Chanderprabhu Jain College of Higher Studies

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E-Notes

Class :BBALLB/ BALLB IX Semester

Paper Code : 509
Subject : LEGAL ETHICS AND COURT CRAFT

Unit - III Bench Bar Relations

The Advocates Act, 1961

 Introduction: To implement the recommendations of the All India Bar

Committee (fully endorsed by fourteenth Report of the Law
Commission in 1955), the Advocates Act, one thousand nine hundred
sixty one was enacted. The Act extends to the whole of India, except
the State of Jammu and Kashmir. The Act provides for amending and
consolidating the law relating to legal practitioners and to provide for
the constitution of State Bar Councils and an All India Bar Council
(for the first time in India). The Act took away the powers till then
vested in the Courts, in the matter of admission of advocates and the
maintenance of the rolls, and their disciplinary conduct (subject to an
ultimate appeal to the Supreme Court). These powers now vest in the
Bar Councils. Every Bar Council constituted under the Act is a body

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corporate having a common seal, and may, by the name of which it is

known sue arid be sued.

The main features of the Act are,

 (1) Establishment of an All India Bar Council and a number of State
Bar Councils – a federal structure for legal profession. An advocate is
initially enrolled with a State Bar Council and a common roll of all the
advocates in the country is maintained by Ail India Bar Council.
 (2) Integration of the bar into a single class of legal practitioners
knownas advocates.
 (3) A uniform qualification for the admission as advocates viz.
degree in law.
 (4) Division of advocates into senior advocates and other advocates
based onmerit.
 (5) No advocate can get himself enrolled with more than one State Bar
Council, though he can get himself transferred from one State Bar
Council toanother.

Bar Council of India

 Composition – The Bar Council of India consists of
 (a) the Attorney-General of India ex-officio
 (b) the Solicitor-General, ex-officio,
 (c) One member elected by each State Bar Council from amongst its
members.
 There are elected Chairman and a Vice-Chairman of the Council, and,
a Secretary and an Accountant The Bar Council of India has been
authorized to constitute one or more of the following committees,
 (1) Legal Aid Committee

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 (2) Disciplinary Committee

 (3) Executive Committee
 (4) Enrolment Committee
 (5) Legal Education Committee,
 Every Disciplinary Committee is to consist of three members, two
persons to be elected from amongst its members and one other to be
co-opted from such members as have at least ten years’ practice. The
senior-most advocate from amongst its members is to be chairman of
the committee. The Legal Education Committee consists of ten
members of whom five persons elected by the Council from amongst
its members and the other five are those who are not members of the
Council.
 The main source of income of the Bar Council of India is the
contribution of forty per cent out of the fee of Rupees two hundred
fifty paid by each applicant for enrolment to the State Bar Council.

Functions – Main functions of the Bar Council of India include,

 (1) To prepare and maintain a common roll/roster of all the advocates
in thecountry.
 (2) To lay down standards of professional conduct and etiquette for
advocates and rules regarding enrolment, suspension, etc., of
advocates.
 (3) To safeguard the rights, privileges and interests of advocates.
 (4) To exercise general supervision and control over State Bar
Councils, to deal with and dispose of any matter arising under Act,
which may be referred to it by a State Bar Council.
 (5) To promote and support law reforms.
 (6) To promote legal education and to lay down standards of such
educationin consultation with Universities and State Bar Councils.

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 (7) To recognize Universities whose degree will qualify a person

to beenrolled as an advocate and to recognize foreign law degrees,
 (8) To conduct seminars and talks on legal matters and to publish
legaljournals.
 (9) To organize legal aid to the poor.
 (10) To manage and invest the funds of the Bar Council.
 (11) To provide for the election of its members.

Powers –Apart from the powers already enumerated, the Bar Council
of India (BCI) has been specifically conferred special powers,
 (1) Power to remove name from the rolls– The BCI is empowered,
either on a reference made to it or otherwise, if it is satisfied that any
person has got his name entered in the roll of the Advocates by
misrepresentation, to remove such person from the roll after giving
him an opportunity of being heard. Besides, the name of advocate may
be removed from the roll as punishment for misconduct in disciplinary
proceedings.
 (2) Directives- Section 48B empowers the BCI for the proper and
efficient discharge of the functions of a State Bar Council or any
Committee thereof, to give such directions to the State Bar Council or
its Committee as may appear it to be necessary, and the latter has to
comply with the directions. Where a State Bar Council is unable to
perform its functions for any reason whatsoever, the BCI may give
such directions to the ex-officio member thereof as may appear to it to
be necessary, and such directions shall have effect, notwithstanding
anything contained in the rules made by the State Bar Council.
 (3) Rule-making power- Section 15 enumerates the powers of the
State Bar Councils/BCI to make rules relating to the Bar Councils.
Section 28 gives power to the State Bar Councils to make rules on

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some matters connected with the preparation of rolls, training and

examination for admission as advocates, form of application for
enrolment, and conditions for enrolment. Any rule made by State Bar
Council shall have effect only if it has been approved by the BCI.
Section 49 confers on the BCI a general power to make rules for
discharging its functions under the Act. Rules include rules the
statement of the grounds in support of the refusal to the Bar Council of
India, and has to dispose of the application finally in conformity with
such opinion.

Qualifications for Admission as an Advocate

 The person has to be a citizen of India and has completed the age
of 21 years, and has obtained a degree in law (LL.B.) from any
university in India or of any university outside India considered
equivalent to Indian degree, A person eligible to pursue the course in
law (LL.B.- Three Year Course) should be a graduate of a university or
have other equivalent academic qualification.
 With regard to a barrister also, the Bar Council of India has specified
the same requirement as to a degree in law. It may be noted that the
Advocates Act, one thousand nine hundred sixty one has done away
with the distinction between advocates and vakils. Now all members
enrolled shall be called ‘advocates’. But among advocates, there shall
be Senior Advocates also. Those who were senior advocates as on 1
12.1961 shall be deemed to be senior advocates. Besides, power has
been conferred under Section 16 of the Act to the Supreme Court and
the High Courts to designate any advocate as senior advocate if in
its opinion by virtue of his ability, experience (10 years’ practice) and
standing at the Bar, he is deserving of such distinction. Senior
advocates are governed by the rules of the Supreme Court applicable

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to them, and are also subject to the restrictions laid down by the Bar
Council of India in the interest of the legal profession.

Disqualification for Enrolment

 No person shall be admitted as an advocate if he is convicted of an
offence involving moral turpitude, if he is convicted of an offence
under the provisions of Unsociability (Offences) Act, 1955, Section 28
of the Advocates Act generally prohibit the enrolment of a person who,
though he may be otherwise qualified, is in full or part-time service or
employment (except when he is a law officer) or is engaged in any
trade, business or occupation (except when he is a sleeping partner).
An advocate may edit legal books at a salary, coach pupils for legal
examinations and subject to the rules against full-time employment,
engage in journalism, lecturing and teaching subjects both legal and
non-legal,

Right to Practice
 Every advocate, whose name is entered in the State roll, shall be
entitled as of right to practice throughout the territories to which the
Act extends-
 (1) In all courts including the Supreme Court
 (2) Before any tribunal or person legally authorised to take evidence
(Section 29). Under Section 33, advocates alone are entitled to practise
in any court. However, this right to practice is subject to rules framed
by the High Court under Section 34.
 Persons illegally practising in Courts or before other authorities when
they are not entitled to practise under the provisions of the Act are
liable for punishment with imprisonment for a term which may extend
to six months.

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** Professional Misconduct and punishments Sec 35**

Meaning of Misconduct -

Misconduct is the antonyms of conduct. Conduct means behavior with good

manners and treatment shown towards others. Misconduct represents
misbehavior. Misconduct as explained in the Dictionary is 'improper conduct'.
The term 'misconduct' has been defined in Black's Dictionary as 'a transgression
of some established and defined rule of action, a forbidden act , a dereliction of
duty, unlawful behavior, wilful in character, improper or wrong behavior'. Its
synonyms are misdemeanor, impropriety, mismanagement, offence, but not
negligence or carelessness.
Professional misconduct is conduct which is disgraceful, dishonorable, improper
or unbecoming of a pastoral leader in the Convention of Atlantic Baptist
Churches. A pastor’s conduct may be considered to be professional misconduct if
it is established that the pastor has engaged in immoral or unethical behavior
which transgresses standards of Scripture, examples of which include but are not
limited to the following: Abuse of any kind Harm or threatened harm to a
person’s health or welfare which occurs through non-accidental physical or
mental injury. Abuse of pastoral power and position Pastoral power and position
are abused in order to exert and maintain control over others to accomplish one’s
goals or for personal gratification. Pastoral abuse of power comes in many forms,
including misusing one’s position of power and trust to:
 Cultivate relationships that are immoral or destructive.
 Attack an individual or individuals deliberately and personally from the
pulpit.
 Seek personal financial gain, such as personal loans and other benefits.
 Disseminate false information and rumours to discredit those who are
opposed to one’s vision and plans for the future of the church. Threaten
eternal consequences to maintain one’s control over the life decisions
and the support of their congregants.

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 Set oneself up as the sole channel through whom God speaks to the
congregation, and charging those who dissent with disobedience to God
and calling for their removal from the membership. Criminal activity of
any kind as defined in the Criminal Code Gambling Improper influence
of Pastoral Search Committees. The use of one’s influence to interfere
with the process of a pastoral search committee for personal gain or to
promote a favored candidate. Racist comments or conduct Sexual
Misconduct Marital Infidelity.
 Sexual Intercourse outside the bonds of marriage.
 Sexual Harassment: Comments or conduct that is known, or ought to be
known that has the effect of undermining, coercing, intimidating,
humiliating or demeaning an individual on the basis of sex (gender).
Such behavior would include but not be limited to unwelcome sexual
remarks, jokes, taunting about a person’s body or sexual orientation,
distribution by mail or 2 Definition of Professional Misconduct
Convention of Atlantic Baptist Churches Aug/2005 electronic means
material of a sexual nature which potentially could be offensive,
unnecessary physical contact such as patting or pinching. Sexual
Exploitation: Taking advantage of the vulnerability of a person with
whom there is a fiduciary and/or pastoral relationship through any form
of sexual contact or invitation to sexual contact whether or not there is
consent.

35. Punishment of advocates for misconduct-

(1) 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 of its disciplinary
committee.

(1A) [(Note:- Sub-section (1-A) ins. by Act 60 of 1973, sec.24) The State Bar
Council may, either of its own motion or on application made to it by any person
interested, withdraw a proceeding pending before its disciplinary committee and
direct the inquiry to be made by any other disciplinary committee of that State Bar
Council.]

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(2) The disciplinary committee of a State Bar Council (Note:- Certain words
omitted by Act 60 of 1973, sec.24) shall fix a date for the hearing of the case a
notice thereof to be given to the advocate concerned and to the Advocate
Generalof the State.

(3) The disciplinary committee of a State Bar Council after giving the advocate
concerned and the Advocate –General an opportunity of being heard, may
make any of the following orders, namely-

a. Dismiss the complaint or, where the proceedings were initiated at

the instance of the State Bar Council, direct that the proceedings be
filed.

b. Reprimand the advocate

c. Suspend the advocate from practice for such periods as it may deem
fit.

d. Remove the name of the advocate from the State roll of advocates

(4) Where an advocate is suspended from practice under clause (c) of sub
section (3) he shall, during the period of suspension, be debarred from
practicing in any court or before any authority or person in India.

(5) Where any notice is issued to the Advocate-General under sub-section (2)
the Advocate –General may appear before the disciplinary committee of
the State Bar Council either in person or through any advocate appearing
on his behalf.

42. Powers of disciplinary committee. –

(1) The disciplinary committee of the Bar Council shall have the same powers as
are vested in a civil court under the Code of Civil Procedure, 1908 (5 of
1908), in respect of the following matters, namely;-

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a. summoning and enforcing the attendance of any person and

examining him on oath ;

b. requiring discovery and production of any documents ;

c. receiving evidence on affidavits ;

d. requisitioning any public record or copies thereof from any court or

office;

e. issuing commissions for the examination of witness or documents ;

f. any other matter which may be prescribed ;

Provided that no such disciplinary committee shall have the right to requirethe
attendance of

a. any presiding officer of a court except with the previous sanction of

the High Court to which court is subordinate ;

b. any officer of a revenue court except with the previous sanction of

theState Government.

(2) All proceedings before a disciplinary committee of a Bar Council shall be

deemed to be judicial proceedings within the meaning of sections 193 and
228 of the Indian Penal Code, 1860 (45 of 1860), and every such disciplinary
committee shall be deemed to be a civil court for the purpose of sections 480,
482 and 485 of Code of Criminal Procedure, 1898 (5 of 1898).

(3) For the purpose of exercising any of the powers conferred by sub section (1),
a disciplinary committee may send to any civil court in the territories to
which this Act extends, any summons or other process, for the attendance of
a witness or the production of a document required by the committee or any
commission which it desires to issue, and civil court shall cause such process
to be served or such commission to be issued as the case may be, and may

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enforce any such process as if it were a process for attendance or production

before itself.
(4) (Note:- Sub-sections (4) and (5) ins. by Act 60 of 1973,
sec.32) Notwithstanding the absence of the Chairman or any member of a
disciplinary committee on a date fixed for the hearing of a case before it, the
disciplinary committee may, if it so thinks fit, hold or continue the
proceedings on the date so fixed and no such proceedings and no order made
by the disciplinary committee in any such proceedings shall be invalid
merely by reason of the absence of the Chairman or member thereof on any
such date.

Provided that no final orders of the nature referred to in sub-section (3) of

Section 35 can be made in any proceedings unless the Chairman and other
members of the disciplinary committee are present.

(5) Where no final order of the nature referred to in sub section (3) of section 35
can be made in any proceedings in accordance with the opinion of the
Chairman and the members of a disciplinary committee either for want of
majority opinion amongst themselves or otherwise, the case, with their
opinion thereon, shall be laid before the Chairman of the Bar Council
concerned or if the Chairman if the Bar Council is acting as the Chairman or
a member of the disciplinary committee, before the Vice Chairman of the Bar
Council, and the said Chairman or the Vice Chairman of the Bar Council, as
the case may be, after such hearing as he thinks fit, shall deliver his opinion
and the final order of the disciplinary committee shall follow such opinion.

State bar Council and Bar council of India: Duties and functions

1. Bar Council of India-Section 4, State Bar Council-Section 3; The Advocates

Act, 1961 provides for the constitution of two types of councils: The
Advocates Act, 1961 is an act to consolidate and amend the law relating to
legal practitioners and to provide for the constitution of the Bar Councils and

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an All-India Bar. It was enacted by the Parliament in the Twelfth Year of the
Republic of India.

2. It prescribes standards of professional conduct, etiquettes and exercises

disciplinary jurisdiction over the bar. It also sets standards for legal education
and grants recognition to Universities whose degree in law will serve as a
qualification for students to enrol themselves as advocates upon graduation.

3. Its members are elected from amongst the lawyers in India and as such
represents the Indian Bar. The Bar Council of India is a statutory body
established under Section 4 of The Advocates Act, 1961 that regulates
the legal practice and legal education in India.

4. To promote legal education.

5. To provide legal aid to the poor.

6. To provide for the election of its members.

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

8. To recognize Universities whose degree in law shall be a qualificationfor

enrolment as an advocate and for that purpose inspect Universities.

9. Rule making power.

10. To exercise general supervision and control over State Bar Council.

11. To promote and support law reforms.

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12. There shall be a Chairman and a Vice-Chairman of each State Bar

Council elected.

13. A State Bar Council shall consist of the members according to theclause
(2) of Section 3 of the Advocates Act, 1961.

14. It shall consist of the following members, namely: (a) in the case ofthe
State Bar Council of Delhi, Additional Solicitor General of India ex officio.

15. According to section 3, there shall be a bar council for each of the states. It
provides for the establishment and organisation.

i. Admission as an advocate on state roll (S.24)

ii. Maintenance of roll of advocates (S.17)

iii. Rule- making power (Section 16 to 27)

iv. Power to punish for professional or other misconduct (s. 35)

v. Appointment of committees and staff members

vi. To safeguard the rights, privileges and interest of advocates on
itsroll.
vii. To promote and support law reform
viii. To manage and invest the funds of the Bar Council
viii. To provide for the election of its members

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Cases
1. Indian Council of Legal Aid and Advice v. Bar Council of India, AIR
1995 SC 691
The Supreme Court held that the rule debarring a person who has
completed the age of forty five to be enrolled as an advocate is arbitrary ,
unreasonable and beyond the power of the Bar Council of India.
2. V. Sudeer v. Bar Council of India, AIR 1999 SC 1167
The Supreme Court held that the Bar Council can exercise power and fame
rules for effectively discharging its statutory function as laid down by the
Act.

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