The Law Commission, presided over by Mr. M.C. Setalvad, then Attorney-General of
India, in its fourteenth report on the Reform of Judicial Administration
endorsed the recommendations of the All India Bar Committee, as regards the
creation of a unified all India Bar as well as the establishment, composition
and functions of the state and All India Bar Councils.
The Law Commission
further recommended, inter alia, that the requirement of a certain number of
years' practice in the High Court for enrolment as a Supreme Court advocate
should be dispensed with, the advocates on the common roll should have the right
to practise in all the courts in India, the dual system should continue on the
original side of the Calcutta and Bombay High Courts and the Bar should be
divided into senior advocates and advocates.
The Advocates Act, 1961, which received the assent of the President of India on
the 19th of May, 1961, extends to the whole of India, except the State of Jammu
and Kashmir. Under section 1, the Act is to come into force on such date as the
central government may, by notification in the Official Gazette, appoint and
different dates may be appointed for different provisions of this Act.
Broadly speaking, the main features of the Act are:
- to have, in course of time only one class of legal practitioners viz,
advocates, with the right given to them to practice in all courts and tribunals
- to take 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),
- the constitution of a central Bar Council for purposes of control and
supervision with powers, inter alia, to the central Bar Council to recognise the
degree in law for admission as advocates. Every Bar Council constituted under
the Act is a body corporate having a common seal, and may, by the name by which
it is known sue and be sued.
History Of Disciplinary Committees In India
The High Court was empowered under section 10 of the Legal Practitioners Act to
reprimand, suspend or remove from practice any advocate of the High Court for
professional or other misconduct after following the procedure described below.
Complaints against advocates for professional or other misconduct had to be made
to the High Court. If on receipt of a complaint, the High Court did not
summarily reject it, it had to refer the case for enquiry to the Bar Council, or
after consultation with the Bar Council, to a district judge. The High Court had
power to make such a reference suo motu even if there was no complaint. Cases
referred to a Bar Council had to be enquired into by a committee of the Bar
Council (called tribunal) comprising not less than three and not more than five
members appointed by the Chief Justice of the High Court.
The High Court was required to make rules for the conduct of disciplinary
enquiries. The finding of the tribunal after enquiry was to be forwarded to the
High Court through the Bar Council and the finding of a district court was to be
forwarded direct to the High Court which was required to send a copy to the Bar
Council. Notice was to be given of the date fixed for hearing to the advocate
concerned and to the Bar Council and to the Advocate-General and after affording
them an opportunity of being heard, final orders were passed by the High Court.
A record of the punishment of suspension or reprimand was made in the rolls of
the High Court. If the advocate was to be removed from practice, his name was
removed from the roll and the certificate of any advocate so suspended or
removed was to be recalled. The tribunals and the district judge conducting
the enquiries were vested with powers of a court under the Code of Civil
Procedure examining him on oath, compelling the production of documents and
issuing commissions for the examination of witnesses.
It may be pointed out that under the Act, the power of enrolment of advocates
virtually continued to remain in the High Court and the function of the Bar
Council was advisory in nature. The Act did not affect the original side of the
Calcutta and Bombay High Courts.
Further, the attorneys of Calcutta and Bombay were not affected by the Act and
the enrolment of and the disciplinary jurisdiction over the attorneys continued
to be in the hands of the High Courts under their respective Letters Patents.
The right of the advocates of one High Court to practice in another High Court
was made subject to the rules made by the High Court. The rules made by the Bar
Councils had stipulated that advocates of other High Courts would be permitted
to appear and plead in the respective High Courts only with the permission of
the Chief Justice provided an advocate enrolled in that High Court appeared with
him. The provisions in the Bar Council's Act were regarded as unsatisfactory.
After Advocates Act, 1961: Right To Practise
Chapter IV of the Advocates Act regulates the right of advocates to practise.
One of the objects of the Act is to have in course of time only one class of
legal practitioners. Different provisions of this chapter have been brought into
force at different times. For instance, section 32 which empowers the courts to
allow persons who are not enrolled as advocates to appear before them in
particular cases was brought into force from 4-1-1963.
Sections 29, 31, 33 and 34 were brought into force from 1-6-1969. Section 30 has
not yet been brought into force. Section 29 provides that subject to the
provisions of the Act as from the appointed day (1-6-1969), there shall be only
one class of persons entitled to practice the profession of law, namely,
advocates. Under section 30 all advocates are entitled as of right to practice
throughout the territories to which the Act extends in all courts including the
Supreme Court, before any tribunal or person legally authorized to take evidence
or before any other authority or person before whom such advocate is entitled to
practice. Further under section 33 advocates alone are entitled to practice in
However, sections 29, 30 and 33 have to be read along with section 50(2) and
sections 55 and 58 of the Act. Section 50(2) provides that on the date on which
chapter III (Admission and Enrolment of Advocates) comes into force (it came
into force on 1-12-1961) certain sections of the Legal Practitioners Act, 1879,
Bombay Pleaders Act, 1920, Indian Bar Councils Act, 1926, and Letters Patent of
High Courts which relate to the admission and enrolment of legal practitioners
stand repealed. Under sections 55 and 58 rights of certain existing legal
practitioners are protected.
The net effect of the above provisions is that
there can be no fresh admission of any other class of legal practitioners such
as pleaders, mukhtars or revenue agents under any of the other enactments till
then in force as these provisions stand repealed, and the other classes of legal
practitioners so far admitted can get their sanads renewed, and exercise the
same rights as they had under these enactments as before.
Reference may in this connection be made to two decided cases. The High Court of
Mysore in its judgment dated 26th March, 1964 in writ petition No. 2497/1963�E.C.
Agrawala v. Mysore State Bar Council, held that section 58(4) only empowers
the renewal of sanads of pleaders who had been admitted before 1-12-1961, and
does not permit fresh admission of pleaders after that date by way of issue of
The other decision is that of the Calcutta High Court in Sunil Kumar v. State of
, holding that section 58(4) cannot apply to persons who had not
acquired the necessary rights under section 6 of the Legal Practitioners Act
In In re Lilly Isabel Thomas, �the proper construction of article 145(i)(a)
of the Constitution in the context of a declaration that rule 16 of order IV of
the Supreme Court Rules is invalid,� was the principal point raised by an
advocate entitled under the Advocates Act, 1961, to practise in the Supreme
Court having been originally enrolled in the Madras High Court under the Bar
Councils Act, 1926. Rule 16 which now corresponds to rule 5 provided for the
qualifications requisite for an advacate to be registered as an advocate on
It was held that section 58(3) of the Advocates Act which confers on the
advocates the right of practice in the Supreme Court is itself subject to
section 52 which specifically sayes the right of the Supreme Court to make rules
under article 145 of the Constitution. The court held that on the express terms
of article 145(1), the impugned rules 16 and 17 are valid and within the
The Act makes some special provisions which it is necessary to note in this
connection. The power of the High Court at Calcutta and at Bombay to provide for
and make rules for the admission of attorney, and for their removal or
suspension is not affected by the Act. The power of any court, authority, or
psrson to permit any person not enrolled as an advocate under the Act to appear
before it or him is specifically preserved.
The High Court is empowered to
make rules laying down the conditions subject to which an advocate shall be
permitted to practise in the High Court and the courts subordinate
thereto. The exact scope and implication of this provision may, when it
becomes necessary, have to be construed, in the light of the other provisions of
the Act, and so as not to affect the rights conferred thereunder, on the Bar
Scope And Extent Disciplinary Committee
Proceedings before state Bar Councils and the disciplinary committeesThe state Bar Council on the roll of which an advocate is enrolled has the
jurisdiction and the power to act on receipt of a complaint or otherwise. A fee
of Rs. 25 is prescribed by the Bar Council of India as payable on a complaint,
which shall be in the form of a petition duly signed and verified as required
under the Civil Procedure Code. If the state Bar Council has reason to believe
that the advocate concerned has been guilty of professional or other misconduct,
it has to refer the case for disposal to its disciplinary committee.
The disciplinary committee to which the case has been referred may summarily
reject the complaint. If it does not do so, it should fix a date for the hearing
of the case and cause notice thereof to be given to the advocate concerned and
to the Advocate-General of the state (the Solicitor-General in the case of the
Delhi Bar Council). After giving him an opportunity of being heard it should
make its order.
Powers of the disciplinary committeesSection 42 provides that the disciplinary committee of a Bar Council shall have
the same powers as are vested in a civil court under the Code of Civil
Procedure, 1908, in respect of summoning and enforcing the attendance of any
person and examining him on oath, requiring discovery and production of any
documents; receiving evidence on affidavits; requisitioning any public record or
copies thereof; issuing commissions for the examination of witnesses or
documents and any other matter which may be prescribed.
An advocate who is suspended from practise is debarred from practising in any
court or before any authority or persons in India. The disciplinary committee of
a state Bar Council may of its own motion or otherwise review any order passed
by it, but no such order shall have effect unless it has been approved by the
Bar Council of India.
The disciplinary committee of the Bar Council of IndiaThe Act has conferred powers on the disciplinary committee of the Bar Council of
India to make inquiry in some cases on complaints of misconduct referred to it,
to withdraw cases for enquiry before itself, to hear appeals and order stay and
to review its own orders. It has the power to make such order as to costs of any
proceedings before it as it may deem fit. Any such order shall be executable as
if it were an order of the Supreme Court.
Power to enquire and to withdraw
If on receipt of a complaint or otherwise, the Bar Council of India has reason
to believe that any advocate on the common roll whose name is not entered on any
state roll has been guilty of professional or other misconduct, it shall refer
the case for disposal to its disciplinary committees, The committee may also of
its own motion, withdraw for enquiry before itself any proceedings for
disciplinary action against any advocate pending before the disciplinary
committee of any state Bar Council and dispose of the same.
Power to hear appeals and order stay
Any person aggrieved by an order of the disciplinary committee of a state Bar
Council made under section 35 may within sixty days of the date of the
communication of the order to him, prefer an appeal to the Bar Council of India.
Every such appeal is to be heard by the disciplinary committee of the Bar
Council of India which may pass such order thereon as it deems fit. Under the
rules made by the Bar Council of India a fee of R.s. 50 has been prescribed for
an appeal to be filed before the Bar Council of India.
The case of Adi Phirozshah Gandhi v. H.M. Seervai
, before the Supreme Court
was one in which suo motu action was taken against the advocate by the Bar
Council of Maharashtra. Notice was given to the Advocate-General as required
under the Act. The Advocate-General appeared before the committee. The
disciplinary committee was satisfied that there was no reason to hold that the
advocate was guilty of professional or other misconduct.
filed an appeal against the said order under section 37 of the Act. The
disciplinary committee of the Bar Council of India in its order allowed the
appeal and suspended the advocate for a year over-ruling, inter-alia, the
objection that the Advocate-General was not competent to file the appeal. The
advocate appealed to the Supreme Court of India. In its judgment by the majority
Their Lordships Hidayat-ullah, CJ., Shelat, J., Mitter, J, it was held that
the appeal by the Advocate-General was incompetent.
Power of Review
Section 44 confers powers of review on the disciplinary committee of a Bar
Council by its own motion or otherwise. However, no order or review of the
disciplinary committee of state Bar Council shall have effect unless it has been
approved by the Bar Council of India. In O.N. Mahindroo v. Dist. Judge,
, the Supreme Court upheld the view of the Bar Council of India that
the Bar Council of India has no power to review an order made by its
disciplinary committee on appeal. But the Bar Council can refer to the
disciplinary committee matters for its reconsideration.
As already stated the power of revision is expressly granted to the disciplinary
committee of the Bar Council which may on its own motion or otherwise review any
order passed by it. The word otherwise
is wide enough to include a case
referred by the Bar Council for review. The court was of the view that since
disciplinary proceedings against a lawyer will not only involve the particular
lawyer but the prestige of the legal profession as such, the powers of review of
the disciplinary committees should be interpreted widely so as to enable them to
exercise such powers in a suitable case for or against a lawyer even after the
matter had been examined by them. The analogy of the powers of review by the
courts under the Civil Procedure Code or that of the autrefois convict or
outrefo is acquit under the Code of Criminal Procedure should not be made
(d) Appeal to the Supreme Court
Any person aggrieved by an order made by the disciplinary committee of the Bar
Council of India under section 36 or section 37 may, within sixty days of the
date on which the order is communicated to him, prefer an appeal to the Supreme
Court and the Supreme Court may pass such order thereon as it deems fit. Order V
of the Supreme Court of India Rules deals with appeals made to the Supreme Court
against an order of the disciplinary committee of the Bar Council of India made
under section 36 or section 37 of Advocates Act.
The Rules, inter alia, provide for a preliminary hearing on the registration of
the petition for appeal. If upon such hearing the court is satisfied that
no prima facie case has been made out for its interference it may dismiss the
appeal, but if it is not so satisfied it may direct that notice of appeal be
issued to the Advocate-General of the State concerned or to the Attorney-General
of India or to both and to the respondent. The costs of all proceedings of an
appeal shall be in the discretion of the court.
A few matters have to be set right by legislation. Of these may be mentioned the
existing provision under section 49A vesting power in the central government to
make rules in certain cases. The government has not been in favor of dropping
this provision. Agitations there have been for putting an end to the dual system
permitted in a sense to continue on the original side of the West Bengal and the
Bombay High Courts but with no result. It is satisfactory to note that legal aid
is to be included as a function of the Bar Councils.
In the last ten years, the Bar Councils have had an onerous task to perform. The
foundation having been laid, the members of the legal profession and the public
are indeed entitled to look forward to the Bar Councils for the discharge of
their functions and obligations.
Award Winning Article Is Written By:�Pradyum Chaudhary
- Law Commission of India: Report on the Reform of Judicial
Administration, 556-586 (1958).
- S. 11, The Indian Bar Council Act, 1926.
- S. 12, The Indian Bar Council Act, 1926.
- S. 13, The Indian Bar Council Act, 1926.
- A.I.R. 1965 Cal. 614.
- AIR 1964 SC 855.
- Ss. 31 & 34(2), The Advocates Act. 196).
- S. 33.
- S. 34(1).
- (1970) 2 SCC 484 : AIR 1971 SC 385.
- Their Lordships Vaidyalingam, J, and Ray, J, dissenting
- (1971) 3 SCC 5 : AIR 1971 SC 107.
- The validity of s. 38 of the Act and order V, rule 7 of the Supreme
Court Rules was upheld by the Supreme Court in O.N. Mohindroo v. Bar
Council, AIR 1968 SC 888.
- Student, Amity Law School, Noida
Authentication No: NV30785145956-2-1120