Page |1

ADVOCATES ACT 1961

INTRODUCTION:- 1

A lawyer is “a person learned in the law; as an attorney, counsel or solicitor; a

person licensed to practice law.” In India, the term “lawyer” is often
colloquially used, but the official term is “advocate” as prescribed under the
Advocates Act, 1961

The Indian Bar Councils Act, 1926 was passed to unify the various grades of
legal practice and to provide self-government to the Bars attached to various
Courts. The Act required that each High Court must constitute a Bar Council.
The duties of the Bar Council were to decide all matters concerning legal
education, qualification for enrolment, discipline and control of the profession.
It was favourable to the advocates as it gave them authority previously held by
the judiciary to regulate the membership and discipline of their profession.

The Advocates Act, 1961 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.

REASONS FOR INTRODUCTION OF THE ACT:-2

After Independence it was deeply felt that the Judicial Administration in India
should be changed according to the needs of the time. The Law Commission
was assigned the job of preparing a report on the Reform of Judicial
Administration. In the meanwhile the All India Bar Committee went into detail
of the matter and made its recommendations in 1953. To implement the
recommendations of the All India Bar Committee and after taking into account
the recommendations of the Law Commission on the subject of Reform of

1
http://www.legalserviceindia.com
2
www.huffingtonpost.in
 Page |2

Judicial Administration in so far as the recommendation relate to the Bar and to

legal education, a Comprehensive Bill was introduced in the Parliament.

In 1961, Parliament enacted the Advocates Act [12] to amend and consoli-date
the law relating to legal practitioners, and to provide for the constitution of State
Bar Councils and an All-India Bar Council. The Advocates Act imple-ments the
recommendations of the Bar Committee and the Law Commission with some
modifications. It repealed the Indian Bar Councils Act, 1926, the Legal
Practitioners Act, 1879, and other laws on the subject. The Act has undergone
several amendments since its enactment in 1961. The Act extends to the whole
of India.

The main features of the Act are:-3

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. An advocate on
common roll has a right to practice in any court of the country including
the Supreme Court.
2) Integration of the bar into a single class of legal practitioners known as
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 on
merit.
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 to another.

Powers:-4

Apart from the powers already enumerated, the Bar Council of India (BCI) has
been specifically conferred special powers,

 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

https://blog.ipleaders.in
3

http://www.legalserviceindia.com
4
 Page |3

heard. Besides, the name of advocate may be removed from the roll as
punishment for misconduct in disciplinary proceedings.
 Revision- Apart from the power vested in it to remove the name of an
advocate in certain cases, and the power vested in the disciplinary
committee to hear and dispose of the disciplinary matters whether by way
of original hearing or on appeal, the BCI has the power at any time to call
for the record of any proceeding under the Act, which has been disposed
of by a State Bar Council or a Committee thereof, and from which no
appeal lies, for satisfying itself as to the legality or propriety of such a
disposal and may pass such orders thereon as it deemed fit.
 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.
 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 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:-5

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

5
https://criminal.findlaw.com
 Page |4

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.

The requirement of practical training is now abolished. A law graduate is

required to pay an enrolment fee of Rupees two hundred fifty 250 to the State
Bar Council (in case of SC and STs, fee is Rupees one hundred twenty five).

Disqualification for Enrolment:-6

No person shall be admitted as an advocate .f 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:-7

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-

 In all courts including the Supreme Court

 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.

CASES:-

6
https://www.livemint.com
7
https://blog.ipleaders.in
 Page |5

Sambhu Ram Yadav v. Hanuman Das Khatry 8

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.

N.G. Dastane v. Shrikant S. Shind9

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.

Hikmat Ali khan v. ishwar Prasad arya and others civil appeal no
4240/198610

FACTS: - Ishwar Prasad arya was an advocate practising at badaun in U.P he

assaulted his opponent, radhey shyam in the court-room of munsif as badaun
with a knife. After investigation he was prosecuted for offences u/d section 307
IPC and section 25 of the Arms Act and he was sentenced for 3 years
imprisonment.

8
(AIR 2001 SC 2509)
9
AIR (2001) 6 SCC 135
10
civil appeal no 4240/1986
 Page |6

The appellant Hikmat Ali khan complained against the advocate and prayed for
fresh inquiry. In the said proceedings, the advocate appeared and files his return
statement but thereafter he did not appear. Hence, the bar council of U.P
proceeded ex-parte against him and the disciplinary committee of the state bar
council of U.P debarred for a period of 3 years. The advocate again appealed to
the bar council of India and it had set aside the punishment. Then Hikmat Ali
filed appeal to the Supreme Court.

JUDGEMENT: - The Supreme Court held that his conduct was such that his
name should be removed from the state rule of advocate as he was found guilty
of an offence attempting to commit murder and convicted for it and as he was
unworthy of remaining in the profession. The defendant assaulted his opponent
with a knife. Prosecuted under Section 307 of IPC and Section 25 of the Arms
Act. Conviction suspended on basis of a letter from the governor. Supreme
Court held that his conduct was such that his name should be removed from the
state role of advocates as he was unworthy of remaining in the profession after
the conviction. (Rule 7A of Chapter III of BCI Rules).

Conclusion:-

Where a lawyer is guilty of a conflict of interest in representing a client he will

have committed a breach of duty. That duty is usually expressed as a fiduciary
obligation arising out of the relationship between solicitor and client. But there
is similar duty owed by the lawyer to the court (as well as an ethical duty). The
duty to the court arises from the court‟s concern that it should have the
assistance of independent legal representation for the litigating parties. The
integrity of the adversarial system is dependent on lawyers acting with perfect
good faith. This is central to the preservation of public confidence in the
admission of justice.

The usual basis for restraining a lawyer from acting for a client on the ground of
conflict of interest is that a conflict is perceived between the continuing duty of
the lawyer (owed to his former client) not to disclose or use the latter‟s
prejudice that which he learned confidentiality, and the interest he has in
advancing the case of his new client.

Every counsel has a duty to his client fearlessly to raise every Issue, advance
every argument and ask every question, however distasteful, which he thinks
will help his client's case. As an officer of the Court concerned in the
administration of justice, he has an overriding duty to the Court to the standards
 Page |7

of his profession, and to the public which may and often does lead to a conflict
with his client's wishes or with what the client thinks are his personal interests.