Vande Matram! In this article, I am discussing rules, provisions, and procedures for the enrollment of an advocate with the Bar Council of India which are in the light of the Bar Council of India rule and the Advocates Act, 1961. Let’s begin.
Introduction:
Advocates
Act 1961 provides for the admission and enrollment of an advocate with bar
councils in its Chapter III. As per Section 2(1)(a) of the Advocates Act,
‘advocate’ means an advocate who entered in any roll constituted under this
Act. All such enrollments are carried by the State bar councils. No one can be enrolled directly in the roll of BCI. The enrolment is done by State bar councils only. The following sections provide the procedure of enrollment of an advocate in the roll of the state bar council.
1)
Section 24 states the eligibility of the persons who can enter the roll of the state bar council. A person fulfilling the conditions of Section 24 is eligible for enrollment with BCI with additional conditions to be fulfilled.
2)
Section 24A provides for the disqualification of an advocate from the roll of
state bar council. Persons who are disqualified from the roll of the state bar
council are not at all eligible for enrollment with BCI.
3)
Section 25 says that State Bar Council is the authority to whom application to
enter in the roll of that bar council may be made.
4)
Section 26 provides for the disposal of applications for enrollment of
advocates by bar councils.
Eligibility
required for admission in the roll of bar council:
Section
24 states about the eligibility of the persons who can enter in the roll of state
bar council. Section 24 is produced and discussed as follows:
24. Persons who may be admitted as advocates on a State roll.―(1)
Subject to the provisions of this Act, and the rules made thereunder, a person
shall be qualified to be admitted as an advocate on a State roll, if he fulfils
the following conditions, namely:―
If
Q is a person who wants to enter the roll of a bar council, then he must
qualify certain conditions which are enlisted in various clauses of Section 24(1). Q cannot be any random person.
(a) he is a citizen of India:
Provided that subject to the other provisions contained in this Act,
a national of any other country may be admitted as an advocate on a State roll,
if citizens of India, duly qualified, are permitted to practise law in that
other country;
Q
must be a citizen of India is the basic requirement to enter in the roll of bar
council. But if Q belongs to a foreign country where citizens of India are
permitted to practice law then he can be entered into the roll of the bar
council. If Q belongs to a foreign country where citizens of India are not
permitted to practice law then Q is not eligible to enter the roll of any
bar councils working anywhere within the territory of India.
(b) he has completed the age of twenty-one years;
(c) he has obtained a degree in law—
Well
if Q is not having any degree in law then he is not eligible to enter in the
roll of any bar council constituted under Advocates Act 1961.
(i) before the 12th day of March, 1967, from any University in the
territory of India; or
(ii) before the 15th day of August, 1947, from any University in any
area which was comprised before that date within India as defined by the
Government of India Act, 1935; or
Before
partition, many lawyers had completed their law graduations from universities
now present in Pakistan and Bangladesh. But they migrated to India after
partition. Hence this provision has been given. Thus of Q is a law graduate who passed out from Dhaka University before 15th August 1947 then he was
eligible to enter the roll of advocates of any state bar council.
(iii) after the 12th day of March, 1967, save as provided in
sub-clause (iiia), after undergoing a three-year course of study in law from
any University in India which is recognised for the purposes of this Act by the
Bar Council of India; or
(iiia) after undergoing a course of study in law, the duration of
which is not less than two academic years commencing from the academic year
1967-68 or any earlier academic year from any University in India which is
recognised for the purposes of this Act by the Bar Council of India; or
Clause
(ii), (iii), and (iiia) provide for the law degree or course completed from any
university recognized by BCI to impart the law education within the territory
of India.
(iv) in any other case, from any University outside the territory of
India, if the degree is
recognised for the purposes of this Act by the Bar Council of India;
or he is a barrister and is called to the Bar on or before the 31st day of
December, 1976; or has passed the article clerk's examination or any other
examination specified by the High Court at Bombay or Calcutta for enrolment as an
attorney of that High Court; or has obtained such other foreign qualification
in law as is recognised by the Bar Council of India for the purpose of
admission as an advocate under this Act;
There
are other circumstances where the law qualifications can be obtained. This
Clause (iv) provides for the same.
If
Q is a law graduate of a foreign university and his degree is recognized by BCI
then he can enter the roll of bar council.
If
Q is a barrister i.e. a person who was practicing in South Africa or Scotland and called to the bar on or before 31st December 1976 then he can
enter into the roll of bar council.
If
Q has passed the article clerk's examination or any other examination specified
by the High Court at Bombay or Calcutta for enrolment as an attorney of that
High Court, then he can enter in the roll of bar council.
If
Q has obtained other foreign qualifications in law from foreign which is
recognized by BCI then he can enter in the roll of bar council.
(e) he fulfils such other conditions as may be specified in the
rules made by the State Bar Council under this Chapter;
If
Q has fulfilled other conditions which may be specified in the rules of BCI
then he is eligible to enter into the roll of bar council.
(f) he has paid, in respect of the enrolment, stamp duty, if any,
chargeable under the Indian Stamp Act, 1899 (2 of 1899), and an enrolment fee
payable to the State Bar Council of six hundred rupees and to the Bar Council
of India, one hundred and fifty rupees by way of a bank draft drawn in favour
of that Council:
Provided that where such person is a member of the Scheduled Castes
or the Scheduled Tribes and produces a certificate to that effect from such
authority as may be prescribed, the enrolment fee payable by him to the State Bar
Council shall be one hundred rupees by way of a bank draft drawn in favour of
that Council
Explanation.―For the purposes of this sub-section, a person shall be
deemed to have obtained a degree in law from a University in India on the date
on which the results of the examination for that degree are published by the
University on its notice board or otherwise declaring him to have passed that
examination.
After
satisfying conditions from clause (a) to (e) of Section 24(1), Q has to pay
enrolment fees of Rs. 600/- (six hundred only) payable to the State Bar Council
and Rs. 150/- (one hundred and fifty only) to the Bar Council of India, by way
of bank draft drawn in favour of that council along with stamp duty, if
applicable, chargeable under the Indian Stamp Act, 1899. In this case, it is
deemed that University has declared that Q is passed when he was moving such
application for enrollment as an advocate.
(2) Notwithstanding anything contained in sub-section (1), a vakil
or a pleader who is a law graduate may be admitted as an advocate on a State
roll if he—
(a) makes an application for such enrolment in accordance with the
provisions of this Act, not later than two years from the appointed day; and
(b) fulfils the conditions specified in clauses (a), (b), (e) and
(f) of sub-section (1).
In
the Diwani Courts, legal practice was neither recognized nor controlled, and
practice was carried on by vakils and agents. Vakils had even been appearing in
the Courts of the Nawabs and there were no laws concerning their qualification,
relationship to the Court, mode of procedure of ethics or practice.
In the British era, pleaders were the professionals who had training in either Hindu
or Muslim law.
(3) Notwithstanding anything contained in sub-section (1) a person
who—
(a) has, for at least three years, been a vakil or a pleader or a
mukhtar, or was entitled at any time to be enrolled under any law as an
advocate of a High Court (including a High Court of a former Part B State) or
of a Court of Judicial Commissioner in any Union territory; or
Mukhtar
is also a legal practitioner but the term was used during the British era and
before the enactment of the Advocates Act 1961.
(aa) before the 1st day of December, 1961, was entitled otherwise
than as an advocate to practise the profession of law (whether by way of
pleading or acting or both) by virtue of the provisions of any law, or who
would have been so entitled had he not been in public service on the said date;
or
(c) before the 1st day of April, 1937, has been an advocate of any
High Court in any area which was comprised within Burma as defined in the
Government of India Act, 1935 (25 & 26 Geo. 5 C 42); or
(d) is entitled to be enrolled as an advocate under any rule made by
the Bar Council of India in this behalf, may be admitted as an advocate on a
State roll if he—
(i) makes an application for such enrolment in accordance with the
provisions of this Act; and
(ii) fulfils the conditions specified in clauses (a), (b), (e) and
(f) of sub-section (1).
So
these are the provisions for the enrollment of the lawyers, law graduates,
vakils, pleaders, mukhtars, etc. to enter in the roll of bar councils as an advocate.
Disqualification
for enrolment:
Section
24A provides for the disqualification for the enrolment of a person as an
advocate on the roll of a bar council. The section is reproduced and discussed as
follows:
24A. Disqualification for enrolment.―(1)
No person shall be admitted as an advocate on a State roll―
(a) if he is convicted of an offence involving moral turpitude;
(b) if he is convicted of an offence under the provisions of the
Untouchability (Offences) Act, 1955 (22 of 1955)
(c) if he is dismissed or removed from employment or office under
the State on any charge involving moral turpitude.
Explanation.―In this clause, the expression “State” shall have the
meaning assigned to it under Article 12 of the Constitution:
Provided that the disqualification for enrolment as aforesaid shall
cease to have effect after a period of two years has elapsed since his released
or dismissal or, as the case may be, removal.
Let
Q be a person who wants to enter the roll of bar council as an advocate.
Moral
turpitude is an act or behavior that gravely violates the sentiment or
accepted standard of the community. If Q is convicted of an offence that violates the sentiments and standards of a community then he is disqualified
from such enrolment.
If
Q is convicted under the offences related to Untouchability (Offences) Act, 1955
then he is disqualified from such enrolment.
If
Q is an employee of State and he dismissed due to any charge of moral turpitude
then he is disqualified from such enrolment. Here State is in the light of
Article 12 of Constitution of India which includes Government of India,
Parliament of India, Government of states in India, Legislature of states in
India, Local governance authorities, other governance authorities, President of
India, Governors of states in India, Department of Government whether Union or
state, Institutions controlled by governments, Government organisations like
LIC, Municipal commissions at various levels, Panchayats and other
organisations of Panchayati Raj, etc.
If
Q is released from the punishment or Q is dismissed from his employment under
any charge as per clauses (a) to (c) on 1st January 2021 then his
disqualification for enrolment with the bar council shall cease on 31st December
2023 i.e. after two years of such release or dismissal or removal or whatever
the case may be.
(2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty is dealt with under the provisions of the Probation of Offenders Act, 1958 (20 of 1958).
The
Probation of Offenders Act of 1958 builds on the premise that juvenile
offenders should be stopped by counseling and rehabilitation rather than
thrown into jail by being regular offenders. A juvenile offender means an
offender who is a minor. Provisions of Section 24A(1) are not applicable to juvenile offenders, or minor offenders.
Application
for enrolment and its disposal:
Section
25 describes the authority to whom the application for enrolment may be made
and Section 26 provides for the disposal of such applications. Section 25 and
Section 26 are produced and discussed here:
25. Authority to whom applications for enrolment may be made.―An
application for admission as an advocate shall be made in the prescribed form
to the State Bar Council within whose jurisdiction the applicant proposes to
practise.
Every
bar council prescribes a format for the application for enrolment in the
respective bar council. If Q, a law graduate wants to practice in Maharashtra
then he must give an application for admission as an advocate on the roll of Bar
Council of Maharashtra and Goa in the prescribed form by the Bar Council of
Maharashtra and Goa.
26. Disposal of applications for admission as an advocate.―(1) A
State Bar Council shall refer every application for admission as an advocate to
its enrolment committee, and subject to the provisions of sub-sections (2) and
(3) and to any direction that may be given in writing by the State Bar Council
in this behalf, such committee shall dispose of the application in the
prescribed manner:
Provided that the Bar Council of India may, if satisfied, either on
a reference made to it in this behalf or otherwise, that any person has got his
name entered on the roll of advocates by misrepresentation as to an essential
fact or by fraud or undue influence, remove the name of such person from the
roll of advocates after giving him an opportunity of being heard.
After
receiving applications by the state bar council, it has to dispose of such applications.
So bar council has to refer each application to its enrolment committee. The
enrolment committee of the state bar council has to dispose of all such
applications referred to it in a prescribed manner. But in certain conditions,
if the enrolment committee wants to refuse any application then such
applications are subject to Section 26(2) and Section 26(3) as well as written
directions given by the state bar council on this behalf.
It
is further clarified that BCI may remove the name of a person from the roll of
state bar council if such person had entered his name in the roll by
misrepresentation, fraud, or undue influence. Such removal can be done only
after being heard by that person.
(2) Where the enrolment committee of a State Bar Council proposes to
refuse any such application, it shall refer the application for opinion to the
Bar Council of India and every such reference shall be accompanied by a
statement of the grounds in support of the refusal of the application.
If the enrolment committee of the state bar council wants to refuse an application of
enrolment as an advocate, then such application shall be referred for the
opinion of the Bar Council of India. Such reference is accompanied by a written
statement which states the grounds of refusal. Thus enrolment committee of the state bar council can enroll the law graduates as an advocate in the roll of the state bar council, but it cannot refuse such application. Only BCI is having the power to refuse admission in the advocate’s roll of the state bar council.
(3) The enrolment committee of a State Bar Council shall dispose of
any application referred to the Bar Council of India under sub-section (2) in
conformity with the opinion of the Bar Council of India.
As
per Section 26(1), the enrolment committee has to dispose of all the applications,
though some may be referred for the opinion of BCI for refusal. After having the
opinion of BCI on such applications, the enrolment committee has to dispose of such applications as per the opinion of BCI.
(4) Where the enrolment committee of a State Bar Council has refused
any application for admission as an advocate on its roll, the State Bar Council
shall, as soon as may be, send intimation to all other State Bar Councils about
such refusal stating the name, address and qualifications of the person whose
application was refused and the grounds for the refusal.
If
an application for admission as an advocate on roll is refused by the
enrolment committee of a State Bar Council, as per the opinion of BCI, then the
state bar council has to inform all other state bar councils regarding such
refusal. Such intimation shall consist of grounds of refusal of the
application and the details of the person whose application was refused.
So
this is how an application for enrolment as an advocate is disposed of by the
enrolment committee of a state bar council.
Note:
Part in Red words is part of Bare Act –
Advocates Act, 1961.
If
you want to know about specific provisions of the Advocates Act, 1961 and the
Bar Council Rules then let me know in the comments below.
To
know the references and to read more articles related to Professional ethics
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