HISTORY OF LEGAL PROFESSION IN INDIA LEADING UP TO THE

PASSING OF THE ADVOCATES ACT, 1961

INTRODUCTION:
Legal history or the history of law is the study of how law has evolved and why it changed.
Legal history is closely connected to the development of civilizations and is set in the wider
context of social history. Among certain jurists and historians of legal process it has been seen as
the recording of the evolution of laws and the technical explanation of how these laws have
evolved with the view of better understanding the origins of various legal concepts, some
consider it a branch of intellectual history. Twentieth-century historians have viewed legal
history in a more contextualized manner more in line with the thinking of social historians.
They have looked at legal institutions as complex systems of rules, players and symbols and have
seen these elements interact with society to change, adapt, resist or promote certain aspects of
civil society. Such legal historians have tended to analyze case histories from the parameters of
social science inquiry, using statistical methods, analyzing class distinctions among litigants,
petitioners and other players in various legal processes. By analyzing case outcomes, transaction
costs, number of settled cases they have begun an analysis of legal institutions, practices,
procedures and briefs that give us a more complex picture of law and society than the study of
jurisprudence, case law and civil codes can achieve.
India has a recorded legal history starting from the Vedic ages and some sort of civil law system
may have been in place during the Bronze Age and the Indus Valley civilization.
Notwithstanding this, the development of ‘law’ as a profession is only a recent phenomenon. The
Indian legal profession is one of the largest in the world and plays a vital role in the world’s
largest democracy. While the roots of this profession lie before Independence, since then the
profession has evolved immensely and currently faces various challenges; the most important
being to provide access across the profession, ensure ethical foundations and modernize the
practice across the board. A well-organized and independent legal profession is an essential
condition for proper administration of justice. It is also a necessary ingredient and guarantor of
the rule of law. Its proper organization and maintenance of its independence are, therefore,
necessary for a good and just society. To trace the history of the Legal Profession in India form
the advent of British rule.
HISTORY OF THE LEGAL PROFESSION IN INDIA:
The Legal Profession is an important limb of the machinery for the administration of justice.
Without a well-organized profession of law, the courts would not be in a position to administer
justice effectively as the evidence in favor or against the parties to a suit cannot be properly
marshaled, facts cannot be properly articulated and the best legal arguments in support or against
the case of the parties cannot be put forth before the court. “A well-organized system of judicial
administration postulates a properly equipped and efficient Bar”. It is, therefore, in the fitness of
things to take note briefly of the development of the legal profession in India.
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.

MAYOR’S COURT
In the Charter of 1726, which established the Mayor’s Courts at the three Presidency Towns, no
specific provision was made laying down any particular qualifications for the persons who would
be entitled to act or plead as legal practitioners in these courts. Presumably, it was left to these
courts to regulate this matter by rules of practice which these courts were authorized to frame.
No change was effected in this position when a fresh Charter was issued in 1753. No organized
legal profession came into being in the Presidency Towns during the period of the mayor’s
Courts. They who practiced law were devoid of any legal training or any knowledge of the law.
They had adopted the profession in the absence of anything better to do. Quite a few of these so-
called lawyers were the dismissed servants of the Company.

THE LEGAL PRACTITIONERS ACT,1846

The Legal Practitioners Act (1 of 1846), which was the first All-India law concerning the
pleaders in the mofussil, made several important innovations, namely:
1) The office of the pleaders in the courts of the Company was thrown open to all persons of
whatever nation or religion, provided he has duly certified (in such manner as directed by the
Sadar Courts) to be of good character and duly qualified for the other office. Thus, religious test
was abolished for enrolment as a Pleader.
2) Every barrister enrolled in any of Her Majesty’s Courts in India was made eligible to plead in
the Sadar Adalats subject to the rules of those Courts applicable to pleaders as regards as
language or any other matter.
3) Vakils were allowed freedom to enter into agreement with their clients for their fees for
professional services. This Act is regarded as “the first charter of the legal profession”although it
left unsolved the important question of the right of vakils to practice in the Supreme Courts.
The Legal Practitioners Act, 1853 (Act XX of 1853), declared every Attorney on the roll of any
of Her Majesty’s Supreme Courts to be entitled to be plead in any of the Company’s Sadar
Adalat. The Barristers and Attorneys of the Supreme Courts were permitted to plead in the
Company’s Adalat (subordinate to the Sadar Adalats) as well. Thus, while Barristers and
practitioners were rigorously kept out of the three Supreme Courts. The reason was that the
authorities held a poor opinion of the native lawyers and it was thought that appearance of
English Barristers in the Company’s Adalats would improve the situation.
The Act also did away with the system of compulsory attendance of the pleaders in the court to
which they were attached. Henceforth no pleader was bound to attend in any court of company
on any day fixed for the transaction of civil business or to notify the court his inability to attend
unless he was employed in some business or cause which according to the court practice, might
be heard or transacted herein on the day.
THREE CATEGORIES OF PRACTITIONERS
In 1861, legislation was passed by the British Parliament to establish High Courts at Calcutta,
Madras, and Bombay. At this time, there were in existence three bodies of practitioners in the
Supreme Courts and, the Sadar Adalats-Advocates, Attorneys and Vakils. CI9 of the Letters
Patent of 1865 of the High Court of Calcutta empowered the Court “to approve, admit and enroll
such and so many Advocates, Vakils and Attorneys as to the said High Court shall deem fit.”
These persons were authorized to appear for the suitors of the High Court, and to plead or to act,
or to plead and act for the said suitors, according to as High Court may by its rules and directions
determine, and subject to such rules and directions
THE LEGAL PRACTITIONERS ACT.1879
The Act, XVIII of 1879, was enacted to consolidate and amend the law relating to legal
practitioners in the mofussils.[lxxix] The Act repealed the Pleaders, Mukhtars and Revenue
Agents Act 1865. At this time, there were six grades of practitioners functioning in India.
Advocates, Solicitors (Attorneys), and Vakils of the High Court: Pleaders, Mukhtars and revenue
agents in the lower courts. The High Court laid down standards for admission of Vakils to
practice in the High Court; for Zila Courts, standards were laid down in the Regulations which
were lower for pleaders than the High Court vakils. Thus, Vakils became a distinct grade above
the Pleader
INDIAN BAR COMMITTEE, 1923
Munshi Ishwar Saran moved in February 1921, a resolution in the Legislative Assembly
recommending legislation “with a view to create an Indian Bar so as to remove all distinction
enforced by statue or by practice between Barristers and Vakils.” The mover of the resolution not
only laid emphasis the removal of distinction between Barristers and Vakils but also advocated
the constitution of a recognized body consisting exclusively of lawyers in India to provide for
legal education, to exercise disciplinary control over the Bar 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 resolution merely recommended the eliciting of opinion from all quarters before
undertaking legislation in the proposed direction
THE INDIAN BAR COUNCILS ACT, 1926
To give effect to the recommendations of the Chamier Committee to some extent, the Central
Legislature enacted the Indian Bar Councils Act, 1926. The object of the Act, as stated in its
preamble, was 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.
The purpose of the act thus was to unify the various grades of legal practitioners and to provide
some measure of self-government to the bars attached to the various Courts.
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 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:
(1) To lay down standards of professional conduct and etiquette for advocates.
(2) To safeguard the rights, privileges and interest of advocates
(3) To promote legal education
(4) To lay down standards of legal educati0on in consultation with the universities imparting
such educations in the State Bar Councils.
(5) To recognize universities which degrees in law shall qualify for enrollment as an advocate
and up to visit and inspect the universities for that purpose.
(6) To exercise general supervision and control over state bar councils.
(7) To promote and support law reform
(8) To organize legal aid to the poor.
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 power to elect is own chairman. The
main powers and functions of the State Bar Council are:
(a) To admit persons as advocates on its roll
(b) To prepare and maintain such rolls.
(c) To entertain and determine cases of misconduct against advocates on its roll
(d) To safeguard the right, privileges and interest of advocates on its roll
(e) To promote and support law reform
(f) To organize legal aid to the poor
Thus, every State Bar Councils prepares and maintains a roll of an advocate as an authenticated
copy of the roll which 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 prescribe
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 All-India basis.
CONCLUSION:
Legal history existing, the law as a profession has evolved after thousands of years which, no
denial, is flourishing. Through the various stages of development has it come to the place of
recognition and social acceptance! Yet there exists some bias and ill-informed criticisms among
the lower strata of the society besides bordering condemnations. The immense stride that the
‘legal profession’ has made post-independence is to the credit of the Government and the Bar
Council of India and various states. Globalization has had its own contribution to the
development of law as a profession. But with globalization and the trend of India’s emergence on
the international fora shortcomings have come to light which immediately needs attention and
address. The immense population growth and emerging domestic spheres have added to the
growth of the profession and also to irreconcilable shortcomings. Immense strides made, there
still is enormous room for evolution and development of the profession. What is needed is a
vision based on philosophy.