Notes

Module 03 – Bar Council:

State Bar Council

Introduction

1. Bar and Bench is the spinal cord of this legal system.

2. Only a coordinated activity of these entities can produce a smooth functioning
of legal system.
3. Eminent lawyers at the Bar receive almost the same respect as Judges.
4. Cooperation and Unity among lawyers is crucial for the legal system.
5. The legislature keeping this in mind enacted the Advocates Act 1961 to regulate
the legal profession.
6. The Act provides for the constitution of Bar Council of India, State Bar
Councils, their powers and functions, enrollment, qualifications,
disqualifications of advocates, etc.

Structure of Bar Council

Section 3 of the Act mandates that there shall be a Bar Council for every state, and
it shall be called as Bar Council of that state.

Composition
The composition of the council is a crucial aspect of its effective functioning.
As per Section 3(2), The council shall consist of the following members:
1. Ex Officio Members:
The Advocate – General of a state shall be ex-officio member of that State Bar
Council.
2. Elected Members:
The number of elected members varies based on the electorate size, with a
system of proportional representation by means of the single transferable vote.
- Where the electorate doesn’t exceed 5000, there shall be 15 members in a
State Bar council.
- Where the electorate ranges between 50,000 to 10,000 the members shall be
20
- There shall be twenty five members in the Council if the number exceeds ten
thousand.
- The members of the Council are elected through system of proportional
representation by means of the single transferable vote from amongst
Advocates on the electoral roll of the State Bar Council.
- An advocate shall be disqualified from voting if he doesn’t satisfy the
qualifications prescribed by the Bar Council of India under this Act.

3. Chairman and Vice-Chairman:

There shall be a Chairman and Vice Chairman of each Bar Council elected by
the Council.

Section 5: Bar Council to be body corporate

As per Section 5 of the Act, every Bar Council shall be a body corporate with
perpetual succession and common seal.
It can acquire and hold properties.
It can sue or be sued.

Section 8: Term of office

As per Section 8 of the Act, the tenure of a member shall be five years from the
date of publication of the result.
But if the Council fails to conduct an election before the expiry of the term, it
may extend such tenure by a maximum of six months by recording reasons
in writing.

In case the State Bar Council fails to provide for an election of member before
the expiry of 5 years or the extended term, The Bar Council of India constitutes
a Special Committee.
Section 8A: Constitution of Special Committee
Composition –
1. Ex officio member
2. Two members nominated by the Bar Council of India from the electoral roll
of the State Bar Council.
The Special Committee assumes the functions of the State Bar Council until the
latter is constituted under the Act.

Section 10B: Disqualification of members

As per Section 10B of the Act, an elected member to the council may be
disqualified on the grounds that

- he was absent in consecutive meetings or

- his name is removed from roll of Advocates or
- he is disqualified under any rules prescribed by Bar Council of India.

Functions of State Bar Council

Section 6 of the Act lays down the important functions of a State Bar Council.

They are:

1. To admit persons as Advocates on its roll.

2. To prepare and maintain such roll.

3. To entertain and determine cases of misconduct against Advocates on its

roll.

4. To safeguard the rights, privileges and interests of Advocates on its roll.

5. To promote and support law reform.

6. To conduct seminars and organise talks on legal topics by eminent jurists

and publish journals and papers of legal interest.

7. To organise legal aid to the poor.

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

9. To provide for the election of its members.

10. To visit and inspect Universities in accordance with the rules for imparting
legal education.
 11. To promote the growth of Bar Associations for the purpose of effective
implementation of welfare schemes introduced by the Council.

12. To perform any other functions as prescribed by the Act.

13. The Council may constitute funds for the purpose of:

- Giving financial assistance to organise welfare schemes for the indigent,

disabled or other Advocates.
- Giving legal aid or advice in accordance with the rules.
- Establishing law libraries.

The State Bar Council may receive gifts, donations or any grants for the
purposes mentioned above and such amount may be credited to the welfare
funds constituted accordingly.

Committees

Various Committees may be constituted by the State Bar Councils for discharging
certain duties. Such as:

1. Disciplinary Committee

The disciplinary committees are constituted to deal with the cases of professional
misconduct of Advocates. The Council may constitute one or more disciplinary
committees. It shall consist of three persons in out of which two persons shall be
members of the Council and the remaining one being selected from the non-
member Advocates.

The senior most among the members of the Committee shall be the Chairman of
the Disciplinary Committee.

The Disciplinary Committee shall have the same power as that of a civil Court in
matters relating to the disposal of disputes relating to professional misconduct.

2. Legal Aid Committee

One or more legal aid committees may be constituted by the Council. It shall have
minimum five members; however it cannot exceed nine.

The Legal Aid activities of the Council are monitored, conducted by the
committee. The Council prescribes the qualifications required for the members
from time to time.

3. Executive Committee

It shall consist of five members and they are elected by the Council amongst its
members.

4. Enrolment Committee

There must be three members in the enrolment committee who shall be elected
from the members of the Council. A State Bar Council shall refer every application
for admission as an advocate to its enrolment committee and it shall decide on the
same.

5. Standing Committees

 Executive committee which shall consist of nine members elected amongst

the members of the Council.

 Legal Education Committee which shall consist of ten members. Five out of
ten members shall be elected by the Council from its members and the
remaining five shall be co-opted by the council from non-member
Advocates.

Every Bar Council and every committee other than Disciplinary Committee shall
follow the rules of procedure in regard to transaction of businesses at their
meeting. The meeting shall be convened at the headquarters of the Bar Council
except that of Disciplinary Committee.

Power of Bar Councils to make Rules - Section 28

Every State Bar Council has the power to make rules regarding the following
matters:
  The election of members of the Bar Council. This will include the manner of
conducting election, eligibility to cast postal vote, manner of publishing
results etc.

 The manner of election of the Chairman and the Vice-Chairman of the Bar
Council.

 Deciding the validity of elections.

 The filling of casual vacancies in the Bar Council.

 The powers and duties of the Chairman and the Vice Chairman.

 Constitution of funds.

 Organisation of legal aid to the poor, constitution of committees and sub

committees for the purpose.

 Summoning the meeting of the Bar Council, Conduct of Business, deciding

the number of persons to constitute quorum.

 The qualifications and the conditions of service of the secretary, the

accountant, and other employees of the Bar Council.

 The maintenance of books of accounts and other books by the Bar Council.

 The appointment of auditors and the audit of the accounts of the Bar
Council.

 The management and investment of the funds.

Rules made by the State Bar Councils are effective only when it is approved by the
Bar Council of India.
Maintenance of rolls (Module 04)

Section 17 – Chapter 3

1. As per Section 17 of the Act, every State Bar Council shall prepare and
maintain a roll of Advocates. It shall contain the names and addresses of the
Advocates.
2. The roll shall consist of two parts.
- The first part shall include the details of senior Advocates.
- The second part shall include the details of other Advocates.
3. The entries made in each part of roll of advocates shall be in the order of
seniority.
4. No person shall be enrolled as an Advocate in more than one state roll.
5. However, a person can file an application before the Bar Council of India to
transfer his name from roll of one state to another nevertheless he will retain the
same seniority as under Section 18.

Section 18: Transfer of name from one State roll to another

1. Any advocate whose name is entered on the roll of a State Bar Council can
apply to the Bar Council of India for the transfer of their name to the roll of
another State Bar Council.
2. The application must be made in the prescribed form.
3. Upon receiving the application, the Bar Council of India has the authority to
direct the transfer.
4. The transfer is to be made without the payment of any fee.
5. The State Bar Councils concerned are obligated to comply with the Bar Council
of India's direction regarding the transfer.
6. The section explicitly declares that when an advocate's name is transferred from
one State Bar Council's roll to another, they retain the same seniority in the
latter roll as they were entitled to in the former roll.

Exceptions:
The Bar Council of India may reject transfer applications under certain
conditions:
 1. Disciplinary Proceedings: If the applicant is under pending disciplinary
proceedings, the Bar Council of India may reject the transfer application.

2. Bona Fide Requirement: The Bar Council of India has the discretion to reject
the application if it determines that the transfer was not made in good faith
(bona fide).

3. Opportunity for Representation: The applicant is entitled to an opportunity to

make a representation in case of rejection, providing a fair and transparent
process.

Section 19: State Bar Councils to Send Copies of Rolls of Advocates to the Bar
Council of India

1. Every State Bar Council is obligated to send an authenticated copy of the

roll of advocates to the Bar Council of India.
2. State Bar Councils are required to communicate to the Bar Council of India
any alterations and additions made to the roll.
3. The communication of changes must be done promptly as soon as the
alterations or additions are made.

Section 22: Certificate of enrollment

1. The State Bar Council may issue a certificate of enrolment to Advocates

whose name is entered in the roll.
2. This certificate serves as official documentation confirming an individual's
enrolment as an advocate.
3. Every person whose name is entered in the State roll must notify any change
in the place of their permanent residence to the State Bar Council concerned
within 90 days of such change.

The power of the State Bar Council is merely to prepare and revise from time to
time the electoral roll subject to the Rules made by the Bar Council of India
concerning the qualifications and conditions aforesaid. The Rule making power
of the State Bar councils does not override the powers conferred to Bar Council
of India. Even though Bar Council of India can approve the rules made by the
 State Bar Councils, rules which are ultra vires to the parental Act cannot be
ratified.

Conclusion

1. It is an established fact that every profession requires some regulatory

mechanism to keep it steady, efficient, and qualitative and law is no exception.
2. Without an efficient monitoring body, the profession may end up in chaos.
3. And only a unity among lawyers can make this justice delivery system
effective.
4. And for that, it is necessary that members of Bar must respect and cooperate
with each other.
5. While Bar Council of India has serious issues at hand, it is the State Bar
Councils and Bar Associations make things work at a grass root level.
6. And their involvement in various activities in the legal sphere whether that be
responding to any contemporary issue or imparting legal education, proves why
they are necessary and how they should be strengthened.

Bar Council of India

Introduction

1. The Bar Council of India is a statutory body that was established under the
Advocates Act, 1961 to supervise and regulate the legal practice as well as legal
education in India.
2. The Bar Council also plays the role of a regulatory body by conducting a yearly
exam called the All India Bar Examination (AIBE) to select the individuals who
can practice in the courts in the country.
3. The Council exercises disciplinary jurisdiction by prescribing the standards of
professional conduct and etiquette for the bar of India. Their aim is to protect
the rights, interests and privileges of the advocates in India.
4. In the wider sense, the Bar Council of India has been established under
the Advocates Act 1961 to act as a statutory and regulatory body for the legal
 profession and education in India as well as being the representative of the legal
profession in the country.

Structure and Composition

1. The Bar Councils of India have been established under Section 4 of the
Advocates Act 1961 on the recommendation of the All India Bar Committee
in the year 1961 to operate on the national level along with the respective
State Bar Councils.
2. The State Bar Councils have been established under Section 3 of the Act.
3. The Bar Council of India consists of:
- Elected Members: Members are elected from each State Bar Council. The
members of the State Bar Councils are elected for a period of five years.
- Ex- Officio Members: The Attorney General of India and the solicitor of
India who are ex-officio members.
- Chairman and Vice- Chairman: The Council has the power to elect its
own Chairman and Vice- Chairman for a period of two years from amongst
its members.
4. The current chairman of the Bar Council is Senior Advocate Manan Kumar
Mishra.

Section 5 – Bar Council to be a body corporate

Section 5 of the Act establishes the Bar Council of India as a corporate body and
states that it will have perpetual succession and a common seal.

It also empowers the Bar Council to sue by the name by which it is known.

Section 7A - Membership in International bodies

1. Section 7A allows the Bar Council of India to become a member of

international legal bodies such as the International Bar Association or the
International Legal Aid Association
2. It empowers the Bar Council to contribute funds, as it deems appropriate, to
these organizations through subscriptions or other means.
3. Additionally, the Bar Council has the authority to approve expenses related to
the participation of its representatives in international legal conferences or
seminars.

Functions of the Bar Council of India

Section 7 of the Act specifies the functions of the Bar Council of India (hereinafter
as the BCI).

An amendment was made by Act 60 of 1973 due to which more functions were
inserted in Section 7.

Section 7 also gives power to the Bar Council of India to become a member of
international legal bodies such as the International Bar Association.

The functions of the bar council as per Section 7 of the Advocates Act 1961 is as
follows:

1. To lay down standards of professional conduct and etiquette for advocates.

2. To establish procedures for its disciplinary committee and the disciplinary

committees of State Bar Councils.

3. To safeguard the rights, privileges, and interests of advocates.

4. To promote and support law reform.

5. To deal with and dispose of matters referred by a State Bar Council under
the Advocates Act.

6. To exercise general supervision and control over State Bar Councils.

7. To promote legal education and set standards in consultation with

universities and State Bar Councils.

8. To recognize universities for law degrees qualifying for advocate enrolment.

9. To conduct seminars, organize talks by eminent jurists, and publish journals

and papers of legal interest.
 10. To organize legal aid to the poor in the prescribed manner.

11. To recognize foreign qualifications in law on a reciprocal basis for

admission as an advocate.

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

13. To provide for the election of its members.

14. To perform all other functions conferred by or under the Advocates Act.

15. To do all other things necessary for discharging the aforementioned

functions.

16. To establish one or more funds for the purpose of

- Giving financial assistance to organize welfare schemes for indigent,

disabled or other advocates
- Giving legal aid
- Establishing law libraries.

17. To receive grants, donations, gifts, or benefactions for the specified

purposes, credited to the appropriate fund or funds constituted for such
purposes.

Powers of the Bar Council of India

The powers of the Bar Council of India are:

Admission as an Advocate - 20

According to Section 20 of the Advocate Act, any advocate who had the right to
practice in the Supreme Court before the appointed day but was not listed in any
state roll can express their intention to the Bar Council.

They must do this within the prescribed time and using the prescribed form. Upon
receiving the application, the Bar Council of India will direct the respective state
Bar Council to enter the advocate’s name in the state roll without a fee.

Sending Copies of Rolls - 19

Section 19 of the Advocate Act mandates that every State Bar Council must send
an authenticated copy of the advocate role, prepared for the first time under this
Act, to the Bar Council of India. Furthermore, any alterations or additions made to
the roll must be promptly communicated to the Bar Council of India.

Transfer of Name - 18

Section 18 of the Advocate Act deals with transferring an advocate’s name from
one State Bar Council role to another. If an advocate wishes to transfer their name,
they must apply to the Bar Council of India.

Upon receiving the application, the Bar Council of India will direct the removal of
the advocate’s name from the first State Bar Council’s roll and its entry into the
roll of the other State Bar Council. No fee is required for this transfer.

Appointment of Committees and Staff Members – 9 and 11

Section 9 empowers the Bar Council of India to appoint disciplinary committees,

legal aid committees, executive committees, legal education committees, and other
necessary committees.

Section 11 allows the Bar Council to appoint a secretary, accountant, and other
staff members as necessary. The secretary and accountant must possess the
required qualifications. Having a secretary is mandatory for the Bar Council.

Maintenance of Accounts - 12

Under Section 12, the Bar Council of India must maintain books of accounts and
other relevant books in a prescribed format. Qualified auditors, similar to the
auditing of company accounts, must audit these accounts.

The Bar Council of India is also responsible for sending a copy of its accounts and
the auditors’ report to the Central Government. Furthermore, these accounts are
published in the Gazette of India.
Rule Making Power

Section 15

The rule-making powers of the Bar Council of India, as outlined in Section 15 of

The Advocates Act, 1961, can be summarized as follows:

1. General Rule-Making Authority:

 The Bar Council of India has the power to make rules to carry out the
purposes of Chapter III of the Advocates Act.

2. Specific Rule-Making Provisions:

 The rules may cover various aspects, including but not limited to:

 (a) Election of members of the Bar Council by secret ballot,

including conditions for exercising the right to vote by postal
ballot, preparation and revision of electoral rolls, and the
manner of publishing election results.

 (c) The manner of election of the Chairman and the Vice-

Chairman of the Bar Council.

 (d) Resolution of doubts and disputes regarding the validity of

an election to the Bar Council or the office of the Chairman or
Vice-Chairman.

 (f) Filling of casual vacancies in the Bar Council.

 (g) Powers and duties of the Chairman and the Vice-Chairman,

including the constitution of funds for financial assistance, legal
aid, and advice.

 (h) Summoning and holding of Bar Council meetings, conduct

of business, and quorum requirements.

 (i) Constitution and functions of Bar Council committees, along

with the term of office of committee members.
  (j) Summoning and holding of committee meetings, conduct of
business, and quorum requirements.

 (k) Qualifications and conditions of service for the secretary,

accountant, and other employees of the Bar Council.

 (l) Maintenance of books of accounts and other books by the

Bar Council.

 (m) Appointment of auditors and audit procedures for the Bar

Council's accounts.

 (n) Management and investment of the funds of the Bar

Council.

3. Approval Requirement for State Bar Councils:

 Rules made by a State Bar Council under this section do not have
effect unless they have been approved by the Bar Council of India.

Section 36 gives the disciplinary power to the Bar Council of India where it can
punish any Advocate in case of professional or other misconduct and can also
remove the name of any Advocate from the state roll of Advocate if found
necessary.

Section 37 empowers the Bar Council of India to hear appeals against the order of
the Disciplinary Committee of a Bar Council. Every such appeal shall be heard by
the disciplinary committee of the Bar Council of India.

Section 38 provides that any person aggrieved by the order passed by the
Disciplinary Committee of Bar Council of India may be challenged within 60 days
by way of appeal before the Supreme Court.

Since 2010, BCI also has the power to conduct the All India Bar Examination for
testing an advocate’s ability to practice law. An advocate must pass this
examination to practice law in any Court in India.
Conclusion

The Bar Council of India has a lot of functions vested within itself, whereby
exercising those functions it can restructure and reframe the entire legal arena in
the country.

Cases

D. Saibaba v. Bar Council of India and another

Facts:

Smt. D Anuradha was the Respondent No.1 in the civil appeal. She was the wife of
D Saibaba who was the appellant therein. The marriage had broken down and the
spouses were on cross ends with each other.

The wife filed a complaint under Section 35 of the Advocates Act complaining of
professional misconduct on the grounds that the appellant was running a telephone
booth under the handicap quota in spite of being enrolled as an Advocate.

The appellant said that he was indeed handicap and had started the said telephone
booth before he was enrolled as an Advocate due to certain financial constraints
and following that, the booth was being run by his old parents.

He also submitted that the complaint was malicious and had come from a
disgruntled wife who was merely trying to harass him and had also filed false
criminal cases against him.

Held:

The Bar Council of India directed the appellant to surrender the telephone booth,
presumably forming an opinion that irrespective of who was running the booth, the
booth was registered under the handicap quota in the name of the appellant and the
surrender of the booth would by itself bring an end to the controversy so far as his
conduct as an advocate was concerned.
The appellant sought some time for the collection of certain dues which could not
be collected if the telephone booth was surrendered.

As the appellant eventually failed to surrender the STD booth, the Bar Council
passed an order advising the State Bar Council under which the appellant was
registered to delete his name from the rolls of Advocates.

In ExCaptain Harish Uppal v. Union of India

The Court ruled that Article 7 defines the functions of the Indian Bar Association,
but none of the functions mentioned in Article 7 authorize it to cripple the
functioning of the Courts. Rather, they are obliged to set standards for professional
behavior. and defense attorney etiquette.

No council of lawyers can ever consider calling for a strike or a boycott. If an

association calls for a strike or boycott, the relevant Indian Legal Council should
do so immediately take disciplinary action against defenders who call on a strike. It
is the duty of every defense lawyer to ignore a strike or boycott call.

The petitioner, in this case, was an ex-army officer. In 1972 petitioner was posted
in Bangladesh, where some embezzlement related accusation was put on him and
he was brought to the army court in India, where charges against him were framed
and he was court-martialed from his post and titles along with imprisoned for 2
years.

He filed a pre-confirmation application in a civil Court to review the matter and he

received a reply from the court after a long period of 11 years, when the limitation
period of the review has expired. It was later found that documents along the
application got misplaced during a violent strike by advocates. A special petition
was filed by the petitioner to declare strikes by advocates illegal.

After analyzing the whole matter, Supreme Court of India came up with the
conclusion that

1. Strike by the advocate is unlawful.

 2. A strike will only be permitted in rarest of the rare cases where integrity,
respect, and working of the bar is at the stake.

3. A Silent dissatisfaction can be shown or an interview to the press and media

can be given, till the time it doesn’t hamper the working of the court.

. Alteration in Roll of Advocates

Introduction: Section 41 of the Advocates Act deals with the alterations to the roll
of advocates in cases where disciplinary action is taken against an advocate. It
specifies the procedures to be followed when reprimanding, suspending, or
removing an advocate from practice.

Key Points:

1. Recording Punishment:

 When an order is made under this Chapter reprimanding or

suspending an advocate, a record of the punishment shall be entered
against his name. This entry is made in the State roll where the
advocate's name is registered.

2. Removal from Practice:

 If an order is made removing an advocate from practice, his name

shall be struck off the State roll. This implies a more severe form of
disciplinary action where the advocate is no longer allowed to practice
law.

3. Recalling Certificate:

 In cases where an advocate is suspended or removed from practice,

the certificate granted to him under section 22 concerning his
 enrolment is recalled. This is a measure to ensure that a suspended or
disbarred advocate is not recognized as qualified to practice during the
period of suspension or after removal.

Conclusion: Section 41 ensures that the roll of advocates accurately reflects

disciplinary actions taken against them. The entry of punishment or the removal of
the advocate's name from the State roll is a transparent way to communicate the
disciplinary status of an advocate. Additionally, recalling the certificate associated
with enrolment further emphasizes the seriousness of the disciplinary measures
imposed on the advocate. This section contributes to maintaining the integrity of
the legal profession by appropriately reflecting the status of advocates on the rolls.