008 - Legal Profession and The Advocates Act, 1961 (228-262) PDF

LEGAL PROFESSION AND THE ADVOCATES ACT, 1961
A.N. Veeraraghavan*
Introductory
IT IS PROPOSED in this article to give a short history of the legal profession

for some years past and the circumstances that have led to the passing of
the Advocates Act 1961, and the provisions thereof conferring autonomous
powers on the Bar Council and the creation of a single class of practitioners
with right to practise in all the courts in India including the Supreme Court.
Short history
(/) King's courts
Law, as a profession, appears to have been in vogue in ancient India
though its concept was quite different from what it is today. The provisions
regarding the legal profession as they have existed for some years past, and
as they are today are the natural outcome of the legal system introduced by
the Britishers, and it would be sufficient for the present purpose to begin
the history of the profession from about the time when the Britishers came
to this country.
Courts of Record in the name of Mayor's Courts and Courts of Record
in the name of the Court Oyer and Terminer and Gaol Delivery were set
up in Madras, Bombay and Calcutta on the 24th of September, 1726 by
a Charter granted by King George I. They were authorised to frame rules
of practice. But there was no provision as to who could act or plead before
those courts. The language of the courts appeared to have been English.
The Mayor's Court at Madras ceased to function when Madras was captured
by the French. After the peace treaty of 1749, Madras was restored to
the East India Company. Then the Company surrendered the Charter
of 1726 and King George II granted to the Company a fresh Charter in
1755. By this Charter, the Mayor's Courts and the Courts of Oyer and
Terminer were re-established in the three settlements.
Thereafter pursuant to the Regulating Act of 1773, authorised by the
King's Charter or Letters Patent, the Supreme Court was established at
Fort William in Bengal through a Charter issued on the 26th of March, 1774.
The language of the court was English. Clause 11 of the Charter provided :
And we do hereby further authorise and empower the said

Supreme Court of Judicature, at Fort William in Bengal, to
approve, admit and enrol such and so many advocates and
* B.A., B.L., Secretary, Bar Council of India, New Delhi.

1972] LEGAL PROFESSION AND THE ADVOCATES ACT, 1961 229
attorneys at law as to the said Supreme Court of Judicature at

Fort William in Bengal, shall seem meet, who shall be attorneys
of record and shall be and are hereby authorised to appear and
plead, and act for the suitors of the said Supreme Court of
Judicature at Fort William in Bengal and the said advocates
and attorneys, on reasonable cause, to remove; and not other
person or persons whatsoever, but such advocates or attorneys,
so admitted and enrolled shall be allowed to appear and plead,
or act in the said Supreme Court of Judicature, at Fort William
in Bengal, for or on behalf of such suitors, or any of them.
The 'advocates' entitled thus, to appear were only the English and
Irish barristers and members of the Faculty of Advocates in Scotland; the
attorneys referred to were the British attorneys and solicitors. The cou:t
was thus an exclusive preserve for members of the British legal profession.
And Indian lawyer had no right of appearance in the courts.
When the Supreme Courts with the same jurisdiction and power were
established at Bombay and Madras later, the same powers for the enrolment
of advocates and attorneys-at-law were conferred on them. The Indians had
no right to appear before the courts.
(//) Company's courts

Prior to the rise of British power in India, in northern India, justice
was adminstered by courts established by the Moghul Emperors and ruling
Chiefs. The services of persons called vakils were available to litigants
in those native courts. But subsequent to the battles of Plassey and Buxar
when Lord Clive acquired from the Moghul Emperor the Diwani of Bengal,
Bihar and Orissa, the East India Company established civil and criminal
courts for the administration of justice in the mofussil areas outside the
town of Calcutta. For civil justice Sudder Dewanny Adawlat and for criminal
justice Sudder Nizamat Adawlat were set up. The language of these courts
was Persian.
The vakils practising before the Moghul courts appeared in the
Company's courts also till Bengal Regulation VII of 1793 created for the
first time a regular legal profession for the Company's courts. The Bengal
Regulation regulated the appointment of vakils or native pleaders in the
courts of Civil Judicature in the Provinces of Bengal, Bihar and Orissa
and gave powers to the Sudder Dewauny Adawlat to enrol pleaders for all
Company's courts, to fix the retaining fee for pleaders and to fix a scale
based on a percentage of the value of the property. Only Hindus and
Muslims could be enrolled as pleaders. Under the Bengal Regulation
XXVII of 1814, pleaders were empowered to act as arbitrators and give
legal opinions on payment of fees. The next important legislation was
the Bengal Regulation XII of 1833 which introduced a change in that only
persons duly qualified, to whatever nationality or religion they might belong,
could be enrolled as pleaders of the Sudder Dewanny Adawlat.
230 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 1 4 : 2
The Legal Practitioners Act, 1846, made three important changes

namely (1) the office of pleaders was thrown open to all persons of whatever
nationality or religion duly certified by the Sudder courts to be of good
character and duly qualified for the office; (2) attorneys and barristers of
any of Her Majesty's courts in India were eligible to plead in any of the
Sudder courts subject to the rules of those courts as regards language or
otherwise; (3) the pleaders were permitted to enter into agreements with
their clients for their fees for professional services. The Act did not affect
certain vakils entitled to appear before the village munsif and other authorities
specified under a Madras Code.
The Legal Practitioners Act, 1853, permitted also barristers and
attorneys of the Supreme Court not entitled till then, to be admitted as
pleaders in the courts of the East Indian Company, subject to all the rules
in force in the court relating to language and other matters connected with
pleadings. It was also provided that a pleader was not bound to attend
the court except at the hearing of a case in which he was employed.
Thus barristers and attorneys were empowered to practise in the
Company's courts while the Indian legal practitioners could not appear
before the Supreme Courts.
The position clearly underwent a change after the British Crown took
over the administration of the country from the Company and the Govern-
ment of India. Act, 1858, was passed. The Indian High Courts Act, 1862,
was enacted by the British Parliament authorising the setting up by Letters
Patent of High Courts in the several presidencies in place of the respective
Supreme Courts and the Sudder Diwanny Adawlats and Sudder Nizamat
Adawlats. Clause 9 of the Letters Patent of 1865 which replaced the earlier
Letters Patent creating a High Court in Calcutta, authorised it to approve,
admit and enrol advocates, vakils and attorneys. The persons so admitted
were entitled to appear for the suitors of the High Court and to plead or
act according to the rules made by the High Court or directions issued by
it. There was a similar provision in the Letters Patent issued for the High
Courts of Bombay and Madras. Several other High Courts came to be
established later.
(iii) The Legal Practitioners Act, 1879
The Legal Practitioners Act, 1879, which is in force today to a limited

extent and is applicable now only to a limited class of persons as stated
later in the article while dealing with the Advocates Act, 1961, was enacted
to consolidate and amend the law relating to legal practitioners in certain
states. All the different grades of the legal practitioners of the High Court
except the revenue agents were under the disciplinary jurisdiction of the
High Courts under this Act. The attorneys were under the disciplinary
jurisdiction of the High Courts under the Letters Patent. The revenue
agents were subject to the disciplinary authority of the chief controlling
revenue authority.
Section 4 of the Act empowered an advocate or vakil on the roll of

any High Court, or a pleader of the Chief Court of the Punjab to practise
in all the courts subordinate to the Court on the roll of which he was
entered and in all revenue offices situated within the local limits of the
appellate jurisdiction of such court subject to the rules in force relating to
the language of the court and also to practise in any court in British India
other than a High Court on whose roll he was not entered or with the per-
mission of the court in any High Court on whose roll he was entered and
in any revenue office. There was a proviso, however, to the effect that this
power would not extend to the original jurisdiction of the High Court
in a Presidency town.
Section 5 of the Act enabled an attorney on the roll of any High
Court to practise in all the courts subordinate to such High Court and in all
revenue offices within the appellate jurisdiction of such High Court and also
to practise in any court in British India other than a High Court on the roll
of which he was entered and in any Revenue Court. These two provisions
considerably enlarged the rights of the advocates, vakils and attorneys of
the High Court because they could practise their profession in all the
subordinate courts in India.
Section 41 empowered a High Court not established by a Royal Charter
to make rules from time to time, with the previous sanction of the provincial
government as to the qualifications and admission of proper persons to be
the advocates of the courts. Subject to such rules, they had the right to
enrol. Every advocate so enrolled was entitled to appear or plead or to
act, and plead for the suitors in that court, according to the rules made.
The High Court could dismiss any advocate so enrolled from practice but
not without allowing him an opportunity of defending himself.
In the chartered High Courts rules had been framed. The persons
who could be enrolled as advocates were barristers of England or Ireland
or members of the Faculty of the Advocates of Scotland. An additional
qualification by way of reading in chambers was also required. The
High Courts other than the Calcutta High Court allowed also persons who
were not called to the Bar to enrol as advocates. Rules had been made by
the High Courts other than the chartered High Courts. The rules of the
High Courts varied. In Madras a person who had taken a degree in law
was qualified to be admitted as a vakil if he passed an examination in
procedure and practice and underwent training with a practising advocate,
vakil or attorney for a year. In Calcutta the requirement for admission
of the vakil was that he should have been a graduate in Arts or Science,
taken a degree in law and served as an articled clerk with a vakil of five
years'standing. Similarly rules had been made by the other High Courts
also.
The Rules made by the different High Courts prescribed the qualifica-
tions for enrolment of attorneys. The Rules made by the Calcutta High
Court required that the person should have served an as articled clerk for
five years and passed certain examinations. In Bombay service as an articled
clerk for three years was sufficient besides passing of certain examinations.
The High Court was given the power, under section 6 to make rules
as to the qualifications, admission, and certificates, of proper persons to be
(a) pleaders of the subordinate courts and of the revenue offices, and (b)
to be mukhtar s of subordinate courts, and the fees to be paid for the examina-
tion and admission of such persons. The rules made by the different High
Courts regarding the qualifications of pleaders varied. In this connection
it may be pointed out that In re Regina Guha1 and in the Matter of Application
by Miss Sudarshan Subala Hazara2 the Calcutta and Patna High Courts
held that under the Rules made by the High Court under section 6, women
could not be admitted and enrolled as pleaders. To remove doubts
entertained as to the eligibility of women to be enrolled, the Legal Practit-
ioners (Women) Act, 1923, was passed to provide that notwithstanding
anything contained in the previous enactments or other provisions in this
regard, "no woman shall, by reason only of her sex, be disqualified from
being admitted or enrolled as a Legal Practitioner." Since this enactment,
women have been getting enrolled as legal practioners and the number has
been increasing year after year. Reference may be made to the rules in
Madras under which law graduates and graduates who passed the pleader-
ship examination if not enrolled in the High Court, could practise in all the
civil and criminal courts in any three contiguous districts, by getting enrolled
as 1st grade pleaders. Persons could get enrolled as 2nd grade pleaders
if they were graduates in Arts only and had passed the pleadership examina-
tion. They could practise in certain courts in any one district. Persons
admitted previously as revenue agents were continued under the proviso to
section 10.
A mukhtar could apply to be enrolled in any civil or criminal court
mentioned in the certificate issued. On enrolment he could practise in
the civil court referred to in the certificate and in the subordinate courts;
and subject to the provisions of the Criminal Procedure Code, appear and
plead in the criminal court within the limits of the above reflerred court
and its subordinate courts.
The High Court could suspend or dismiss any pleader or mukhtar
holding a certificate issued to him who was convicted of a criminal offence
implying a defect of character which made him unfit to be a pleader or
mukhtar as the case may be. It could also, after such inquiry, if it thought
fit, suspend or dismiss any pleader or mukhtar holding a certificate, guilty
of fraudulent or improper conduct in the discharge of his professional
duty, or in the other circumstances mentioned in section 13 of the Act. The
presiding officer of any subordinate court who on enquiry found that the
pleader or mukhtar should be dismissed or suspended, had to report to the
High Court, which could acquit or suspend or dismiss him
Section 27 empowered the High Court to fix and regulate from time
to time the fees payable by any.party in respect of his adversary's advocate,
1. I.L.R. 40 Cal. 290.
2. I.L.R. 1 Pat. 104f
pleader, vakil, mukhtar or attorney. Section 36 of the Act dealing with

touts, which will continue to be in force even after all the provisions of the
Advocates Act are brought into force, empowers district judges, sessions
judges, district magistrates and presidency magistrates, every revenue officer
not being below the rank of a collector of a district and the Chief Judge
of a Presidency Small Causes Court to frame and publish lists of persons
proved to their satisfaction by evidence of general reports or otherwise to
be touts. No person's name is to be included in any such list without
giving him an opportunity of showing cause against such inclusion. The
court or judge may exclude from the precincts of the court any person
included in such list. A person so named is punishable with imprisonment
or fine.
Persons enrolled as vakils were not entitled to act or plead on the
original side of the Calcutta High Court or to appear in appeals which arose
from the original side. Only advocates, i.e., the barristers, were entitled
to appear and plead on the original side on the instructions of an attorney,
and they were also entitled to appear on the appellate side. The same
was the position with regard to the original side of the Bombay High Court
also. But after some time even a person who was not a barrister was
permitted to be enrolled as an advocate, entitled to appear and plead on
the original side provided, however, that he was instructed by an attorney.
In the Madras High Court, the rules made in 1886 permitted vakils and
attorneys to appear, plead and act for suitors on the original side. The
insolvency rules permitted advocates to appear and plead in courts or in
chambers and an attorney to appear, plead and act in all proceedings. Under
these rules barristers and vakils could not act in the Insolvency Court.
Consequently in the Madras High Court there was no distinction between
barristers, vakils and attorneys as regards their right to appear and plead
on the original side. Thus the barristers ceased to have their special privi-
leges. In the other High Courts, there was no original side and as a result
no distinction between the advocates and the vakils of the High Court as
regards their respective rights to practise existed.3
Among other enactments4 concerning legal practitioners, one that
needs mention here is the Legal Practitioners (Fees) Act, 1926, which defined
the rights of legal practitioners to sue for their fees and their liabilities to
be sued in respect of negligence in the discharge of their professional duties.
Sections 3 and 4 provided that any legal practitioner who acts or agrees
to act for any person may by private agreement settle with such person
the terms of his engagement and the fee to be paid for his professional
service and that such legal practitioner should be entitled to sue for his
fees. Under section 5 he was also liable to be sued in respect of any loss
3. See, Report of the All India Bar Committee 13 (1953).

4. The Bengal Touts Act, 1942 (Bengal Act V of 1942); The Bombay Pleaders
Act 1920 (Act XVII of 1920); The Legal Practitioners (Bombay Amendment) Act, 1948;
The Legal Practitioners (Madras Amendment) Act, 1943, and the Legal Practitioners
(Madras Amendment) Act, 1944.
234 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14 :2
or injury due to any negligence in the exercise of his professional duties.
(iv) The Chamier Committee and the Indian Bar Councils Act, 1926
Dissatisfaction was expressed about the distinction that existed between

barristers and vakils, and the special privileges enjoyed by the British
barristers and solicitors. Consequently, the Government of India had
to constitute in November 1923, the Indian Bar Committee known as the
Chamier Committee, under the Chairmanship of Sir Edward Chamier for
reporting on :
(/) The proposals made from time to time for constituting an Indian
Bar, whether on an all India or provincial basis, with particular
reference to the constitution, statutory recognition, functions
and authority of a Bar Council or Bar Councils, and their
positions, vis-a-vis High Courts.
(//) The extent to which it might be possible to remove the existing
distinction enforced by statute or practice between barristers
and vakils.
On the question of the continuance of the dual system in Calcutta
and Bombay, the Chamier Committee was sharply divided and hence it
did not make any recommendation. The significant recommendation
of the committee was as regards the establishment of Bar Councils for the
High Courts.
(v) The Bar Councils Act, 1926

Passed with a view mainly to implementing some of the recommendations
of the Chamier Committee and to consolidate and amend the law relating
to the legal practitioners, the Indian Bar Councils Act, 1926, received the
assent of the Governor-General on 9th September, 1926. Bar Councils were
constituted in the different provinces on different dates in and after 1928.
The Act introduced, inter alia, two main changes. Firstly, it made
separate provisions for advocates while the Legal Practitioners Act of 1879
continued to be applicable to other legal practitioners, and in so far as it
related to touts. Secondly, it provided for the constitution of a separate
Bar Council as a corporate body for every High Court.
Every Bar Council was to comprise fifteen members, with the Advocate-
General as an ex-officio member, and four members nominated by the High
Court, and ten members elected by and from amongst advocates of the
High Court. With reference to the High Courts of Fort William in Bengal
and Bombay, a certain proportion of the members had to be advocates
entitled to practise on the original side, and out of them a number fixed
by the High Court had to be the barristers of England and Scotland. The
Advocate-General in the Bar Councils of Madras, Bobmay and Calcutta
was to be ex-officio Chairman. The term of the Bar Council was for a
period of three years.
The High Court had to prepare and maintain a roll of advocates,
vakils, and pleaders entitled as of right to practise immediately before the

date when section 8 of the Act was brought into force and of all others
admitted thereafter as advocates. While with reference to advocates the
date of admission as advocates was the date for seniority, with regard to
barristers it was the date of call to the Bar if it was earlier.
While the roll was maintained by the High Courts, section 9 authorised
the Bar Council, with the previous sanction of the High Court, to make
rules to regulate the admission of persons to be advocates, to prescribe
the qualifications of persons applying for admission as advocates, to regulate
the admission of advocates by rules as their qualifications and the hearing
of objection by the High Court preferred on behalf of the Bar Counil to
the admission of any person, and the fee payable to the Bar Council. How-
ever, the rules were not to limit or in any way affect the power of the High
Court to refuse admission to any person in its discretion. The Act made
a provision, as under the Legal Practitioners (Women) Act 1923, for a
specific rfile to be made that a woman shall not be disqualified for admission
as an advocate by reason only of her sex.
The Act also reserved the rights of the High Courts of Fort William
in Bengal and at Bombay to prescribe the qualifications of persons applying
to practise in the original jurisdiction of the High Court, or refuse, as it
thinks fit, any such application or to prescribe the conditions under which
such persons shall be entitled to practise or plead.
The qualifications for admission as laid down under the rules permitted
inter alia those who had taken a degree in law and barristers and attorneys
to be enrolled. The rules in some Bar Councils provided for a period of
training as a pupil for a year by way of compulsory attendance at the
chambers of the master (an advocate of a certain years' standing), main-
tenance of diaries, attendance at lectures and passing of examinations
conducted by the Bar Councils. The rules in this regard varied in the
different Bar Councils.
An applicant for enrolment had to pay a stamp duty for the entry
in the rolls as provided for under the Indian Stamp Act. While the papers
of the applicants for enrolment had to be presented to the Bar Councils,
the enrolment was actually moved before the High Courts after the certi-
ficates were issued by the Bar Councils.
Section 14 of the Act empowered an advocate to practise :—
(/) in the High Court where he was enrolled, subject to the rules
or conditions to be made by the High Courts of Fort William
in Bengal and at Bombay regarding persons practising in the
High Courts, and in the exercise of their original jurisdiction,
(/'/') in all subordinate courts and tribunals in India (whether in the
High Court where he was enrolled or not).
Where rules had been made by any High Court under the General Clauses
Act or by a Bar Council under section 15 of the Act regulating the conditions
subject to which such advocates of other High Courts could practise, they
were permitted to practise subject to such conditions.
236 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 14 : 1
The rules so made were generally to the effect that an advocate on
the roll of any other High Court could be specifically permitted by the
Chief Justice or the Bench hearing a case to appear and plead in that case.
The power of the High Courts of West Bengal in Fort William and at Bombay
to make rules as to persons who shall be entitled respectively to plead and
act in the High Court in the exercise of its original jurisdiction was preserved.
Disciplinary proceedings
The High Court was empowered under section 10 of the Act to
reprimand, suspend or remove from practice any advocate of the High
Court for professional or other misconduct after following the procedure
described below.
Complaints against advocates for professional or other misconduct
had to be made to the High Court. If on receipt of a complaint, the High
Court did not summarily reject it, it had to refer the case for enquiry to the
Bar Council, or after consultation with the Bar Council, to a district judge.
The High Court had power to make such a reference suo motu even if there
was no complaint. Cases referred to a Bar Council had to be enquired
into by a committee of the Bar Council (called tribunal) comprising not
less than three and not more than five members appointed by the Chief Justice
of the High Court. 5
The High Court was required to make rules for the conduct of dis-
ciplinary enquiries. The finding of the tribunal after enquiry was to be
forwarded to the High Court through the Bar Council and the finding
of a district court was to be forwarded direct to the High Court
which was required to send a copy to the Bar Council. Notice was to be
given of the date fixed for hearing to the advocate concerned and to the
Bar Council and to the Advocate-General and after affording them an
opportunity of being heard, final orders were passed by the High Court.
A record of the punishment of suspension or reprimand was made in the
rolls of the High Court. If the advocate was to be removed from practice,
his name was removed from the roll and the certificate of any advocate so
suspended or removed was to be recalled.6 The tribunals and the district
judge conducting the enquiries were vested with powers of a court under the
Code of Civil Procedure examining him on oath, compelling the production
of documents and issuing commissions for the examination of witnesses.7
It may be pointed out that under the Act, the power of enrolment of
advocates virtually continued to remain in the High Court and the function
of the Bar Council was advisory in nature. The Act did not affect the original
side of the Calcutta and Bombay High Courts. Further, the attorneys of
Clacutta and Bombay were not affected by the Act and the enrolment of
and the disciplinary jurisdiction over the attorneys continued to be in the
hands of the High Courts under their respective Letters Patents. The right
5. S. 11, The Indian Bar Council Act, 1926.

6. S. 12.
7. S. 13.
of the advocates of one High Court to practise in another High Court was
made subject to the rules made by the High Court. The rules made by the
Bar Councils had stipulated that advocates of other High Courts would
be permitted to appear and plead in the respective High Courts only with
the permission of the Chief Justice provided an advocate enrolled in that
High Court appeared with him. The provisions in the Bar Council's Act
were regarded as unsatisfactory.
(yi) The recommendations of the All India Bar Committee and the Law
Commission
The Bar was not satisfied with passing of the Bar Council's Act, 1926.
The Act had not covered the pleaders, mukhtars and Revenue agents practis-
ing in the mofussil courts and revenue offices and consequently did not set
up a unified Indian Bar. Further the powers conferred on the Bar Councils
constituted under the Act were limited and the Bar Councils were neither
autonomous nor had any substantial authority. Therefore, several non-
official members' bills8 had been introduced to amend the law relating to
the legal profession and had lapsed and nothing concrete emerged. With
the coming into force of the Constitution in 1950 and the establishment of
a Supreme Court for India the need for an all-India Bar was stressed by the
legal fraternity. In this situation, the Union government set up a committee
known as the All India Bar Committee under the Chairmanship of justice
S.R. Das of the Supreme Court. In 1953 the committee recommended,
inter alia, an All India Bar Council and the maintenance of a common
roll of advocates by the All India Bar Council. The committee had con-
sidered at length the questions of the constitution and powers of the state
Bar Councils and the All India Bar Council and made detailed recommenda-
tions. It proceeded on the principle that the Bar should be autonomous
in matters relating to the profession. But the government did not take
any steps in pursuance of the committee's recommendations.9
Subsequently in 1955 the Law Commission, presided cover by Mr.
M.C. Setalvad, then Attorney-General of India, in its fourteenth report
on the Reform of Judicial Administration endorsed the recommendations
of the All India Bar Committee, as regards the creation of a unified all
India Bar as well as the establishment, composition and functions of the
state and All India Bar Councils. The Law Commission further
recommended, inter alia, that the requirement of a certain number of years'
practice in the High Court for enrolment as a Supreme Court advocate
should be dispensed with, the advocates on the common roll should have
the right to practise in all the courts in India, the dual system should continue
on the original side of the Calcutta and Bombay High Courts and the Bar
should be divided into senior advocates and advocates.10
8. See, Report of the All India Bar Committee, 19-20 (1953).

9. Id. at 20-42.
10. Law Commission of India: Report on the Reform of Judicial Administration,
556-586 (1958).
238 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14 : 2
To implement the recommendations of the All India Bar Committee
and of the Law Commission in its fourteenth Report, the Legal Practitioners
Bill, 1959 was introduced in the Lok Sabha on the 19th November, 1959.
The bill was to amend and consolidate the law relating to legal practitioners
and to provide for the constitution of State Bar Councils and an All India
Bar Council. It was referred to a Joint Select Committee of Parliament of
which Shri C.R. Pattabi Raman was the Chairman.
It is necessary to refer to a few of the clauses, particularly in the bill
as introduced, since after the recommendations and report of the Joint Select
Committee, there was a change in regard to those matters when the bill
was finally passed. Under the bill :
(a) The composition of the State Bar Councils was to include two
Judges of the High Court nominated by the Chief Justice of the
High Court. In the case of the Assam and Orissa Bar Councils,
only one such Judge was to be nominated.
(b) Membership of the All India Bar Council was to include, inter
alia, two judges of the Supreme Court "who have been advocates"
nominated by the Chief Justice of India, and three members
elected by the Supreme Court Bar Association from amongst
its members.
When the bill came to be passed, the name Legal Practitioners J?/7/was
changed into The Advocates Act and amongst the other changes made, the
above provisions as to the nomination had been dropped, and a separate Bar
Council known as the Bar Council of Delhi was to be constituted.
The Advocates Act, 1961
The Advocates Act, 1961, which received the assent of the President
of India on the 19th of May, 1961, extends to the whole of India, except the
State of Jammu and Kashmir. Under section 1, the Act is to come into
force on such date as the central government may, by notification in the
Official Gazette, appoint and different dates may be appointed for different
provisions of this Act.
Broadly speaking, the main features of the Act are (/) to have, in course
of time only one class of legal practitioners viz, advocates, with the right
given to them to practice in all courts and tribunals in India, (//) to take
away the powers till then vested in the courts, in the matter of admission
of advocates and the maintenance of the rolls, and their disciplinary conduct
(subject to an ultimate appeal to the Supreme Court), and (Hi) the constitu-
tion of a central Bar Council for purposes of control and supervision with
powers, inter alia, to the central Bar Council to recognise the degree in
law for admission as advocates. Every Bar Council constituted under the
Act is a body corporate having a common seal, and may, by the name by
which it is knownsue and be sued.
(z) State bar councils, their membership and functions
Under the Act, the followingfifteenBar Councils have been constituted
in the states of Andhra Pradesh, Bihar, Gujarat, Madras, Madhya Pradesh,

Maharashtra, Mysore, Rajasthan, Orissa, Uttar Pradesh, Assam and Naga-
land, Kerala, Punjab and Haryana, West Bengal and the Union Territory
of Delhi.11 Under the Himachal Pradesh Act recently enacted, a new state
Bar Council has also came into existence.
Every state Bar Council consists of (/) the Advocate-General as an
ex-officio member (for the Bar Council of Delhi, since there is no Advocate-
General for the Union Territory of Delhi, the Additional Solicitor-General
was made the ex-officio member, and when that office was abolished,
the Solicitor-General of India was made the ex-officio member) and
(//) in the case of the Bar Councils of Assam and Nagaland, Orissa,
Delhi and Himachal Pradesh fifteen other members and in the case of all
the other state Bar Councils twenty other members elected in accordance
with the system of proportional representation by means of the single
transferable vote from amongst the advocates on the electroal roll of the
state Bar Council concerned.
The Act as originally passed prescribed a term of six years for an
elected member of a state Bar Council subject to the principle of rotation
but this provision has since been amended, and the term as now fixed
is four years from the date of the publication of the result of the election.
Every state Bar Council has (/') one or more disciplinary committees,
(//) an executive committee, consisting of five members (Hi) an enrolment
committee, consisting of three members and (iv) such other committees
as may be deemed necessary. Every disciplinary committee consists of
two persons elected by the council from amongst its members, and one
other person co-opted by the council who have practised for at least ten
years. The senior-most advocate amongst the members of the committee
is the Chairman thereof. Each Bar Council has a Chairman and a Vice-
Chairman elected in such manner as may be prescribed, and has to appoint
a secretary, and an accountant, if necessary.
The functions of a state Bar Council are to admit persons as advocates
on its roll; to prepare and maintain such roll; to entertain and determine
cases of misconduct against advocates on its roll; to safeguard the rights,
privileges and interests of advocates on its roll; to promote and support
law reform; to manage and invest the funds of the Bar Council; to provide
for the election of its members; to perform all other functions assigned
to it by or under the Act and to do all other things necessary for discharging
the aforesaid functions.
A state Bar Council may constitute a fund in the prescribed manner
for the purpose of giving financial assistance to indigent and disabled
advocates. A state Bar Council gets its funds for its expenses by retaining
with it 60 per cent out of the sum of Rs. 250 collected by it from every
applicant for admission as an advocate.
11. S. 3, The Advocates Act, 1961.

240 JO URNAL OF THE INDIAN LA W INSTITUTE [Vol. 14:2
(//) The Bar Council of India : membership and functions

The Act provides that there shall be for the territories to which the
Act extends a Bar Council known as the Bar Council of India, which consists
of the Attorney-General of India, and the Solicitor-General of India as
ex-officio members, and one member elected by each state Bar Council
from amongst its members. There shall be a Chairman and a Vice-Chairman
of the Bar Council of India elected as prescribed by rules and a secretary,
and an accountant if any, under section 7.
The functions of the Bar Council of India are to prepare and maintain
a common roll of advocates, to lay down standards of professional conduct
and etiquette for advocates, to lay down the procedure to be followed by
its disciplinary committees and the disciplinary committee of each state
Bar Council; to safeguard the rights, privileges and interests of advocates;
to promote and support law reform; to deal with and dispose of any matter
arising under the Act, which may be referred to it by a state Bar Council;
to exercise general supervision and control over state Bar Councils; to
promote legal education and to lay down standards of such education in
consultation with the universities whose degree jn law shall be a qualifica-
tion for enrolment of an advocate and for that purpose visit and inspect
universities; to manage and invest the funds of the Bar Council; to provide
for the election of its members; to perform all other functions conferred
on it by or under the Act and to do all other things necessary for discharging
the aforesaid functions.
The Bar Council of India is to have one or more disciplinary commi-
ttees, a Legal Education Committee, an executive committee, and such other
committees as may be deemed necessary. Every disciplinary committee
is to consist of three members, two persons elected by it from amongst
its members and one other person co-opted by it from amongst advocates
as have practised for at least ten years. The senior-most advocate from
amongst its members is to be Chairman of the committee. The legal educa-
tion committee consists of ten members of whom five are persons elected
by the council from amongst its members, and the other five are those who
are not members of the council. The executive committee consists of nine
members elected by the Council from amongst its members.
The main source of income of the Bar Council of India is the contribu-
tion of 40 per cent out of the fee of Rs. 250 paid by each applicant for
enrolment to the state Bar Council.
(Hi) The rolls—state rolls and the common roll

The Act enjoins the preparation and maintenance of a roll of advocates
by every state Bar Council and a common roll by the Bar Council of India.
In the rolls prepared and maintained by a state Bar Council under
section 17(1) of the Act, entry is made of the names and addresses of all
persons who are entered as advocates on the roll of any High Court under
the Indian Bar Councils Act , 1926 immediately before the appointed day
and vvho, within the prescribed time, express an intention in the prescribed
manner, to practise within the jurisdiction of the Bar Council; and all other
persons who are admitted to be advocates on the roll of the state Bar Council
under the Act on or after the appointed day.
The rolls of advocates to be maintained by every state Bar Council
have to be in two parts, thefirstpart containing the names of senior advocates
and the second part containing the names of other advocates. Every state
Bar Council has to send to the Bar Council of India an authenticated copy
of the roll of advocates prepared by it for the first time under the Act, and
has thereafter to communicate to it all alterations in and additions to
to the roll as soon as the same have been made.12
The common roll which the Bar Council of India has to prepare and
maintain under section. 20 comprises the entries made in all state rolls,
copies of which are received by it under section 19, and the names of all
advocates entitled as of right to practise in the Supreme Court immediately
before the appointed day, i.e., 1-12-1961 and whose names are not entered
in any state roll. No person can be enrolled as an advocate on the roll of
more than one State Bar Council.
(iv) Transfer
A person whose name is entered in the roll of a state Bar Council
can apply for transfer of his name to another state Bar Council. The
application has to be made to the Bar Council of India in the prescribed form
and the Bar Council of India has to direct the transfer of the name without
the payment of any fee. The Bar Council of India may reject the application
if the application is not bona fide or if it is by a person against whom any
disciplinary action is pending. A rule made by the Bar Council of India
on these matters provides that every advocate shall be under an obligation
to see that his name appears on the roll of the state Council within whose
jurisdiction he ordinarily practices, provided, however, that this rule shall
not apply to advocates whose names are entered in the common roll and
are not entered in any state roll.14
(v) Senior advocates
Persons who were senior advocates immediately before the appointed
day, i.e., 1-12-1961 have been deemed to be senior advocates for the purposes
of the Act. Besides, power has been conferred under section 16 of the Act
to the Supreme Court and the High Courts to designate any advocate as
senior advocate if in its opinion by virtue of his ability, experience and
standing at the Bar, he is deserving of such distinction. Senior advocates
are governed by the rules of the Supreme Court applicable to them,15 and
12. S. 19.
13. S. 17(4).
14. Rule 1, chapter III, part IV, Rules of the Bar Council of India.
15. Order V, Supreme Court Rules.
242 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 14 : 2
are also subject to the restrictions laid down by the Bar Council of India
in the interest of the legal profession.16
(vi) Entries in rolls—seniority
(a) Rolls of state bar councils
Entries in each part of the roll of advocates have to be in the order
of seniority. The principles for determining seniority have been laid down,
but they are subject to the rules made by the Bar Council of India in this
behalf, which provide for seniority on the basis of the date of enrolment
under the Bar Councils Act in the case of those whose names are entered
under section 17(l)(a), and in the case of those enrolled under the Advocates
Act under section 17(1)(Z?).17
(b) Common roll

Entries in each part of the common roll are to be made in such
manner as the Bar Council of India thinks fit and the principles for deter-
mining the seniority of an advocate in the common roll are laid down.
The seniority of an advocate enrolled in a state roll shall be determined
in accordance with his seniority in that roll. The seniority of a person
who was a senior advocate of the Supreme Court immediately before the
appointed date (i.e. 1.12,1961) is to be determined according to the rule
laid down by the Bar Council of India, in accordance with the date of his
enrolment as advocate. The seniority of an advocate of the Supreme
Court (who was not a senior advocate) and whose name is not entered in
any state roll under section 17(l)(a) is to be determined in accordance
with his date of enrolment as advocate of the Supreme Court. Where the
date of seniority of two or more persons is the same, the one senior in age
shall be reckoned as senior to the other.
(v/7) Intimation of intention to practise
With reference to the obligation imposed under section \l(l)(a) of
the Act requiring intimation of an intention to practise, it may be noted
that the obligation was on all advocates who were enrolled under the Indian
Bar Councils Act, 1926. They had all to express an intention to practise,
in the form prescribed, and within the prescribed period. Such intention
could be expressed to any Bar Council in India, not necessarily to the one
where the advocate was enrolled under the Bar Councils Act. Under its
resolution the Bar Council of India took the view that the words "intention
to practise" under section 17(l)(a) include an ''intention to practise on a
future date". Failure to express such intention and get the name enrolled
disentitles such advocate to practise.
With reference to a person enrolled as an advocate of the Supreme
Court (whether as a senior or not) under the Supreme Court Advocates
16. Part VI of the Rules of the Bar Council of India.

17. Id. at chapter IV, part V .
(Practise in High Courts) Act, 1951, it was open to him to express such
intention and get his name enrolled in the roll of a state Bar Council. If
he did it and the name was included, his seniority would be counted from
the date of enrolment as advocate under the Bar Councils Act. But if he
chose not to express such intention and did not get his name included in
the roll, he would nevertheless be entitled to practice, and his name
has to be included by the Bar Council of India in the common roll. Diffe-
rent Bar Councils had prescribed different dates as the last date for intimation
and the dates fixed by all of them have expired long ago.
In this connection, it is necessary to invite attention to special provisions
made under section 58A and section 58AA (by a later amendment) for certain
advocates who were deemed to be persons enrolled as advocates under
the Bar Councils Act, 1926, and with reference to those who were practising
the profession of law in the Union Territory of Pondicherry and also to
section 58AB with reference to certain persons enrolled in the High Court
of Mysore.
(viii) Qualifications for admission as an advocate
Section 24 of the Act lays down the qualifications for admission as
an advocate. Broadly speaking, the following are entitled to be admitted
as advocates, if they fulfil also certain other requirements laid down under
the section :
(/) A person who has obtained a degree in law from any university
in India or from any university outside the territory of India,
recognised by the Bar Council of India for the purposes of the
Act;
(if) a barrister;
(///) A vakil or a pleader who is a law graduate if his application for
enrolment was made within two years from the appointed day
viz. 1-12-1961;
(z'v) A person who has for at least three years been a vakil or a pleader
or a mukhtar or was at any time entitled to be enrolled under
any law for the time being in force as an advocate of a High
Court or of a Court of Judicial Commissioner or in any union
territory.
An applicant for admission has to be a citizen of India and should
have completed the age of 21 years. He should pay a fee of Rs. 250 to
the state Bar Council and should fulfil the other requriements as laid down
by the rules of the state Bar Councils, which generally include an application
for admission on the production of the certificate granted by the university
in respect of the degree in law granted by the university, and certificates
of character. However, a national of any other country may be admitted
as an advocate in a state roll, if citizens of India duly qualified are permitted
to practise law in that country.
If the application is on the basis of the degree in law obtained from
a university in India or outside the territory of India, section 24(1) (d)
244 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 14:2
requires that the applicant should have undergone a course of training in

law and passed an examination both of which prescribed by the state Bar
Council. Under the rules of the state Bar Councils, the course of training
which was originally for a period of one year, has subsequently been reduced
to a period of six months. It comprises apprenticeship under an advocate
of certain years' standing , attendance at courts and at chambers, mainten-
ance of diaries, attendance at lectures, and the passing of an examination
on some subjects. With regard to a barrister also, the Bar Council of India
has specified the same requirement as to training and examinations, as in
the case of others holding a degree in law.
A proviso to this sub-section as amended provides that the clause as
to training and examination shall not apply to : (/) any person who has
obtained a degree in law from any university in India on the results of an
examination held before the 31st day of March 1964, or such other later
date as may be prescribed, or a barrister who was called to the Bar before
such date, or a barrister who, having qualified after that date, has received
such practical training in law as may be recognised in this behalf by the
Bar Council of India; (//) any person who has for at least two years held
a judicial office in the territory of India or is or has been a member of the
central legal service; (Hi) any person who has for at least two years held
a judicial office in any area which was comprised before the 15th day of
August 1947, within India as specified in the Government of India Act, 1935,
or has been an advocate of any High Court in any such area; (iv) any person
who has practised before any High Court and who has discontinued practice
by reason of his taking up employment under the government, a local
authority or any other person; and (v) any other class of persons who by
reason of their legal training or experience are declared by the Bar Council
of India to be exempt from the provision of this clause.
The last date mentioned in the proviso had owing to agitations and
representations, frequently been extended and the sub-section was amended
as above in 1964. Even the amendment of 1964 could not be final
on the subject. The Government of India's latest notifications relevant
on the matter have narrowed down the scope of the requirement as to training
and examination practically making it a nullity. Training and examination
will not be necessary according to the notifications if the applicant has taken
the degree of law after undergoing a course of instruction for three years
(laid down by the rules of the Bar Council of India) or has been called to
the Bar on or before 31-12-1968, or if he had taken the master's degree in
law.
(ix) Legal qualifications
The degree in law mentioned as one of the qualifications for admission,
may be a degree in law (i) of a university in India, or (//) of a university
outside the territory of India.
(a) Degree in law of a university in India :
The standards laid down by the Bar Council of India on legal education
and recognition of degrees in law of the university prescribe inter alia the
following conditions :
A person to be eligible to join the course of study in law should be a
graduate of a university or hold such academic qualification which is con-
sidered by the Bar Council of India equivalent to a graduate degree of
a university. The duration of the course of instruction shall be three years.
This is with reference to those who join the course of instruction in or after
the first term of the academic year 1967-68. In the case of fourteen universi-
ties, however, for reasons considered sufficient by the Bar Council of India,
it was the first term of the academic year 1968-69 instead of 1967-68. The
course of instruction comprises ten compulsory subjects and six others
as optional as mentioned in the rules.18
During the last year of the course, the instruction and practical training
should also be imparted for a period of six months in the rules of courts
and in drafting and pleadings and documents.
According to the resolution of the Bar Council of India, practical
training would include—pleading and conveyancing; moot courts and
conducting civil and criminal proceedings; attending courts; maintaining
a record of the above three requirements and arrangements of at least six
lectures on professional ethics, attendance at four of which shall be compul-
sory. The scope and nature of training as set out in this resolution is not
to be deemed as exhaustive. It should thus be open to the universities
and law colleges to add to the same and work out a report on this matter
and send it to the Bar Council of India at the earliest. Practical training
should be made a part of the examination system for which marks should
be assigned and awarded.
The rules on standards of legal education were made, as required
under the Act, in consultation with the universities imparting legal education
and the state Bar Councils. In accordance with the above rules, the Bar
Council of India in exercise of the powers conferred under sections 24(l)(c)(iii)
of the Advocates Act, has recognised degrees in law obtained from any
of the universities which fulfils the requirements of rule 11 of its rules and
obtained by those who had commenced the three-year course of instruction
as provided for, in the first term of the academic year 1967-68 by actual
attendance at colleges. Under the powers vested in it, it has permitted
the postponement of the three-year course to the academic year 1968-69
in the case of the universities of Kanpur, Madras, Meerut, Bangalore, Aligarh,
Mysore, Bhagalpur, Patna, Agra, Ranchi, Behrampur and Jiwaji, Sardar
Patel and Yikram universities, One of the functions of the Bar Council
of India is as mentioned earlier, to visit and inspect universities, imparting
legal education.
J8. The compuslory subjects are : Indian Legal and Constitutional History;
Contracts; Torts; Family Law including Hindu and Mchammadan Law ; Crimes and
Procedure; Constitutional Law of India; Property Law; Evidence; Legal Theory
(Jurisprudence and Comparative Law); Civi] Procedure, Limitation and Arbitration, .
(b) Degree in law from universities outside the territory of India

In this connection, section 24(i)(c)(iv) confers power on the Bar Council
of India for recognition of degrees in law taken outside the territory of India.19
Section 47 provides that subjects of any foreign country, which discriminates
against the citizens of India in the matter of legal practice shall not be entitled
to practise in India. It also empowers the Bar Council of India to lay
down conditions subject to which foreign qualifications may be recognised
for enrolment as an advocate.
(x) Conditions for admission to roll
Section 28 of the Act empowers the state Bar Councils to make rules,
subject to the approval of the Bar Council of India. The rules can be made,
inter alia, on the conditions subject to which a person may be admitted as
an advocate on the roll of the Bar Council. The rules accordingly made
by the state Bar Councils generally prohibit the enrolment of a person who
though he may be otherwise qualified, is in full or part time service or employ-
ment or is engaged in any trade, business or profession. The prohibition
against enrolment does not apply to certain categories of persons specifically
referred to in the proviso to the rule such as a 'law officer' fulfilling certain
conditions, articled clerk or an attorney, a person in part-time service as
a professor or lecturer, teacher in law or a person who by virtue of his being
a member of a Hindu joint family has an interest in a joint Hindu family
business provided he does not take part in the management thereof or other
classes of persons specifically exempted after approval by the Bar Council
of India.
(xi) Application for admission to roll
An application for admission as an advocate has to be made in the
prescribed form to the state Bar Council within whose jurisdiction the
applicant proposes to practise. Applications for enrolment have to be
referred to and disposed of by the enrolment committee of the state Bar
Council. But if the enrolment committee proposes to refuse such application,
it has to refer the application with the statement of the grounds in support
of the refusal to the Bar Council of India, and has to dispose of the applica-
tion finally in conformity with such opinion.20
(xii) Right to practise
Chapter IV of the Advocates Act regulates the right of advocates
19. The Bar Council of India has so far recognised under s. 24(l)(c)(iv) of the
• Act the degrees in law obtained from the following universities outside India: Rajshahi
University, Dacca University, Sind University, Rangoon University—degree taken before
4.1.1948, Tribhuvan University—if the degree has been obtained after a course of study
in law and attendance and a graduate degree had been obtained from that or any other
university in India before admission to the law course, Panjab University at Lahore,
Universities of Singapore, Oxford and Cabmridge, London University if obtained after
graduation from any university in India and Karachi University,
20. S. 26, The Advocates Act, 1961.
19721 LEGAL PROFESSION AND THE ADVOCATES ACT, 1961 247
to practise. One of the objects of the Act is to have in course of time only
one class of legal practitioners. Different provisions of this chapter have
been brought into force at different times. For instance, section 32 which
empowers the courts to allow persons who are not enrolled as advocates
to appear before them in particular cases was brought into force from
4-1-1963. Sections 29,31,33 and 34 were brought into force from 1-6-1969.
Section 30 has not yet been brought into force. Section 29 provides that
subject to the provisions of the Act as from the appointed day (1-6-1969),
there shall be only one class of persons entitled to practise the profession
of law, namely, advocates. Under section 30 all advocates are entitled
as of right to practice throughout the territories to which the Act extends
in all courts including the Supreme Court, before any tribunal or person
legally authorised to take evidence or before any other authority or person
before whom such advocate is entitled to practise. Further under section 33
advocates alone are entitled to practise in any court.
However, sections 29, 30 and 33 have to be read along with section
50(2) and sections 55 and 58 of the Act. Section 50(2) provides that on the
date on which chapter III (Admission and Enrolment of Advocates) comes
into force (it came into force on 1-12-1961) certain sections of the Legal
Practitioners Act, 1879, Bombay Pleaders Act, 1920, Indian Bar Councils
Act, 1926, and Letters Patent of High Courts which relate to the admission
and enrolment of legal practitioners stand repealed. Under sections 55
and 58 rights of certain existing legal practitioners are protected. The
net effect of the above provisions is that there can be no fresh admission
of any other class of legal practitioners such as pleaders, mukhtars or revenue
agents under any of the other enactments till then in force as these provisions
stand repealed, and the other classes of legal practitioners so far admitted
can get their sanads renewed, and exercise the same rights as they had under
these enactments as before.
Reference may in this connection be made to two decided cases. The
High Court of Mysore in its judgment dated 26th March, 1964 in writ petition
No. 2497/1963—E.C. Agrawala and others v. Mysore State Bar Council
and another,21 held that section 58(4) only empowers the renewal of sanads
of pleaders who had been admitted before 1-12-1961, and does not permit
fresh admission of pleaders after that date by way of issue of fresh sanads.
The other decision is that of the Calcutta High Court in Sunil Kumar v.-
State of West Bengal and others,22 holding that section 58(4) cannot apply
to persons who had not acquired the necessary rights under section 6 of
the Legal Practitioners Act before 1-12-1961.
Section 50(3) provides that on the date on which chapter IV came into
force, the sections referred to therein of the Legal Practitioners Act, of the
Indian Bar Councils Act, 1926, as also the Supreme Court Advocates (Practice
in High Court) Act, 1951, and the provisions of the Letters Patent of the
21. Unreported.
22. A.I.R. 1965 Cal. 614.
High Courts dealing with the right of advocates to practise, shall stand
repealed. The provisions of the Act referred to in section 50(3) stand
repealed, when section 30 is brought into force. Excepting section 30 there
was no other provision in the Act as originally enacted and brought into
force, dealing with the right to practise of persons enrolled under the Act.
When chapter III of the Act was brought into force from 1.12.1961, the
High Courts ceased to have the right conferred under the Bar Councils
Act to admit persons as advocates and the power of enrolment passed over
to the state Bar Councils newly constituted under the Act.
As under section 50(2) of the Act, so much of the provisions of the
Legal Practitioners Act, 1879, the Bar Councils Act, 1926 and the Letters
Patents, relating to the admission and enrolment of legal practitioners stood
replealed on the date when chapter III came into force, a difficult situation
arose as section 30 on right to practise had not been brought into force
and this necessitated an Ordinance in the first instance, and in due course
an amendment of the Act and section 58 was added as a provision for the
transitional period till chapter IV is brought into force.
Section 58, inter alia, confers the following powers :
(/) Persons enrolled as advocates under the Bar Council Act or under
the Advocates Act will be entitled as of right to practise in the
Supreme Court, subject to the rules made by the Supreme Court
in this behalf.
(//) Until chapter IV comes into force every person enrolled under
the Advocates Act, 1961, shall also be entitled to all the rights
of practise conferred on the advocates under section 14 of the
Bar Councils Act, 1926.
The effect of section 58 is that : an advocate not enrolled as an advocate
of the Supreme Court will be entitled to practise (/) in the Supreme Court,
(//') in the High Court of the Bar Council where he is enrolled and (//7) in
all the subordinate courts and tribunals in India including the subordinate
courts where he is not enrolled, subject to the rules if any made in this behalf.
It follows, therefore, that he will not be entitled to practise in the ordinary
course, or as of right in the other High Courts of the Bar Councils where
he is not enrolled.
But a person enrolled as an advocate of the Supreme Court will be
entitled to practise in all the courts in India—the Supreme Court, all the
High Courts, and all the subordinate courts as provided in that Act subject
to certain restrictions. The position is anomalous, but it will be so till
section 30 in chaper IV is brought into force when the matter will cease
to be governed by section 58 and section 3 will apply.
In In re Lilly Isabel Thomas2* "the proper construction of article
145(i)(a) of the Constitution in the context of a declaration that rule 16 of
order IV of the Supreme Court Rules is invalid," was the principal point
raised by an advocate entitled under the Advocates Act, 1961, to practise
?3. A.I.R. 1964 S.C. 855.

in the Supreme Court having been originally enrolled in the Madras High
Court under the Bar Councils Act, 1926. Rule 16 which now corresponds
to rule 5 provided for the qualifications requisite for an advacate to be
registered as an advocate on record. It was held that section 58(3) of the
Advocates Act which confers on the advocates the right of practise in the
Supreme Court is itself subject to section 52 which specifically sayes the
right of the Supreme Court to make rules under article 145 of the Constitution.
The court held that on the express terms of article 145(1), the impugned
rules 16 and 17 are valid and within the rule-making power.
(xiii) Conditions for right to practise

Section 49 confers power on the Bar Council of India to make rules,
inter alia, on the conditions subject to which an advocate shall have the
right to practise and the circumstances under which a person shall be deemed
to practise as an advocate in a court. The rules made by the Bar Council
of India in this behalf prohibit an advocate from entering into a partnership
or any other arrangement for sharing remuneration with any person or
a legal practitioner who is not an advocate. They enjoin an advocate to
have the name transferred to the roll in which he ordinarily practises, and,
inter alia, to intimate to the Bar Council his voluntary suspension and
resumption of practise.
(xiv) Power of Supreme Court and High Courts to make rules
The Act makes some special provisions which it is necessary to note
in this connection. The power of the High Court at Calcutta and at Bombay
to provide for and make rules for the admission of attorney, and for their
removal or suspension is not affected by the Act.24 The power of any court,
authority, or person to permit any person not enrolled as an advocate under
the Act to appear before it or him is specifically preserved.25 The High
Court is empowered to make rules laying down the conditions subject to
which an advocate shall be permitted to practise in the High Court and the
courts subordinate thereto.26 The exact scope and implication of this
provision may, when it becomes necessary, have to be construed, in the
light of the other provisions of the Act, and so as not to affect the rights
conferred thereunder, on the Bar Councils.
Apart from the rules of the Calcutta and Bombay High Courts with
regard to attorneys, some of the High Courts have made rules in exercise of
the power conferred on them under section 34(1) of the Advocates Act.. 1961.
The rules made by the High Courts of Mysore and Bihar, for instance provide,
inter alia that an advocate who is on the roll of advocates of the Bar
Council of the State in which the court is situated, shall not appear in such
courts unless he files an appointment along with an advocate who is on the
24. Ss. 31 & 34(2), The Advocates Act. 1961.

25. S. 33.
26. S. 34(1).
250 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol 1 4 : 2
roll of such state Bar Council and who is ordinarily practising in such courts.
They also contain a rule that no advocate shall be entitled to appear, plead
or act for any person unless an appointment in writing is signed by such
person or his recognised agent or other person authorised under a power
of attorney or signed by the advocate. The rules also contain other pro-
visions necessary for advocates appearing before the Court including certain
requirements as to firms or partnership of advocates, dress, etc.
Different High Courts have made rules on robes of advocates. Under
section 52 the power of the Supreme Court to make rules under article 145
of the Constitution is preserved for laying down the conditions subject
to which a senior advocate shall be entitled to practise in that court; and
for determining the persons who shall be entitled to act in that court.
(xv) Practise by persons not entitled to practise
Persons illegally practising in courts or before other authorities,

when they are not entitled to practise under the provisions of the Act, are
liable for punishment with imprisonment for a term which may extend to
six months.
(xvi) Conduct of advocates : disciplinary proceedings

As pointed out earlier, the Act vests the power of enquiry into cases
of misconduct against advocates in the committees of the Bar Council.
The proceedings in respect of disciplinary matters against advocates are
governed by the rules made by the Bar Council of India under the Act.
The High Courts will continue to have the same jurisdiction and power
with reference to other classes of legal practitioners such as pleaders admitted
before 1-12-1961.
(a) Proceedings before state Bar Councils and the disciplinary committees
The state Bar Council on the roll of which an advocate is enrolled
has the jurisdiction and the power to act on receipt of a complaint
or otherwise. A fee of Rs. 25 is prescribed by the Bar Council of
India as payable on a complaint, which shall be in the form of a petition
duly signed and verified as required under the Civil Procedure Code. If
the state Bar Council has reason to believe that the advocate concerned has
been guilty of professional or other misconduct, it has to refer the case
for disposal to its disciplinary committee.
The disciplinary committee to which the case has been referred may
summarily reject the complaint. If it does not do so, it should fix a date
for the hearing of the case and cause notice thereof to be given to the advocate
concerned and to the Advocate-General of the state (the Solicitor-General
in the case of the Delhi Bar Council). After giving him an opportunity
of being heard it should make its order.
The rules made by the Bar Council of India provide that the disciplinary
committee may determine the matter on documents and affidavits unless
it is of opinion that it should be in the interest of justice to permit cross-

examination of the deponents or to take oral evidence in which case the
procedure followed for the trail of civil suits, shall as far as possible be
followed.
(b) Powers of the disciplinary committees

Section 42 provides that the disciplinary committee of a Bar Council
shall have the same powers as are vested in a civil court under the Code
of Civil Procedure, 1908, in respect of summoning and enforcing the atten-
dance of any person and examining him on oath, requiring discovery and
production of any documents; receiving evidence on affidavits; requisition-
ing any public record or copies thereof; issuing commissions for the
examination of witnesses or documents and any other matter which may be
prescribed.
No such disciplinary committee shall, however, have the right to
require the attendance of any presiding officer of a court except with the
previous sanction of the High Court to which such court is subordinate,
or any officer of a revenue court except with the previous sanction of the
state government. All proceedings before a disciplinary committee of
a Bar Council shall be deemed to be judicial proceedings within the meaning
of sections 193 and 228 of the Indian Penal Code and every such disciplinary
committee shall be deemed to be a civil court for the purpose of sections
480, 482 and 485 of the Code of Criminal Procedure, 1898.
For the purpose of exercising any of the powers conferred by sub-
section (1), a disciplinary committee may send to any civil court in the terri-
tories to which the Act extends, any summons or other process, for the
attendance of a witness or the production of a document required by the
committee or any commission which it desires to issue, and the civil court
shall cause such process to be served or such commission to be issued, as
the case may be, and may enforce any such process as if it were a process
for attendance or production before itself.
The disciplinary committee of a state Bar Council, after giving the
advocate concerned and the Advocate-General an opportunity of being
heard, may dismiss a complaint, or where the proceedings were initiated
at the instance of a state Bar Council, direct that the proceedings be filed;
reprimand the advocate; suspend the advocate from practise for such period
as it may deem fit or remove the name of the advocate from the state roll
of advocates. Costs can be awarded in the proceedings, and an order for
costs made by the disciplinary committee of a state Bar Council is execu-
table as if it were an order of a High Court.
An advocate who is suspended from practise is debarred from practising
in any court or before any authority or persons in India. The disciplinary
committee of a state Bar Council may of its own motion or otherwise review
any order passed by it, but no such order shall have effect unless it has been
approved by the Bar Council of India.
252 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14:2
(c) The disciplinary committee of the Bar Council of India

The Act has conferred powers on the disciplinary committee of the
Bar Council of India to make inquiry in some cases on complaints of mis-
conduct referred to it, to withdraw cases for enquiry before itself, to hear
appeals and order stay and to review its own orders. It has the power to
make such order as to costs of any proceedings before it as it may deem
fit. Any such order shall be executable as if it were an order of the Supreme
Court.
1. Power to enquire and to withdraw
If on receipt of a complaint or otherwise, the Bar Council of India
has reason to believe that any advocate on the common roll whose name
is not entered on any state roll has been guilty of professional or other
misconduct, it shall refer the case for disposal to its disciplinary committees,
The committee may also of its own motion, withdraw for enquiry before
itself any proceedings for disciplinary action against any advocate pending
before the disciplinary committee of any state Bar Council and dispose
of the same.
In all the above cases whether it be cases referred by the Bar Council
of India, or those withdrawn by it as stated above, the powers conferred
on the disciplinary committee of the Bar Council of India and the procedure
to be followed under the rules are the same as in the case of the disciplinary
committees of the state Bar Councils. The only difference is that notice
and opportunity of being heard are to be given to the Attorney-General
of India, and not to the Advocate-General.
2. Power to hear appeals and order stay
Any person aggrieved by an order of the disciplinary committee of
a state Bar Council made under section 35 may within sixty days of the
date of the communication of the order to him, prefer an appeal to the
Bar Council of India. Every such appeal is to be heard by the disciplinary
committee of the Bar Council of India which may pass such order thereon
as it deems fit. Under the rules made by the Bar Council of India a fee
of Rs. 50 has been prescribed for an appeal to befiledbefore the Bar Council
of India.
The question as to who are the persons aggrieved has been the subject
of judicial interpretation. In B.M. Madnani v. Commissioner of Workmen's
Compensation, Bombay in Civil appeal 877/1968,27 the question was whether
the Commissioner of Workmen's Compensation who filed the complaint
before the state Bar Council and being dissatisfied with the order of the
disciplinary committee of the state Bar Council reprimanding the advocate,
filed an appeal against the said order for a more severe punsihment was a
'person aggrieved' and his appeal before the disciplinary committee of the
27. Unreported.
Bar Council of India was competent. The Supreme Court held that it was
competent. It observed :
[I]f the commissioner of workmen's compensation is a person
competent to file a complaint we see no reason why for the purpose
of appealing to the Supreme Court of India, he is not a person
aggrieved The complainant in this case is a public servant.
The case of Adi Phirozshah Gandhi v. H.M. Seervai™ before the Supreme
Court was one in which suo motu action was taken against the advocate
by the Bar Council of Maharashtra. Notice was given to the Advocate-
General as required under the Act. The Advocate-General appeared
before the committee. The disciplinary committee was satisfied that there
was no reason to hold that the advocate was guilty of professional or other
misconduct. The Advocate-General filed an appeal against the said order
under section 37 of the Act. The disciplinary committee of the Bar Council
of India in its order allowed the appeal and suspended the advocate for a
year over-ruling, inter-alia, the objection that the Advocate-General was
not competent to file the appeal. The advocate appealed to the Supreme
Court of India. In its judgment by the majority Their Lordships Hidayat-
uliah, C.J.,Shelat, J., Mitter, J, (Their Lordships Vaidyalingam, J, and Ray,
J, dissenting), it was held that the appeal by the Advocate-General was
incompetent.
The judgments refer to several decisions of the courts in India and
other countries, particularly with reference to the words 'person aggrieved'.
They contain a discussion at length as to the position and status of the
Advocate-General and his powers with reference to disciplinary proceedings.
They deal with the provisions of the Bar Councils Act, 1926, and the Advocates
Act, 1961, relating to disciplinary matters and the implications thereof on
the question of the right of the Advocate-General to file an appeal.
The majority held that a person cannot have a right of appeal merely
because he has been given notice of some proceedings wherein he is given
a right to appear and make his submission. The order must cause
him a legal grievance by wrongfully depriving him of something.
That the order is wrong or that it acquits someone who should have
been convicted does not by itself give rise to a legal grievance. The
Advocates Act gives the Advocate-General a right of preaudience, which
gives him a standing for the hearing of cases, but does not confer on him
any other rights. The phrases such as, leader of the Bar, keeper of the
conscience of the Bar, have no meaning neither now, nor had under the
Bar Councils Act, 1926. They are just titles but are not grounded in law.
The Advocate-General does not represent the executive or the legislature
or the judiciary in disciplinary proceedings. He finishes his duty when
the hearing is over and cannot be considered to be a party interested or
'a person aggrieved' whether the decision is in favour of the advocate or
against him. If anybody represents the Bar, it would be the Bar Council
28. A.I.R. 1971 S.C. 385.

254 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 14:2
of India, and in the case of the states, the state Bar Councils. Referring
to the unreported decision of the Supreme Court of India in B.M. Madnani
v. Commissioner of Workmen's Compensation, Bombay,28° Chief Justice
Hidayatuliah observed that the said decision can be justified on the ground
that in some cases before the court a party which moves the court or a
person brought before the court to be bound by the order may be a person
aggrieved, but there may be some doubt whether the commissioner was
a person aggrieved by the penalty imposed in the first instance.
The minority view was that the provisions of the Indian Bar Councils
Act, 1926, established the important position occupied by the Advocates-
General under that Act. The scheme is slightly different under the Advocates
Act, 1961, which gives the Advocate-General a very important and responsi-
ble position. The Advocate-General and the Attorney-General of India
are heads of the respective Bar. The proceedings before the disciplinary
committees affect the discipline and dignity of the Bar, and touch the
professional conduct of an advocate. The intention of the statute is that
the Advocate-General and the Attorney-General are not to be neutral
observers. It is not necessary to go to the extent of holding that there is
a 7w' before the disciplinary committees, and that the Advocate-General
is a party in the sense in which that expression is ordinarily understood in
law. The use of the words in the Act, 'person aggrieved', instead of'party
aggrieved' have to be noticed. In view of the several steps indicated in
the Advocates Act with reference to the Advocate-General, such as notice of
hearing, opportunity for hearing him, his being entitled to appear in person
or through an advocate, and to be communicated by a copy of the order
passed by the committee, the Advocate-General will be a 'person aggrieved'.
The same reasoning will apply to the Attorney-General of India. The
docision of the Supreme Court in MadnanVs case repelled the contention
that the Advocate-General cannot be a person aggrieved.
In view of the decision of the majority it is clear that the Advocate-
General or the Attorney-General of India will not be a person aggrieved
and cannot file an appeal provided for under the Act. But the question
arises as to who are all the other persons entitled to file the appeal
or who could be said to be a 'person aggrieved'. In spite of the views
expressed it cannot be taken as laying down that a state Bar Council
or the Bar Council of India is a 'person aggrieved' entitled to file the appeal
as other persons or bodies, and as coming within the expression 'person
aggrieved'. It is very desirable and necessray that the legislature should
have suitably and properly amended the relevant provisions dealing with the
notice to the Advocate-General or the Attorney-General and the persons
entitled to appeal. It may also be considered whether it is not also necessary
to provide for the parties to be implicated in such appeals.29
2Sa. Civil appeal 877/1968.
29. See the observations in Bhatraju Nageswara Rao v. Hon'ble Judges of the
Madras High Cour., A.I.R. 1955 S.C. 223 and the observations of the Supreme Court on
the same \nAdi Phirozshah Gandhi v. H.M. Seervai, supra note 28.
i972j LEGAL PROFESSION AND THE ADVOCATES ACT, 1961 255
An appeal made to the Bar Council of India does not operate as a

stay of the order appealed against, but the disciplinary committee of the
Bar Council of India may, for sufficient reasons, direct the stay of such an
order on such terms and conditions as it may deem fit.
3, Power to review
Section 44 confers powers of review on the discipinary committee
of a Bar Council by its own motion or otherwise. However, no order or
review of the disciplinary committee of state Bar Council shall have effect
unless it has been approved by the Bar Council of India. In O.N. Mahindroo
v. Dist. Judge, Delhi,™ the Supreme Court upheld the view of the Bar Council
of India that the Bar Council of India has no power to review an order made
by its disciplinary committee on appeal. But the Bar Council can refer
to the disciplinary committee matters for its reconsidertion. As already
stated the power of revision is expressly granted to the disciplinary committee
of the Bar Council which may on its own motion or otherwise review any
order passed by it. The word 'otherwise' is wide enough to include a case
referred by the Bar Council for review. The court was of the view that
since disciplinary proceedings against a lawyer will not only involve the
particular lawyer but the prestige of the legal profession as such, the powers
of review of the disciplinary committees should be interpreted widely so
as to enable them to exercise such powers in a suitable case for or against
a lawyer even after the matter had been examined by them. The analogy
of the powers of review by the courts under the Civil Procedure Code or
that of the autrefois convict or outrefois acquit under the Code of Criminal
Procedure should not be made applicable.
(d) Appeal to the Supreme Court

Any person aggrieved by an order made by the disciplinary committee
of the Bar Council of India under section 36 or section 37 may, within sixty
days of the date on which the order is communicated to him, prefer an appeal
to the Supreme Court and the Supreme Court may pass such order thereon
as it deems fit. Order V of the Supreme Court of India Rules deals with
appeals made to the Supreme Court against an order of the disciplinary com-
mittee of the Bar Council of India made under section 36 or section 37 of
Advocates Act. The Rules, inter alia, provide for a preliminary hearing
on the registration of the petition for appeal. If upon such hearing the court
is satisfied that no prima facie case has been made out for its interference
it may dismiss the appeal, but if it is not so satisfied it may direct that notice
of appeal be issued to the Advocate-General of the State concerned or to
the Attorney-General of India or to both and to the respondent. The
costs of all proceedings of an appeals shall be in the discretion of the court. 31
30. A.I.R. 1971 S.C. 107.
31. The validity of s. 38 of the Act and order V, rule 7 of the Supreme Court
Rules was upheld by the Supreme Court in O. N. Mohindroo v. Bar Council, A.I.R. 1968
S.C. 888.
Explaining the scope of appeal to the court under section 38, the court
in O.N. Mohindroo v. Dist. Judge, Delhi,32 observed that the appeal to the
Supreme Court under section 38 is not a restricted appeal in the sense that
it is limited to questions of law alone. Question of fact can be reopened
on appeal. The court can entertain subsequent petitions from a person
whoes case has been dealt with by a disciplinary committee. The court
must go into the matter to satisfy itself that justice has been done by the
disciplinary committee. Section 40 empowers also the Supreme Court,
for sufficient cause, to direct the stay of an order appealed against on such
terms and conditions as may be deemed fit.
(xvii) Some important powers of the Bar Council of India
Apart from the other powers already enumerated, the Bar Council
of India has been specifically conferred certain special powers.
1. Power to remove name from the rolls
The Bar Council of India is empowered, either on a reference made
to it or otherwise, if it is satisfied that any person has got his name entered
in the roll of the advocates by misrepresentation as to an essential fact or
by fraud, or undue influence, to remove the name of such person from the
roll of advocates after giving him an opportunity of being heard.33 The
Bar Council of India or any state Bar Council may also remove from the
common roll or the state roll as the case may be, the name of any advocate,
who is dead or from whom a request has been received to that effect.34
Besides, the name of an advocate may be removed from the roll by way
of punishment for misconduct in disciplinary proceedings.35
2. Revision
Apart from the power vested in it to remove the name of an advocate
in certain cases, and the power vested in its disciplinary committees to hear
and dispose of disciplinary matters whether by way of original hearing or
on appeal, the Bar Council of India has the power at any time to call for
the record of any proceeding under the Act, which has been disposed of
by a state Bar Council or a committee thereof, and from which no appeal
lies, for satisfying itself as to the legality or propriety of such a disposal and
may pass such orders thereon as it deems fit. But no order which prejudi-
cially affects any person can be passed without giving him a reasonable
opportunity of being heard.36
3. Directives
Section 48B empowers the Bar Council of India for the proper and
efficient discharge of the functions of a state Bar Council or any committee
32. Supra note 30.
33. S. 26(1), The Advocates Act, 1961.
34. S. 26A.
35. Chapter V, The Advocates Act, 1961.
36. S. 48A.
1962J LEGAL PROFESSION AND THE ADVOCATES ACT, 1961 257
thereof, to give such directions to the state Bar Council or its committees
as may appear to it to be necessary, and the state Bar Council or the commi-
ttee has to comply with such directions. Where a state Bar Council is
unable to perform its functions for any reason whatsoever, the Bar Council
of India may give such directions to the ex-officio member thereof as may
appear to it to be necessary, and such directions shall have effect, notwith-
standing anything contained in the rules made by the state Bar Council.
4. Rules—'to make and approve'

Section 15 enumerates the powers of the state Bar Councils and the
Bar Council of India to make rules on the matters dealt with in chapter II
of the Act relating to the Bar Councils. Section 28 gives powers to the
state Bar Councils to make rules on some matters connected with the
preparation of rolls, training and examinations for admission of advocates,
form of application for enrolment, and conditions for enrolment. Any
rule made by a state Bar Council, whether under section 15 or 28, shall
have effect only if it has been approved by the Bar Council of India. It
may be noted in this connection that under the Indian Bar Councils Act,
1926, the rules made by the Bar Councils required the previous sanction
of the High Court.
Section 49 confers on the Bar Council of India a general power to make
rules for discharging its functions under the Act. Besides the rules referred
to earlier in this article they include rules on standards of professional
conduct and etiquette to be observed by advocates, principles for guid-
ance of the state Bar Councils and the manner in which directions issued
or orders made by the Bar Council of India may be enforced, and 'any other
matter which may be prescribed'. The Bar Council of India has made
its rules on all these matters.
(xviii) Power of central government to make rules

The central government for the first time is empowered by notification
in the official gazette for making rules for carrying out the purposes of the
Act including rules on which the Bar Council has power to make rules.37
Rules may be made either for the whole of India or for all or any of the Bar
Councils. If a rule made by a Bar Council is repugnant to a rule made
by the central government, the latter will prevail over the former and the
former will be void to the extent of the repugnancy.
(0 Removal of difficulties
The central government is also empowered, to make any order not
inconsistent with the Act, to remove any difficulty that may arise in giving
effect to the provisions of the Act particularly in relation to the transition
from enactments repealed by the Act to the provisions of the Act. The
37. S. 49A.
power conferred under the section had been invoked and

(0 The Advocates Removal of Difficulties Order, 1963, was made
to remove the difficulties in regard to disciplinary proceedings.
(/'/) The Advocates (Removal of Difficulties) No. 2 Order was made
to extend the term of office of the elected members of the state
Bar Councils.
(Hi) The Advocates (Removal of Difficulties) Order, 1966, was made
to extend the term of office of the elected members of the state
Bar Councils required to retire under section 8 of the Act as it
then existed.
Supreme Court Rules to regulate the legal profession

Prior to the coming into force of the Constitution, the Federal Court
was empowered under section 214 of the Government of India Act, 1935,
to make rules, with the approval of the Governor-General , for regulating
the practice and procedure of the court including rules as to the persons
practising before it. The Federal Court Rules, 1942, prescribed the
qualifications of persons to be enrolled before it. The Rules permitted
persons of ten years of standing to be enrolled as senior advocates. No
person could appear as an advocate before the Federal Court unless instructed
by an agent.
Article 145(1) of the Constitution empowers the Supreme Court to
make rules, with the approval of the President, inter alia, as to persons
practising before it. The Advocates Act, 1961, confers on all advocates
whose names are on the rolls maintained under that Act to practise, inter
alia, in the Supreme Court, subject to the rules of the Supreme Court. The
Supreme Court Rules, 1950, made in exercise of the powers under article
145(1) provides for the enrolment of persons as advocates who are entitled
to practise before it. The Rules laid down that the roll of the Supreme
Court shall be in two parts, namely seniors and others. Persons who had
more than ten years' standing could be enrolled as senior advocates.
Order IV of the Supreme Court Rules deals with advocates. Rule
2(b) places some restrictions on the senior advocates. Rule 3 provides
that every advocate appearing before the court shall wear robes and costumes
as may from time to time be directed by the court. In pursuance of this
rule the Chief Justice of India has directed that the costumes to be worn
by the advocates appearing before the Supreme Court should be black coat,
robe and band worn by the barristers appearing before the High Courts. 38
38. Reference may for instance be made to the following rule of the Mysore High
Court : Advocates appearing before the court, shall wear the following as part of their
dress (1) advocates appearing before the High Court (a) men advocates—black coat,
bands and gown (whenever an open collar coat is used, stiff collar of butterfly or dress
collar type or necktie type should be worn with bands, (b) lady Advocates—gown
over their ordinary or regional dress. The wearing of bands will be optional. (Note :
pattern of gown : The gown referred to will be the pattern of the academic (university)
gown. (2) advocates appearing in the District and Sessions Court or any other civil or
criminal subordinate courts : (a) men advocate—black ccat (whenever an open collar
coat is used, black tie should be worn), (b) lady advocates—ordinary or regional dress.
The rules also provide for registration of advocates on record any advocate
who is not a senior advocate. Rule 5 lays down that an advocate shall not
be qualified to be registered as an advocate on record unless he has undergone
training for one year with an advocate on record approved by the court
and has thereafter passed such tests as may be held by the court for advocates
who apply to be registered as advocates on record. The particulars of the
test are to be notified in the official gazette from time to time. The rules,
however, exempt an attorney from such training and test. An advocates
on record is required to have an office in Delhi within a radius of ten miles
from the court house and give an undertaking to employ within one month
of his being registered as an advocate on record, a registered clerk. He is
also required to pay a registration fee of twenty-five rupees.
The Supreme Court Advocate (Practise in High Courts) Act, 1951,
conferred the right on every advocate of the Supreme Court to practise
in any high Court whether or not he is an advocate of that High Court.
In Aswini Kumar Ghosh v. Arabindha Ghosh,29 the Supreme Court held by
a majority that an advocate of the Supreme Court became entitled as of
right to appear a i d plead as well as act in all the High Courts in India and
that he is also entitled to appear on the original side of the West Bengal
and the Bombay High Courts without being instructed by an attorney and
free from the restrictions in this regard of the Rules of the High Courts of
West Bengal and Bombay.
In view of the provisions of the Advocates Act, 1961, there has been
no further admission of persons as advocates of the Supreme Court after
1.12.1961 when chapter III of the Advocates Act came into force. Under
section 50(3)(d) of the Advocates Act, 1961, the Supreme Court Advocates
(Practice in High Courts) Act, 1951, shall stand repealed on the date when
chapter IV of the Advocates Act comes into force and as noted earlier
section 30 in chapter IV of the Act has not yet been brought into force.
Conclusion
What has been enumerated above will show that the Advocates Act,
1961, has marked the beginning of a new era in the history of the legal
profession by vesting largely in the Bar Councils the power and the jurisdic-
tion which the courts till then exercised , by fulfilling the aspirations of those
who had been demanding an All India Bar and effecting a unification of
the Bar in India, by the creation of a single class of practitioners with power
to practise in all the courts and bound by rules made and a code of conduct
laid down by their own bodies to which the members could resort to for the
protection of their rights, interests or privileges. The Act has enabled
representatives from the several states to come together to a common forum,
and has brought about integration.
The conferment of the power in respect of legal education and the
recognition of the degree in law and the power to visit and inspect universities
39. A.I.R 1952 S.C. 369.

imparting legal education, have resulted in a uniform pattern of legal
education, while at the same time preserving intact the powers and
responsibilities of the universities. A word of caution is necessary at this
stage. The problem of language, in so far at any rate as regards legal
education, might present difficulties and would seem to be of utmost
magnitude. This would require deftful handling.
An attempt had been made to provide by legislation for the Attorney-
General of India to be the ex-officio Chairman of the Bar Council of India,
and for the Advocate-General in the states to be the Chairmen of the Bar
Councils. But this had been stoutly resisted by the Bar Councils on the
ground that it would encroach upon the autonomy given to the Bar Coun-
cils. As a result the government had to drop the matter.
A few matters have to be set right by legislation. Of these may be men-
tioned the existing provision under section 49A vesting power in the central
government to make rules in certain cases. The government has not been
in favour of dropping this provision. Agitations there have been for putting
an end to the dual system permitted in a sense to continue on the original
side of the West Bengal and the Bombay High Courts but with no result.
It is satisfactory to note that legal aid is to be included as a function of the
Bar Councils.
In the last ten years, the Bar Councils have had an onerous task to
perform. The foundation having been laid, the members of the legal
profession and the public are indeed entitled to look forward to the Bar
Councils for the discharge of their functions and obligations.
APPENDIX
THE ADVOCATES ACT, 1961.
NOTIFICATIONS AND AMENDMENTS
S.No. Date Particulars
1. 19-5-1961 The Advocates Act, 1961 (No. 25 of 1961) received

the assent of the President.
2. 16-8-1961 Chapters I, II and VII came into force.
3. 1-12-1961 Chapter III and section 50(2) came into force.
4. 15-12-1961 Section 50(1) came into force.
5. 24-1-1962 The Advocates (Amendment) Ordinance 1 of 1952
came into force.
6. 24-1-1962 Sections 51 and 52 came into force.
7. 29-3-1962 Section 46 came into force.

8. 30-3-1962 The Advocates (Amendment) Act, 1962 (No. 14/1962)

came into force.
9. 4-7-1962 The Advocates (Second Amendment) Act, 1962

(No. 25/1962) came into force.
10. 14-9-1962 The Advocates (Third Amendment) Act, 1962 (No.

32/1962) came into force.
11. 4-1-1963 Section 32 and chapter VI (except section 46, sub-
sections (1) (2) of section 50, sections 51 and 52 which
had already been brought into force), came into force.
12. 1-9-1963 Provisions of chapter V came into force.
13. 1-9-1963 The Advocates (Removal of Difficulties) Order 1963

re. Disciplinary Committees.
14. 1-10-1963 The Advocates (Removal of Difficulties) No. 2 Order
1963 re. Extension of term of members of state Bar
Councils.
15. 1-12-1963 The State of Nagaland Act, 1962 section 14 re.
amendment of section 3 of the Advocates Act, 1961
regarding Nagaland.
16. 16-5-1964 The Advocates (Amendment) Act, 1964 (No. 21 of

1964) received the President's assent.
17. 24-9-1965 Introduction of Bill No. XIV of 1965 in the Rajya

Sabha on 24-9-1965.
18. 15-12-1965 Notification regarding exemption from Bar Council

training and examination.
19. 10-1-1966 Order regarding extension of term of office of elected

members of the state Bar Councils—date of coming
into force of the Order is 1-11-1965.
20. 14-6-1966 The Advocates (Amendment) Ordinance 1966 issued

by the President of India.
21. 3-9-1966 The Advocates (Amendment) Act, 1966 amending

section 8 of the Act.
22. 22-2-1968 The Advocates (Removal of Difficulties) Order,

1968.
23f 8-3-1968 Admission as Advocates (Training and Examination)

Rules, 1968,
262 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14 : 2
24. 24-5-1968 The Pondicherry (Extension of Laws) Act, 1968 (26 of

1968).
25. 5-6-1968 Advocates Amendment Ordinance 1968 (No. 3 of
1968).
26. 17-8-1968 Advocates (Amendment) Act, 1968 (No. 33 of 1968).
Section 58AB came into force on 5-6-1969.
27. 5-4-1969 Sections 29, 31, 33 and 34 (Chapter IV) of the Act
came into force from 1-6-1969.
28. 18-4-1969 Admission as Advocate (Training and Examination)
Rules 1969 : amendment of Rule 3 of the 1968 Rules.
NOTE :—Amendment bills introduced after the Report of the
Advocates Act Committee appointed in 1966 have been
withdrawn, and a fresh bill introduced in 1970 in the Rajya
Sabha has since been referred to a Joint Select Committee
of both house of Parliament.
Total number of advocates enrolled : The total number of

advocates on the rolls of all the state Bar Councils in India
excluding the advocates of the Supreme Court of India who
have not got their names entered in the rolls of the Bar Councils
as on March 31, 1970, is 1,00, 402.

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LEGAL PROFESSION AND THE ADVOCATES ACT, 1961

IT IS PROPOSED in this article to give a short history of the legal profession

And we do hereby further authorise and empower the said

* B.A., B.L., Secretary, Bar Council of India, New Delhi.

attorneys at law as to the said Supreme Court of Judicature at

(//) Company's courts

The Legal Practitioners Act, 1846, made three important changes

(iii) The Legal Practitioners Act, 1879

The Legal Practitioners Act, 1879, which is in force today to a limited

Section 4 of the Act empowered an advocate or vakil on the roll of

pleader, vakil, mukhtar or attorney. Section 36 of the Act dealing with

3. See, Report of the All India Bar Committee 13 (1953).

or injury due to any negligence in the exercise of his professional duties.

Dissatisfaction was expressed about the distinction that existed between

(v) The Bar Councils Act, 1926

vakils, and pleaders entitled as of right to practise immediately before the

5. S. 11, The Indian Bar Council Act, 1926.

8. See, Report of the All India Bar Committee, 19-20 (1953).

in the states of Andhra Pradesh, Bihar, Gujarat, Madras, Madhya Pradesh,

11. S. 3, The Advocates Act, 1961.

(//) The Bar Council of India : membership and functions

(Hi) The rolls—state rolls and the common roll

(b) Common roll

16. Part VI of the Rules of the Bar Council of India.

requires that the applicant should have undergone a course of training in

(b) Degree in law from universities outside the territory of India

?3. A.I.R. 1964 S.C. 855.

(xiii) Conditions for right to practise

24. Ss. 31 & 34(2), The Advocates Act. 1961.

(xv) Practise by persons not entitled to practise

Persons illegally practising in courts or before other authorities,

(xvi) Conduct of advocates : disciplinary proceedings

it is of opinion that it should be in the interest of justice to permit cross-

(b) Powers of the disciplinary committees

(c) The disciplinary committee of the Bar Council of India

28. A.I.R. 1971 S.C. 385.

An appeal made to the Bar Council of India does not operate as a

(d) Appeal to the Supreme Court

4. Rules—'to make and approve'

(xviii) Power of central government to make rules

power conferred under the section had been invoked and

Supreme Court Rules to regulate the legal profession

39. A.I.R 1952 S.C. 369.

THE ADVOCATES ACT, 1961.

NOTIFICATIONS AND AMENDMENTS

S.No. Date Particulars

1. 19-5-1961 The Advocates Act, 1961 (No. 25 of 1961) received

7. 29-3-1962 Section 46 came into force.

8. 30-3-1962 The Advocates (Amendment) Act, 1962 (No. 14/1962)

9. 4-7-1962 The Advocates (Second Amendment) Act, 1962

10. 14-9-1962 The Advocates (Third Amendment) Act, 1962 (No.

13. 1-9-1963 The Advocates (Removal of Difficulties) Order 1963

16. 16-5-1964 The Advocates (Amendment) Act, 1964 (No. 21 of

17. 24-9-1965 Introduction of Bill No. XIV of 1965 in the Rajya

18. 15-12-1965 Notification regarding exemption from Bar Council

19. 10-1-1966 Order regarding extension of term of office of elected

20. 14-6-1966 The Advocates (Amendment) Ordinance 1966 issued

21. 3-9-1966 The Advocates (Amendment) Act, 1966 amending

22. 22-2-1968 The Advocates (Removal of Difficulties) Order,

23f 8-3-1968 Admission as Advocates (Training and Examination)

24. 24-5-1968 The Pondicherry (Extension of Laws) Act, 1968 (26 of

Total number of advocates enrolled : The total number of