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ADVOCATES ACT, 1961
25 of 1961
19th May, 1961
STATEMENTS OF OBJECTS AND REASONS "The Bill seeks 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 relate to the Bar and to legal education. 2. The main features of the Bill are,- (1 ) the establishment of an All India Bar Council and a common roll of advocates, and advocate on the common roll having a right to practise in any part of the country and in any Court, including the Supreme Court; (2) the integration of the bar into a single class of legal practitioners known as advocates; (3) the prescription of a uniform qualification for the admission of persons to be advocates; (4) the division of advocates into senior advocates and other advocates based on merit; (5) the creation of autonomous Bar Councils, one for the whole of India and one for each State, 3. Following the recommendations of the All India Bar Committee and the Law Commission, the Bill recognises the continued existence of the system known as the dual system now prevailing in the High Courts of Calcutta and Bombay, by making suitable provisions in that behalf. It would, how- ever, be open to the two High Courts, if they so desire, to discontinue this system at any time. 4. The Bill, being a comprehensive measure, repeals the Indian Bar Councils Act, 1926, and all other laws on the subject. 5. The Notes on clauses explain, wherever necessary, the various provisions of the Bill." -Gaz. of Ind.,19-11-1959, Pt. II-S. 2, Ext" p. 1186. Act 14 of 1962.- The Advocates Act, 1961 provides for an autonomous Bar Council in each State and an All India Bar Council consisting mainly of the representatives of the State Bar Councils. Under the Act, a State Bar Council is to enroll qualified persons as advocates and prepare a roll of advocates practising in the State and thereafter a common roll of advocates for the whole of India is to be prepared by the Bar Council of India. The Advocates whose names are entered in the common roll would be entitled as of right to practise in all the Courts in India including the Supreme Court. 2. Provision was made in the Act for its enforcement piece-meal and Chapters I, II and VII which provide for the constitution of Bar Councils and certain transitional measures were brought into force on the 16th August, 1961. It was expected that all the Bar Councils would be constituted by December, 1961 and a common roll would be prepared soon thereafter. On that expectation, Chapter III which relates to the admission and enrolment of advocates was brought into force on the 1st December, 1961. The expectation has not however been realised. One of the State Bar Coun- cils is yet to be constituted and the Bar Council of India could not therefore be formed. 3. The delay in the constitution of Bar Councils and the preparation of the common roll has created certain difficulties. Where a State Bar Council has not been constituted there is no authority to enrol qualified persons as advocates and even where such a council has been constituted it cannot function effectively in the absence of proper rules which require the previous approval of the All India Bar Council. Moreover, even when a person is enrolled as an advocate on a State roll, he will not be entitled to practise until his name is entered in the common roll and Chapter IV is brought into force. 4. Difficulties, therefore, arose in the enrolment of proper persons as advocates and in conferring on them the right to practise. Sincesections 6and7 of the Legal Practitioners Act, 1879stood repealed from the 1st December, 1961 when Chapter III was brought into force, doubts arose whether the certificate to a pleader or a mukhatar could be issued or renewed after that date. Thus unforeseen difficulties were causing unintended hardship to certain persons and it was considered necessary to take immediate action to amend the Advocates Act, 1961 by promulgating an Ordinance. The Advocates (Amendment) Ordinance was accordingly promulgated on the 24th January, 1962 for making suitable transitional provisions to overcome the difficulties which arose in the working of the Act. This Bill seeks merely to replace the Ordinance by an Act of Parliament. Opportunity has been taken to make certain minor drafting changes in the Advocates Act.- S.O.R.- Gaz. ofind., 12-3-1962, Pt. II, S. 2, Ext" p. 12. Act 25 of 1962.- Under section 24(1)of the Advocates Act, 1961, in order to be admitted as an advocate on a State roll, a person must have obtained a degree in law and undergone a course of training, and passed an examination, prescribed by the State Bar Council. Under the proviso to that section, however, persons who have obtained their degree in law from any University in India before the appointed day, that is, the 1st December, 1961 when section 24was brought into force, are entitled to be admitted as advocates even without having undergone the prescribed training and passed the prescribed examination as aforesaid. The final LL.B. examinations of the three Universities in the State of Maharashtra, namely, Poona, Marathwada and Bombay were held in October, 1961. The results of the first two Universities were published in November, 1961.
Accordingly, the students of those two Universities who passed the L L.B. examination held in October, 1961, were entitled to be enrolled as advocates. But the result of the L L.B. examination of the Bombay University was published on the 12th December. 1961, the consequence being that the students of that University who came out successful in the LL.B. examination are not eligible to be enrolled as advocates without the prescribed training and examination. This has caused unintended hardships on, and discrimination against, the students of Bombay. It is accordingly proposed to amend suitably subsection (1) ofsection 24of the Advocates act, 1961, so as to provide that those who passed their final law examination before the 31st December, 1961, would be entitled to the benefit conferred by the proviso to that sub-section. S.O.R.- Gaz. of Ind., 8-6-1962, Pt.ll, S.2, Ext., p. 250. Act :2 of 1962.--Under the Advocates Act, 1961 a State Bar Council has been empowered to enrol qualified persons as advocates on its roll. In order that a person who has obtained a degree in law may be eligible for such enrolment, he has to undergo a course of training in law and pass an examination thereafter as required bysection 24(1)(d)of the Act The State Bar Councils are required to frame rules for the purpose but they do not have effect, unless they are approved by the Bar Council of India. The persons who passed the final law examination before the 28th February, 1962 were exempted from undergoing the prescribed course of training and examination mainly because all the Bar Councils were not constituted by that time and effective rules for the purpose could not be framed. The Bar Councils have now been constituted but no effective rules for the purpose of prescribing the course of training and examination have yet been made. It may still take some considerable time for all the State Bar Councils to make the necessary rules and get them approved by the Bar Council of India. 2. Difficulties have arisen on account of the inordinate delay in framing the necessary rules. The persons who have passed their final Law examination after the 28th February, 1962 are not able to undergo the necessary training in the absence of proper rules. This is causing undue hardship to them. Representations have been received from various Slates and Universities urging upon the Government to undertake immediate steps for removing the difficulties experienced by these Law graduates. 3. It is, therefore, proposed to amend the Act empowering the Central Government to make roles for State Bar Councils to provide for a course of practical training in law and the examination to be passed after such training. This would be an enabling provision and the Central Government would exercise the power only when it is necessary to do so. When, however, any State Bar Council makes any effective rules for the purpose, the rules made by the Central Government would cease to be in force on a notification issued in this behalf. 4. There are some practising lawyers in Tripura, Manipur and other parts of India who are not legal practitioners underthe Legal Practitioners Act, 1879or the Bombay Pleaders' Act, 1920, While the Act provides for the issue or renewal of certificates of practice to legal practitioners under these Acts, difficulties have arisen in the case of lawyers to whom other laws apply. Opportunity is being taken to remove this difficulty by making a minor amendment insection 58(4)of the Act. 5. The Bill seeks to achieve these objectives.- S.O.R. -Gaz. of Ind., 13-8-1962, Pt. II, S. 2, Ext., p.641. Act 21 of 1964.- The working of the Advocates Act, enacted in May, 1961, has revealed certain practical difficulties and representations in this behalf have been received from various State Bar Councils and other associations. The Bar Council of India has also suggested certain amendments to the Act. Difficulties were being experienced mainly in regard to the functioning of the Bar Councils and the Committees thereof and also in regard to the enrolment as advocates of certain classes of persons who may not fall strictly within the scope ofsections 17and24of the Act. It is considered necessary that the Act should be suitably amended for removing such difficulties and for facilitating the implementation of its provisions. 2. The Act provides for the general supervision and control of the Bar Council of India over all State Bar Councils in order that they may, in the exercise of their powers, follow a uniform all-India policy. The powers given to the Bar Council of India in this behalf are, however, inadequate and it is considered necessary to enlarge its powers. It is therefore proposed to empower the Bar Council of India to issue appropriate directions to a State Bar Council or a Committee thereof, and also to exercise powers of revision in relation to any proceeding disposed of by a State Bar Council. It is also proposed to enlarge the appellate jurisdiction of the Bar Council of India. It is further proposed to give wider rule-making powers to the Bar Council of India. For the efficient and smooth working of the Act, it is also considered necessary to vest in the Central Government powers to make rules in re- spect of matters which may be considered necessary. 3. The Slate Bar Councils have been given wide powers under the Act in respect of various matters, including disciplinary matters. It is considered that in the interests of efficient functioning of a State Bar Council, it should consist of some advocates who have at least ten years' standing. There was such a provision inthe Indian Bar Councils Act, 1926. It is accordingly proposed to provide that, as nearly as possible one-half of the elected members of every State Bar Council should be advocates of not less than ten years' standing. The other principal amendments proposed in the Bill are- (1) that the term of office of a member of the Bar Council of India elected by a State Bar Council should normally be for the same period for which he holds office as a member of a State Bar Council; (2) that the Bar Council of India should be empowered to form more than one disciplinary committee, and that the disciplinary committee of a Bar Council should consist of three members only, one of whom should be a co-opted member; (3) that the Bar Council of India should be empowered to refuse, in suitable cases, the applications for the transfer of the name of an advocate from one State roll to another; (4) that the Bar Council of India should be permitted to prepare and maintain the common roll in such manner as it thinks fit; (5) that certain categories of persons who may not at present be entitled to be enrolled as advocates should be so entitled; (6) that the State Bar Council should have more effective control over its enrolment committees; and (7) that the disciplinary jurisdiction of Slate Bar Councils should be extended to certain proceedings which are not at present covered by the Act. 4. The Bill seeks to achieve these objects. Opportunity has also been taken to make certain other amendments of a minor character. 5. The notes on clauses appended to the Bill explain the provisions thereof. -S.O.R.-Gaz. of Ind., 18-4-1964, Pt.ll, S.2, Ext., p. 297.
Act 107 of 1976.- "Experience gained in the practical working of the Advocates Act, 1961 has necessitated the following amendments. (i) Abolition of the Dual SystemThe Indian High Courts Act, 1861(commonly known as the Charter Act) passed by the British Parliament enabled the Crown to erect and establish High Courts in India by Letters Patent and these Letters Patent authorised and empowered the High Courts tomake rules for enrolment of advo- cates and attorneys (commonly known as solicitors). Under these rule',, a suitor on the original side of the High Courts at Bombay and Calcutta has to approach an advocate only through the conduit of a solicitor. Though the rules of the High Courts have minimised this compulsion recently, complaints have been voiced against the system mainly on the ground that it imposes a double burden on a poor litigant who is required to pay fees to two sets of professionals and it has been suggested that the two classes of professionals, namely, advocates and solicitors that stand between the law and the lay should be amalgamated into a single class of advocates. It is proposed to give effect to the suggestion by abolishing the dual system with a view to simplifying and streamlining Court procedure, avoiding stratification of the profession and reducing the cost of litigation keeping the needs of the consumer of the legal process as a matter of paramount importance. (ii) Reducing the share of the Bar Council of India in the enrolment fees Presently out of Rs. 250 paid by an applicant for enrolment as advocate, the share of the apex body, namely, the Bar Council of India is 40 per cent and the remainder is retained by the State Bar Council where he is enrolled. The State Bar Councils have complained that they are hampered for want of funds in implementing welfare schemes like insurance and provident fund for advocates and legal aid to the poor. It is, therefore proposed that the share of the Bar Council of India in the enrolment fees should he reduced to 20 per cent from the existing 40 per cent. (iii) Making the Law Officers of the Centre and the State ex-officior Chairmen of the Bar Council of India and State Bar Councilsl respectively Under the present scheme of the Advocates Act, 1961, the posts of Chairman and Vice Chairman of the Bar Council of India as well as the StateBar Councils are elective ones. The Attorney-General of India as well as the Advocates-General of States are indubitably leaders in their own rights in the profession as being well-known for their erudition, advocacy, integrity and legal acumen. It is proposed to make these Law Officers ex-officio Chairmen of the Bar Council of India and the State Bar Councils respectively; Solicitor-General of India, the ex-officio Vice-Chairman of the Bar Council of India and the seniormost Advocate from amongst the elected members of a State Bar Council to be the Vice-Chairman of that Council. Representation is sought to be given to the (central Government on the Bar Council of India and a rotational pattern for Chairmanship amongst the Advocates-General is being introduced as respects Bar Councils constituted for territories comprising of mure than one State. Hence, the Bill."-S.O.R.-- Gaz. of lnd 24-8-1976, Pt.ll, S.2, Ext.. P.1285. Act 38 of 1977.- "The Advocates (Amendment) Act, 1976 made several changes in the Advocates Act, 1961. According to the amended Act, the Attorney-General of India and the Advocates- General of the States became the ex-officio Chairmen of the Bar Council of India and the State Bar Councils, respectively. The Solicitor-General of India became the ex-officio Vice-Chairman of the Bar Council of India; and the seniormost Advocate from among the elected members of the State Bar Council became the Vice-Chairman of the Council. In the case of the State Bar Council of Delhi, an advocate, nominated by the Central Government. became the Chairman. The Central Government was also empowered to nominate one officer as a member of the Bar Council of India for a period of two years. 2. This amendment has been criticised by several Bar Councils and members of the public and the legal profession as a retrograde step and as not conducive to the efficient and proper running of the Bar Councils and one which sets at naught the very fundamentals of autonomy of an independent profession. The Central Government has considered the matter de novo and it is proposed to amend the Act to restore the democratic principle of elected Chairman and Vice-Chairman for the Bar Council of India and the State Bar Councils. The provisions empowering the nomination of an officer on the Bar Council of India is also proposed to be omitted. To avoid any disruption in the day-to-day working of the Bar Councils, it is provided that the existing Chairman and Vice-Chairman shall carry on the duties of his respective office till the new Chairman or Vice-Chairman, as the case may be, duly elected, assumes charge of the office. 3. Sections of the Act provides for a term of four years for office of elected members of the State Bar Councils. As election to the State Bar Councils is a time-consuming process and involves considerable expenditure the term of office of the members of the State Bar Councils, in relation to which the term has not already expired, is proposed to be increased to five years from the existing four years. 4. One of the major changes brought about by the Advocates (Amendment) Act, 1976, was the abolition of the dual system in the High Courts of Bombay and Calcutta. In Calcutta, however, it was not necessary to possess a Degree in Law for a person to enter into agreement of articleship. In order to remove the hardship caused to the articled clerks who have entered into agreement of article- ship before the 31st December, 1976 and who have passed the preliminary examination but not passed the intermediate/ Final examination, it is proposed to empower the Calcutta High Court to hold the Intermediate / Final examination up to 31st December, 1980 for the aforesaid articled clerks, and such of those articled clerks who pass the final examination will be eligible to be enrolled as advocates. 5. Since Parliament was not in session and urgent action was called for it was considered necessary to issue the Advocates (Amendment) Ordinance, 1977 and the same was promulgated on the 31st October, 1977. 6. This Bill seeks to replace the Ordinance by an Act of Parliament.''-S.O.R.- Gaz. of Ind.,18-1 1- 1977, Pt. II, S. 2, Ext., p. 574. Act 47 of 1980.- The class of legal practitioners known as attorneys was abolished by the Advocates (Amendment) Act, 1976 and the pre-existing attorneys were required to become, advocates under the Advocates Act. With a view to protecting their seniority, it is proposed to amendsection 17of the Advocates Act to provide that the seniority of an attorney who has become an advocate .shall be determined by the date of his enrolment as attorney. 2. Undersection 23of the Advocates Act, 1961, the Attorney-General of India, "the Solicitor- General of India and the Additional Solicitor-General of India have in that order pre-audience over all other advocates. A second Additional Solicitor-General has been appointed. 'For the better discharge of the legal business of Government, on the same terms and conditions of service as the Additional Solicitor-General and with the same functions. It is, therefore, proper that his right of pre-audience should be recognised by Statute. Accordingly, it is proposed to amendsection 23of the Advocates Act, so as to give him the right of preaudience immediately after the other three Law Officers of the Government of India. 3. The Bill seeks to achieve the above objects.- S.O.R.- Gaz.. ofind., 12-6-1980, Pt. II, S. 2, Ext., p.418.
An Act to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an all-India Bar. BE it enacted by Parliament in the Twelfth Year of the Republic of India as follows: -
CHAPTER 01: PRELIMINARY
SECTION 01: SHORT TITLE, EXTENT AND COMMENCEMENT
(1) This Act may be called The Advocates Act, 1961.
2[(2) It extends" to the whole of India.]
(3) It4[shall in relation to the territories other than these referred to in sub- sec. (4), come into force] as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed5for different provisions of this Act.
6[(4) This Act shall, in relation to the State of Jammu and |Kashmir and the Union territory of Goa, Daman and Diu, come into force on such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf, and different dates' may be appointed for different provisions of this Act.]
SECTION 02: DEFINITION
7[1] In this Act, unless the context otherwise requires, -'
(a) "advocate" means an advocate entered in any roll under the, provisions of this Act;
(b) "appointed day", in relation to any provision of this Act, means the day on which that provision comes into force;
8[(c) * * * *.]
(d) "Bar Council" means a Bar Council constituted under this Act.
(e) "Bar Council of India" means the Bar Council] constituted under Section 4-for the territories to which this Act extends:
9[(f) * * * *]
(g) "High Court", except in sub-section (1)10[and sub-section (1-A)] of section 34-and in sections 42- and43-. docs not include a court of the Judicial Commissioner, and, in relation to a State Bar Council, means,-
(i) in the case of a Bar Council constituted for a State or for a State and one or more Union territories, the High Court for the State;
(ii) in the ,case of the Bar Council constituted for Delhi,11[the High Court of Delhi.]
(h) "law graduate" means a person who has obtained a bachelor's degree in law from any University established by law in India;
(i) "legal practitioner" means an advocate12[or vakil], of any High Court, a pleader, Mukhtar or revenue agent;
(j) "prescribed" means prescribed by rules made under this Act;
(k) "roll" means a roll of advocates prepared and maintained under this Act;
(l) "State" does not include a Union territory;
(m) "State Bar Council' means a Bar Council constituted under section 3-;
(n) ."State roll" means a roll of advocates prepared and maintained by a State Bar Council under section 17-,
7[(2) Any reference in this Act to a law winch is not in force in the State of Jammu and Kashmir or in the Union territory of13Goa, Daman and Diu, shall in relation to that State or that territory, be construed as a reference to the corresponding law, if any, in force in that State or that territory, as the case may be.]
CHAPTER 02: BAR COUNCILS
Clause 3. - This clause provides for the constitution of a Bar Council for each State, Union territories being attached to the neighbouring States on the lines recommended by the All India Bar Committee" - S.O.R. - Gaz. of India, 19-11-1959, Pt. II S. 2, Ext., p. 1187. Clause 3. - The Committee feel that since Delhi as the Supreme Court has assumed special importance in the legal profession, there ought to be a separate Bar Council for Delhi. In the opinion of the Committee, Bar Councils should be autonomous bodies and Judge should not be represented thereon. The Committee further consider that the strength of elected members of State Bar Councils should be increased from ten and fifteen and twenty, respectively. The Committee are of the opinion that in order to ensure representation to all shades of opinion, the mode of election to the Bar Councils should be in accordance with the system of proportional representation by means of the single transferable vote. Since the elections will be in accordance with the system of proportional representation by means of the single transferable vote, it is not necessary to give [as was proposed in the original Bill] special representation to advocates practising on the original side. The clause has been revised accordingly," - J C R -Gaz. of Ind., 28-3-1960, Pt. II ,S 2, Ext., p, 248.Clause 4 - This clause provides for the establishment of an All-India Bar Council. The composition of the Bar Council is on the lines recommended by the All-India Bar Committee. The All India Bar Committee has suggested that each State Bar Council should send one representative to the All India Bar Council and where there are more than one thousand advocates on the roll of a State Bar Council, it should be entitled to send one additional representative. In view of a large number of persons having joined the legal profession in recent years and several States having become larger units on account of the recent reorganisation of States, the number of one thousand has been changed to three thousand." - S.O.R.-Gaz. of Ind.',19-211-1959, Pt. II,S. 2, Ext., p 1187 Clause 4.- "In view of the decision of the Committee that Judges should not be represented on a Bar Council, original sub-clause (a), which gives representation to Judges of the Supreme Court on the Bar Council of India, has been omitted. Since there will be a separate Bar Councillor Delhi, original sub-clause (d), which gives representation to the Supreme Court Bar Association on the Bar Council of India, has also been omitted. The Committee feel that the representation given to State Bar Councils on the Bar Council of India should be of a uniform pattern and that no distinction should be made between States, which have a large, number of advocates and those which have a smaller number of advocates. Original sub-clause(f) has accordingly. been omitted" - J.C.R - Gaz. of Ind. , 28-3- 1960, Pt. II, S. 2, Ext., p. 248.OBJECTS AND REASONS Clause 7.- "This clause prescribes the functions of the All-India Bar Council. The main functions of the All-India Bar Council will be to prepare and maintain a common roll of advocates and to exercise general supervision and control over State Bar Councils. The Law Commission has deplored the deterioration of standards of legal education and has suggested that the All-India Bar Council should be given certain powers for improving such standards. The- All-India Bar Council has accordingly been empowered to recognise the Universities whose degrees in law will be a qualification for enrolment as an advocate. The All-India Bar Council will also lay down general standards of professional conduct and etiqutte for advocates." -S.O.R. - Gaz. of Ind., 19-1 1-1959, Pt. II .S. 2, Ext, p. 1187, Clauses 6 and 7.- "The functions of State Bar Councils and the Bar Council of India have been enlarged. The functions will now include the safeguarding of the rights, privileges and interest of advocates on its roll, promotion and support of law reform and a State Bar Council has been empowered to constitute a fund for giving financial assistance to indigent and disabled advocates." - J.C.R. - Gaz. of Ind.. 2S-3-1960, Pt. II. S. 2, Ext., p. 248.OBJECTS AND REASONS Clauses 9 and 10 - "The Committee feel that one disciplinary committee, particularly in larger States, may not be able to cope with the work. A State Bar Council has. therefore, been empowered to constitute more than one disciplinary committee, wherever necessary. The Committee consider that it is not necessary that all the members of a disciplinary committee should be members of the Bar. Council through they must necessarily be advocates on the roll of the Bar Council''-J.C.R.. Gaz. of Ind." 28-3-1960. Pt. II S.2, Ext. p.249,
SECTION 03: STATE BAR COUNCILS
(1) There shall be a Bar Council--
(a) for each of the States of Andhra Pradesh, Bihar, Gujarat.14[Jammu & Kashmir], Madhya Pradesh,15 [*]16[*]17[Karnataka], Orissa, Rajasthan and Uttar Pradesh, to be known as the Bar Council of that State,
21[(b) for the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram. Nagaland and Tripura to be known as the Bar Council of Assam. Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Aruna- chal Pradesh;
(c) for the State of Kerala and the Union territory of Laccadive, Minicoy and Amindivi Islands, to be known as the Bar Council of Kerala:
18[(cc) for the19[State of Tamil Nadu] and the Union territory of Poadicherry to be known as Bar Council of Madras;
20[(ccc) for the States of Maharashtra and Goa and the Union territories of Dadra and Nagar Haveli and Daman and Diu, to be known as the Bar Council of Maharashtra and Goa:j
22[(d) for the States of Punjab and Haryana and the Union territory of Chandi- garh, to be known as the Bar Council of Punjab and Haryana.
(dd) for the State of Himachal Pradesh, to be known as the Bar Council of Himachal Pradesh.]
(e) for the State of West Bengal and the23[Union territory of the Andaman and Nicobar Islands], to be known as the Bar Council of West Bengal; and
(f) for the Union territory of Delhi, to be known as the Bar Council of Delhi.
(2) A State Bar Council shall consist of the following members, namely:
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