Legal Profession - Introduction, History and Regulation
This article is about the development of the legal profession in India, stating the major roles of Britishers, The Advocates Act and The Bar Council in it. Mastering the lawless science of our law, That codeless myriad of precedent, That wilderness of single instances, Through which a few, by wit or fortune led, May beat a pathway out… Read More »
This article is about the development of the legal profession in India, stating the major roles of Britishers, The Advocates Act and The Bar Council in it.
Mastering the lawless science of our law,
That codeless myriad of precedent,
That wilderness of single instances,
Through which a few, by wit or fortune led,
May beat a pathway out to wealth and fame. – Lord Tennyson
Law is the set of rules and regulations governing a society. It is a full-fledged subject studied by those who wish to enter the legal field. The history of the legal profession in India can be traced back to the establishment of the First British Court in Bombay in 1672 by Governor Aungier. The admission of attorneys was placed in the hands of the Governor-in-Council and not with the Court. Prior to the establishment of the Mayor’s Courts in 1726 in Madras and Calcutta, there were no legal practitioners.
The Mayor’s Courts, established in the three presidency towns, were Crown Courts with the right of appeal first to the Governor-in-Council and a right of the second appeal to the Privy Council. In 1791, Judges felt the need for experience, and thus the role of an attorney to protect the rights of his client was upheld in each of the Mayor’s Courts. This was done in spite of opposition from Council members or the Governor. A second principle was also established during the period of the Mayor’s Courts. This was the right to dismiss an attorney guilty of misconduct.
The first example of dismissal was recorded by the Mayor’s Court at Madras which dismissed attorney Jones.
The Supreme Court of Judicature was established by a Royal Charter in 1774. The Supreme Court was established as there was dissatisfaction with the weaknesses of the Court of the Mayor. Similar Supreme Courts were established in Madras in 1801 and Bombay in 1823. The first barristers appeared in India after the opening of the Supreme Court in Calcutta in 1774. As barristers began to come into the Courts on work as advocates, the attorneys gave up pleading and worked as solicitors.
The two grades of legal practice gradually became distinct and separate as they were in England. Madras gained its first barrister in 1778 with Mr. Benjamin Sullivan.
Thus, the establishment of the Supreme Court brought recognition, wealth and prestige to the legal profession. The charters of the Court stipulated that the Chief Justice and three puisne Judges be English barristers of at least 5 years standing.1
The Chamier Committee
To remove all distinction enforced by statue or by practice between Barristers and Vakils Munshi Ishwar Saran moved a resolution in the Legislative Assembly recommending legislation in February 1921. Though the removal of the distinction between Barristers and Vakils was the primary focus, the resolution advocated the constitution of a recognized body consisting exclusively of lawyers in India to provide for legal education and to deal with all others matters relating to the legal profession.
This was deemed important because many High Courts exercised disciplinary powers over lawyers on the theory that Vakils were officers of the court. As finally adopted, the opinions from all corners were recommended before undertaking legislation in the proposed direction.
Succumbing to the pressures thus generated, the Indian Bar Committee, popularly known as the Chamier Committee was appointed by the Government of India in 1923. This committee was constituted under the Chairmanship of Sir Edward Chamier, a retired Chief Justice of the Patna High court. Four Barristers, one Attorney, one civilian and three representatives of the Vakil Bar were the members of this Committee. The prevalent questions regarding the constitution of Indian Bar and the removal of existing distinction between Barristers and Vakils were put onto table to make a report on that.
Recommendations of the Committee are below mentioned:
- that in all High Courts, a single grade of enrolled practitioners, entitled to plead, is to be called advocates (not Barristers) and Vakils or Pleaders be abolished;
- that only special conditions are maintained for admission to Advocates entitled to appear on the Original Side and Advocates not so entitled;
- that Vakils fulfilling certain conditions be admitted to practice on the original Side;
- that the future one-third of the High Court Judges need not necessarily be Barristers;
- that Advocates of one High Court should be entitled to practice in another High Court subject to the conditions to be imposed by the Bar Council of the latter court, or by the court where there is no Bar Council.2
The Indian Bar Council Act, 1926
To materialize the recommendations of the Chamier Committee, the Indian Bar Councils Act, 1926 enacted to 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 consolidate and attend the law relating to legal practitioners entitled to practice in such courts. Unification of the various grades of legal practitioners and self-governance to the bars attached to the various Courts were the main purposes of the Act.
The Act extended to the whole of British India, but it was applied immediately only to the High Courts of Calcutta, Madras, Bombay, Allahabad and Patna. The Act could be applied to such other High Court as the “Governor-General in Council may, by notification in the Official Gazette, declare to be High to which the Act applied.” Sections 3 to 7 of the Act dealt with the constitution and incorporation of a Bar Council as a body corporate and its powers of making by-laws. There was to be a Bar Council for each High Court.
A Bar Council was to consist of 15 members as follows: Advocate-General, four persons nominated by the High Court, of whom not more than two could be the judges of that court; ten members elected by the advocates of the High Court from amongst themselves. A Bar Council was to elect a chairman and a vice-chairman but in Madras, Calcutta and Bombay the Advocate general was to be ex-officio chairman of the Bar Council.
A High Court was authorized to reprimand, suspend or remove from practice any Advocate of the High Court whom it found guilty of professional or other misconduct. The High Court was empowered, of its own motion, to refer any case in which it had otherwise reason to believe that any such Advocate had been guilty of misconduct.
The power to enroll Advocates continued to remain in the High Courts and the function of the Bar Councils was merely advisory. The rules to be made by a Bar Council were subject to the approval of the High Court. The High Court had effective disciplinary power over the Advocates, the role of the Bar Council is merely advisory. A Bar Council could inquire into a complaint of professional misconduct only when the matter was referred to it by the High Court and even then the findings of the Bar Council were not binding on the High Court.
The Act did not in any way affect the Original Sides of the Calcutta and Bombay High Courts. The Attorneys of the Calcutta and Bombay Courts were not in any way touched by this Act and the enrolment of the Attorneys and the disciplinary jurisdiction over them, therefore, continued to remain vested in the High Courts under their respective Letters Patent.2
All India Bar Committee, 1951
The Indian Bar Councils Act had left the pleaders, Mukhters etc. practicing in the mofussil courts entirely out of its scope and did not bring about a unified Indian Bar. Further, the Councils constituted under the Act were merely advisory bodies and were neither Autonomous nor had any substantial authority. The Indian Legal profession was not satisfied with what had been achieved by the Act of 1926. The Indian Practitioners had three main aims in view, namely:
- The abolitions of all distinctions between various classes and grades of the legal practitioner,
- The democratization of Bar Councils by bringing in representatives Mofussil Lawyers on them,
- The taking away of the control exercised by the High Courts over the members of the legal profession, and vesting the same in the Bar Council.
To end this, they continued the effort for a long period of time. With the establishment of the Supreme Court of India in 1950, under the new consideration, a new stimulus was given to the demand for a unified All India Bar.
Accordingly, in 1951 the Govt. of India constituted a Committee under the chairmanship of Justice S. R. Das of the Supreme Court to examine a report on –
- The desirability and feasibility of a completely unified Bar for the whole of India.
- The continuance or abolition of the dual system of council and solicitor which obtains in the Supreme Courts and in the High Courts of Bombay and Calcutta.
- The continuance or abolition of different classes of legal practitioners, like advocates of the Supreme Courts, advocates of the various High Courts, district court pleaders, Mukhters, revenue agents, income tax practitioners etc.
- The desirability or feasibility of establishing a single Bar Council – For the whole of India; or For each state
- The establishment of a separate Bar Council for the Supreme Court
- The consolidation and revision of the various enactments relating to legal practitioners.3
The Advocates Act, 1961
In 1961, parliament enacted the Advocates Act to amend in consolidated the law relating to the legal practitioner, and to provide for the constitution for the State Bar Council and All India Bar Council. The Advocates Act implements the recommendation of the Bar Committee in the Law Commission with some modifications. It repeals the Indian Bar Council Act, 1926, the Legal Practitioners Act, 1879, in other laws under subject. The act has undergone several amendments since its enactment in 1961. The Act extends to the whole of India.
The Bar Council of India
The Act establishes an All India Bar Council for the first time. The Attorney General of India in the Solicitor General of India is the ex-officio members of the Bar Council of India. Besides, it has one member elected by its State Bar Council from among its members. The Council elects its own chairman and vice-chairman. The Bar Council of India has been entrusted inter alia with the following important functions:
- To lay down standards of professional conduct and etiquette for advocates.
- To safeguard the rights, privileges and interest of advocates
- To promote legal education
- To lay down standards of legal educati0on in consultation with the universities imparting such education in the State Bar Councils.
- To recognize universities which degrees in law shall qualify for enrolment as an advocate and up to visit and inspect the universities for that purpose.
- To exercise general supervision and control over state bar councils.
- To promote and support law reform
- To organize legal aid to the poor.
State Bar Councils
The Act creates a State Bar Council in each state. It is an autonomous body. The Advocate General of the state is an ex-officio member, and there are 15 to 25 elected advocates. These members are to be elected for a period of five years in accordance with the system of proportionate representation by means of single transferable votes from amongst advocates on the roll of the State Bar Council. The State Bar Council has the power to elect is own chairman. The main powers and functions of the State Bar Council are:
- To admit persons as advocates on its roll
- To prepare and maintain such rolls.
- To entertain and determine cases of misconduct against advocates on its roll
- To safeguard the right, privileges and interest of advocates on its roll
- To promote and support law reform
- To organize legal aid to the poor
Thus, every State Bar Council prepares and maintains a roll of the advocate as an authenticated copy of the roll which is to be sent to the Bar Council of India.
Advocates have been classified into Senior Advocates and other Advocates. An Advocate may, with his consent, be designated as a Senior Advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, experience and his standing at Bar he is deserving of such distinction. Senior Advocates are, in the matter of their practice, subject to such restrictions as the Bar Council of India may, in the interest of the legal profession prescribed.
Originally, the Act had saved the dual system i.e. Advocates and Attorneys, prevailing in the Bombay and Calcutta High Courts on their Original Side. It was left to the two High Courts to continue the system or not. These provisions were deleted with effect from 1st January 1977. The result is that, as a matter of law, Attorneys are no longer recognized as a separate class of lawyers. However, since the system prevailed for a long period in the two towns it continues there still as a matter of practice.
Thus, admission, practice, ethics, privileges, regulation, discipline and improvement of the profession are now all in the hands of the hands of the profession itself. The legal profession has achieved its long-cherished object of having a unified Bar on an All-India basis.3