Chapter Three

Early Developments of Legal Profession

 61

A well-organized and independent legal profession is not only a

prerequisite for proper administration of justice,l it is also a necessary
ingredient and guarantor of the rule of law. 2 Efforts for its proper
organi7Btion and maintenance of its independence are therefore necessary.
In this chapter we would trace the history of development of legal
profession in India. It will be useful to trace the history right from the time
of ancient civilisations through Muslim rulers to British and finally to
modem structure of legal profession. Although like many other institutions
our present legal profession is based on trends set by the British,
nevertheless a concise history of the profession would be enriciring.

The Legal Profession in Pre-Colonial India

The structure of the judicial system that existed prior to Muslim rule
in India was based on the 'Principles of Dharma'. In those days, the
pattern of society was patriarchal, and the head of the family or of the tribe
or the kings generally settled disputes. In case of inter-tribal disputes,
panchayats and assemblies comprising the respectable and elder member
of tribes held the Courts. In course of time when social life became more
settled, the King took upon himself the functi In of administering justice to
his subjects and became the chief of the judiciary in the kingdom. Appeals
against the decisions of panchayaL., and local assemblies were generally
made to the King, who administered justice in person and was assisted by
'Dharma Gum' and his counsellors. The system did not have any legal
practitioners and the concerned parties used to represent their own cases.

The judicial system of early Muslim conquerors in India remained

operative, with some modifications here and there, until advent of the
British. However, the Mughal system of justice was based on their
requirements, religion and changing nature of the society. At the lowest
level, which is in the vil1ages, they continued the Hindu system of getting
 62

petty disputes settled by the local panchayals. Generally, the parties were
satisfied with their decision, which were mostly in the nature of a
compromise. In the towns, there were regular Courts presided over by the
Qazi-e-Parganah. This Court generally dealt with both civil and criminal
matters and appeals against its decisions lay to the District Qazi. The next
unit of administration was District known as Sarkar. In each District, there
was a Qazi appointed to deal with civil and criminal cases. He also
exercised appellate powers hearing appeals against the decisions of the
Qazi-e-Parganah. Appeals against his decisions lay to the Adalat-Nazim-e-
Parganah. Appeals against his decisions lay to the Adalat-Nazim-e-Suhah.
There was another Court, which was known as the Governor's Court. It
was also presided over by the Governor and it exercised only original
jurisdiction. Appeals from the decisions of these lower Courts would lie
to the Emperor's Court and the Chief Justice's Courts. There was also a
Court presided over by the Qazi-e-Suhah. This Court possessed original as
well as appellate jurisdiction. Appeals from these Courts were heard by
the Governor's Bench, Adalat-e-Nizim-e-Suhah and the Qazi-ul-Quzat. In
the Province, the revenue Court was presided over by the Diwan, who
possessed both appellate as well as original jurisdiction. Appeals from this
Court lay to the Imperial Diwan. In the imperial capital the Emperor's
Court possessed original as well as appellate jurisdiction and was presided
over by the Emperor himself. There was also a Supreme Court known as
Diwim-e-Mazalim, which, in addition to original and r..ppellate jurisdiction
also possessed revisional jurisdiction. This was presided over by the
Emperor. There was yet another Court at the imperial capital presided
over by the Qazi-ul-Qazat, which possessed original, appellate and
revisional jmisdiction in canon law matters. The revenue Court presided
over by the Diwan-e-Ala exercised only appellate jurisdiction.
 63

The legal profession as it exists today has its roots in the initial years
of British rule. The Hindu pundits, Muslim muftis and Portuguese lawyers
who selVed under earlier regimes had little effect upon the system of law
and legal practice that developed under British administration. At first, the
prestige of the legal profession was very low. From this low state of
disrepute the profession developed into the highly respected and influential
profession in Indian society. The most talented Indians were attracted to
the study and practice of law. The profession dominated the public life of
the country and number of lawyers played a prominent role in the national
struggle for freedom. However, after independence the relative prestige and
public influence of the profession declined.

The above-mentioned judicial system did not admit of legal

practitione~ as we understand in the modem sense. There' was no
machinery as such for induction land control of legal profession. However,
institution of Muftis, though unregulated, developed during the MughaJ
period. Their assistance was particularly required in criminal cases. The
Muftis, who were attached to Court and were in fact the law officers of the
Government, expounded the law in the light of which the presiding officer
3
of the Court pronounced the sentence.

The Legal ProCession in British India

The legal Profession, as we know today in India, derives its origin

from the period of British India. The earliest form of lawyers in those areas
of India that came under the governance of the British, were called
Barristers-at-Iaw. They acquired their legal education and training from
British institutions or Inns of Courts. These Barristers had a right of
audience in all British Courts and by virtue of the same, in all Courts in
British ruled India.
 64

Although the British, for the administration of justice, established

various kinds of Courts, no clear provision was made regarding lawyers-
judges or legal professionals till the establishment of the Presidency Court
at Calcutta. Clause 11 of the Charter of 1774 empowered the Presidency
Court 'to approve' only the English and Irish barristers and members of the
Faculty of Advocates in Scotland or British attorneys. No Indian had the
right to appear before the Court. Similar discrimination was made later in
the charters establishing Presidency Court at Bombay and Madras which
kept Indians out of the profession.

Lord Cornwallis in 1793, by regulation VII, authorized the Sardar

Diwani Ada/at to enroll pleaders for the Company's Courts in Bengal,
Bihar and Orissa, under this regulation only Hindus and Muslims could be
enrolled as pleaders. Pleaders were empowered to act as arbiters and give
legal opinions, by Bengal Regulation XXVII of 1814. Subsequently,
Bengal Regulation of 1833 empowered the Sardar Diwani ada/at to enrol
any qualified person as pleader irrespective of his nationality or religion.

When Provincial Courts were created in India under the Letters

Patent from the Crown, they started enrolment of advocates entitled to
practice in such Provincial Courts and also in the Courts subordinate to
them. The first Provincial Courts to commence such enrolment of
advocates were at Bombay, Calcutta and Madras. This was the beginning
of the control of legal professionals through formal enrolment by these
Provincial Courts. The Letters Patent of Provincial Courts of Madras,
Bombay and Calcutta empowered them to admit advocates, Vakeel.'I and
attorneys and to lay down rules for the qualification and eligibility etc for
such admission.

Later, the Courts at Allahabad, Lahore, Nagpur and Patna were also
invested with the same powers under their respective Letters Patent. Even
the right of Barrister-at-Iaw to appear in the Provincial Courts, or in the
 65

Courts subordinate to it, was based on the enrolment as an advocate and

not otherwise. 4

The earliest enactment for the regulation of legal professionals was

the Legal Practitioners Act (I of 1846). This law was enforceable in Madras
and Bombay Presidencies. Every barrister of any of Her Majesty's Courts
of Justice in India was entitled to plead in any of the Sadar Courts of the
East India Company.

The law allowed private agreements in relation to remuneration to

be paid for professionai services between pieaders and their clients. The
pleaders, however, were not required to specify such agreement in the
power of attorney (vakalatnama). Such private agreements were
enforceable through regular suits. The Act also allowed remuneration to the
pleaders for rendering opinions in legal matters. 5

Another enactment, which was applicable in Madras and Bombay,

extended a right to a pleader to the effect that he was not bound to attend
Court except at the hearing of a case in which he was employed. Every
attorney on the roll of any of Her Majesty's Supreme Courts of Judicature
in India was entitled to Plead in any of the Sadar Courts of East India
Company including all subordinate Courts.
6

In 1846 the Legal Practitioners act enabled all persons of good

character and required qualifications, to be pleaders. Attorneys and
barristers were authorized to appear in the Sardar ada/at and pleaders were
pennitted to enter into agreement with the clients for their fee. This Act
allowed the barristers and attorneys to appear before any of the Courts of
the Company. They were entitled to appear and plead before the Court
subject to its rules and directions. Similar provisions were made in the
letters patents establishing the Presidency Courts at Calcutta, Bombay and
Madras.
 66

The Legal Practitioners Act (XVIII of 1879)

Enrolment of advocates by these Courts was not free from difficulty.

A need had arisen to regulate the legal profession through out India,
particularly after the entire Indian sub-continent had been subjugated by
the British and brought directly under the sovereignty of the British Crown
in 1858. For this reason, a comprehensive law, the legal Practitioners Act,
was passed in October 1879 to consolidate the law relating to lawyers in
India. Prior to this law, lawyers in India were described by various
nomenclatures like Advocates, Attorneys, Barristers, Solicitors, Vakils,
Pleaders, Mukhtars, Revenue agents and Private Pleaders. The act of 1879
defined these categories and restricted their functions.

Every person entered as an advocate, attorney or vakil on the roll of

any High Court under the Letters Patent constituting such Court or enrolled
as pleader in the Chief Court of the Punjab, was entitled to practice in all
the Courts subordinate to the Presidency Court of one's enrolment. He was
also entitled to practice in all revenue offices situated within the local
limits of the appellate jurisdiction of the High Court concerned.

The Presidency Courts had power to make rules under this Act for
qualification, admission, discipline and certification of proper persons to be
• 7
enrolled as pleaders and mllkhlars of the subordinate Courts.

According to this enactment, the legal practitioners were divided

into two main categories. (1) Advocates, vakils and attorney fell into one
category and belonged to the legal practitioners practicing in a Presidency
Court and Courts subordinate to such Presidency Court; and (2) pleaders
and mllkhlars belonged to another class of legal practitioners who practiced
only in subordinate Courts.

The legal Practitioners Act of 1879 gave wide powers to the high
Courts to enroll lawyers for different Courts and also take disciplinary
 67

proceedings against them. It authorized all Presidency Courts to make

rules, with the prior sanction of the respective provincial governments with
respect to the qualifications and admission of proper persons as advocates
and valdis of the Courts. Power to dismiss the advocates, after giving
them the opportunity to defend, was given to these Presidency Courts.

The Presidency Courts were also authorized to make rules with

respect to qualifications and admission of pleaders and mulcthars for the
subordinate Courts and revenue offices. Though different Presidency
Courts provided different qualifications for the pleaders and mukhthars,
generally former were trained in law & conduct themselves in the courts
while the latter were not. While pleaders could practice in all subordinate
Courts, mulchthars were allowed to appear only before the criminal Courts
and at some places even before revenue officers.

A pleader or mukhthar could be suspended or dismissed by the High

Court if he was convicted of an offence implying a defect of character or if
he was found guilty of fraudulent or improper conduct in the discharge of
his professional duties.

The ~idency Courts had the power to suspend or dismiss any

pleader or mulchtar for professional misconduct. Professional misconduct
included taking instructions from someone other than the one who had
engaged him. fraudulent behaviour and solicitation for work, or to be a
tout. However a pleader or mukhtar could not be suspended or dismissed
unless he was allowed opportunity of defending himself before the
authority suspending or dismissing him.

The other development during this period was the Act of 1879. The
act provided that no woman, throughout British India could, by reason only
of her sex., is to be disqualified from being admitted or emolled as a legal
practitioner or from practicing as such.8
 68

Other important development was with regard to the right of the

legal practitioners to sue for recovery of their fees and be sued for any loss
or injury caused due to any negligence in the conduct of his professional
duties.

The three-charted Presidency Courts added to the category of

advocates and attorneys, the category of valdis. 1 be former two categories
were of persons qualified in England, while the later were Indian Law
graduates. However, under amended rules the Bombay and Madras
Presidency Courts had permitted even Indian law graduates to be advocates
after passing a prescribed test. While an advocate could appear on original
as well as appellate side of these Courts the vakil could not appear on the
original side or even in appeals from original side. The Madras Presidency
Court had, however, done away with this distinction as early as 1886.
Since in other Presidency Courts there was no original side there was no
practical difference between a vakil and an advocate.

This Act also empowered an advocate or vakil on the roll of any

High Court to plead before any high Court with the pennission of that
Court. Similarly, attorneys were permitted to practice before any
subordinate Court in British India and also before any High Court. This
enlargement of the area of work for the advocates, vakils and attorneys,
provided them mobility and also a chance to come closer to their brethren
at other places.

An important provision of the Act, which continues to exist even

now, was section 36 which empowered the District Judges, Session Judges,
District Magistrates, Collector and the Chief Judge of a Presidency Court
to publish the list of touts. The touts could be debarred from entering the
premises of the Courts and could also be subjected to fine / imprisonment.
In spite of this provision and the concern shown by different legal refonn
 69

committees, including the Law commission of India, touts continue to

flourish in the legal profession.

Although the Act of 1879 was a long step in streamlining the legal
profession but there was great incoherence and lack of uniformity. A major
development in relation to the law practice for the legal practitioners in
India took place in 1926. A Central Act for the whole of India was passed
in the name of the Indian Bar Councils act (xxxvm of 1926). This law
was applicable to the whole of British ruled India, including Presidency
Courts at Calc~ Madras, Bombay.

The Indian Bar Councils Act of 1926

In 1926 Indian Bar Councils Act was passed. The most important
step the Act made was the establishment of a Bar Council for each
Presidency Court consisting of fifteen members. According to the rules of
different Bar Councils, a barrister or attorney or a law graduate, after
training, could be admitted as an advocate. The application for the
enrolment was presented to the Bar Council, final decision was taken by
the Presidency Court, which could refuse admission to anyone. In
addition to 1his full power was reserved to the Calcutta and Bombay
9
Presidency Comts to control admission of advocates on their original side.

Power to take disciplinary proceeding on a reference from

Presidency Court was given to the Bar Council. To give full effect to the
provisions of the Legal Practitioners Ac~ 1923 which prohibited
discrimination on the basis of sex in the matter of enrolment, the Act of
1926 also provided that a specific rule be made by every Bar Council that a
women will not be disqualified to be an advocate on the ground of sex
alone. 10

From the provision of the Act of 1926 it is apparent that it did not
achieve what was desired The Bar co\ID.cils were simply advisory bodies
 70

and the real powers were vested in the Presidency Courts. Even the rules
passed by the Councils required approval of the Presidency Courts. The
distinction between the advocate on original side and other advocates in
Calcutta and Bombay Presidency Courts was left untouched. Similarly the
attorneys were left undisturbed by 1ris act. Nor it made any provision with
respect to legal practitioners in subordinate Courts. Even the right of an
advocate of one Presidency Court to appear in other Presidency Court was
subject to the rules of Presidency Court.

It was provided that for every Court, Bar Council would be

constituted in the manner provided under the Act. Every Bar Council so
constituted would be a body corporate having perpetual succession and a
common seal, with power to acquire and hold property and could sue and
be sued. I I

Each Bar Council to be constituted under the said act was to consist
of 15 members, composed of the advocate-general, four nominees of the
Presidency Court, of whom not more than two could be judges of the
Presidency Courts and the remaining ten had to be elected by the advocates
of the Presidency Courts from amongst their members. The qualifications
laid down for elected members of the Bar Council included that at least
five out of the ten elected members had at least a standing of 10 years at
the Bar to practice in the Presidency Court for which the Bar Council was
to be constituted. The Chainnan and vice chairman of each Bar Council
were to be elected by the Council itself.

The Bar Councils were to be rule-making bodies under this Act.

The Bar Councils could frame rules regarding the manner in which election
of the members of the R~r Councils were to be held, the manner in which
they had to be declared to have been elected, the manner in which the
results of the elections could be published, the terms of office of the elected
and nominated members of the Council, the filing of casual vacancies in
 71

the Council, the convening of meetings of the Council and related matters,
the manner of election to the office of chainnan and vice chairman of the
Council, and other incidental and ancillary matters. However, the first
rules under this law had to be framed by the Presidency Courts but later on,
the concerned Bar Councils could, with the previous sanction of the
Presidency Courts, amend such Rules.

The Bar Councils could also make byelaws consistent with the Act
.
and the Rules framed there under, particularly in relation to the
appointment of ministerial officers and servants and constitution of the
committees of the Council. 12

The primary functions of the Bar Councils were enrolment and

discipline of the advocates. However, the Bar Council had not been made
autonomous in the matter of enrolment of advocates. Every Presidency
Court was empowered to prepare and maintain roll of advocates of the
Presidency Court. Provisions were made for maintaining inter-se-seniority
amongst the advocates of the Presidency Court with their right of pre-
audience to be determined according to such seniority. However, the
Advocate General and the King's Counsel had pre-audience over all other
Advocates. The certificate of enrolment was to be issued by the Presidency
Court and after such enrolment; the Presidency Court sent a copy of the
roll so prepared, to the Bar Council. All alterations and additions to the roll
made from time to time were also communicated by the Presidency Court
to the Bar Council. 13

The Bar Council could, with the previous sanction of the Presidency
Co~ made rules for the admission of persons to be advocates of the
Presidency Court, but such rules c(llJld n(lt affect or limit the powers of the
Presidency Court to refuse admission to any person as advocate at its
discretion. The rule-making power of the Bar Council was circumscribed
to the matters like the qualifications for admission as advocates and
 72

procedural matters like the form and manner of applications, giving of

notice by the Presidency Court to the Bar CounciL hearing of objections by
the Presidency Court and fees payable in respect of enrolment. The rights
of women were safeguarded and no woman could be disqualified for
admission as advocate by reason of sex only. 14

Similarly, in the matter of disciplinary proceedings against

advocates for misconduct, Bar Council was subservient to Presidency
Court. Only Presidency Courts were empowered to reprimand, suspend or
remove any advocate of the Presidency Court form practice who was guilty
of professional or other misconduct. Upon receipt of a complaint made to
a Presidency Court or Bar Council against an advocate for misconduct, the
Presidency Court could either summarily reject the complaint or refer the
case for inquiry either to the Bar Councilor, after consultation with the Bar
CounciL to the Court of a District judge. The Presidency Court could also,
on its own, refer the case of any advocate for proceedings of misconduct. I 5

When a case was referred for inquiry to Bar CounciL it was inquired
into by a tribunal of the Bar Council, which would consist of not less than
three and not more than five members of the Bar Council, appointed for the
purpose by the Chief Justice of the High Court. One of the members of the
tribunal so appointed would act as the president of the tribunal. I 6

The finding of the tribunal on inquiry referred to it was to be

forwarded through the Bar Council to the Presidency Court and the
Presidency Court, on receipt of such finding, would fix a date for hearing
of the case. Before passing any orders in the case, the Presidency Court had
to inform the advocate, the Bar council and the advocate was given an
opportunity of being heard. If the Presidency Court reprimanded or
suspended an advocate, then record of such punishment was entered
against his name in the roll of advocates of Presidency Court. But when an
advocate was removed from practice, his name was struck off the roll. The
 73

Presidency Court could, however, of its own or on application made to it in

this behalf: review any order passed against an advocate.

An advocate was entitled to practice, as of right, in the Presidency

Court in which he was enrolle<L before any tribunal or person legally
authorized to take evidence, or before any oilier authority or person before
whom such advocate was entitled to practice under the law for the time
· 11
bemg.

Bar Councils were also empowered to make rules for the advocates
in relation to their discipliruuy and professional conduct, legal education,
training and examining, and investment and management of the funds of
the Bar COWlcil.

It is noticeable from the provisions of the Indian Bar Council Act

that the legal profession was not made independent, though an initial step
in this direction had been taken. The Bar Councils, which were to be
constituted under the Act, remained subordinate to the respective
Presidency Courts and had to function under their direction. One-third of
the membership of Bar Council consisted of nominated persons and its
decisions could be easily over-ruled by Presidency Court. Nevertheless,
some autonomy was provided to the advocates under this law for the first
time in British ruled India. Two-third of the members of the Bar Council
were elected which gave a voice to the general body of lawyers in the
country. 18

Modem Judiciary

The contemporary judicial system in India is quite complicated and

beyond focus of the present study. However, a brief introduction would
enrich us to understand its structure to some extent. The reason is that
apart from the judicial system, which the constitution establishes, there are
many laws, which define and regulate the composition, powers and the
 74

jurisdiction of the various Courts. Moreover an elaborate explanation will

disarray the work from its focus. A concise introduction or an outline of the
present judicial system is discussed below which is worth taking into
account. 19

The constitution of India, which is the basis of all governmental

organs and institutions, establishes a federal fonn of government. A federal
government requires double sets of executive, legislature and jUdiciary-one
each for the centre and the states. But our constitution makes an exception
to this general rule in so far as it establishes single set of judiciary which
administers both central as well as state laws. In other words, our judiciary
consists of a Supreme Court at its top, High Courts in the middle and the
Lower or District Courts at the bottom. The Supreme Court is the creation
of the Constitution, therefore, its composition, powers, jurisdiction ctc. all
are given exhaustively in the Constitution itself. But that is not the case
with the High Courts and with the Lower Courts and with the exception of
few basic matters the Constitution leaves them to be governed by the
existing laws or the laws, which may be passed in future.

The Supreme Court

The Supreme Court, located in New Delhi, is the highest Court of

India. It consists of one Chief Justice and 25 other judges to be appointed
by the President of India from amongst the Indian citizens who have been
in one or more High Courts as judges for five years or advocates for ten
years in a High court or a distinguished jurist in the opinion of the
President. A judge holds his office up to the age of 65 years unless he
resigns earlier or is removed through impeachment. The jurisdiction and
powers of the Supreme Court are very wide. Its jurisdiction may be
classified as below-
 75

o Original

(i) Exclusive original jurisdiction- in any dispute between the Centre

and the States or the States inters se.20

(ii) Original jurisdiction but not exclusive: - to enforce fundamental

rights. 2 I

e Appellate- Ordinarily it has the jurisdiction to hear appeals against the

decisions of the High Comts only on the certificate of the High Court, 22
if

(iii) In any proceedings substantive question as to the interpretation of

the constitution is involve<L or

(iv) In civil proceeding if the case involves substantial question of law

of general importance and the High Court think that the question
needs Supreme Court ruling.

(v) A criminal case is fit one to be heard by the Supreme Court.

In criminal matters an appeal can be filed even without the

certificate of the High Court if the High Court has sentenced a person to
death, either after revising the orders of acquittal passed by a lower Court
or after withdrawing any case from the lower Court. Above all the Supreme
Court can allow an appeal by its special leave in any matter against the
decision of any Court or tribunal in India except tribunals relating to armed
Forces.

Advisory- The President may seek the advice of the Supreme Court in any
matter of public importance and also in the matters relating to treaties etc.
executed before the commencement of the Constitution.

Apart from these specific jurisdictions the Supreme Court has the
power to review its own decision. A law of Parliament may further enlarge
the jurisdiction of the Supreme Court.
 76

Apart from its power to hear appeal;, against the decisions of the
High Courts the Supreme Court has no administrative or supervisory
powers over them or over other lower Courts. However, few years back it
has been empowered to transfer or withdraw cases from the High Courts.

High Courts

According to the provisions of the Constitution there must be a High

Court for each state but a common High Court may also be established for
twp or more states and also the jurisdiction of any High Court may be

extended to any Union territory. Every High Court consists of a chief

Justice and such other judges, as the President may from time to time deem
necessary to appoint. An Indian citizen who has been for ten years either in
the judicial service or an advocate in any High Court can be appointed as a
judge and holds this office till the age of sixty-two years unless he resigns
or is removed.

Apart from protecting the existing jurisdiction of the High Courts

the Constitution removes all the restrictions on certain High Courts relating
to revenue matter, which were in exi:;tence as a result of the Act of
Settlement. It also confers on all High Courts the power of issuing the five
prerogative writs for the enforcement of fundamental rights or even for
redressal of substantial injury or injustice.

Every High Court is a Court of record and can punish for its
contempt. It has the power of superintendence over all Courts within its
territorial jurisdiction. The decisions of a high Court and the laws laid
down by it are binding upon all Courts subordinate to that High Court;
although for other High Courts and Courts subordinate to such other High
Courts these decisions or laws have only persuasive value.
 77

Subordinate Court

With respect to the lower Courts the Constitution only mentions that
the District judges in the state shall be appointed by the Governor in
consultation with the High Court of the state and the judicial servants
below the rank of the District judge shall be appointed by the governor in
accordance with the rules made in consultation with the public service
commission and the High Court of that state. The High Court has been
given full control over the District Courts and the Courts subordinate
thereto. Beyond this the constitution and organization of the large number
of Courts spread over the country has been left as it existed at the time of
the commencement of the constitution and it may be modified or
formulated by tile various state legislatures within their own territories.
Because of the various laws on this aspect and the power of the state to
make their own laws the nomenclature and the jurisdiction, etc. of these
Courts differ from state to state. Apart from the High Court, the
Parliament has full power with respect to the subordinate Courts within the
Union territories. Discussion of the whole position would extend beyond
the purpose, aim. and scope of this study.

Separation of Judiciary and Executive

There is a theory of separation of powers according to which rights

of the people are better protected if separate independent organs, with man
not common to them, perform the executive legislative and judicial
functions. During the British rule such separation was not created for long
even in the highest judiciary such as the Sardar Diwani adalat and at the
lower judiciary such separation, particularly in the field of criminal
matters, could not be created even up to the independence irrespective of
many calls for such separation. With the independence people wanted to
create separation between the judicing and the executive. For giving
 78

directions to the states a fonnula was evolved by the central Ministry of

Home affairs according to which-

(1) A cadre of judicial magistrates separate from executive magistrates

should be created, (2) judicial functions should be separated from the
executive and should be exclusively assigned to judicial magistrates, (3)
the cogni7JInce of offences under the Cr. P.C. should also be taken by the
judicial magistrates, and (4) the judicial magistrates should be under the
administrative control of the High Court.

Following these guidelines most of the state have separated dIe

judicial magistrates from the executive magistrates or have conferred
powers of magistrates on the mumifs or sub judges of the civil Courts.
Some states have created a combined cadre of mumif-magistrate or civil
judge magistrates. Almost all the offences under the Indian penal Code
come under the jurisdiction of these judicial officers and the executive
magistrates have been left only with powers to take up the proceedings
under the Criminal Procedure Code or under the special Acts making penal
provisions. The judicial officers have been put under the control of the
High Courts removing their subordination to the executive authorities. The
process of separation is going on but how far it will be practically possible
to create such watertight separation in the present day complex society with
ever increasing division of labour is to be seen.

The All India Bar Committee, 1951

The dissatisfaction with this kind of arrangement continued to

mount among the legal practitioners and got a new stimulus on the creation
of the Supreme Court in 1950. The Advocates Act, 1951 gave a right to
every advocate of the Supreme Court to practice in any high Court. But
that was not enough. Lawyer community wanted unified autonomous bar
 79

with no class distinctions among lawyers. In view of their demand, the

Government of India in 1951 appointed the all India Bar Committees under
the chairmanship of Justice S. R Das to report on the desirability of an All
India Bar and a separate Bar Council for the Supreme Court; abolition of
the Distinction between counsels and solicitors existing in Calcutta and
Bombay high Courts; abolition of different classes of lawyers;
consolidation of the existing laws on the subject; and other connected
matters.

The Committee in its report submitted in 1953, recommended

creation of an All India Bar Council with common roll of all advocates and
also the Bar Council for states with larger autonomy. But it did not feel the
need for separate Bar Council for Supreme Court. It justified the
continuation of the distinction between counsels and solicitors in Calcutta
and Bombay but recommended that all other classes of practitioners be
abolished and be put under one common nomenclature of advocates, and
that only law graduates should be enmlled as advocates.

No action was taken on the recommendations of the committee till

they were again repeated and endorsed by the Law Commission in 1958.
To implement these recommendations a bill was introduced in parliament
in 1959, which became the Advocates Act, 1961.23

The Advocate Act, 1961

The Act, which extend~ to the whole of India, provides a federal

structw"e for legal profession with one category of lawyers known as
advocates. 24 It provides for a number of state Bar Councils and Bar Council
of India. An advocate is initially enrolled with a state Bar Council and the
Bar Council of India maintains a common roll of all the advocates in the
country.
 80

No advocate can get himself enrolled with more than one state Bar
Counc~ though certainly he can get himself transferred from one state Bar

Council to another and is also entitled to appear before any Court or

tribunal throughout the country.

State Bar Councils

The State Bar Councils are named after their states though there are
few bar councils common to two or more sates and in some cases union
territories have also been covered by a state Council. National Capital
territory of Delhi has separate Bar Council. Every state Bar Council has a
chairman and a vice-chairman elected by the Bar Council. The term of the
elected members of the state Bar Council is five years.

Every state Bar Council has an executive committee consisting of

five members, an enrolment committee consisting of three members and
one or more disciplinary committees consisting of three persons (two of
whom must be members and the third is a co opted advocate of ten years of
standing). Bar Council may also constitute one or more legal aid
committees and such other committees, as it may deem necessary for the
purpose of carrying out the provisions of the Act. The function of a state
Bar Council is

l. To admit advocates on its roll.

2. To prepare and maintain such roll.

3. To entertain and determine cases of misconduct against advocates on

its roll.

4. To safeguard the rights, privileges, interests of advocates on its roll.

S. To promote and support law reforms.

6. To conduct seminars, organize talks and publish legal periodicals.

7. To manage and invest the funds of the Bar Council.

 81

8. To provide for election of its members.

9. To perform any other function conferred on it under the Act.

10. To organize legal facility for the poor.

11. To do all other things necessary for discharging the foresaid

functions.

Detailed provision have been made in the Act itself regarding

disciplinary proceedings which are conducted in a judicial manner and in
connection of which councils possess powers of a civil Court under the
Civil Procedure code as regards summoning of witnesses, production of
documen~ issuing commissions, etc. the punishment may be reprimand,
suspension or removal from the roll.

The Bar Council of India

The Bar Council of India consists of (a) the Attomey-General of

India (b) the Solicitor-General and (c) one member elected by each state
Bar Council from amongst its members. There are elected chainnan and a
vice-chainnan of the Council. The term of the elected members is
coterminous with their membership of the state Bar Council except that ex-
officio members of the state Bar Council elected to the Bar COlUlCil of India
cannot remain members for more than two years.

The Bar Council of India has an executive committee consisting of

nine members elected by the Council from amongst its members and a
legal education committee consisting of ten members of whom five are
persons elected by the Council from amongst its members and five are co-
opted from amongst person who are not its members. The Council may
constitute one or more committees if so necessary for the purpose of
canying out the provision of the Act.
 82

Among the functions entrusted to the Bar council are: (1) laying
down standards of professional conduct and etiquette for advocates and the
procedure to be followed by disciplinary committees of each state Bar
Council, (2) promotion of law reforms, (3) supervision and control over
state Bar Council, (4) promotion of legal education and laying down its
standards, (5) recognition of universities whose degrees will qualify a
person to be enrolled as an advocate as well as recognition of foreign
qualifications for the same purpose, (6) conducting of seminars and talks
on legal matters and publishing of legal journals, (7)managing of its funds,
(8) election of its members, (9) organizing legal aid to the poor, (10)
recognition of foreign law degrees and (11) all other functions conferred by
the Act or which are necessary for the discharge of the aforesaid functions.

The Bar Council of India, and subject to its approval state Bar
Council, have been given powers to frame rules for the successful
implementation of the provisions and objectives of the Act. The foregoing
provisions of the act materialize the long held dream of the members of the
legal profession to have an all India Bar and professional autonomy. Not
only that, the Act also achieves other connecte~ obje,9tives' iBeluding the
improvement of legal education and uniformity of standards.-So far the
state Bar Council and Bar Council of India have been doing good job in the
direction of achieving the objectives underlying the ACt. 25

In the end the picture of the Courts, which has been depicted above,
is that of important Courts only in the administration of civil and criminal
justice. There are many other Courts also dispensing justice under various
special laws and laws dealing with revenue matters. But as it is not possible
to mention them all here, nevertheless the outlines of the basic and primary
judiciary have been discussed above. Moreover, no matter of judicial
 83

nature decided by any other Court could escape the special leave appeal
jurisdiction of the Supreme Court. To that extent that principle of rule of
law, which requires equal justice to all, is protected in our present day
judicial system.

Reference

The Law Commission in its fourteenth report observes: "A well organized system of
judicial administration postulates a properly equipped and efficient Bar". p.556
(1958).
2
"It is essential to the 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.31l.
3
The Rq>ort of the Law Refonn Commission 1967-70, published by Ministry of Law
and Parliamentary Affairs, Government of Pakistan, 1970, p. 57.
4
Paras 7 and 8 of the Letters Patent of the High Courts of Allahabad, Lahore, Nagpur
and Patna. See 'The Law Relating 10 Legal Practitioners' by P.R Iyer, N.M. Tripathi
Ltd., Bombay, 1951 pp. 182-183.
Section 4 of the Legal Practitioners Act, 1846. At that time, India was administered
by the East India Company.
6
The Legal Practitioners Act (XX of 1853), Section 2.
The Legal Practitioners Act (XVIII of 1879), Sections 4 and 5.
The Legal Practitioners (Women) Act (XXVIII of 1923), Section 3.
9
The Legal Practitioners (Fees) Act (XXI of 1926).
10 This Act was passed to abrogate the decision given by the Calcutta and Patna High
Courts in In re Regina Guha, I.L.R 40 Cal. 290 and In the Matter of Application by
Miss Sudarshan Subha Hazara, I.L.R. I Pat 104 respectively, by which they had
refused to admit women as pleaders.
11 The Indian Bar Councils act (XXXVIII of 1926), Section 1(2).
12 Ibid, Section 6.
13 Ibid, Section 6 and 7
14 Ibid, Section 8.
15 Ibid, Section 9.
16 Ibid, Section 10,11.
 84

17 Ibid, Section 12.

18 Ibid, Section 14.
19 Mittal, 1.K. (19-), 'Introduction to Indian Legal History', chapter XIX to XXl
20 Art. 131.
21 Art. 32.
22 Arts. 132, 133, 134 and 136.
23 Fourteenth report of the Law Commission. (1950), p. 556-586.
24 An advocate may be designated as "senior advocate" if the Supreme Court or a High
Court is of opinion that by virtue of his ability he is deserving of such distinction.
But for practical purpose all advocates stand in the same position except that a senior
advocate has a right of pre-audience over other advocates. Apart from that Bar
Council may, in the matter of practice, subject the senior advocates to restriction
prescribed in the interest of legal profession. (Sec. 6). It may be noted that even the
distinction between attorneys and other advocates and between advocates on original
side and other advocates maintained by the Calcutta and Bombay High Courts has
also been lately abolished. (Act. 107 of 1976).
25 Some attempts were made in 1976 by the government to curtail the autonomy of
profession by making government officials as ex-officio chairmen or vice-chairman
of the councils and by including government nominees into them. But the process
was reversed in 1977 and status quo restored.