Enrolment of an Advocate with Supreme Court of India:

 

Vande Matram! In this article, I am discussing rules, provisions, and procedures for the enrollment of an advocate with the Supreme Court of India which are in the light of the Bar Council of India rules, Supreme Court Rules, 1966, and the Advocates Act, 1961. Let’s begin.

Enrolment of an Advocate with Supreme Court of India:

Introduction:

The right to practice is a fundamental right as per Article 19(1)(g) of the Constitution of India. A law graduate who has entered into the roll of the state bar council is having the right to practice in all Courts within the territory of India including the Supreme Court. Section 30 of the Advocates Act, 1961 provides for the same. Section 20 of the Act gives special provisions for the enrolment of certain Supreme Court advocates. Section 20 is produced and discussed as follows:

20. Special provision for enrolment of certain Supreme Court advocates.―(1) Notwithstanding anything contained in this Chapter, every advocate who was entitled as of right to practise in the Supreme Court immediately before the appointed day and whose name is not entered in any State roll may, within the prescribed time, express his intention in the prescribed form to the Bar Council of India for the entry of his name in the roll of a State Bar Council and on receipt thereof the Bar Council of India shall direct that the name of such advocate shall, without payment of any fee, be entered in the roll of that State Bar Council, and the State Bar Council concerned shall comply with such direction.

In this context, as per Section 2(1)(b) ‘appointed day’ means the day on which that provision comes into force. Section 20 was substituted by Section 15 of Act 60 of 1973 which came into force on Dt. 31.01.1974. As per Section 30(i) every advocate is entitled to practice in all courts including the Supreme Court of India within the territories where this Act is applicable. Let Q be an advocate who was entitled as of right of practice in the Supreme Court before 31.01.1974. Q is not having his name enrolled in any State roll, then Q has to express his intention in the prescribed form to the Bar Council of India for the entry of his name in the roll of a State Bar Council. After receiving such application from Q, on the direction of BCI name of Q had to be entered into the roll of State Bar Council without payment of any fee of enrolment. This sub-section is applicable to the advocates practicing in the Supreme Court of India before 31.01.1974 and have not enrolled themselves into any roll of State Bar Council.

(2) Any entry in the State roll made in compliance with the direction of the Bar Council of India under sub-section (1) shall be made in the order of seniority determined in accordance with the provisions of subsection (3) of section 17.

As Q was practicing in Supreme Court since before Dt. 31.01.1974 and BCI had directed to State Bar Council to enroll his name, then his name should have been placed into the roll of advocates according to his seniority.

(3) Where an advocate referred to in sub-section (1) omits or fails to express his intention within the prescribed time, his name shall be entered in the roll of the State Bar Council of Delhi.

If Q was failed to intimate BCI regarding his enrolment into the roll of State Bar Council of his choice, then his name would be automatically entered into the roll of the State Bar Council of Delhi.

Well, this procedure is for advocates who were practicing in the Supreme Court of India before 31.01.1974. Now the procedure has been changed. The rules for practice in Supreme Court are mentioned in Order IV of the Supreme Court Rules, 1966. According to the Order IV of Supreme Court Rules, 1966

1) Only those advocates who had entered on the roll of State Bar Councils can practice in Supreme Court.

2) Only Senior Advocates can enter the Supreme Court Bar unconditionally. Other advocates have to fulfill certain conditions.

3) To enter the Supreme Court one has to give the Advocates on Record Examination of Supreme Court.

4) Very first condition to appear in such examination is at least 4 years of experience as a practicing lawyer.

5) After passing such an exam, that advocate has to take training of one year under the advocate on record of the Supreme Court on approval of the Court.

6) If an advocate is having ten years of experience in legal practice then he can be exempted from the training.

7) The experience of practice should be of the High Court of any state. High Court judges with the opinion of senior advocates can appoint an advocate as a senior advocate.

So these are the steps to get enrolled with the Supreme Court of India for practice.

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 and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

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The procedure of Enrollment of an Advocate with Bar Council of India

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 15^th 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 31^st 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 1^st January 2021 then his disqualification for enrolment with the bar council shall cease on 31^st 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 and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

Thanks for reading till the end. Please share this with all legal professionals.

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Powers of Bar Councils

 

Vande Matram! In this article, I am discussing the Powers of Bar Councils which are in the light of the Bar Council of India rule and the Advocates Act, 1961. Let’s begin.

Introduction:

Bar councils are established under Section 3 and Section 4 of the Advocates Act, 1961. These bar councils have to perform certain functions as per the Act. To perform smoothly each bar council is empowered under Section 15 and Chapter III of the Advocates Act, 1961.

Power to make rules:

Section 15 of the Advocates Act 1961 gives power to BCI to perform the functions in the effect of the Act. These powers are also inherited to the state bar councils established in various states of India in the legal periphery of Advocates Act, 1961 and Bar Council of India Rules. Section 15 is reproduced and discussed here:

15. Power to make rules.―(1) A Bar Council may make rules to carry out the purposes of this Chapter.

As per Section 6 and Section 7 bar councils have to perform various functions and hence bar councils are empowered to make rules to carry out the purposes of the Advocates Act, 1961.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for―

(a) the election of members of the Bar Council by secret ballot including the conditions subject to which persons can exercise the right to vote by postal ballot, the preparation and revision of electoral rolls and the manner in which the results of election shall be published;

(c) the manner of election of the Chairman and the Vice-Chairman of the Bar Council;

(d) the manner in which and the authority by which doubts and disputes as to the validity of an election to the Bar Council or to the office of the Chairman or Vice-Chairman shall be finally decided;

(f) the filling of casual vacancies in the Bar Council;

(g) the powers and duties of the Chairman and the Vice-Chairman of the Bar Council;

(ga) the constitution of one or more funds by a Bar Council for the purpose of giving financial assistance or giving legal aid or advice referred to in sub-section (2) of section 6 and sub-section (2) of section 7;

(gb) organisation of legal aid and advice to the poor, constitution and functions of committees and sub-committees for that purpose and description of proceedings in connection with which legal aid or advice may be given;

(h) the summoning and holding of meetings of the Bar Council, the conduct of business thereat, and the number of members necessary to constitute a quorum;

(i) the constitution and functions of any committee of the Bar Council and the term of office of members of any such committee;

(j) the summoning and holding of meetings, the conduct of business of any such committee, and the number of members necessary to constitute a quorum;

(k) the qualifications and the conditions of service of the secretary, the accountant and other employees of the Bar Council;

(l) the maintenance of books of accounts and other books by the Bar Council;

(m) the appointment of auditors and the audit of the accounts of the Bar Council;

(n) the management and investment of the funds of the Bar Council.

In particular, none of the specific prohibitions can have the effect of reducing the scope of the general principle and such rules made by the bar councils are for

1. Election of members of bar councils and procedures related to voting and declaring the election results.

2. Manner of election of Chairman and Vice-Chairman of the respective bar council.

3. Manner to decide the disputes related to the elections of the members, Chairman, Vice Chairman of the bar council.

4. Fill the casual vacancies of the bar councils.

5. Rules regarding powers and duties of the chairman and vice-chairman.

6. Constitution of funds as per the provisions of Section 6(2) and Section 7(2) whichever applicable.

7. Constitution of fund and committee to organize legal aid for poor and weaker section of the society in the light of Legal Service Authorities Act, 1987.

8. Summon and hold a meeting of bar council and committees constituted

9. Rules regarding the formation of a committee to carry out certain functions under the Act and to decide the term of office of the members of such committees.

10. Rules regarding the qualification and service of various posts of bar councils such as secretary, accountant, clerks, etc.

11. Maintain book of accounts and other books of the bar council.

12. Appoint the auditors for audit of the bar council.

13. Manage and invest the funds of the bar council.

(3) No rules made under this section by a State Bar Council shall have effect unless they have been approved by the Bar Council of India.

Bar councils have the power to frame rules enlisted above, but only BCI is empowered to approve such rules and after such approval, the rules shall have an effect.

Further Chapter III provides some powers related to the admission and enrollment of the advocates through Sections 16 to 23 such as:

1. Prepare rolls of advocates and admit new advocates in the roll.

2. Decide the seniority of the advocates already on the roll and maintain the rolls for this purpose.

3. Disqualify the advocates as per the professional conduct rules of BCI if needed as well as Section 24A of the Act.

4. No person shall be entered in the advocates roll of more than one state bar council roll, for this purpose bar councils can restrict such advocates from being enrolled in another roll of advocates.

5. Transfer the name of an advocate on a roll from one state bar council to another on the proper application for such purpose made by the advocate.

6. Send copies of rolls of bar councils to BCI for record and inspection purposes.

7. Resolve the disputes regarding the seniority of the advocates on the roll.

8. Issue the certificate of the enrollment of the advocate.

9. Dispose of the applications for enrollment of advocates.

10. Remove the name of an advocate from the roll if that person is dead or if that person had made an application to remove his/her name.

11. Frame rules to perform the functions related to the admission and enrollment of advocates.

Special powers of BCI:

BCI has been empowered especially as it is the apex body of bar councils. It is having the power to frame rules as per the provisions of Section 15(2) to perform various functions under the Advocates Act.

1) BCI can only approve rules made by state bar councils to carry out the functions enlisted in the Advocates Act, 1961.

2) Only BCI can lay the rules and standards for legal education to be imparted by the universities on the recommendations of the Legal Education Committee.

3) BCI has the power to hear the disciplinary committee matters referred to it by the state bar councils or by an advocate on his application of review of summary dismissal done by the disciplinary committee of the state bar council.

4) BCI has the power to discontinue of recognition of any University which is based on the recommendation by the Legal Education Committee.

5) BCI can conduct the All India Bar Examination to check the ability of practice of a law graduate from any recognized university.

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 and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

Thanks for reading till the end. Please share this with all legal professionals.

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Bar Council of India: History, Constitution and Term of members

Vande Matram! In this article, I am discussing the Bar Council of India which is in the light of the Bar Council of India rule and the Advocates Act, 1961. Let’s begin.

Bar Council of India:

Introduction:

The Bar Council of India (BCI) was established by Parliament under Section 4 of the Advocates Act, 1961. BCI is a statutory body that regulates and represents the Indian Bar. The headquarter of BCI is in New Delhi. It is headed by the Chairman and Vice-Chairman. BCI comes under the domain of the Ministry of Law and Justice, Government of India.

As per Section 5 of the Advocates Act, 1961 BCI is a corporate body having an interminable succession and a common seal. The BCI has constituted a few committees, for example, the Education Committee, the Disciplinary Committee, the Executive Committee, the Legal Aid Committee, the Advocates Welfare Fund Committee, the Rules Committee, etc.

BCI performs the regulatory function by prescribing standards of professional conduct and etiquette and by exercising disciplinary jurisdiction over the bar. BCI additionally sets standards for legal education and gives recognition to Universities whose degree in law fills in as a qualification for students to enroll themselves as advocates after graduation.

In addition, BCI performs certain representative functions by protecting the rights, privileges, and interests of advocates and through the creation of funds for providing financial assistance to organise welfare schemes for them.

History:

After enforcement of the Constitution of India on 26^th January 1950, it was emphasized that there should be uniformity in law examinations conducted by different universities of the country. For this purpose, the need for All India Bar was felt and a resolution was passed for the need of an All Indian Bar in the annual meeting of the Inter-University Board held in Madras.

In this regard, on April 12, 1951, a comprehensive bill to amend the Indian Bar Councils Act was introduced in the Parliament of India. In August 1951, Dr. Babasaheb Ambedkar, Law Minister proposed to set a committee to prepare a report on the various aspects like the desirability and feasibility of a unified Bar for the whole of India; the establishment of a separate Bar Council for the Supreme court; and all the related matters. This All India Bar Committee was led by Justice S. R. Das and had other seven members. The committee submitted its detailed report on 30 March 1953. The report consisted of a proposal to establish a Bar council for each state and an All India Bar Council at the national level.

In the meantime, the Law Commission of India was assigned the job of assembling a report on judicial administration reforms. A comprehensive Advocated Bill was presented in the Parliament which brought about the Advocates Act, 1961 to implement the suggestion of the All India Bar Committee and the Law Commission’s proposals related to the legal profession. The Bar Council of India was established under Section 4 of the Advocates Act, 1961.

Constitution of Bar Council of India and its members:

Section 4 of the Advocates Act provides for the constitution of the Bar Council of India. Section 4 reads as follows:

4. Bar Council of India.―(1) There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely:―

(a) the Attorney-General of India, ex officio;

(b) the Solicitor-General of India, ex officio;

(c) one member elected by each State Bar Council from amongst its members.

(1A) No person shall be eligible for being elected as a member of the Bar Council of India unless he possesses the qualifications specified in the proviso to sub-section (2) of section 3.

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

(2A) A person holding office as Chairman or as Vice-Chairman of the Bar Council of India 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 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 the Council, elected after the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), assumes charge of the office.

(3) The term of office of a member of the Bar Council of India elected by the State Bar Council shall,—

(i) in the case of a member of a State Bar Council who holds office ex officio, be two years from the date of his election or till he ceases to be a member of the State Bar Council, whichever is earlier; and

(ii) in any other case, be for the period for which he holds office as a member of the State Bar

Council:

Provided that every such member shall continue to hold office as a member of the Bar Council of India until his successor is elected.

Thus as per Section 4(1), there shall be three types of members of the Bar Council of India:

a) the Attorney General of India, who is an ex-officio member

b) the Solicitor General of India, who is an ex-officio member

c) each state bar council in India will elect a member from amongst its members to be a member of the Bar Council of India.

According to Section 4(1A), the following qualifications must be there for an advocate to be a member of the Bar Council of India:

a) all the members are subject to the rules made by the Bar Council of India regarding elections of the members of State Bar Council,

b) such advocate must have for at least ten years been advocates on a State roll,

Section 4(2) says that there shall be a Chairman and Vice-Chairman of the BCI, who are elected by the members of BCI.

Section 4(2A) provides for the circumstances due to the Advocates (Amendment) Act, 1977.

Term of the members of BCI:

Section 4(3) provides for the term of office of the elected members of BCI.

Clause (i) of Section 4(3) gives that if an ex-officio member of a state bar council has been elected to be a member of BCI, then his term will be 2 years from the date of his election. If such ex-officio elected member ceases to be a member of the state bar council before the completion of two years, then his term of office in BCI will be terminated with that.

Clause (ii) of Section 4(3) provides that if an elected member of state bar council becomes an elected member of BCI then his term of office shall be for the period for which he holds office as a member of the State Bar Council. This means as the term at State Bar Councils ends, the term at BCI will also end. But all these members shall continue to hold the office of BCI as members till their successor at respective state bat council is elected.

We have discussed functions of the Bar Council of India in Article “Functions of Bar Councils as per Section 6 and Section 7”

Section 15 of the Advocates Act provides for the powers of Bar Councils which apply to BCI as well as state bar councils.

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 and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

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Members of State Bar Councils

 

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

Members of Bar Councils:

Introduction:

Advocates Act 1961 was enacted for the uniformity of the legal profession and to lay down the rules and regulations for the same. Also, it provides for the constitution of the state bar councils across the territory of India and the Bar Council of India.

For your reference the Sections 3(2), 3(3), 3(3A), 3(4), 3(5), and 3(6) are produced and explained here as follows:

(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;

Section 3(2) provides for the appointment of the members of the state bar councils through its various sections, which are already given in the article “Establishment of State Bar Councils in India: Section 3 of Advocates Act 1961”

(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).

Section 3(2)(b) states the number of members required to be elected in a state bar council depending upon the number of the electorate with that bar council.

a) For the number of electorates not exceeding 5,000(five thousand), the elected members should be 15 (fifteen)

b) For the number of electorates exceeding 5,000 (five thousand) and not exceeding 10,000 (ten thousand, the elected members should be 20 (Twenty)

c) For the number of electorates exceeding 10,000 (ten thousand), the elected members should be 25 (twenty-five)

Further, this clause provides for the eligibility of advocates who can compete in elections and become members of the state bar council. The conditions are as follows:

a) all the members are subject to the rules made by the Bar Council of India regarding elections of the members of State Bar Council,

b) such advocate must have for at least ten years been advocates on a State roll,

(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.

Section 3(3) provides for the election and appointment of the Chairman and Vice-Chairman of the State Bar Council who are elected by the council as per the procedure prescribed by the BCI rules.

(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.

Section 3(3A) provides for the effect of the Advocates (Amendment) Act, 1977 on the Chainman and vice-Chairman of the State bar councils.

(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.

According to Section 3(4), an advocate can be disqualified from voting at an election of state bar council or BCI as per the rules framed by BCI in the view of Section 49 of Advocates Act 1961.

(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.

Section 3(5) provides for the term of office of any member elected before the commencement of the Advocates (Amendment) Act, 1964.

(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.

Section 3(6) provides for the representation of elected members in State Bar Councils constituted before the commencement of the Advocates (Amendment) Act, 1973.

Further Section 8 of the Advocates Act 1961 provides for the term of the office of the members of the state bar councils. The section is as follows:

8. Term of office of members of State Bar Council.―The term of office of an elected member of a State Bar Council (other than an elected member thereof referred to in section 54) shall be five years from the date of publication of the result of his election:

Provided that where a State Bar Council fails to provide for the election of its members before the expiry of the said term, the Bar Council of India may, by order, for reasons to be recorded in writing, extend the said term for a period not exceeding six months.

Thus as per Section 8

a) Term of office of an elected member of a state bar council is five years.

b) In certain conditions mentioned in Section 54 of the Act the term of office of an elected member may be different.

c) The period of five years is counted from the date of publication of the result of the election in which such member contested.

d) If in certain circumstances bar council fail to conduct the election of members before the expiry of the term, then the term can be extended for six months by recording reasons in writing.

In certain conditions term of office of an elected member is depending on Section 54 of the Act, which reads as follows:

54. Term of office of members of first State Bar Councils.―Notwithstanding anything contained in this Act, the term of office of the elected members of a State Bar Council constituted for the first time, shall be two years from the date of the first meeting of the Council:

Provided that such members shall continue to hold office until the State Bar Council is reconstituted in accordance with the provisions of this Act.

Section 54 provides for the term of office of elected members of a Bar Council constituted newly, and such term of office is 2 years from the first meeting of the council.

So this is all about the membership 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 and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

Thanks for reading till the end. Please share this with all legal professionals.

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