Comprehensive Note on the Advocates Act, 1961
The Advocates Act, 1961
Details Of The Act
Act Id: 196125 - Act Number: 25 - Enactment Date: 19th/05/1961 - Enforcement Date: 16th/08/1961 - Act Year: 1961
Short Title: The Advocates Act. 1961, Long Title: An Act To Amend And Consolidate The Law Relating To The Legal Practitioners And To Provide For The Constitution Of Bar Councils And An All-India Bar.
Ministry: Ministry Of Law And Justice - Department: Department Of Legal Affairs
Summary of the Act
The Advocate Acts lay out the legal framework for legal practitioners, as well as guidelines for the establishment of Bar Councils and an All-India Bar. Basically, the Act lays out the process for registering with state-level bar councils, as well as the credentials that an individual must have in order to practice law. The Bar Council of India is the supreme body that sets the rules and regulations for registration. It also specifies what kind of quality a legal institution can uphold.
The Advocates Act, 1961 is a revised version of the Indian Bar Council Act, 1926, or we can assume that it has replaced the Indian Bar Councils Act. The Indian parliament passes an act with the purpose or motive of establishing laws governing legal practitioners. Under the authority granted by the act, the Bar Council of India enacted such rules known as Bar Council of India Rules, which outline the types of rules that apply to practice or necessary requirements for legal education, with a focus on professional misconduct.
The following are the key characteristics of this act:
There are 7 Chapters in this act, as follows:
Preliminary, Bar Councils, Admission and Enrollment of Advocates, Right to Practice, Conduct of Advocates, Miscellaneous, and Temporary and Transitional Provisions. These chapters are discussed in detail in this study.
Chart of the Act
Landmark Judgments
Section 15 – Power To Make Rules
Pratap Chandra Mehta vs. State Bar Council of Madhya Pradesh :
it was observed that, on failure to provide for election, the Bar Council of India has to constitute a special committee to do so instead. Section 15(2) then provides that without prejudice to the generality of the foregoing powers, rules may be framed to provide for the preparation of electoral rolls and the manner in which the result shall be published.
In terms of Section 15(2)(c), the manner of the election of the Chairman and the Vice-Chairman of the Bar Council and appointment of authorities which would decide any electoral disputes is provided. The expression `manner of election of the Chairman' again is an expression which needs to be construed in its wide connotation. The rules so framed by the State Bar Council shall become effective only when approved by the Bar Council of India in terms of Section 15(3) of the Advocates Act.
The powers delegated have an in-built element of guidance that the Chairman/Vice-Chairman will be appointed and regulated by the majority members of the State Bar Council. Their conduct, and the conduct of the State Bar Council as a whole, is to be maintained in consonance with democratic principles and keeping the high professional standards of advocates in mind.
Thus, it is not a power which falls beyond the purview and scope of Section 15 of the Advocates Act read in conjunction with other provisions, particularly Chapter II and also keeping in view the object of the Act. Finally, it was held, that in view of the language of Section 15(3) of the Advocates Act and the factual matrix afore-noticed by us, it is clear that the amended rules of the M.P. Rules had received the approval of the Bar Council of India, particularly Rule 122-A. The Rules would not be invalidated for want of issuance of any notification, as it is not the requirement in terms of Section 15(3) of the Advocates Act and in any case would be a curable irregularity at best.
the appellant sought for a writ of mandamus for framing new norms strictly in consonance with the provisions of Section 16(2) of the Advocates Act, 1961 in the matter of designation of senior advocates. A writ of certiorari is also sought for quashing notifications whereby 15 advocates have been designated as senior advocates by the High Court of Karnataka.
As per the impugned interim, the High Court has taken the view that the appellant does not have locus standi to file writ petition in the public interest. Mr. K.K. Venugopal, Mr. Kapil Sibal, Mr. Gopal Subramaniam, Mr. Aditya Sondhi, learned senior counsel appearing for some of the parties and the other counsel appearing for others before this Court have graciously submitted that the High Court is not right in holding that view.
Some of the issues raised in the writ petition require consideration. As rightly pointed out by the learned senior counsel, these are the issues to be considered by the High Court only since it is the High Court concerned which frames the rules/regulations/guidelines regarding the designation of senior advocates. Therefore, we set aside the impugned order with a request to the High Court to consider the matter on merits. The appeal is accordingly disposed of. No costs.
the Bar Council of India submitted that Section 24A of the Advocates Act, 1961 provides for a bar against admission of a person as an advocate if he is convicted of an offense involving moral turpitude, apart from other situations in which such bar operates. The proviso, however, provides for the bar being lifted after two years of release.
However, the provision did not expressly provide for removal of an advocate from the roll of the advocates if conviction takes place after enrolment of a person as an advocate. Only other relevant provision under which action could be taken is Section 35 for proved misconduct. It is further stated that though the High Court directed the Bar Council of Uttar Pradesh to initiate proceedings for professional misconduct on 2.12.2005, the consequential action taken by the Bar Council of the State of Uttar Pradesh was not known.
It is further stated that the term moral turpitude has to be understood having regard to the nature of the noble profession of law which requires a person to possess higher level of integrity.
Even a minor offense could be termed as an offense involving moral turpitude in the context of an advocate who is expected to be aware of the legal position and the conduct expected from him as a citizen is higher than others. It was further submitted that only the State Bar Council or Bar Council of India possess the power to punish an advocate for “professional misconduct” as per the provisions of Section 35 of the Advocates Act, 1961 and reiterated the law laid down by this Court in Supreme Court Bar Association versus Union of India.
In addition, the counsel submitted that a general direction to all the Courts be given to communicate about conviction of an advocate for an offense involving moral turpitude to the concerned State Bar Council or the Bar Council of India immediately upon delivering the judgment of conviction so that proceedings against such advocates can be initiated under the Advocates Act, 1961.
the Supreme Court explored the amplitude and extent of the words “professional misconduct” in Section 35 of the Advocates Act. The facts of the case involved an advocate (appearing as a litigant in the capacity of the respondent, and not an advocate in a rent control proceeding) assaulted and kicked the complainant and asked him to refrain from proceeding with the case.
The main issue in this case was whether the act of the advocate amounted to misconduct, the action against which could be initiated in the Bar Council, even though he was not acting in the capacity of an advocate.
It was upheld by the Supreme Court that a lawyer is obliged to observe the norms of behavior expected of him, which make him worthy of the confidence of the community in him as an officer of the Court. Therefore, in spite of the fact that he was not acting in his capacity as an advocate, his behavior was unfit for an advocate, and the Bar Council was justified in proceeding with the disciplinary proceedings against him.
It may be noted that in arriving at the decision in the case, the Supreme Court carried out an over-view of the jurisprudence of the courts in the area of misconduct of advocates, reiterated that the term “misconduct” is incapable of a precise definition. Broadly speaking, it envisages any instance of breach of discipline.
It means improper behavior, intentional wrongdoing or deliberate violation of a rule of standard of behavior. The term may also include wrongful intention, which is not a mere error of judgment. Therefore, “misconduct”, though incapable of a precise definition, acquires its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of duty.
In N.G. Dastane v. Shrikant S. Shind, where the advocate of one of the parties was asking for continuous adjournments to the immense inconvenience of the opposite party, it was held by the Supreme Court that seeking adjournments for postponing the examination of witnesses who were present without making other arrangements for examining such witnesses is a dereliction of the duty that an advocate owed to the Court, amounting to misconduct.
In this case, Thyssen dismissed a welder from its employment in 2015 for acts of misconduct. The matter was initially heard before a conciliation officer and then in reference before a labor court in Pune. An application was filed by the welder under section 36(4) of the ID Act, objecting to Thyssen’s engagement of a legal practitioner, which was allowed by the labor court.
Thyssen’s counsel argued that because industrial adjudication is becoming increasingly complicated, employees/companies are unable to represent their cases effectively before a labor court, and therefore the assistance of a trained advocate is necessary. On the contrary, the counsel for the welder argued that the right to practice law is not a fundamental, vested, or a legal right, therefore a party cannot claim such a right to engage an advocate.
The high court held that there is a legal distinction between a right of an advocate to practice law, guaranteed by sections 29 and 30 of the Advocates Act, and the right to appear and address a court of law or tribunal. The right to practice granted by the Advocates Act does not confer on a litigant the right to be represented by a particular advocate and only presupposes that a litigant is entitled to be represented by an advocate if necessary. Further, the right to practice is not an absolute right but only restricted in nature.
Limitations can be placed on such a right by prescribing dress for legal practitioners or in some other manner. It was observed that as a litigant does not have a fundamental right to be represented by a lawyer in any court, it is difficult to accept the argument that section 36(4) of the ID Act is unconstitutional, and ultra vires articles 14 and 21 of the constitution of India.
Supreme Court found Vinay Chandra Mishra, an Advocate, guilty of committing criminal contempt of Court for having interfered with and obstructing the course of justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language.
The Supreme Court invoked its power under article 129 read with article 142 of the Constitution and awarded the contemner a simple sentence of imprisonment for a period of six weeks together with suspension from practicing as an advocate for a period of three years. Aggrieved by this direction of suspension the Supreme Court Bar Association, through its Honorary Secretary, has filed a writ petition under Article 32 of the Constitution of India.
One of the key functions of the Bar Council in regard to standards of professional conduct of lawyers is to receive complaints against lawyers. If Bar Council believes that any advocate has been guilty of professional misconduct then it might refer the case for clearance to the disciplinary committee. In case if the Bar Council even after getting 'reference' from the court, fails to take any action against the concerned lawyer, then the court might consider raising its powers U/S 38 of the Act by transferring the record of the proceedings of the Bar Council and passing suitable orders.
The appellate powers U/S 38 would be available to this Court only and not to the High Courts. It was concluded that this court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of the Constitution, punish a contemner for committing contempt of court and also impose a punishment of suspending his license to practice, where the contemner happens to be an Advocate.
Such a punishment cannot even be imposed by taking recourse to the appellate powers under Section 38 of the Act while dealing with a case of contempt of court (and not an appeal relating to professional misconduct as such). To that extent, the law laid down in the Vinay Chandra Mishra case was overruled.
It’s the power of the Bar Council of the State or Bar Council of India to punish that Advocate who is found guilty of contempt of court and of professional misconduct by either debarring him from practice or suspending his license, as may be warranted, in the facts and circumstances of each case.
Details Of The Act
Act Id: 196125 - Act Number: 25 - Enactment Date: 19th/05/1961 - Enforcement Date: 16th/08/1961 - Act Year: 1961
Short Title: The Advocates Act. 1961, Long Title: An Act To Amend And Consolidate The Law Relating To The Legal Practitioners And To Provide For The Constitution Of Bar Councils And An All-India Bar.
Ministry: Ministry Of Law And Justice - Department: Department Of Legal Affairs
Summary of the Act
The Advocate Acts lay out the legal framework for legal practitioners, as well as guidelines for the establishment of Bar Councils and an All-India Bar. Basically, the Act lays out the process for registering with state-level bar councils, as well as the credentials that an individual must have in order to practice law. The Bar Council of India is the supreme body that sets the rules and regulations for registration. It also specifies what kind of quality a legal institution can uphold.
The Advocates Act, 1961 is a revised version of the Indian Bar Council Act, 1926, or we can assume that it has replaced the Indian Bar Councils Act. The Indian parliament passes an act with the purpose or motive of establishing laws governing legal practitioners. Under the authority granted by the act, the Bar Council of India enacted such rules known as Bar Council of India Rules, which outline the types of rules that apply to practice or necessary requirements for legal education, with a focus on professional misconduct.
The following are the key characteristics of this act:
- The Bar Council of India and State Bar Councils were formed as a result of this act
- Any supporter does not join more than one State Board, though he may be moved from one to the other.
- The Bar Council was granted self-governing status.
- It stipulated that similar rolls of Advocates be established across the world.
- It also included provisions for combining all of the legal system's laws into a single document.
- At both the state and federal levels, different regulations for the Bar Council were enacted.
- As previously mentioned, various titles such as lawyer and vakil were eliminated in favor of a single title of Advocate.
There are 7 Chapters in this act, as follows:
Preliminary, Bar Councils, Admission and Enrollment of Advocates, Right to Practice, Conduct of Advocates, Miscellaneous, and Temporary and Transitional Provisions. These chapters are discussed in detail in this study.
Chart of the Act
| Chapter | Section | Brief | Details |
| Chapter 1 Preliminary | Section 1 | Short title, extent, and commence | This section states that the Act shall be called The Advocates Act. 1961. It extends to the whole of India. |
| Section 2 | Definitions | The section lays out various
definitions as follows:
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| Chapter 2 Bar Councils | Section 3 | State Bar Councils | For the respective States, there shall be a
State Bar Council k/a the Bar Council of that State.
½ of these elected members be the person who has at least 10 years of experience in being an advocate. 10 years should include the time frame where the advocate has been enrolled under the Indian Bar Council Act, 1926. There shall be a Chairman and a Vice-Chairman of each State Bar Council. A person shall cease to hold office as a Chairman or Vice-Chairman of any State Bar Council immediately before the commencement of Advocates (Amendment) Act, 1977. A person shall continue to hold office as a Chairman or Vice-Chairman of any State Bar Council until and unless a new Chairman or Vice-Chairman has been appointed. A person can be disqualified from voting at an election or for being chosen as the one to get elected, and for being the member of the State Bar Council, if he fails to possess the necessary qualifications prescribed by the Bar Council of India. After the commencement of the Advocates (Amendment) Act, 1964, every election shall be conducted in accordance with the provisions of the rule made by the Bar Council of India. Nothing will affect the representation of the members elected in any State Bar Council constituted before the commencement of the Advocates (Amendment) Act, 1973, until that State Bar Council, is reconstituted in accordance with the provisions of this Act. |
| Section 4 | Bar Council of India | There shall be a Bar Council of India
consisting of the following persons:
There shall be a Chairman and Vice-Chairman of the BCI as elected by the Council. A person shall cease to hold office as a Chairman or Vice-Chairman of any State Bar Council immediately before the commencement of Advocates (Amendment) Act, 1977. A person shall continue to hold office as a Chairman or Vice-Chairman of any State Bar Council until and unless a new Chairman or Vice-Chairman has been appointed. Members elected by the State Bar Council shall hold office, ex-officio, for a period of 2 years from the date of their election, or till he ceases to be an officer, whichever is earlier. Others hold the office till the successor has been elected by the State Bar Council. |
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| Section 5 | Bar Council to be body corporate. | Bar Council is a corporative entity and
acts as an artificial person. It can:
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| Section 6 | Functions of State Bar Councils | Functions of the State Bar Council:
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| Section 7 | Bar Council of India | Functions of the Bar Council of India
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| Section 7A | Membership in international bodies | The Bar Council of India has the power to become a member of the International bodies. Bar Council of India is a member of the International Bar Association or the International Legal Aid Association | |
| Section 8 | Term of office of members of the State Bar Council | A member is elected for a term of 5 years
from the date of publication of his election results. If the State Bar Council fails to conduct elections and elect a new member before the expiration of the term of office of the current member, then it can extend the term of office of the current member for not more than 6 months. |
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| Section 8A | Constitution of special committee in the absence of election | In case the State Bar Council fails to
conduct elections or elect a new member before the expiry of the term of
the current member or the term continued after given the extension,
then, it can constitute a special committee consisting of the following
members to discharge the functions of State Bar Council until it is
constituted. The members are:
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| Section 9 | Disciplinary committees | Bar Council shall constitute 1 or more
disciplinary committees. Each committee shall consist of 3 persons:
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| Section 9A | Constitution of legal aid committees | Bar Council can set up one or more legal
aid committees. The members should not be less than 5 and not more than
9. Method of selection of the legal aid, members will be such as prescribed. |
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| Section 10 | Constitution of committees other than disciplinary committees | State Bar Council can establish and
constitute the following committees:
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| Section 10A | Transaction of business by Bar Councils and committees thereof | Bar Council of India shall meet at New
Delhi or any other place as determined. State Bar Council shall meet at its headquarters or any such place as determined. Other committees except for the Disciplinary Committee shall meet at the headquarters of the respective Bar Councils. Every Bar Council and every committee except for the Disciplinary Committee observes a rule of procedure in relation to the transaction of business at their meetings. Disciplinary Committee constituted under Section 9 shall meet at time and place for their business as prescribed. |
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| Section 10B | Disqualification of members of bar Council | Elected member of the Bar Council is said
to have either vacated his office/disqualified, if:
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| Section 11 | Staff of Bar Council | Bar Councils can appoint Secretary, Accountant or any number of other persons as it may deem fit/necessary. They will be selected on the basis of the possession of their qualifications as prescribed. | |
| Section 12 | Accounts and Audits | Bar Councils need to maintain books of
accounts and other important books. The auditors/accountants to audit should be duly qualified to act, as per the Companies Act, 1956. State Bar Councils shall send a copy of their accounts/audits to the Bar Council of India at the end of each financial year but not exceeding the time limit of 31st December of the year next following and get it published in the official gazette. The Bar Council of India shall send a copy of its accounts/audits to the Central Government of India at the end of each financial year but not exceeding the time limit of 31st December of the year next following and get it published in the official gazette. |
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| Section 13 | Vacancies in Bar Councils and Committees thereof not to invalidate the actions taken | A Bar Council cannot be questioned of its actions taken if there is an vacancy in, or, any defect in the constitution of the Council, Committee or as the case may require. | |
| Section 14 | Elections to Bar Councils not to be questioned on certain grounds | Election of a member cannot be called in question on the grounds of discrepancy arising out of the voting procedure/ persons casting the votes, if the notice date has not less than 30 days before getting published in the official gazette. | |
| Section 15 | Power to make rules | Bar Council makes various rules. Such rules
are made for the purpose of
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| Chapter 3 Admission and enrolment of advocates |
Section 16 | Senior and other advocates | Mainly there are two classes of advocates:
Senior advocates are subject to certain restrictions in the interest of the legal profession. An advocate of the Supreme Court who already was a senior advocate of that court immediately before the appointment, shall be a senior advocate. |
| Section 17 | State bar councils to maintain roll of advocates | Every State Bar Council shall prepare and
maintain a roll of Advocates. It shall contain two parts. First part
containing the list of Senior Advocates and the second part containing
the other Advocates. In the Advocates roll, the following details should be mentioned. The name, Date of Birth, Permanent address, details about his education, the place where he is interested to practice etc. When more than one Advocate is enrolled in a single day, based on their seniority in age their name will be entered in the order. Seniority is determined based on:
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| Section 18 | Transfer of name from one state roll to another | A person whose name is registered in one state Roll can transfer his name in other State Roll on genuine grounds by an application to the Bar Council of India. The person is not required to pay any fees or so for getting a transfer. If there is no genuine reason for transfer or any disciplinary proceedings are pending against him then transfer application will be rejected. | |
| Section 19 | State Bar Councils to send copies of rolls of advocates to the Bar Council of India | The State Bar Council should send an authenticated copy of the Advocates Roll to the Bar Council of India, whenever the new Advocates are included or names are removed from the roll (any alterations are made). | |
| Section 20 | Special provisions for enrolment of certain Supreme Court advocates | An advocate can get his name enlisted in a
state roll by expressing his intention to the Bar Council of India. The
Bar Council of India shall direct his entry without asking for any
payment of the fees. The State Bar Council to which the name has been
referred shall comply with the Bar Council of India’s decision. This is done based on seniority. The senior-most judge gets preferred and enlisted first. If an advocate fails to express his intention within the prescribed time, then his entry shall be made in the state roll of the State Bar Council of Delhi. |
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| Section 21 | Disputes regarding seniority | When the seniority of two judges is the same, then the one senior in age shall be recognized as senior. Further, if any dispute arises, it can be referred to the concerned State Bar Council. | |
| Section 22 | Certificate of enrolment | A certificate shall be issued for the
enrolment in the prescribed form by the State Bar Council to every
person whose name is enlisted. Any change in the place of permanent residence of such person shall be notified to the concerned State Bar Council within 90 days. |
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| Section 23 | Right of pre-audience | Attorney General of India, Solicitor
General of India, Additional Solicitor General of India, second
Additional Solicitor General of India, Advocate General of any State,
senior advocates, and finally other advocates shall have pre audience
towards all other advocates. They are subject to the seniority basis. The senior advocates shall have pre-audience over other advocates. Right of pre-audience means the right to be heard before the other advocate if heard. |
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| Section 24 | Persons who may be admitted as advocates on a State Roll | The section states that subject to the
provisions of this Act, and the rules made thereunder, a person shall be
qualified to be admitted as an advocate on a State roll, if he fulfills
the following conditions:
All applicants for enrolment as advocates are required under Section 24 (1) (f) of the Advocates Act, 1961 to pay an enrolment fee of Rs.600/- (Rupees Six hundred only) to the respective State Bar Council and Rs.150/- (Rupees One hundred Fifty only) to the Bar Council of India. These payments should be made using separate demand drafts. An advocate, a vakil, or a pleader who is a law graduate may be admitted in the state roll if:
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| Section 24A | Disqualifications for enrolment | An advocate shall be disqualified on the
basis of:
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| Section 25 | Authority to whom applications for enrolment may be made | An application has to be submitted to the concerned State Bar Council in whose jurisdiction the advocate is willing to practice. | |
| Section 26 | Disposal of applications for admission as an advocate | State Bar Council has the authority to
dispose off any application in the prescribed manner. If the Bar Council
of India is satisfied about the fact that an advocate got his name
enrolled on the grounds of misrepresentation, fraud, undue influence
then it can remove his name from the roll. If the enrollment committee refuses the application of an advocate, it has to report it to the Bar Council of India. When the enrollment committee of a State Bar Council has refused and denied the application of an advocate, it has to report the same to other Bar Councils stating the reasons for dismissal along with the name, address, and qualification. |
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| Section 26A | Power to remove names from roll | The State Bar Council has the authority to remove an advocate’s name from the roll if he is dead or places a request for the same. | |
| Section 27 | Application once refused not to be entertained by another Bar Council except in certain circumstances | When application of an advocate is refused by one State Bar Council, no other State Bar Council can entertain the application for the admission of the concerned person on its roll until and unless a previous consent is acquired from both the State Bar Council which refused the application and the Bar Council of India. | |
| Section 28 | Power to make rules | A State Bar Council makes rules without
prejudice for:
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| Chapter 4 Right to practice | Section 29 | Advocates to be the only recognized class of persons entitled to practice law | Subject to the rules and provisions of this act, there are only one class of persons entitled to practice law, i.e., advocates. |
| Section 30 | Rights of advocates to practice | The advocates are enriched with the
following right to practice:
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| Section 31 | Special provisions for attorneys | OMITTED | |
| Section 32 | Power of court to permit appearances in particular cases | Any court, authority, person may permit any person as required who is not enrolled as an advocate to appear before the court or him in any particular case. | |
| Section 33 | Advocates alone entitled to practice | No person on or after the appointed day is entitled to practice in any other court or authority or person unless he is enrolled as an advocate under this act. | |
| Section 34 | Power of High Court to make rules | The High Court has the authority make rules related to the permittance of practice in the High Court or any other subordinate court. High Court can make rules related to taxation or fees payable. | |
| Chapter 5 Right to practice | Section 35 | Punishment of advocates for misconduct | A person is found guilty of professional
misconduct; it shall refer the case to a disciplinary committee, shall
fix a date of hearing and issue a show-cause notice to the Advocate and
the Advocate General of the State. The disciplinary committee of the
State Bar Council, after being heard of both the parties, may:
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| Section 36 | Disciplinary powers of the Bar Council of India | The Bar Council of India on receipt of a complaint of an advocate whose name is not enrolled in any State roll shall refer the advocate’s name to its disciplinary committee. The disciplinary committee can dispose of a pending complaint. The disciplinary committee has to be in line with section 35 of this Act. | |
| Section 36A | Changes in the constitution of disciplinary committees | Whenever in relation to section 35 or section 36, the disciplinary committee of either the State Bar Council or the Bae Council of India ceases to exist, a new disciplinary committee, succeeding the previous one takes over the proceedings. | |
| Section 36B | Disposal of disciplinary proceedings | Disciplinary committee can dispose off a complaint within a period of 1 year from the date of its receipt. If this fails, then it the complaint goes to the Bar Council of India. | |
| Section 37 | Appeal to the Bar Council of India | Empowers the Bar Council of India to hear appeal against the order of Disciplinary Committee of a Bar Council. Every such appeal shall be heard by the disciplinary committee of Bar Council of India. It shouldn’t be prejudicial to affect an aggrieved person and should give a reasonable opportunity of being heard. | |
| Section 38 | Appeal to the Supreme Court | It provides that any person aggrieved by the order passed by the Disciplinary Committee of Bar Council of India, maybe challenged within 60 days by way of appeal before Supreme Court. It shouldn’t be prejudicial to affect an aggrieved person and should give a reasonable opportunity of being heard. | |
| Section 39 | Application of section 5 and 12 of Limitations Act, 1963 | Section 5 and 12 of Limitations Act, 1963 applies to appeals under section 37 and 38. | |
| Section 40 | Stay of order | An appeal made under section 37 and section 38 can work as a stay order if directed by either the disciplinary committee of the Bar Council of India or the Supreme Court, whichever seems fit. | |
| Section 41 | Alteration in roll of advocates | When an order is made, reprimanding or suspending an advocate then a record of his punishment shall be put against his name in the case where an advocate’s name is entered in the State roll and where an order is made, suspending him of practicing as an advocate, then his name shall be struck off. | |
| Section 42 | Powers of disciplinary committee | Disciplinary committee of a Bar Council
have the same powers as are vested in a civil court under the Code of
Civil Procedure, 1908 when it comes to certain matters:
For the reasons of executing its powers, the disciplinary committee can send to any civil court summons or other processes in the territories to where the act extends, for the reasons of attendance of a witness, production of any document etc. The absence of the Chairman or any member of a disciplinary committee on a date fixed for the hearing of a case, the disciplinary committee if it thinks fit, hold or continue the proceedings on the date so fixed and no such proceedings. No order made by the disciplinary committee in these proceedings be invalid merely by reason of the absence of the Chairman or member. It is essential to note that no final orders of the nature referred to in sub- section (3) of section 35 shall be made in any proceeding unless the Chairman and other members of the disciplinary committee are present. |
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| Section 42A | Powers of Bar Council of India and other committees | Provisions of section 42 shall apply to the Bar Council of India, the Enrollment Committee, the Election Committee, the Legal Aid Committee, or any other committee of any Bar Council (disciplinary committee). | |
| Section 43 | Cost of proceedings before a disciplinary committee | The disciplinary committee of a Bar Council
makes orders related to the cost of any proceedings as it may find
suitable. Any such order can be executed if it were an order:
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| Section 44 | Review of order by a disciplinary committee | Review committee may on its own review an order passed by it, provided that the order of review shall have no effect unless it has been approved by the Bar Council of India. | |
| Chapter 6 Misc. | Section 45 | Penalty for persons illegally practicing in courts and before other authorities | Any advocate who practices in any court or before any authority or person, before whom he is not entitled to practice, shall be punishable with imprisonment for a term which may extend to six months. |
| Section 46 | Payment of part of enrollment fees to the Bar Council of India | OMITTED | |
| Section 46A | Financial assistance to the State Bar Council | If the Bar Council of India is satisfied that any State Bar Council is in need of funds for the purpose of performing its functions then it will provide such financial assistance as it deems fit to that Bar Council by way of grant or otherwise. | |
| Section 47 | Reciprocity | No subject of any such country shall be
entitled to practice the profession of law in India that are prevented
for the citizens of India from practicing. It means that the countries,
which are prevented for Indians to practice in, the subjects of those
counties cannot practice in India, either. This should me published as a
notification in the Official Gazette. The Bar Council of India may prescribe the conditions, subject to which foreign qualifications in law obtained by persons other than citizens of India shall be recognized for the purpose of admission as an advocate under this Act. |
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| Section 48 | Indemnity against legal proceedings | No suit or other legal proceeding can lie against any Bar Council or any committee thereof or a member of a Bar Council for any act done in good faith or intended to be done to pursue the rules made under this Act. | |
| Section 48A | Power of revision | The Bar Council of India can call for any proceeding under this Act which has been disposed of by a State Bar Council or a committee, and from which no appeal lies. No order which prejudicially affects any person shall be passed under this section without giving him a reasonable opportunity of being heard. | |
| Section 48AA | Review | Bar Council of India may review on its own any order, within 60 days of the date of that order. | |
| Section 48B | Power to give directions | The Bar Council of India, for proper and
efficient discharge of the functions of a State Bar Council. It may
exercise its powers of general supervision and control and give
directions. When a State Bar Council is unable to perform its functions, the Bar Council of India without prejudice give directions to the ex officio member as it may appear necessary. |
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| Section 49 | General power of the Bar Council of India to make rules | Bar Council of India can make rules to
discharge its functions. These rules may prescribe certain conditions
like:
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| Section 49A | Power of Central Government to makes rules | Central Government can make rules for
carrying out the purposes of this Act, including the rules made by the
Bar Council of India and Bar Councils as follows
If any rule that is made by the Bar Council of India is repugnant to any provision of a rule made by the Central Government under this section, then the rule under this section, whether made before or after the rule made by the Bar Council, shall prevail and the rule made by the Bar Council shall be void. |
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| Section 50 | Repeal of certain enactments | Date on which a State Bar Council is
constituted under this Act, the provisions of sections 3 to 7
(inclusive), sub-sections (1), (2) and (3) of section 9, section 15 and
section 20 of the Indian Bar Councils Act, 1926 (38 of 1926), stands
repealed in the territory for which the particular State Bar Council is
constituted. Date on which chapter 3 comes into force, the following sections stands repealed:
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| Section 51 | Rule of construction | References made in the enactment to an advocate enrolled by a High Court in any form of words shall be construed to have been made to an advocate enrolled under this section. | |
| Section 52 | Saving |
Nothing can affect the power and authority of the Supreme Court to make rules under Article 145 of the constitution for laying out conditions according to which a senior advocate is entitled to practice in a court and for determining who will be entitled to practice. | |
| Chapter 7 Temporary & transitional provisions | Section 53 | Elections to first State Bar Council | Elected members of a State Bar Council which is constituted for the first time under this Act, shall be elected by and from amongst advocates, vakils, pleaders, and attorneys who on the date of the election, are entitled as of right to practice in the High Court and are ordinarily practicing within the territory for which the Bar Council is to be constituted. |
| Section 54 | Term of office of members of first State Bar Councils | The term of office of the elected members of a State Bar Council constituted for the first time, shall be two years from the date of the first meeting of the Council. | |
| Section 55 | Rights of certain existing legal practitioners not affected | As per Section 55 of the Advocates Act
despite anything contained in this Act:
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| Section 56 | Dissolution of existing Bar Councils | On constitution of any State Council other
than the State Council of Delhi:
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| Section 57 | Power to make rules pending the constitution of Bar Council | The power of that Bar Council to make rules
under this Act shall be exercised:
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| Section 58 | Special provisions during the transitional period | When a State Bar Council has not been
constituted or when a State Bar Council is unable to perform its
functions then, the functions of that Bar Council or of any committee
thereof, related to the admission and enrolment of advocates, shall be
performed by the High Court. A State Bar Council or a High Court performing the functions of a State Bar Council may enroll any person to be an advocate on a State roll if he is qualified to be so enrolled. Every person who before 1st December 1961, was an advocate on the roll of any High Court under the Indian Bar Councils Act, 1926 or who has been enrolled as an advocate under this Act shall, until Chapter IV comes into force, be entitled as of right to practice in the Supreme Court. |
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| Section 58A | Special provisions with respect to certain advocates | Advocates who immediately before the
26th July, 1948, were entitled to practice in the High Court in
Allahabad or the Chief Court in Oudh and who under the provisions of the
United Provinces High Courts (Amalgamation) Order, 1948 were recognized
as advocates who are entitled to practice in the new High Court of
Allahabad but whose names were not formally entered on the roll of
advocates of that High Court merely by reason of the non-payment of the
fee payable to the Bar Council of the said High Court. All advocates who
are enrolled between the time of 26th July 1948 – 26th May 1952 be
deemed to be persons who were entered as advocates on the roll of the
said High Court under the Indian Bar Councils Act, 1926 and every such
person shall be admitted as an advocate on the State roll of Uttar
Pradesh. Advocates who immediately before the 10th October, 1952 were entitled to practice in the High Court of Hyderabad but whose names were not formally entered on the roll of advocates of that High Court merely by reason of the non-payment of the fee payable to the Bar Council of the said High Court shall, be deemed to be persons who were entered as advocates on the roll of the said High Court under the Indian Bar Councils Act, 1926 and every such person may, on an application being made in this behalf, be admitted as an advocate on the State roll of Andhra Pradesh or of Maharashtra. Advocates who immediately before the 1st May, 1960 were entitled to practice in the High Court of Bombay who applied to get their names entered on the roll of the High Court of Gujarat but whose names were not formally entered on the roll of advocates of that High Court merely by reason of the non-payment of the fee payable to the Bar Council of the said High Court shall, be deemed to be persons who were entered as advocates on the roll of the said High Court under the Indian Bar Councils Act, 1926 and every such person may, on an application being made in this behalf, be admitted as an advocate on the State roll of Gujarat. |
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| Section 58B | Special provision relating to certain disciplinary proceedings | From 1st September 1963, every proceeding
related to any disciplinary matter in relation to an existing advocate
of a High Court shall, be disposed of by the State Bar Council in
relation to that High Court, as if the existing advocate had been
enrolled as an advocate on its roll. If before 1st September 1963, there is any pending proceeding in respect of any disciplinary matter in relation to an existing advocate before any High Court under the Indian Bar Councils Act, 1926, such proceeding shall be transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the Bar Council. If before 1st September 1963, there is any pending proceeding in respect of any disciplinary matter in relation to an existing pleader, vakil, mukhtar or attorney, who has been enrolled as an advocate on any State roll under the Act, such proceeding shall be transferred to the State Bar Council on the roll on which he has been enrolled. |
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| Section 59 | Removal of difficulties | If any issues arise in bringing in effect the enactments that are repealed and other provisions of this Act, the Central government may publish it in the official gazette, so as to remove that difficulty. | |
| Section 60 | Power of the Central Government to make rules | Until the rules are made by either the
State Bar Council and approved by the Bar Council of India, the Central
Government has the power to do the same. The Central Government in
consultation with the Bar Council of India may make rules for the State
Bar Councils or any particular State Bar Council. The Central government by making a notification in an official gazette direct the rules made by it. |
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Section 15 – Power To Make Rules
Pratap Chandra Mehta vs. State Bar Council of Madhya Pradesh :
it was observed that, on failure to provide for election, the Bar Council of India has to constitute a special committee to do so instead. Section 15(2) then provides that without prejudice to the generality of the foregoing powers, rules may be framed to provide for the preparation of electoral rolls and the manner in which the result shall be published.
In terms of Section 15(2)(c), the manner of the election of the Chairman and the Vice-Chairman of the Bar Council and appointment of authorities which would decide any electoral disputes is provided. The expression `manner of election of the Chairman' again is an expression which needs to be construed in its wide connotation. The rules so framed by the State Bar Council shall become effective only when approved by the Bar Council of India in terms of Section 15(3) of the Advocates Act.
The powers delegated have an in-built element of guidance that the Chairman/Vice-Chairman will be appointed and regulated by the majority members of the State Bar Council. Their conduct, and the conduct of the State Bar Council as a whole, is to be maintained in consonance with democratic principles and keeping the high professional standards of advocates in mind.
Thus, it is not a power which falls beyond the purview and scope of Section 15 of the Advocates Act read in conjunction with other provisions, particularly Chapter II and also keeping in view the object of the Act. Finally, it was held, that in view of the language of Section 15(3) of the Advocates Act and the factual matrix afore-noticed by us, it is clear that the amended rules of the M.P. Rules had received the approval of the Bar Council of India, particularly Rule 122-A. The Rules would not be invalidated for want of issuance of any notification, as it is not the requirement in terms of Section 15(3) of the Advocates Act and in any case would be a curable irregularity at best.
Section 16 – Senior And Other Advocates
T.N.Raghupathy vs High Court Of Karnataka & Ors:the appellant sought for a writ of mandamus for framing new norms strictly in consonance with the provisions of Section 16(2) of the Advocates Act, 1961 in the matter of designation of senior advocates. A writ of certiorari is also sought for quashing notifications whereby 15 advocates have been designated as senior advocates by the High Court of Karnataka.
As per the impugned interim, the High Court has taken the view that the appellant does not have locus standi to file writ petition in the public interest. Mr. K.K. Venugopal, Mr. Kapil Sibal, Mr. Gopal Subramaniam, Mr. Aditya Sondhi, learned senior counsel appearing for some of the parties and the other counsel appearing for others before this Court have graciously submitted that the High Court is not right in holding that view.
Some of the issues raised in the writ petition require consideration. As rightly pointed out by the learned senior counsel, these are the issues to be considered by the High Court only since it is the High Court concerned which frames the rules/regulations/guidelines regarding the designation of senior advocates. Therefore, we set aside the impugned order with a request to the High Court to consider the matter on merits. The appeal is accordingly disposed of. No costs.
Section 24a – Disqualification For Enrollemnt
Mahipal Singh Rana vs State Of U.P:the Bar Council of India submitted that Section 24A of the Advocates Act, 1961 provides for a bar against admission of a person as an advocate if he is convicted of an offense involving moral turpitude, apart from other situations in which such bar operates. The proviso, however, provides for the bar being lifted after two years of release.
However, the provision did not expressly provide for removal of an advocate from the roll of the advocates if conviction takes place after enrolment of a person as an advocate. Only other relevant provision under which action could be taken is Section 35 for proved misconduct. It is further stated that though the High Court directed the Bar Council of Uttar Pradesh to initiate proceedings for professional misconduct on 2.12.2005, the consequential action taken by the Bar Council of the State of Uttar Pradesh was not known.
It is further stated that the term moral turpitude has to be understood having regard to the nature of the noble profession of law which requires a person to possess higher level of integrity.
Even a minor offense could be termed as an offense involving moral turpitude in the context of an advocate who is expected to be aware of the legal position and the conduct expected from him as a citizen is higher than others. It was further submitted that only the State Bar Council or Bar Council of India possess the power to punish an advocate for “professional misconduct” as per the provisions of Section 35 of the Advocates Act, 1961 and reiterated the law laid down by this Court in Supreme Court Bar Association versus Union of India.
In addition, the counsel submitted that a general direction to all the Courts be given to communicate about conviction of an advocate for an offense involving moral turpitude to the concerned State Bar Council or the Bar Council of India immediately upon delivering the judgment of conviction so that proceedings against such advocates can be initiated under the Advocates Act, 1961.
Section 35 – Punishment Of Advocates For Misconduct
In the case, Noratanman Courasia v. M. R. Murali:the Supreme Court explored the amplitude and extent of the words “professional misconduct” in Section 35 of the Advocates Act. The facts of the case involved an advocate (appearing as a litigant in the capacity of the respondent, and not an advocate in a rent control proceeding) assaulted and kicked the complainant and asked him to refrain from proceeding with the case.
The main issue in this case was whether the act of the advocate amounted to misconduct, the action against which could be initiated in the Bar Council, even though he was not acting in the capacity of an advocate.
It was upheld by the Supreme Court that a lawyer is obliged to observe the norms of behavior expected of him, which make him worthy of the confidence of the community in him as an officer of the Court. Therefore, in spite of the fact that he was not acting in his capacity as an advocate, his behavior was unfit for an advocate, and the Bar Council was justified in proceeding with the disciplinary proceedings against him.
It may be noted that in arriving at the decision in the case, the Supreme Court carried out an over-view of the jurisprudence of the courts in the area of misconduct of advocates, reiterated that the term “misconduct” is incapable of a precise definition. Broadly speaking, it envisages any instance of breach of discipline.
It means improper behavior, intentional wrongdoing or deliberate violation of a rule of standard of behavior. The term may also include wrongful intention, which is not a mere error of judgment. Therefore, “misconduct”, though incapable of a precise definition, acquires its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of duty.
In N.G. Dastane v. Shrikant S. Shind, where the advocate of one of the parties was asking for continuous adjournments to the immense inconvenience of the opposite party, it was held by the Supreme Court that seeking adjournments for postponing the examination of witnesses who were present without making other arrangements for examining such witnesses is a dereliction of the duty that an advocate owed to the Court, amounting to misconduct.
Section 36 – Disciplinary Powers Of The Bar Council Of India
In Thyssen Krupp Industries v Suresh Maruti Chougule, Union of India, Bar Council of India & Ors, Bombay High Court dismissed a challenge by Thyssen as to the constitutional validity of section 36(4) of the Industrial Disputes Act, 1947 (ID Act), which restricts the appearance of lawyers in labor courts, tribunals and national tribunals, and held that there is a legal distinction between the right of an advocate to practice law guaranteed by sections 29 and 30 of the Advocates Act, 1961, and the right to appear and address a court of law or tribunal.In this case, Thyssen dismissed a welder from its employment in 2015 for acts of misconduct. The matter was initially heard before a conciliation officer and then in reference before a labor court in Pune. An application was filed by the welder under section 36(4) of the ID Act, objecting to Thyssen’s engagement of a legal practitioner, which was allowed by the labor court.
Thyssen’s counsel argued that because industrial adjudication is becoming increasingly complicated, employees/companies are unable to represent their cases effectively before a labor court, and therefore the assistance of a trained advocate is necessary. On the contrary, the counsel for the welder argued that the right to practice law is not a fundamental, vested, or a legal right, therefore a party cannot claim such a right to engage an advocate.
The high court held that there is a legal distinction between a right of an advocate to practice law, guaranteed by sections 29 and 30 of the Advocates Act, and the right to appear and address a court of law or tribunal. The right to practice granted by the Advocates Act does not confer on a litigant the right to be represented by a particular advocate and only presupposes that a litigant is entitled to be represented by an advocate if necessary. Further, the right to practice is not an absolute right but only restricted in nature.
Limitations can be placed on such a right by prescribing dress for legal practitioners or in some other manner. It was observed that as a litigant does not have a fundamental right to be represented by a lawyer in any court, it is difficult to accept the argument that section 36(4) of the ID Act is unconstitutional, and ultra vires articles 14 and 21 of the constitution of India.
Section 38 – Appeal To The Supreme Court
Supreme Court Bar Association v. Union of India:Supreme Court found Vinay Chandra Mishra, an Advocate, guilty of committing criminal contempt of Court for having interfered with and obstructing the course of justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language.
The Supreme Court invoked its power under article 129 read with article 142 of the Constitution and awarded the contemner a simple sentence of imprisonment for a period of six weeks together with suspension from practicing as an advocate for a period of three years. Aggrieved by this direction of suspension the Supreme Court Bar Association, through its Honorary Secretary, has filed a writ petition under Article 32 of the Constitution of India.
One of the key functions of the Bar Council in regard to standards of professional conduct of lawyers is to receive complaints against lawyers. If Bar Council believes that any advocate has been guilty of professional misconduct then it might refer the case for clearance to the disciplinary committee. In case if the Bar Council even after getting 'reference' from the court, fails to take any action against the concerned lawyer, then the court might consider raising its powers U/S 38 of the Act by transferring the record of the proceedings of the Bar Council and passing suitable orders.
The appellate powers U/S 38 would be available to this Court only and not to the High Courts. It was concluded that this court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of the Constitution, punish a contemner for committing contempt of court and also impose a punishment of suspending his license to practice, where the contemner happens to be an Advocate.
Such a punishment cannot even be imposed by taking recourse to the appellate powers under Section 38 of the Act while dealing with a case of contempt of court (and not an appeal relating to professional misconduct as such). To that extent, the law laid down in the Vinay Chandra Mishra case was overruled.
It’s the power of the Bar Council of the State or Bar Council of India to punish that Advocate who is found guilty of contempt of court and of professional misconduct by either debarring him from practice or suspending his license, as may be warranted, in the facts and circumstances of each case.
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