History Of Legal Profession In procedures and briefs that give us a more

complex picture of law and society than the

India
study of jurisprudence, case law and civil
Editor’s Note: The history of legal
codes can achieve.
profession in India is therefore a history of
India has a recorded legal history starting
struggle: for recognition, characterized by
from the Vedic ages and some sort of civil
prestige, power and income. The
law system may have been in place during
professional standing of the advocates of
the Bronze Age and the Indus Valley
our country evolved and grew till it finally
civilization.[ii] Notwithstanding this, the
manifested itself in the Advocates Act of
development of ‘law’ as a profession is only
1961.
a recent phenomenon. The Indian legal
CHAPTER 1 profession is one of the largest in the world
INTRODUCTION and plays a vital role in the world’s largest
democracy. While the roots of this
Mastering the lawless science of our law,
profession lie before Independence, since
That codeless myriad of precedent,
then the profession has evolved immensely
That wilderness of single instances,
and currently faces various challenges; the
Through which a few, by wit or fortune led,
most important being to provide access
May beat a pathway out to wealth and
across the profession, ensure ethical
fame.[i]
foundations and modernize the practice
– Lord Tennyson
across the board.
Legal history or the history of law is the
A well-organized and independent legal
study of how law has evolved and why it
profession is an essential condition for
changed. Legal history is closely connected
proper administration of justice.[iii] It is
to the development of civilizations and is
also a necessary ingredient and guarantor of
set in the wider context of social history.
the rule of law.[iv] Its proper organization
Among certain jurists and historians of
and maintenance of its independence are,
legal process it has been seen as the
therefore, necessary for a good and just
recording of the evolution of laws and the
society. This project, traces the history of
technical explanation of how these laws
our efforts in that direction. It will be too
have evolved with the view of better
ambitious to trace that history from the time
understanding the origins of various legal
of ancient or even Muslim rulers because
concepts, some consider it a branch of
firstly, we have very little information
intellectual history. Twentieth-century
about that and secondly, our present legal
historians have viewed legal history in a
profession, like most of the other legal
more contextualized manner more in line
institutions, is based on the British model.
with the thinking of social historians.
Therefore, we trace the history of the Legal
They have looked at legal institutions as
Profession in India form the advent of
complex systems of rules, players and
British rule.
symbols and have seen these elements
The authors of the instant research hope that
interact with society to change, adapt, resist
this piece of work provides the readers with
or promote certain aspects of civil society.
a decent understanding of the history of the
Such legal historians have tended to
Legal Profession in India. The instant work
analyze case histories from the parameters
shall give a brief highlight to
of social science inquiry, using statistical
the development of the Legal Profession in
methods, analyzing class distinctions
the world before addressing India.
among litigants, petitioners and other
players in various legal processes. By CHAPTER 2
analyzing case outcomes, transaction costs, A BRIEF HISTORY OF
number of settled cases they have begun an
analysis of legal institutions, practices, THE LEGAL
PROFESSION IN THE
WORLD
The development of the legal profession
has received a lot of attention from
scholars. This can be seen in Paul
Brand’s The Origins of the English Legal
Profession (1992), and J.H. Baker’s The
Legal Profession and The Common Law –
Historical Essays (1986). The eminent
jurist Roscoe Pound also wrote The Lawyer
from Antiquity to Modern Times (1953).
In Peter Coss (Ed.), Thomas Wright’s
Political Songs of England (1996), the
following verse occurs:
“Attorneys in country, they get silver for
naught;
They make men begin what they never had
thought;
And when they come to the ring, they hop if
they can.
All they can get that way, they think all is
won for them with skill.
No man should trust them, so false are they
in the bile.”
2.1. ANCIENT GREECE
The earliest people who could be described
as “lawyers” were probably the orators of
ancient Athens. However, Athenian orators
faced serious structural obstacles. First,
there was a rule that individuals were
supposed to plead their own cases, which
was soon bypassed by the increasing
tendency of individuals to ask a “friend” for
assistance.[v] However, around the middle
of the fourth century, the Athenians
disposed of the perfunctory request for a
friend.[vi] Second, a more serious obstacle,
which the Athenian orators never
completely overcame, was the rule that no
one could take a fee to plead the cause of
another. This law was widely disregarded in
practice but was never abolished, which
meant that orators could never present
themselves as legal professionals or
experts.[vii] They had to uphold the legal
fiction that they were merely an ordinary
citizen generously helping out a friend for
free, and thus they could never organize
into a real profession—with professional
associations and titles and all the other
pomp and circumstance—like their modern
counterparts.[viii] Therefore, if one
narrows the definition to those men who
could practice the legal profession openly
and legally, then the first lawyers would
have to be the orators of ancient Rome.
2.2. ANCIENT ROME
A law enacted in 204 BC barred Roman
advocates from taking fees, but the law was
widely ignored.[ix] The ban on fees was
abolished by Emperor Claudius, who
legalized advocacy as a profession and
allowed the Roman advocates to become
the first lawyers who could practice
openly—but he also imposed a fee ceiling
of 10,000 sesterces.[x] This was apparently
not much money; the Satires of
Juvenal complain that there was no money
in working as an advocate.[xi]
Like their Greek contemporaries, early
Roman advocates were trained in rhetoric,
not law, and the judges before whom they
argued were also not law-trained.[xii] But
very early on, unlike Athens, Rome
developed a class of specialists who were
learned in the law, known as jurisconsults
(iuris consulti).[xiii] Jurisconsults were
wealthy amateurs who dabbled in law as an
intellectual hobby; they did not make their
primary living from it.[xiv] They gave legal
opinions (responsa) on legal issues to all
comers (a practice known as publice
respondere).[xv] Roman judges and
governors would routinely consult with an
advisory panel of jurisconsults before
rendering a decision, and advocates and
ordinary people also went to jurisconsults
for legal opinions.[xvi] Thus, the Romans
were the first to have a class of people who
spent their days thinking about legal
problems, and this is why their law became
so “precise, detailed, and technical.”[xvii]
During the Roman Republic and the
early Roman Empire, jurisconsults and
advocates were unregulated, since the
former were amateurs and the latter were
technically illegal.[xviii] Any citizen could
call himself an advocate or a legal expert,
though whether people believed him would
depend upon his personal reputation. This
changed once Claudius legalized the legal
profession. By the start of the Byzantine
Empire, the legal profession had become
well-established, heavily regulated, and
highly stratified.[xix] The centralization
and bureaucratization of the profession was
apparently gradual at first but accelerated
during the reign of
Emperor Hadrian.[xx] At the same time,
the jurisconsults went into decline during
the imperial period.[xxi]
In the words of Fritz Schulz, “by the fourth-
century things had changed in the eastern
Empire: advocates now were really
lawyers.”[xxii] For example, by the fourth
century, advocates had to be enrolled on the
bar of a court to argue before it, they could
only be attached to one court at a time, and
there were restrictions (which came and
went depending upon who was emperor) on
how many advocates could be enrolled at a
particular court.[xxiii] By the 380s,
advocates were studying law in addition to
rhetoric (thus reducing the need for a
separate class of jurisconsults); in
460, Emperor Leo imposed a requirement
that new advocates seeking admission had
to produce testimonials from their teachers;
and by the sixth century, a regular course of
legal study lasting about four years was
required for admission.[xxiv] Claudius’s
fee ceiling lasted all the way into the
Byzantine period, though by then it was
measured at 100 solidi.[xxv] Of course, it
was widely evaded, either through demands
for maintenance and expenses or a sub
rosa barter transaction.[xxvi] The latter
was cause for disbarment.[xxvii]
The notaries (tabelliones) appeared in the
late Roman Empire. Like their modern-day
descendants, the civil law notaries, they
were responsible for drafting wills,
conveyances, and contracts.[xxviii] They
were ubiquitous and most villages had
one.[xxix] In Roman times, notaries were
widely considered to be inferior to
advocates and jurisconsults.[xxx] Roman
notaries were not law-trained; they were
barely literate hacks who wrapped the
simplest transactions in mountains of legal
jargon since they were paid by the
line.[xxxi]
2.3. MIDDLE AGES
After the fall of the western Empire and the
onset of the Dark Ages, the legal profession
of Western Europe collapsed. As James
Brundage has explained: “[by 1140], no one
in Western Europe could properly be
described as a professional lawyer or
professional canonists in anything like the
modern sense of the term ‘professional.’
”[xxxii] However, from 1150 onward, a
small but increasing number of men
became experts in canon law but only in
furtherance of other occupational goals,
such as serving the Roman Catholic
Church as priests.[xxxiii] From 1190 to
1230, however, there was a crucial shift in
which some men began to practice canon
law as a lifelong profession in itself.[xxxiv]
The legal profession’s return was marked
by the renewed efforts of church and state
to regulate it. In 1231 two French councils
mandated that lawyers had to swear an oath
of admission before practicing before the
bishop’s courts in their regions, and a
similar oath was promulgated by the papal
legate in London in 1237.[xxxv] During the
same decade, Frederick II, the emperor of
the Kingdom of Sicily, imposed a similar
oath in his civil courts.[xxxvi] By 1250 the
nucleus of a new legal profession had
clearly formed.[xxxvii] The new trend
towards professionalization culminated in a
controversial proposal at the Second
Council of Lyon in 1275
that all ecclesiastical courts should require
an oath of admission.[xxxviii] Although
not adopted by the council, it was highly
influential in many such courts throughout
Europe.[xxxix] The civil courts in England
also joined the trend towards
professionalization; in 1275 a statute was
enacted that prescribed punishment for
professional lawyers guilty of deceit, and in
1280 the mayor’s court of the city of
London promulgated regulations
concerning admission procedures,
including the administering of an oath.[xl]
2.4. LEGAL PROFESSION IN
ENGLAND
In England, the admission of lawyers has
been regulated since the middle of the 13th
century. In the late 13th century, three
critical regulations were adopted[xli] – (a)
the Statute of Westminster I, chapter 29
(1275); (b) The London Ordinance of 1280;
and (c) the Ordinance of 1292, de Attornatis
et Apprenticiis. During the medieval
period, further regulations were enacted,
called the Statute, 4 Henry IV, chapter 18
(1402) and the Ordinance, 33 Henry VI,
chapter 7 (1455). In addition, judges have
always used their inherent power to control
the admission of lawyers and check their
misconduct.
2.5. PROFESSIONAL
CONDUCT AND THE LAW
SOCIETY
The attorneys were expelled from the
principal Inns of Court in the 16th century
and in 1739 they formed a professional
group called “Society of Gentleman-
Practicers in the Courts of Law and
Equity”.[xlii] Thus the Law Society was
born, though it was not until 1986 that the
Law Society formed a committee to collect
and draft principles of professional
conduct. Now there exists the Guide to
Professional Conduct of Solicitors
reflecting the ideals of modern solicitors as
well. Both branches of the English legal
profession had the same core duties over the
centuries of litigation: fairness,
competence, loyalty, confidentiality,
reasonable fees and service to the poor.
Nicholas, in Introduction to Roman law,
stated that the Roman jurists were not paid
for their work, but were supposed to
function due to a keen sense of public
service. In Europe, lawyers were under an
oath, which was an essence, a condensed
code of legal ethics.[xliii]
In France, lawyers had to take an oath
which included a pledge of care, diligence
and an agreement to support only just
causes. In France, the oaths were taken by
ecclesiastical lawyers and the French legal
tradition had a lasting influence even
outside France in Switzerland and other
parts of Europe.[xliv]
The concept of a lawyer as an officer of the
Court arises from the Roman idea of a
lawyer being an ‘advocatus’, who when
called upon by the praetor to assist in the
cause of a client, was solemnly
reprimanded to “avoid artifice and
circumlocution”.[xlv]
CHAPTER 3
HISTORY OF THE
LEGAL PROFESSION IN
INDIA
3.1. INTRODUCTORY
The Legal Profession is an important limb
of the machinery for the 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 favor 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.”[xlvi] It is,
therefore, in the fitness of things to take
note briefly of the development of the legal
profession in India.
The history of the legal profession in India
can be traced back to the establishment of
the First British Court in Bombay in 1672
by Governor Aungier. The admission of
attorneys was placed in the hands of the
Governor-in-Council and not with the
Court. Prior to the establishment of the
Mayor’s Courts in 1726 in Madras and
Calcutta, there were no legal practitioners.
3.2. MAYOR’S COURT
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.[xlvii] No change was effected in
this position when a fresh Charter was
issued in 1753.[xlviii] No organized legal
profession came into being in the
Presidency Towns during the period of the
mayor’s Courts.[xlix] They who practiced
law were devoid of any legal training or any
knowledge of the 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.[l]
3.3. SUPREME COURTS
3.3.1. Regulation Act, 1773.
The first concrete step in the direction of
organizing a legal profession in India was
taken in 1774 when the Supreme Court was
established at Calcutta. 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. Under
CI.11 of its Charter, the Supreme Court was
empowered to approve, admit and enroll
such and so many Advocates and
Attorneys-at-law, as to the Court shall deem
fit. 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 the power to remove any
Advocate or Attorney on a reasonable
cause. No other person whatever, 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. 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 British
Attorneys or Solicitors. As CI.11 of 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 indigenous Indian legal
practitioner had no entry in this Court.
The Charter of 1774 introduced the British
system of legal practice in Calcutta.[li]
The similar position obtained in the two
other Supreme Courts at Bombay and
Madras. 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.
Under CI.11 of the Charter, the Supreme
Court at Calcutta could admit Advocates
and Attorneys who could “appear, plead
and act for the suitors of the Court.” But, the
Supreme Court provided for the Advocates
and Attorneys to exercise the ordinary
powers of their respective professions-
Advocates having power to appear and
plead and Attorneys to appear and act, for
the suitors. Similar was the position in other
Supreme Courts as well. Thus, the two
grades of the legal practice became distinct
and separate as they were in England.
Commenting on the position prevailing at
this time, the Supreme Court of India
observed in Aswini Kumar Ghosh v Arbind
Bose:[lii]
“Though the Supreme Court was given by
the Charter Acts and the Letters Patent
establishing them, power to enroll
advocates who could be authorized by the
rules to act as well as to plead in the
Supreme Courts, Rules were made
empowering advocates only to appear and
plead and not to act, while attorneys were
enrolled and authorised to act and not to
plead. In the Sudder courts and the courts
subordinate thereto, pleaders who obtained
a certificate from those courts were allowed
both to act and plead.”
3.4. COMPANY’S ADALATS
3.4.1. Regulation VII of 1793.[liii]
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 and largely ignorant
of the law and were subject to harassment
and extortion from the ministerial officers
of the courts. The professional Vakils
charged exorbitant fees. Regulation
VII called itself on “for the appointment of
Vakils or native pleaders in the courts of
civil judicature in the Provinces of Bengal,
Bihar, and Orissa.” The regulation stated in
its preamble the objects of its enactment as
follows:
Object of Enactment: “It is therefore
indispensably necessary for enabling the
courts duly to administer and the suitors to
obtain justice, that the pleading of causes
should be made a distinct profession and
that no persons should be admitted to plead
in the Courts but men of passed by the
British Government, and that they should
be subjected to rules and restrictions
calculate to secure to their clients a diligent
and faithful discharge of trusts. The
pleaders therefore on either side whilst they
will bring the merits of every case to light
and collect into one point of view of the
information necessary to enable the courts
to form their opinion upon it, will be a check
upon them by exposing every deviation
from the law in their judgments.”
Provisions: The regulation thus laid
emphasis on the useful role which a sound
legal profession can play in the
administration of justice. The Regulations
were enacted with a view to strengthening
the legal profession in the best interests of
the litigant public, the members of the bar
serving 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 adults. The Regulation brought
some order and measure of quality to
pleading and sought to establish practice of
law as a 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 contact between the Vakil and
his client was not recognized. The fees of
the pleaders were payable only after
decision, and not before, the Court being
practically the paymaster.
An interesting provision made was that
after a party retained a pleader, he was to
execute a vakalatnama constituting him
pleader in the clause and authorizing him to
prosecute or defend the matter and binding
himself to abide by and confirm all facts
which such pleader might do or undertake
in his behalf in the cause, in the same
manner as if he has been personally present
and consenting. This provision is the
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 Muhammadan College at
Calcutta and the Hindu College at benaras.
The Sadar Diwani Adalat could appoint
other proper persons of good character and
liberal education if sufficient number of
persons qualified from the said college
were not available. Vakeels 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. A pleader showing
disrespect to the court in open court could
be fined up to one hundred rupees by the
court. The court could suspend a pleader if
convicted of encouraging litigious suits,
frauds, or gross misbehavior. Further action
against the lawyers could be taken by the
Sadar Adalat. A Vakil found to charge more
fee than authorized by the Regulation could
be dismissed by the Sadar Adalat. Taking
note of the drastic control which was
imposed on the legal profession in 1793 by
Regulation VII, a commentator has
observed:[liv]
“What was intended to be the first chatter
of the profession turned out to virtually its
death warrant. The legal profession which
had retained its independent existence
down to 1793 was broken up and the
members of the bar were made, in a sense,
subordinate to the Courts and they were
still left an appearance of freedom within
narrowly circumscribed limits.”
The provisions in the Regulation were not
fully consistent with the objects stated in
the Preamble thereto. In effect, the Vakils
were converted into servants of the court. It
was doubtful if Vakils being under tight
control and supervision of the courts could
effectively discharge another function
envisaged of them in the Preamble, viz., to
point out any deviations from the law made
by the courts.
3.4.2. Regulation XXVI of 1814[lv]:
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
purpose of the Regulation as stated in its
Preamble was:
“For reducing into one regulation, with
amendments and modifications the several
rules which have been passed regarding the
office of the Vakeel or native pleader in the
Courts of Civil Judicature.”
Provisions: This consolidating and
amending Regulation came into force on 1
February 1815 throughout the whole of the
territory subject to the Presidency. The
power for licensing, disciplining and
removal of Vakils which was hitherto
vested in the Sadar Adalat was now
conferred by the Regulation in the
Provincial court also. Whenever the
appointment of a Vakeel was required in
any court, the judge was to nominate some
suitable person for the approval of the
Provincial Court. The only person of Hindu
or Muhammadan persuasion were eligible
for appointment as pleaders.
The rule 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. Vakeels were to subscribe to
several agreements as required by the
Regulations, viz., not to receive less than
the prescribed rates of fees[lvi]; not to plead
in other courts than to which attached. The
disciplinary powers over the Vakeels were
re-enacted in substantially the same form as
in the 1793 Regulations.
The power of dismissing Vakeels has
vested in the Sadar Diwani Adalat as well
as the Provincial Court, and a Zillah and
city court could suspend a Vakeel. Even the
professional work of the Vakeels came
under the scrutiny of the courts. The courts
were required to carefully point out to the
notice of the Vakeels such part of their
pleadings as were irrelevant, and otherwise
objectionable, and to record their censure of
any Vakeel whose conduct was opposed to
the practice of the court as laid down by
rules or otherwise demanded an
inadversion.
3.4.3. Regulation of 1831
Regulation V of 1831 prescribed that vakils
need not Hindu or Muhammadan, but could
be persons belonging to any religion.
Bengal Regulation XII of 1833 modified
the provisions of the earlier regulations
regarding selection, appointment
remuneration of the pleaders. The
regulation permitted any qualified person of
whatever nationality or religion to be
enrolled as a pleader of Sadar Diwani
Adalat. The parties were also given
freedom to settle with the pleaders any fees
for their professional services.[lvii]
3.4.4. Madras and Bombay Regulations
Madras Regulation X of 1802 copied
verbatim Bengal Regulation VII of
1793 with minor verbal attractions. One
notable difference being that pleaders were
permitted to stipulate for more, but not less,
than the regulation fee payable to
them. Madras Regulation XIV of
1816 was modeled on Bengal Regulation
XXVII of 1814. It provided for some
decentralization of powers of the courts
over Vakils.
In Bombay, Regulation XIV of 1802 was a
consolidating regulation modeled entirely
on Bengal regulation verbatim with minor
variations here and there. Further
consolidation of the regulations relating to
legal practitioners was affected
by Regulation I of 1827 which repealed all
the previous Regulations on the subject.
The Regulation went much further than the
Bengal regulations e.g., every person duly
qualified was entitled to get a sannad to
practice without any reference admitted to
practice in a court and henceforth any
qualified person of good character was
enacted between the Vakil and the client
was recognized and a lawyer could agree
with his client for a larger or smaller fee
than the established fee.[lviii]
3.4.5. The Legal Practitioners Act,1846
The Legal Practitioners Act (1 of 1846),
which was the first All-India law
concerning the pleaders in the mofussil,
made several important innovations,
namely:
1) The office of the pleaders in the courts of
the Company was thrown open to all
persons of whatever nation or religion,
provided he has duly certified (in such
manner as directed by the Sadar Courts) to
be of good character and duly qualified for
the other 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 as 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”[lix] although it left unsolved
the important question of the right of vakils
to practice in the Supreme Courts.[lx]
The Legal Practitioners Act, 1853 (Act
XX of 1853), declared every Attorney on
the roll of any of Her Majesty’s Supreme
Courts to be entitled to be plead in any of
the Company’s Sadar Adalat. The
Barristers and Attorneys of the Supreme
Courts were permitted to plead in the
Company’s Adalat (subordinate to the
Sadar Adalats) as well. Thus, while
Barristers and practitioners were rigorously
kept out of the three Supreme Courts. The
reason was that the authorities held a poor
opinion of the native lawyers and it was
thought that appearance of English
Barristers in the Company’s Adalats would
improve the situation.[lxi]
The Act also did away with the system of
compulsory attendance of the pleaders in
the court to which they were attached.
Henceforth no pleader was bound to attend
in any court of company on any day fixed
for the transaction of civil business or to
notify the court his inability to attend unless
he was employed in some business or cause
which according to the court practice, might
be heard or transacted herein on the
day.[lxii]
3.4.6. Pleaders, Mukhtars and Revenue
Agents
For long there functioned non-licensed
inferior grades of practitioners in the
mofussil, known as mukhtars, who
practiced in criminal courts as well as acted
as solicitors for the pleaders. There also
functioned revenue agents in revenue
offices. All these were recognized and
brought under control of the courts for the
first time through the pleaders, Mukhtar,
and Revenue Agents Act XX of 1865. The
High Courts were authorized to make the
rules for the qualifications, admission and
enrollment of proper persons to be Pleader,
Mukhters, for the fee to be paid for the
examination, admission and enrolled.
Revenue Agents who worked in the
revenue offices and courts were also given
status as legal practitioners by this Act.
They were deemed to be the lowest in grade
and did not play a significant part in the
development of the legal profession.[lxiii]
3.5. HIGH COURTS
3.5.1. Three Categories of Practitioners
In 1861, legislation was passed by the
British Parliament to establish High Courts
at Calcutta, Madras, and Bombay. At this
time, there were in existence three bodies of
practitioners in the Supreme Courts and, the
Sadar Adalats-Advocates, Attorneys and
Vakils. CI9 of the Letters Patent of 1865 of
the High Court of Calcutta empowered the
Court “to approve, admit and enroll such
and so many Advocates, Vakils and
Attorneys as to the said High Court shall
deem fit.” These persons were “authorized
to appear for the suitors of the High Court,
and to plead or to act, or to plead and act for
the said suitors, according to as High Court
may by its rules and directions determine,
and subject to such rules and
directions.”[lxiv]
CI.10 of the Letters Patent ran as follows:
“…the said High Court of Judicature at
Fort William in Bengal shall have power to
make rules for the qualification and
admission of proper persons to be
advocates, Vakeels, and Attorneys-at-law
of the said High Court and shall be
empowered to remove or to suspend from
practice, on reasonable cause, the said
Advocates, Vakeels, or Attorneys-an-laws ;
and no person whatsoever, but such
Advocates, Vakels or Attornies shall be
allowed to act or to plead for on behalf of
any suitor…”[lxv]
Similar provisions were made in the
Charters of the High Courts of Bombay and
Madras.
The admission of Vakeels to practice before
these High Courts put an end to monopoly
which the Barristers had enjoyed in the
Supreme Courts preceding the High Courts.
This very much increased the practice and
prestige of the India Lawyers by giving
them opportunities however achieved
without some struggle. The Commissioners
appointed to arrange the merger of the
Sadar Adalat and the Supreme Court had
suggested that the proposed High Court
benches be exclusively British and that the
bar is open only to the Barristers.[lxvi] But,
this suggestion was opposed by several
persons on the ground that the exclusion of
Indians would nourish class antipathies and
injure “at once the state and the individual
by depriving the public of the service of the
ablest men, preventing wholesome
competition, and unduly exalting some
without reference to their personal merits
and depressing others.”[lxvii]
According to the rules framed by the
Chartered High Courts, speaking broadly,
there were three categories of legal
practitioners: Attorneys, Advocates, and
Vakils. Advocates were mainly the
Barristers of England or Iceland or the
members of the faculty of Advocates of
Scotland. The Vakils were Indian
Practitioners.[lxviii]
To begin with, on the Original side of the
High Courts only Advocates were entitled
to appear and plead, on the instruction of
Attorneys. On the original side the High
Court, solicitors and Advocates remain
distinct. This differentiation in the function
of legal practitioners was continued under
the notion that the High Courts, in the
exercise of its Ordinary original
Jurisdiction, was the successor of the
Supreme Court. On the other hand, the
Advocates were entitled both to act and
plead on the Appellate Side of the High
Court and its subordinate courts. This was
because of the feeling that the High Court,
on its appellate side, inherited the
jurisdiction and powers of the Sadar
Adulates. Because of these distinctions, the
Vakils were not allowed to act or plead on
the Original Side, but they could both act
and plead on the Appellate Side.[lxix]
3.5.2. Madras H.C.
Within a short time, the Madras High Court
altered its rules. As early as 1866, this Court
permitted Vakils admitted under the rules
of 1863[lxx] and Attorneys to appear, plead
and act for suitors on the Original Side. The
result, therefore, was that in the Madras
High Court there remained no distinction
between Barristers, Vakils and Attorneys as
regards their rights to appear and plead on
the Original Side. Under the new rules,
while the vakils and Attorneys could also
act on the original side, the Advocates had
to be instructed by an Attorney.
These rules admitting Vakils on the
Original Side were challenged by the
Attorneys of the High Court in the High
Court itself in In the Matter of the Petition
of the Attorneys.[lxxi] Their grievance was
that these rules had worked great injustice
to the Attorneys and Advocates of the Court
by taking away a large portion of their
practice. Also, the rules had admitted to the
Original Side a set of practitioners who
were less specially and professionally
educated for the practice of law than the
Advocates and Attorneys. These rules were
challenged as being ultra vires the
explanatory letter of the Secretary of State
enclosing the Charter of 1862.
The relevant clauses in the Charter of
1865 concerning admission of Advocates,
Attorneys and Vakils to practice in the
Courts were challenged as being ultra vires
the Indian High Courts Act. The High Court
ruled that the rules permitting the Vakils to
appear, plead and act on the Original Side
of the High Court were not ultra vires.
These rules were framed under Clauses 9
and 10 of the Letters Patent of 1865. The
Court observed:
“…the High Court is empowered by the
Letters Patent to enroll Vakils, who are
thereby expressly authorized (if the Court
so directs) to appear, plead and act for the
suitors of the court and not merely for the
suitors of the division of the Court.”
Having upheld the legality of the rules, the
High Court did however point out an
anomaly in the existing situation, viz., “The
largest powers are given to one class of
practitioners (the Vakils) who are certainly
not in advance of the Advocates and
Attorneys of the Court in respect of
attainment and professional skills.”
Therefore, the Court suggested that “some
change is required in the present system of
admitting Vakils and in the rules of the
ascertainment of their qualifications
whereby we hope to secure professional
attainments proportioned to their large
privileges.”[lxxii]
The matter again came before the High
Court in 1916 in Namberumal Chetty v.
Narasimhachari,[lxxiii] and the rules
permitting the Vakils to appear, plead and
act for suitors in the matters of ordinary
original jurisdiction were held to be within
the powers conferred on the Court by the
Letters Patent of 1865. The Court also ruled
that S4 of the Legal Practitioner Act,
1879, did not prevent a Vakil from
appearing on the Original Side of a High
Court.
3.5.3. Bombay H.C.
The Original Side of the Bombay High
Court was initially a close preserve of the
Barristers alone could be enrolled as
Advocates entitled to appear and plead on
the Original Side on the instructions of any
Attorney. The Vakils were not originally
permitted to act or plead on the Original
Side. This position, however, was relaxed
in course of time and a non-Barrister, on
passing an examination conducted by the
High Court, became eligible for enrolment
as an Advocate entitled to appear and plead
on the Original Side.[lxxiv] The only
limitation was that the Advocates’ of the
Original Side, whether Barristers or non-
Barristers, had to be instructed by an
Attorney before they could appear and
plead.
The Vakils of the Calcutta High Court was
not entitled to act or plead on the Original
Side or in appeals from the Original Side.
The High Court maintained this distinction
right up to the year 1932. [lxxv]
3.5.4. Calcutta H.C.
In course of time, the Calcutta High Court
also liberalized its rules so as to permit non-
Barrister Advocates to practice on its
Original Side as well which so far had been
preserve of the Barristers only. Thus, the
distinction between Barristers and
Advocates was abolished. There was really
no rational reason for any such distinction.
In this way what, in the words of K.M.
Munshi, was “a hated monopoly or at least
an anomaly foisted on them by an alien
race” came to an end. However, no
Advocate, whether Barrister or not, could
act on the Original Side but had to appear
and plead on the instruction of an Attorney
on record.[lxxvi]
In no High Court other than the three High
Courts, of Bombay, Calcutta, and Madras,
there was original jurisdiction.
Consequently, in the other High Courts
except for these three high Courts, there
was no distinction maintained between
Advocates and Solicitors as well as
between Advocates (who were Barristers)
and Vakils as regards their respective rights
to appear act and plead.[lxxvii]
3.5.5. Non-Chartered H.C.s
In the non-Chartered High Courts, there
used to be the Advocates were usually the
Barristers, Pleaders, and Mukhtars differed
from High Court to High Court in the courts
below the High Courts, there used to be
different classes of legal practitioners. The
setting up of a regular hierarchy of courts of
varying jurisdiction and important
necessarily led to the creation of different
categories of legal practitioners. Because,
of paucity of law graduates, permission was
granted, to others also to practice as Vakils
after having passed an examination
conducted by the High court
concerned.[lxxviii]
3.6. THE LEGAL
PRACTITIONERS ACT.1879
The Act, XVIII of 1879, was enacted to
consolidate and amend the law relating to
legal practitioners in the mofussils.[lxxix]
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 Court 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.
3.6.1. Six grades of Legal Practitioners
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 Vakil on the
roll of any High Court to practice in his own
High Court, in all the courts subordinate
thereto, in any court in British India other
than a High Court on whose roll he was not
entered or with the permission of the court
in any High Court on whose roll he was not
entered. There was a provision, however, to
this section to the effect that this power
would not extend to the Original
jurisdiction of the High Court in a
Presidency Town. An Attorney on the roll
of any High Court was enabled to practice
in all the courts subordinate to such High
Court and also in any court in British India
other than a High Court established by
Royal Charter on the roll of which he was
not entered. The right to practice thus
conferred by these provisions included the
rights to plead as well as to act in the
courts.[lxxx]
The Act conferred power on the High Court
not established under a Royal Charter to
make rules, with the previous sanction of
the Provincial Government, to prescribe the
qualifications, admission and certificates of
proper persons to be Pleaders
and Mukhtars of the High Court as well as
the subordinate courts, and for suspension
and dismissal of these persons. But a
Chartered High Court could make such
rules for Pleaders and Mukhters of
subordinate courts without the approval of
the Provincial Government concerned.
Under the rules framed by the High Courts
under the Legal Practitioners Act, law
graduates who not possesses the additional
qualification to enabled to them to be
enrolled as the High Court Vakils, and non-
law graduates after passing the pleaders
examination conducted by the high Court,
were enrolled as Pleaders to practice before
subordinate courts. These pleaders could
not practice before the High Court, unless
after a certain numbers of years practice
they enrolled themselves as High Court
Vakils. In course of time, the High Courts
framed rules under S.6 of the Act
permitting only those who had taken an
L.L.B. degree from an Indian University to
enroll as Vakils.
Besides the Pleaders, there were
Mukhtarship who after passing the
Matriculation or equivalent examination
passed the Mukhtarship examination held
by the High Court. The Mukhtars pleaded
mainly before the criminal courts. The
Revenue Agents were to be regulated by
rules made by the Chief Controlling
revenue Authority. The legal profession in
India thus presented a very confused
picture.[lxxxi]
The Pleaders and Mukhtars of the High
Courts (except the Attorneys), and of those
of the subordinate courts, were subject to
the disciplinary jurisdiction of the High
Court under the Act.
3.6.2. The Legal Practitioner Act, 1884
The power to make rules regarding
Advocates of the High Court was also
conferred on the non-chartered High Courts
by the Legal Practitioners Act, 1884 (X of
1884). Such a High Court could make rules,
with the previous sanction of the Provincial
Government, as to the qualifications and
admission of proper persons to be
Advocates of the Court, and subject to such
rules could enroll so many Advocates asit
thought fit. 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.[lxxxii]
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 for the Calcutta University. She was
refused enrolment as Pleader. She
challenged this in the High Court of Patna.
The Court ruled that the section of the Legal
Practitioners’ Act referred to males and not
to females. This was to be expected as since
1793 no women held ever been admitted to
the roll of pleaders.
Dawson Miller, C.J. observed: “…it is not
shown that the women ever acted as
pleaders in the courts of this country. On
the contrary the enactments referred to
show that they have been invariably
excluded not by any direct prohibition but
inferentially by words appropriate only to
the male sex, as though the matter were one
well settled by inveterate usage and
requiring no express legislation.”
3.6.3. The Legal Practitioners (women)
Act, 1923
To remove doubts about the eligibility of
women to be enrolled and to practice as
legal practitioners, the Legal Practitioners
(Eomen) Act, XXIII of 1923, was enacted
to expressly provide that no woman would
by reason only of her sex disqualified from
being admitted or enrolled as a legal
practitioner or from practicing as such.
Since this enactment, women began getting
enrolled as legal practitioners and their
number has been increasing ever
since.[lxxxiii]
3.7. INDIAN BAR
COMMITTEE, 1923
Munshi Ishwar Saran moved in February
1921, a resolution in the Legislative
Assembly recommending legislation “with
a view to create an Indian Bar so as to
remove all distinction enforced by statue or
by practice between Barristers and Vakils.”
The mover of the resolution not only laid
emphasis the removal of distinction
between Barristers and Vakils but also
advocated the constitution of a recognized
body consisting exclusively of lawyers in
India to provide for legal education, to
exercise disciplinary control over the Bar
and to deal with all others matters relating
to the legal profession. This was deemed
important because many High Courts
exercised disciplinary powers over lawyers
on the theory that Vakils were officers of
the court. As finally adopted, the resolution
merely recommended the eliciting of
opinion from all quarters before
undertaking legislation in the proposed
direction.[lxxxiv]
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 Chairman of Sir Edward Chamier, a
retired Chief Justice of the Patna High
court. The Committee was composed of
four Barristers, one Attorney, one civilian
and three representatives of the Vakil Bar.
The Committee was asked to examine and
report on the proposal to constitute an
Indian Bar, whether on an all-India or
Provincial basis, and the extent to which the
existing distinction between Barristers and
Vakils might possibly be removed.
Thus, the Committee made certain
proposals to achieve “the largest degree of
unification of grades of practitioners”
which was then possible to effectuated.
Accordingly, the Committee recommended
inter alia:
(a) that in all High Courts, a single grade
of practitioners entitled to plead, to be
called advocates (not Barristers), should be
enrolled, and that the grade of for
admission to plead on the Original Side of
a High Court Vakils or Pleaders be
abolished;
(b) that when special conditions are
maintained for admission to plead on the
Original Side of a High Court, the only
distinction should be within the grade
which should consist of Advocates entitled
to appear on the Original Side and
Advocates not so entitled;
(c) that Vakils fulfilling certain conditions
be admitted to practice on the original Side;
(d) that the future one-third of the High
Court Judges need not necessarily be
Barristers;
(e) that Advocates of one High Court should
be entitled to practice in another High
Court subject to the conditions to be
imposed by the Bar Council of the latter
court, or by the court where there is no Bar
Council.
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
continue an all-India bar Council. The
Committee suggested however that a Bar
Council should be constituted for each High
Court. But, immediately such bar Council
were to be established for a few and not all
High Courts. The Bar Council should have
the power to enquire into matters calling for
disciplinary action against a lawyer, but the
existing disciplinary jurisdiction of the
High Court should be maintained.
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) matters relating 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.
3.8. 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, 1926.[lxxxv] 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 attend 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.
3.8.1. Extent
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 to which the Act
applied.”[lxxxvi] Sections 3 to 7 of the Act
dealt with the constitution and
incorporation of a Bar Council as a body
corporate and its powers of making by-
laws.
There was to be a Bar Council for each
High Court. A Bar Council was to consist
of 15 members as follows: Advocate –
General, four persons nominated by the
High Court, of whom not more than two
could be the judges of that court; ten
members elected by the advocates of the
High Court from amongst themselves. A
Bar Council was to elect a chairman and a
vice chairman but in Madras, Calcutta and
Bombay the Advocate general was to be ex-
officio chairman of the Bar Council.
3.9. ALL INDIA BAR
COMMITTEE, 1951
The Indian Bar Councils Act had left the
pleaders, Mukhters etc. practicing in the
mofussil courts entirely out of its scope and
did not bring about a unified Indian Bar.
Further, the Councils constituted under the
Act were merely advisory bodies and were
neither Autonomous nor had any
substantial authority. The Indian Legal
profession was not satisfied with what had
been achieved by the Act of 1926. The
Indian Practitioners had three main aims in
view, namely:
1. The abolitions of all distinctions
between various classes and grades
of legal practitioner,[lxxxvii]
2. The democratization of Bar
Councils by bringing in
representatives Mofussil
Lawyers on them,[lxxxviii]
3. The taking away of the control
exercised by the High Courts over
the members of the legal profession,
and vesting the same in the Bar
Council.[lxxxix]
To end this, they continued the effort for a
long period of time. With the establishment
of the Supreme Court of India in 1950,
under the new consideration, a new
stimulus was given to the demand for a
unified All India Bar.
Accordingly, in 1951 the Govt. of India
constituted a Committee under the
chairmanship of Justice S. R. Das of the
Supreme Court to examine a report on[xc]
–
(a) The desirability and feasibility of a
completely unified Bar for the whole of
India
(b) The continuance or abolition of the
dual system of council and solicitor which
obtains in the Supreme Courts and in the
High Courts of Bombay and Calcutta.
(c) The continuance or abolition of
different classes of legal practitioners, like
advocates of the Supreme Courts,
advocates of the various High Courts,
district court pleaders, Mukhters, revenue
agents, income tax practitioners etc.
(d) The desirability or feasibility of
establishing a single Bar Council
 For the whole of India; or
 For each state
(e) The establishment of a separate Bar
Council for the Supreme Court
(f) The consolidation and revision of the
various enactments relating to legal
practitioners;
(g) All other connected matters.
3.9.1. Report of the All India Bar
Committee
The Committee reported in 1953 and
recommended the creation of a unified
national bar. The Committee recommended
that all grades of legal practitioners be
abolished and that one integrated an
autonomous All India Bar be formed. There
should be a common roll of advocates who
would be entitled to practice in all courts in
the country. The Committee accordingly
suggested compilation and maintenance of
one comprehensive common roll of
advocates.
The committee recognized that the task of
preparation of a common roll of advocates
would be difficult but was not an
impossible one. The committee made
recommendation as to how a State Bar
Council was to compile a register of all
existing advocates, Vakils and pleaders and
sent copy of the same to the All India Bar
Council which was then to compile a
common roll of advocates.[xci]
The establishment of a unified All India Bar
necessarily would require the prescription
of minimum qualification to be possessed
by a advocate. At the time the committee
went to a question qualifications required
by different High Court were not uniform.
The committee suggested that the uniform
minimum qualification for admission to roll
of advocates should be a law degree from
university obtained at least a two year study
of law after graduation as regards new
entrance, a candidate having the minimum
qualification may apply for enrollment as
an advocate to any State Bar Council. On
his name being entered in the register of
advocates of the state, his name would also
be entered in the common roll of advocates
maintained by the All India Bar
Council.[xcii]
The committee was not favour of abolition
of the dual system (advocates & attorneys)
whenever it prevails in the High Court as if
involved a division of labour and had a no.
of advantages and di not militate against the
ideal of the All India Bar. The dual system
ensured for the better preparation of the
case.[xciii]
The committee was of the view the different
classes of legal practitioners be abolished.
In earlier times, when there was a dearth of
law graduates, it was necessary to create
inferior grade of lawyers with varying
qualification to practice in subordinate
courts. So, there came into existence vakils
and advocates of the High Court as well as
pleaders and Mukhtars. In the larger interest
of the unification of the Bar the committee
recommended that in future there should be
no further recruitment of non graduate
leaders and Mukhtars, and that there should
be only one class of legal practitioners, viz.,
advocates.[xciv]
The committee also recommended the
creation and All India Bar Councils and
State Bar Councils. Under the Indian Bar
Council Act’1926, the Bar councils were
merely advisory bodies in the power of
admission, suspension and removal from
the role of advocates were entirely vested in
the respective High Courts. Subject to some
safeguards, the committee suggested that in
the interest of a Autonomous National Bar,
the power of enrollment, suspension and
removal of advocates be vested in the Bar
Councils. The committee did not feel the
need for a separate Bar Council for the
Supreme Court. Every advocate on the
common roll to be maintained by the All
India Bar Council would be entitled as of
right to practice in the Supreme Court and
be amenable to the jurisdiction of the
appropriate State Bar Council and of the All
India Bar Council.[xcv]
3.10. LAW COMMISSION
REPORT: 1958
The recommendations of the Bar
Committee were not acted upon for long.
Then India came to have a Law
Commission, and of its terms of reference
mentioned “The level of the Bar.” The law
Commission made its famous Fourteenth
report in 1953 in which, among other
things, it again recommended establishment
of a unified All India Bar, preparation of a
common role of advocates with right to
practice in all the courts. The c committee
lamented that notwithstanding the lapse of
ten years, “the Bar still remains divided into
different grades of practitioners and even
practitioners of the lowest grade, namely,
Mukhtars, a still being recruited in some of
the states”.
The Law Commission regretted that the
recommendation made by the Bar
committee as per back as March, 1953, had
not yet been given legislative effect. The
committee fully endorsed the
recommendation of the Bar committee,
1951, that there should be no further
recruitment of non graduate pleaders of
Mukhtars. The commission also endorse
the Bar committees view that the insistence
on a certain no. of years practice in a High
Court as a condition of eligibility for
enrollment as an advocate of the Supreme
Court should be abolished and that an
advocate should be left free to practice in
any court including the Supreme Court
irrespective of his standing at the bar.
The commission also agreed with the Bar
Committee that no case had been made out
for the abolition of the dual system
prevailing on the Original Side in the
Calcutta and the Bombay High Court and
that there was no reason why that system
should not continue in those two places.
The commission felt that the system made
for greater efficiency.[xcvi]
The commission also favoured division of
the Bar into senior advocates and advocates
on a voluntary basis. An advantage of the
system would be to put some work in the
hands of the junior member of the bar. The
system did not militate against the concepts
of a unified All India Bar in a common roll
of advocates entitled to practice in all courts
in the country.
The Committee emphasized the principle of
autonomy of the Bar on which the Bar
Committee of 1951 had laid stress.
Therefore, the Bar Councils would to be
entirely Autonomous Body consisting
wholly of the members of the
profession. The Bar Council would elect
their own chairmen.
3.11. THE ADVOCATES ACT,
1961
In 1961, parliament enacted the Advocates
Act to amend in consolidated the law
relating to the legal practitioner, and to
provide for the constitution for the State Bar
Council and All India Bar Council. The
Advocates Act implements the
recommendation of the Bar Committee in
the Law Commission with some
modifications. It repeals the Indian Bar
Council Act, 1926, the Legal
Practitioners Act, 1879, in other laws
under subject. The act has undergone
several amendments since its enactment in
1961. The Act extends to the whole of
India.
The Act establishes an All India Bar
Council for the first time. The Attorney
General of India in the Solicitor General of
India is the ex-officio members of the Bar
Council of India. Besides, it has one
member elected by its State Bar Council
from among its members. The Council
elects its own chairman and vice-chairman.
The Bar Council of India has been entrusted
inter alia with the following important
functions:
(1) To lay down standards of professional
conduct and etiquette for advocates.
(2) To safeguard the rights, privileges and
interest of advocates
(3) To promote legal education
(4) To lay down standards of legal
educati0on in consultation with the
universities imparting such educations in
the State Bar Councils.
(5) To recognize universities which
degrees in law shall qualify for enrollment
as an advocate and up to visit and inspect
the universities for that purpose.
(6) To exercise general supervision and
control over state bar councils.
(7) To promote and support law reform
(8) To organize legal aid to the poor.
The Act creates a State Bar Council in each
state. It is an autonomous body. The
Advocate General of the state is an 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
proportionate representation by means of
single transferable votes from amongst
advocates on the roll of the State Bar
Council. The State Bar Council has power
to elect is 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 rolls.
(c) To entertain and determine cases of
misconduct against advocates on its roll
(d) To safeguard the right, privileges and
interest of advocates on its roll
(e) To promote and support law reform
(f) To organize legal aid to the poor
Thus, every State Bar Councils prepares
and maintains a roll of an advocate as an
authenticated copy of the roll which to be
sent to the Bar Council of India.
Advocates have been classified into Senior
Advocates and other Advocates. An
Advocate may, with his consent, be
designated as a Senior Advocate if the
Supreme Court or a High Court is of
opinion that by virtue of his ability,
experience and his standing at Bar he is
deserving of such distinction. Senior
Advocates are, in the matter of their
practice, subject to such restrictions as the
Bar Council of India may, in the interest of
the legal profession prescribe
Originally, the Act had saved the dual
system i.e. Advocates and Attorneys,
prevailing in the Bombay and Calcutta
High Courts on their Original Side.[xcvii] It
was left to the two High Courts to continue
the system or not. These provisions were
deleted with effect from 1st January 1977.
The result is that, as a matter of law,
Attorneys are no longer recognized as a
separate class of lawyers. However, since
the system prevailed for a long period in the
two towns it continues there still as a matter
of practice.
Thus, admission, practice, ethics,
privileges, regulation, discipline and
improvement of the profession are now all
in the hands of the hands of the profession
itself. The legal profession has achieved its
long-cherished object of having a unified
Bar on All-India basis.
3.12. SUPREME COURT BAR
The rules of the Federal Court laid down “a
person shall not be entitled to be enrolled as
an Advocate unless he is, and has been for
not less than ten years in the case of a Senior
Advocate or five years in the case of any
other Advocate, enrolled as an Advocate in
the High Court of a Province”. Under those
rules it was not necessary that such an
Advocate should hold a degree in law of a
University.[xcviii] Any Advocate enrolled
with a State Bar Council is now entitled to
practice in the Supreme Court irrespective
of his standing at the Bar.In the Supreme
Court there exist three categories of
advocates Senior Advocates, Advocates
and Advocates on record.
A Senior Advocate is one who with his
consent may be designated as such if the
Supreme Court is of the opinion that by
virtue of ability, experience and standing at
the Bar he is deserving of such
distinction. An Advocate can become an
Advocate on record after undergoing one
year training with an Advocate on record
and passing an examination held by the
Court. He has to have an office in Delhi
within a radius of 16 kilometers of the
Court House and has to employ a registered
clerk.[xcix]. An Advocate on
record corresponds to a Solicitor in
Calcutta or Bombay and has the right both
to act and plead. Senior and other
Advocates have only the right to plead but
not act. A senior Advocate cannot appear
before the Supreme Court without an
advocate on record or without a junior in
any other court or tribunal in India. An
Advocate (other than a Senior Advocate)
cannot appear and plead before the court in
any matter unless he is instructed by an
Advocate on record. Thus, a sort of dual
system exists in the Supreme Court.
There is no separate Bar Council for the
Supreme Court. The reason is that every
Advocate practicing in the Supreme
Country is already a member of one of the
State Bar Councils and subject to its
discipline. According to the Law
Commission: “The Advocates ordinarily
practicing before the Supreme the Court
will have the opportunity of exercising their
franchise as members of the profession in
regard to the Bar Council of the State to
which they belong.”[c] They would also
have representation in the All-India Bar
Council. Under Article 145 (1) (a), the
Supreme Court has power to make rules as
to the persons practicing before it subject to
any law made by Parliament and with the
approval of the President.
CHAPTER 4
CONCLUSION
Legal history existing, the law as a
profession has evolved after thousands of
years which, no denial, is flourishing.
Through the various stages of development
has it come to the place of recognition and
social acceptance! Yet there exists some
bias and ill-informed criticisms among the
lower strata of the society besides bordering
condemnations. The immense stride that
the ‘legal profession’ has made post-
independence is to the credit of the
Government and the Bar Council of India
and various states. Globalization has had its
own contribution to the development of law
as a profession. But with globalization and
the trend of India’s emergence on the
international fora shortcomings have come
to light which immediately needs attention
and address. The immense population
growth and emerging domestic spheres
have added to the growth of the profession
and also to irreconcilable shortcomings.
Immense strides made, there still is
enormous room for evolution and
development of the profession. What is
needed is a vision based on philosophy.
The area of legal education is one where
urgent steps need to be taken to ensure that
law students receive sufficient training to
deal with the rapidly evolving practice of
law in India and abroad. It is well known
that there are various shortcomings in this
area, including issues that are generic to the
higher education space in India such as a
teaching resources deficit, access to
knowledge databases and accepted
practices, lack of monitoring and evaluation
etc. While the top law schools in India have
surmounted some of these problems, there
is a clear divide between these law schools
and the significant majority of law schools
(and law students) that are struggling to
ensure a basic level of competence in the
legal profession.
Ref :
i] Glanville Williams, Learning the Law,
Sweet & Maxwell Ltd., London, Eleventh
Edition, 2010, p. 67.
[ii] www.barcouncilofindia.org, Retrieved
on 03.05.2012.
[iii] The Law Commission in its Fourteenth
Report observed: “A well organized system
of judicial administration postulate a
properly equipped and efficient Bar”, 1958,
p. 556.
[iv] “It is essential for maintenance of the
rule of law that there should be an organized
legal profession free to manage its own
affairs….” The Rule of Law in a Free
Society. A Report on the International
Congress of Jurists, New Delhi, India,
1959, p. 311.
[v] Robert J. Bonner, Lawyers and
Litigants in Ancient Athens: The Genesis of
the Legal Profession, 1927, p. 202.
[vi] Ibid., p. 204.
[vii] Ibid., p. 206.
[viii] Ibid., p. 208-209.
[ix] John A. Crook, Law and Life of Ancient
Rome,Cornell University Press, Ithaca,
1967, p. 90.
[x] Id. Crook cites Tacitus, Annals VI, 5
and 7 for this point. For more information
about the complex political affair that
forced Emperor Claudius to decide this
issue, see The Annals of Tacitus, Book VI,
1982, p. 208.
[xi] Ibid., p. 91.
[xii] Ibid., p. 87.
[xiii] Ibid., p. 88.
[xiv] Id.
[xv] Ibid., p. 89.
[xvi] Ibid., p. 88.
[xvii] John A. Crook, Law and Life of
Ancient Rome,Cornell University Press,
Ithaca, 1967, p. 88.
[xviii] Ibid., p. 90.
[xix] A. H. M. Jones, The Later Roman
Empire, University of Oklahoma Press ,
Norman, 1964, p. 507.
[xx] Fritz Schulz, History of Roman Legal
Science, Oxford University Press, Oxford,
1946, p. 113.
[xxi] Id.
[xxii] Ibid., p. 268.
[xxiii] A. H. M. Jones, The Later Roman
Empire, University of Oklahoma Press,
Norman, 1964, pp. 508-510.
[xxiv] Ibid., pp. 512-513.
[xxv] A. H. M. Jones, The Later Roman
Empire, University of Oklahoma Press,
Norman, 1964, p. 511.
[xxvi] Id.
[xxvii] Id.
[xxviii] Ibid., p. 515.
[xxix] Id.
[xxx] Id.
[xxxi] Ibid. p. 516.
[xxxii] James A. Brundage, “The Rise of
the Professional Jurist in the Thirteenth
Century,” 20 Syracuse J. Int’l L. & Com.,
1994, p. 185.
[xxxiii] Ibid., pp. 185-186.
[xxxiv] Ibid., pp. 186-187.
[xxxv] James A. Brundage, “The Rise of
the Professional Jurist in the Thirteenth
Century,” 20 Syracuse J. Int’l L. & Com.,
1994, p. 188.
[xxxvi] Ibid., pp. 188-189.
[xxxvii] Ibid., p. 190.
[xxxviii] Ibid., p. 189.
[xxxix] Id.
[xl] John Hamilton Baker, An Introduction
to British Legal History, Butterworths,
London, Third Edition, 1990, p. 179.
[xli]
http://www.barcouncilofindia.org/about/ab
out-the-legal-profession/history-of-the-
legal-profession/, Retrieved on 03.05.2012.
[xlii] Id.
[xliii] Id.
[xliv] Id.
[xlv] Id.
[xlvi] Law Comm, XIV Report, 556 (1958).
[xlvii] Ibid., p. 37. It seems that the
Mayor’s Courts exercised power to dismiss
an attorney guilty of misconduct: See,
Love, Vestiges of Old Madras.
[xlviii] M. P. Jain, Outlines of Indian Legal
& Constitutional History, LexisNexis
Butterworths Wadhwa Nagpur, Gurgaon,
2012, p. 669.
[xlix] Id.
[l] Id.
[li] Id.
[lii] AIR 1952 SC 369.
[liii] M. P. Jain, Outlines of Indian Legal &
Constitutional History, LexisNexis
Butterworths Wadhwa Nagpur, Gurgaon,
2012, p. 670.
[liv] AIR 1923 JI. at 92.
[lv] M. P. Jain, Outlines of Indian Legal &
Constitutional History, LexisNexis
Butterworths Wadhwa Nagpur, Gurgaon,
2012, p. 671.
[lvi] On this point, clause 7 made the
following drastic provision: “All
agreements which may be entered to
between pleaders and their constituents, for
paying or receiving less than the established
fees, are to be considered null and void the
whole of Vakil’s fees, which may be
payable by the party in such cases be
forfeited to Government and the pleader
who may be convicted of having been a
party to such illicit agreement shall be liable
to immediate dismissal from his office.”
[lvii] M. P. Jain, Outlines of Indian Legal &
Constitutional History, LexisNexis
Butterworths Wadhwa Nagpur, Gurgaon,
2012, p. 672.
[lviii] Id.
[lix] See AIR 1924 JI. 13, 14.
[lx] Veeraraghavan, Legal Profession and
the Advocates Act, 1961, (1972)
14 JILI., 228,230.
[lxi] Commenting on the impact of the
Barristers and Attorney on the local bar, a
commentator in AIR 1924 JI at 132 stated
thus: “…As far as the legal Profession
practicing in the Company’s Court’s was
concerned the introduction of the Barrister
and Attorney element had a wholesome
influence. They were in no sense officers of
the court. They owed their appointment
neither to the Company’s courts nor to their
executive officers. Their interests were not
provincial and they had unlimited
opportunities in all the Presidencies being
entitled to appeal in all the courts all over
India. It must be admitted that some high
class Barristers and Attorneys improved the
general level of the profession in the early
stages and by their independence and
learning added considerably to the strength
of the Bar.
[lxii] M. P. Jain, Outlines of Indian Legal &
Constitutional History, LexisNexis
Butterworths Wadhwa Nagpur, Gurgaon,
2012, p. 673.
[lxiii] Id.
[lxiv] Ibid, p. 674.
[lxv] Id.
[lxvi] Id.
[lxvii] B. S. Baliga, Studies in Madras
Administration, 1960, p. 316. Also see, Law
and Society Review, p. 356.
[lxviii] M. P. Jain, Outlines of Indian Legal
& Constitutional History, LexisNexis
Butterworths Wadhwa Nagpur, Gurgaon,
2012, p. 674.
[lxix] Id.
[lxx] The first Charter of the High Court
was issued in 1862. Accordingly, the High
Court made rules in 1863 to admit Vakils.
[lxxi] ILR (1876-78) 1 Mad 24.
[lxxii] M. P. Jain, Outlines of Indian Legal
& Constitutional History, LexisNexis
Butterworths Wadhwa Nagpur, Gurgaon,
2012, p. 675.
[lxxiii] (1916) 31 MLJ 698.
[lxxiv] Motilal Setalvad, the first Attorney-
General of India, had passed this
examinations and thereafter he began a
successful career on the original side of the
Bombay H.C. in 1906.
[lxxv] M. P. Jain, Outlines of Indian Legal
& Constitutional History, LexisNexis
Butterworths Wadhwa Nagpur, Gurgaon,
2012, p. 675.
[lxxvi] Ibid., 676.
[lxxvii] The Allahabad High Court ruled in
Bakltawar Singh v Sandal, ILR 9 All, 617,
“that an Advocate may act for his client in
this court … and do all things that a Pleader,
i.e., a Vakil may do provided always that he
be upon the roll of the Court’s Advocate.”
[lxxviii] M. P. Jain, Outlines of Indian
Legal & Constitutional
History, LexisNexis Butterworths Wadhwa
Nagpur, Gurgaon, 2012, p. 676.
[lxxix] The Act extended to the following
territory: Lower Provinces of Bengal,
North-Western Provinces, the Punjab,
Oudh, Central Provinces and Assam.
[lxxx] M. P. Jain, Outlines of Indian Legal
& Constitutional History, LexisNexis
Butterworths Wadhwa Nagpur, Gurgaon,
2012, p. 677.
[lxxxi] Id.
[lxxxii] Id.
[lxxxiii] Id.
[lxxxiv] Ibid., p. 678.
[lxxxv] Act XXXVIII of 1926.
[lxxxvi] The Act was made applicable to
the Chief Court of Oudh on March 1, 1928.
The Act was not made applicable to the
High Courts of Lahore, Karachi and
Nagpur.
[lxxxvii] M. P. Jain, Outlines of Indian
Legal & Constitutional
History, LexisNexis Butterworths Wadhwa
Nagpur, Gurgaon, 2012, p. 683.
[lxxxviii] Id.
[lxxxix] Id.
[xc] Id.
[xci] Ibid., p. 684.
[xcii] Id.
[xciii] Id.
[xciv] Id.
[xcv] Id.
[xcvi] Ibid., p. 684.
[xcvii] S. 31 of the Act. The High Courts of
Bombay and Calcutta were authorized to
admit Attorneys and exercise over them
power of removal or suspension from
practice for reasonable cause.
[xcviii] M. P. Jain, Outlines of Indian Legal
& Constitutional History, LexisNexis
Butterworths Wadhwa Nagpur, Gurgaon,
2012, pp. 689-690.
[xcix] Id.
[c] Id.
Development of
Legal Profession
in India
Submitted by Aadesh Agarkar
Development of Legal
Profession in India
Importance of Legal Profession:-
The legal profession plays an
important role in the administration of
Justice. The lawyer assists the court in
arriving at the correct judgement. The
lawyers collect material relating to the
case and thereby helps the court or
judge to arrive at the correct
judgement. Without the assistance of
the lawyer, it would be a superhuman
task for the judge to arrive at
satisfactory judgement. Laws are
complicated. The language of Acts
and Regulations is often found to be
very complicated and confusing and
not easy to be understood. The
citizens of the country require the
advice of the advocate to understand
the exact meaning of the provisions of
the Acts and Regulations. The lawyer
plays an important role in the
maintenance of peace and order in the
society. The peace and order no doubt
are necessary for the very existence of
the society. The lawyer plays an
important role in the law reforms also.
By reason of experience gained in
daily application and interpretation of
law, lawyers are best aware of the
imperfection, of the legal system and
constitutes the most competent and
class of men to advise on law reforms
and promote popular enthusiasm and
support for it. The most difficult part
of the process of legislation is the
drafting of its provisions and no one
is better fitted to give guidance on this
than the lawyers. Advocate is an
officer of the court and is required to
maintain towards the court respectful
attitude bearing in mind that the
dignity of the judicial office is
essential for the survival of the
society. The Supreme Court has
rightly observed the legal profession
is a partner with the judiciary in
administration of Justice.
The legal profession in pre-British
India.
Its not well settled as to whether the
legal profession was in existence in
the pre-British India. However, it is
clear that in pre-British India, it was
not as organized as today. The legal
profession as it exists today was
created and developed during the
British period. But during the Mughal
period, the courts were established
and administered by Mughal
emperors. During the Hindu period,
the court derives its authority from the
king who was considered the fountain
head of Justice. The king's Court was
superior to all another court. The
King was advised by his Councilors
in hearing and deciding the case but
he was not bound by the advice. The
institution of lawyers as it exists today
was not in existence during this
period. According to R P Kangle,
there is no mention in the Kautilya's
Artha Shastra about the existence of
legal profession and therefore, most
probably such a class did not exist.
But during the Muslim period
litigants were represented by body of
persons known as vakils. They were
paid a percentage of the amount in the
suit. But as such there was no such
institution which governed the
lawyers, at that time.
Legal profession during British
period:
In earlier days of the British period
the legal profession was not paid due
attention and it was not well
organized. The East India company
was not interested in organizing the
legal profession. There was no
uniform judicial system in the
settlement of East India Company.
The Charter of 1726 introduces
Mayor's Court in each Presidency
town. The Mayor's Court established
under the Charter of 1726 were the
Royal Court and they derived their
authority from the British crown and
not from the East India Company.
The legal profession was not
organized. Many persons having no
knowledge of law were practicing.
The judicial administration including
the legal profession was not of high
order. The Regulating Act of 1773
empowered the British crown to
establish a Supreme Court at Calcutta
by issuing for Charter. In the exercise
of this power, the British Crown
issued a Charter in 1774 establishing
the Supreme Court of Judicature at
Calcutta . Clause 11 of the Charter of
1774 empowered the Supreme Court
to approve and enroll advocates and
attorney at law. The Bengal
Regulation 7 of 1793 created for the
first time regular legal profession for
the company's court. Under this
regulation, only Hindus and Muslims
could be enrolled as a pleader. The
Bengal Regulation XXVII of 1843
also made provisions in order to
organize the legal profession. The
legal practitioners act 1846 made
provisions that the people of any
nationality or any religion would be
eligible to be leader and attorney and
barrister and rolled in any of her
majesty's court in India eligible to
pleader in the companies Sadar
Adalat. The Indian High Courts act,
1861, occupies an important place in
the development of judicial
administration in India. It empowers
the British Crown to establish One
High Court in Presidency towns. The
criminal courts were organized
properly by the Criminal Procedure
Code of 1898.
Legal practitioners act 1879
In 1879, the legal practitioners Act
was passed to consolidate and amend
the law relating to the legal
practitioners. It empowers an
advocate or vakil on the role of any
High Court,to practice in all the court
subordinate to the court on the role of
which he was entered. The High
Courts and the courts other than the
High Court of Calcutta allowed even
non-barristers to enroll as advocates
under certain circumstances. The
Vakil had to be a person who has
taken the law degree from an Indian
University and fulfill certain other
conditions. Under the Legal
Practitioners Act, 1879 the term
"legal practitioner" has been taken to
mean advocates, vakil or an attorney
of a High Court and pleaders.
Indian Bar Committee 1923
In 1923 a Committee called the Indian
bar committee was constituted under
the chairmanship of sir Edward
Chamber .The Committee was to
consider the issue as to the
organisation of the bar on all India
basis and establishment of an All
India Bar Council for the High Court.
The committee was not in favour of
organising the bar on all India basis.
Bar council should be constituted for
each high court. It should have the
power to inquire into matters calling
for disciplinary action against a
lawyer.
Indian Bar Councils Act, 1926
In 1926, the Indian Bar Councils act
was enacted to give effect to some of
the recommendations of the Indian
Bar Committee. The main objective
of the act was to provide for
constitution and incorporation of bar
council for certain courts, power and
impose duties on such councils and
also to consolidate and to amend the
law relating to the legal practitioners
of such courts. The act made
provisions for the establishment of a
bar council for every High Court. The
Calcutta High Court and Bombay
High Court permitted non-barrister
advocates to practice on the original
sides. The distinction between
barristers and advocates was thus
abolished.
Legal profession after Independence
All India Bar Committee 1951
The Indian bar councils act 1926
failed to satisfy the bar. The pleader
and Mukhtar practicing in the
mofussil court were not within its
scope. The bar council was not given
any significant power. There were
only advisory bodies. In 1951
committee known as the All India Bar
Committee was appointed under the
chairmanship of justice S.R. DAS .
The committee recommended the
establishment of All India Bar
Council and State Bar Council. The
committee suggest that the power of
enrollment, suspension, removal of
advocates should be vested in the bar
council. It recommended that there
should be no further recruitment of
non-graduates, pleaders, mukhtars. It
also recommended that there should
be a common roll of advocates
authorized to practice in all courts of
the country. The 5th law commission
recommended for establishment of
United All India Bar.
Advocates Act, 1961
In 1961, the existing Advocates Act
was enacted. It has been enacted for
the purpose of amending and
consolidating the law relating to legal
practitioners' and also for providing
the Constitution of Bar Council and
all India Bar Council. Section 1 of the
Advocates Act, 1961 provides that
this act may be called the Advocates
Act, 1961 and it extends to the whole
of India. In a case, the Supreme Court
has made it clear that the expression
legal practitioner cannot include a
serving judge who might have been
appointed as a presenting officer in
departmental proceedings.
Submitted by Aadesh Agarkar
Importance of
legal
profession in
india
What is Professional Ethics?
Professional ethics means a code of
rules which regulates the behavior
and conduct of a practicing lawyer
towards himself, his client, his
opposite party, his counsel and of
course towards the court. Ethics
means principles of behavior which
are applied to an ordinary citizen in
the society shall be the standards of
morals for a lawyer too.
Professional ethics consist of those
fundamental values on which the
profession has been built. Legal ethics
is one of the professional ethics which
lays down certain duties for the
observance of its members, which he
owes to the society, to the court, to
the profession, to his client and to
himself.
The practicing lawyer shall have the
social responsibility and dignity of the
legal profession and high standard of
integrity and efficient service to his
client as well as for public welfare.
Professional ethics demands not to
disclose any secrets of his client or
indulge in any unfair practice.
Code of Professional responsibility
The Code of Professional
Responsibility consists of three
separate but interrelated parts:
Canons, Ethical Considerations, and
Disciplinary Rules. The Code is
designed to be both an inspirational
guide to the members of the
profession and a basis for disciplinary
action when the conduct of a lawyer
falls below the required minimum
standards stated in the Disciplinary
Rules.
Certain amendments in Advocates
Act 1961 have been constructed in the
light of professional ethics in the legal
profession. It comes up with various
conclusions like
(i)Misconduct means �all-inclusive
besides drafted in the utmost potential
provocative manner.�
(ii)The license of Practice of Lawyers
in India can be annulled or suspended
on a complaint about his behavior or
conduct made by a Justice or a
Judicial Officer. (iii)Advocates shall
not be able to claim the security of
non-receipt of fees while defending
themselves against any proceedings
initiated against them.
(iv)The Bill put forward imposition of
a fine of Rs. 3 lakh and cost of
proceedings in a complaint filed by a
litigant against legal representatives.
It addition provides for payment of
compensation up to Rs. 5 lakh to a
person aggrieved by a lawyer�s
transgression. It also recommends
imposing a fine of Rs. 2 lakh on a
lawyer, if he does not cooperate in the
disciplinary proceedings.
The Code of Professional
Responsibility points the way to the
aspiring and provides standards by
which to judge the transgressor. Each
lawyer's own conscience must provide
the touchstone against which to test
the extent to which the lawyer's
actions should rise above minimum
standards. But in the last analysis it is
the desire for the respect and
confidence of the members of the
profession and of the society which
the lawyer serves, that should provide
to a lawyer the incentive for the
highest possible degree of ethical
conduct. The possible loss of that
respect and confidence is the ultimate
sanction. So long as its practitioners
are guided by these principles, the law
will continue to be a noble profession.
This is its greatness and its strength,
which permit of no compromise.
Code of conduct for judges An
independent and honorable judiciary
is indispensable to justice in our
society. A judge should maintain and
enforce high standards of conduct and
should personally observe those
standards, so that the integrity and
independence of the judiciary may be
preserved. The provisions of this
Code should be construed and applied
to further that objective.
A judge should respect and comply
with the law and should act at all
times in a manner that promotes
public confidence in the integrity and
impartiality of the judiciary.
A judge should not allow family,
social, political, financial, or other
relationships to influence judicial
conduct or judgment.
A judge should not hold membership
in any organization that practices
invidious discrimination on the basis
of race, sex, religion, or national
origin.
A Judge should perform the duties of
the office fairly, impartially and
diligently and can engaged in
extrajudicial activities that are within
obligations of judicial office.
A judge should be faithful to, and
maintain professional competence in,
the law and should not be swayed by
partisan interests, public calmer, or
fear of criticism.
A judge should not act as a leader or
hold any office in a political
organization;
Should not make speeches for a
political organization or candidate, or
publicly endorse or oppose a
candidate for public office; solicit
funds for, pay an assessment to, or
make a contribution to a political
organization or candidate, or attend or
purchase a ticket for a dinner or other
event sponsored by a political
organization or candidate.
A judge should resign the judicial
office if the judge becomes a
candidate in a primary or general
election for any office.
Conclusion
The legal profession is a profession of
great honor. It has been created not
for private gain but for public good. It
is not a money-making occupation but
a branch of administration of justice.
Since it is not a business, a lawyer
cannot solicit work or advertise either
directly or indirectly. An advocate is
an officer of the Court and required to
maintain towards the Court a
respectful attitude bearing in mind
that the dignity of the judicial office is
essential for the survival of the
society. Th e Supreme Court has
rightly observed that the legal
profession is a partner with the
judiciary in the administration of
justice.
The legal profession is not a business
but a profession. It has been created
by the state for the public good.
The behavior of an individual with
others is considered as values that are
generally cultured as an element of
ethics. Subsequently, these ethics
transform into regard for and
acquiescence to the law and the legal
authorities.
When a student enters law institute;
educationalists are confronted with
law students with their peculiar
moderately matured beliefs, some of
them by now completely implanted.
This is an actuality that law schools
should agree to take as a starting
socket in training Legal Ethics.
Afterward law school and the Bar, the
turns of the profession and the
administrative authorities twitch. The
legitimate profession, through the Bar
and the law corporations, must aid
and monitor its lawyer-members
emancipate their ethical bonuses,
while the administrative authority �
the Supreme Court � must be
authoritarian though unbiased and
evenhanded.
It is imperative for one and all to have
ethical modules in every single
profession for the reason that at the
sundown it guides the moral
awareness of that individual person in
anything he does.
Role of Lawyer
in the Society:
A Critical
Analysis
Balin Hazarika
Email: publicprosecutornagaon@rediffmail.com
Abstract
Lawyers in our country have historically
contributed handsomely to each of these areas
of justice -- whether it was the struggle for
Independence, the framing of our Constitution
or just governance. Even today, in the Cabinet,
we have outstanding lawyers some of whom
have been members of this illustrious
association. The role of lawyers is not confined
to courts alone or advising clients in business
deals. It extends to being an integral part of our
system of administration of justice, and justice
not just in the legal sense but justice that's
social, economic and political as set out in the
preamble of our Constitution.
Key words: Lawyer, Constitution, freedom
struggle, justice, client
Introduction
This paper will explore how the practice of law
has evolved over time and its interplay with
political, social and economic developments, the
socio-legal processes that deter or provide
access to justice and, above all, the necessary
legal pre-requisites of good governance. I am
told that one of the important sessions is
devoted to law and separation of powers. The
doctrine of 'separation of powers' is
acknowledged as one of the basic features of
our Constitution.
It is also commonly agreed that all the three
organs of the state, ie, the Legislature, the
Judiciary, and the Executive, are bound by and
subject to the provisions of the Constitution,
which demarcates their respective powers,
jurisdictions, responsibilities and relationship
with one another. I hope there will be
meaningful discussions in the conference on this
and other important subjects like funding of
elections and law and education.
A lawyer, according to Black's Law Dictionary, is
"a person learned in the law; as an attorney,
counsel or solicitor; a person who is practicing
law." Law is the system of rules of conduct
established by the sovereign government of a
society to correct wrongs, maintain the stability
of political and social authority, and deliver
justice. Working as a lawyer involves the
practical application of abstract legal theories
and knowledge to solve specific individualized
problems, or to advance the interests of those
who retain (i.e., hire) lawyers to perform legal
services. The role of the lawyer varies
significantly across legal jurisdictions, and so it
can be treated here in only the most general
terms.
Analysis of Legal profession
In practice, legal jurisdictions exercise their
right to determine who is recognized as being a
lawyer; as a result, the meaning of the term
"lawyer" may vary from place to place.
In Australia the word "lawyer" is used to refer
to both barristers and solicitors (whether in
private practice or practising as corporate in-
house counsel). In Canada, the word "lawyer"
only refers to individuals who have been called
to the bar or have qualified as civil law notaries
in the province of Quebec. Common law lawyers
in Canada may also be known as "barristers and
solicitors", but should not be referred to as
"attorneys", since that term has a different
meaning in Canadian usage. However, in
Quebec, civil law advocates (or avocats in
French) often call themselves "attorney" and
sometimes "barrister and solicitor".
In England and Wales, "lawyer" is used loosely
to refer to a broad variety of law-trained
persons. It includes practitioners such as
barristers, solicitors, legal executives and
licensed conveyancers, ; and people who are
involved with the law but do not practise it on
behalf of individual clients, such as judges,
court clerks, and drafters of legislation.
In India, the term "lawyer" is often colloquially
used, but the official term is "advocate" as
prescribed under the Advocates Act, 1961.
In Scotland, the word "lawyer" refers to a more
specific group of legally trained people. It
specifically includes advocates and solicitors. In
a generic sense, it may also include judges and
law-trained support staff.
In the United States, the term generally refers
to attorneys who may practice law; it is never
used to refer to patent agents or paralegals.
Other nations tend to have comparable terms
for the analogous concept.
Responsibilities
In most countries, particularly civil law
countries, there has been a tradition of giving
many legal tasks to a variety of civil law
notaries, clerks, and scriveners.[8][9] These
countries do not have "lawyers" in the American
sense, insofar as that term refers to a single
type of general-purpose legal services provider;
rather, their legal professions consist of a large
number of different kinds of law-trained
persons, known as jurists, of which only some
are advocates who are licensed to practice in
the courts. It is difficult to formulate accurate
generalizations that cover all the countries with
multiple legal professions, because each country
has traditionally had its own peculiar method of
dividing up legal work among all its different
types of legal professionals. Notably, England,
the mother of the common law jurisdictions,
emerged from the Dark Ages with similar
complexity in its legal professions, but then
evolved by the 19th century to a single
dichotomy between barristers and solicitors. An
equivalent dichotomy developed between
advocates and procurators in some civil law
countries, though these two types did not
always monopolize the practice of law as much
as barristers and solicitors, in that they always
coexisted with civil law notaries.
Cultural perception of lawyers
Hostility towards the legal profession is a
widespread phenomenon. The legal profession
was abolished in Prussia in 1780 and in France
in 1789, though both countries eventually
realized that their judicial systems could not
function efficiently without lawyers. Complaints
about too many lawyers were common in both
England and the United States in the 1840s,
Germany in the 1910s, and in Australia,]
Canada, the United States, and Scotland in the
1980s. Public distrust of lawyers reached record
heights in the United States after the Watergate
scandal. In the aftermath of Watergate, legal
self-help books became popular among those
who wished to solve their legal problems
without having to deal with lawyers. Lawyer
jokes (already a perennial favorite) also soared
in popularity in English-speaking North America
as a result of Watergate.[ In 1989, American
legal self-help publisher Nolo Press published a
171-page compilation of negative anecdotes
about lawyers from throughout human history.
In Adventures in Law and Justice (2003), legal
researcher Bryan Horrigan dedicated a chapter
to "Myths, Fictions, and Realities" about law and
illustrated the perennial criticism of lawyers as
"amoral guns for hire" with a quote from
Ambrose Bierce's satirical The Devil's Dictionary
(1911) that summarized the noun as: "LAWYER,
n. One skilled in circumvention of the law."
More generally, in Legal Ethics: A Comparative
Study (2004), law professor Geoffrey C.
Hazard, Jr. with Angelo Dondi briefly examined
the "regulations attempting to suppress lawyer
misconduct" and noted that their similarity
around the world was paralleled by a
"remarkable consistency" in certain "persistant
grievances" about lawyers that transcends both
time and locale, from the Bible to medieval
England to dynastic China. The authors then
generalized these common complaints about
lawyers as being classified into five "general
categories" as follows:“abuse of litigation in
various ways, including using dilatory tactics
and false evidence and making frivolous
arguments to the courts; preparation of false
documentation, such as false deeds, contracts,
or wills; deceiving clients and other persons and
misappropriating property; procrastination in
dealings with clients; and charging excessive
fees.”
What traits an individual must have to be an
effective lawyer:
In order for an individual to be an effective
lawyer, he/she must have certain traits and
attributes in order to excel in this occupation.
One important trait which lawyers should have
is that of articulation. A lawyer who can
articulate effectively is one who will be more
likely to succeed, not only against opposition
parties in the court but also to impress and put
their client at ease as well. An articulate lawyer
is one who will see result.
Another trait which lawyers should have is
intelligence, having this positive attribute will
ensure that the person representing the client is
one who is smart enough to know what to do,
when to do it and how to go about getting the
results which are necessary to win the case.
Good comprehension skills are another
favourable trait which all lawyers should have.
Although one who likes to read may be a
candidate for the legal profession, this in and of
itself means nothing if the person reading does
not comprehend that which they just read.
Statutes and procedural rules are difficult to
understand at times and those who have good
comprehension skills may prosper at being a
lawyer as they will have to read the pertinent
documentation much less than those without
good comprehension skills.
A good personality and willingness to work well
with others are two additional positive traits
which all lawyers should posses. Some people
may think that lawyers have to be tough as
nails in order to excel in the legal profession,
but this is not entirely true. The saying that one
catch more flies with honey than vinegar is
relevant with regard to being a lawyer.
Negotiations go much better when the lawyers
put their best foot forward and are willing to
come to an amicable solution.
Lastly, persuasiveness is an additional trait
which all lawyers should possess. Since, the
legal profession is the based around lawyers
persuading individuals to see the point of view,
a lawyer must be persuasive in their speech and
tactics.
The Indian Context
In India, the law relating to the Advocates is the
Advocates Act, 1961 introduced and thought up
by Ashoke Kumar Sen, the then law minister of
India, which is a law passed by the Parliament
and is administered and enforced by the Bar
Council of India. Under the Act, the Bar Council
of India is the supreme regulatory body to
regulate the legal profession in India and also to
ensure the compliance of the laws and
maintenance of professional standards by the
legal profession in the country. For this
purpose, the Bar Council of India is authorized
to pass regulations and make orders in
individual cases and also generally.
Each State has a Bar Council of its own whose
function is to enroll the Advocates willing to
practice predominately within the territorial
confines of that State and to perform the
functions of the Bar Council of India within the
territory assigned to them. Therefore each law
degree holder must be enrolled with a (single)
State Bar Council to practice in India. However,
enrollment with any State Bar Council does not
restrict the Advocate from appearing before any
court in India, even though it is beyond the
territorial jurisdiction of the State Bar Council
with he is enrolled in.
The advantage with having the State Bar
Councils is that the work load of the Bar Council
of India can be divided into these various State
Bar Councils and also that matters can be dealt
with locally and in an expedited manner.
However for all practical and legal purposes, the
Bar Council of India retains with it the final
power to take decisions in any and all matters
related to the legal profession on the whole or
with respect to any Advocate individually, as so
provided under the Advocates Act, 1961.
The process for being entitled to practice in
India is twofold. First, the applicant must be a
holder of a law degree from a recognized
institution in India (or from one of the four
recognised Universities in the United Kingdom)
and second, must pass the enrollment
qualifications of the Bar Council of the state
where he/she seeks to be enrolled. For this
purpose, the Bar Council of India has an
internal Committee whose function is to
supervise and examine the various institutions
conferring law degrees and to grant recognition
to these institutions once they meet the
required standards. In this manner the Bar
Council of India also ensures the standard of
education required for practicing in India are
met with. As regards the qualification for
enrollment with the State Bar Council, while the
actual formalities may vary from one State to
another, yet predominately they ensure that the
application has not been a bankrupt /criminal
and is generally fit to practice before courts of
India.
Enrollment with a Bar Council also means that
the law degree holder is recognized as an
Advocate and is required to maintain a
standards of conduct and professional
demeanor at all times, both on and off the
profession. The Bar Council of India also
prescribes "Rules of Conduct" to be observed
the Advocates in the courts, while interacting
with clients and even otherwise.
All Advocates in India are at the same level and
are recognized as such. Any distinction, if any,
is made only on the basis of seniority, which
implies the length of practice at the Bar. As a
recognition of law practice and specialization in
an area of law, there is a concept of conferral of
Senior Advocate status. An Advocate may be
recognized by the Judges of the High Court (in
case of an Advocate practicing before that High
Court) or by the Supreme Court (in case of the
Advocate practicing before the Supreme Court).
While the conferral of Senior Advocate status
not only implies distinction and fame of the
Advocate, it also requires the Senior Advocate
to follow higher standards of conduct and some
distinct rules. Also, a Senior Advocate is not
allowed to interact directly with the clients. He
can only take briefs from other Advocates and
argue on the basis of the details given by
them.From the year 2010 onwards a mandatory
rule is made for lawyers passing out from the
year 2009-10 to sit for a evaluation test named
AIBE ( All India Bar Exam ) for one to qualify as
an advocate and practice in the courts
Further, under the Constitutional structure,
there is a provision for elevation of Advocates
as judges of High Courts and Supreme Court.
The only requirement is the Advocate must
have a ten years standing before the High
Court(/s) or before the Supreme Court to be
eligible for such. (Article 217 and 124 of the
Constitution of India for High Courts and
Supreme Court respectively)
Discussion
It is possible to have different views of what a
lawyer does. Some may say that a lawyer is a
business person, not unlike the barber, the
doctor or the shop owner, providing a service to
paying customers. Others will see a more
public-abiding role for the lawyer, providing a
service to paying clients but also maintaining an
eye on the public interest, justice, and fairness
of society. This difference in view will account
for differing opinions about what a lawyer
should do in a morally difficult position In
democratic societies, lawyers surely fill an
important role that no other professional fills:
the lawyer is the guardian of the rule of law, the
ideal that all people stand equally before the
law and neither expect nor receive special
treatment from it. In emerging democracies,
this role is especially important for lawyers, who
have the potential to become the great levelers
between the powerful and the less so. To be
sure, the market for lawyer services, even in
the most well-established democracies, is tilted
sharply toward the corporate world and toward
those with means. But guarantees of the right
to counsel in criminal matters, government
funded legal aid for the poor (limited as it is),
and pro bono activities of private lawyers, all
combine to create some promise that the most
important matters affecting the poor and the
powerless will also be served by lawyers and
the legal profession.
A common law system relies on court decisions
as a source of law while a civil law system relies
solely on statutes created by the legislature or
administrative bodies. In a civil law system,
therefore, the judge applies the law but does
not create it. In a common law system,
however, judges and lawyers must employ a
more casuistic approach to legal thinking.
Judges create a common law system gradually
by deciding one case at a time building a body
of law based on the collective wisdom of other
judicial decisions. This different approach may
lead legal professionals in a common law
system to concern themselves more with the
practical administration of the law while legal
professionals in a civil law system may find
themselves more concerned with theory and
preserving the statutory framework as a
coherent whole. The differences between the
civil and common law systems also manifest
themselves through dispute resolution
procedure. Disputes in a common law system
are resolved through an adversarial system.
The two opposing parties investigate, collect
and present the evidence and arguments before
a passive factfinder. Judges typically only
intervene to guarantee that the adversaries
have equal opportunities to present their
evidence and arguments to the factfinder. On
the other hand, in a civil law system, judges
exercise much more control over the scope and
direction of the litigation. The dispute resolution
process becomes more inquisitorial than
adversarial. The lawyers in civil law systems
proffer lines of inquiry and make legal
arguments rather than collecting evidence and
presenting it as common law parties do. Also,
civil law trials do not follow the point-
counterpoint format that common law trials do.
Rather, the trials are more fluid, often becoming
a series of hearings instead of one ultimate
trial.
Conclusion
Lawyers are individuals who have a wide range
of responsibilities and duties when it comes to
their profession. Their role in society is even
more important as they are acting as a voice for
others. A lawyer’s function therefore lays on
him a variety of legal and moral obligations
toward: the client; the courts and other
authorities before whom the lawyer pleads the
client’s cause or acts on his behalf; the legal
profession in general and each fellow member
of it in particular; the public for whom the
existence of a free and independent profession
itself is an essential means of safeguarding
human rights in face of the power of the state
and other interests in society. References Alexis
De Toqueville , Democracy in America 251
(Harvey C Mansfield & Delba Winthrop, eds. &
trans., 2000). Anonymous, "Careers in the legal
profession offer a variety of opportunities: While
we may not think about it often, the legal
system affects us every day," The Telegram, 14
April 2004, D8. Burnham , Maggs & Danilenko
Law and Legal system the Russian Federation.
131 (2004). Carl F. Goodman , The Rule of law
in Japan 133 (2003) Code of Coduct for Lawyers
in the European Union ( Herein after CCBE
Code) , Preamble(2002) Goodman the rule of
Law in Japan 133 (2003) Kenneth M. Rosen,
Lessons on Lawyers, Democracy, and
Professional Responsibility, 19 GEO. J. Legal
Ethics 155, 172-173 (2006) Kyoko Ishida,
Ethical Standards of Japanese Lawyers:
Translation of the Ethics Codes for Six
Categories of Legal Service Providers, 14 PAC.
RIM L. & POL’ J. 383, 383 (2005) Model rules of
Prof’l Conduct Preamble (2004) See Spider-Man
for an excellent example of how one’s power
leads to a moral obligation to help those less
powerful Walter O. Reyrauch, The Personality of
Lawyers (New Haven: Yale University Press,
1964), 27
Professionl misconduct ;
An article regarding the
professional misconduct of
lawyers in India, with landmark
judgments on professional
misconduct
Professional misconduct of lawyers
in India
Advocacy is a noble profession and an
advocate is the most accountable, privileged
and erudite person of the society and his act
are role model for the society, which are
necessary to be regulated. Professional
misconduct is the behaviour outside the
bounds of what is considered acceptable or
worthy of its membership by the governing
body of a profession. Professional
misconduct refers to disgraceful or
dishonourable conduct not befitting an
advocat. Chapter V of the Advocate Act,
1961, deals with the conduct of Advocates.
It describes provisions relating to
punishment for professional and other
misconducts. Section 35(1) of the Advocate
Act, 1961, says, 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 it disciplinary committee.
Generally legal profession is not a trade or
business, it’s a gracious, noble, and
decontaminated profession of the society.
Members belonging to this profession
should not encourage deceitfulness and
corruption, but they have to strive to secure
justice to their clients. The credibility and
reputation of the profession depends upon
the manner in which the members of the
profession conduct themselves. It’s a
symbol of healthy relationship between Bar
and Bench.
The Advocates Act, 1961 as well Indian Bar
Council are silent in providing exact
definition for professional misconduct
because of its wide scope, though under
Advocates Act, 1961 to take disciplinary
action punishments are prescribed when the
credibility and reputation on the profession
comes under a clout on account of acts of
omission and commission by any member of
the profession.
Meaning and Definition
Profession is a vocation requiring some
significant body of knowledge that is applied
with high degree of consistency in the
service of some relevant segment of society,
by Hodge and Johnson. Occupation
especially one requiring advanced education
and special training by A. S. Hornby. It is
different from other types of jobs, in the
sense that it requires skills and these skills
will be improved with experience.
The attributes of a profession as laid down
by Dalton E. McFarland are;
1) The existence of a body of specialized
knowledge or techniques
2) Formalized method of acquiring training
and experience
3) The establishment of representative
organization with professionalism as its goal.
4) The formation of ethical codes for the
guidance of conduct.
5) The charging of fees based on services
but with due regards for the priority of
service over the desire for monetary
rewards.
A person who carries/undertakes the
profession is called a professional.
Depending on the profession a person
undertakes, he/she is identified with a
special name relevant to the profession.
Misconduct, according to Oxford dictionary
means a wrongful, improper, or unlawful
conduct motivated by premeditated act. It is
a behavior not conforming to prevailing
standards or laws, or dishonest or bad
management, especially by persons
entrusted or engaged to act on another's
behalf. The expression professional
misconduct in the simple sense means
improper conduct. In law profession
misconduct means an act done willfully with
a wrong intention by the people engaged in
the profession. It means any activity or
behaviour of an advocate in violation of
professional ethics for his selfish ends. If an
act creates disrespect to his profession and
makes him unworthy of being in the
profession, it amounts to professional
misconduct. In other word an act which
disqualifies an advocate to continue in legal
profession.
To understand the scope and implication of
the term ‘misconduct’, the context of the role
and responsibility of an advocate should be
kept in mind. Misconduct is a sufficiently
wide expression, and need not necessarily
imply the involvement of moral turpitude.
‘Misconduct’ per se has been defined in the
Black’s Law Dictionary to be “any
transgression of some established and
definite rule of action, a forbidden act,
unlawful or improper behavior, willful in
character, a dereliction of duty.” In a
different context, the Supreme Court has
opined that the word “misconduct” has no
precise meaning, and its scope and ambit
has to be construed with reference to the
subject matter and context wherein the term
occurs. In the context of misconduct of an
advocate, any conduct that in any way
renders an advocate unfit for the exercise of
his profession, or is likely to hamper or
embarrass the administration of justice may
be considered to amount to misconduct, for
which disciplinary action may be initiated.
Darling J, defined the expression
professional misconduct in, In re A Solicitor
ex parte the law society as, It is shown that
the advoate in the pursuit of his profession
has done some thing with regard to it which
would be reasonably regarded as
disgraceful or dishonourable by his
professional brethren of good repute and
competeny, then it is open to say that he is
guilty of professional misconduct.
Misconduct is sufficiently comprehensive to
include misfeasance as well as malfeasance
and is applied to the professional people, it
include unprofessional acts even though
they are not inherently wrongful. The
professional misconduct may consist the
fact in any conduct, which tends to bring
reproach on the legal profession or to
alienate the favourable opinion which the
public should entertain concerning it. In state
of Punjab v Ram Singh the supreme Court
held that the term misconduct may involve
moral turpitude, it must be improper or
wrong behaviour, unlawful behaviour, willful
in character, a forbidden act, a transgression
of established and definite rule of action or
code of conduct, but not mere error of
judgement, carelessness or negligence in
performance of duty.
The Supreme Court has, in some of its
decisions, elucidated on the concept of
‘misconduct’, and its application. In Sambhu
Ram Yadav v. Hanuman Das Khatry, a
complaint was filed by the appellant against
an advocate to the Bar Council of
Rajasthan, that while appearing in a suit as
a counsel, he wrote a letter stating that the
concerned judge, before whom the suit is
pending accepts bribes, and asked for Rs.
10,000 to bribe and influence the judge to
obtain a favourable order. The Disciplinary
Committee, holding that the advocate was
guilty if “misconduct”, stated that such an act
made the advocate “totally unfit to be a
lawyer.” The Supreme Court, upholding the
finding of the Rajasthan Bar Council held
that the legal profession is not a trade or
business. Members belonging to the
profession have a particular duty to uphold
the integrity of the profession and to
discourage corruption in order to ensure that
justice is secured in a legal manner. The act
of the advocate was misconduct of the
highest degree as it not only obstructed the
administration of justice, but eroded the
reputation of the profession in the opinion of
the public.
In another case, Noratanman Courasia v.
M. R. Murali the Supreme Court explored
the amplitude and extent of the words
“professional misconduct” in Section 35 of
the Advocates Act. The facts of the case
involved an advocate (appearing as a litigant
in the capacity of the respondent, and not an
advocate in a rent control proceeding)
assaulted and kicked the complainant and
asked him to refrain from proceeding with
the case. The main issue in this case was
whether the act of the advocate amounted to
misconduct, the action against which could
be initiated in the Bar Council, even though
he was not acting in the capacity of an
advocate. It was upheld by the Supreme
Court that a lawyer is obliged to observe the
norms of behavior expected of him, which
make him worthy of the confidence of the
community in him as an officer of the Court.
Therefore, inspite of the fact that he was not
acting in his capacity as an advocate, his
behavior was unfit for an advocate, and the
Bar Council was justified in proceeding with
the disciplinary proceedings against him.
It may be noted that in arriving at the
decision in the case, the Supreme Court
carried out an over-view of the jurisprudence
of the courts in the area of misconduct of
advocates. It reiterated that the term
“misconduct” is incapable of a precise
definition. Broadly speaking, it envisages
any instance of breach of discipline. It
means improper behavior, intentional
wrongdoing or deliberate violation of a rule
of standard of behavior. The term may also
include wrongful intention, which is not a
mere error of judgment. Therefore,
“misconduct”, though incapable of a precise
definition, acquires its connotation from the
context, the delinquency in its performance
and its effect on the discipline and the
nature of duty.
In N.G. Dastane v. Shrikant S. Shind,
where the advocate of one of the parties
was asking for continuous adjournments to
the immense inconvenience of the opposite
party, it was held by the Supreme Court that
seeking adjournments for postponing the
examination of witnesses who were present
without making other arrangements for
examining such witnesses is a dereliction of
the duty that an advocate owed to the Court,
amounting to misconduct.
Ultimately, as it has been upheld and
reiterated that “misconduct” would cover any
activity or conduct which his professional
brethren of good repute and competency
would reasonably regard as disgraceful or
dishonourable. It may be noted that the
scope of “misconduct” is not restricted by
technical interpretations of rules of conduct.
This was proven conclusively in the case
of Bar Council of Maharashtra v. M.V.
Dahbolkar. The facts under consideration
involved advocates positioning themselves
at the entrance to the Magistrate’s courts
and rushing towards potential litigants, often
leading to an ugly scrimmage to snatch
briefs and undercutting of fees. The
Disciplinary Committee of the state Bar
Council found such behavior to amount to
professional misconduct, but on appeal to
the Bar Council of India, it was the Bar
Council of India absolved them of all
charges of professional misconduct on the
ground that the conduct did not contravene
Rule 36 of the Standards of Professional
Conduct and Etiquette as the rule required
solicitation of work from a particular person
with respect to a particular case, and this
case did not meet all the necessary criteria,
and such method of solicitation could not
amount to misconduct. This approach of the
Bar council of India was heavily
reprimanded by the Supreme Court. It was
held that restrictive interpretation of the
relevant rule by splitting up the text does not
imply that the conduct of the advocates was
warranted or justified. The standard of
conduct of advocates flows from the broad
cannons of ethics and high tome of
behavior. It was held that “professional
ethics cannot be contained in a Bar Council
rule nor in traditional cant in the books but in
new canons of conscience which will
command the member of the calling of
justice to obey rules or morality and utility.”
Misconduct of advocates should thus be
understood in a context-specific, dynamic
sense, which captures the role of the
advocate in the society at large.
Provisions in Advocates act 1961
The advocates act 1961 is a comprehensive
legislation that regulates the legal practice
and legal education in India. It envisages for
the establishment of Bar Council of India
and State Bar Councils with various
disciplinary committees to deal with
misconduct of the advocates. It also
provides for the provisions relating to the
admission and enrolment of advocates and
advocates right to practice. Chapter V
containing sections 35 to 44 deals with the
conduct of the advocates. It provides for
punishment for advocates for professional
and other misconduct and disciplinary
powers of the Bar council of India. In order
to attract the application of section 35 of the
advocates act the misconduct need not be
professional misconduct alone. The
expression used in the section is
Professional or other misconduct. So even
conduct unconnected with the profession
may account to a misconduct as for
example, conviction for a crime, though the
crime was not commited in the professional
capacity. At the same time it is to be noted
that a mere conviction is not sufficient to find
an advocate guilty of misconduct, the court
must look in to the nature of the act on
which the conviction is based to decide
whether the advocate is or is not an unfit
person to be removed from or to be allowed
to remain in the profession.
Misconduct is of infinite variety, the
expression professional or other misconduct
must be understood in their plain and natural
meaning and there is no justification in
restricting their natural meaning. The term
misconduct usually implies an act done
willfully with a wrong intention and as
applied to professional people it includes
unprofessional acts even though such acts
are not inherently wrongful.
The Code of Conduct Prescribed For
Advocate
Section 49 of the advocates act 1961
empowers the Bar Council of India to frame
rules regulating standards of professional
conduct. Accordingly various duties are
prescribed for the advocates some of them
are highlighted below.
No advertising or soliciting work, it is against
an advocate’s code of ethics to solicit or
advertise work and amounts to a misconduct
on the part of the advocate. Both direct and
indirect advertising is prohibited. An
advocate may not advertise his services
through circulars, advertisements, touts,
personal communication or interviews not
warranted by personal relations. Similarly,
the following forms of indirect advertising are
prohibited:
(i) by issuing circulars or election manifestos
by a lawyer with his name, profession and
address printed on the manifestos, thereby
appealing to the members of the profession
practising in the lower courts who are in a
position to recommend clients to counsel
practising in the HC.
(ii) canvassing for votes by touring in the
province or sending out his clerk or agents
to the various districts, which must
necessarily mean directly approaching
advocates practicing in subordinate courts.
Further, the signboard or nameplate
displayed by an advocate should be of
reasonable size. It should not refer to details
of an affiliated by the advocate i.e. that he is
or has been president or member of a bar
council or of any association, or he has been
a Judge or an Advocate-General, or that he
specializes in a particular kind of work, or
that he is or was associated with any person
or organization or with any particular cause
or matter.
Not to demand fees for training; An
advocate is restrained from demanding any
fees for imparting training to enable any
person to qualify for enrolment.
Not use name/services for unauthorized
practice; An advocate may not allow his
professional services or his name to be
associated with, or be used for any
unauthorized practice of law by any lay
agency.
Not to enter appearance without consent of
the advocate already engaged: an advocate
is prohibited from entering appearance in a
case where there is already another
advocate engaged for a party except with
the consent of such advocate. However if
such consent is not produced, the advocate
must state the reasons for not producing it,
and may appear subsequently, only with the
permission of the court.
Duty to opposite party:- While conducting a
case, a lawyer has a duty to be fair not only
to his client but also to the court, and to the
opposite party. An advocate for a party must
communicate or negotiate with the other
parties regarding the subject matter of
controversy, only through the opposite
party’s advocate. If an advocate has made
any legitimate promises to the opposite
party, he should fulfill the same, even if the
promise was not reduced to writing or
enforceable under the rules of the court.
Duties of an advocate towards his client:
The relationship between a lawyer and a
client is highly fiduciary and it is the duty of
an advocate fearlessly to uphold the
interests of the client by fair and honourable
means without regard to any unpleasant
consequences to himself or any other
person.
The above are only few important code of
conduct to be observed by an advocate
practicing in India. According to Justice
Abbot Parry, there are seven important
qualities that a lawyer should possess, he
call these qualities as seven lamps of
advocacy, they are; Honesty, Courage,
Industry, Wit, eloquence, Judgement, and
Fellowship. Apart from that the panchsheel
of the bar are Honesty, Industry, Justice,
Service and Philisophy and Panchsheel of
the bench according to Sri ram Kishore
Rande are, Impartiality, Independence,
Integrity and Industry, Judicial activism and
Prayer. Among the various duties of the
advocates like, duties to client, court, public,
colleagues and self, selected points can be
picked up and arranged according to the
due and relative importance and are called
as ten commandments of advocates they
are;
a) Duties to client
1) Protection of the interest of the client
2) Proper estimation of the value of legal
advices and services
b) Duties to court
3) Honesty and respect
4) Preparation of the case
c) Duties to Public
5) Service
6) Loyalty to law and justice
d) Duties to colleagues
7) Fellowship
8) Fairness
e) Duties to self
9) Systematic study
10) Prudence and deligence
The rules laid down by the Bar Council of
India forms the code of conduct for
advocates and in broad sense any violation
of such rules or code of conduct can be
termed as professional misconduct. The
scope of the term has been still widened by
the Supreme Court in various decisions.
Instances of Misconduct
Legal Practioners act 1879 has not defined
the word Misconduct. The word
Unprofessional conduct is used in the act.
Even the Advocates Act 1961 has not
defined the term misconduct because of the
wide scope and application of the term.
Hence to understand the instances of
misconduct we have to rely on decided
cases. Some of the instances of
Professional misconduct are as follows,
1) Dereliction of duty
2) Professional negligence
3) Misappropriation
4) Changing sides
5) Contempt of court and improper
behaviour before a magistrate
6) Furnishing false information
7) Giving improper advice
8) Misleading the clients in court
9) Non speaking the truth
10) Disowning allegiance to court
11) Moving application without informing that
a similar application has been rejected by
another authority
12) Suggesting to bribe the court officials
13) Forcing the procecution witness not to
tell the truth.
Contempt of Court As Misconduct
In the recent case of B. M. Verma v.
Uttrakhand Regulatory Commission court
noted that, it was given the wide powers
available with a Court exercising contempt
jurisdiction. In the case of Court of Its Own
Motion v. State dealing with the contempt
proceedings involving two senior advocates,
observed that ‘given the wide powers
available with a Court exercising contempt
jurisdiction, it cannot afford to be
hypersensitive and therefore, a trivial
misdemeanor would not warrant contempt
action. Circumspection is all the more
necessary because as observed by the SC
in SC Bar Association v. Union of India the
Court is in effect the jury, the judge and the
hangman; while in M.R. Parashar H. L.
Sehgal it was observed that the Court is also
a prosecutor Anil Kumar Sarkar v. Hirak
Ghosh, reiterates this.
In the most controversial and leading case
of R.K. Ananad v. Registrar of Delhi High
Court, On 30th May, 2007 a TV news
channel NDTV carried a report relating to a
sting operation. The report concerned itself
with the role of a defence lawyer and the
Special Public Prosecutor in an ongoing
Sessions trial in what is commonly called the
BMW case. On 31st May, 2007 a Division
Bench of this Court, on its own motion,
registered a writ Petition and issued a
direction to the Registrar General to collect
all materials that may be available in respect
of the telecast and also directed NDTV to
preserve the original material including the
CD/video pertaining to the sting operation.
The question for our consideration is
whether Mr. R.K. Anand and Mr. I.U. Khan,
Senior Advocates and Mr. Sri Bhagwan
Sharma, Advocate have committed criminal
contempt of Court or not. It was observed
that prima facie their acts and conduct were
intended to subvert the administration of
justice in the pending BMW case and in
particular to influence the outcome of the
pending judicial proceedings. Accordingly, in
exercise of powers conferred by Article 215
of the Constitution proceedings for contempt
of Court (as defined in Section 2(c) of the
Contempt of Courts Act, 1971) were initiated
against Mr. Anand, Mr. Khan and Mr. Sri
Bhagwan Sharma and they were asked to
show cause why they should not be
punished accordingly. Court said that Courts
of law are structured in such a design as to
evoke respect and reverence for the majesty
of law and justice. The machinery for
dispensation of justice according to law is
operated by the court. Proceedings inside
the courts are always expected to be held in
a dignified and orderly manner. The very
sight of an advocate, who was found guilty
of contempt of court on the previous hour,
standing in the court and arguing a case or
cross-examining a witness on the same day,
unaffected by the contemptuous behaviour
he hurled at the court, would erode the
dignity of the court and even corrode the
majesty of it besides impairing the
confidence of the public in the efficacy of the
institution of the courts. This necessitates
vesting of power with the HC to formulate
rules for regulating the proceedings inside
the court including the conduct of advocates
during such proceedings. That power should
not be confused with the right to practise
law. Thus court held that there may be ways
in which conduct and actions of an advocate
may pose a real and imminent threat to the
purity of court proceedings cardinal to any
court’s functioning, apart from constituting a
substantive offence and contempt of court
and professional misconduct. In such a
situation the court does not only have the
right but also the obligation to protect itself.
Hence, to that end it can bar the advocate
from appearing before the courts for an
appropriate period of time. In the present
case since the contents of the sting
recordings were admitted and there was no
need for the proof of integrity and
correctness of the electronic materials.
Finally the Supreme Court upheld High
Court’s verdict making Anand guilty on the
same count. On the other hand, the
Supreme Court let off I U Khan, who was
found guilty by the High Court.
Attempt of Murder:
In the case of Hikmat Ali khan v. Ishwar
prasad arya and ors, Ishwar Prasad Arya,
respondent No. 1, was registered as an
advocate with the Bar Council of Uttar
Pradesh and was practising at Badaun. An
incident took place on May 18, 1971 during
lunch interval at about 1.55 p.m., in which
respondent No. 1 assaulted his opponent
Radhey Shyam in the Court room of
Munsif/Magistrate, Bisauli at Badaun with a
knife. A pistol shot is also said to have been
fired by him at the time of incident. After
investigation he was prosecuted for offences
under Section 307 of the Indian Penal Code
and Section 25 of the Arms Act. The 1st
Temporary Civil and Sessions Judge, by his
judgment dated July 3, 1972, convicted him
of the said offence and sentenced him to
undergo rigorous imprisonment for three
years for the offence under Section 307,
I.P.C. and for a period of nine months for
offence under Section 25 of the Arms Act.
On the basis of the said complaint
disciplinary proceedings were initiated
against respondent No. 1 by the Bar Council
of U.P. he was found guilty of gross
professional mis-conduct by taking the
benefit himself of a forged and fabricated
document which had been prepared at his
behest. The Disciplinary Committee of the
Bar Council of U.P. directed that respondent
No. 1 be debarred from practising as an
advocate for a period of two years from the
date of the service of the order. Respondent
No. 1 filed an appeal, the said appeal was
allowed by the Disciplinary Committee of the
Bar Council of India by order dated June 8,
1984 and the order of the Disciplinary
Committee of the Bar Council of U.P. dated
January 30, 1982 was set aside on the view
that there was no material on the basis of
which it could reasonably be held that
respondent No. 1 had prepared the
document which was subsequently found
forged. Further the submission of Shri
Markendaya was that having regard to the
gravity of the misconduct of respondent No.
1 in assaulting his opponent in the Court
room with a knife and his having been
committed the offence under Section 307,
I.P.C. and his being sentenced to undergo
rigorous imprisonment for three years in
connection with the said incident, the
punishment of removal of the name of
respondent No. 1 from the roll of advocates
should have been imposed on him and that
the Disciplinary Committee of the Bar
Council of U. P. was in error in imposing the
light punishment of debarring respondent
No. 1 from practising as an advocate for a
period of three years only and that this was
a fit case in which the appeal filed by the
appellant should have been allowed by the
Disciplinary Committee of the Bar Council of
India. It was held that the acts of mis-
conduct found established are serious in
nature. Under Sub-section (3) of Section 35
of the Act the Disciplinary Committee of the
State Bar Council is empowered to pass an
order imposing punishment on an advocate
found guilty of professional or other mis-
conduct. Such punishment can be
reprimand [Clause (b)], suspension from
practice for a certain period [Clause (c)] and
removal of the name of the advocate from
the State roll of advocate [Clause (d)],
depending on the gravity of the mis-conduct
found established. The punishment of
removal of the name from the roll of
advocates is called for where the
misconduct is such as to show that the
advocate is unworthy of remaining in the
profession. In this context, it may be pointed
out that under Section 24(A) of the Act a
person who is convicted of an offence
involving moral turpitude is disqualified for
being admitted as an advocate on the State
roll of advocates. This means that the
conduct involving conviction of an offence
involving moral turpitude which would
disqualify a person from being enrolled as
an advocate has to be considered a serious
misconduct when found to have been
committed by a person who is enrolled as an
advocate and it would call for the imposition
of the punishment of removal of the name of
the advocate from the roll of advocates. In
the instant case respondent No. 1 has been
convicted of the offence of attempting to
commit murder punishable under Section
307, IPC. He had assaulted his opponent in
the Court room with a knife. The gravity of
the mis-conduct committed by him is such
as to show that he is unworthy of remaining
in the profession. The said mis-conduct,
therefore, called for the imposition of the
punishment of removal of the name of
respondent No. 1 from the State roll of
advocates and the Disciplinary Committee of
the Bar Council of U. P., in passing the
punishment of debarring respondent No. 1
from practising for a period of three years,
has failed to take note of gravity of the
misconduct committed by respondent No. 1.
Having regard to the facts of the case the
proper punishment to be imposed on
respondent No. 1 under Section 35 of the
Act should have been to direct the removal
of his name from the State roll of advocates.
The appeal filed by the appellant, therefore,
deserves to be allowed. Finally court held
that the respondents name should be
removed from the rolls.
Misbehaviour As Misconduct
Vinay chandra mishra, in re; In this case a
senior advocate in on being asked a
question in the court started to shout at the
judge and said that no question could have
been put to him. He threatened to get the
judge transferred or see that impeachment
motion is brought against him in Parliament.
He further said that he has turned up many
Judges and created a good scene in the
Court. He asked the judge to follow the
practice of this Court. He wanted to convey
that admission is as a course and no
arguments are heard, at this stage. But this
act was not only the question of insulting of
a Judge of this institution but it is a matter of
institution as a whole. In case dignity of
Judiciary is not being maintained then where
this institution will stand. The concerned
judge wrote a letter informing the incident to
the chief justice of India. A show cause
notice was issued to him.
Whether the advocate had committed a
professional misconduct? Is he guilty of the
offence of the criminal contempt of the Court
for having interfered with and obstructed the
course of justice by trying to threaten,
overawe and overbear the Court by using
insulting, disrespectful and threatening
language, and convict him of the said
offence. Since the contemner is a senior
member of the Bar and also adorns the high
offices such as those of the Chairman of the
Bar Council of India, the President of the
U.P. HC Bar Association, Allahabad and
others, his conduct is bound to infect the
members of the Bar all over the country. We
are, therefore, of the view that an exemplary
punishment has to be meted out to him.
Thus the contemner Vinay Chandra Mishra
is hereby sentenced to undergo simple
imprisonment for a period of six weeks and
he shall stand suspended from practising as
an advocate for a period of three years.
Strike As Misconduct
Ex-capt. Harish uppal V. Union of India,
Several Petitions raise the question whether
lawyers have a right to strike and/or give a
call for boycotts of Court/s. The petitioners
submitted that strike as a mean for collective
bargaining is recognised only in industrial
disputes. He submitted that lawyers who are
officers of the Court cannot use strikes as a
means to blackmail the Courts or the clients.
He submitted that the Courts must take
action against the Committee members for
giving such calls on the basis that they have
committed contempt of court. He submitted
that the law is that a lawyer who has
accepted a Vakalat on behalf of a client
must attend Court and if he does not attend
Court it would amount to professional
misconduct and also contempt of court. He
submitted that Court should now frame rules
whereby the Courts regulate the right of
lawyers to appear before the Court. He
submitted that Courts should frame rules
whereby any lawyer who mis-conducts
himself and commits contempt of court by
going on strike or boycotting a Court will not
be allowed to practice in that Court. He
further submitted that abstention from work
for the redressal of a grievance should never
be resorted to where other remedies for
seeking redressal are available. He
submitted that all attempts should be made
to seek redressal from the concerned
authorities. He submitted that where such
redressal is not available or not forthcoming,
the direction of the protest can be against
that authority and should not be misdirected,
e.g., in cases of alleged police brutalities
Courts and litigants should not be targeted
in respect of actions for which they are in no
way responsible. He agreed that no force or
coercion should be employed against
lawyers who are not in agreement with the
“strike call” and want to discharge their
professional duties. Respondent submitted
that lawyers had a right to go on strike or
give a call for boycott. He further submitted
that there are many occasions when lawyers
require to go, on strike or gave a call for
boycott. He submitted that this Court laying
down that going on strike amounts to
misconduct is of no consequence as the Bar
Councils have been vested with the power
to decide whether or not an Advocate has
committed misconduct. He submitted that
this Court cannot penalise any Advocate for
misconduct as the power to discipline is now
exclusively with the Bar Councils. He
submitted that it is for the Bar Councils to
decide whether strike should be resorted to
or not. Petitioner further relied on the case of
Lt. Col. S.J. Chaudhary v. State (Delhi
Administration, the HC had directed that a
criminal trial go on from day to day. Before
this Court it was urged that the Advocates
were not willing to attend day to day as the
trial was likely to be prolonged. It was held
that it is the duty of every advocate who
accepts a brief in a criminal case to attend
the trial day to day. It was held that a lawyer
would be committing breach of professional
duties if he fails to so attend. In the case of
K. John Koshy and Ors. v. Dr. Tarakeshwar
Prasad Shaw, one of the questions was
whether the Court should refuse to hear a
matter and pass an Order when counsel for
both the sides were absent because of a
strike call by the Bar Association. This Court
held that the Court could not refuse to hear
the matter as otherwise it would tantamount
to Court becoming a privy to the strike.
Considering the sanctity of the legal
profession the court had relied on words
said in case of “In Indian Council of Legal
Aid and Advice v. Bar Council of India, the
SC observed thus : “It is generally believed
that members of the legal profession have
certain social obligations, e.g., to render “pro
bono publico” service to the poor and the
underprivileged. Since the duty of a lawyer
is to assist the court in the administration of
justice, the practice of law has a public utility
flavour and, therefor, an advocate must
strictly and scrupulously abide by the Code
of Conduct behoving the noble profession
and must not indulge in any activity which
may tend to lower the image of the
profession in society. That is why the
functions of the Bar Council include the
laying down of standards of professional
conduct and etiquette which advocates must
follow to maintain the dignity and purity of
the profession.” In Re: Sanjeev Datta, the
SC has stated thus: “The legal profession is
a solemn and serious occupation. It is a
noble calling and all those who belong to it
are its honourable members. Although the
entry to the profession can be had by
acquiring merely the qualification of
technical competence, the honour as a
professional has to be maintained by its
members by their exemplary conduct both in
and outside the Court. The legal profession
is different from other professions in that
what the lawyers do, affects not only an
individual but the administration of justice
which is the foundation of the civilised
society. Both as a leading member of the
intelligentsia of the society and as a
responsible citizen, the lawyer has to
conduct himself as a model for others both
in his professional and in his private and
public life. The society has a right to expect
of him such ideal behavior. It must not be
forgotten that the legal profession has
always been held in high esteem and its
members have played an enviable role in
public life. The regard for the legal and
judicial systems in this country is in no small
measure due to the tireless role played by
the stalwarts in the profession to strengthen
them. They took their profession seriously
and practice it with dignity, deference and
devotion. If the profession is to survive, the
judicial system has to be vitalised. No
service will be too small in making the
system efficient, effective and credible.” In
the case of SC Bar Association v. Union of
India, it has been held that professional
misconduct may also amount to Contempt of
Court. It has further been held as follows:
“An Advocate who is found guilty of
contempt of court may also, as already
noticed, be guilty of professional misconduct
in a given case but it is for the Bar Council of
the State or Bar Council of India to punish
that advocate by either debarring him from
practice or suspending his licence, as may
be warranted, in the facts and
circumstances of each case. The learned
Solicitor General informed us that there
have been cases where the Bar Council of
India taking note of the contumacious and
objectionable conduct of an advocate, had
initiated disciplinary proceedings against him
and even punished him for “professional
misconduct”, on the basis of his having been
found guilty of committing contempt of
court.”
Solicitation of Professional Work
Rajendra V. Pai V. Alex Fernandes and Ors.
Court held that debarring a person from
pursuing his career for his life is an extreme
punishment and calls for caution and
circumspection before being passed. No
doubt probity and high standards of ethics
and morality in professional career
particularly of an advocate must be
maintained and cases of proved
professional misconduct severely dealt with;
yet, we strongly feel that the punishment
given to the appellant in the totality of facts
and circumstances of the case is so
disproportionate as to prick the conscience
of the Court. Undoubtedly, the appellant
should not have indulged into prosecuting or
defending a litigation in which he had a
personal interest in view of his family
property being involved.
Breach of Trust By Misappropriating The
Asset Of Client
Harish Chandra Tiwari v. Baiju; Court held
on these fact, Appellant Harish Chandra
Tiwari was enrolled as an advocate with the
Bar Council of the State of UP in May 1982
and has been practising since then, mainly
in the courts at Lakhimpur Kheri District in
UP. Respondent Baiju engaged the
delinquent advocate in a land acquisition
case in which the respondent was a
claimant for compensation. The Disciplinary
Committee has described the respondent as
“an old, helpless, poor illiterate person.”
Compensation of Rs. 8118/- for the
acquisition of the land of the said Baiju was
deposited by the State in the court.
Appellant applied for releasing the amount
and as per orders of the court he withdrew
the said amount on 2.9.1987. But he did not
return it to the client to whom it was payable
nor did he inform the client about the receipt
of the amount. Long thereafter, when the
client came to know of it and after failing to
get the amount returned by the advocate,
compliant was lodged by him with the Bar
Council of the State for initiating suitable
disciplinary action against the appellant.
Court held that among the different types of
misconduct envisaged for a legal practitioner
misappropriation of the client’s money must
be regarded as one of the gravest. In this
professional capacity the legal practitioner
has to collect money from the client towards
expenses of the litigation, or withdraw
money from the court payable to the client or
take money of the client to be deposited in
court. In all such cases, when the money of
the client reaches his hand it is a trust. If a
public servant misappropriates money he is
liable to be punished under the present
Prevention of Corruption Act, with
imprisonment which shall not be less than
one year. He is certain to be dismissed from
service. But if an advocate misappropriates
money of the client there is no justification in
de-escalating the gravity of the
misdemeanor. Perhaps the dimension of the
gravity of such breach of trust would be
mitigated when the misappropriation
remained only for a temporary period. There
may be justification to award a lesser
punishment in a case where the delinquent
advocate returned the money before
commencing the disciplinary proceedings.
Informing About Bribe: Shambhu Ram
Yadav v. Hanuman Das Khatry, the Court
upheld the order of bar council of India
dated 31st July 1999, which held that the
appellant has served as advocated for 50
years and it was not expected of him to
indulge in such a practice of corrupting the
judiciary or offering bribe to the judge and he
admittedly demanded Rs.10,000/- from his
client and he orally stated that subsequently
order was passed in his client’s favour. This
is enough to make him totally unfit to be a
lawyer by writing the letter in question. We
cannot impose any lesser punishment than
debarring him permanently from the practice
.His name should be struck off from, the roll
of advocates maintained by the Bar Council
of Rajasthan. Hereafter the appellant will not
have any right to appear in any Court of
Law, Tribunal or any authority. Court impose
a cost of Rs. 5,000/- to the appellant which
should be paid by the appellant to the Bar group of
Council of India which has to be within two practicing
months. advocates

The list of instances of professional Failure to

misconduct is not exhaustive, the Supreme return will John D
1994. SC
court has widened the scope and ambit of 7 executed and Souza v
the term misconduct in numerous instances,
975
kept in safe edward Ani
only few cases has been elaborated above. custody
Sl
Instance of Held in
n Citation
misconduct Case Constant
o 1993, (1)
abstention Onkar Singh
Retention of KLT 650,
8 from V Angrez
money P&H High
conducting of Singh
deposited Prahlad Court.
cases
with advocate Saran AIR
1 for the Gupta V Bar 1997.SC.1 DS Dalai V
decree holder council of 338 State Bank
even after India of India
AIR 1993
execution Misappropria
SC 1608 /
proceedings 9 tion of JS Jadhav v
AIR 1993.
amount paid Mustafa
Harish SC 1535
Misguiding Haji
Chander AIR. 1997 Mohamed
2 Junior
Singh V SN SC 879 Yusuf
Advocate
Tripathi
M
Assaulting Hikmat Attesting
1 Veerendra AIR 1985
opponent AliKhan v AIR 1997. forged
3 0 Rao v Tek SC 28
with Knife in Ishwar SC 864 affidavit
Chand
Court room Prasad Arya
Failure to
Scandalisatio attend trial SJ
In re DC AIR 1996 1 AIR 1984
4 n against after Choudhary
Saxena SC 2481 1 SC 618
Judge accepting the v State
UP Sales tax brief
service PD
Attending association Khandekar
AIR 1 Improper AIR 1984
5 court with v taxation v Bar
1996.SC 98 2 legal advice SC 110
fire arm Bar Council of
Association, Maharastra
Agra
Misappropria
Discussion of 1 tion of KV Umre v AIR 1983
the conduct C 3 Decretal Venubai SC 1154
of judge and Ravichandr 1995. (2) amount
pass an Iyer v KLT, SN 56
6 Taking money Chandra
resolution by Justice AM case no 1 AIR 1983
bar council, Bhattacharj 77. from client Sekhar Soni
4 SC 1012
bar ee for the v Bar
association or
 purpose of Council of Shri Narain
giving bribe Rajastan Jafa V The
Indecent
2 Hon. Judges AIR 1953
Rushing cross
The bar 3 of the High SC 368
towards examination
Council of Court,
1 potential AIR 1976 Allahabad
Maharastra
5 clients and SC 242
v MV
snatching Shouting
Dabholkar
briefs political In the
2 slogans and matter of a AIR 1943,
NA Mirzan 4 holding pleader, Mad. 130
Taking V the demonstratio Ottapalam
advantage of disciplinary ns in court
1 AIR 1972
the ignorance committee
6 SC 46
and illiteracy of the Bar In the
Attending
of the clients council of 2 matter of a AIR 1934
court in
Maharastra 5 lower grade Rang. 423
drunken state
pleader
Appearing
with out Bapurao
1 In re AIR 1971
authority on a 2 Breach of Pakhiddey v 1999 (2)
7 advocate Ker 161
forged 6 trust Suman SCC 442
vakalath Dondey
CD Purushotta
Sekkizhar v m Eknath
1 Advertising AIR 1967 2 1999 (20
Secretary, bribe Nemade v
8 profession Mad. 35 7 SCC 215
Bar Council, DN
Madras. Mahajun
In the LC Goyal v
matter of P Nawal
an Kishore
Gross
Advocate AIR 1963. and
negligence
1 and SC 1313 / Devender 1997 (2)
involving
9 VP AIR 1997 2 Fraud and Bhai SCC 258 /
moral
Kumaravelu SC 1014 8 forgery Shanker AIR 1996
turpitude
v the Bar Mehta v SC 2022
council of Ramesh
India Chandra
Vithal Dass
2 Coercing In re Badri AIR 1960 Seth
0 Colleagues Narin Pt. 307 Procedure Followed on the Notice of
Rambharos Professional Misconduct
The following is the procedure followed (1)
2 Appearing for a Kalar v AIR 1960
In exercise of powers under Section 35
1 both sides Surendra MP 81 contained in Chapter V entitled “conduct of
nath Thakur advocates”, on receipt of a complaint
against an advocate (or suo motu) if the
Brahma din
State Bar Council has ‘reason to believe’
False and others that any advocate on its roll has been guilty
2 AIR 1958
identification v of “professional or other misconduct”,
2 AP 116
of Deponents Chandrasek disciplinary proceeding may be initiated
har Shukla against him.

(2) Neither Section 35 nor any other
provision of the Act defines the expression
‘legal misconduct’ or the expression
‘misconduct’.
(3) The Disciplinary Committee of the State
Bar Council is authorised to inflict
punishment, including removal of his name
from the rolls of the Bar Council and
suspending him from practice for a period
deemed fit by it, after giving the advocate
concerned and the ‘Advocate General’ of the
State an opportunity of hearing.
(4) While under Section 42(1) of the Act the
Disciplinary Committee has been conferred
powers vested in a civil court in respect of
certain matters including summoning and
enforcing attendance of any person and
examining him on oath, the Act which
enjoins the Disciplinary Committee to ‘afford
an opportunity of hearing’ (vide Section 35)
to the advocate does not prescribe the
procedure to be followed at the hearing.
(5) The procedure to be followed in an
enquiry under Section 35 is outlined in Part
VII of the Bar Council of India Rules made
under the authority of Section 60 of the Act.
Rule 8(1) of the said Rules enjoins the
Disciplinary Committee to hear the
concerned parties that is to say the
complainant and the concerned advocate as
also the Attorney General or the Solicitor
General or the Advocate General. It also
enjoins that if it is considered appropriate to
take oral evidence the procedure of the trial
of civil suits shall as far as possible be
followed.
Critique
The advocates act 1961 was a long sought
after legislation to consolidate the law
relating to the legal practioners, constitution
of autonomous Bar Councils, prescription of
uniform qualification for admission and
enrolment of persons as advocates, more
importantly it imposes punishment for
professional misconduct by advocates and
in that respect it acts as a quasi-judicial
body. Only body that can be approached for
professional misconduct of advocate is Bar
council constituted under the Act except for
contempt of court which is also a
misconduct. However the following criticisms
are levelled against the Act in terms of its
power to punish for professional and other
misconduct;
1) No provision of appeal is provided in the
act in respective High courts, hence power
of bar Council of the State is equated with
that of High court.
2) In ordinary course it is difficult for an
advocate to approach the Supreme Court
and get the case admitted from an
aggrieved order of the Bar Council of India.
3) The act has not defined the term
misconduct, instead it has included
professional and other misconduct and
definition is left to the Bar councils and
Supreme court to decide and to widen the
scope.
4) Denial of the principle of natural justice to
an ordinary litigant who is aggrieved with the
misconduct of the advocate, as the body of
their association ie Bar council is deciding
the case in which their own member is the
respondent. This is against the rule that “no
man can be a judge in his own case”. The
lay person has to approach appropriate fora
constituted under Consumer Protection act
1986 to get any pecuniary relief due to the
loss caused by such misconduct, if it fits
under deficiency of service.
5) At times, based on the circumstances the
Act is violative of Article 19 (1) (g), right to
practice trade or profession, and also
freedom of speech and expression
enshrined in Article 19(1)(a).
However the intention of the legislature to
uphold the dignity of the profession and to
preserve the moral etiquette among legal
practioners have been largely achieved by
the Act.
Comparable provisions in other
countries
England – In England The Legal Profession
Act, 1987 is “an Act to regulate the
admission and practice of barristers and
solicitors” (as amended in 2007) and the
The Revised Professional Conduct and
Practice Rules made by the Council of the
Law Society of New South Wales on 24
August 1995 pursuant to its power under
Section 57B of the Legal Profession Act,
1987 and the Statement of Ethics
proclaimed by the Law Society of New
South Wales in November 1994 governs the
conduct in legal profession. From 2010 on
wards legal ombudsman is formed to deal
with complaints against all lawyers, including
solicitors, registered in England and Wales.
The Legal Ombudsman replaced the
previous complaint handling bodies (for
example, the Legal Complaints Service in
the case of complaints against solicitors),
and has been dealing with new complaints
since 6 October 2010. Anyone who is
dissatisfied with the standard of service
received from their lawyer should complain,
in the first instance, to the lawyer concerned.
If the matter cannot be resolved in this way,
then a complaint may be made to the Legal
Ombudsman.
USA – in USA each state has a separate set
of rules of practices and different code of
conduct for the advocates. For example the
newyork state has a separate rules of
Professional Conduct promulgated as Joint
Rules of the Appellate Divisions of the
Supreme Court, effective from April 1, 2009.
They supersede the former part 1200
(Disciplinary Rules of the Code of
Professional Responsibility). Indiana state
has separate rules for professional conduct,
which elaborates in detail about all aspects
of professional conduct and code of ethics to
be followed by an advocate.
Conclusion
The role of the lawyers in the society is of
great importance. They being part of the
system of delivering justice holds great
reverence and respect in the society. Each
individual has a well defined code of conduct
which needs to be followed by the person
living in the society. A lawyer in discharging
his professional assignment has a duty to
his client, a duty to his opponent, a duty to
the court, a duty to the society at large and a
duty to himself. It needs a high degree of
probity and poise to strike a balance and
arrive at the place of righteous stand, more
so, when there are conflicting claims. While
discharging duty to the court, a lawyer
should never knowingly be a party to any
deception, design or fraud. While placing the
law before the court a lawyer is at liberty to
put forth a proposition and canvass the
same to the best of his wits and ability so as
to persuade an exposition which would
serve the interest of his client and the
society.
The advocate, as an officer of the Court,
also has the responsibility to render services
of sound quality. Lapses in services in the
nature of absence when the matters are
called out, the filing of incomplete and
inaccurate pleadings – many times even
illegible and without personal check and
verification, the non-payment of court fees
and process fees, the failure to remove
office objections, the failure to take steps to
serve the parties are not merely professional
omission. They amount to positive dis-
service to the litigants and create
embarrassing situation in the court leading
to avoidable unpleasantness and delay in
the disposal of matters, and detrimentally
affects the entire judicial system.
Furthermore, as the officers of the court the
lawyers are required to uphold the dignity of
the judicial office and maintain a respectful
attitude towards the Court. This is because
the Bar and the Bench form a noble and
dynamic partnership geared to the great
social goal of administration of justice, and
the mutual respect of the Bar and the Bench
is essential for maintaining cordial relations
between the two. It is the duty of an
advocate to uphold the dignity and decorum
of the Court and must not do anything to
bring the Court itself into disrepute, and
ensure that at no point of time, he oversteps
the limits of propriety.
*******************
Author: Dr Elbe Peter, MDS, LL.B, Dip Clin
Res./ The author can be reached
at: elbepeter@legalserviceindia.com
Table of cases
1) State of Punjab v Ram Singh, AIR 1992
SC, 2188
2) Sambhu Ram Yadav v.Hanuman Das
Khatry 2001 6 SCC 1. 165
3) Noratanmal Courasia v. M. R. Murali
2004 AIR 2440
4) N.G. Dastane v. Shrikant S. Shinde AIR
2001 SC 2028
5) Bar Council of Maharashtra v. M.V.
Dahbolkar. AIR 1976 SC242
6) B. M. Verma v. Uttrakhand Regulatory
Commission. Appeal No. 156 of 2007
7) Court of Its Own Motion v. State. 151
2008 DLT 695 (Del., DB)
8) SC Bar Association v. Union of India.
1998. 4 SCC 409
9) Anil Kumar Sarkar v. Hirak Ghosh. 2002.
4 SCC 21 only in other professions but also in
10) R.K. Ananad v. Registrar of Delhi HC. advocacy also. In simple terms, it
2009. 8 SCC 106
means certain acts done by the
11) Hikmat Ali khan v. Ishwar prasad arya
and ors. 1997 RD-SC 87 persons which seem to be unfit for
12) Vinay chandra mishra, in re, 1995. 2. the profession as well as which are
SCC 584 against certain ethics in this field.
13) Ex-capt. Harish uppal V. Union of India. The term has been clearly defined in
2003(1)ALLMR(SC)1169 Black’s Dictionary as, the
14) Lt. Col. S.J. Chaudhary v. State (Delhi transgression of some established
Administration. 1984 CriLJ 340
15) K. John Koshy and Ors. v. Dr. and definite rule of action, a
Tarakeshwar Prasad Shaw : 1998 8SCC forbidden act, a dereliction of duty,
624 unlawful behavior, improper or
16) Indian Council of Legal Aid and Advice wrong behavior. Its synonyms are a
v. Bar Council of India. 1995 1,SCR 304 misdemeanour, impropriety,
17) In Re: Sanjeev Datta. 1995 CriLJ 2910. mismanagement, offense, but not
18) SC Bar Association v. Union of India,
negligence or
supra 8
19) Rajendra V. Pai V. Alex Fernandes and carelessness.[1] From the
Ors. AIR 2002 SC 1808. definition, it is now clear that the act
20) Harish Chandra Tiwari v. Baiju; AIR of professional misconduct is done
2002 SC 548. purely with an intention of getting
21) Sambhu Ram Yadav v.Hanuman Das unlawful gains. The Advocates Act,
Khatry; supra 2
1961 and the Indian Bar Council
# AIR 1992 S 2188 play a vital role in providing rules
# (2001) 6 SCC 165 and guidelines regarding the
# 2004 AIR 2440 working, code of conduct and such
# 2001 AIR SC 2028 other matters concerning lawyers
# AIR 1976 SC 242 and advocates in India.
# Appeal No. 156 of 2007 The attributes of a profession are:
# 151 (2008) DLT 695 (Del., DB)
# (1998) 4 SCC 409 1. Existence of a body of
# (2002) 4 SCC 21 specialized knowledge or
# (2009) 8 SCC 106 techniques.
# [1997] RD-SC 87 2. Formalized method of
# 1995 2 SCC 584 acquiring training and
# 2003(1)ALLMR(SC)1169 experience.
# 1984 CriLJ 340
3. Establishment of a
# 1998 8SCC 624
# 1995 1 SCR 304 representative
# 1995 CriLJ 2910 organization with
# Supra 8 professionalism as its goal.
# AIR 2002 SC 1808 4. Formation of ethical codes
# AIR 2002 SC 548 for the guidance of
# Supra 2
conduct.
5. Charging of fees based on
A lawyer’s profession is meant to be services but with due
a divine or sacred profession by all regards to the priority of
means. In every profession, there service over the desire of
are certain professional ethics that monetary rewards.
need to be followed by every person click above
who is into such a profession. But Misconduct means any acts which
there is the fact that professional are unlawful in nature even though
misconduct is a common aspect, not
they are not inherently wrongful. The provisions of Section 35 of the
Before the Advocates Act, 1961, we Advocates Act deal with professional
had the Legal Practitioners Act, misconduct of lawyers and
1879. There is no definition given advocates in India, which read as:
for the term ‘misconduct’ in the Act, A person is found guilty of
but the term ‘unprofessional professional misconduct; it shall
conduct’ is being used in the Act. refer the case to a disciplinary
Some of the instances of committee, shall fix a date of
professional misconduct are as hearing and issue a show cause
follows: notice to the Advocate and the
 Dereliction of duty Advocate General of the State. The
 Professional negligence disciplinary committee of the State
 Misappropriation Bar Council, after being heard of
 Changing sides both the parties, may:
 Contempt of court and 1. Dismiss the complaint, or
improper behaviour before where the proceedings
a Magistrate were initiated at the
 Furnishing false instance of the State Bar
information Council, directs that
 Giving improper advice proceedings be filed;
 Misleading the clients in 2. Reprimand the advocate;
court 3. Suspend the advocate
 Not speaking the truth from practice for such a
 Disowning allegiance to the period as it deems fit;
court 4. Remove the name of an
 Moving application without advocate from the state
informing that a similar roll of advocates.[3]
application has been Misconduct is of infinite variety; this
rejected by another expression must be understood in a
authority broad meaning, such that it extends
 Suggesting to bribe the the meaning under natural law, and
court officials there is no justification for
 Forcing the prosecution restricting their natural meaning.
witness not to say the Section 49 of the Advocate Act
truth.[2] empowers the Bar Council of India
Advocates Act, 1961 to frame rules and standards of
professional misconduct. Under the
Act, no person has a right to make
advertisement or soliciting; it is
against advocate’s code of ethics.
He is also not entitled to any
advertisement through circulars,
personal communications or
interviews, he is not entitled to
demand fees for training and to use
name/service for unauthorized
purposes.[4]
Contempt of Court as
professional misconduct
Contempt of court may be defined
as an offense of being disobedient
or disrespectful towards the court or
its officers in the form of certain
behaviour that defies authority,
justice, and dignity of the
court.[5] In various cases involving
contempt of court, the court held
that if any advocate or legal
practitioner is found guilty of the act
of contempt of court, he/she may be
imprisoned for six years and may be
suspended from practicing as an
advocate (In re Vinay Chandra
Mishra).[6]The court also held that
license of the advocate to practice a
legal profession might be canceled
by the Supreme Court or High Court
in the exercise of the contempt
jurisdiction.
There are many other landmark
judgments regarding the cases
involving professional misconduct of
the advocates. In the case of V.C.
Rangadurai v. D.Gopalan[7], the
court looked into the matter of
professional misconduct in such a
way that the decision was made in a
humanitarian manner, considering
the future of the accused in this
case. The court held that “even so
justice has a correctional edge, a
socially useful function, especially if
the delinquent is too old to be
pardoned and too young to be
disbarred. Therefore, a curative, not
cruel punishment has to be
delivered in the social setting of the
legal profession”. The court then
gave the decision in such a way that
it looked at each and every aspect
concerning the case as well as the
parties concerned. It adopted a
deterrent was of justice mechanism
so that the accused person is
awarded certain punishments but
also provided a warning towards
such other people who intend to
commit acts of a similar nature. The
judgment turned out to be a
landmark in cases concerning
professional misconduct as it
delivered an effective judgment and
but did not jeopardize the future of
the accused person. In various
other cases like J.S. Jadhav v.
Musthafa Haji Muhammed Yusuf[8],
the court delivered the decision in
such a way that it created a notion
in the minds of the wrongdoers that
offenders will be punished
accordingly.
Conclusion
From the analysis of various cases
and certain facts and
circumstances, it will be clear that
unlike any other profession,
advocacy is regarded as a noble
profession and professional ethics
must be maintained. Courts have
dealt with various cases of
professional misconduct wherein
attempt of murder by the advocate
towards his client have also been
reported. Hence, there must be
interference from concerned
authorities so that persons with a
criminal background are kept away
from this profession. Even though
there are guidelines dealing with the
social background of the person
enrolling in this profession, i.e. the
person enrolling must be free from
any criminal cases, it does not prove
that the person has a criminal
nature of his own. So Bar Council
can implement certain rules and
regulation so that the conduct of the
person who is showing criminal
behaviour can be controlled strict
guidelines ensuring that the person
no longer acts unlawfully against his
profession. There must be various
career guidance and development
programs conducted by the Bar
Council immediately after
enrolment so that new legal
professionals they will be aware of
the do’s and don’t of this profession
and there will be a better group of
advocates in the coming decades.
BCI
Advocates Act, 1961
36. Disciplinary powers of Bar Council of
India-
(1) Where on receipt of a complaint or otherwise
the Bar Council of India has reason to believe
that any advocate (Note:- The words "on the
common roll" omitted by Act 60 of 1973,
sec.25) whose name is not entered on any
State roll has been guilty of professional or
other misconduct, it shall be 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, [(Note:- Subs. by Act 60
of 1973, sec.25, for the words "of its own
motion".) either of its own motion or on a report
by any State Bar Council or 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.
(3) The disciplinary committee of the Bar
Council of India 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 Advocate-General 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 sub-section (3) of section, 35
and where any proceedings have been
withdrawn for inquiry [(Note:- Subs. by Act 60 of
1973, sec.26) before the disciplinary committee
of the Bar Council of India] the State Bar
Council concerned shall give effect to any such
order.
(1) where on receipt of complaint of
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) Not with standing anything
contained in this Chapter 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.
(3) The Disciplinary committee of the
Bar Council of India, in choosing of
any case under this section,shall
observe,so far as may be,the
procedure laid down insection 35, the
refernces to the Advocate-General 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 the Bar
Council can make under sub-
section(3) of section 35, and
proceedings have been withdrawn for
enquiry before the Disciplinary
committee of the Bar Council of India,
the State Bar Council concerned shall
give effect to any such order.
 Section 36-A:Changes in proceedings in respect of any
constitution of Disciolinary Disciplinary matter against an
Committees:- Whenever in respect advocate is pending before the
of any proceedings under Section 35 Disciplinary committee of a State Bar
or section 36, a Disciplinary committee Council that Disciplinary committee of
of the State Bar Council or a a State Bar Council shall dispose of
Disciplinary committee of the Bar the same within a period of six
Council of India months from the date of such
commencement or within a period of
one year from the date of the receipt
of the complaint or, as the case may
be, the date of initiation of initiation of
the proceedings at the instance of the
State Bar Council, whichever is later,
failing which such proceedings shall
stand transferred to the Bar Council of
India for disposal under sub-
ceases to exercise jurisdiction and is section(1).
succeeded by another committee
which has and exercises jurisdiction
,the Disciplinary committee of the
State Bar Council or the Disciplinary
committee of the Bar Council of India,
as the case may be so succeeding may
continue the proceedings from the
stage at which the proceedings were
so left by its predecessor committee.
Section 36-B : Disposal of
disciplinary proceedings:-
 The Disciplinary committee of a State
Bar Council shall dispose of the
complaint received by it under Section
35 expeditiously and in each case the
proceedings shall be concluded within
a period of one year from the date of
the receipt of the complaint or the
date of initiation of the proceeding at
the instance of the State Bar Council ,
as the case may be failing which such
proceedings shall stand transferred to
the Bar Council of India which may
dispose the same as if it were a
proceeding withdrawn for inquiry
under sub-section(2) of Section 36.
 Notwithstanding anything contained in
sub-secrtion (1) where on the
Commencement of the Advocate
(Amendment) Act,193, any