Om sai ram

BAR COUNCIL OF INDIA

History and Constitution

The Indian High Courts Act, 1862 was passed by the British Parliament authorizing creation of
High Courts by letters patent in the Presidency towns of Mumbai, Calcutta and Madras.

Meaning of the term letters patent:

The modern English word “Letters patent” is derived from the Latin term litterae patentes.

Letters patent are a type of legal instrument in the form of a published written order issued by a
monarch, president, or other head of state, generally granting an office, right, monopoly, title, or
status to a person or corporation.

Letters patent were thus used by the Queen of England to create the High Courts in the presidency
towns in India.

The opposite of letters patent are called as letters close in Latin litterae clausae, which are personal
in nature and sealed with the royal seal, so that only the recipient can read their contents.

In the case of the Letters patent the royal seal was affixed on the face of the document either at the
top of the page or at the bottom, and need not be broken to read the document.

Clause 9 of the Letters Patent of 1865 which was issued by Queen Victoria to establish the High
Court of Judicature at Fort William in Bengal, allowed the High Court to approve, admit and enroll
Advocates, Vakils, and attorneys to appear in the said High Court.

Same clauses also were there in the other letters patent issued for the creation of High Courts in
Mumbai and Madras.

Thus unlike today, the High court not only heard the cases but also had the authority to appoint the
advocates, vakils etc.

As regards a High Court not established by Royal Charter, (for example Mysore High Court which
is now called as the Karnataka High Court was established in the year 1884, by a special act which
was called as the Mysore High Courts Act of 1884) Section 41 of the Legal Practitioners Act, 1879
empowered such High Courts, to make rules as to the qualifications and admission of proper
persons to be Advocates of the said High Court. However the High Court had to take the previous
sanction of the Provincial Government before making any appointment.

In the initial stages, the British Barristers dominated the Indian legal profession. For example in the
year 1871, in Mumbai there were 38 Solicitors of whom only 10 were Indians and the rest were
English and 24 Advocates out of whom only 7 were Indians and the rest were English.

Gradually, however, the bulk of the practice passed from the hands of the English Barristers to
those of the Indian barristers. Thus by 1911 there were 150 Solicitors out of whom 130 were
Indians practicing in Bombay.

1
An important point to consider is that the rules were not the same in all the High Courts in India.
The High Courts in Calcutta, Madras and Mumbai enjoyed both an original side and also an
appellate side. Other High Courts had no Original Side.

High Courts which did not have an original side made no distinction between Advocates and Vakils
and both could act and plead in the High Courts and the Subordinate Courts.

Madras High Court, (though it enjoyed the original as well as the appellate jurisdiction ) after the
year 1886, removed the distinction between the Advocates and the Vakils, and all of whom could
act and plead in the High Court and in all subordinate courts.

The Bombay High Court also allowed the non-Barristers to practice before it on the original side,
but they had to appear in a special examination conducted by the Bombay High court and pass the
examination.

The Calcutta High Court however strictly followed the rule and only allowed the barristers to
appear before it. The Vakils were rigidly excluded from the Original side. The Vakils of Calcutta
who consisted of many eminent lawyers and jurists resented what they regarded as the inferior
status of a Vakil.

The demand for the removal of distinctions between the Barristers and Vakils and the creation of an
all – India Bar was the main reason by which in November 1923 the Government set up the Indian
Bar Committee, popularly known as the Chamier Committee under the Chairmanship of Sir
Edward Chamier.

INDIAN BAR COMMITTEE, 1923

The Bar committee was created for the purpose of removal of distinction between Barristers and
Vakils and for 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.

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 4 Barristers, 1 Attorney, 1 civilian and 3
representatives of the Vakil community.

The Chamier Committee submitted its report on the Ist February 1924. The Committee
recommended:

1. 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 distinction between High Court
Vakils or Pleaders be abolished;
2. That in future the requirement that one-third of the High Court Judges need be Barristers
should be removed.
3. That Advocates of one High Court should be entitled to practice in another High Court

2
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.
The Committee suggested however that a Bar Council should be constituted for each High Court.

The Indian Bar Councils Act 1926 was passed as a result of this committee report to the
Government.

Indian Bar Councils Act, 1926.

Section 3 to 7 of the Act provided for the constitution and incorporation of a Bar Council as a body
corporate.

Section 8 directed the High Courts to prepare and maintain a roll of Advocates of the High Court,
and prescribes the order of seniority as recommended by the Chamier Committee. The Attorneys of
the High Court, however, were not to be entered in this roll.

Section 9 authorized the Bar Council, with the previous sanction of the High Court, to make rules to
regulate the admission of persons to be Advocates of the High Court to refuse admission to any
person at its discretion.

It can be seen from the above provision that the power of enrolment of Advocates continued to
remain in the High Court and the function of the bar Council was of an advisory nature only.

Drawback of the Chamier Committee’s Report and the Indian Bar Councils Act, 1926 was that the
Pleaders, Mukhtars and Revenue Agents practicing in the Mofussil Courts and Revenue Offices
were entirely out of it’s consideration.

Further, the Bar Councils constituted under the Indian Bar Councils Act were merely advisory
bodies and were neither autonomous nor had any substantial authority.

The Constitution of India came into force on 26th January 1950 and all High Courts became High
Courts under the Constitution.

In May 1950 the Madras Provincial Lawyers Conference held under the presidency of Shri
Varadachariar, a renowned advocate, resolved that the Government of India should appoint a
Committee for the purpose of evolving a scheme for an all-India Bar and amending the Indian Bar
Councils Act to bring it into conformity with the new Constitution.

Syed Mohammed Ahmad Kazmi, M.P. introduced in Parliament on April 12, 1951, a
comprehensive Bill to amend the Bar Councils Act 1926.

In August 1951 the then Minister of Law announced on the floor of the House that the Government
of India were considering a proposal to set up a Committee of Inquiry to go into the problem in
detail.

3
The All India bar Committee was headed by Hon’ble shri S. R. Das, Judge, Supreme Court of India
as Chairman. The Committee consisted of the following members:-

1. Shri M. C. Setalvd, Attorney General of India.

2. Dr. Bakshi Tek Chand, Retired High Court Judge.
3. Shri V. K. T. Chari, Advocate-Gernal of Madras,
4. Shri V. Rajaram Aiyar, Advocate-General of Hyderabad.
5. Shri Syed . A Kazmi, MP, Advocate, Allahabad
6. Shri C. C. Shah, MP., Solicitor, Bombay
7. Shri D. M. Bhandari, MP, Advocate, Rajasthan High Court.

After considering all aspects of the subject matter, the All India Bar Committee submitted its
detailed report on 30th March 1953.

The report gave the proposals for constituting the State Bar Council for each State and an All India
Bar Council on the National Level as the Apex Body for regulating the legal profession.

In the meanwhile the Law Commission of India was also assigned the job of preparing a report on
the reforms of judicial administration. To implement the recommendations of the All India Bar
Committee and taking into account the recommendations of the Law Commission “The Advocates
Act, 1961” was created and at present is the law that governs the twin areas of legal profession and
legal education in India.

************