LEGAL PROFESSION AND ADVOCATES ACT, 1961

What is the legal Profession?

The profession of law is one of the oldest and noblest professions. The person in the legal profession is called an advocate or lawyer. An advocate is an officer of justice and a friend of the court. The central function that the legal profession must perform is nothing less than the administration of justice. An advocate assists the parties in drafting economic transactions like contracts, agreements, deeds, wills, etc. An advocate should provide free legal aid to the poor and deserving people on compassionate grounds.

Development of Legal Profession in India:

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 Independence.

1.  Legal Profession in Ancient India:

In India during the earlier period, people live in small groups. The head of these groups or tribes delivered justice under the open sky before all the members. There was no specialist like a lawyer during those days. When kingship was established, the king delivered justice. King was advised by his councilors. The law of those days was rooted in Hindu religion and custom.

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

• Legal Profession in Medieval India:

During the Muslim period, there was the existence of the Legal profession, as the party of the litigation appoints their vakils. This body decides the case and they were paid a percentage of the amount in the suit. However, in this period the legal profession was not so organized. Vakils performed their work as an agent for the principal but not as lawyers.

• Legal Profession in British India:

During the British period, the model legal system was 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 1726 marked the beginning of a new phase in the evolution of judicial institutions in India. The mayor’s courts were established in the presiding towns of Bombay, Calcutta, and Madras, they were the royal courts. The courts heard all civil suits, action pleas between parties, they followed the procedure based on English law. But there were no facilities to get the legal training. Many persons who do not know law were used to practice before the said courts. The Mayor’s court has no jurisdiction in criminal cases. The criminal jurisdiction was conferred on the governor.

• Charter of 1753:

It was issued to modify the charter of 1726. This charter also ignored significant provisions for legal training and education relating to legal practitioners and as such, after this charter also the legal profession was not organized.

• Charter of 1774:

The British crown issued a charter in 1774 by which the Supreme Court of judicature was established at Calcutta. Clause 2 of the Charter empowered the said Supreme Court to approve and enroll advocates and Attorney-at-law. The Supreme Court had powers to remove any advocate or Attorney on reasonable cause.

Even the Charter of 1774 didn’t provide for the appearance of the Indian Legal Practitioners to appear and to plead before the Supreme Court.

• ‘Advocate’ means British and Irish Barristers.
  • ‘Attorney’ means the British Attorney or Solicitor.
• The Bengal Regulation Act of 1793:

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

• Indian High Courts Act, 1861:

Under this act, The British Crown issued the Charter to establish one High Court in each presidency town. The civil Courts were organized in provinces also subsequently.

• Legal Practitioners Act, 1879:

It was enacted to consolidate and amend the law relating to legal practitioners. It provided that an Advocate or vakil on the roll of any high Court can practice in all the courts subordinate to the courts on the role of which he was entered. According to this act, the High court was empowered to make rules consistent with the act as to suspension and dismissal of pleaders and mukhtars. Pleaders and Mukhtars were the Indian lawyers, but advocates were to be the barristers.

• Indian Bar Committee 1923:

It was constituted under the Chairmanship of Sir Edward Charminar. It was to consider the issue of the organization of the bar on an Indian basis. The committee didn’t favor the establishment of the All-India Bar Council. It was of the 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 practitioner should be established, and they should be called Advocates. Further suggested that the Bar committee should have the power to enquire matters calling for the disciplinary action against a lawyer and High Court should be given disciplinary power to punish the guilty.

• Indian Bar Council Act, 1926:

To give effect to some of the recommendations of the Indian Bar Committee 1923, The Indian Bar Council Act was enacted in 1926. The main purpose of the act was to provide for the constitution and incorporation of the Bar Council for certain courts, to confirm powers and impose duties on such councils and also to consolidate and amend the law relating to legal practitioners of such courts. A provision was made in the act for the establishment of the Bar council for every high court. Every Bar Council was to consist of 15 members. Four of such members were to be nominated by the concerned High Court and 10 of them were to be 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 S.R. Das. The committee in its report recommended the establishment of an All India Bar Council and State bar Council. It recommended the powers of enrollment, suspension, or the removal of advocates to the Bar Council. Further recommended that there should be no further recruitment of non-graduated pleaders or Mukhtars.

• Advocates Act, 1961:

The central government enacted the Advocates Act in 1961. This act has been in force in entire India. It brought revolutionary changes in the legal profession in India. It sets out to achieve the utility and dignity of the profession of law on an All-India basis. The preamble of the act says that the act amends as well as consolidates the law relating to legal practitioners.

ADVOCATES ACT, 1961

The Advocates Act passed in May 1961 and enforced on 16^th August 1961 applies to the whole of India.

The Advocates Act was to amend the laws related to legal practitioners. It provides the constitution of members for the State Bar Council and Bar Council of India.

The act aims to constitute only one class of legal practitioners known as ‘Advocate’ and provides uniform qualification for admission to the Bar. The act also vests the powers on the Bar Council of India and the State Bar Council to take disciplinary action when required. Let’s get into the depth to understand the Advocates Act, 1961 better.

Characteristics of Advocates Act

• It consolidates existing laws on the legal profession.
• The Advocates Act 1961 established the Bar Council of India and State Bar Council.
• An advocate cannot enrol under more than one State Council but can transfer from one state bar council to another.
• It abolishes the difference between a vakil and an advocate. So, all those who practice law are now called advocates.

Sections under Advocates Act

• Advocate

Section 2 (1)(a) of the Advocates Act, 1961 provides the meaning of an advocate. Accordingly, an advocate is a person enrolled on any roll under the provision of this Act. Before enacting this act, there were different classes of legal practitioners, referred to as pleaders, vakils, lawyers, attorneys.

• Law Graduate

Section 2(1)(i) of the act defines a law graduate as a person who obtained a Bachelor’s degree in law from any university established under law.

• Roll and State Roll

Section 2(1)(k) of the Advocates Act defines Roll as a roll of advocates prepared and maintained under this Act.

• State Roll

Section 2(1)(n) of the act defines State Roll as a roll of advocates maintained by the State Bar Council under Section 17.

State Bar Council

Section 3 of the Advocates Act, 1961 states that for every state, there shall be a Bar Council in the manner prescribed under Section 3(1).

Number of Members of State Bar Council

According to Section 3(2)(a), the Advocate General of the concerned state is the ex-officio member of the State Bar Council.

As per Section 3(2)(b) following number of members should be there in the bar council of state:

• When the number of Advocates in the state roll is less than 5000, the number of members of the Bar Council is 15.
• When the number of Advocates in the state roll is between 5000 and 10000, the number of members of Bar Council is 20.
• When the number of Advocates in the state roll is more than 10000, the number of bar council members is 25.
• Advocate having their name in the state roll elect the members, and the advocates can vote by a single transferable vote.

According to Section 3(3), there shall be a Chairman and a Vice-Chairman of the State Bar Council, elected in the manner prescribed.

The term of office of the member of the State Bar Council is for five years (Section 8). The five-year span starts from the date of publication of the result of the elections.

Functions of State Bar Council

Section 6 of the Advocates Act, 1961 provides the function of the State Bar Council. Functions of the council are as follows:

• To enrol the qualified persons as an advocate.
• To prepare the State Roll.
• To take disciplinary action for professional misconduct by the advocate.
• To protect the rights and privileges of advocates.
• To constitute an executive committee, enrolment committee, or any other committee as required.
• To manage the funds of the Bar Council.
• To conduct the election for electing the members of the State Bar Council.
• To prepare legal aid programmes.
• To prepare schemes to help poor advocates.
• To grant recognition to the law college.
• To allot funds for implementing legal aid schemes and other schemes.

Bar Council Of India

Section 4 of the Advocates Act provides that there shall be a bar council for the whole of India and is known as the Bar Council of India.

Constitution of the Bar Council of India

There shall be the following members in the Bar council of India:

• Attorney General of India who is Ex- Officio member. (Section 4(1)(a))
• Solicitor General of India is Ex- Officio member. (Section 4(1)(b))
• One member gets elected amongst the member of each State Bar Council. ((Section 4(1)©)
• A Chairman and a Vice-chairman Section 4(2)

Attorney General and Solicitor general remains a member of the Bar Council of India till they hold their post.

Functions of Bar Council Of India

Section 7 of the Advocate Act lays down the functions of the Bar Council of India.

Following are the functions performed by the Bar Council of India:

• To frame rules related to professional ethics.
• To frame rules of procedure to be followed by the disciplinary committee of the State Bar Council and the Bar Council of India.
• To protect the rights of the Advocates.
• To encourage legal reforms.
• To decide matters related to professional misconduct transferred from a disciplinary committee of state bar council.
• To decide appeal against the disciplinary committee of state bar council.
• To supervise functions performed by the state bar council.
• To prescribe syllabus of law course after consulting state car council and university.
• To inspect university.
• To spend funds of Bar Council of India.
• To conduct elections
• To allow persons who studied abroad to practice in India.

Power to make rules

Section 15 of the Advocates Act gives power to the Bar Council to make rules to carry out its purpose. The rules are for:

• The election of members of bar council done by secret ballot includes conditions subject to which a person can exercise the right to vote by postal ballot.
• The election manner of a member of the Chairman and Vice-Chairman of the Bar Council
• To decide the doubts and disputes related to the election of the Bar Council members and appointment of Chairman and Vice-Chairman.
• To fill casual vacancies in Bar Council.
• The constitution of funds by the bar council
• Organising legal aid and advice to the poor.
• To summon and hold a meeting of the Bar council.
• To provide constitution and functions of the Bar Council, including the term of office of members of the committee.

The section of the Act also provides that no rules by the State Bar Council under this section shall have effect after approval from the Bar Council of India.

Disqualification of a member of Bar Council

Section 10B of the act states conditions related to disqualification of the Bar Council of India members.

An elected member of the Bar Council should vacate his office if he is declared absent without sufficient excuse for three consecutive meetings by the Bar council of state he is a member. The member can also be disqualified from being a member of the council if his name is removed from the roll of advocates or upon disqualification by any rule made by the Bar Council of India.

Disqualification of Enrolment

Section 24 A provides criteria for disqualification of a person for enrolment. A person gets disqualified from being enrolled as an advocate due to the following reasons:

• The person on conviction for an offence that involves moral turpitude.
• The person on conviction for an offence committed under the Untouchability (Offences) Act, 1955.
• For removal from government service on a charge that involves moral turpitude.

Such disqualification cease to have effect after two years has passed since his dismissal or release.

Status of Bar Council

Section 5 of the Advocates Act provides the Bar Council with body corporate. It provides the following features of the Bar Council:

• Body corporate
• Perpetual succession
• Common seal

Bar Council can have the power to acquire or hold property both movable and immovable. The Bar Council can acquire and hold a property. It can also enter into a contract on its name and sue and get sued in its name.

The staff of Bar Council

Section 11 of the Advocates Act, 1961 states that every bar council should appoint a secretary and an accountant. Any other staff member can be appointed as required, and the Secretary and accountant should possess skills as prescribed.

Membership in International Bodies

Section 7A of the Advocates Act provides that the Bar Council of India can become a member of the international legal bodies. The Bar Council can contribute an amount to such bodies by way of subscription and authorise expenditure if a representative participates in an international conference or seminar.

Senior Advocate

Section 16 of the Advocates Act classifies advocates into two types, senior advocates and other advocates.

The Supreme Court or the High Court can designate an advocate as a senior advocate with his consent. For being eligible to be a senior advocate, an advocate must be in the court’s opinion to possess the ability, standing at the Bar or special knowledge, experience in law. So, being a senior advocate is considered a privilege.

It Is a saying that great power comes with great responsibility. The same goes for the designation of a senior advocate. They are responsible for acting as a role model for junior members in the profession. They are subject to certain restrictions imposed by the Bar Council of India. When an advocate gets designated as a senior advocate, he should communicate it to the High Court and the secretary of the State Bar Council and Bar Council of India.

Advocates Roll

Section 17 of the Advocates Act provides that every State Bar Council shall prepare and maintain the roll of advocates.

The roll gets prepared in two parts, and the first part contains the list of senior advocates and the second part contains the list of other advocates. When more than one advocate gets enrolled in a single day, their names in the state roll is added according to the seniority.

In the Advocates roll following details are mentioned:

• Name
• Date of Birth
• Permanent address
• Education details
• Place of interest to practice

A person cannot get enrolled in more than one Bar Council. But, he can transfer his name from one state to another state roll-on genuine grounds.

Certificate of Enrolment

Section 22 of the Advocates Act, 1961 provides the provision for the Certificate of Enrolment. According to this section, a certificate should get issued for the enrolment of an advocate.

The certificate is issued in the prescribed form provided by the State Bar Council. Any change made in the place of permanent address of the person is to get notified to the concerned State Bar Council within ninety days.

Qualification to be enrolled in State Roll

Section 24 of the Advocates Act provides qualifications required for a person to get enrolled as an advocate. The qualification prescribed for the enrolment in the state roll are as follows:

• The person must be a citizen of India. Even a national of any other country can be admitted as an advocate on a State Roll if he belongs citizens of India who duly qualifies the requirement for qualification are permitted to practice law in that country.
• The person should have completed 21 years of age.
• The person should have passed 5 years integrated course after the 12^th standard or a 3-year regular law course after graduation. If the degree is from any Foreign University then, the degree must be recognised by the Bar Council of India.
• Enrolment fee must be paid by the advocate as prescribed by the State Bar Council.
• Fulfils any other condition as required.

Various committee

Constitution of Special Committee when there was no election

1. Constitution of Special Committee

Section 8A of the Act provides the Constitution of Special Committee in the absence of an election. A special committee gets formed when a State Bar Council fails to conduct the election of its member. The special committee consists of:

• Ex-officio member of the State Bar Council will be the Chairman. In case of more than one member being an ex-officio member, then the senior-most member should be Chairman.
• Two members to get nominated by Bar Council of India from advocates on the electoral roll of the State Bar Council.
• Disciplinary Committee

Section 9 of the act provides that the Bar Council should constitute one or more disciplinary committees. The disciplinary committee consists of 3 members elected by the bar council, and the senior-most member is the chairman of the committee.

• Legal Aid Committee

Section 9A of the Advocates Act provides the constitution of the Legal Aid Committee. The bar council can constitute one or more legal aid committees, and the legal aid committee has a minimum of five and a maximum of nine members.

• Committee other than disciplinary committee

Section 10 grants power to the State Bar Council and Bar Council of India.

State Bar Council should constitute the following committee:

• An executive committee consists of five-member elected by the council among its member.
• An enrolment committee consists of three members elected by the Council from the member.

Bar Council of India should constitute the following standing committee:

• An executive committee comprises nine members elected by the Council among its members.
• A legal education committee consists of ten members. Among these ten members, five members get constituted by the council among themselves, and the remaining five-member should get co-opted by the council who are not members.

State bar council and the bar council of India can constitute other committees among its members as it deems necessary.

According to Section 13, no action done by the Bar Council or any other committee can get questioned due to any vacancy or a defect of the constitution of the committee.

Rights of Advocate

Right to Pre-Audience: Section 23 of the Advocates Act, 1961 provides the privilege of reight to pre-audience to the advocate. The right of pre-audience is a right of being heard before another. This right is available in the given hierarchy:

• Attorney General
• Solicitor General
• Additional Solicitor General
• Second Additional Solicitor General or Advocate General of India
• Advocate General of State
• Senior Advocate
• Other Advocate

In the hierarchy mentioned above, starting from the Attorney General of India to have the right of pre-audience and at last, the right is available to other advocates. According to this section, the advocate has the right to represent the case in court, and he can speak when he wants before an audience is present in the court and cannot be stopped from speaking unless he violates the decency of the court.

• Right to enter in court: Section 30 of the Advocates Act, 1961 provide the right to practice in any court to an advocate. An advocate can enter any court concerning any matter and has the right to enter the Supreme Court of India. He can also be present in any of the hearings whether or not he is related to the matter.
• Right to practice any profession: This right gets provided under Article 19 of the Constitution of India. According to this right, advocates can practice their profession in two categories; General protection and Specific Protection. General Protection provides the right to practice any profession or maintain any occupation. And Specific Protection concerns the right to practice as an advocate under section 30 of the Advocates Act.
• Right against arrest: The Right against arrest get provided under Section 135 of the Code of Civil Procedure. This section provides that an advocate cannot get arrested under any circumstance. Accordingly, the advocate cannot get arrested under civil process if he is going to visit or is presiding or is returning from the court.
• Right to meet the accused: For the proper understanding of the case, the advocate has the right to meet the accused whenever he wishes to do. He can even meet the accused in jail.

Punishment for misconduct

Section 35 of the Advocates Act provides punishment for an advocate for misconduct. This section provides that when a complaint is received, or State Bar Council has the 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 disciplinary committee then decided the date of the hearing. The notice gets served to the concerned advocate and the Advocate – General of the State.