Introduction:
The Advocates Act was enacted by the Parliament on 19/05/1961. The act was brought about to amend and merge the laws governing the constitution of the All-India Bar council and the state bar councils as well as laws related to legal practitioners. The act takes effect all across India except in the state of Jammu and Kashmir.
The Advocates Act, 1961 (hereinafter referred to as “the act”) consists of 7 chapters and a total of 60 sections. The basic objective of the act lies in providing the uniform qualification required to be a legal practitioner, the procedure to register into a state-level bar council, restrictions and disqualifications of legal practitioners, etc.[1]
Let us take a look into some of the main provisions mentioned in The Advocates Act, 1961.
The Role of Advocates and the Bar Council
After achieving Independence in the year 1947, the government appointed the All India Bar Committee in 1953 to look after and regulate the judiciary in India. The All India Bar Committee provided a report to the Parliament that was passed giving rise to The Advocates Act and The Bar Council of India in 1961.
Before the act came into place legal practitioners were divided into different classes such as Advocates, lawyers, vakils, etc. under the Legal Practitioners Act, 1879.[2] But, after the implementation of the act, all these different classes were abolished and a single common role of an Advocate was upheld. These advocates are classified into “Senior Advocates” and “other advocates” as per their experience and knowledge. Senior Advocates are granted this title with their consent by the Supreme Court or the High Court.
The All India Bar Council as stated in the act is an autonomous body entrusted with certain duties and functions that are required to be carried out. The Bar Council of India being an autonomous body can appear as a member of various international organizations such as the International Bar Organisation. . It is seen as a legal body that can sue and be sued as well as acquire movable and immovable properties.
There also exist the various State Bar Councils that are governed by the All India Bar Council. They have duties similar to the Bar Council of India but they only look after their respective states. State Bar Councils are required to be present in every state as per the act.
Admission and Enrollment
As per Section 24 of The Advocates Act, 1961[3] any citizen of India aged 21 or above with a degree of law from a University recognized by the Bar Council of India can be admitted into the Bar Council. The act also states that the individual must pay the stamp duty along with the enrollment fee and fulfill all other conditions specified as per bar councils’ rules. At present, any individual who seeks to get enrolled as an advocate has to first clear the Bar Council of India exam.
Earlier there was a rule that persons aged 45 years or above cannot be enrolled in the Bar Council of India but that was held ultra vires.[4]
In the case V. Sudeer v. Bar Council of India[5], the court held that under no condition can factors other than those laid down in Section 24 of the Advocates Act can be tried on a person wanting to practice law. But that individual is still required to appear for and pass the All India Bar Examination.
Disqualifications for the Enrolment
Section 24A[6] discusses the disqualifications of the enrolment. It states that no person with any sort of criminal record or prior offenses (including moral turpitude), persons convicted under the Untouchability (Offences) Act, 1955[7] , or removal from prior employment or office due to moral turpitude can be admitted into a State roll as an advocate. But this disqualification for enrollment will cease to have effect after a period of 2 years in case of release, dismissal, or removal. If any advocate is found to be absent for three consecutive days without any reasonable cause, his/her name is removed from the common roll. In such situations, the advocate has been deemed to have vacated his office as per the instructions and decisions of the Bar Council. In the case Hikmat Ali Khan v. Ishwar Prasad Arya[8], a person was removed from the roll of advocates for being guilty of moral turpitude.
Advocates can also be removed from the common roll due to other factors. The first of these factors is when the Advocate passes away. And the other is when the advocate voluntarily requests that his name be removed from the common roll.[9]
Procedure for Enrolment
The procedure for enrolment for a person wishing to practice law is clearly stated in the Advocates Act. Section 25 of the Act[10] involves an application for admission of the advocate in the jurisdiction where the applicant wishes to practice law. Since Bar Council is the body assessing the applicants, they bear the right to dispose of applications and reject applicants. These rights are acclaimed under Section 26, 27, and 28 of the Advocates Act.
Section 26 of the Act[11] states the criteria for disposing of the applications for admission as an advocate. There are several reasons stated in the section owing to which the application can be disposed of. If any person has enrolled for the roll of advocates by misrepresentation, by concealing a material fact, or by fraud, such candidate is eligible to be disposed of from the application. The State Bar council can remove the name of such a person from the candidate list after giving an opportunity to justify the accused. State Bar Council cannot outrightly deny and dispose of the application. If the enrolment committee of the State Bar Council requires an application to be refused, it has to be forwarded for the opinion to the Bar Council of India.
Every such reference is required to be supplemented with the statement including grounds on which the State Bar Council is seeking refusal of the application. If the Bar Council of India conforms to the opinion of the State Bar Council, it can dispose of the application for admission of the candidate. After the application has been disposed of, the respective State Bar Council is obligated to inform and send intimation to all other State Bar Councils about the refusal along with all the details due to which the application was refused. This is done to ensure that the candidate refused by one State Bar Council does not apply for a license by approaching a State Bar Council of another State.
Section 27 of the Act[12] discusses about the applications which are refused by one Bar Council cannot be entertained by other Bar Council. It states that if the application of a candidate is refused, no other State Bar Council is allowed to entertain an application from such a person as an advocate on the roll. However, there is one exceptional situation, when if a refused candidate gets the previous written consent of the State Bar Council which refused the application or of the Bar Council of India, such candidate can be allowed to apply for an advocate on the roll.
The Right to Practice
Not everyone can practice in court before an authority such as the judge. As per Section 33 of the Advocates Act, 1961[13] only advocates have the right to practice before any court. But the court can make changes to this rule if they so desire. They can deny or allow any person to appear before the court if they deem fit. Persons that practice before the court without proper conformation and allowance are held liable and can be imprisoned for a period of 6 months.
The Division of Advocates
With the implementation of the act, all classes of legal practitioners were narrowed down into “Advocates”. These advocates are divided into “Senior Advocates” and “Other Advocates”. The Senior Advocates are assigned and nominated to this title as per their standing in the bar council, special knowledge, ability, and experience as seen by the High Court and the Supreme Court.
Though these “Senior Advocates” have a higher-order and position in the Bar Council as well as the judiciary, they are faced with some restrictions. Senior advocates do not have the ability to file a Vakalatnama (documentation that allows a lawyer to act for or on behalf of his/her client) or act in any Court, Tribunal, etc. They can neither accept any brief or instruction in regards to appearance in court provided directly by any client nor can they accept any instructions to draft pleading or affidavits, advice on evidence.
Misconduct of Advocates
Under the ambit of the act, Section 35 provides the Bar Council the authority to punish the Advocates for their misconduct.[14] If Bar Council has received a complaint or otherwise believes that the advocate is guilty of professional or other misconduct during his roll, he is to appear before the disciplinary committee. The disciplinary committee will hear the case from all ends and then either dismiss the complaint, reprimand the advocate, suspend or remove his/her name from the roll. Suspended advocates are barred from practicing before any authority or in any court during their period of suspension.
The Bar Council of India
The supreme body that governs the role and conduct of advocates is the Bar Council of India. The Bar Council makes and implements rules that govern all aspects of advocate including admission, conduct, etc.
Under Section 49 of the Advocates Act, 1961, the Bar Council of India has the power and authority to make rules according to chapters or parts provided in the act.[15]
Parts I, II, and III deal with the establishment of the Bar Council of India, state bar councils, lawyers, and their respective roles.
Part IV deals with the rules of legal education and the standard as well as the recognition of law degrees required for enrollment.
Parts V, VI, VII, VIII, and IX of the Bar Council of India Rules deal with aspects such as professional ethics, etiquette, or professional misconduct.
The main composition of the Bar Council of India comprises of;
- The Attorney-General of India, ex-officio,
- The Solicitor-General, ex-officio,
- One member elected by each State Bar Council from amongst its members.[16]
Alongside there are the elected chairman, Vice-Chairman of the Council, Secretary, and Accountants.
The Bar Council of India constitutes of several committees so as to divide and regulate work efficiently. Some of the committees are[17];
- Legal Aid Committee
- Disciplinary Committee
- Executive Committee
- Enrolment Committee
- Legal Education Committee
Conclusion
The implementation of the All India Bar and the unification of all classes of legal practitioners was a great improvement. The system of the All India Bar and the State Bar’s was well thought out and has simplified the process while making it more effective. The Act has allowed advocated from across India to come together in a shared forum and has brought about integration.
The Advocates Act, 1961 was a much-needed addition that has improved the legal field and has simplified several aspects in the field of law.
References:
[1] The Advocates Act, 1961, No.25, Acts of Parliament, 1961 (India).
[2] Legal Practitioners Act, 1879, No. 18, Acts of Parliament, 1979 (India)
[3] § 24, The Advocates Act, 1961, No.25, Acts of Parliament, 1961 (India).
[4] Indian Council of Legal Aid and Advice v. Bar Council of India (1995) A.I.R 1995 SC 691 (India).
[5] V. Sudeer v. Bar Council of India (1999) A.I.R 1999 SC 1167 (India).
[6] § 24A, The Advocates Act, 1961, No.25, Acts of Parliament, 1961 (India).
[7] The Untouchability (Offences) Act, 1955, No. 22, Acts of Parliament, 1955 (India).
[8] Hikmat Ali Khan v. Ishwar Prasad Arya (1997) A.I.R. 1997 SC 864 (India).
[9] Devansh Sharma, Know All about Advocates Act,1961, Latest Laws (July 17, 2019) https://www.latestlaws.com/articles/know-all-about-advocates-act1961-by-devansh-sharma/.
[10] § 25, The Advocates Act, 1961, No.25, Acts of Parliament, 1961 (India).
[11] § 26, The Advocates Act, 1961, No.25, Acts of Parliament, 1961 (India).
[12] § 27, The Advocates Act, 1961, No.25, Acts of Parliament, 1961 (India).
[13] § 33, The Advocates Act, 1961, No.25, Acts of Parliament, 1961 (India).
[14] § 35, The Advocates Act, 1961, No.25, Acts of Parliament, 1961 (India).
[15] § 49, The Advocates Act, 1961, No.25, Acts of Parliament, 1961 (India).
[16] Ketan Srivastava, Advocates Act, 1961, Legodesk (Apr. 1, 2020) https://legodesk.com/blog/legal-practice/advocates-act-1961/
[17] Ketan, supra note 4, at 5.
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