Main Notes - Mod 3
Main Notes - Mod 3
Introduction
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.
There shall be a Chairman and Vice Chairman of each Bar Council elected by
the Council.
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.
As per Section 10B of the Act, an elected member to the council may be
disqualified on the grounds that
Section 6 of the Act lays down the important functions of a State Bar Council.
They are:
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.
13. The Council may constitute funds for the purpose of:
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.
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
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.
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.
The powers and duties of the Chairman and the Vice Chairman.
Constitution of funds.
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.
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.
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).
Section 19: State Bar Councils to Send Copies of Rolls of Advocates to the Bar
Council of India
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
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.
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 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 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:
5. To deal with and dispose of matters referred by a State Bar Council under
the Advocates Act.
14. To perform all other functions conferred by or under the Advocates Act.
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.
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.
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 Bar Council of India has the power to make rules to carry out the
purposes of Chapter III of the Advocates Act.
The rules may cover various aspects, including but not limited to:
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
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.
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.
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.
After analyzing the whole matter, Supreme Court of India came up with the
conclusion that
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:
3. Recalling Certificate: