and Lectures: Organizing seminars and arranging lectures by distinguished jurists on legal subjects is part of its commitment to legal education.
Publication of Legal Journals: The State Bar Council is authorized to publish journals and papers of legal interest.
Legal Aid for the Needy: In accordance with prescribed procedures, facilitating legal aid for the indigent is a mandated duty.
Member Elections and Financial Management: Conducting elections for State Bar Council members, prudent financial management, and investment of funds fall within its purview.
University Visits and Inspection: The Council is empowered to visit and inspect universities following the guidelines set forth in Section 7(1)(i).
Comprehensive Duties: The State Bar Council is bound to fulfill all duties stipulated by the Act, including those necessary for the execution of its enumerated responsibilities.
Establishment of Funds: The Council is directed to establish one or more funds for diverse purposes, including financial assistance for welfare programs, legal aid, and the creation of law libraries.
Acceptance of Grants and Donations: In line with Section 6(2), the State Bar Council is authorized to accept grants, donations, gifts, or benefactions for the designated purposes, directing such contributions to the relevant funds established.
FUNCTIONS OF THE INDIAN BAR COUNCIL (SECTION 7 OF ADVOCATES ACT, 1961)
The Bar Council of India, as outlined in Section 7 of the Act, is vested with a range of responsibilities:
Establishment of Professional Standards: One of its primary functions is to institute standards of professional conduct and etiquette to guide advocates in their practice.
Formulation of Disciplinary Procedures: The Council is tasked with developing specific procedures to be adhered to by its disciplinary committee and the disciplinary committees of individual State Bar Councils.
Common Roll Maintenance: The key duty involves preparing and maintaining a unified roll of advocates, coupled with the overarching responsibility for the general supervision and control of State Bar Councils.
Promotion of Legal Education: The Council plays a pivotal role in promoting legal education, establishing standards in collaboration with state Bar Councils and higher education institutions in India.
Identification and Recognition of Law Degrees: It is entrusted with the responsibility of identifying universities where a law degree qualifies a graduate for enrolment as an advocate. This involves either conducting visits and inspections or directing State Bar Councils to do so.
Recognition of Foreign Legal Qualifications: The Council, on a reciprocal basis, acknowledges foreign legal qualifications obtained outside of India for the purpose of admission as an advocate under the Act.
Parallel Functions with State Bar Councils: Similar to State Bar Councils, the Bar Council of India engages in activities such as establishing funds for welfare programs, offering legal aid, advice, and setting up law libraries. Furthermore, it is authorized to receive gifts, donations, and benefactions.
CERTIFICATE OF ENROLMENT (SECTION 22 OF ADVOCATES ACT, 1961)
Section 24 of the Act delineates the prerequisites for admission to the Bar, establishing specific criteria for an individual to qualify as an advocate on a State Roll. According to the provision, an individual must fulfill certain conditions, including being a citizen of India, attaining competency at or above the age of 21, holding a law degree, and successfully passing the Bar Council of India exam.
Such qualified individuals possess the flexibility to enroll under any State Bar Council that aligns with their qualifications. The Act specifies that, following the completion of a single degree, the person must have undergone either a 5-year integrated course or a 3-year law course.
Recognition of the degree earned from a foreign institution of higher learning by the Bar Council of India is imperative for eligibility. Additionally, advocates are obligated to remit the enrollment fee prescribed by the State Bar Council and fulfill any supplementary requirements as deemed necessary. This provision ensures a comprehensive set of standards and qualifications for individuals seeking admission to the legal profession.
RIGHTS OF ADVOCATES UNDER THE ACT
Right to practice (Section 30) and freedom of expression and speech-
- Pre-audience rights
- Right of opposition to arrest
- Right to appear in any court
- Right to see an accused person in jail
- Right to professional communication
- The right to protect the secrecy of communications
- Right to pay a fee
- Right with respect to vakalatnama
- Right to refuse a case
DUTIES OF AN ADVOCATE
An advocate is entrusted with a range of duties, categorized as follows:
Advocates’ Obligations to the Client:
Client Briefs and Fee Charging:
An advocate’s duty is to accept client briefs and set fees comparable to peers at the same bar, tailored to the case’s circumstances.
If a specific brief is declined, the advocate may provide an explanation for the refusal.
Declining Cases Involving Testimony:
An advocate must decline cases where they would act as a witness.
If the advocate becomes aware of the need to testify during the case, they should refrain from proceeding.
Once a client has consented to representation, the advocate is obligated to proceed.
Withdrawal requires a valid explanation and ample notice, with a partial fee refund.
Provision of Best Advice:
Advocates are duty-bound to provide the best advice to the best of their abilities.
Complete and Honest Disclosures:
Advocates must provide clients with full and honest disclosures of involved parties and their interests in the dispute.
Caution in Handling Cases:
Advocates must exercise caution when handling a client’s case.
If an advocate has given legal advice to a party, they cannot participate in the lawsuit and must either withdraw or transfer the case to another counsel.
Management of Client Funds:
Advocates must track and account for client funds, providing a record upon request.
Upholding the confidentiality clause, advocates must refrain from disclosing the client’s private information.
Advocates’ Obligations to the Court:
Respect for Legal System and Courts:
Advocates are duty-bound to treat the legal system and courts with respect.
Maintaining Dignity and Self-Respect:
Advocates are obligated to maintain their dignity and self-respect.
Ethical Conduct in Court:
Advocates must refrain from using unlawful or inappropriate measures to influence the court’s judgment, ensuring unbiased decisions.
Appropriate Court Attire:
Advocates must present themselves in court wearing appropriate attire, excluding band and gown attire outside the courtroom.
Restriction on Representing Close Relatives:
Advocates are prohibited from representing close relatives in court or before a tribunal.
Advocates must avoid conducting a prosecution in a manner that knowingly leads to the wrongful conviction of an innocent person.
PUNISHMENT OF ADVOCATES FOR MISCONDUCT
In the case of Noratanman Courasia v. M. R. Murali, the Supreme Court delved into the scope and extent of the term “professional misconduct” as outlined in Section 35 of the Advocates Act. The factual background involved an advocate, acting in the capacity of a litigant (respondent) rather than as 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 is obligated to adhere to expected norms of behavior, reflecting qualities that instill confidence in the community regarding his role as an officer of the Court. Despite the advocate not acting in his capacity as an advocate, his conduct was deemed unsuitable for someone in that profession. Consequently, the Bar Council was deemed justified in initiating disciplinary proceedings against him.
In the case of N.G. Dastane v. Shrikant S. Shind, the Supreme Court held that an advocate seeking continuous adjournments without making alternative arrangements for examining present witnesses, causing significant inconvenience to the opposing party, amounts to a dereliction of duty. This behavior was deemed as misconduct, highlighting the advocate’s obligation to the court and the duty to avoid actions that hinder the expeditious conduct of proceedings.
Capt. Harish Uppal v. Union of India, (2002)
The Supreme Court unequivocally ruled that lawyers do not possess the authority to initiate a boycott of the court or engage in strikes, particularly in a manner that is merely symbolic. However, the judgment clarified that lawyers maintain the option to express their dissent peacefully outside the court premises. Permissible forms of protest include making press statements, participating in TV interviews, adhering to court premises regulations, posting additional notices, wearing armbands in black and white or any other color, holding dharnas, and similar non-disruptive methods. The decision underscores the importance of preserving the sanctity of court proceedings while allowing lawyers avenues for peaceful expression of dissent beyond the courtroom.
Pratap Chandra Mehta v. State Bar council of M.P & Ors, (2011)
In this case, the court, after due deliberation, concluded that Rules 121 and 122A of the MP Rules are legally sound since they received the approval of the Bar Council of India. The court emphasized the imperative for the State Bar Council to adhere to democratic principles while upholding the high ethical standards expected of advocates. It clarified that the authority conferred by these rules does not surpass the limits set by Section 15 of the Act. Additionally, the court affirmed the clarity and conciseness of the M.P. State Bar Council rules, highlighting that the Bar Council of India had duly sanctioned the amended rules. This decision underscores the importance of democratic processes in the functioning of the State Bar Council while ensuring alignment with the prescribed legal framework.
The Advocate Act of 1961 holds significant importance in India as it delineates guidelines and regulations that individuals enrolled as advocates must adhere to. This legislation imposes penalties for any offenses committed or laws violated by advocates, thereby ensuring their accountability and contributing to the smooth functioning of the legal system. The Act delineates the functions of the State Bar Council and the Bar Council of India, along with granting specific powers to them. Additionally, it assigns responsibilities to advocates, including the right to practice, provide services to clients, meet clients in jail without restrictions, and explicitly prohibits advocates from being admitted to the State Bar Council if the client is a close relative or family member.
 Section 2 renumbered as sub-section(1) of that section by Act 60 of 1973, s.3 (w.e.f 31-1-1974)
 Clause c omitted by Act 107 of 1976, s.2 (w.e.f 15-10-1976)
 Clause (c) omitted by Act 60 of 1973, s.3 (w.e.f 31-1-1974)
 Ins. by Act 70 of 1993, s.2 (w.e.f 26-12-1993)
 Section 7 was re-numbered as sub-section(1) of that section by Act 60 of 1973,s. 7 (w.e.f 31-1-1974)
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