India Has the World’s Second Largest Legal Profession

CHAPTER 1: INTRODUCTION

Earl Warren once said, “It is the spirit and not the form of law that keeps justice alive.” [1] In India, like all other countries, the legal system keeps this very spirit of justice alive for a balanced, harmonious existence for all its citizens.

A lawyer is “a person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law.” [2] In India, the term “lawyer” is often colloquially used, but the official term is “advocate” as prescribed under the Advocates Act, 1961

India has the world’s second largest legal profession with more than 600,000 lawyers. The predominant service providers are individual lawyers, small or family based firms. Most of the firms are involved in the issues of domestic law and majority work under country’s adversarial litigation system. The conception of legal services as a ‘noble profession’ rather than services resulted in formulation of stringent and restrictive regulatory machinery. These regulations have been justified on the grounds of public policy and ‘dignity of profession’. The judiciary has reinforced these principles: Law is not a trade, not briefs, not merchandise, and so the heaven of commercial competition should not vulgarize the legal profession [3] . However, over the years courts have recognized ‘Legal Service’ as a ‘service’ rendered to the consumers and have held that lawyers are accountable to the clients in the cases of deficiency of services. [4]

The Legal Profession is an important limb of the machinery for administration of justice. Without a well-organized profession of law, the courts would not be in a position to administer justice effectively as the evidence in favors or against the parties to a suit cannot be properly marshaled, facts cannot be properly articulated and the best legal arguments in support or against the case of the parties cannot be put forth before the court. “A well-organized system of judicial administration postulates a properly equipped and efficient bar;” [5] and a well regulated profession for pleading causes is a great desideratum to tone up the quality of justice.

The legal profession’s position in the country was not always the way it is today. The history of legal profession in India is therefore a history of struggle: for recognition, characterized by prestige, power and income. The professional standing of the advocates of our country evolved and grew till it finally manifested itself in the Advocates Act of 1961. This project traces this very evolution.

The Indian Bar Councils Act, 1926 was passed to unify the various grades of legal practice and to provide self-government to the Bars attached to various Courts.  The Act required that each High Court must constitute a Bar Council. The duties of the Bar Council were to decide all matters concerning legal education, qualification for enrolment, discipline and control of the profession. It was favourable to the advocates as it gave them authority previously held by the judiciary to regulate the membership and discipline of their profession.

The Advocates Act, 1961 was a step to further this very initiative.  As a result of the Advocates Act, admission, practice, ethics, privileges, regulations, discipline and improvement of the profession as well as law reform are now significantly in the hands of the profession itself.

The researcher will trace the history of the legal profession in India and its present official standing. The project will introduce the Act and its nature and functioning. The researcher will then deal with the historical predecessors of the Advocates Act, 1961. The project goes on to ponder over the reasons behind introduction and codification of the act.

CHAPTER 2: AIMS AND OBJECTIVES OF THE ACT

The Bill that brought the act into existence sought to implement the recommendations of the All India Bar Committee made in 1953, after taking into account the recommendations of the Law Commission on the subject of Reform of Judicial Administration in so far as the recommendations were related to the Bar and to legal education.

The Bill primarily focused on the following aspects:

The establishment of an All India Bar Council and a common roll of advocates, and giving the advocates on the common roll a right to practice in any part of the country and in any Court, including the Supreme Court;

The integration of the bar into a single class of legal practitioners know as advocates;

The prescription of a uniform qualification for the admission of persons to be advocates;

The division of advocates into senior advocates and other advocates based on merit;

The creation of autonomous Bar Councils, one for the whole of India and one for each State.

The Bill, being a comprehensive measure repealed the Indian Bar Council Act, 1926, and all other laws on the subject and brought into existence the Advocates Act, 25 of 1961 into existence.

CHAPTER 3: LEGAL PREDECESSORS TO THE ADVOCATES ACT, 1961

3.1 MAYOR’S COURTS

Prior to the establishment of the Mayor’s Courts in 1726 in Madras and Calcutta, there were no legal practitioners in the country. In the Charter of 1726, which established the Mayor’s Courts at the three Presidency Towns, no specific provision was made laying down any particular qualifications for the persons who would be entitled to act or plead as legal practitioners in these courts. Presumably, it was left to these courts to regulate this matter by rules of practice which these courts were authorized to frame [6] . No change was effected in this position when a fresh Charter was issued in 1753. [7] The Mayor’s Courts, established in the three presidency towns, were Crown Courts with right of appeal first to the Governor-in-Council and a right of second appeal to the Privy Council. No organized legal profession came into being in the Presidency Towns during the period of the Mayor’s Courts. Those who practiced law were devoid of any legal training or any knowledge of law. They had adopted the profession in the absence of anything better to do. Quite a few of these so-called lawyers were the dismissed servants of the Company.

3.2 SUPREME COURTS

The Supreme Court of Judicature was established by a Royal Charter in 1774 at Calcutta. The Supreme Court was established as there was dissatisfaction with the weaknesses of the Mayor’s Court.  It was the first concrete step in the direction of organizing a legal profession. Similar Supreme Courts were established in Madras in 1801 and Bombay in 1823.  When the first barristers appeared in India after the opening of the Supreme Court on work as advocates, the attorneys gave up pleading and worked as solicitors. The two grades of legal practice gradually became distinct and separate as they were in England.

The Regulating Act, 1773, empowered the Supreme Court to frame rules of procedure as it thought necessary for the administration of justice and due execution of its powers. The charters of the Court stipulated that the Chief Justice and three Judges be English barristers of at least 5 years standing. The Supreme Court was empowered “to approve, admit and enroll such and so many Advocates and Attorneys-at-law”, as to the Court “shall seem meet. [8] ” “Attorneys of Record” were to be authorized “to appear and plead, and act for the suitors” in the Supreme Court. The Court was to have power to remove any Advocate or Attorney “on a reasonable cause.” No other person whatsoever, but Advocates or Attorneys so admitted and enrolled, were to “be allowed to appear and plead, or act” in the Court “for or on behalf of such suitors”. Thus the persons entitled to practice before the Supreme Court could be Advocates and Attorneys. Attorneys were not admitted without recommendation from a high official in England or a Judge in India.  Permission to practice in Court could be refused even to a barrister.

The term ‘Advocate’ at the time extended only to the English and the Irish barristers and the members of the Faculty of Advocates in Scotland. The expression “Attorneys” then meant only the British Attorneys or Solicitors. The Charter prohibited any other person whatsoever to appear and plead or act, it would appear that the Calcutta Supreme Court was, from its very inception, a completely exclusive preserve for members of the British legal profession, namely, the British Barristers, Advocates and Attorneys. The Indian legal practitioner had no entry in this Court. The Charter of 1774 introduced the British system of legal practice in Calcutta.

Similar position was obtained in the two other Supreme Courts at Bombay and Madras.1 Thus, in the three Supreme Courts the only persons who were entitled to practice were the British Barristers, Advocates and Attorneys. The Indians had no right to appear before these Courts. This continued to be the position all through the existence of these Courts. Thus, the establishment of the Supreme Court brought recognition, wealth and prestige to the legal profession.

3.3 COMPANY’S ADALATS

In the Company’s adalats, the deplorable state of affairs concerning the legal profession has been graphically narrated in the preamble to Bengal Regulation VII of 1793. The Vakils were by and large ignorant of the law and were subject to harassment and extortion from the ministerial officers of the courts. The professional Vakils charged exorbitant fees.

The Regulation thus laid emphasis on the useful role which a sound legal profession can play in the administration of justice. The Regulation was enacted with a view to strengthen the legal profession in the best interests of the litigant public, the members of the bar serving as trustees of their clients and thus helping in the sound administration of justice. The Regulation, created for the first time a regular legal profession for the Company’s Adalats. The Regulation brought order and a measure of quality to pleading and sought to esta­blish practice of law as a regular profession. It empowered the Sadar Diwani Adalat to enroll from time to time as many pleaders as it thought necessary for all Company’s adalats and to fix the retaining fee for pleaders and also a scale of professional fee based on a percentage of the value of the property. He could not demand or accept any fee, goods, effects or valuable consideration from his clients over and above the sanctioned fees. The ultimate punishment for such a violation was dismissal of the lawyer. Thus, the theory of freedom of contract between the Vakil and his client was not recognized. The fees of, the pleaders were payable only after the decision, and not before, the Court being practically the paymaster.

An interesting provision made was that after a party was retained as a pleader, he was to execute a Vakalatnama constituting him pleader in the cause and authorizing him to prosecute or defend the matter and binding himself to abide by and confirm all acts which pleader might do or undertake in his behalf in the cause in the same manner as if it has been personally present and consenting. This provision is the modern genesis of the modern Vakalatnama.

An extraordinary feature of this Regulation was that only Hindus and Muslims could be enrolled as pleaders. Persons for the purpose were to be selected “from amongst the students of the Mohammedan College at Calcutta and the Hindu College at Benaras.” The Sadar Diwani Adalat was empowered to appoint other proper persons of good character and liberal education if sufficient number of persons qualified from the said colleges were not available. Vakils attached to one court were not permitted to plead in any other court without the sanction of the Sadar Diwani Adalat. Every pleader was required to attend the court to which he was attached punctually and regularly. If he was unable to attend the court due to any reason he had to notify it in writing to the Registrar of the court. Failure to do so made him liable to a fine. The courts exercised several disciplinary powers over the Vakils. The court could suspend a pleader if convicted of encouraging litigious suits, frauds, charging more fee than authorized by the Regulation or gross misbehavior.

From time to time several other Regulations were passed to regulate the legal profession in the Company’s adalats in Bengal, Bihar and Orissa. Then came a rather lengthy and detailed regulation, Regulation XXVII of 1814, passed on 29 November 1814, which consolidated the law on the subject.

The power for licensing, disciplining and removal of Vakils which was hitherto vested in the Sadar Adalat was now conferred by the Regulation on the Provincial Courts also. The Judge was to nominate some suitable person for the approval of the Provincial Court for appointment of a Vakil. Only persons of Hindu or Muhammadan persuasion were eligible for appointment as pleaders. Rules concerning fees, practice, government pleaders and malpractice were considerably more detailed than before. Preference for enrolment as Vakils was to be given to candidates educated in any of the Muhammadan or Hindu Colleges established or sup­ported by the Government provided that such candidates were in other respects duly qualified for the position. Vakils were to subscribe to several agreements as required by the Regulations, v/z., not to receive less than the prescribed rates of fees1; not to plead in other courts than to which attached. The disciplinary powers over the Vakils were re-enacted in substantially the same form as in the 1793 Regulation. The power of dismissing Vakils was vested in the Sadar Diwani Adalat as well as the Provincial Court, and a city court could suspend a Vakil. Even the professional work of the Vakils came under the scrutiny of the courts.

Similar provisions came to be made in course of time in the Provinces of Madras and Bombay.

3.4 THE LEGAL PRACTITIONERS ACT, 1846

It was the first All-India law concerning the pleaders in the mofussil, made several important innova­tions, namely: (1) The office of the pleader in the courts of the Company was thrown open to all persons of whatever nation or religion, provided he was duly certified (in such manner as directed by the Sadar Courts) to be of good character and duly qualified for the office. Thus, religious test was abolished for enrolment as a Pleader. (2) Every Barrister enrolled in any of Her Majesty’s Courts in India was made eligible to plead in the Sadar Adalats subject to the rules of those Courts applicable to pleaders as regards language or any other matter. (3) Vakils were allowed freedom to enter into agreement with their clients for their fees for professional services. This Act is regarded as the “first charter of the legal profession” although it left unsolved the impor­tant question of the right of Vakils to practice in the Supreme Courts [9] .

3.5 THE LEGAL PRACTITIONERS ACT, 1879

The Act, XVIII of 1879, was enacted to consolidate and amend the law relating to legal practitioners in the mofussil [10] . The Act repealed the Pleaders, Mukhtars and Revenue Agents Act, 1865. At this time, there were six grades of practitioners functioning in India. Advocates, Solicitors (Attorneys), and Vakils of the High Court: Pleaders, mukhtars and-revenue agents in the lower courts. The High Courts laid down standards for admission of Vakils to practice in the High Court; for Zila courts, standards were laid down in the Regulations which were lower for Pleaders than the High Court Vakils. Thus, Vakils became a distinct grade above the Pleader.

The Legal Practitioners Act, 1879, brought all-the six grades of legal practitioners into one system under the jurisdiction of the High Courts. The Act empowered an Advocate or a Vakils on the roll of any High Court to practice in his own High Court, in all the courts subordinate there to, in any court in British India other than a High Court on hose roll he was not entered, or with the permission of any High Court on whose roll he was not entered. The right to practice thus conferred by these provisions included the right to plead as well as to act in the courts.

The High Court could dismiss any Advocate or suspend him from practice after giving him an opportunity of defending himself, but such an order needed the confirmation of the Provincial Government.

The Calcutta High Court held that women were not entitled to be enrolled as Vakils or Pleaders of courts subordinate to the High Court. A similar case came before the Patna High Court. Miss Hazara secured a B.L. Degree of the Calcutta University. She was refused enrolment as a Pleader. She challenged this in the High Court of Patna. The Court ruled that the sections of the Legal Practitioners’ Act referred to males and not to females. This was to be expected as since 1793 no woman had ever been admitted to the roll of pleaders.

To remove doubts about the eligibility of women to be enrolled and to practise as legal practitioners, the Legal Practitioners (Women) Act, XXIII of 1923, was enacted to expressly provide that no woman would by reason only of her sex be disqualified from being admitted or enrolled as a legal practi­tioner or from practising as such. Since this enactment, women began getting enrolled as legal practitioners

3.6 INDIAN BAR COMMITTEE, 1923

From the above description of the condition of the legal profession in India, several things appear to stand out conspicuously. Since the days of the Supreme Courts, the Barristers of England had come to occupy a predomi­nant position in the legal profession. For example, on the Original Side of the Calcutta High Court, only Barristers could practice even though other High Courts had removed the distinction between Barristers and Vakils. On the whole, Vakils were treated as somewhat inferior to the Barristers.

Since the passing of the Legal Practitioners Act, 1879, enormous changes had taken place in the conditions of the legal profession. The legal profession had so far no organization of its own to regulate admission to the profession and to maintain a high level of professional conduct. The Vakils started demanding that all distinctions between them and the Barristers be removed, all the practice of statutory reservations of judicial appointments being in favour of particular classes be abolished, and the recognition (by way of at least a convention) that all appoint­ments to the Bench be made from the Bar and that only on the ground of merit. There was also the demand for abolition of the system of dual agency and the creation of an all-India Bar in the country. Thus, there was a demand by the legal profession for unification and autonomy of the Bar be realized by displacing the several grades of practitioners by a single homogeneous group of practitioners.

In February, 1921, a resolution put forth in the Legislative Assembly recommending legislation with a view to create an Indian Bar, so as to remove all distinctions enforced by statute or by practice between Barristers and Vakils.” In response to the pressures thus generated, the Government of India in 1923 appointed the Indian Bar Committee, popularly known as the Chamier Committee under the Chairmanship of Sir Edward Chamier, a retired Chief Justice of the Patna High Court. In its report submitted in 1924, the Committee apparently felt staggered by the variety of legal practitioners entitled to practice in the High Courts and in the courts subordinate to them.

On the question of organizing the legal profession on an all-India basis, the Committee came to the conclusion that it did not consider it practicable at the time to organize the Bar on an all-India basis or to constitute an all-India Bar Council, The Committee suggested however that a Bar Council should be constituted for each High Court. But immediately such Bar Councils were to be established for a few and not all High Courts. The Bar Council should have power to enquire into matters calling for disciplinary action against a lawyer; but that the existing discipli­nary jurisdiction of the High Court should be maintained. The High Court should be bound before taking disciplinary action against an advocate to refer the case to the Bar Council for inquiry and report.

The Committee proposed that a Bar Council should have power to make rules subject to the approval of the High Court concerned in respect of such matters as inter alia: (a) the qualifications, admission, and certificates of proper persons to be Advocates of the High Court; (b) legal education;(c) masters relating to discipline and professional conduct of Advocates etc., (d) the terms on which Advocates of another High Court could appear occasionally in the High Court to which the Bar Council is attached; (e) any other matter prescribed by the High Court.

While on some of the questions, e.g., abolition of the dual system, achieving the ideal of a unified bar, composition and powers of the proposed Bar Councils, the recommendations of the Committee fell short of the expectations of the Indians, nevertheless, there were some positive elements therein.

3.7 THE INDIAN BAR COUNCILS ACT, 1926

To give effect to the recommendations of the Chamier Committee to some extent, the Central Legislature enacted the Indian Bar Councils Act, I926. The object of the Act, as stated in its preamble, was to provide for the constitution and incorporation of Bar Councils for certain Courts in British India, to confer powers and impose duties on such Bar Councils, and to consolidate and amend the law relating to legal practitioners entitled to practice in such Courts. The purpose of the Act thus was to unify the various grades of legal practitioners and to provide some measure of self-government to the Bars attached to the various Courts.

The Act extended to the whole of British, India, but it was applied immediately only to the High Courts of Calcutta, Madras, Bombay, Allahabad and Patna. The Act could be applied to such other High Court as the “Governor-General in Council may, by notification in the Official Gazette, declare to be High Court, to which the Act applied.”

A Bar Council could, with the previous consent of the High Court make rules for such matters inter alia as : (1) the rights and duties of the Advocates of the High Court and their discipline and professional conduct; (2) the giving of facilities for legal education and training and the holding and conduct of examinations by the Bar Council.

The Act also achieved some unification of the Bar by eliminating the two grades of practitioners, the Vakils and the Pleaders by merging them in the class of Advocates who were “entitled as of right to practice” in the High Court in which they were enrolled and in any other Court in British India, subject to some exceptions. The duties of the Bar Council were to decide all matters concerning legal education, qualifications for enrolment, discipline and control of the profession. The Bar Council was authorized, with the previous sanction of the High Court, to make rules to regulate the admission of persons as Advocates of the High Court.

A High Court was authorized to reprimand, suspend or remove from practice any Advocate of the High Court whom it found guilty of professional or other misconduct. The High Court was empowered, of its own motion, to refer any case in which it had otherwise reason to believe that any such Advocate had been guilty of misconduct. [11]

The Act of 1926 was an improvement on the pre-existing position in so far as it went but its provisions were not entirely satisfactory and the Indian legal profession was not fully satisfied with what had been achieved by it. The Act failed to satisfy the aspirations of the profession as it merely granted the Bar Councils ineffective powers, much like departments of the High Courts. The Bar Councils were given unreal and in­effective powers; they were controlled closely by the High Courts, the real powers being vested in the High Courts.

The power to enroll Advocates continued to remain in the High Courts and the function of the Bar Councils was merely advisory. The rules to be made by a Bar Council were subject to the approval of the High Court. The High Court had effective disciplinary power over the Advocates, the role of the Bar Council being merely advisory. A Bar Council could inquire into a complaint of professional misconduct only when the matter was referred to it by the High Court and even then the findings of the Bar Council were not binding on the High Court. The Act did not in any way affect the Original Sides of the Calcutta and Bombay High Courts. The Attorneys of the Calcutta and Bombay Courts were not in any way touched by this Act and the enrolment of the Attorneys and the disciplinary jurisdiction over them, there­fore, continued to remain vested in the High Courts under their respective Letters Patent. The Legal Practitioners Act, 1879, remained intact and un-amended. The Act left the Pleaders, Mukhtars, etc., practicing in the mofussil courts out of the scope of the Act and the Act did not bring about a Unified Bar.

Finally, the right of the Advocates of one High Court to practice in another High Court was not unfettered but was expressly made subject to the rules made by the High Court or the Bar Council.

To have an autonomous unified all-India bar having only one grade of practitioners, and autonomous Bar Councils, the legal profession had to wait for over three decades, their long awaited ideals and aspirations fructified only in 1961 when the Indian Parliament enacted the Advocates Act in the Independent India.

CHAPTER 4: REASONS FOR INTRODUCTION OF THE ACT

After Independence it was deeply felt that the Judicial Administration in India should be changed according to the needs of the time. The Law Commission was assigned the job of preparing a report on the Reform of Judicial Administration. In the meanwhile the All India Bar Committee went into detail of the matter and made its recommendations in 1953. To implement the recommendations of the All India Bar Committee and after taking into account the recommendations of the Law Commission on the subject of Reform of Judicial Administration in so far as the recommendation relate to the Bar and to legal education, a Comprehensive Bill was introduced in the Parliament.

In 1961, Parliament enacted the Advocates Act [12] 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. The Advocates Act imple­ments the recommendations of the Bar Committee and the Law Commission with some modifications. It repealed the Indian Bar Councils Act, 1926, the Legal Practitioners Act, 1879, and other laws on the subject. The Act has undergone several amendments since its enactment in 1961. The Act extends to the whole of India.

CHAPTER 5: THE ADVOCATES ACT, 1961

The Act establishes an All-India Bar Council for the first time. The Attorney-General of India and the Solicitor-General of India are the ex-officio members of the Bar Council of India [13] . It has one member elected to it by each State Bar Council from amongst its members. The Council elects its own Chairman and Vice-Chairman. [14] The Bar Council of India has been entrusted inter alia with the following important functions:

(1) To lay down standards of professional conduct and etiquettes for Advocates;

(2) To safeguard the rights, privileges and interests of Advocates;

(3) To promote legal education,

(4) To lay down standards of legal education in consultation with the Universities imparting such education and the State Bar Councils;

(5) To recognize Universities whose degrees in law shall qualify for enrolment as an Advocate

(6) To visit and inspect the Universities for that purpose;

(7) To exercise general supervision and control over State Bar Councils,

(8) To promote and support law reform;

(9) To organize legal aid to the poor.

This Act created a State Bar Council in each State. [15] It is an autonomous body. The Advocate-General of the State is its ex-officio member, and there are 15 to 25 elected Advocates. These members are to be elected for a period of five years in accordance with the system of proportional representation by means of single transferable vote from amongst Advocates on the Roll of the State Bar Council. The State Bar Council has power to elect its own Chairman. The main powers and functions of the State Bar Council are:

(a) To admit persons as Advocates on its Roll;

(b) To prepare and maintain such Roll;

(c) To entertain and determine cases of misconduct against Advocates on its Roll;

(d) To safeguard the rights, privileges and interests of Advocates on its roll;

(e) To promote and support law reform;

(f) To organize, legal aid to the poor.

Thus, every State Bar Council prepares and maintains a Roll of Advocates and: an authenticated copy of the Roll is to be sent to the Bar Council of India. An application for Admission as an Advocate is made to the State Bar Council within whose jurisdiction the applicant proposes to practice [16] .

The Bar Council of India regulates the content, syllabi, duration of the law degree. Subject to the provisions made by the Bar Council, each University can lay down its own provisions and regulations concerning the law degree.