DEVELOPMENT OF LEGAL PROFESSION IN INDIA

Advertisements

Spread the love

Post Views: 1,507

This article is written by Samriddhi Mishra of National Law University, Odisha, 2nd semester, an intern under Legal Vidhiya

ABSTRACT

The law is one of the most respected professions in India. A well-developed legal system is very important for law enforcement. The legal profession plays an important role in protecting the democratic ideals of this country and creating an atmosphere where the goals of nations can be realized. Some form of legal system has existed for centuries. The legal system, as we know, developed in British India. The present legal system of courts and bar councils developed over time. The first important event in development of legal system was the formation of the court of judicature in Bombay. After the initial beginnings, there were many important steps, like the establishment of the SCs and HCs, the Bar Committees of 1926 and 1951, and finally the Advocate Act of 1961. This article focuses on how the present legal profession in India, as we know it now, has evolved over time.

KEYWORDS: Advocate, legal profession, vakeel, barrister, bar council

The law and the idea of justice have existed in India for centuries. Even in ancient India, the law is found in codified form in various smritis, like Manusmriti. There was an elaborate system of courts and judges throughout the history of India. From ancient to mediaeval to modern, there has always existed a system of courts in India that is hierarchical in nature. However, though the law and judges originated in ancient India, the profession of lawyer developed during the early British era.

The present court system and legal profession are based on the legal system introduced by the British in India.

In ancient India, there was an elaborate system of courts, and the king was supreme. He was considered the fountain of justice. There was a detailed system of laws, crimes, and punishments, but no trace of lawyers as specialists in law to assist people in their trials is found in ancient India. There were no lawyers in ancient India.

In mediaeval times, there was also a hierarchical system of courts, but no institution of lawyers evolved at that time.

Lawyers are one of the most respected professions of our time. Lawyers allow people to enforce and protect their rights.

A well-developed legal system is essential for the rule of law. The legal system in India has developed over hundreds of years.

EVOLUTION OF LEGAL SYSTEM

The court system we know now was developed during the period of British rule. The practice of law and courts evolved during the British era.

The first judicial systems developed in the presidencies of Madras, Bombay, and Calcutta. Before 1726, there were different courts in the three presidencies.

The Charter of 1726 established a uniform system of courts in all three presidencies.[1]

The start of the legal profession began when a court of judicature was established in Bombay in 1672. George Wilcox, who was chosen by the governor, served as the first attorney general. George Wilcox provided for the cost of legal representation for individuals to be little more than one rupee.

The judicial system in Bombay was a result of the efforts of the governor, Gerlad Aungier, who was passionate about a robust judicial system.

He also requested that the company send someone trained in law to be a judge’s advocate, but the company was reluctant to do so.

There were a number of solicitors at the time of Aungier. They were called Barritors.

These common barritors appeared to be in high demand and most likely worked as professional bond writers who created sale deeds, leases, and mortgages.

Thus, it can be said that as early as 1674, there were practising attorneys in India, and their admission was under the control of the governor, not the court.[2]

The charter and rules of the mayor’s court do not mention the profession of lawyers. These lawyers didn’t have any legal training. Some of the practising attorneys were clerical staff of the court, and some were businessmen.

The first person who had legal training in the Indian judicial system was St. John. He was a judge advocate sent to India to be a judge of the admiralty court established in Bombay in 1684. The admiralty court was responsible for trying maritime and mercantile disputes. However, the court system established in 1674 was abolished after the Keigwin rebellion, so the admiralty court was accepting cases beyond its jurisdiction. St. John was replaced by Vaux, a person with no legal training, after his dispute with Governor Child.[3]

There were no legal practitioners before 1726 Madras and Calacutta, there were no clear rules, regulations, or qualifications required for practising as an attorney. The position was the same in the subsequent charters.

The second big event in the legal history of India was the establishment of the Supreme Court of Judicature. The first SC was established at Calcutta by the “regulating act of 1773”. Similar SCs were later established in the presidencies of Bombay and Madras.

After the Supreme Court was established, the barrister appeared in India for the first time. When barristers started working as advocates, attorneys started working as solicitors. Both became distinct legal professions. Barristers first appeared as judges, not as lawyers.

The establishment of the Supreme Court began a new era in the Indian legal profession. This brought prestige to the legal profession and enabled growth of the profession, and a number of learned barristers and solicitors arrived in Calcutta.

The charter establishing the Supreme Court laid down that the chief justice and the puisne judges of the SC must be a barrister of 5 years.

The SC was given the authority to “approve, admit, and enrol” however many attorneys and as the SC deemed required. The Supreme Court was to allow attorneys of record to represent the plaintiffs by appearing, pleading, and acting on their behalf. Any advocate or lawyer could have been dismissed by the court for a justifiable reason. No other person, in any capacity, was to be permitted to argue or appera other than the one allowed by the SC.

The SC itself appointed three counsels: the advocate general, company counsel for suits and prosecutions, and company counsel for contracts and conveyances. Many other smaller posts were also held by lawyers, like the registrar, and judicail clerk of the judges.

Mr. Ferrer became first barrister to practise as an advocate in Calcutta in 1774. He appeared as defence counsel for Raja Nand Kumar, in a very controversial case where instead of the crown counsel, most of the questioning was done by the judges. The first CJ of the SC, Sir Elijah Impey, and then Governor Warren Hastings were impeached in England because of this trial.

The bar in Calcutta grew in the coming short period. The growing business and high fees aided the growth of the profession. This growth was also witnessed in the other presidencies of Bombay and Madras as well. A large number of attorneys arrived to participate in the tremendous possibilities made available by the profession as two more SCs were established in Madras (1801) and Bombay (1824) on the lines of the SC in Calcutta.

There was no place for Indian legal practitioners in SC. The advocates, solicitors, and barristers in the SC worked on the lines of the British legal system, and only English judges and lawyers ran the court; no Indian practitioner was allowed to plead in front of the court.

The Supreme Court had an all-English bar and bench. The only Indians employed in the later courts, aside from the four Indian attorneys in Calcutta, were the translators, Brahmin pandits, and Muslim Kazis, who functioned as law officials or assessors for questions of Hindu and Muslim law. The bar was allowed to evolve naturally without any formal oversight because the charters of these courts focused primarily on the credentials and authority of the judiciary.

THE ADALAT SYSTEM

The areas outside of British presidencies that were governed by the British were known as Moffusil. The judicial system in this area was controlled by the British. A court system was set up by British officials in the moffusil to look after the administration of justice in the moffusil.

Warren Hastings introduced a plan of judicial system known as the Adalat system.

The land of mofussils was split into several units of district under this arrangement, and a collector in each district, who was in charge of collecting taxes and exercising judicial authority was appointed.

Each district had two adalats mofussil diwani adalat for civil cases and the moffusil nizamat adalat for criminal cases. Appeals from these courts went to “Sadar Diwani Adalat and Sadar Nizamat Adalat”, respectively.

The lower court judges were mostly Indians, but the collector who was a judge in the mofussil diwani adalat and oversaw the working of the mofussil nizamat adalat was an Englishman.

In these courts, vakeels appeared. The lawyers were entirely Indian, both in moffusil and sadar adalats. Prior to 1793, Indian vakils and agents engaged in legal practise, which was neither recognised nor regulated by the Dewanee courts. The Nabobs’ zilla courts had vakils representing petitioners long before 1772. There were no statutes governing their eligibility, affiliation with the court, method of operation, or professional ethics.

There were two kinds of vakeel, those who were “relatives or servants of parties in the court” and those who claimed to be “learned in Hindu and Muslim law.”

“Bengal Regulation VII of 1793” was created because it was felt that courts required to have cause for pleadings handled by a certain profession in order to administer justice. Only males with good morals and educational backgrounds who are knowledgeable about Islamic or Hindu law and also English rules would allow to present in the SC.[4]

The rule had the unusual distinction of only allowing Hindus and Muslims to file lawsuits. Individuals from the Muhammadan University of Calcutta and the Hindu College of Benaras should be chosen for this reason. In the event that adequate eligible employees are not available from the respective University, Sadar Diwani Adalat may select additional appropriate individuals of excellent character and education. Without the consent of Sadar Diwani Adalat, a Vakeel appointed to one adalat was not allowed to enter a plea in another court. An 1831 rule that let members of any faith to practise eventually modified this.[5]

Few more regulations were also passed to control the rules of the profession.

Another major act that was passed was “The Legal Practitioners Act 1846”. This act allowed the practitioners of the SC practice in the adalats.

ESTABLISHMENT OF THE HIGH COURT

The crown issued a charter in 1861 that allowed it to create the High Court after issuing the letter patents. The first High court was established in Calcutta and later in other presidencies. The high courts were formed by the amalgamation of sadar adalats and SC and had both of their jurisdictions.

The high court had the power to “to approve, admit and enroll such and so many Advocates, Vakils and Attorneys as to the said High Court shall deem fit.”

Those who were approved by the court were “authorized to appear for the suitors of the High Court, and to plead or to act, or to plead and act for the said suitors, according to as the High Court may by its rules and directions determine, and subject to such rules and directions.”[6]

After the merger of Sadar adalats with the Supreme Court, vakeels were also allowed to appear before HN. This led to the abolition of the monopoly of barristers in the royal court.

Attorneys, Advocates, and Vakils were the three types of legal professionals defined by the High Courts’ regulations. The majority of advocates were from England or Iceland or Scottish faculty members of barristers who were advocates. The Vakils were practitioners from India.

At the beginning, only Advocates were permitted to present and enter a plea on the original side of the High Courts, under the direction of Attorneys. The High Court, solicitors, and advocates are still separate entities on the original side. Legal professionals’ roles remained to be differentiated under the assumption that the High Courts, while exercising their Ordinary Original Jurisdiction, were the Supreme Court’s successor. The Advocates might argue on the “Appellate Side of the HC and its lower courts.” Because of the idea that the HC’s appellate side had acquired the Sadar Adalats’ authority with its jurisdiction. Due to this idea, Vakeel was only allowed to argue on the appellate side but not on the original side of the court.[7]

This system was altered in Madras HC, which soon allowed Vakeels to appear even on the original side.

There were more high courts established after the High courts in Madras, Bombay, and Calcutta, but they didn’t have the original jurisdiction.

After the HC were established, there were 6 different levels of practitioners in India:

Advocates
Attorneys (Solicitors)
Vakils of HC
Pleaders,
Mukhtars
Revenue Agents.

In actuality, the “Legal Practitioners Act of 1879” unified the six professional categories into a single structure that fell under the High Courts’ purview. Before the “Advocates Act of 1961” was passed, this piece of legislation and the “Letters Patent of the High Courts” served as the pieces of legislation that governed attorneys in the nation’s lower courts.[8]

All six levels of legal practitioners were unified under one system and the High Courts’ authority by the Legal Practitioners Act of 1879.

INDIAN BAR COMMITTEE 1923

A motion proposed by Munshi Ishwar Saran in the Legislative Assembly in February 1921 called for legislation “with a view to creating an Indian Bar so as to remove any distinction between Barristers and Vakils enforced by statute or by practice.”

The resolution’s proposer not only emphasized the elimination of the
distinction between Barristers and Vakils”, but also pushed for establishment of a “recognised body made up solely of Indian lawyers” to “oversee legal education, exercise disciplinary authority over the Bar, and handle all other issues pertaining to the legal profession.” This was considered significant since many HC used their authority on attorneys with justification that “Vakils were court officers.” When it was eventually enacted, the resolution basically advocated for consulting all parties before enacting legislation in the desired direction.

In 1923, the Government formed the “Indian Bar Committee”, also known as the “Chamier Committee”, with Sir Edward Chamier, a former CJ of the Patna HC, as its chairman.

It was made up of

4 barristers
1 attorney
1 civilian
3 Vakil Bar members.

It was tasked with investigating as well as to providing a detailed report on the idea of forming an “Indian Bar, whether on an all-India or provincial basis”, as well as the potential elimination of the current differential treatment Barristers and Vakils.

The committee thought about creating an All-India level bar council, but ultimately decided that it was not feasible at the moment.

THE INDIAN BAR COUNCILS ACT, 1926

The “Indian Bar Councils Act, 1926” to implement the Chamier Committee’s recommendations. The preamble of the Act states that its purpose is: “provide for the constitution and incorporation of bar Councils for certain Courts in British India, to confer powers and impose duties on such bar Councils, and to combine and attend to the law relating to legal practitioners entitled to practise in such courts.” Thus, the legislation’s main goals were to standardize the different law practitioner levels and grant some degree of autonomy to the bars affiliated with the various Courts.[9]

The act did not apply to mukhtars and pleader in adalats. The non-barristers were allowed to plead in High court.

The Act’s Sections 3 to 7 dealt with the creation of a “Bar Council as a body corporate”, its incorporation, and its by-law-making authority.

The Statute provided for a Bar council (BC) for each HC. ABC was to have the following 15 members:

4 nominees for the position of advocate general are made by the HC,
maximum of 2 of those nominees serving as judges
the remaining 10 members are chosen by the HC’s attorneys.

A BC was supposed to choose a “chairman and vice-chairman”, but in the 3 main presidencies, the advocate general was supposed to serve as the bar council’s ex-officio chairman.

Even after passing of this act, the HC had the previous the authority to enrol solicitors. The bar council’s role was to give advice, and any regulations it enacted could only go into force with the high court’s blessing. HC could punish the advocate for professional misconduct.[10]

Legal profession in India after independence –

ALL INDIA BAR COMMITTEE, 1951

The Indian Bar Councils Act did not result in a united Indian Bar and completely excluded the pleaders, Mukhters, etc. practising in adalats from its purview. Furthermore, the Councils established by the Act lacked any real autonomy and functioned only as consultative bodies. The Indian legal community did not consider the Act of 1926’s accomplishments satisfactory. They kept up the effort for a long time to put an end to this. Establishment of the SC in 1950 led to reemergence in demand og national level bar council.[11]

“The All-India Bar Committee” was established in 1951, with judge “S.R. Das” as its head.

In its 1953 report, the Committee advocated for the establishment of a single national bar. There should be no different level of legal practitioners Lawyers who are eligible to practise in all courts should be included on a single roll. In response, the committee recommended creating and maintaining a single, complete list of advocates.[12]

In its report, it suggested the creation of “state bar councils and an All-India Bar Council.” It advised the Council to grant advocates the right to be enrolled, suspended, or removed. It was advised that advocates should continue to play a common function and be permitted to practise in all of the nation’s courts. It further said that no further “non-graduated pleaders or mukhatars” should be hired. Similar suggestion was also made by the Fifth Law Commission of India in its fourteenth report.[13]

THE ADVOCATES ACT, 1961

Because of the “All India Bar Committee Act, 1961” findings. The “Advocate Act 1961” was passed by the government. This brought many important changes in the judicial system. The act was passed to uphold the dignity of all legal professionals of India. The Act modifies and consolidates the legislation pertaining to legal practitioners, according to the Preamble to the Act.

It was passed by Parliament in 1961 to establish the State Bar Council and the Bar Council of India as national bodies. Both the Legal Practitioners’ Act of 1879 and the Indian Bar Council Act of 1926 are repealed. The responsibilities of an All-India Bar Council include the following:

To provide guidelines for advocates’ behaviour and manners in professional settings.
To protect the interests, rights, and privileges of advocates.
To exert broad oversight and management over State Bar Councils.
To establish legal education standards after consulting with universities.
To examine institutions and recognise those with degrees in law who meet the requirements to become advocates.
To encourage the study of law.
To support and advance legal change.
To offer assistance in legal field

This statute also establishes state-level disciplinary panels that adjudicate allegations of professional misconduct.[14]

CONCLUSION
Legal profession is one of the most important professions in India today. The Indian profession, as we know it today, developed from the legal system developed in British India. The establishment of a court of judicature was one of the important steps. After this, the formation of the SC and the HC were the next important steps. Throughout history, there have been different grades of legal practitioners. The creation of the bar council and the Advocate Act of 1961 were among the last important developments in the Indian legal profession.

[1]Samuel Schmitthener, A Sketch of the Development of the Legal Profession in India&;3,

Law & Society Review 338,340 (1969) available at

https://heinonline.org/HOL/Page?handle=hein.journals/lwsocrw3&div=27&g_sent=1&casa_token=Ms_Zw7fsqeQAAA

AA:fNfX89NkaRl9zvAVbckbjv7bjisG4Ih88vdxmZoTCne01WFlg8o8tV6IQ-

9u0YTV58J0YGAwEcNL&collection=journals last seen on 30 May 2023

[2]Samuel Schmitthener, A Sketch of the Development of the Legal Profession in India&;3,

Law & Society Review 337,339 (1969) available at

https://heinonline.org/HOL/Page?handle=hein.journals/lwsocrw3&div=27&g_sent=1&casa_token=Ms_Zw7fsqeQAAA

AA:fNfX89NkaRl9zvAVbckbjv7bjisG4Ih88vdxmZoTCne01WFlg8o8tV6IQ-

9u0YTV58J0YGAwEcNL&collection=journals last seen on 30 May 2023

[3]Samuel Schmitthener, A Sketch of the Development of the Legal Profession in India&;3,

Law & Society Review 337,340 (1969) available at