THE ADVOCATES ACT, 1961
To implement the recommendations of the All India Bar Committee (fully endorsed by fourteenth Report of the Law Commission in 1955), the Advocates Act, one thousand nine hundred sixty one was enacted. The Act extends to the whole of India, except the State of Jammu and Kashmir. The Act provides for amending and consolidating the law relating to legal practitioners and to provide for the constitution of State Bar Councils and an All India Bar Council (for the first time in India). The Act took away the powers till then vested in the Courts, in the matter of admission of advocates and the maintenance of the rolls, and their disciplinary conduct (subject to an ultimate appeal to the Supreme Court). These powers now vest in the Bar Councils. Every Bar Council constituted under the Act is a body corporate having a common seal, and may, by the name of which it is known sue arid be sued.
The main features of the Act are,
(1) Establishment of an All India Bar Council and a number of State Bar Councils – a federal structure for legal profession. An advocate is initially enrolled with a State Bar Council and a common roll of all the advocates in the country is maintained by Ail India Bar Council. An advocate on common roll has a right to practice in any court of the country including the Supreme Court.
(2) Integration of the bar into a single class of legal practitioners known as advocates.
(3) A uniform qualification for the admission as advocates viz, degree in law.
(4) Division of advocates into senior advocates and other advocates based on merit.
(5) No advocate can get himself enrolled with more than one State Bar Council, though he can get himself transferred from one State Bar Council to another.
Bar Council of India
Composition – The Bar Council of India consists of
(a) the Attorney-General of India ex-officio
(b) the Solicitor-General, ex-officio,
(c) one member elected by each State Bar Council from amongst its members.
There are elected Chairman and a Vice-Chairman of the Council, and, a Secretary and an Accountant The Bar Council of India has been authorised to constitute one or more of the following committees,
(1) Legal Aid Committee
(2) Disciplinary Committee
(3) Executive Committee
(4) Enrolment Committee
(5) Legal Education Committee,
Every Disciplinary Committee is to consist of three members, two persons to be elected from amongst its members and one other to be co-opted from such members as have at least ten years’ practice. The senior-most advocate from amongst its members is to be chairman of the committee. The Legal Education Committee consists of ten members of whom five persons elected by the Council from amongst its members and the other five are those who are not members of the Council.
The main source of income of the Bar Council of India is the contribution of forty per cent out of the fee of Rupees two hundred fifty paid by each applicant for enrolment to the State Bar Council.
Functions – Main functions of the Bar Council of India include,
(1) To prepare and maintain a common roll/roster of all the advocates in the country.
(2) To lay down standards of professional conduct and etiquette for advocates and rules regarding enrolment, suspension, etc., of advocates.
(3) To safeguard the rights, privileges and interests of advocates.
(4) To exercise general supervision and control over State Bar Councils, to deal with and dispose of any matter arising under Act, which may be referred to it by a State Bar Council.
(5) To promote and support law reforms.
(6) To promote legal education and to lay down standards of such education in consultation with Universities and State Bar Councils.
(7) To recognize Universities whose degree will qualify a person to be enrolled as an advocate and to recognize foreign law degrees,
(8) To conduct seminars and talks on legal matters and to publish legal journals.
(9) To organize legal aid to the poor.
(10) To manage and invest the funds of the Bar Council.
(11) To provide for the election of its members.
Powers –Apart from the powers already enumerated, the Bar Council of India (BCI) has been specifically conferred special powers,
(1) Power to remove name from the rolls– The BCI is empowered, either on a reference made to it or otherwise, if it is satisfied that any person has got his name entered in the roll of the Advocates by misrepresentation, to remove such person from the roll after giving him an opportunity of being heard. Besides, the name of advocate may be removed from the roll as punishment for misconduct in disciplinary proceedings.
(2) Revision- Apart from the power vested in it to remove the name of an advocate in certain cases, and the power vested in the disciplinary committee to hear and dispose of the disciplinary matters whether by way of original hearing or on appeal, the BCI has the power at any time to call for the record of any proceeding under the Act, which has been disposed of by a State Bar Council or a Committee thereof, and from which no appeal lies, for satisfying itself as to the legality or propriety of such a disposal and may pass such orders thereon as it deemed fit.
(3) Directives- Section 48B empowers the BCI for the proper and efficient discharge of the functions of a State Bar Council or any Committee thereof, to give such directions to the State Bar Council or its Committee as may appear it to be necessary, and the latter has to comply with the directions. Where a State Bar Council is unable to perform its functions for any reason whatsoever, the BCI may give such directions to the ex-officio member thereof as may appear to it to be necessary, and such directions shall have effect, notwithstanding anything contained in the rules made by the State Bar Council.
(4) Rule-making power- Section 15 enumerates the powers of the State Bar Councils/BCI to make rules relating to the Bar Councils. Section 28 gives power to the State Bar Councils to make rules on some matters connected with the preparation of rolls, training and examination for admission as advocates, form of application for enrolment, and conditions for enrolment. Any rule made by State Bar Council shall have effect only if it has been approved by the BCI. Section 49 confers on the BCI a general power to make rules for discharging its functions under the Act. Rules include rules the statement of the grounds in support of the refusal to the Bar Council of India, and has to dispose of the application finally in conformity with such opinion.
Qualifications for Admission as an Advocate
The person has to be a citizen of India and has completed the age of 21 years, and has obtained a degree in law (LL.B.) from any university in India or of any university outside India considered equivalent to Indian degree, A person eligible to pursue the course in law (LL.B.- Three Year Course) should be a graduate of a university or have other equivalent academic qualification.
The requirement of practical training is now abolished. A law graduate is required to pay an enrolment fee of Rupees two hundred fifty 250 to the State Bar Council (in case of SC and STs, fee is Rupees one hundred twenty five).
With regard to a barrister also, the Bar Council of India has specified the same requirement as to a degree in law. It may be noted that the Advocates Act, one thousand nine hundred sixty one has done away with the distinction between advocates and vakils. Now all members enrolled shall be called ‘advocates’. But among advocates, there shall be Senior Advocates also. Those who were senior advocates as on 1 12.one thousand nine hundred sixty one shall be deemed to be senior advocates. Besides, power has been conferred under Section 16 of the Act to the Supreme Court and the High Courts to designate any advocate as senior advocate if in its opinion by virtue of his ability, experience (10 years’ practice) and standing at the Bar, he is deserving of such distinction. Senior advocates are governed by the rules of the Supreme Court applicable to them, and are also subject to the restrictions laid down by the Bar Council of India in the interest of the legal profession.
Disqualification for Enrolment
No person shall be admitted as an advocate .f he is convicted of an offence involving moral turpitude, if he is convicted of an offence under the provisions of Unsociability (Offences) Act, 1955, Section 28 of the Advocates Act generally prohibit the enrolment of a person who, though he may be otherwise qualified, is in full or part-time service or employment (except when he is a law officer) or is engaged in any trade, business or occupation (except when he is a sleeping partner). An advocate may edit legal books at a salary, coach pupils for legal examinations and subject to the rules against full-time employment, engage in journalism, lecturing and teaching subjects both legal and non-legal,
Right to Practice
Every advocate, whose name is entered in the State roll, shall be entitled as of right to practice throughout the territories to which the Act extends-
(1) in all courts including the Supreme Court
(2) before any tribunal or person legally authorised to take evidence (Section 29). Under Section 33, advocates alone are entitled to practise in any court. However, this right to practice is subject to rules framed by the High Court under Section 34.
Persons illegally practising in Courts or before other authorities when they are not entitled to practise under the provisions of the Act are liable for punishment with imprisonment for a term which may extend to six months.
Author: Mayank Shekhar
Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.