This article is written by Namrata Mondal, studying at the Oxford College of Law, Bangalore, and is an intern under Legal Vidya.
ABSTRACT
The Advocates Act, 1961, though specifically drafted to regulate the indian legal field, has crossed the national borders as a pioneering statute. With its unique feature of unifying regulatory bodies, emphasis on ethical practices, standard legal education and qualification, and autonomous regulatory bodies, it has become a cornerstone in the legal area. Many countries have gone through this act as a suggestion of their implementation in similar legal aspects.
The main reason that makes this article a unique piece of research on the topic is the inclusion of national influence and challenges of the act along with its effect on the legal field worldwide, and it is updated.
KEYWORDS
Council of India, State Bar Councils, professional ethics and conduits, CLE, disciplinary committees, autonomous bar council, standard legal education, gender inclusivity, outdated provision, etc.
INTRODUCTION-
The Advocates Act, 1961, stands as a landmark legislation in the legal field of India. It was enacted to regulate and consolidate the legal profession in a single piece of legislation. It brought about uniformity, discipline, and a standard framework for the practice of law. Also, regulate the conduct of advocates, from their enrollment and admission, to the constitution, establishment, and functions of the Bar Council and state bar councils, it covers everything. It provides provisions for the qualification of the advocates, imposes punishment on them for their professional misconduct, and also considers their right to practice.
Section 1of the act –
Short title- the act is called as The Advocates Act, 1961
Date of presidential assent- The act was passed by the parliament of India and received presidential assent on 19th May, 1961.
Enforcement date- came into force on 15th November, 1961.
The act contains 7 chapters, 60 sections and 1 schedule and applies to the whole of India.
While the primary jurisdiction is within India, its relevance and perception have transcended national borders, influencing the legal regulation, education, professional ethics and unification of legal standards at the global level.
HISTORY AND BACKGROUND-
Before stepping into the global influence, it is crucial to understand the historical background of the act. India was ruled by the British government in the past. Therefore, all the laws regulating the legal profession were inspired by British policies.
Legal practitioners were divided into various categories such as advocates, lawyers, vakils, and barristers under the Legal Practitioners Act, 1879, until the enforcement of the Advocates Act, 1961. After its enforcement, various categories were abolished, and they were all consolidated into one class of advocates. Some were considered senior advocates, and some were subdivision advocates based on their expertise and experience, although the Legal Practitioners Act applies only to a limited class of advocates in today’s era. After 1947 All India Bar Committee was formulated for the Indian judiciary system in 1953. Advocates act, and the Bar Council of India was established as a result of the recommendation submitted by this committee to the Parliament of India.
Meanwhile Bar Councils Act 1926 was enacted, which held bar councils as statutory bodies responsible for regulating legal education and the legal profession in India. The Advocates Act, 1961, has undergone several changes and amendments throughout the year to meet the changing needs of the evolving society.[1]
DIVISION OF THE ACT –
The act contains 7 chapters, 60 sections and 1 schedule-
- Chapter I deals with definitions, short title and extent of the act
- Chapter II deals with the constitution, functions of the state bar councils and bar councils in India, legal aid, qualification, disqualification, tenure of the members, etc.
- Chapter III provides provisions for the admission, enrollment of the senior and other advocates, transfer of their names from one state roll to another, certificate of enrollment, etc.
- Chapter IV recognises the right to practice for the advocates
- Chapter V consists of the conduct of advocates, and punishment for their professional misconduct also includes disciplinary committees, etc.
- Chapter VI deals with penalties for illegal practice, indemnity against legal proceedings, financial assistance to bar councils, etc.
- Chapter VIII deals with temporary and transitional provisions, power of the central government, dissolution of the existing state bar councils, term of office of the members of the first state bar councils, special provision in the transitional period, special provisions concerning Pondichery, Damann andDiu, Mysore state bar councils, Uttar Pradesh and Jammu and Kashmir, etc.[2]
OBJECTIVES OF THE ACT –
The objectives behind the enactment of the act are-
Regulation of the legal profession, the basic objective of the act was to regulate the indian judicial system. The apex regulatory body is the Bar Council of India, and state bar councils regulate the advocates.
Maintaining standards of the profession- the act lays down rules and regulations to maintain the standards of the legal profession by ensuring professional conduct, ethics that every advocate is required to carry on.
Qualification – the act sets forth the qualifications of the advocates, such as educational requirements, eligibility criteria, and conditions, for those who wish to be advocates.
Consolidation of the advocates- classification of the advocates as lawyers, barrister, advocates, vakil, etc. It was abolished, and all the legal practitioners were known as advocates after the enforcement of the act.
Autonomous Bar Council- the apex of the establishment of the autonomous bar council, one for the whole of India and one for each state. This independence is crucial to maintain integrity in the legal system.
Rights and privileges- the act ensures the right to practice and present on behalf of the clients for the advocates, and protects them from certain legal proceedings related to their professional actions.[3]
THE NATIONAL INFLUENCE OF THE ADVOCATES ACT 1961-
The Advocates Act, 1961, plays a transformative role in reshaping the legal framework in India. It brought together a fragmented legal system standardised legal profession. The influence is followed-
Unification of the legal profession- before the inclusion of the act, legal professionals were divided into various categories such as lawyers, vakils, advocates, barristers, mukhtars, etc, which was creating confusion within the profession. The act brought about unity in the profession by eliminating the confusion and brought the whole profession under one umbrella called ‘advocates’, thus promoting equality within the system.
Creation of regulatory institution- the act provides for the establishment of state bar councils for each state under section 3 and the Bar Council of India at the national level under section 4.[4]
These bodies are entrusted with the regulation of legal education, maintain the advocate’s role, and oversee disciplinary proceedings. Being autonomous, these bodies allow the legal system and lawyers to govern their matters rather than being controlled by any external government bodies.
Promotion of professional conduct and ethical practice- one of the key feature of the act is its emphasis on professional conduct and ethical practice and to keep this feature intact section 36 allows the bar council to refer the cases of professional or other misconduct for disposal to the disciplinary committee along with this section 35 punishes those who are found guilty of misconduct such as, reprimand the advocates, suspend the advocates from practice for a certain period, remove the name of the advocate from the state roll etc. (section 35 clause 3)
Standard entry into the legal profession – the act ensures that the enrollment procedure is more transparent and organised. It mandates every law student to pass the AIBE exam conducted by the Bar Council of India to be qualified for the certificate of practice.
Standardisation of legal education – by creating a standard and uniform set of guidelines for all law colleges and the inclusion of elite NLU’s, the act promotes a structured and professional manner of legal education across the country.
Improvement of the judiciary system- by professionalising the legal profession, the act also improves the whole judiciary system indirectly by providing competent, qualified and well-trained advocates and judges, which leads to the delivery of justice in its true sense.
Decision-making process- the act also conducts regular elections of the representatives to the bar councils and state bar councils, thus creating a room for voicing opinions. This adds democratic values to the profession and diversity.
GLOBAL INFLUENCE OF THE ADVOCATES ACT, 1961
Although the Advocates Act 1961 was enacted primarily with the object of governing the indian judicial system but gradually its influence has crossed country borders. With its national influence, the act also influences the legal system at large at a global level by shaping various aspects of law and justice. The influences are provided below-
Global ethical movements – with the growing emphasis on ethical practice and accountability worldwide, the advocates’ act stands as a progressive statute that concentrates on ethics and morality.
India’s early adoption of the act has become a meaningful topic to be discussed on a global level, and a way to engage advocates with a moral responsibility.
Legal education- the Advocates Act, 1961, empowered the Bar Council to mandate law courses for every law student and to ensure that law colleges are affiliated with the Bar Council of India.
This feature strengthens the legal profession by making it more competent and efficient. The compulsory legal education and introduction of bar examination for new lawyers have a great impact on making the advocates capable of representing their clients and earning the trust of the public.
Many countries have studied, as a suggestion, the indian advocates act while making their legal education to ensure that lawyers are well trained.
Concept of independence governing- the advocates act introduces autonomous regulatory bodies – the bar council and state bar councils, which govern areas such as discipline, enrollment, practice, and ethical conduct of the advocates. These bodies are free from any external governmental or other influence, which is necessary for better regulation.
This concept, though already established in some Western jurisdictions, was less common previously. India’s model has encouraged other countries to reduce political pressure on the legal system.
In doing so, it has strengthened the legal system worldwide by promoting efficiency, suitable disciplines, etc.
Contribution to global practice- lawyers trained under the Advocates Act have gone on to participate in global legal practice, whether it is litigation, arbitration, human rights bodies, or foreign law firms.
The presence and performance have created a good impression on indian legal training and degree courses in some jurisdictions, and have enhanced India’s reputation as a country with a structured and ethically guided legal system.
Guiding model in comparative legal reforms- the act serves as a guiding principle while proposing changes or in any reforms in a similar legal area elsewhere. Policy makers and legal scholars have cited the Advocates Act 1961 in comparative legal studies.
India’s experience in unifying the bar, prohibiting misconduct, maintaining bar elections, and settling educational criteria offers both a positive and cautionary lesson for countries aiming for reforms in their legal fields.
A model for post-colonial legal system- many countries, especially those governed under British colonial rule, adopted a similar legal structure to India.
Countries like Bangladesh, Nigeria, Kenya, and Sri Lanka have looked into India’s advocates act as they sought to modernise their legal systems.
Unification of legal titles, autonomous bar councils, and promotion of professional ethics of these countries are more or less influenced by the Indian Advocates Act.
India’s transformation process from colonial governance to an independent and more structured legal system acts as a reference to the countries facing similar challenges.
CHALLENGES OF THE ACT-
Despite its achievements, the act has faced various challenges in its application. Here is the breakdown-
Gender inclusivity- the act doesn’t contain a specific section promoting gender equality, and the act is gender neutral. But the inclusion of equal eligibility criteria for practice creates a foundation for gender equality.
However, the act lacks creation of specific and affirmative provisions for promoting women’s participation in the legal field, to address the systematic barriers faced by them, thus hindering full-fledged legal practice and effectiveness.[5]
A 2020 survey conducted by the indian Women Lawyers forum has revealed that woman needs to work harder than their male colleagues to prove their efficiency.
In countries like uk, usa, and Canada, women are engaged in 50 per cent of law schools, and have a significant portion of women practising law.
Also, South Africa, Norway have introduced a quota system in leadership roles.
Delay in disciplinary proceedings- one of the critical issues with the act is its time-consuming disciplinary process. Complaints raised against advocates for their professional misconduct often take years to be solved by the disciplinary committee of the bar councils or state bar councils. This not only fails to build public trust but also fails to provide timely justice to the clients and advocates.
Lack of transparency- many state bar councils are under criticism for their enrollment process, use of funds, and election of representatives. Many times, the election process has been delayed due to offences of malpractice, which negatively affect governance.
Lack of quality education- although the act emphasises legal education, there exist a lot of law colleges which provide subpar education and, as a result, produce graduates with a lack of legal knowledge and professional skills.
The absence of regular inspection, inadequate infrastructure, and qualified faculty are some major reasons behind the issue.
Political interference- bar councils, being elected bodies, are often influenced by politics. The election process of the bar councils is fought more in a political way and on caste lines rather than based on proper merit and reform agendas. This trend undermines the main objective and affects the autonomous feature badly.
Absence of CLE – CLE refers to the continuing legal education that binds legal professionals to stay updated with the recent developments and changes introduced in the legal process. The advocates at 1961 do not contain provisions for such a rule, which leads to inefficient legal practice, especially in rural areas and among senior or aged advocates.
Increase in Fake enrollment- it has become a trend to make fake law degrees, rolls, and practice as an advocate to defeat clients. This inadequate verification of the enrollment process compromises the integrity and competitiveness of the lawyers.
Weak enforcement of professional ethics- while the bar council promotes ethical practices, false promises, and deceiving clients by taking higher charges, unethical practices are prevalent. These issues are not even reported, creating selective enforcement.
Limited representation of a specific section of advocates- a specific section of advocates which includes young and fresh graduates, women, and lawyers from a marginalised community, often faces barriers in the enrollment process, discrimination, as the act doesn’t specifically contain provisions for inclusivity and diversity.
Outdated provisions- the legal world is continuously evolving and has undergone a drastic change from its past. The changes or reforms are very crucial to meet the growing needs of society and the emergence of new offences (cybercrime, environmental law).
The act is not updated enough to match the growing features. This makes the provisions insufficiently equipped to deal with the legal challenges.
CASE LAWS-
(Related to unethical practices)
Shambhu Ram Yadav v. Hanuman Das Khatrey
Decided on 26th july, 2001
Judges- Justice K.T. Thomas and Y.K. Shabarwal
Judgment delivered by Honourable Justice Y.K. Shabarwal
Citation- 2001 6 SCC 1, AIR 2001, SC 2509
Facts- in this case, the advocate(here respondent) wrote a letter to his client stating that the judge accepts bribes and to get a favourable judgement, he should send 10000, but not to the judge directly, but to the advocate so that he can influence the judge.
Judgment- the respondent’s defence stating his long-standing fair legal background was rejected, and he was permanently suspended from legal practice for suggesting that his client bribe. The Supreme Court held this to be a serious misconduct.[6]
CONCLUSION –
Advocacy is a noble profession, aims to serve society, giving justice to the public by punishing the real offenders. The Advocates Act 1961 is more than a piece of legislation; it is the backbone of the indian judiciary. The act has unified the legal practitioners into a single term, ADVOCATES, from various classifications, removing confusion. Even if there are a few challenges, the statute still stands as a growing legislation to govern the profession correctly.
This act has crossed its boundaries, influencing those countries seeking to balance tradition and modernisation equally. Many countries have accepted the relevance of the act, and India’s reputation has been brought to the spotlight again.
REFERENCES –
- https://www.indiacode.nic.in/bitstream/123456789/15341/1/advocate_1961.pdf
- History of Advocates Act
Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is personal.
0 Comments