The Advocates Act, 1961

The Advocates Act, 1961 was aimed to implement the recommendations of

the All India Bar Committee made in 1953, after taking into account the
recommendations of the Law Commission on the subject of Reform of Judicial
Administration in so far as the recommendations relate to the Bar and to legal
education. The following report has tried to deal with the evolution of the
Advocates Act, 1961 and in the process has dealt with and provided a brief
history of the legal profession in India. It has traced the development of the
Advocates Act through the past few decades by briefly looking at some case
laws which have played a substantial role in the same.

A Brief History of the Legal Profession in India

The years 1726-1753 saw the setting up of Mayor’s Courts in India. There was
no established legal profession as such until this point of time, and those
practicing lacked any sort of legal training. Most of the practitioners were
dismissed servants of the British East India Company. A major event then
took place in the year 1774, whereby, the Supreme Court of Judicature was
established by a Royal Charter at Calcutta. Similar courts were further set up
in Madras (1801) and Bombay (1823).

The Regulating Act of 1773 empowered the Supreme Court to "approve,

admit and enroll" Advocates and Attorneys-at-Law. "Attorneys of Record"
were authorized to "appear, plead and act for the suitors". Attorneys were not
admitted without a recommendation from high officials in England or a Judge
in India. The term "Advocate" at that time was extended only to the English
and Irish Barristers and members of the Faculty of Advocates in Scotland.
"Attorneys" similarly referred to British attorneys and solicitors only. The
Calcutta Supreme Court therefore appeared to be the exclusive bastion of
British Barristers, Advocates and Attorneys. The Charter introduced in India
the British system of legal practice and profession. Indians had no right to
appear before the Supreme Courts (this trend continued in Bombay and
Madras as well although both these courts were established much later). The
Bengal Regulation VII of 1793, then saw the development of a regular legal
profession in company courts. The Regulation was one "for the appointment
of vakils or native pleaders in the Courts of Civil Judicature (Sadar Diwani
Adalat) in Bengal, Bihar and Orissa. Only Muslims and Hindus could be enrolled
as pleaders. The Regulation also provided for a Vakalatnama (a party would
execute a Vakalatnama in favour of a pleader, authorizing him to represent
the party, and act on his behalf in a matter). This was the genesis of the
"Vakalatnama" as we know today. The Bengal Regulation XXVII of 1814
consolidated the law on the subject. The pleaders were empowered to act as
arbitrators and to give legal opinions on payment of fees. Thereafter, in 1833,
The Bengal Regulation XII modified the provisions of earlier regulations
regarding selection, appointment and remuneration of these pleaders. It
permitted any qualified persons of any nationality and religion to be enrolled
as a pleader in the Sadar Diwani Adalat. Thus, we can aptly say that the
various Regulating Acts had a major role to play in the development of the
legal system that we see in the modern day and age.

Further, The Legal Practitioners Act of 1846. was the first pan-India law
concerning the regulation of the Indian legal profession. A religious test for
enrolment as a pleader was abolished, and persons of any nationality and
religion could be enrolled as a pleader. Every Barrister enrolled in any of Her
Majesty’s Courts in India became eligible to plead in the Sadar Adalats subject
to the rules of those courts applicable to pleader as regards language or any
other matter. The Legal Practitioners Act also permitted Vakils to enter into
agreements with their clients for their fees for professional services. The Legal
Practitioners Act of 1879 repealed the Pleaders, Mukhtars and Revenue Agents
Act, 1865. During this time in British India, there were six grades of
practitioners- Advocates, Solicitors (Attorneys) and Vakils of the High Court
and Pleaders, Mukhtars and Revenue agents in the lower courts. Vakils
became a distinct grade above the Pleader. The act brought all six grades of
legal practitioners into one system.

Barristers of England had come to occupy a predominant position in the

legal profession. The Government of India in 1923 appointed the Indian Bar
Committee, popularly known as the Chamier Committee to address the
existing disparities in the Legal profession. It was chaired by Sir Edward
Chamier, a retired Chief Justice of the Patna High Court). The Committee in
its report stated that it was not practical at that time to organize the Bar on
an all-India basis. However, the Committee suggested the establishment of
Bar Council for each of the High Courts. The Committee suggested that a Bar
Council should have power to make rules in matters such as qualifications and
admission of persons to be Advocates of the concerned High Court, legal
education, discipline and professional conduct of Advocates, terms on which
Advocates of another High Court could appear occasionally in the concerned
High Court or any other matter prescribed by the High Court. The Year 1926
saw the enactment of The Indian Bar Councils Act. The Act was to provide for
the constitution and incorporation of Bar Councils, to confer powers and
impose duties on the Bar Councils and to consolidate the regulations
pertaining to the legal profession. The Bar Councils could, with the consent of
the High Court, make rules for: a) the rights and duties of Advocates of High
Court and professional conduct; and b) legal education and examinations. The
Act eliminated the two grades of practitioners, the Vakils and the Pleaders by
merging them in the class of Advocates who were "entitled as of right to
practice" in the High Court in which they were enrolled and in any other Court
in British India, subject to certain exceptions. The High Courts occupied
considerable influence in these matters and the Legal Practitioners Act, 1879
remained intact. Pleaders, Mukhtars etc. who were practicing in mofussil
courts remained out of the scope of the Act.
Fig: Classification of Lawyers under the British ruled India

The Advocates Act, 1961

In 1961, Parliament enacted the Advocates Act to amend and consolidate the
law relating to legal practitioners. It repeals the Indian Bar Councils Act, 1926,
the Legal Practitioners Act, 1879, and other laws on the subject. The Act has
undergone several amendments since its enactment in 1961. The Act extends
to the whole of India, except the state of Jammu and Kashmir. After the
enactment of the Advocates Act, 1961 all the old categories of practitioners
(vakils, barristers, pleaders of several grades, and mukhtars) were abolished
and consolidated into a single category called "advocates" who till date enjoy
the right to practice in courts throughout India.
Prominent Features of the Act

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 authorized 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,6

(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,
1961 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
1/12/1961 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: if 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 authorized to take evidence (Section
29). Under Section 33, advocates alone are entitled to practice in any court.
However, this right to practice is subject to rules framed by the High Court
under Section 34.

Persons illegally practicing in Courts or before other authorities when they are
not entitled to practice under the provisions of the Act are liable for
punishment with imprisonment for a term which may extend to six months.

Professional Misconduct
The provisions of Section 35 of the Advocates Act deal with professional
misconduct of lawyers and advocates in India. Misconduct is of infinite variety;
this expression must be understood in a broad meaning, such that it extends
the meaning under natural law, and there is no justification for restricting their
natural meaning. Section 49 of the Advocate Act empowers the Bar Council of
India to frame rules and standards of professional misconduct. Under the Act,
no person has a right to make advertisement or soliciting; it is against
advocate’s code of ethics. He is also not entitled to any advertisement through
circulars, personal communications or interviews, he is not entitled to demand
fees for training and to use name/service for unauthorized purposes.

Some Important Cases Relating to The Advocates Act, 1961

Archana Girish Sabnis v Bar Council of India and Others, Civil Appeal
Jurisdiction, Civil Appeal No 4232 OF 2007, Supreme Court of India judgement
dated November 26, 2014: One can pursue law but for the purpose of
obtaining license to practice, he or she must fulfill all the requirements and
conditions prescribed by the Bar Council of India.

V.Sudeer v. Bar council of India (1999) 3 SSC 176 The honourable

supreme court in this case held that the Bar council of India cannot take up
the role of laying down pre-enrolment training for applicants seeking to enter
the legal profession by getting enrolled under section 24 of the advocates act.

Indian Council of legal aid and advice v. Bar council of India AIR
1995 SC 69 The honourable supreme court of India held that a rule debarring
a person, who has completed 45 years of age from enrolment as an advocate
is beyond the rule making power of bar council of India and ultra vires the
Advocates act, 1961.
The 3 Judges Case:

Following are the three cases:

i. S. P. Gupta v. Union of India - 1981[1] (also known as the Judges' Transfer

case) AIR 1982 SC 149, AIR 1981 Supp (1) SCC 87, 1982 2 SCR 365

ii. Supreme Court Advocates-on Record Association vs Union of India -

1993[2]

iii. In re Special Reference 1 of 1998

The 3 Judges case has helped in the evolution of the modern collegium system
This development has been a result of a tumultuous process, but in modern
practice it governs the rule for judicial appointments.