Establishment of State Bar Councils in India: Section 3 of Advocates' Act 1961

Vande Matram! In this article, I am discussing State Bar Council. The organisation, power, and functions of the State Bar Council are in the light of the Bar Council of India rule and the Advocates’ Act, 1961. Let’s begin.

State Bar Council:

Introduction:

Advocates’ Act 1961 governs the legal profession in India and for the association purpose of all the legal practitioners the Act provides for the constitution of the Bar Council of India and State Bar Councils across the territory of India. There are about 21 State Bar Councils in India that are working for the betterment of advocates in their respective jurisdictions.

S R Das committee i.e. All India Bar Committee headed by S R Das through the report of March 1953 proposed for the creation of a bar council for each state and an all India bar council as an apex body. It was suggested that the all-India bar council would regulate the legal profession and set the standard of legal education.

The State Bar Councils are statutory bodies established under Section 3 of the Advocates Act, 1961. These are the statutory bodies for all the states and union territories of India. They regulate the rules for the legal profession and education in their respective states and also act as the representatives of the advocates of that state, thereby acting in their interests. Further Section 6 provides for the functions of State Bar Council, Section 15 provides for the powers of a Bar Council.

3. State Bar Councils.―(1) There shall be a Bar Council—

(a) for each of the States of Andhra Pradesh, Bihar, Gujarat, Jammu and Kashmir, Jharkhand, Madhya Pradesh and Chhattisgarh, Karnataka, Orissa, Rajasthan Uttar Pradesh, Uttaranchal, Meghalya, Manipur and Tripura, to be known as the Bar Council of that State;

(b) for the States of Arunachal Pradesh, Assam, Mizoram and Nagaland to be known as the Bar Council of Arunachal Pradesh, Assam, Mizoram and Nagaland;

(c) for the State of Kerala and the Union territory of Lakshadweep to be known as the Bar Council of Kerala;

(cc) for the State of Tamil Nadu and the Union territory of Pondicherry to be known as the Bar

Council of Madras;

(ccc) for the States of Maharashtra and Goa and the Union territories of Dadra and Nagar Haveli and and Daman and Diu, to be known as the Bar Council of Maharashtra and Goa;

(d) for the States of Punjab and Haryana and the Union territory of Chandigarh, to be known as the Bar Council of Punjab and Haryana;

(dd) for the State of Himachal Pradesh, to be known as the Bar Council of Himachal Pradesh;

(e) for the State of West Bengal and the Union territory of Andaman and Nicobar Islands, to be known as the Bar Council of West Bengal; and

(f) for the Union territory of Delhi, to be known as the Bar Council of Delhi.

(2) A State Bar Council shall consist of the following members, namely:―

(a) in the case of the State Bar Council of Delhi, the Additional Solicitor-General of India, ex officio; in the case of the State Bar Councils of Assam, Arunachal Pradesh, Mizoram and Nagaland, the Advocate-General of each of the States of Assam, Arunachal Pradesh, Mizoram and Nagaland ex officio; in the case of the State Bar Council of Punjab and Haryana, the Advocate-General of each of the States of Punjab and Haryana, ex officio; and in the case of any other State Bar Council, the Advocate-General of the State, ex officio;

(b) in the case of a State Bar Council with an electorate not exceeding five thousand, fifteen members, in the case of a State Bar Council with an electorate exceeding five thousand but not exceeding ten thousand, twenty members, and in the case of a State Bar Council with an electorate exceeding ten thousand, twenty-five members, elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council:

Provided that as nearly as possible one-half of such elected members shall, subject to any rules that may be made in this behalf by the Bar Council of India, be persons who have for at least ten years been advocates on a State roll, and in computing the said period of ten years in relation to any such person, there shall be included any period during which the person has been an advocate enrolled under the Indian Bar Councils Act, 1926 (38 of 1926).

(3) There shall be a Chairman and a Vice-Chairman of each State Bar Council elected by the Council in such manner as may be prescribed.

(3A) Every person holding office as Chairman or as Vice-Chairman of any State Bar Council immediately before the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), shall, on such commencement, cease to hold office as Chairman or Vice-Chairman, as the case may be:

Provided that every such person shall continue to carry on the duties of his office until the Chairman or the Vice-Chairman, as the case may be, of each State Bar Council, elected after the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), assumes charges of the office.

(4) An advocate shall be disqualified from voting at an election under sub-section (2) or for being chosen as, and for being, a member of a State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State Bar Council.

(5) Nothing in the proviso to sub-section (2) shall affect the term of office of any member elected before the commencement of the Advocates (Amendment) Act, 1964 (21 of 1964), but every election after such commencement shall be held in accordance with the provisions of the rules made by the Bar Council of India to give effect to the said proviso.

(6) Nothing in clause (b) of sub-section (2) shall affect the representation of elected members in any State Bar Council as constituted immediately before the commencement of the Advocates (Amendment) Act, 1973 (60 of 1973), until that State Bar Council is reconstituted in accordance with the provisions of this Act.

So according to Section 3 following are the State Bar councils constituted in India and whose members are as follows:

Sr. No.	Name of State Bar Council	Jurisdiction	Members of the Bar Council
1.	State Bar Council of Andhra Pradesh	State of Andhra Pradesh	Advocate General of the State of Andhra Pradesh, ex-offcio Elected members: 25
2.	Bar Council of Assam, Nagaland, Meghalaya, Manipura, Tripura, Mizoram, Arunachal Pradesh & Sikkim	States of Assam, Nagaland, Meghalaya, Manipura, Tripura, Mizoram, Arunachal Pradesh & Sikkim	Advocate Generals of States of Assam, Nagaland, Meghalaya, Manipura, Tripura, Mizoram, Arunachal Pradesh & Sikkim ex-offcio Elected members: 18
3.	Bar Council of Bihar	State of Bihar	Advocate General of the State of Bihar, ex-offcio Elected members: 25
4.	Bar Council of Chhattisgarh	State of Chhattisgarh	Advocate General of the State of Chhattisgarh, ex-offcio Elected members: 25
5.	Bar Council Of Delhi	Union Territory of Delhi	Additional Solicitor-General of India, ex-offcio Elected members: 25
6.	Bar Council of Gujarat	State of Gujarat	Advocate General of the State of Gujarat, ex-offcio Elected members: 25
7.	Bar Council Of Himachal Pradesh	State of Himachal Pradesh	Advocate General of the State of Himachal Pradesh, ex-offcio Elected members: 25
8.	Jharkhand State Bar Council	State of Jharkhand	Advocate General of the State of Jharkhand, ex-offcio Elected members: 25
9.	Bar Council of Karnataka	State of Karnataka	Advocate General of the State of Karnataka, ex-offcio Elected members: 25
10.	Bar Council Of Kerala	State of Kerala, Union Territory of Lakshadweep	Advocate General of the State of Kerala, ex-offcio Elected members: 25
11.	Bar Council Of Madhya Pradesh	State of Madhya Pradesh	Advocate General of the State of Madhya Pradesh, ex-offcio Elected members: 26
12.	Bar Council Of Maharashtra & Goa	States of Maharashtra & Goa, Union territories of Dadra & Nagar Haveli and Daman & Diu	Advocate General of the States of Maharashtra & Goa, ex-offcio Elected members: 25
13.	Odisha State Bar Council	State of Odisha	Advocate General of the State of Odisha, ex-offcio Elected members: 25
14.	Bar Council of Punjab & Haryana	States of Punjab & Haryana, Union Territory of Chandigarh	Advocate General of the States of Punjab & Haryana, ex-offcio Elected members: 25
15.	Bar Council of Rajasthan	State of Rajasthan	Advocate General of the State of Rajasthan, ex-offcio Elected members: 25
16.	Bar Council of Tamil Nadu	State of Tamil Nadu and the Union territory of Pondicherry	Advocate General of the State of Tamil Nadu, ex-offcio Elected members: 25
17.	Bar Council of Uttar Pradesh	State of Uttar Pradesh	Advocate General of the State of Uttar Pradesh, ex-offcio Elected members: 25
18.	Bar Council Of Uttarakhand	State of Uttarakhand	Advocate General of the State of Uttarakhand, ex-offcio Elected members: 25
19.	Bar Council Of West Bengal	State of West Bengal and Union territory of Andaman and Nicobar Islands	Advocate General of the State of West Bengal, ex-offcio Elected members: 25
20.	Bar Council of Jammu and Kashmir; and Ladakh	Union territory of Jammu and Kashmir and Union territory of Ladakh	Advocate-General of Union territory of Jammu and Kashmir, ex-offcio Elected members: 25

21.

Bar Council of Telangana

State of Telangana

Advocate-General of Union territory of Telangana, ex-offcio Elected members: 25

So these are the various State Bar Councils established in various states of India.

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. 

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Rights of an advocate

Vande Matram! In this article, I am discussing the rights and duties of an advocate. These rights and duties of an advocate are in the light of the Bar Council of India rule and the Advocates’ Act, 1961. Let’s begin.

Introduction

A lawyer or attorney is a person who practices law, as an advocate, attorney, attorney at law, barrister, barrister at law, the bar at law, canonist, canon lawyer, civil law notary, counsel, solicitor, legal executive, or public servant preparing, interpreting, and applying the law, but not as a paralegal or charter executive secretary. Prior to the Advocates’ Act 1961, there were deviant classes of legal practitioners under the Legal Practitioners Act. They were Advocates, lawyers, vakils, etc. The Advocates’ Act 1961 has set aside these classes and has allowed only one class of Advocates which is defined as a lawyer enrolled with any advocates roll provided under the Act. The aim of the Advocates Act is to harmonize and constitute one class of legal practitioners called “Advocates” and to determine uniform qualification for admission to the Bar. Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who hire lawyers to perform legal services. The role of the lawyer varies greatly across different legal jurisdictions.

While performing the job lawyer has certain rights and duties which he needs to follow. He has certain rights which he can use and certain duties which he has to follow. A lawyer not only has certain duties for court but also for clients, society, etc.

There are certain rights given for lawyers under THE ADVOCATES’ ACT 1961 under Sections 23, 29, 30, 32, 33, and 34. And the constitution of India also provides the fundamental right under Article19(1)(g) which protects the right of an individual to practice any profession or to carry on any occupation, trade, or business. This act is only for those advocates who are enrolled in India.

Section 23: Right to pre-audience:

(1) The Attorney-General of India shall have pre-audience over all other advocates.

(2) Subject to the provisions of sub-section (1), the Solicitor-General of India shall have pre-audience over all other advocates.

(3) Subject to the provisions of sub-sections (1) and (2), the Additional Solicitor-General of India shall have pre-audience over all other advocates.

(3A) Subject to the provisions of sub-sections (1), (2), and (3), the second Additional Solicitor-General of India shall have pre-audience over all other advocates.

(4) Subject to the provisions of sub-sections (1), (2), (3), and (3A), the Advocate-General of any State shall have pre-audience over all other advocates, and the right of pre-audience among Advocates-General inter se shall be determined by their respective seniority.

(5) Subject as aforesaid— (i) senior advocates shall have pre-audience over other advocates, and

(ii) the right of pre-audience of senior advocates inter se and other advocates inter se shall be determined by their respective seniority.

Section 23 of the Advocates Act provides the right to pre-audience. Right to pre-audience means right to be heard before another is heard. Pre Audience means that an advocate has the right to represent his/her client when he/she wants to speak in front of the audience of the court and cannot be stopped until and unless he disturbs the court decorum. This right is provided to some authorities based on their seniority. It is provided to the Attorney general, solicitor general, additional solicitor general, advocate general, and senior advocates as per their seniority and at last an advocate in various sub-sections and clauses of Section 23 of the Advocates Act as mentioned above.

Further Chapter IV of the Advocates’ Act comprising of Section 29 to 34 is dedicated to the rights of an advocate and it provides the right to practice.

29. Advocates to be the only recognised class of persons entitled to practise law.―Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.

Before enactment of the Advocates’ Act, 1961 the legal profession was governed by the Legal Practitioners’ Act which was having six different practices which are a) Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) Mukhtars, f) Revenue Agents. This system was quite discriminatory and confusing. The aim of the Advocates’ Act, 1961, crafted based on recommendations of the Law Commission of India, was to unite all the legal professionals of India under one category known as “Advocates”. Section 29 provides that all practicing lawyers are to be known as advocates only. And thus the very first goal of the Act is satisfied. As per Section 2(1)(a) of the Act, “advocate” means an advocate entered in any roll under the provisions of this Act. Thus to become a recognized person entitled to practice law means to get enrolled under any roll provided by the Advocates’ Act.

30. Right of advocates to practise.―Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends,―

(i) in all courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.

This section provides that a lawyer entered in any State roll of the nation, constituted under this Act, known to be as an “advocate”, is having a right to practice the legal profession throughout the territories to which this Act extends, in all courts including Supreme Court of India, before any tribunal, judicial authority, and quasi-judicial authority as well as before any person statutorily authorized to take evidence.

32. Power of court to permit appearances in particular cases.―Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.

In general, a non-advocate is allowed to represent his own case only and he is not allowed to represent or appear before the court on behalf of another person. An advocate is required to be engaged to represent the party in the Court. However, as per Section 32 of the Advocates’ Act, 1961 the Court is empowered to permit a private person who is not an advocate to appear before it in a particular case in some special circumstances. Similarly, Supreme Court can permit any person to appear and address the Court in a particular case if it thinks desirable to do so.

33. Advocates alone entitled to practise.―Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act.

An advocate is entered in any roll provided by the Advocates’ Act 1961. No person, other than an advocate, can be entitled to practice before any Court, before any authority, or before any statutorily authorized person to take evidence, if he is not enrolled as an advocate under this Act. Thus only advocates, means law graduates from recognized law colleges by BCI, who entered in any State roll formed by provisions of this Act are allowed to practice the legal profession.

34. Power of High Courts to make rules.―(1) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto.

(1A) The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary's advocate upon all proceedings in the High Court or in any Court subordinate thereto.

(2) Without prejudice to the provisions contained in sub-section (1), the High Court at Calcutta may make rules providing for the holding of the Intermediate and the Final examinations for articled clerks to be passed by the persons referred to in section 58AG for the purpose of being admitted as advocates on the State roll and any other matter connected therewith.

This section empowers the High Courts of various States of India to make rules regarding the right of the practice of an advocate in the respective High Court. Due to provisions of this section High Court can lay down certain conditions to permit an Advocate to practice in the respective High Court as well as subordinate Courts to that High Court.

Also, High Court can make the rules which fix the fees payable as cost by any party in respect of the fees of his adversary’s advocate upon all proceedings in any subordinate Court as well as in the High Court. Such rules are regulated by taxation laws enacted in that jurisdiction.

Also, there is a special provision for the High Court at Calcutta regarding the examinations for articled clerks for purpose of enrollment on the State roll in the purview of Section 58 AG of Advocates’ Act, 1961 amended in 1976.

So these are the rights of an advocate.

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 then let me know in the comments below. Also if you want to know about the History of the development of the Advocates' Act then please write #History in the comment section below.

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Seven Lamps of Advocacy

 

Vande Matram! In this article, I am discussing the seven lamps of advocacy in simple words persona a lawyer should possess to become successful. All over the world, these qualities are making a lawyer a successful advocate. Let’s begin.

 

Advocacy is an honourable profession and it is developed for good of human society. Efforts of advocates solve the conflicts in society. Advocates defend the rights and liabilities. In the case of J S Jadhav V. Mustafa, the Hon’ble Supreme Court of India observed that; “Advocacy is not a craft but a calling; a profession wherein devotion to duty constitutes the hallmark.”

The legal profession is regarded to be a noble one. A good advocate should possess some essential qualities and equipment. Judge Abbot parry in his book “The Seven Lamps of Advocacy” called these important characteristics of advocacy as “seven lamps of advocacy” and listed them like honesty, courage, industry, wit, eloquence, judgment, and fellowship. Let’s discuss these seven lamps of advocacy which are enlightening the world also.

1) Honesty:

Honesty is the best policy. Honesty means the quality of straightforwardness; freedom from deceit, cheating, or stealing, and not telling lies. The best advocates of all generations have been devotees of honesty. The nobleness of the legal profession lies in honesty itself. An advocate should not do illegal practices. He should not do any act which will lead to professional misconduct. He should disclose the real facts and legal profession to his clients frankly. His thoughts, words, and deeds should have a sincere correlation to each other with genuineness. An Advocate should be dependable and reliable to everyone who seeks his advice and services. The uprightness, integrity, and honesty of the Advocate will increase his reputation and respect in society.

2) Courage:

Courage is the colour of the heart which leads all of the other emotions in the right direction of truthfulness. Courage is the quality that enables a person to control fear in the face of danger, pain, misfortune, etc. An advocate must possess courage. He should face the pressures from outside with courage. He must perform his duty to safeguard the interests of his client by all fair means without fear of any unpleasant consequences to himself or any other person. Advocacy is a form of combat, where courage in times of danger is half won battle. Courage is as good as a weapon in the forum as in the war camp. It is the knowledge and the skill of the Advocate that gives him the necessary courage and confidence to present the case fearlessly and to uphold the interest of the client. The knowledge and the skill can be acquired and developed by mastery of facts, mastery of laws, mastery in drafting, and presentations of convincing arguments.

3) Industry

It means hard work. There is no option for hard work. Hard work is absolutely necessary for an Advocate. Success in advocacy is not arrived at by intuition but through the industry. The industry is the quality of being hard-working; being always employed usefully. Lord Eldon Says, “An advocate must live like a hermit and work like a horse”. Intelligence and knowledge will be sharpened with hard work and strenuous efforts. Advocacy is the profession that requires ‘Study’ and ‘Study’ throughout the career. Law changes day-to-day. To acquire up-to-date knowledge an advocate must refer to the international and national journals, reference books of his library, and the bar library. He has to work hard like a spider to the benefit of his client.

4) Wit

Judges and lawyers have to deal with a variety of serious and important matters affecting the life and liberty of the people. So constant clash between them is common. Anxiety for a favourable verdict on the part of the lawyers; and perpetual worry for the pursuit of the truth on the part of the judges generate strain and tension. Occasional wit and humour, provoking a smile or laughter will help them to ease the tension and refresh themselves to sharpen their brain for the effective discharges of the duties. Wit means the clever and humorous expression of ideas; the liveliness of spirit. Wit flows from intelligence; understanding and quickness of mind. Wit lessens the workload of an advocate. It relaxes his mental strain. The lamp of wit is needed to lighten the darkness of advocacy.

5) Eloquence

The success of an advocate depends upon his eloquence. Eloquence means fluent speaking and skillful use of language to persuade or to appeal to the feelings of others. Fluent speaking impresses the listener. An advocate must be fluent, skillful in using appropriate words to impress the Court. Eloquence attracts the attention of the listener. Eloquence is related to the art of oratory. A strong vocabulary is one of the powerful weapons which an Advocate should possess. Words are his keys to thoughts. Strong vocabulary gives him assurance, builds his self-confidence, and builds his personality. Words must be employed with eloquence. The art of persuasive and impressive speaking will give the desired result in his favour.

6) Judgment

Judge Abbot Parry has referred to judgment as one of the seven lamps, but he refers to it essentially as an intellectual capacity, ‘the inspiration’ which enables a means to translate good sense into right action e.g. ‘seeing the right point of his case’ and the like. In judgment, one has to estimate, consider, and form an opinion about the issues with good sense and ability. Here judgment is not ‘giving the decision of the case by the Judge in the Court’. Judgment means the study of the case in deep by considering all shades of the consequences. It means the ability to come to a sensible conclusion and make wise decisions at the relevant time in the proper way. It is based on these conclusions he should employ the necessary facts and the techniques in the case in which he is engaged. This quality is necessary from the beginning of filing the case till its final disposal. An advocate could be in a position to judge the merits and demerits of the case on hearing the brief and seeing the document. He should inform his client about the legal position openly after judging the issues. An Advocate must always anticipate all the possible moves of the other side and must develop the necessary presence of mind, alertness, and tact to cope with any awkward situation of difficulty that may arise in the case.

7) Fellowship

In the legal profession, one advocate fights with another advocate for justice before the learned judge. There may be controversies and contradictions in their contention relating to the case, but that shall never affect the fellowship. Because the two advocates are just opponents and not enemies so they should treat each other as ‘learned friends’ and the judge as ‘learned judge’. Their conflict ends as they come out of the doorsteps of the Court.  Fellowship means membership in a friendly association or companionship. Fellowship is exactly like great public schools, the boys of which have grown older and have exchanged boyish for manly objects. Daniel Webster says, “Lawyers on opposite sides of a case are like the two parts of shears, they cut what comes between them, but not each other”. There is no discrimination of age, ability, experience, and riches, etc. between the advocates. All are equal. Courts give them all equal respect. Among advocates, there is just the same rough familiarly, the general ardor of character, the same kind of public opinion expressed in exactly the same blunt, unmistakable manner. By keeping the lamp of fellowship burning, advocates encourage each other by sharing the knowledge to walk in the light of the seven lamps of advocacy. In order, to maintain the fellowship, the Bar Council of India has laid down certain rules to be observed as the duty to colleagues. To facilitate this interest, after having obtained a certificate of enrollment under Section 22 of the Advocates’ Act 1961, advocates are made required to obtain membership in the bar association.

8) Tact:

All these are the main lamps of advocacy that are observed and enlightened across the world. But there is one more lamp known as ‘tact’ and discovered by Indian jurist K. V. Krishnaswamy Aiyer, in his book “Professional Conduct and Advocacy”. So let’s discuss it.

Tact means handling people and situations skillfully and without causing offense. Advocacy is a profession of communication because an advocate has to communicate with the client, witness, opponents, opponent’s advocate, judge, and after that media waiting for him outside the courtroom. He must have proper tact for communicating with such a large variety of people. An advocate must be in a position to tackle and win his client, opponent party, opponent advocate in a smoother way. An advocate should not quarrel with Court or lose temper over trifle things in the Court and outside.

So these are the seven lamps of advocacy with one bonus from an Indian writer. If you want some one-liner notes from the book “Professional Conduct and Advocacy” by K. V. Krishnaswamy Aiyer then let me know in the comments below.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

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