BAR COUNCIL OF INDIA; a statutory prognosis*

INTRODUCTION; tracing the genesis The modern legal profession in India is the product of the legal system that was evolved by the Britishers since the time of the East India Company. Tracing the history of the legal profession in India, the Mayors Courts established in Madras, Bombay and Calcutta in 1726 by a Charter granted by King George I on 24th September, 1726. The proceedings in the Mayors Court had to be instituted upon complaint to be made in writing to the court by, for, or on behalf of any person or persons against any other person or persons then residing within the territories of the Company. The trial was to be conducted in the Mayors Court in the same or the like manner and form as in that part of Great Britain called England. There was no specific provision in the Charter regarding the qualifications of the persons who would be entitled to represent the parties in the suits to act or plead as legal practitioners. It was left to be regulated by the rules of practice that the court was authorized to frame. The procedure was English procedure and the language employed was English. The Mayors Courts functioned upto 1774. But prior to the advent of British rule and the rise of British power in India, India had a system of administration of justice in Northern India, established by the Moghul Emperors or the then ruling chiefs. In addition, small Chieftains and big Zamidars had also their courts exercising civil and criminal jurisdictions. There was a class of persons called vakils who acted more as agents for principals than as lawyers, whose services were available to the litigants in these indigenous courts.1 In 1774 a Supreme Court was established at Fort William in Bengal by the Regulating Act of 1773. On the establishment of the Supreme Court the mayors Courts came to an end. The persons entitled to practice before the court were advocates which meant only English and Irish Barristers and advocates of Scotland and British Attorneys and Solicitors and no other persons whatsoever. Thus the Indian legal practitioners had no entry into these courts. Similar Supreme Courts with like jurisdiction were established at Bombay and Madras also. In these Courts also only British Barristers and Attorneys were eligible for enrolment. The Bengal Regulation VI of 1793 can be said to have created for the first time a regular legal profession for the companys courts. The Regulation provided for appointment of vakils or native pleaders in the
1

* By Vikash Kumar Sinha, Advocate Bombay High Court Dr S.P.Gupta, PROFFESSIONAL ETHICS, ACCOUNTANCY FOR LAWYERS BENCH-BAR RELATIONS, 3, (2nd ed., 2004).

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courts of civil judicature in the province of Bengal, Bihar and Orissa. It empowered the Sudder Dewanny Adawlat to enroll pleaders for all Companys Court and to fix the retaining fee for pleaders and also a scale of professional fee based on a percentage of the value of the subject matter. The extraordinary feature of the above Regulations was that only Muslims and Hindus could be enrolled as pleaders. Then came Bengal Regulation XXVII of 1814 which consolidated the law on the subject. The pleaders were empowered to act as arbitrators and to give legal opinions on payment of fees. The next stage was Bengal Regulation XII of 1833 which permitted any qualified person of whatever nationality or religion to be enrolled as a pleader of the Sudder Dewanny Adawlat. The Legal Practitioners Act, 1846 made three important innovations, namely, (1) that people of any nationality or religion became eligible to be pleaders and the office was thrown open to all persons duly certificated; (2) Attorneys and Barristers enrolled in any of Her Majestys Courts in India were by Section 3 and 5 respectively made eligible to plead in the Sudder Courts of the Company subject to the rules of those courts as regards language or otherwise; and (3) Pleaders were allowed to enter into agreements with their clients for their fees for professional services.2 In the Supreme Courts the British Barristers and Advocates alone could be enrolled as Advocates and British Solicitors alone could be enrolled as Attorneys. Indians, therefore, started going to England to qualify for the Bar or as Solicitors and to get enrolled in the Supreme Court. The power of enrolment of Advoctes continued to remain in the High Court and the function of the bar Council was of an advisory nature only. Each of the High Courts as well as the Bar Councils of Calcutta and Bombay have made rules to the effect that Advocates of the other High Courts would be permitted to appear and plead in the respective High Courts only after obtaining permission of the Chief Justice concerned. This limitation was regarded as unsatisfactory, since on several occasions very eminent Advocates of one High Court had been refused permission to appear and plead in another High Court. The Chamier Committees Report and the Indian Bar Councils Act, however, had left the Pleaders, Mukhtars and Revenue Agents practicing in the Mofussil Courts and Revenue Offices entirely out of consideration and did not bring about a unified Indian Bar. Further, the Bar Councils constituted under the Indian Bar Councils Act were merely advisory bodies and were neither autonomous nor had any substantial authority. This did not satisfy the legal profession and piecemeal attempts at amendment of the
2

See Supra note 01 at 06.

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Legal Practitioners Act and/ or the Indian Bar Councils Act were made from time to time without any success. The Constitution of India came into force on 26th January 1950 and all High Courts of Part B states became High Courts under the Constitution. In May 1950 the Madras Provincial Lawyers Conference resolved that the Government of India should appoint a Committee for the purpose of evolving a scheme for an all-India Bar and amending the Indian Bar Councils Act to bring it into conformity with the new Constitution. The Bar Council of Madras at its meeting held on 1st October 1950, adopted that resolution. Finally, a comprehensive Bill to amend the Bar Councils Act was introduced in Parliament on April 12, 1951.3

CONSTITUTION; contours of structure Bar Council of India is constituted under Section 4 of the Advocates Act, 1961. Section 4 of the Advocates Act provides for the establishment of Bar Council of India. Section 4 reads thus, 4. Bar Council of India (1) There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely:(a) the Attorney-General of India, ex officio; (b) the Solicitor-General of India, ex officio4; (c) one member elected by each State Bar Council from amongst its members. (1A) No person shall be eligible for being elected as a member of the Bar Council of India unless he possesses the qualifications specified in the proviso to sub-section (2) of section 3.5

3 4

Sanjiva Rows, THE ADVOCATES ACT, 1961, 33 (6th ed., 1997). Clause (bb) omitted by Act 38 of 1977, sec. 3(w.r.e.f 31-10-1977). Earlier clause (bb) was inserted by Act 107 of 1976, sec 4 (w.e.f. 15-10-1976). 5 Inscribed by Act 60 of 1973, s. 5 (w.e.f. 31-1-1974).

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(2) There shall be a Chairman and a Vice-Chairman of the Bar Council of India elected by the Council in such manner as may be prescribed.6 (2A) A person holding office as Chairman or as Vice-Chairman of the Bar Council of India immediately before the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), shall, on such commencement, cease to hold office as Chairman or Vice-Chairman, as the case may be: Provided that such person shall continue to carry on the duties of his office until the Chairman or the Vice-Chairman, as the case may be, of the Council, elected after the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), assumes charge of the office. (3) The term of office of a member of the Bar Council of India elected by the State Bar Council shall7-(i) in the case of a member of a State Bar Council who holds office ex officio, be two years from the date of his election 3 or till he ceases to be a member of the State Bar Council, whichever is earlier; and (ii) in any other case, be for the period for which he holds office as a member of the State Bar Council: Provided that every such member shall continue to hold office as a member of the Bar Council of India until his successor is elected. STATUTORY PROGNOSIS; an insight I. FUNCTIONS The Bar Council of India constituted under the Advocates Act 1961 has several solemn duties to perform. Among others it has to lay down the standards of professional conduct and etiquette and also standards of legal education. The State Bar Councils does enrolment of advocates and enforcement of discipline is part of the obligations of the State Bar Council and the Bar Council of India exercises appellate jurisdiction. The Bar Council of India is a body corporate having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and to contract, and may by the name by which it is known sue and be sued. Under Section 7(1) of the Advocates Act 1961 lays down the functions of the Bar Council of India, which are as follows8:6

Subs. By Act 38 of 1977, sec.3, for sub-sections (2) and (2A) (w.r.e.f.31-10-1977). Earlier sub-section (2) was substituted by Act 107 of 1976, sec 4 (w.e.f. 15-10-1976). 7 Ins. by Act 21 of 1964, s. 2. 8 Refer Supra note 03.

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Section 7 (1) (a) .. (b) to lay down standards of professional conduct and etiquette for advocates; (c) to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council; (d) to safeguard the rights, privileges and interest of advocates; (d) to promote and support law reform; (e) to deal with and dispose of any matter arising under this Act, which may be referred to it by a State Bar Council; (f) to exercise general supervision and control over State Bar Councils; (g) to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils; (h) to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may given be in this behalf; (ia) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest; (ib) to organise legal aid to the poor in the prescribed manner; (ic) to recognise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate under this Act; (j) to manage and invest the funds of the Bar Council; (k) to provide for the election of its members; (l) to perform all other functions conferred on it by or under this Act; (m) to do all other things necessary for discharging the aforesaid functions; (2) The Bar Council of India may constitute one or more funds in the prescribed manner for the purpose of :-

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(a) giving financial assistance to organise welfare schemes for indigent, disabled or other advocates; (b) giving legal aid or advice in accordance with the rules made in this behalf; (c) establishing law libraries. (3) The Bar Council of India may receive any grants, donations, gifts or benefactions for all or any of the purposes specified in sub-section (2) which shall be credited to the appropriate funds constituted under that sub-section 6, 7, 8. II. STATUTORY COMMITTEES

The Bar Council of India has several committees out of which the Legal Education Committee and the Disciplinary Committees are Statutory Committees. Legal Education Committee The Legal Education Committee consists of five Members of the Bar Council of India and five Members co-opted from outside and they represent Judiciary, Law Ministry, University Grants Commission and Academicians. This is a high powered committee which makes recommendations to the Bar Council of India on all matters pertaining to Legal Education in the country. The Legal Education Committee elects its own Chairman. The Legal Education Committee of the Bar Council of India during the year met 5 times to transact business. Disciplinary Committees One of the important functions of the Bar Council of India is to lay down standards of professional conduct and etiquette for Advocates under section 7(1)(b)(c) and (d) read with Section 49 (1)(c) of the Advocates Act,1961. For this purpose u/s 35 of the Act complaints against Advocates for professional and other misconduct are received by the State Bar Councils. The Bar Council of India constitutes the Diciplinary Committees. Every Committee consists of three Members out of which two Members are from the Bar Council of India and the third Members is co-opted from outside to enquire into the professional and other misconduct of advocates on the rolls of various State Bar Councils in the country. Under section 35(3) of the Act the Disciplinary Committees of the Bar Councils can reprimand the 6|Page

Advocate, suspend or remove the name from the roll of Advocates. The Disciplinary Committee of the Bar Councils have same powers as are vested in the Civil Court under Code of Civil Procedure,1908 in respect of summoning the witnesses and recording the evidence and appointment of Commissions. Under section 37 of the Act the appeal lies before the Bar Council of India against the order of the Disciplinary Committee of the State Bar Councils. If the case is not disposed of within the statutory period of one year from the date of the receipt of the complaint or the date of initiation of the proceedings at the instance of State Bar Council, the same is transferred to the Bar Council of India under section 36B(1) of the Act. The Disciplinary Committees of the Bar Council of India continue the original case from the stage at which it was so left by the State Bar Council. The Disciplinary Committees of the Bar Council of India discharge the work of an appellate authority as well as exercise original jurisdiction. Other Committees The Bar Council of India has also other Committees viz., Executive Committee, Legal Aid Committee, Advocates Welfare Fund Committee, Rules Committee and various other Committees formed to look into specific issues arising from time to time. III. STATUTORY POWERS Punishment of advocates for misconduct - Section 35. (1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.9

(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.

N. M. Mirzan v. The Disciplinary Committee of Bar Council of Maharastra and another : Supreme Court Vol 2(2) 1973 JBCI; 38.

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(2) The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate- General of the State. (3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely:(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed; (b) reprimand the advocate; (c) suspend the advocate from practice for such period as it may deem fit; (d) remove the name of the advocate from the State roll of advocates. (4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India. (5) Where any notice is issued to the Advocate-General under subsection (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.10

Disciplinary powers of Bar Council of India- Section 36. (1) Where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that any advocate 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 committee. (2) Notwithstanding anything contained in this Chapter, the disciplinary committee of the Bar Council of India may, either of its own motion or on a report by any State Bar Council or on an application made to it by any person interested], withdraw for inquiry 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.

10

B. M. Madnani v. Commissioner of Workmans Compensation, Bombay : Vol (1) 1972 JBCI:75.

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(3) The disciplinary committee of the Bar Council of India, in disposing of any case under this section, shall observe, so far as may be, the procedure laid down in section 35, the references to the AdvocateGeneral in that section being construed as references to the Attorney-General of India. (4) In disposing of any proceedings under this section the disciplinary committee of the Bar Council of India may make any order which the disciplinary committee of a State Bar Council can make under subsection (3) of section 35, and where any proceedings have been withdrawn for inquiry before the disciplinary committee of the Bar Council of India, the State Bar Council concerned shall give effect to any such order.11 Powers of disciplinary committee 42. (1) 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 (5 of 1908), in respect of the following matters, namely:-(a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring discovery and production of any documents; (c) receiving evidence on affidavits; (d) requisitioning any public record or copies thereof from any court or office; (e) issuing commissions for the examination of witnesses or documents; (f) any other matter which may be prescribed: (2) 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 purposes of sections 480, 482 and 485 of the Code of Criminal Procedure, 1898. (3) For the purposes of exercising any of the powers conferred by sub-section (1), a disciplinary committee may send to any civil court in the territories to which this 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. (4) Notwithstanding the absence of the Chairman or any member of a disciplinary committee on a date fixed for the hearing of a case before it, the disciplinary committee may, if it so thinks fit, hold or
11

O. N. Mahindroo v. Bar Council of Delhi: AIR 1968 S. C. 888.

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continue the proceedings on the date so fixed and no such proceedings and no order made by the disciplinary committee in any such proceedings shall be invalid merely by reason of the absence of the Chairman or member thereof on any such date: Provided that no final orders of the nature referred to in subsection (3) of section 35 shall be made in any proceeding unless the Chairman and other members of the disciplinary committee are present.12

(5) Where no final orders of the nature referred to in subsection (3) of section 35 can be made in any proceedings in accordance with the opinion of the Chairman and the members of a disciplinary committee either for want of majority opinion amongst themselves or otherwise, the case, with their opinion thereon, shall be laid before the Chairman of the Bar Council concerned or if the Chairman of the Bar Council is acting as the Chairman or a member of the disciplinary committee, before the Vice-Chairman of the Bar Council, and the said Chairman or the Vice-Chairman of the Bar Council, as the case may be, after such hearing as he thinks fit, shall deliver his opinion and the final order of the disciplinary committee shall follow such opinion.13 Powers of Bar Council of India and other committees42A. The provisions of section 42 shall, so far as may be, apply in relation to the Bar Council of India, the enrolment committee, the election committee, the legal aid committee, or any other committee of a Bar Council as they apply in relation to the disciplinary committee of a Bar Council. CONCLUSION India, known historically as Bharat, derives its name from the Indus civilisation, sprouted and developed on the banks of river Indus, the river more shrouded in mythology than in history. Bharat, the land of ancient vedic culture, had its own neeti sastra i.e. jurisprudence, that was founded essentially on Dharma i.e. truth, fairness and tolerance. During the passage of time, many cultures and faiths visited this ancient land either as invaders or travellers or traders. They found in this green plateau a very friendly, cultured and receptive people, who gave the visitors shelter, protection and respect. Gradually, some of these visitors turned as conquerors, some other colonialists and yet others traders.

12

Sohan Lal Soni v. Mani Ram Re. Execution of order for costs made by the DC. Of a State Bar Council: Vol. 2(4) 1973 JBCI:580. 13 Adi Pherohah v. H. M. Seervai : AIR 1971 S. C.: 385, Vol 2(2) 1973 JBCI: 194.

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Thus came Britishers under the banner of East India Company. A trading company that gradually assumed military and political power, acquired vast territories and built their own empire, the extension of the British empire. They introduced English language and common law to India, two significant contributions of modern civilization. The present Indian legal system has still its umbilical chord unsevered from the common law and is largely reproduction of the common law principles, as modified to suit the Indian condition, by judicial interpretation and legislative directions over the period of years. Therefore, India became fascinated by the rule of law and the common law that she had imbibed to an extent as her colonial heritage. The Indian legal system has also taken shape almost on British model, except certain constitutional principles, which we have adopted from other countries. The modern Indian legal profession is the creation of the Advocates Act, 1961. It is conceptualised as a service oriented profession and not as a profit oriented trade. The structure of the Indian legal profession is essentially centred around a senior advocate and his junior advocates or colleagues. The profession is guided by a code of conduct and ethics framed as part of the rules of the Bar Council of India. The Bar Council of India and the State Bar Councils which are created under the Advocates Act, are mainly entrusted with the induction of the new entrance into the profession, taking care of the conduct and discipline of advocates, safeguarding the privilege and welfare of advocates and finally maintaining and improving the standard of legal education in the country. As in the case of other democratic countries like England, America etc., in India also the leaders of the national freedom struggle were the products of the legal profession. The independence movement of India was vanguarded by the legal profession and spearheaded by leading lawyers of the country. A large number of Parliamentarians in India in the post independent period were members of the legal profession. Even now, when compared to any other profession, Indian lawyers stand in the front by representation in the Indian Parliament and legislatures. In spite of the wear and tear and the erosion of values suffered during the passage of time, the legal fraternity in India remains to be the most influential seat of the society and the legal profession continues to be a noble and learned profession among all public professions, about which every lawyer in this country is proud of. It appears that under the leadership of the Bar Council of India and the State Bar Councils this hegemony and heritage could be retained and cemented.

In fact, Bar Council of India is the one and only body representing the Indian Bar, having its statutory 11 | P a g e

basis and the backing of democratic statutory elections from the primary level onwards for its constitution.

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