The Indian Law & A Lawyer in India

Brief History of Law in India

Law in India has evolved from religious prescription to the current constitutional and legal
system we have today, traversing through secular legal systems and the common law.

Secular law in India varied widely from region to region and from ruler to ruler. ourt systems
for civil and criminal matters were essential features of many ruling dynasties of ancient India.
!"cellent secular court systems e"isted under the #auryas $%'(')* B!+ and the #ughals $' th
 - 'th centuries+ with the latter giving way to the current common law system.

Law in British(ruled India

The common law system - a system of law /ased on recorded 0udicial precedents( came to India
with the British
British !ast India ompany.
ompany. The company was granted
granted charter /y 1ing 2eorge I in
'3 to esta/lish 4#ayor5s ourts6 in #adras, Bom/ay and alcutta $now hennai, #um/ai
and 1ol7ata respectively+.

8udicial functions of the company e"panded su/stantially after its victory in Battle of 9lassey and
 /y '33 company5s
co mpany5s courts e"panded out from the three ma0or cities. In the process, the company
slowly replaced the e"isting #ughal legal system in those parts.

:ollowing the :irst ;ar of Independence in ')*3, the control of company territories in India
 passed to the
th e British rown. Being part of the empire saw the ne"t /ig shift in the Indian legal
system. Supreme courts were esta/lished replacing the e"isting mayoral courts. These courts
were converted to the first High ourts through letters of patents authori<ed /y the Indian High
ourts Act passed /y the British parliament in '). Superintendence of lower courts and
enrolment of law practitioners were deputed to the respective high courts.
=uring the >a0, the 9rivy ouncil acted as the highest court of appeal. ases /efore the council
were ad0udicated /y the law lords of the House of Lords. The state sued and was sued in the
name of the British sovereign in her capacity as !mpress of India.

=uring the shift from #ughal legal system, the advocates under that regimen, 4va7ils6, too
followed suit, though they mostly continued their earlier role as client representatives. The doors
of the newly created Supreme ourts were /arred to Indian practitioners as right of audience was
limited to mem/ers of !nglish, Irish and Scottish professional /odies. Su/se?uent rules and
statutes culminating in the Legal 9ractitioners Act of ')@ which opened up the profession
regardless of nationality or religion.

oding of law also /egan in earnest with the forming of the first Law ommission. nder the
stewardship of its chairman, Thomas Ba/ington #acaulay, the Indian 9enal ode was drafted,
enacted and /rought into force /y '). The ode of riminal 9rocedure was also drafted /y the
same commission. Host of other statutes and codes li7e !vidence Act $')3+ and ontracts Act
$')3+.

Law after Independence

At the dawn of independence, the parliament of independent India was the forge where a
document that will guide the young nation was /eing crafted. It will fall on the 7een legal mind
of B. >. Am/ed7ar to formulate a constitution for the newly independent nation. The Indian Bar 
had a role in the Independence movement that can hardly /e overstated - that the tallest leaders
of the movement across the political spectrum were law yers is ample proof.

The onstitution of India is the guiding light in all matters e"ecutive, legislative and 0udicial in
the country. It is e"tensive and aims to /e sensitive. The onstitution turned the direction of 
system originally introduced for perpetuation of colonial and imperial interests in India, firmly in
the direction of social welfare. The onstitution e"plicitly and through 0udicial interpretation
see7s to empower the wea7est mem/ers of the society.

India has an organic law as conse?uence of common law system. Through 0udicial
 pronouncements and legislative action, this has /een fine(tuned for Indian conditions. The Indian
legal system5s move towards a social 0ustice paradigm, though undertoo7 independently, can /e
seen to mirror the changes in other territories with common law s ystem.

:rom an artifice of the colonial masters, the Indian legal system has evolved as an essential
ingredient of the world5s largest democracy and a crucial front in the /attle to secure
constitutional rights for every citi<en.

Legal 9rofession in India

The history of the legal profession in India can /e traced /ac7 to the esta/lishment of the :irst
British ourt in Bom/ay in '3 /y 2overnor Aungier. The admission of attorneys was placed in
the hands of the 2overnor(in(ouncil and not with the ourt. 9rior to the esta/lishment of the
#ayor5s ourts in '3 in #adras and alcutta, there were no legal practitioners.

The #ayor5s ourts, esta/lished in the three presidency towns, were rown ourts with right of 
appeal first to the 2overnor(in(ouncil and a right of second appeal to the 9rivy ouncil. In
'3', 8udges felt the need of e"perience, and thus the role of an attorney to protect the rights of 
his client was upheld in each of the #ayor5s ourts. This was done in spite of opposition from
ouncil mem/ers or the 2overnor. A second principle was also esta/lished during the period of 
the #ayor5s ourts. This was the right to dismiss an attorney guilty of misconduct. The first
e"ample of dismissal was recorded /y the #ayor5s ourt at #adras which dismissed attorney
8ones.

The Supreme ourt of 8udicature was esta/lished /y a >oyal harter in '33@. The Supreme
ourt was esta/lished as there was dissatisfaction with the wea7nesses of the ourt of the
#ayor. Similar Supreme ourts were esta/lished in #adras in ')' and Bom/ay in ')%. The
first /arristers appeared in India after the opening of the Supreme ourt in alcutta in '33@. As
 /arristers /egan to come into the ourts on wor7 as advocates, the attorneys gave up pleading
and wor7ed as solicitors. The two grades of legal practice gradually /ecame distinct and separate
as they were in !ngland. #adras gained its first /arrister in '33) with #r. Ben0amin Sullivan.

Thus, the esta/lishment of the Supreme ourt /rought recognition, wealth and prestige to the
legal profession. The charters of the ourt stipulated that the hief 8ustice and three puisne
8udges /e !nglish /arristers of at least * years standing.
The charters empowered the ourt to approve, admit and enrol advocates and attorneys to plead
and act on /ehalf of suitors. They also gave the ourt the authority to remove lawyers from the
roll of the ourt on reasona/le cause and to prohi/it practitioners not properly admitted and
enrolled from practising in the ourt. The ourt maintained the right to admit, discipline and
dismiss attorneys and /arristers. Attorneys were not admitted without recommendation from a
high official in !ngland or a 8udge in India. 9ermission to practice in ourt could /e refused
even to a /arrister.

In contrast to the ourts in the presidency towns, the legal profession in the mofussil towns was
esta/lished, guided and controlled /y legislation. In the =iwani ourts, legal practice was
neither recogni<ed nor controlled, and practice was carried on /y va7ils and agents. Ca7ils had
even /een appearing in the ourts of the Dawa/s and there were no laws concerning their 
?ualification, relationship to the ourt, mode of procedure of ethics or practice.

There were two 7inds of agents - 

 a. untrained relatives or servants of the parties in ourt and /. professional pleaders who had
training in either Hindu or #uslim law.

Bengal >egulation CII of '3% was enacted as it was felt that in order to administer 0ustice,
ourts, must have pleading of causes administered /y a distinct profession Enly men of 
character and education, well versed in the #ohamedan or Hindu law and in the >egulations
 passed /y the British 2overnment, would /e admitted to plead in the ourts. They should /e
su/0ected to rules and restrictions in order to discharge their wor7 diligently and faithfully /y
upholding the client5s trust.

!sta/lishment of the High ourts

In '), the High ourts started /y the rown were esta/lished at alcutta, Bom/ay and
#adras. The High ourt Bench was designed to com/ine Supreme ourt and Sudder ourt
traditions. This was done to unite the legal learning and 0udicial e"perience of the !nglish
 /arristers with the intimate e"perience of civil servants in matters of Indian customs, usages and
laws possessed /y the civil servants. !ach of the High ourts was given the power to ma7e rules
for the ?ualifications of proper persons, advocates, va7ils and attorneys at Bar. The admission of 
va7ils to practice /efore the High ourts ended the monopoly that the /arristers had en0oyed in
the Supreme ourts. It greatly e"tended the practice and prestige of the Indian laws /y giving
them opportunities and privileges e?ual to those en0oyed for many years /y the !nglish lawyers.
The learning of the /est British traditions of Indian va7ils /egan in a guru(shishya traditionF

4#en li7e Sir C. Bashyam Ayyangar, Sir T. #uthuswamy Ayyar and Sir S. Su/ramania Ayyar 
were ?uic7 to learn and a/sor/ the traditions of the !nglish Bar from their !nglish friends and
colleagues in the #adras Bar and they in turn as the originators of a long line of disciples in the
Bar passed on those traditions to the disciples who continued to do the good wor7.6

Additional High ourts were esta/lished in Allaha/ad $'))+, 9atna $''+, and Lahore $'' +.

There were si" grades of legal practice in India after the founding of the High ourts - a+
Advocates, /+ Attorneys $Solicitors+, c+ Ca7ils of High ourts, d+ 9leaders, e+ #u7htars, f+
>evenue Agents. The Legal 9ractitioners Act of ')3 in fact /rought all the si" grades of the
 profession into one system under the 0urisdiction of the High ourts. The Legal 9ractitioners Act
and the Letters 9atent of the High ourts formed the chief legislative governance of legal
 practitioners in the su/ordinate ourts in the country until the Advocates Act, '' was enacted.

In order to /e a va7il, the candidate had to study at a college or university, master the use of 
!nglish and pass a va7il5s e"amination. By '@, a va7il was re?uired to /e a graduate with an
LL.B. from a university in India in addition to three other certified re?uirements. The certificate
should /e proof that a. he had passed in the e"amination /. read in the cham/er of a ?ualified
lawyer and was of a good character. In fact, Sir Sunder Lal, 8ogendra Dath haudhary, >am
9rasad and #oti Lal Dehru were all va7ils who were raised to the ran7 of an Advocate.

Original and appellate jurisdiction of the High Court

The High ourts of the three presidency towns had an original side. The original side included
ma0or civil and criminal matters which had /een earlier heard /y predecessor Supreme ourts.
En the original side in the High ourts, the solicitor and /arrister remained distinct i.e. attorney
and advocate. En the appellate side every lawyer practiced as his own attorney.
 However, in #adras the va7ils started practice since '). In ')3@, the /arristers challenged
their right to do original side wor7. However, in '', this right was firmly esta/lished in favour 
of the va7ils. Similarly, va7ils in Bom/ay and alcutta could /e promoted as advocates and
 /ecome ?ualified to wor7 on the original side. By attending the appellate side and original side
ourts each for one year, a va7il of ' years service in the ourt was permitted to sit for the
advocates5 e"amination.
Indian Bar ouncils Act, '.

The Indian Bar ouncils Act, ' was passed to unify the various grades of legal practice and
to provide self(government to the Bars attached to various ourts. The Act re?uired that each
High ourt must constitute a Bar ouncil made up of the Advocate 2eneral, four men nominated
 /y the High ourt of whom two should /e 8udges and ten elected from among the advocates of 
the Bar. The duties of the Bar ouncil were to decide all matters concerning legal education,
?ualification for enrolment, discipline and control of the profession. It was favoura/le to the
advocates as it gave them authority previously held /y the 0udiciary to regulate the mem/ership
and discipline of their profession.

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

A/out the legal 9rofession

The Supreme ourt is the highest constitutional court and appellate 0udicial authority in India.
High ourts e"ercise 0urisdiction over a state or a set of states. =istrict courts and several other 
lower courts operate under their am/it.

Thousands of lawyers graduate every year from almost  law colleges spread across the
country. The ma0ority of India5s large legal profession represents clients in courts and other 
 0udicial /odies, wor7ing either individually or in a family(run concern.

Today, several large law firms operate mostly from the ma0or commercial centres, providing
advice on transactions. #any lawyers have also /een employed /y industry to wor7 in(house.
Legal process outsourcing has also received a great amount of attention during the last few years.
Source F (