Historical Prespective of Legal Profession

Introduction
The Legal Profession in Pre-Colonial India

The Legal Profession in British India
 The Mofussil Courts
The Founding of the High Courts and their Effect
Grades and Regulation of the Profession (1862-1962)
The Legal Practitioners Act (XVIII of 1879)
The Indian Bar Councils Act, 1926
The All India Bar Committee, 1951
The Advocate Act, 1961
State Bar Councils
The Bar Council of India
Different Level of Courts
 The Supreme Court
 High Courts
 Subordinate Court
Conclusion
HISTORICAL PRESPECTIVE OF LEGAL PROFESSION
Mastering the lawless science of our law,
That codeless myriad of precedent,
That wilderness of single instances,
Through which a few, by wit or fortune led,
May beat a pathway out to wealth and fame.1
– Lord Tennyson
Introduction
The Legal Profession as it exists in India today had its beginnings in the first years of British rule.
The Hindu pandits, Muslim muftis and Portuguese lawyers who served under earlier regimes had
little effect upon the system of law and legal practice that developed under British administration.
At first, the prestige of the legal profession was very low. From this low state and dis-repute the
profession developed into the most highly respected and influential one in Indian society. The most
talented Indians were attracted to the study and practice of law. The profession dominated the
public life of the country and played a prominent role in the national struggle for freedom. "There
was no movement in any sphere of public activity educational, cultural, or humanitarian in which
the lawyers were not in the forefront."2 However, after independence the relative prestige and
public influence of the profession declined.
This project will attempt to sketch the rise of the profession from its low state during the first
hundred years, to explain the sources of its respect and influence, to recount its accomplishments
and contributions to the national life and, finally, to suggest some factors leading to its decline.
The history of the legal profession in India begins with the establishment of the first British court
in Bombay in 1672 by Governor Gerald Aungier.3 The first Attorney General appointed by the
Governor was George Wilcox, who "was acquainted with legal business and particularly in the
administration of estates of deceased persons and granting of probate." 4There was much work of
1
Glanville Williams, Learning the Law, Sweet & Maxwell Ltd., London, Eleventh Edition, 2010, p. 67.
2
K. N. KATJU, THE DAYS I REMEMBER ii (1961).
3
P. B. VACHHA, FAMOUS JUDGES, LAWYERS, AND CASES OF BOMBAY 8 (1962), and C. FAWCETT,
THE FIRST CENTURY OF BRITISH JUSTICE IN INDIA 57 (1934), disagree about whether the court functioned
before 1677.
4
VACHHA, supra note 2, at 8.
this type at Bombay. Wilcox made provision for parties to be represented by attorneys and fixed
the "councilor’s fee at a little more than Rs. one."5
At the inaugural procession of the Court of Judicature there were "fower [four] Attorneys or
Common pleaders on foot."6 These men were probably Portuguese and Portuguese Indian,7 since
the Portuguese had ruled Bombay and administered their law there from 1534 to 1668, and
Portuguese civil law remained in force under the British until Aungier's administration. One of the
four, Simeo Sarrao (Ceron) acted as legal advisor to the Company and dominated the Court since
he was the only one who had legal training and experience. "People were forced to use his advice
in difficult disputes."8 He was so learned in law that he confounded the untrained judges with many
references and learned opinions which they had no way of verifying.9 He was finally dismissed by
the governor for "Cheats" after a petition had been lodged against him.
Besides these attorneys there were what Malabari calls "a plague of speculative solicitors" in
Bombay during Aungier's time. The Governor referred to them in a letter to the newly appointed
judge:
So, we would have you take care that vexations [sic] suites and contrivances layed by common
Barristers to disturb ye quiet of good people may be discouraged and prevented. And let ye judge
know from us that we expect he maintain gravity, integrity, and authority of his office; and that he
doth not bring disrepute on the court of Bombay by lightness partiality, self-seeking, or
countenancing common Barristers in which sort of vermin they say Bombay is very unhappy.10
Malabari correctly noted that the word "Barrister" was a misspelling for the word "barritor," one
who stirs up litigation. These common barritors seemed to find plenty of business and probably
acted as professional bond writers and drew up sale deeds, leases, and mortgages. 11 In order to
control such barritors and attorneys who claimed to have special knowledge of the law, Aungier
requested the East India Company to send a Judge Advocate, learned in law. But the Company
5
FAWCETT, supra note 2, at 53.
6
7
FAWCETT, supra note 2, at 62. The few Portuguese lawyers who continued under the British were gone before
the profession had developed very much, and there is no visible carry-over from Portuguese tradition in later
practice
8
Id. at 44.
9
VACHHA, Supra note 2, at 10.
10
B. M. MALABARI, BOMBAY IN THE MAKING 154 (1910
11
FAWCETT, supra note 2, at 68
turned down his request stating that it would do "more harm than good, especially in the stirring
up of strife and contention."12 The Company tried to discourage the growth of the profession
because the directors believed that more lawyers would bring an increase in law suits and foment
more disputes in the colonies.'13
The Company's attitude of contempt for the legal profession reflected the disreputable state of the
bench and bar in England during the years of the Restoration. The High Court under William
Scroggs and Jeffreys had sunk to its lowest depth's.14 The Company not only refused to send a
Judge Advocate, but resolved not to send out any attorneys or lawyers' clerks, and instructed the
Bombay Council "to encourage litigants to manage their own cases" and "to admit of one
Sollicitors or Attorneys to plead or manage causes in our Courts, but such as you shall first of,
upon your knowledge of them to be men of good and honest reputation."15
Thus, as early as 1674 we note that attorneys are practicing, that they have a bad reputation, and
that their admission (and restriction of their number) is placed in the hands of the Governor and
council and not with the court. The usefulness of the profession was not yet recognized, nor was
it to be for many years. The charters and rules of the Court of Judicature and the later Mayor's
Courts do not mention the profession and so for a hundred years the profession developed
haphazardly, without direction, regulation, or proper recognition.16
The fact that none of the early attorneys had legal training did not add to the prestige of the
profession. Some of those who practiced were members of the clerical staff of the court and acted
as agents for parties in the court.17 Other attorneys seem to have been business men. Describing
the early courts Charles Lockyer wrote, "Lawyers are plenty, and as knowing as can be expected
from broken linen drapers and other cracked tradesmen who seek their fortunes here by their
wits."18 Probably the most competent of these untrained attorneys were Company servants
appointed to act as attorneys. Some of them had studied "something both in Civil and common
law."19 "Although they were no more than ordinary covenanted servants in the beginning appointed
12
VACHHA, supra note 2, at
13
14
VACHHA, supra note 2, at 17
15
16
Id. at 171.
17
Id. at 191.
18
J. W. KAYE, THE ADMINISTRATION OF THE EAST INDIA COMPANY 322n
19
VACHHA, supra note 2, at 8
primarily to the cases of the Company, they took up individual cases beyond the sphere of their
official duty.... "20
The first man with legal training to be sent to India was Dr. John St. John, appointed by the
Company in 1684 to be Judge of the Admiralty Court. For a time, he also acted as Judge Advocate
of the Court of Judicature. There was much disagreement concerning his powers of jurisdiction
and his refusal to subject the ideals of justice to the interests of the Company.21 After two years he
was dismissed by Josiah Child from the post of Chief Justice and replaced by John Vaux, a factor
who had no legal training.22 The Company approved this action and issued a statement that judges
should hereafter "behave themselves to the satisfaction of our General and Council" or to be
replaced.23 Since the bar usually is improved by a strong, well-educated bench, this serious blow
to the court in Bombay was detrimental to the development of the legal profession.
As the courts developed, so did the legal profession. In Madras and Calcutta there were no legal
practitioners prior to the establishment of the Mayor's Courts in 1726 although two trained lawyers,
John Biggs (1687-89) and John Dolben (1692-94), had served as judges.24 In Madras, there were
four attorneys at the Mayor's Court in 176425 and the same number at Calcutta in 176926. Although
a great number of Indians took their legal business to these courts, there were no Indian attorneys
during this period.
The Mayor's Courts, established in the three presidency towns, were crown courts with right of
appeal first to the Governor in Council and, if necessary, over him to the Privy Council. The
Mayor's Courts improved the quality of justice and gave more prestige to the pleading of cases.
However, the need to have legally trained judges and lawyers was still not realized by the
Company. The lack of law libraries and a properly trained profession was often evident. Describing
the court at Madras, Wheeler writes "It puzzles the most celebrated lawyers there to find rules in
20
B. B. MISRA, THE JUDICIAL ADMINISTRATION OF THE EAST INDIA COMPANY IN BENGAL, 1765-
1782 (1961).
21
22
Id. at 124-26 and MALABARI, supra note 9, at
23
FAWCETT, supra note 2, at
24
Id. at 211.
25
H. D. LOVE, VESTIGES OF OLD MADRAS, 1640-1800, at 139
26
MISRA, supra note 19, at 137 n.
the statute laws."27 As the mayor and aldermen who sat on these courts had no legal training, were
elected to short terms, and were very busy men, they had neither the skill nor time to gain
knowledge of the law.
The attorneys seem to have gained more influence than the bench. The Madras Council explained
this situation to the Company in 1791:
As the colony increased with the increase of commerce and of territory causes multiplied
and became more complex. The judges now felt the want of experience, and even of time
sufficient to go through their duties. New points constantly arose which required legal as
well as mercantile knowledge: men who professed or pretended to this knowledge were
therefore introduced as attorneys and obtained considerable influence in Courts where the
judges pretended to no legal skill.28
During this period two principles concerning the profession were established. The right of an
attorney to protect the rights of his client in spite of opposition from council members or the
governor was upheld for attorneys in each of the Mayor's Courts. A Mr. Henry Rumbolt, attorney
of the Mayor's Court, Madras, had been ordered home to England after acting in cases against the
Governor. The Company allowed him to "return to Madras as a Free Merchant and directed that
... he should be employed as Attorney in all cases where the Company was concerned." 29 A few
years later in 1735 John Cleland, an attorney registered with the court at Bombay, conducted a
vigorous suit his client against Henry Lowther, a member of the Governor's Council. In spite of
the opposition of council members and a move by the Governor to transfer him to another factory,
Cleland stood firm and was supported by the Company which commended him to the Governor:
"You must encourage him and all our servants while they behave well in their several places."30
Several other similar cases occurred. In 1769 Richard Whiteall, attorney at Calcutta, was dismissed
by the court without charges or cause. His appeal to the Council was not accepted. But when he
27
J. T. WHEELER, MADRAS IN OLDEN TIMES-EARLY RECORDS OF THE BRITISH IN INDIA 127 (1878).
See VACHHA, supra note 2, at 16
28
29
Id. at 221-22.
30
Id. at 221.
appealed to the Company, the directors instructed the Council to hear his appeal. It was heard and
accepted.31
While upholding the rights of these attorneys the Company did "express their disapproval of the
spirit that often led the courts to side against the interests of the Company, 'that affected
independency which we are informed has crept in among the young Aldermen and Attorneys in
the Mayor's Court.'"32 Perhaps the most independent of all these attorneys was Charles Bromley
of Madras. He was "generally found in opposition to the government." He had opposed the
Company's Quit Rent policy.33He had aided the commander in chief, Sir Robert Fletcher, in
deposing Governor Pigot and defended Fletcher and his associates at the trial in 1777.34 Thus
defense of individual rights and an independent, even antigovernment attitude were evident in the
profession long before it included any Indians.
The second principle established during the period of Mayor's Courts was the right to dismiss an
attorney guilty of misconduct. For example, the Mayor's Court of Madras dismissed Attorney
Jones, a troublesome man who had tried to get a monopoly on the fishing trade in Madras and had
had his servants assault a competitor. The court charged that he had worked through his employee
or "Dubash" to encourage litigation, and they took the following action:
The notoriety of the charges alleged against Mr. Jones, besides his contemptuous Behavior
toward the Authority of this Government on a former Occasion, rendered it, in our Opinion,
proper to inflict some mark of our displeasure upon him, and at a Court of Appeals held
the 19th February We accordingly passed a Resolution incapacitating him from practicing
as a solicitor in that court.35
The Legal Profession in Pre-Colonial India
The structure of the judicial system that existed prior to Muslim rule in India was based on the
'Principles of Dharma'. In those days, the pattern of society was patriarchal, and the head of the
family or of the tribe or the kings generally settled disputes. In case of inter-tribal disputes,
31
MISRA, supra note 19, at 139
32
FAWCETT, supra note 2, at 223
33
LOVE, supra note 25, at 302
34
Id. at 116.
35
Id. at 303.
panchayats and assemblies comprising the respectable and elder member of tribes held the Courts.
In course of time when social life became more settled, the King took upon himself the function
of administering justice to his subjects and became the chief of the judiciary in the kingdom.
Appeals against the decisions of panchayats and local assemblies were generally made to the King,
who administered justice in person and was assisted by 'Dharma Guru' and his counsellors. The
system did not have any legal practitioners and the concerned parties used to represent their own
cases.
The judicial system of early Muslim conquerors in India remained operative, with some
modifications here and there, until advent of the British. However, the Mughal system of justice
was based on their requirements, religion and changing nature of the society. At the lowest level,
which is in the vil1ages, they continued the Hindu system of getting petty disputes settled by the
local panchayats. Generally, the parties were satisfied with their decision, which were mostly in
the nature of a compromise. In the towns, there were regular Courts presided over by the Qazi-e-
Parganah. This Court generally dealt with both civil and criminal matters and appeals against its
decisions lay to the District Qazi. The next unit of administration was District known as Sarkar.
In each District, there was a Qazi appointed to deal with civil and criminal cases. He also exercised
appellate powers hearing appeals against the decisions of the Qazi-e-Parganah. Appeals against
his decisions lay to the Adalat-Nazim-e-Parganah. Appeals against his decisions lay to the Adalat-
Nazim-e-Suhah. There was another Court, which was known as the Governor's Court. It was also
presided over by the Governor and it exercised only original jurisdiction. Appeals from the
decisions of these lower Courts would lie to the Emperor's Court and the Chief Justice's Courts.
There was also a Court presided over by the Qazi-e-Suhah. This Court possessed original as well
as appellate jurisdiction. Appeals from these Courts were heard by the Governor's Bench, Adalat-
e-Nizim-e-Suhah and the Qazi-ul-Quzat. In the Province, the revenue Court was presided over by
the Diwan, who possessed both appellate as well as original jurisdiction. Appeals from this Court
lay to the Imperial Diwan. In the imperial capital the Emperor's Court possessed original as well
as appellate jurisdiction and was presided over by the Emperor himself. There was also a Supreme
Court known as Diwim-e-Mazalim, which, in addition to original and repellant jurisdiction also
possessed revisional jurisdiction. This was presided over by the Emperor. There was yet another
Court at the imperial capital presided over by the Qazi-ul-Qazat, which possessed original,
appellate and revisional jmisdiction in canon law matters. The revenue Court presided over by the
Diwan-e-Ala exercised only appellate jurisdiction.
The legal profession as it exists today has its roots in the initial years of British rule. The Hindu
pundits, Muslim muftis and Portuguese lawyers who served under earlier regimes had little effect
upon the system of law and legal practice that developed under British administration. At first, the
prestige of the legal profession was very low. From this low state of dis-repute the profession
developed into the highly respected and influential profession in Indian society. The most talented
Indians were attracted to the study and practice of law. The profession dominated the public life
of the country and number of lawyers played a prominent role in the national struggle for freedom.
However, after independence the relative prestige and public influence of the profession declined.
The above-mentioned judicial system did not admit of legal practitioners, as we understand in the
modem sense. There' was no machinery as such for induction land control of legal profession.
However, institution of Muftis, though unregulated, developed during the Mughal period. Their
assistance was particularly required in criminal cases. The Muftis, who were attached to Court and
were in fact the law officers of the Government, expounded the law in the light of which the
presiding officer of the Court pronounced the sentence.36
The Legal Profession in British India
The legal Profession, as we know today in India, derives its origin from the period of British India.
The earliest form of lawyers in those areas of India that came under the governance of the British,
were called Barristers-at-Law. They acquired their legal education and training from British
institutions or Inns of Courts. These Barristers had a right of audience in all British Courts and by
virtue of the same, in all Courts in British ruled India.
Although the British, for the administration of justice, established various kinds of Courts, no clear
provision was made regarding lawyer’s judges or legal professionals till the establishment of the
Presidency Court at Calcutta. Clause 11 of the Charter of 1774 empowered the Presidency Court
'to approve' only the English and Irish barristers and members of the Faculty of Advocates in
Scotland or British attorneys. No Indian had the right to appear before the Court. Similar
36
The Report of the Law Reform Commission 1967-70, published by Ministry of Law and Parliamentary Affairs,
Government of Pakistan, 1970, p. 57.
discrimination was made later in the charters establishing Presidency Court at Bombay and Madras
which kept Indians out of the profession.
Lord Cornwallis in 1793, by regulation VII, authorized the Sardar Diwani Adalat to enroll pleaders
for the Company's Courts in Bengal, Bihar and Orissa, under this regulation only Hindus and
Muslims could be enrolled as pleaders. Pleaders were empowered to act as arbiters and give legal
opinions, by Bengal Regulation XXVII of 1814. Subsequently, Bengal Regulation of 1833
empowered the Sardar Diwani adalat to enroll any qualified person as pleader irrespective of his
nationality or religion.
When Provincial Courts were created in India under the Letters Patent from the Crown, they started
enrolment of advocates entitled to practice in such Provincial Courts and also in the Courts
subordinate to them. The first Provincial Courts to commence such enrolment of advocates were
at Bombay, Calcutta and Madras. This was the beginning of the control of legal professionals
through formal enrolment by these Provincial Courts. The Letters Patent of Provincial Courts of
Madras, Bombay and Calcutta empowered them to admit advocates, Vakeels and attorneys and to
lay down rules for the qualification and eligibility etc for such admission.
Later, the Courts at Allahabad, Lahore, Nagpur and Patna were also invested with the same powers
under their respective Letters Patent. Even the right of Barrister-at-Law to appear in the Provincial
Courts, or in the Courts subordinate to it, was based on the enrolment as an advocate and not
otherwise.37
The earliest enactment for the regulation of legal professionals was the Legal Practitioners Act (I
of 1846). This law was enforceable in Madras and Bombay Presidencies. Every barrister of any of
Her Majesty's Courts of Justice in India was entitled to plead in any of the Sadar Courts of the
East India Company.
The law allowed private agreements in relation to remuneration to be paid for professional services
between pleaders and their clients. The pleaders, however, were not required to specify such
agreement in the power of attorney (vakalatnama). Such private agreements were enforceable
37
Paras 7 and 8 of the Letters Patent of the High Courts of Allahabad, Lahore, Nagpur and Patna. See 'The Law
Relating 10 Legal Practitioners' by P.R Iyer, N.M. Tripathi Ltd., Bombay, 1951 pp. 182-183.
through regular suits. The Act also allowed remuneration to the pleaders for rendering opinions in
legal matters38.
Another enactment, which was applicable in Madras and Bombay, extended a right to a pleader to
the effect that he was not bound to attend Court except at the hearing of a case in which he was
employed. Every attorney on the role of any of Her Majesty's Supreme Courts of Judicature in
India was entitled to Plead in any of the Sadar Courts of East India Company including all
subordinate Courts.39
In 1846 the Legal Practitioners act enabled all persons of good character and required
qualifications, to be pleaders. Attorneys and barristers were authorized to appear in the Sardar
adalat and pleaders were permitted to enter into agreement with the clients for their fee. This Act
allowed the barristers and attorneys to appear before any of the Courts of the Company. They were
entitled to appear and plead before the Court subject to its rules and directions. Similar provisions
were made in the letters patents establishing the Presidency Courts at Calcutta, Bombay and
Madras.
The Mofussil Courts
From 1772 in Bengal and later in other places, the British undertook to administer justice to the
occupants of their territories outside the presidency towns. In each presidency a dual hierarchy of
civil and criminal courts (adalats), altered from time to time, for the mofussil or back-country, with
a Sudder (chief) Court at the apex, existed from the late 18th century until they were merged with
the Supreme Courts into a unified system after 1860. The law applied in these courts included an
admixture of Muslim and Hindu law with the Regulations and the common law. The inferior judges
were mostly Indian, but the Sudder Courts were staffed by British civil servants. The lawyers were
entirely Indian both below and (until 1846) in the Sudder Courts. The legal profession in these
courts developed with little contact with that in the Supreme Courts in the presidency towns40.
In contrast to the courts in the presidency towns, the legal profession in the mofussil was
established, guided and controlled by legislation soon after its inception. Legal practice as carried
38
Section 4 of the Legal Practitioners Act, 1846. At that time, India was administered by the East India Company.
39
The Legal Practitioners Act (XX of 1853), Section 2.
40
[On the system of adalats, see JAIN, supra note 35, at chs. VI, IX-XIV. On the law applied there, see Galanter,
The Displacement of Traditional Law in India, J. SOCIAL IssUES (1968).]
on by Indian vakils and agents prior to 1793 was neither recognized nor controlled by the Dewanee
courts.41 Even before 1772 vakils had been appearing for litigants in the zilla courts of the
Nabobs.42 There were no laws concerning their qualification, relationship to the court, mode of
procedure, or ethics of practice. There was little order; vakils pleaded cases by "simultaneous
exchange of questions and answers." Clients would sometimes silence their vakil in the midst of
pleadings and act themselves or have another agent take up the argument.43
There were two kinds of legal agents: untrained relatives or servants of the parties in court and
professional pleaders who had, or to have, training in either Muslim or Hindu law. The Regulations
describe these untrained pleaders:
Equally with the first description of Vakeels, they were little versed in the laws and Regulations
of the country; and not having the protection of a public character, and their situations in the court
not being defined by any Regulations of Government, they were subject in the same degree to the
intrigues and assumed influence of the ministerial officers of the courts, and unable to protect their
employees from oppression and exaction.44
As there were no restrictions placed on these pleaders they were able to demand exorbitant fixed
salaries and then prolong a case by devious means to draw that salary as long as possible. 45 With
the great increase in Regulations, the frequent amendments and deletions, and increasing
complexity in the court procedure, it became harder and harder for persons to plead their own
cases, so they had to hire vakils who purported to have this knowledge.46
41
The rise of the profession is reflected by the evolution of the word "vakil." Vakil is an Urdu word meaning agent.
It was first used in Muslim law books in connection with marriage settlement. In the early British period vakil
meant a personal representative from a governor or general to the court of a Nabob or Raja. (2 FAWCETT, supra
note 2, at 363, 375.) It was also used referring to agents of the district collector, a zemindar, or high official-either
Indian or English (MISRA, supra note 19, at 163). In the context of the zilla courts under the Nabobs, vakil also
meant an agent representing a party in court of law. After regulation establishing pleading as a profession for
Indians, vakil means a pleader with legal training, and a license authorizing him to practice. When the High Courts
were formed in 1862 vakil meant one who had studied law in a university and had passed the High Court vakils'
examination. Later it came to mean the graduate of a university with an LL.B. degree who as a full-fledged advocate
can handle work without the help of counsel on either Appellate or the Original side. (P. S. SIVASWAMI AIYAR,
A GREAT LIBERAL 207 [Nilakanta K. A. Sastri ed. 1965].)
42
T. B. SAPRU, ENCYCLOPEDIA OF THE GENERAL ACTS AND CODES OF INDIA 176 (1938).
43
MISRA, supra note 53, at 164.
44
R. CLARKE, THE REGULATIONS OF THE GOVERNMENT OF FORT WILLIAM IN BENGAL 1793-1806
(1854). Regulation VII, pt. 1, ?1, of 1793.
45
Id.
46
MISRA, supra note 53, at 166
Bengal Regulation VII of 1793 brought order and some measure of quality to pleading and
endeavored to establish it as a respectable profession:
It is therefore indispensably necessary for enabling the courts to administer, and the suitors to
obtain justice, that the pleading of causes should be made a distinct profession; and that no persons
shall be admitted to plead in the courts but men of character and education, versed in the
Mohammedan or Hindoo law and in the Regulations passed by the British Government, and that
they should be subjected to rules and restrictions calculated to secure to their clients a diligent and
faithful discharge of their trusts.47
The Sudder Dewanee Adawlut was empowered by the Regulation to appoint as many pleaders of
the Muslim or Hindu religion as necessary, specifying the court in which they were empowered to
plead, and to take oaths from each pleader upon his joining the court. These pleaders were to be
selected from among the students of the Mohammedan Madrassa (college) at Calcutta and the
Hindu College at Benares and were to be men of good character. They were required to acquaint
themselves with the Regulations.
To regulate the profession a number of rules were laid down concerning receiving of retainers,
execution of vakalutnama and amount of fees, the number of lawyers who could be engaged for
each case, and distribution of fees. Causes for punishment of legal practitioners by fine,
suspension, and dismissal were listed in Regulation VII: disrespect of court, promoting and
encouraging litigious suits, fraud, willful delaying of suits, accepting gifts of more than the
authorized amount of fees from a client, or dropping a client after receiving a retainer. In cases
concerning suspension or dismissal the Sudder Dewanee Adawlut was to take the action only after
the charge had been proved. It also made legal agents liable to prosecution by their clients for
malpractice.
Besides providing for discipline of the profession the Regulation offered greater opportunities for
lawyers by requiring the appointment of Government pleaders. These Government pleaders were
to be paid at the same rate and had the privilege of working as private pleaders in other suits in
which Government was not a party.48
47
CLARKE, supra note 90.
48
Id.
Subsequent legislation concerning the profession followed the general pattern laid down in 1793.
The rather lengthy and detailed Regulation XXVIII of 1814 extended the provisions for licensing,
discipline, and removal of vakils to the Provincial Courts. Rules concerning fees, practice,
government pleaders, and malpractice were considerably more detailed than before. The new
sections of the 1814 Regulation indicate the kind of problems the courts were having with this
rising profession. Section VIII stipulated that pleaders must take precaution to ascertain the real
names of parties giving vakalutnama and would be liable for dismissal if a vakalutnama under a
fictitious name were accepted. Furthermore, the pleader was warned to study plaints before they
were filed and make sure that groundless, irrelevant points were not included, that useless
witnesses were not summoned, and that all exhibits were examined previous to being filed. If a
vakil continued, after warning, to produce irrelevant exhibits or witnesses he was to be fined Rs20
or made to forfeit his fee. Other provinces passed regulations almost identical to those of Bengal.49
Regulations provided that all pleadings were first to be completely written and then read out.50
Then the court could make inquiries clarify issues, and call witnesses if necessary. Richard
Temple, who served as a district judge before the Mutiny, described court procedure: "The
vernacular proceedings covered reams of country-made paper. These documents were read out by
native clerks with a distinctiveness and fluency which I had never known in any European
language. I dictated my orders to the clerks which were read out before being initialed by me." 51
Regarding the quality of the Indian pleaders, Raja Rammohun Roy reported to the Select
Committee of the House of Commons in 1831 that: "Many pleaders of the Sudder Dewani Adawlut
are men of the highest respectability and legal knowledge, as the judges are very select in their
appointment and treat them in a way which makes them feel that they have a character to support."
In the zilla courts, however, he stated, "Some respectable pleaders we met with, but proper persons
for the office are not always carefully selected and in general I may observe that pleaders are held
in a state of too much independence by the judges particularly in the interior courts which must
incapacitate them from standing firmly in support of the rules of the court."
49
Madras Regulation 10 of 1802, Bombay Regulation 14 of 1802, and Northwest Provinces Regulation 10 of 1803
made the same provision for appointment of vakils Regulation VII of 1793. Regulations very similar to Bengal
Regulation XVIII of were passed by Madras (Regulation 14 of 1816) and Bombay (Regulation 2 of 1817).
50
CLARKE, supra note 90, Madras Regulation XV, 1816.
51
R. TEMPLE, THE STORY OF MY LIFE 38 (1896).
Professional respectability was hard to come by in spite of continuous legislation to control
procedure and practice. Leaders such as Metcalfe and Elphinstone regarded lawyers as being the
most undesirable aspect of a legal system which they believed was as a whole quite unfit for India.
Elphinstone refers to "this institution, that mystery that enables litigous people to employ courts
of justice as engines of intimidation and which renders necessary a class of lawyers who among
52
the natives are great fomenters of disputes." Macauley described the lawyers of Bengal as
"ravenous pettifoggers who fattened on the misery and terror of an immense community."53 These
attitudes were shared by many: "The . . . whole public looked down upon [pleaders] as pests, but
they were constantly employed because they were the only available guides in the new legal
labyrinth." 54
In 1882 Malabari described the mofussil vakil as "a column of vapor issuing from an Ocean of
Emptiness .... He is brought alive by the Chief Justice, passes the day in the company of chuprasis,
and . . . vegetates."55 "His chemical composition is butter, brass and asafoetida." 56
He describes
the successful vakil as one who is in the hands of a Marwari broker, who does his business in
whispers in the corridors of the courthouse earning fees of Rs3 to Rs30. 57 However, we shall see
that some of these humble pleaders rose to be great and highly respected men, and that many of
their sons and grandsons became the great barristers, judges, and political leaders of India.
Besides the pleaders there were other legal agents, "employed. .. [as] inferior advisors or agents
called mukhtars to advise them more or less as solicitors."58 These men, though not licensed or
recognized by the courts, did most of the attorney work. In his report to the Select Committee of
the House of Commons in 1832 McKenzie stated that, though they were not included on the fees
schedule, many of the mukhtars acted as professional men.59
52
K. A. BALLHATCHET, SOCIAL POLICY AND SOCIAL CHANGE IN WESTERN INDIA 144 (1957).
53
KAYE, supra note 17, at 330.
54
P. SPEAR, Twilight of the Moghuls 95 (1951).
55
B. M. MALABARI, GUJARAT AND THE GUJARATIS 178 (1882).
56
Id. at 181.
57
Id. at 185.
58
59
Id.
William Hickey gives a graphic description of one opulent Memy churu Mulliah, a bania who had
worked in close association with a number of solicitors for many years. He may be regarded as the
prototype of the Indian nonlicensed solicitor:
This man had acquired an extraordinary efficiency in our laws so much so that he had for many
years been the advisor of all those who had anything to do with courts of justice and was competent
to tell them whether they had sufficient merits in their cases to justify the commencement of or
defence of a suit. He was also perfectly conversant with the distinction between an equitable and
a legal title, and was in the practice of sitting every evening in his own house for a certain number
of hours to hear the statements of the various persons that attended for the purpose of
accompanying him, for which it was said . . . that he made those suitors whose causes he espoused
and patronized amply repay him for his trouble and his time by exacting a very high percentage
upon whatever the amount recovered or saved might be.60
Although pleading before the civil courts was limited to admitted practitioners, the mukhtars
reaped a rich harvest by practicing in the criminal courts as well as acting as solicitors for the
pleaders.61 The mukhtars had enough persistence to survive the many regulations intended by
Cornwallis to make them unnecessary,62 the Legal Practitioners Act of 1846, and the formation of
the High Courts with the accompanying rules. The mukhtars were recognized and brought under
the control of the courts for the first time by Act XX of 1865, called the Pleader, Mukhtar, and
Revenue Agents Act.63 Revenue agents who worked in the revenue offices and courts were also
given status as legal practitioners by this Act.64 They were deemed to be the lowest in grade and
did not play a significant part in the development of the legal profession.
Act I of 1846 enabled the barristers to increase their influence and income by extending practice
to the Sudder Courts. "That every Barrister in any of Her Majesty's Courts of Justice in India shall
be entitled as such to plead in any of the Sudder Courts of the E. India Company subject to all the
rules in force in the said Sudder Courts applicable to Pleaders, whether relating to the language in
60
4 SPENCER, supra note 42,
61
62
Id. at 171.
63
5 SAPRU, supra note 88, at 176.
64
Id.
which the Court is to be addressed or to any other matter" (?5). The barrister could also practice
alongside the pleaders in the Small Cause Court65.
The Founding of the High Courts and their Effect
After the British Government assumed direct control of the territories of the East India Company
(1858), the separate systems of the Company's courts in the mofussil and the royal courts in the
presidency towns were consolidated into a unified judicial system in each of the three presidencies.
At the apex of the new system were High Courts, chartered by the Crown, established at Calcutta,
Bombay and Madras in 1862.66
The High Court bench was designed to combine the Supreme Court and Sudder Court traditions,
thus uniting the 'legal learning and judicial experience of the English barristers" with "the intimate
experience Indian customs, usages, and laws possessed by the civil servants."67 "At least one-third
of the judges, including the Chief Justice, were to be barristers of the United Kingdom; another
one-third to be recruited from the judicial branch of the Indian Civil Service and the remaining
places were made available to members of the subordinate judiciary, and Indian lawyers practicing
in the High Court."68
Each of the High Courts was given the "power to make rules for the qualifications of proper
persons as Advocates, Vakeels, and Attorneys at Bar." 69 The admission of vakils to practice before
the High Courts ended the monopoly that the barristers had enjoyed in the Supreme Courts and
vastly extended the practice and prestige of the Indian lawyers by giving them opportunities and
privileges equal to those enjoyed for many years by the British lawyers. This was not accomplished
without a struggle. The commissioners appointed to arrange the Sudder Court-High Court merger
had advocated that the High Court bench be exclusively British and the bar open only to barristers.
Judge Trevelyan, opposing such restrictions, argued that exclusion of Indians from the bench
would "nourish . . . class antipathies, and injure at once the state and the individual by depriving
the public of the service of the ablest men, preventing wholesome competitions, and unduly
65
0.TEMPLE, PRACTICE OF THE CALCUTTA COURT OF SMALL CAUSES
66
[On the establishment of the High Courts, see M. P. JAIN, supra note 35, at ch. XVI.]
67
68
Id. at 44.
69
ORMAND, supra note 40, ?9, at 123.
exalting some without reference to their personal merits and depressing others."70 His statement
of policy in regard to the. bar shows the spirit and intention of the merger was to make possible
the full development of the profession:
At present barristers, attorneys and vakils plead before the Sadr Court while barristers have
exclusive audience before the Supreme Court.... It would be hard to deprive the natives of the
privilege they have long enjoyed of employing a cheap and rapidly improving, though still
generally less efficient description of the agency; and I am confident that English barristers do not
require exclusive privileges to enable them to maintain their position. They are employed now by
all who can afford it and will continue to be so. The same objections exist to this limitation as to
that proposed in reference to the eligibility for the bench. We cannot afford the weakness
consequent upon social heart burnings. We want, for the improvement of all, the wholesome
influence of competition. A native Bar will gradually be formed, but it will be following the lead
and imitating the example of our English barristers71
Practicing side by side with British lawyers, the Indian vakils learned much of law, professional
ethics, and standards of practice. Vachha acknowledges the debt owed by the Indian profession to
the British.
It must be admitted that the development of law and the establishment of high standards of
professional conduct in the High Court, in the first instance, have been to a large extent due to the
example of British barristers who . . . brought with them to India what was most desirable in the
practice and traditions of the English Bar."72
Gopalratnam shows that this learning of the best British traditions by Indian vakils began a sort of
guru-disciple tradition:
Men like Sir V. Bashyam Ayyangar, Sir T. Mulhuswami Ayyar and Sir S. Subramania Ayyar were
quick to learn and absorb the traditions of the English Bar from their English friends and colleagues
in the Madras Bar and they in their turn as the originators of a long line of disciples in the Bar
passed on those traditions to their disciples who con-tinued to do the good work."73
70
2 B.S. BALIGA, STUDIES IN MADRAS ADMINISTRATION 346 (1960).
71
Id.
72
73
GOPALRATNAM, supra note 54, at 15.
Additional High Courts were established in Allahabad (1886), Patna (1916), and Lahore (1919),74
creating a demand for many more lawyers and stimulating the rapid growth of the profession. The
High Courts "affected the legal unity of the country and brought into being a class of legal
practitioners patterned alike on a national scale."75 The High Courts had an upgrading effect upon
the district and mofussil courts and bars. Many of the High Court judges encouraged leading
members of the High Court bar to practice in the mofussil courts and aided them by giving
adjournments. "This served a double purpose. It not only helped the pleader in promoting his own
prestige and practice; but more important, the effect of the presence and the methods of conducting
cases of experienced High Court lawyers, in the subordinate courts, would be to improve the
standards of practice in these courts." 76,77
Grades and Regulation of the Profession (1862-1962)
There were six grades of legal practice in India after the founding of the High Courts; advocates,
attorneys (solicitors),78 and vakils of the High Courts; and pleaders, mukhtars and revenue agents
in the lower courts. The High Courts set up standards of admission for vakils which were much
higher than requirements for the old vakil-pleader of the zilla courts. Vakil became a distinct grade
above the pleader.79
The Legal Practitioners Act of 187980 brought all six grades of the profession into one system
under the jurisdiction of the High Courts. Together with the Letters Patent of the High Courts the
Act formed the chief legislative governance of legal practitioners in the subordinate courts of the
country until the Advocates Act of 1961.
74
E. J. TREVELYAN, THE CONSTITUTION AND JURISDICTION OF COURTS OF CIVIL JUSTICE IN
BRITISH INDIA 71, 77, 78 (1923).
75
76
77
Some High Court judges, e.g., Justice Jenkins of Bombay, took an interest in activating the mofussil judiciary and
periodically deputed a judge to inspect the mofussil courts (VACHHA, supra note 2, at 86).
78
Provision was also made for attorneys to practice as advocates. An attorney who had served for ten years in the
High Court at Calcutta was entitled to appear and plead. With less than ten years’ service, an attorney could take an
examination which would entitle him to plead, if he had read for one year in the chambers of an advocate.
ORMAND, supra note 40, 217-23.
79
4 IMPERIAL GAZET1TER OF INDIA 155-56 (1909).
80
Act XVIII of 1879.
To be a vakil, the prospective lawyer had to study at a college or university, master the use of
English, and pass the High Court vakils' examination.'81 Admission requirements were gradually
raised so that by 1940 a vakil was required to be a graduate with an LL.B. from a university in
India in addition to presenting a certificate saying that he had passed in the examinations, read in
the chamber of a qualified lawyer, and was of good character.82
Though vakils were the lowest rank of the High Court practitioners their position was a most
honorable one and opened the way for promotion and wider practice. After ten years of service in
the High Court many vakils were raised to the rank of advocate (e.g. Sir Sunder lal, Jogernanath
Chaudri, Ram Prasad, and Motilal Nehru of the Allahabad High Court).83
In addition to their extensive appellate jurisdiction, the High Courts of the three presidency towns
also had an Original Side, whose jurisdiction included the major civil and criminal matters that
would earlier have been heard by the predecessor Supreme Courts. On the Original Side in these
High Courts, the grades of solicitor (attorney) and advocate (barrister) remained distinct.84 On the
85
Appellate Side and in the other High Courts, "every lawyer practices as his own attorney."
Attorneys and solicitors, therefore, practiced almost exclusively in the three Presidency High
Courts.86 Practice on the Original Side was both lucrative and prestigeous.
In Madras vakils began to practice on the Original Side as early as 1866. However, the barristers
were "handicapped" by this success of the vakils and in 1874 challenged their right to do Original
81
For example, Pandit Motilal Nehru never finished his college examinations, but he passed the High Court vakils'
examination in 1883 and became one of the most brilliant lawyers of his time. P. SuRI & A. PERSHAK, MOTILAL
NEHRU 4-6 (1961). Dr. Katju passed the High Court vakil's examination in 1906 after two years of college. He
passed the LL.B. examination a year later. KATJU, supra note 1, at 6-7.
82
ORMAND, supra note 40, at 240.
83
SURI & PERSHAK, supra note 127.
84
Setalvad gives an amusing account of one attempt of an advocate to practice without a solicitor. The hot-tempered
barrister, Anstey, once insulted a solicitor so rudely that all of the solicitors of Bombay decided not to give him any
briefs. He appeared in court having been instructed directly by a client. After two days of argu-ment the judges
refused to recognize his right to appear. He, therefore, persuaded a solicitor friend at the Madras High Court to move
to Bombay. Because of Anstey's reputation his new solicitor soon had more of the desirable legal business in
Bombay than the other solicitors. (C. H. SETALVAD, RECOLLECTIONS AND REFLECTIONS; AN AUTO-
BIOGRAPHY 9 [1946].)
85
KATJU, supra note 1, at 14.
86
Attorneys who had practiced before the Supreme Court of Judicature in England could be directly admitted into
the High Courts. Attorneys from Ireland could be admitted after passing an examination. Attorneys from other High
Courts were admitted if they had served a period of five years as attorney's clerk, and this was a requirement for
fresh candidates as well. A graduate of an Indian university, with five years service as as an attorney's clerk, was
admitted after paying a fee and passing the required examination. ORMAND, supra note 40, at 124.
Side work. The issue was brought up many times and finally in 1916 this right was firmly
established for the vakils.87 Vakils in Bombay and Calcutta could be promoted as advocates and
become qualified to work on the Original Side.88 By attending the Appellate Side and Original
Side courts each for one year a vakil of ten years service in the court was permitted to sit for the
advocates' examination. Mr. Setalvad did this and began a successful career on the Original Side
in 1906.89
The Indian Bar Councils Act of 192690 was passed with the two-fold purpose of unifying the
various grades of legal practice and providing some measure of self-government to the bars
attached to the various courts.91 The Act required that each High Court constitute a Bar Council
made up of the Advocate-General, four men nominated by the High Court of whom two should be
judges, and ten elected from among the advocates of the bar.92 The duties of the Bar Council were
to decide all matters concerning legal education, qualification for enrollment, discipline and
control of the profession.93 It was most favorable to advocates as it gave them authority, previously
held by the judiciary, to regulate the membership and discipline of their profession. 94 However,
these rules had to be in accord with the High Court rules.
After independence, there was a growing opinion that there should be one bar for all of India. This
is expressed by Chief Justice Mahajan:
With the setting up of the Supreme Court and the creation of Supreme Court Bar, the necessity of
having an all India Bar was strongly brought home to me. In the good or bad if you would like to
have it that way old days advocates of one High Court sometimes found it difficult to appear in a
case pending before another High Court. I have never been able to reconcile myself either to the
distinction between solicitors and advocates or between advocates practicing on the original side
and those on the appellate side. The prevailing business sometimes created amusing situations. An
87
GOPALRATNAM, supra note 54, at 123-24.
88
In Madras a similar provision to this was rejected by the vakils who as a body were struggling for rights and
position equal to that of advocates. SIVASWAMI AIYAR, supra note 87, at 273.
89
SETALVAD, supra note 130, at 18.
90
Act XXXVIII of 1926.
91
Women were allowed to practice as lawyers even prior to 1923. As their right to practice had sometimes been
questioned, it was clearly set forth in the Legal Prac-titioners (Women) Act of 1923. (Act XXIII of 1923).
92
Act XXXVIII of 1926.
93
SAPRU, supra note 88, at 175-76.
94
A. GLEDHILL, THE REPUBLIC OF INDIA: THE DEVELOPMENT OF ITS LAWS AND CONSTITUTION
2nd ed. 364 (1964).
advocate entitled to practice before the highest court in the country, the Supreme Court, could
easily be refused permission to appear in a lower court, the original side of a High Court. I was
keen on the creation of an all-India Bar and advocated its cause whenever I went on tours.95
To plan for the formation of an all-India Bar, a committee was appointed in 1951. They
recommended that all grades be done away with and that one integrated and autonomous all-Indian
Bar be formed.'96 The Advocates Act of 1961 was a great step in this direction.97 It repealed the
Legal Practitioners Act of 1879 and stipulated that no more pleaders be enrolled. Those already
practicing, who were law graduates, could become advocates by paying a fee of Rs250 to the Bar
Council. Even law graduates not practicing as pleaders were given opportunity to take an
advocates' examination, pay the fee and receive the grade. Pleaders who could not qualify were
allowed to remain practicing as previously.98
"Though the Act continues the dual system of advocates and attorneys prevailing in the High
Courts of Calcutta and Bombay, elsewhere it recognizes for the future only one class of legal
practitioner, advocates." 99 An advocate must have a law degree from an Indian university or must
be a barrister. He must pass a State Bar Council examination and then will be admitted to the bar
not by the court but by the bar association made up largely of advocates. Admission, practice,
ethics, privileges, regulations, discipline and improvement of the profession as well as law reform
are now all in the hands of the profession itself.100
The Legal Practitioners Act (XVIII of 1879)
Enrolment of advocates by these Courts was not free from difficulty. A need had arisen to regulate
the legal profession throughout India, particularly after the entire Indian sub-continent had been
subjugated by the British and brought directly under the sovereignty of the British Crown in 1858.
For this reason, a comprehensive law, the legal Practitioners Act, was passed in October 1879 to
consolidate the law relating to lawyers in India. Prior to this law, lawyers in India were described
by various nomenclatures like Advocates, Attorneys, Barristers, Solicitors, Vakils, Pleaders,
95
MAHAJAN, LOOKING BACK 213-14 (1963).
96
[MINISTRY OF LAW, INDIA, REPORT OF THE ALL-INDIA BAR COMMITTEE (1953).
97
Act XXV of 1961.
98
A. C. GANGULY, CIVIL COURT PRACTICE AND PROCEDURES 250 (1963).
99
GLEDHILL, supra note 140, at 365.
100
Id.
Mukhtars, Revenue agents and Private Pleaders. The act of 1879 defined these categories and
restricted their functions.
Every person entered as an advocate, attorney or vakil on the roll of any High Court under the
Letters Patent constituting such Court or enrolled as pleader in the Chief- Court of the Punjab, was
entitled to practice in all the Courts subordinate to the Presidency Court of one's enrolment. He
was also entitled to practice in all revenue offices situated within the local limits of the appellate
jurisdiction of the High Court concerned.
The Presidency Courts had power to make rules under this Act for qualification, admission,
discipline and certification of proper persons to be enrolled as pleaders and mukhtars of the
subordinate Courts.101
According to this enactment, the legal practitioners were divided into two main categories. (1)
Advocates, vakils and attorney fell into one category and belonged to the legal practitioners
practicing in a Presidency Court and Courts subordinate to such Presidency Court; and (2) pleaders
and mukhtars belonged to another class of legal practitioners who practiced only in subordinate
Courts.
The legal Practitioners Act of 1879 gave wide powers to the high Courts to enroll lawyers for
different Courts and also take disciplinary proceedings against them. It authorized all Presidency
Courts to make rules, with the prior sanction of the respective provincial governments with respect
to the qualifications and admission of proper persons as advocates and vakils of the Courts. Power
to dismiss the advocates, after giving them the opportunity to defend, was given to these
Presidency Courts.
The Presidency Courts were also authorized to make rules with respect to qualifications and
admission of pleaders and mukhthars for the subordinate Courts and revenue offices. Though
different Presidency Courts provided different qualifications for the pleaders and mukhthars,
generally former were trained in law & conduct themselves in the courts while the latter were not.
While pleaders could practice in all subordinate Courts, mukhthars were allowed to appear only
before the criminal Courts and at some places even before revenue officers.
101
To manage and invest the funds of the Bar Council.
A pleader or mukhthar could be suspended or dismissed by the High Court if he was convicted of
an offence implying a defect of character or if he was found guilty of fraudulent or improper
conduct in the discharge of his professional duties.
The Presidency Courts had the power to suspend or dismiss any pleader or mukhtar for
professional misconduct. Professional misconduct included taking instructions from someone
other than the one who had engaged him. fraudulent behaviour and solicitation for work, or to be
a tout. However, a pleader or mukhtar could not be suspended or dismissed unless he was allowed
opportunity of defending himself before the authority suspending or dismissing him.
The other development during this period was the Act of 1879. The act provided that no woman,
throughout British India could, by reason only of her sex., is to be disqualified from being admitted
or emolled as a legal practitioner or from practicing as such.102
Other important development was with regard to the right of the legal practitioners to sue for
recovery of their fees and be sued for any loss or injury caused due to any negligence in the conduct
of his professional duties.
The three-charted Presidency Courts added to the category of advocates and attorneys, the category
of vakils. The be former two categories were of persons qualified in England, while the later were
Indian Law graduates. However, under amended rules the Bombay and Madras
Presidency Courts had permitted even Indian law graduates to be advocates after passing a
prescribed test. While an advocate could appear on original as well as appellate side of these Courts
the vakil could not appear on the original side or even in appeals from original side. The Madras
Presidency Court had, however, done away with this distinction as early as 1886. Since in other
Presidency Courts there was no original side there was no practical difference between a vakil and
an advocate.
This Act also empowered an advocate or vakil on the roll of any High Court to plead before any
high Court with the permission of that Court. Similarly, attorneys were permitted to practice before
any subordinate Court in British India and also before any High Court. This enlargement of the
102
To provide for election of its members.
area of work for the advocates, vakils and attorneys, provided them mobility and also a chance to
come closer to their brethren at other places.
An important provision of the Act, which continues to exist even now, was section 36 which
empowered the District Judges, Session Judges, District Magistrates, Collector and the Chief Judge
of a Presidency Court to publish the list of touts. The touts could be debarred from entering the
premises of the Courts and could also be subjected to fine / imprisonment. In spite of this provision
and the concern shown by different legal reform committees, including the Law commission of
India, touts continue to flourish in the legal profession.
Although the Act of 1879 was a long step in streamlining the legal profession but there was great
incoherence and lack of uniformity. A major development in relation to the law practice for the
legal practitioners in India took place in 1926. A Central Act for the whole of India was passed in
the name of the Indian Bar Councils act (xxxvm of 1926). This law was applicable to the whole of
British ruled India, including Presidency Courts at Calcutta, Madras, Bombay.
The Indian Bar Councils Act, 1926

In 1926 Indian Bar Councils Act was passed. The most important step the Act made was the
establishment of a Bar Council for each Presidency Court consisting of fifteen members.
According to the rules of different Bar Councils, a barrister or attorney or a law graduate, after
training, could be admitted as an advocate. The application for the enrolment was presented to the
Bar Council, final decision was taken by the Presidency Court, which could refuse admission to
anyone. In addition to this full power was reserved to the Calcutta and Bombay Presidency Courts
to control admission of advocates on their original side.103
Power to take disciplinary proceeding on a reference from Presidency Court was given to the Bar
Council. To give full effect to the provisions of the Legal Practitioners Act 1923 which prohibited
discrimination on the basis of sex in the matter of enrolment, the Act of 1926 also provided that a
103
The Legal Practitioners (Fees) Act (XXI of 1926).
specific rule be made by every Bar Council that a woman will not be disqualified to be an advocate
on the ground of sex alone.104
From the provision of the Act of 1926 it is apparent that it did not achieve what was desired The
Bar councils were simply advisory bodies and the real powers were vested in the Presidency
Courts. Even the rules passed by the Councils required approval of the Presidency Courts. The
distinction between the advocate on original side and other advocates in Calcutta and Bombay
Presidency Courts was left untouched. Similarly, the attorneys were left undisturbed by 1ris act.
Nor it made any provision with respect to legal practitioners in subordinate Courts. Even the right
of an advocate of one Presidency Court to appear in other Presidency Court was subject to the
rules of Presidency Court.
It was provided that for every Court, Bar Council would be constituted in the manner provided
under the Act. Every Bar Council so constituted would be a body corporate having perpetual
succession and a common seal, with power to acquire and hold property and could sue and be
sued.105
Each Bar Council to be constituted under the said act was to consist of 15 members, composed of
the advocate-general, four nominees of the Presidency Court, of whom not more than two could
be judges of the Presidency Courts and the remaining ten had to be elected by the advocates of the
Presidency Courts from amongst their members. The qualifications laid down for elected members
of the Bar Council included that at least five out of the ten elected members had at least a standing
of 10 years at the Bar to practice in the Presidency Court for which the Bar Council was to be
constituted. The Chairman and vice chairman of each Bar Council were to be elected by the
Council itself.
The Bar Councils were to be rule-making bodies under this Act. The Bar Councils could frame
rules regarding the manner in which election of the members of the Bar Councils were to be held,
104
This Act was passed to abrogate the decision given by the Calcutta and Patna High
Courts in In re Regina Guha, I.L.R 40 Cal. 290 and In the Matter of Application by
Miss Sudarshan Subha Hazara, I.L.R. I Pat 104 respectively, by which they had
refused to admit women as pleaders.
105
The Indian Bar Councils act (XXXVIII of 1926), Section 1 (2).
the manner in which they had to be declared to have been elected, the manner in which the results
of the elections could be published, the terms of office of the elected and nominated members of
the Council, the filing of casual vacancies in the Council, the convening of meetings of the Council
and related matters, the manner of election to the office of chairman and vice chairman of the
Council, and other incidental and ancillary matters. However, the first rules under this law had to
be framed by the Presidency Courts but later on, the concerned Bar Councils could, with the
previous sanction of the Presidency Courts, amend such Rules.
The Bar Councils could also make byelaws consistent with the Act and the Rules framed there
under, particularly in relation to the appointment of ministerial officers and servants and
constitution of the committees of the Council.106
The primary functions of the Bar Councils were enrolment and discipline of the advocates.
However, the Bar Council had not been made autonomous in the matter of enrolment of advocates.
Every Presidency Court was empowered to prepare and maintain roll of advocates of the
Presidency Court. Provisions were made for maintaining inter-se-seniority amongst the advocates
of the Presidency Court with their right of pre-audience to be determined according to such
seniority. However, the Advocate General and the King's Counsel had pre-audience over all other
Advocates. The certificate of enrolment was to be issued by the Presidency Court and after such
enrolment; the Presidency Court sent a copy of the roll so prepared, to the Bar Council. All
alterations and additions to the roll made from time to time were also communicated by the
Presidency Court to the Bar Council.107
The Bar Council could, with the previous sanction of the Presidency Court, made rules for the
admission of persons to be advocates of the Presidency Court, but such rules could not affect or
limit the powers of the Presidency Court to refuse admission to any person as advocate at its
discretion. The rule-making power of the Bar Council was circumscribed to the matters like the
qualifications for admission as advocates and procedural matters like the form and manner of
applications, giving of notice by the Presidency Court to the Bar Council hearing of objections by
106
Ibid, Section 6.
107
Ibid, Section 6 and 7.
the Presidency Court and fees payable in respect of enrolment. The rights of women were
safeguarded and no woman could be disqualified for admission as advocate by reason of sex
only.108
Similarly, in the matter of disciplinary proceedings against advocates for misconduct, Bar
Council was subservient to Presidency Court. Only Presidency Courts were empowered to
reprimand, suspend or remove any advocate of the Presidency Court form practice who was
guilty of professional or other misconduct. Upon receipt of a complaint made to a Presidency
Court or Bar Council against an advocate for misconduct, the Presidency Court could either
summarily reject the complaint or refer the case for inquiry either to the Bar Councilor, after
consultation with the Bar Council to the Court of a District judge. The Presidency Court could
also, on its own, refer the case of any advocate for proceedings of misconduct.109
When a case was referred for inquiry to Bar Council it was inquired into by a tribunal of the
Bar Council, which would consist of not less than three and not more than five members of the
Bar Council, appointed for the purpose by the Chief Justice of the High Court. One of the
members of the tribunal so appointed would act as the president of the tribunal.110
The finding of the tribunal on inquiry referred to it was to be forwarded through the Bar Council
to the Presidency Court and the Presidency Court, on receipt of such finding, would fix a date for
hearing of the case. Before passing any orders in the case, the Presidency Court had to inform the
advocate, the Bar council and the advocate was given an opportunity of being heard. If the
Presidency Court reprimanded or suspended an advocate, then record of such punishment was
entered against his name in the roll of advocates of Presidency Court. But when an advocate was
removed from practice, his name was struck off the roll. The Presidency Court could, however, of
its own or on application made to it in this behalf, review any order passed against an advocate.
108
Ibid, Section 8.
109
Ibid, Section 9.
110
Ibid, Section 10,11.
An advocate was entitled to practice, as of right, in the Presidency Court in which he was enrolled,
before any tribunal or person legally authorized to take evidence, or before any oilier authority or
person before whom such advocate was entitled to practice under the law for the time being.111
Bar Councils were also empowered to make rules for the advocates in relation to their disciplinary
and professional conduct, legal education, training and examining, and investment and
management of the funds of the Bar Council.
It is noticeable from the provisions of the Indian Bar Council Act that the legal profession was not
made independent, though an initial step in this direction had been taken. The Bar Councils, which
were to be constituted under the Act, remained subordinate to the respective Presidency Courts
and had to function under their direction. One-third of the membership of Bar Council consisted
of nominated persons and its decisions could be easily over-ruled by Presidency Court.
Nevertheless, some autonomy was provided to the advocates under this law for the first time in
British ruled India. Two-third of the members of the Bar Council were elected which gave a voice
to the general body of lawyers in the country.112
The All India Bar Committee, 1951

The dissatisfaction with this kind of arrangement continued to mount among the legal practitioners
and got a new stimulus on the creation of the Supreme Court in 1950. The Advocates Act, 1951
gave a right to every advocate of the Supreme Court to practice in any high Court. But that was
not enough. Lawyer community wanted unified autonomous bar with no class distinctions among
lawyers. In view of their demand, the Government of India in 1951 appointed the all India Bar
Committees under the chairmanship of Justice S. R Das to report on the desirability of an All India
Bar and a separate Bar Council for the Supreme Court; abolition of the Distinction between
counsels and solicitors existing in Calcutta and Bombay high Courts; abolition of different classes
of lawyers; consolidation of the existing laws on the subject; and other connected matters.
111
Ibid, Section 12.
112
Ibid, Section 14.
The Committee in its report submitted in 1953, recommended creation of an All India Bar Council
with common roll of all advocates and also the Bar Council for states with larger autonomy. But
it did not feel the need for separate Bar Council for Supreme Court. It justified the continuation of
the distinction between counsels and solicitors in Calcutta and Bombay but recommended that all
other classes of practitioners be abolished and be put under one common nomenclature of
advocates, and that only law graduates should be enrolled as advocates.
No action was taken on the recommendations of the committee till they were again repeated and
endorsed by the Law Commission in 1958. To implement these recommendations a bill was
introduced in parliament in 1959, which became the Advocates Act, 1961.113
The Advocate Act, 1961

The Act, which extends to the whole of India, provides a federal structure for legal profession with
one category of lawyers known as advocates.114 It provides for a number of state Bar Councils and
Bar Council of India. An advocate is initially enrolled with a state Bar Council and the Bar Council
of India maintains a common roll of all the advocates in the country. No advocate can get himself
enrolled with more than one state Bar Council though certainly he can get himself transferred from
one state Bar Council to another and is also entitled to appear before any Court or tribunal
throughout the country.
State Bar Councils

The State Bar Councils are named after their states though there are few bar councils common to
two or more states and in some cases union territories have also been covered by a state Council.
National Capital territory of Delhi has separate Bar Council. Every state Bar Council has a
chairman and a vice-chairman elected by the Bar Council. The term of the elected members of the
state Bar Council is five years. Every state Bar Council has an executive committee consisting of
113
Fourteenth report of the Law Commission. (1950), p. 556-586.
114
An advocate may be designated as "senior advocate" if the Supreme Court or a High Court is of opinion that by
virtue of his ability he is deserving of such distinction. But for practical purpose all advocates stand in the same
position except that a senior advocate has a right of pre-audience over other advocates. Apart from that Bar Council
may, in the matter of practice, subject the senior advocates to restriction prescribed in the interest of legal
profession. (Sec. 6). It may be noted that even the distinction between attorneys and other advocates and between
advocates on original side and other advocates maintained by the Calcutta and Bombay High Courts has also been
lately abolished. (Act. 107 of 1976).
five members, an enrolment committee consisting of three members and one or more disciplinary
committees consisting of three persons (two of whom must be members and the third is a co-opted
advocate of ten years of standing). Bar Council may also constitute one or more legal aid
committees and such other committees, as it may deem necessary for the purpose of carrying out
the provisions of the Act. The function of a state Bar Council is
1. To admit advocates on its roll.

2. To prepare and maintain such roll.
3. To entertain and determine cases of misconduct against advocates on its roll.
4. To safeguard the rights, privileges, interests of advocates on its roll.
5. To promote and support law reforms.
6. To conduct seminars, organize talks and publish legal periodicals.
7. To manage and invest the funds of the Bar Council.
8. To provide for election of its members.
9. To perform any other function conferred on it under the Act.
10. To organize legal facility for the poor.
11. To do all other things necessary for discharging the foresaid functions.
Detailed provision have been made in the Act itself regarding disciplinary proceedings which are
conducted in a judicial manner and in connection of which councils possess powers of a civil Court
under the Civil Procedure code as regards summoning of witnesses, production of documents
issuing commissions, etc. the punishment may be reprimand, suspension or removal from the roll.
The Bar Council of India

The Bar Council of India consists of (a) the Attorney-General of India (b) the Solicitor-General
and (c) one member elected by each state Bar Council from amongst its members. There are elected
chairman and a vice-chairman of the Council. The term of the elected members is coterminous
with their membership of the state Bar Council except that ex-officio members of the state Bar
Council elected to the Bar Council of India cannot remain members for more than two years.
The Bar Council of India has an executive committee consisting of nine members elected by the
Council from amongst its members and a legal education committee consisting of ten members of
whom five are persons elected by the Council from amongst its members and five are coopted
from amongst person who are not its members. The Council may constitute one or more
committees if so necessary for the purpose of carrying out the provision of the Act.
Among the functions entrusted to the Bar council are:

(1) Laying down standards of professional conduct and etiquette for advocates and the
procedure to be followed by disciplinary committees of each state Bar Council,
(2) Promotion of law reforms,
(3) Supervision and control over state Bar Council,
(4) Promotion of legal education and laying down its standards,
(5) Recognition of universities whose degrees will qualify a person to be enrolled as an
advocate as well as recognition of foreign qualifications for the same purpose,
(6) Conducting of seminars and talks on legal matters and publishing of legal journals,
(7) Managing of its funds,
(8) Election of its members,
(9) Organizing legal aid to the poor,
(10) Recognition of foreign law degrees and,
(11) All other functions conferred by the Act or which are necessary for the discharge of the
aforesaid functions.
The Bar Council of India, and subject to its approval state Bar Council, have been given powers
to frame rules for the successful implementation of the provisions and objectives of the Act. The
foregoing provisions of the act materialize the long-held dream of the members of the legal
profession to have an all India Bar and professional autonomy. Not only that, the Act also achieves
other connected objectives' including the improvement of legal education and uniformity of
standards. So far, the state Bar Council and Bar Council of India have been doing good job in the
direction of achieving the objectives underlying the Act.115
115
Some attempts were made in 1976 by the government to curtail the autonomy of profession by making
government officials as ex-officio chairmen or vice-chairman of the councils and by including government
nominees into them. But the process was reversed in 1977 and status quo restored .
In the end the picture of the Courts, which has been depicted above, is that of important Courts
only in the administration of civil and criminal justice. There are many other Courts also dispensing
justice under various special laws and laws dealing with revenue matters. But as it is not possible
to mention them all here, nevertheless the outlines of the basic and primary judiciary have been
discussed above. Moreover, no matter of judicial nature decided by any other Court could escape
the special leave appeal jurisdiction of the Supreme Court. To that extent that principle of rule of
law, which requires equal justice to all, is protected in our present day judicial system.
Different Level of Courts
 The Supreme Court
The Supreme Court, located in New Delhi, is the highest Court of India. It consists of one Chief
Justice and 25 other judges to be appointed by the President of India from amongst the Indian
citizens who have been in one or more High Courts as judges for five years or advocates for ten
years in a High court or a distinguished jurist in the opinion of the President. A judge holds his
office up to the age of 65 years unless he resigns earlier or is removed through impeachment. The
jurisdiction and powers of the Supreme Court are very wide. Its jurisdiction may be classified as
below-
 Original
I. Exclusive original jurisdiction- in any dispute between the Centre and the States or the
States inters se.116
II. Original jurisdiction but not exclusive: - to enforce fundamental rights. 117
 Appellate- Ordinarily it has the jurisdiction to hear appeals against the decisions of the
High Court only on the certificate of the High Court,118 if:
I. In any proceedings substantive question as to the interpretation of the constitution is
involved, or
116
Art. 131.
117
Art. 32.
118
Arts. 132, 133, 134 and 136.
II. In civil proceeding if the case involves substantial question of law of general Importance
and the High Court think that the question needs Supreme Court ruling.
III. A criminal case is fit one to be heard by the Supreme Court.
In criminal matters an appeal can be filed even without the certificate of the High Court if the High
Court has sentenced a person to death, either after revising the orders of acquittal passed by a lower
Court or after withdrawing any case from the lower Court. Above all the Supreme Court can allow
an appeal by its special leave in any matter against the decision of any Court or tribunal in India
except tribunals relating to armed Forces.
 Advisory- The President may seek the advice of the Supreme Court in any matter of public
importance and also in the matters relating to treaties etc. executed before the
commencement of the Constitution.
Apart from these specific jurisdictions the Supreme Court has the power to review its own decision.
A law of Parliament may further enlarge the jurisdiction of the Supreme Court.
Apart from its power to hear appeal against the decisions of the High Courts the Supreme Court
has no administrative or supervisory powers over them or over other lower Courts. However, few
years back it has been empowered to transfer or withdraw cases from the High Courts.
High Courts
According to the provisions of the Constitution there must be a High Court for each state but a
common High Court may also be established for two or more states and also the jurisdiction of
any High Court may be extended to any Union territory. Every High Court consists of a chief
Justice and such other judges, as the President may from time to time deem necessary to appoint.
An Indian citizen who has been for ten years either in the judicial service or an advocate in any
High Court can be appointed as a judge and holds this office till the age of sixty-two years unless
he resigns or is removed.
Apart from protecting the existing jurisdiction of the High Courts the Constitution removes all the
restrictions on certain High Courts relating to revenue matter, which were in existence as a result
of the Act of Settlement. It also confers on all High Courts the power of issuing the five prerogative
writs for the enforcement of fundamental rights or even for redressal of substantial injury or
injustice.
Every High Court is a Court of record and can punish for its contempt. It has the power of
superintendence over all Courts within its territorial jurisdiction. The decisions of a high Court
and the laws laid down by it are binding upon all Courts subordinate to that High Court;
although for other High Courts and Courts subordinate to such other High Courts these
decisions or laws have only persuasive value
Subordinate Court
With respect to the lower Courts the Constitution only mentions that the District judges in the state
shall be appointed by the Governor in consultation with the High Court of the state and the judicial
servants below the rank of the District judge shall be appointed by the governor in accordance with
the rules made in consultation with the public service commission and the High Court of that state.
The High Court has been given full control over the District Courts and the Courts subordinate
thereto. Beyond this the constitution and organization of the large number of Courts spread over
the country has been left as it existed at the time of the commencement of the constitution and it
may be modified or formulated by tile various state legislatures within their own territories.
Because of the various laws on this aspect and the power of the state to make their own laws the
nomenclature and the jurisdiction, etc. of these Courts differ from state to state. Apart from the
High Court, the Parliament has full power with respect to the subordinate Courts within the Union
territories. Discussion of the whole position would extend beyond the purpose, aim. and scope of
this study.
Conclusion

Historical Prespective of Legal Profession

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Historical Prespective of Legal Profession

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Introduction

The Legal Profession in Pre-Colonial India

The Legal Profession in Pre-Colonial India

The Legal Profession in British India

The Mofussil Courts

The Founding of the High Courts and their Effect

Grades and Regulation of the Profession (1862-1962)

The Legal Practitioners Act (XVIII of 1879)

The Indian Bar Councils Act, 1926

The All India Bar Committee, 1951

The Advocate Act, 1961

State Bar Councils

1. To admit advocates on its roll.

The Bar Council of India

Among the functions entrusted to the Bar council are:

Different Level of Courts

 The Supreme Court

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