PROFESSONALKTRRS AND CONTEMiFTOF COURT LAW

S.P. Law Classes, Pune. Page : 7 (Class) 25510256, (Res) 26333908.

|Prof. Pathan s
MODULE -01
HISTORYOF LEGAL PROFESSION IN INDIA
Courts.
() Discuss the development of the legal profession in the Mayor s
(2) Discuss the developmnent of legalprofession in company s courts. Practirioner s Act of
(3) Discuss the growth of the Legal Profession from 1793 to the Legal
I846.
growth
(4) Describe the main features of thelegalprofession established in 1793 and trace its
till 1846.
(5) Describe the development of legalprofession in India. government,
(6) Give reasons for the establishment of the legal profession by the company s
and its gradual Indianisation.
Trace the development ofLegal profession in India.
Trace the evolution of theIndian Legal profession fronm 1846 to 1961. 1846 to 1961.
Hrite a detail note on the evolution oftheIndian Legal Profession from
LEGALPROFESSION IN INDIA INANCIENTAND MEDIEVAL PERIOD
ofjustice.
The Legal Profession is an important limb of themachinery for the administration administer justice
Without awell-organized profession oflaw, the courts would not be in a position to marshaled, facts
effectively as the evidence in favour or against the parties to a suit cannot be properly
of the parties
cannot be properly articulated and the best legal arguments in support or against the case postulatesa
cannot be putforth before the court. A well-organized system ofjudicial administration
of the
properly equipped and efficient Bar. It is, therefore, in the fitness of things to take note briefly
development of the legal profession in India.
The legal profession in Pre-British India was not as organized as today. Actually, the legal
profession as it exists today was created and developed during the British perio.
During the Hindu period the Courts derived their authority from the king. The king was
considered the fountain-head ofjustice. The King s Court was superior to allother courts.The Kings
Court was the highest court of appeal. It had original jurisdiction in important cases.The King was
advised by his Councillor in hearing and deciding the cases. However, the King was not bound by their
advice. The King,thus, made law through their decisions. The institution of lawyer as it exists today
was not in existence during this period. The general principle was that the decision should not be given
by a person singly and thereforea Bench oftwo judges was always preferred.
The plaintiff was required to present the plaint before the court and thereafter, the court could
direct the defendant to submit his reply. Thereafter, the court was required to investigate the matter
and deliver its judgment. The Courts delivered judgment on the facts of the evidence gathered from
various sources, e.g.,witnesses documents, etc.Ordeal was also recognized as mears of proot. In
determining the punishment the relevant circumstances were taken into consideration. Thus, in
determining the punishment, nature of theoffence, time and place, notice oe the oflender, age. strength,
etc. were taken into consideration.
Even during the Muslim period, the legal profession was not organized.The Kng wasregarded
as fountain ofjustice. Hé was regarded as servant of the God on the earth and his duty was to see that
PROFESSIONAL ETHICS AND cONTEPT OF CoURTLAW (EDTHON MAR. 2023)
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s taws Were obeyed. It was the primary duty of the king to administer justice. He could discharge his
duties personally or through his officers. The King was the chiefjudge of the Emperor and keeper of
the Gods conscience. The Courts were to be guided by Quran, Sunna, ljma, etc.
The law of evidence was not satisfactory. The evidence of Mohammmedan was given more
weight than that ofa Hindu. AMuslim couldnot be convicted for the offence ofa murder on the
evidence of a non-muslim. The evidence of a female was considered inferior to that of a male.
Ihus, before the British period, the legal profession was not organized. Fhere was no provision
for the legaltraining. Before the rise of the British power in India the administration of justice in
Northem India was in the hand of courts established by the Moghul Emperors or ruling Chief sowing
allegiance to them. In addition, the bËg zamindars also had courts exercising civil and criminal
Jurisdiction. There existed aclass of persons called Vakils. They acted more as agents for principles
than as lawyers.
2. CHANGES UNDERWENT N LEGALPROFESSION DURING BRITISH RULE
1) Introduction:
The history of the legal profession in India can be traced back to the establishment of the First
British Court in Bombay in l672 by Governor Aungier. The admission of attorneys was placed in the
hands of the Governor-in-Council and not with the Court. Prior to the establishment of the Mayors
Courts in 1726 in Madras and Calcutta, there were no legal practitioners.
TheLegal Profession is an important limb of the machinery for administration ofjustice. The
Court would not be in a position to administer justice effectively without a well-organised profession
of law. An advocate properly appreciated evidence, fact and put forth before the court. Awell-organised
system ofjudicial administration requires aproperly equipped and efficient bar.
2) Mayor s Court :
The Charterof 1726, which established the Mayor s Coutsatthe three Presidency Towns, did
not contain any specific provision as to any particular qçalifications for the persons who would be
entitled to act or plead as legal practitionerS in these courts. It was left to these courts to regulate this
matter by rules ofpractice, which these courts were authorized to frame. No change was effected in
this position when afresh Charter was issued in 1753.There was no organised legal profession came
into being in the Presidency Towns during the period of the Mayor sCourts. Those who practiced iaw
were not having any legal training or any knoWiedge of law. It was seen that quite few Company s
dismissed servant were acting as a lawyer. Regula
3) Supreme Courts:
The first real step in thedirection oforganizing a legal profession in India was taken in 1774.
when the.Court
Supreme
to
Court was established at Calcutta. The Regulating Act, 1773. empowered the
Supreme frame rules of procedure as it thought necessary for the administration of justice
and ue execution of its powers. 1he Supreme Court was empowered to approve. admit and enrol
euch andsomany Advocates and AttOmeyS-at-law, as to the Court shall seem meet Attorney sof
sun eto be authorized to appear and plead, and act for the suitors in the SupremeCourt. The
court was to have power to remove any AdvOcate or Attomey on areasonable cause. No other perso
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whatsoever, but Advocates or Attorneys so admitted and cnrolled, were to be allowed to appear and
nlead. or act in the Court for or on behalf of such suitors. Thus the persons entitled to practise
beforethe Supreme Court could be Advocates and Attorneys. The term Advocate at the time extended
only to the English and the Irish barristers andthe members of the faculty ofAdvocates in Scotland.
TheCharter prohibited any other person whatsoever to appear and plead or act; it would appear that the
Calcutta Supreme Court was, from its very beginning, was completely and exclusively preserved for
members of the British legal profession, namely, the British Barristers, Advocates and Attorneys. The
native Indian legal practitioner had noentry in this court. The Charter of 1774, introduced the British
system of legal practice in Calcutta.
Similar position obtained in the two other Supreme Courts at Bombay and Madras. Thus, in the
three Supreme Courts the only persons whowere entitled to practise were the British Barristers,
Advocates and Attorneys. The Indians had no right to appear before these courts. This continued to be
the position all through the existence of these courts.
The Supreme Court at Calcutta could admit Advocates and Attorneys who could appear , plead
and act for the suitors of the court. But the Supreme Courtprovided for the Advocate s and Attorney s
to exercisethe ordinary powers of their respective professions Advocates having power to appear and
plead and Attorneys to appear and act, for the suitors. Similar was the position in other Supreme
Courts as well.Thus, the two grades of legal practicebecame distinct and separate as they were in
England.

4) Company sAdalats:
Lord Cornwallis introduced three judicial reforms, civil reform of 1787, criminal reform of
1790 and civil reform of I793. The Bengal Regulation VIl of 1793 provides that the Vakils were by
and large ignorant of the law and were subject to harassment and extortion from the ministerial officers
of the Courts. The professionalVakils charged excessive fees. Regulation VIl cal<ed itself one for
the appointment of Vakils or native pleaders in the courts of civil judicature in the Provinces of
Bengal, Biharand Oriasa. The Regulation stated in its preamble the objects of its enactnent as follows
It is therefore indispensably necessary for enabling the courts duly to administer and the suitors
to obtain justice, that the pleading of causes should be made adistinct profession; and that no person
should be admitted toplead in the Court but men of character and education wellversed in the
Mohammedan or Hindu Law,and in the Regulations passed by the British Government;and that they
should be subjected to nules and restrictions calculated to secure to their clients adiligent and faithful
discharge of trusts.
The Regulation thus laid emphasis on the useful role, which a sound legal profession can play
inthe administration of justice. The Regulation was enacted with a view to strengthen the legal
profession in the best interestsof the litigant public, the members of the Bar serving as trustees of
their clients and thus helping in the sound administration of justice. The Regulation created for the
first time aregular legal profession for the Company sAdalats. The Regulation brought some order
and ameasure of quality to pleading and sought to establish practice of law as a regular profession. It
empowered the Sadar Diwani Adalat to enrollfrom time to time as many pleaders as it thought necessary
for all Company sAdalats and to fix the retaining fee for pleaders and also a scale of professional fee
based on a percentage of the value of the property. He could not demand or accept any fee, goods
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valuable consideration from his clients over and above the sanctioned fees. The ultimate
effects or The fees of the pleaders were payable
punishment for such aviolation was dismissal of the lawyer.
only after the decision, and not before. the Court being practically the paymaster.
party retained a pleader, he was to execute a
An interesting provision made was that affer a
him to prosecute or defend the
akutamama constituting him pleader in the cause and authorizing pleader might do or undertake
matter and binding himselfto abide by and confirm alB acts which such
in his behalf in the cause, in the same manner as ifhe has been personally present and consentng. I nis
provision is the genesis of the modern vakalatnama.
be enrolled
AM exrãordinary feature of this Regulation was that only Hindus and Muslims could
as pleaders. Persons for the purpose were to be selected from amongst the students of the
Mohammedan College at Calcutta and the HinduCollege at Benaras. The Courts exercised several
disciplinary powers over the Vakils. Apleader showing disrespect to the Court in open court could be
fined up to one hundred rupees by the court. The Court could suspend a pleader if convicted of
encouraging litigious suits, frauds, or gross misbehaviours. Further action against the lawyer coula be
taken by theSadar Adalat :AVakil found to charge more fee than authorised by the Regulation could
be dismissed by the Sadar Adalat.
From time to time several other Regulations were passed to regulate the legal profession in
the Company sadalats in Bengal, Bihar and Orissa. Regulation XXVIIof 1814, passed on 29th
November 1814, which consolidated the law on the subject. The purpose of the Regulation was that
the Sadar DiwaniAdalat was vested with all the power of appointment of Vakil and pleaders. The rule
concerning fees,practice were formulated in detail. Preference for enrolment of Vakil was to be
given to candidates educated in any of the Mohammedan or Hindu Colleges established or supported
by the Government.
Thepower of dismissing Vakils was vested in the Sadar Diwani Adalat as well as the Provincial
Court, and a Zillah and City Court could _uspend a Vakil.
Regulation V of 1831prescribed that Vakils need not be Hindu or Mohammedan, but could be
persons belonging to any religion. Bengal Regulation XIl of 1833modified the
earlier Regulations regarding selection, appointment and remuneration ofpleaders.provisions of the
permitted any qualified person of whatever nationality or religion to be enrolled as The a
Regulation
pleader of the
Sadar DiwaniAdalat. The parties were also given reedom to settle with the
professional services. Similar provisions camne to be made in course of pleaders any fees for their
time in the Provinces of
Madras and Bombay.
Afurther consolidation of the
Kegulatons relating to legal practitioners was effected by
Regulation Iof 1827, which repealed ai tne previous Kegulanons on the subject. This regulation went
much further than the Bengal RegulaMons, e-8"> every
Sanad to nractisewithout any reference to nis person duly qualified was entitled to get a
Tellgious
number of pleaders who were to be aamtted to prdeuse in taith; there was to be no restriction on the
a court and henceforth anv gualifednerson
of goodcharacter was entitled to a sanda o
Foadomofcontract between the Vakil and tne practuee. For the first time since 1793. the nrincinle of
cient was recognised and a lawyer could
client fora larger or a smaller fee than the established fee agree with his
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The Legal Practitioners Act, 1846 which was the first Al|-India Law concerning the pleaders
in the mofussil, made several important changes, namely
(1) The office of the pleader in the courts of the Company was thrown open to all
persons of
whatever nation or religion provided he was duly certified to be of good character and duly
qualified for the ofice. Thus,religious test was abolished for enrolment as a pleader.
(2) Every Barrister enrolled in any of Her Majesty s Courts in India was made eligible to plead in
the Sadar Adalats subject to the rules of those Courts applicable to pleaders as regards language
or any other matter.
(3) Vakils were allowed freedom to enter into agreement with their clients for their fees for
professional services. This Act is regarded as the first charter of the legal profession although
it left unsolved the important question of the right of Vakils to practise in the Supreme Courts.

The Legal Practitioners Act, 1853, declared every Attorney on the rollof any ofHer Majesty s
Supreme Courts to be entitled to plead in any of the Company s Sadar Adalats. The Barristers and
Attorneys of the Supreme Courts were permitted to plead in theCompany s adalats as well. Thus,
while Barristers and Attorneys were permitted to practise in the Company s adalats, the indigenous
Indian legal practitioners were rigorously kept out of thethree Supreme Courts. The reason was that
the authorities held apoor opinion of the native lawyers and it was thought that appearance of English
Barristers in the Company s adalats would improve the situation.
5) Pleader, Mukhtar, and Revenue Agents Act, 1865
For long there functioned non-licensed inferior grades of practitioners in the mo fussil, known
as Mukhtars, who practised in criminal courts as well as acted as solicitors for the pleaders. There
also functioned revenue agents in revenue offices. All these were recognized and brought under control
of thecourts for the first time through the Pleader, Mukhtar, and Revenue Agents Act, 1865. The High
Courts were authorised to make rules for the qualifications, admission, and enrolment of proper
persons to be Pleaders and Mukhtars, for the fees to be paid for the examination, admission and
enrolment of such persons, and for the suspension and dismissal ofPleaders and Mukhtars so admitted
and enrolled. Revenue agents who worked in the revenue offices and Courts were also given status as
legal practitioners by this Act. They were deemed to be the lowest in grade and did notplay a significant
part in the development of the legal profession.

HIGH COURTS
In 1861, legislation was passed by British Parliament to establish High Courts at Calcutta,
Madras and Bombay. At this time, there were in existence three bodies of practitioners in the Supreme
Courts and the Sadar Adalats -Advocates, Attorneys and Vakils.
The Letters Patent of 1865 of theHigh Court of Calcutta empowered the Court to approve,
admit and enrollsuch and so many Advocates, Vakils and Attorneys as to the said High Court shall
consider proper. These persons were authorized to appear for the suitors of the High Court, and to
plead or to act,or toplead and act for the said suitors, according as the High Court may by itsrules and
directions determine, and subject to such rules and directions.
Similar provisions were made in the Charters of the High Courts of Bombay and Madras.
 26333908.
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MAR. 2023)
PROFESSIONALETHICS AND CONTEMPT OECOURTLAW(EDITION
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Courts put an end to the monopoly,
Prof. Pathan s S.P. Law Classes, Pune.
beforethese High much
The admission of Vakils to practise preceding the High Courts. This very
Supreme Courts
in the opportunities and priileges
*inCi re baristers had enjoyed, Indian lawyers by giving them
inereased the practice and prestigeofthe lawyers.
equal to those enjoyed for manyyears by the British High Courts, speaking broadly, there were three
AcCording to therules framed by the Charter Barnsters
Vakils. Advocates were mainly the
Advocates and
catcgoneS of legal practitioners: Attornevs. Faculty of Advocates of Scotland. The Vakils were the
of England or Irelandor the members of the
Indian practitioners.
only Advocates were entitled to appear
lobegin with, on the Original Side of the High Courts High Court, Solicitors and Advocates
the
and plead, on instruction of Attorneys.On the original side of under the
remained distinct. This differentiation in the functions of legal practitioners was continued
wasthe successor of
notionthat the High Courts, in the exercise of its ordinary original jurisdiction,
theAppellate
the Supreme Court. On the other hand, the Advocates were entitled both to act and plead on High Court,
Side of the High Court and its subordinate courts. Thiswas because of the feeling that the
these
on its appellate side, inherited the jurisdiction and powers of the Sadar Adalats. Because of
distinctions, the akils were not allowed to act or plead on the original side, but they could both act
and plead on the Appellate Side.
Within ashort time,the Madras High Court altered its rules. As early as 1866, this Court
permitted Vakils admitted under the rules of 1863 and Attorneys to appear, plead and act for Suitors on
the original side. The result, therefore, was that in tbe Madras High Court there remained no distinction
between Barristers, Vakils and Attorneys as regards their right to appear and plead on the Original
Side. Under the new rules, while the Vakils and Attorneys could also act on the original side, the
Advocates had to be instructed by an Attorney.
The original side of the Bombay High Court wa_ initially aclose preserve of the Barristers as
Barristers alone could be enrolled as Advocates entitled to appear and plead on the original side on the
instruction of an Attomey. The Vakils were not originally permitted to act or plead on the original
side. This position, however, was relaxed in course ot tme and a non-barrister, on passing an examination
conducted by the High Court, became eligible ror enrolment as an Advocate entitled to appear and
nlead on theOriginal Side. The only lmitation was that the Advocates of the original side, whether
Barristers or non-Barristers, had to be instructea by an Attomey before they could appear and plead.
The Vakils ofthe Calcutta High Court were not
in anneals from the
entitled to act or plead on the original side or
original side. The Hign Court maintained this distinction right up to the vear
1932.
THE LEGAL PRACTITIONERS ACT, 1879
The Act of 1879. was enacted to
in sbe ofussil. The Actrepealed the consoidate and amend the law relating to legal practitioners
Pieaders, Mukntars and Revenue Agents Act. 1865 Atthis time.
there were six grades of practitioners functioning
in India.
Advocates,
Vakils of the High Court: Pleaders, mukhtars and revenue agents in the Solicitors
laid down standards for admission ofVakils to practice in the
(Attorneys), and
lower courts. The Highn Courts
were laid down in the Regulations, which were lower for
High Court; for Zilla Courts, standards
Vakils became a distinct grade above the Pleader. Pleaders than the High Court Vakils. Thus,
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The Legal Practitioners Act, 1879, brought all the six grades of legal practitioners into one
system under the jurisdiction of theHigh Courts. The Act empowered an Advocateor a Vakil on the
roll of any High Court to practice in his own High Court, in all the courts subordinate there to, in any
court in British India other than aHigh Court on whose roll he was not entered, or with the perrnission
of the court in any. High Court on whose roll he was not entered.
This Act conferred power on the High Court to make rules, with the previous sanction of the
provincial government, to prescribe the qualifications, admission and certificates of proper persons
to be Pleaders and Mukhtars of theHigh Court as wellas of the subordinate courts, and for suspension
and dismissal of these persons. But aChartered High Court could make such rules for Pleaders ard
Mukhtars of subordinate courts without the approvalof the Provincial Govemment concerned. Under
the rules framed by the High Courts under the Legal Practitioners Act, law graduates who didnot
possess the additional qualification to enable them to be enrolled as the High Court Vakils, and non
law graduates after passing the pleaders examination conducted by the High Court, were enrolled as
Pleaders to practice before subordinate courts. These Pleaders could not practice before the High
Court unless after a certain number ofyears practice they enrolled themselves as High Court Vakils.
In some Provinces, there were Pleaders of several grades, e.g. first, second or even third grades. In
course of time,the High Courts framed rules w/s. 6of the Act permitting only those who had taken an
LL.B.degree from an Indian University to enroll as Vakils. Besides the Pleaders, there were Mukhtars
who after passing the Matriculation or equivalent examination passed the Mukhtarship examination
held by the High Court. The Mukhtars pleaded mainly before the criminal courts. The Revenue Agents
were to be regulated by Rules made by the Chief Controlling Revenue Authority. The legalprofession
in India thus presented a very confused picture.
The Pleaders and Mukhtars ofthe High of the High Courts (except the Attorneys), and of those
of the subordinate courts, were subject to the disciplinary jurisdiction of the High Court under the
Act. The Attorneys of the three High Courts as officers of the court were, in matters of discipline,
dealt with by the High Courts under their Letters Patent.

Legal Practitioners Act, 1884 -

The power to make rules regarding Advocates of the High Court was also conferred on the
non-chartered High Courts by the Legal Practitioners Act, 1884. Such a High Court could make rules,
with the previous sanction of the Provincial Government, as to the qualifications and admission of
proper persons to be Advocates of the Court, and subject to such rules couldenrollso many Advocates
as it thought fit. The High Court could dismiss any Advocate or suspend him from practice after giving
him an opportunity of defending himself, butsuch an order needed the confirmation of the Provincial
Government.
The Calcutta High Court held that women were not entitledto be enrolled as Vakils or Pleaders
of Courts subordinate to the High Court. Asimilar case came before the Patna High Court. Miss
Hazara secured a B.L. Degree of the Calcutta University.She wvas refused enroiment as a Pleader. She
Challenged this in the HighCourt ofPatna.The Court ruled that the sections of the Legal Practitioners
Actreferred to males and not to females. This was to be expected as since 1793 nowoman had ever
been admitted tothe rollof pleaders.
 PROFESSIONAL ETHICS AND CONTEMPTOFCORILAWEDITiON MAR. 2023) 26333908.
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Prof. Pathan s S.P. Law Classes, Pune. Page : 14

Legal Practitioners (Women) Act, 1923 - enrolled and to practice as legal

cligibilitv of women to be
lo remove doubts about the 1923. was enacted to expressly provide that no
practttoners, the Lcgal Practitioners (VWomen) Act.
her sex be disgualificd from being admittedor enrolled as a legal
a ouid by reasononly of
began getting enrolled as legal
prachtioner or trom practicing as such. Since this enactment, women
practitioners and their number has been increasing ever since.

INDIANBAR COMMITTEE. 1923 (CHAMIER COMMITTEE)

The object ofthis Committee was to remove the distinction as to practice by BarTister and the
Vakil.The Barristers of Englandoccupied aprominent position in the legal profession because only
barrister could practice on the original side of the Calcutta High Court and Vakils were treated as
somewhat inferior to the Barristers. The Vakils started demanding that alldistinctions between them
andthe Barristers be remeved and also demanded for creating an AllIndia Bar in the country. Ihe
Indian Bar Committee considered the vital guestion of removing distinction existing at that time
between Barristers, Advocates, Attorneys and Vakils. The Committee made some suggestions towards
reducing distinction between Vakils and Advocate to achieve unification of grades of practitioners.
The Committee made following proposals -
(1) that in all High Courts, a single grade of practitioners entitled to plead, to be called Advocates
(not Barri_ters), should be enrolled, and that the grade of High Court Vakils orPleaders be
abolished;
(2) that when special conditions are maintained for admission to plead on the original side of a
High Court,the only distinction should be within that grade which should consist of Advocates
entitled to appear on theoriginal side and Advocates not so entitled:
(3) thatVakils fulfilling certain conditions be admitted to practice on the original side:
(4) that in future one-third of the High Court Judges need not necessarily be
that Advocates of one High Court should be entitled to practice in Barristers: and
(5) another High Court subject
to the conditions to be imposed by the Bar Council of the
latter court, or by the Court where
there is no Bar Council.
The Committee suggested that Bar Council
should be constituted for each High Court. But
immediately such Bar Councils were to be established for a
Councilshould have power to enquire into maters calling tor few and not all High Courts. The Bar
that the existing disciplinary jurisdictionof the disciplinary action against a lawver: but
chouldbe bound before taking disc1plinary action HighCourt should be maintained. The High Court
Councilfor inguiry and report. On receptol tne report against an advocate to refer the case to the Bar
trom the Bar Council, the Court could either
accept the report or hold afresh inquiry itself or require the Council to make
disciplinary powers of the Bar Council were to extend only to the further
Advocates practicinginquiry.
The
Court and not to the pleaders practicing in the lower Courts in the High
The Committee proposed that Bar Council
approval of the High Court concerned in respeCt of suchshould have power to nmake rules
() the qualifications, admission, and matters as under subject to the
Court; certificates of proper persons to be
(ii) legaleducation; Advocates of the High
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(i1) mattersrelating to discipline and professional conduct of Advocates etc.;

(iv) the term on which Advocates of another High Court could appear occasionally in the High
Court to which the Bar Council is attached;
() any other matter prescribed by the High Court.

THE INDIAN BAR COUNCILS ACT, 1926

Otn.The Bar Council s Act of 1926 was an important step towards creating an Autonomous
Legal Profession. Discuss.
Togive affect to the recommendations of theChamier Committee to some extent, the Central
Legislature enacted the Indian Bar Councils Act, 1926. The object of the Act -
(1) to provide for the constitution and incorporation of Bar Councils for certain Courts in British
India;
(2) to confer powers and impose duties on such Bar Councils, and
(3) to consolidate and amend the law relating to legal practitioners entitled to practice in such
Courts.
The purpose of the Act thus was to unify the various grades of legal practitioners and to provide
some measure of self-government to the Bars attached to the various Courts.
The Act extended to the whole of British India, but it was applied immediately only to the High
Courts of Calcuta, Madras, Bombay, Allahabad and Patna. The Act could be applied to such other
HighCourt as the Governor-General in Council may, by notification in the Official Gazette, declare
tobe High Court, to which the Act applied.
This Act dealt with the constitution and incorporation of Bar Council as a body corporate and
its powers of making bye-laws. There was to be Bar Councilfor each High Court. ABar Councilwas
to consist of 15 members as follows -
(1) Advocate-General;
(2) four persons nominated by the High Court, of whom not more than two could be the Judges of
that Co°t;
(3) ten members elected by the advocates of the High Court from anmongst thermselves.
ABarCouncil was to elect a Chairman and aVice-Chairman but in Madras, Calcuta and Bombay,
the Advocate-General was to be ex-officio Chairman of the Bar Council.
ABar Council could, with the previous consent of the High Court make rules of such matters
as -

(1) the rights and duties of the Advocates of the High Court and their discipline and profes_ional
conduct;
(2) the giving of facilities for legal education and training and the holding and conduct of
examinations by the Bar Council.
The Act also achieved some unification of theBar by eliminating the two grades of practitioners,
theVakils and the Pleaders by merging them in the class ofAdvocates who were entitled as of right to
practice in the High Court in which they were enrolled and in any other Court in British India, subject
to some exceptions.
S. 8provided that no person was to be entitled to practice in the High Court, unless his name
was entered in the roll of the Advocates of the High Court and maintained under this Act. The Attornevs
PROFESSIONAL ETHICS AND ONTEMPI OF COUR LAW EDITION MAR 2021} 26333908.
(Class) 25510256, (Res)
Prof. Pathan s S.P. Law Classes, Pune. Page : 16
prepare and
1igh Court, however, were not to be cntered in this roll. The High Court was to
o1 the The
arole of Advocates of the Hiph Court Acony thereof was to be sent to the Bar Council.
maintain Council. Thcapplication for enrolment
communicate any changes in the roll to theBar
igncounwas to decide all
Advocate was to be made to the Hioh Court The duties of the Bar Council were to
as an
enrolment, discipline and Control of the
maters concerning legal education., qualifications for sanction of the High Court, tomake
protession. The Bar Council was authorised with the previous had to provide
the High Court. The rules
rules toregulate theadmission of persons as Advocates of persons for admission as Advocates; the
1or such matters as - the qualifications to be nossessed by
giving of notice by the High Court to the Bar Councilof allsuch applications; and hearing by the High
admission of any applicant; and
Court of any objection preferred on behalfof the Bar Council to the The certificates of enrolment
maintained.
the form and manner in which the roll ofAdvocates was to be
Council.
to persons who were admitted as Advocates were to be issued by the Bar
any Advocate of
AHigh Court was authorised to reprimand, suspend or remove from practice
High Court was enjoined,
the High Court whom it found guilty of professional or other misconduct. The any other person, against
by
upon any complaint being made to it by any court or the Bar Council, orCouncil, or after consultation
any Advocate for misconduct, to refer the case for enguiry to the Bar
the complaint. The
with the Bar Council to the court of aDistrict Judge, unless it summarily rejectedotherwise reason to
it had
High Court wasempowered, of its own motion, to refer any case in which
to beconducted not by
believe that any such Advocate had been guilty of misconduct. The inquiry wasTribunal.
the The Tribunal
the whole Bar Council but by a committee oftheBar Councilto be called
was to consist ofbetween 3 to 5 members ofthe Bar Council appointed for the purpose of the inquiry
procedure
by the Chief Justice of the High Court. The High Court was to make rules to prescribe the
tobe followed by the Tribunal. The Tribunal was to report its conclusion to the High Court. The High
matte.
Court could accept or reject the tribunalfindings or could ask the Tribunal to reconsider the
er
Conclusion
The nower to enroll Advocates continued to remain in the High Courts and the function of the
RarCouncils was merely advisory. 1 he Bar CounclIS were not given any substantial authority or an
made by a Bar Council were subject to the approval of the High
autonomous status.The rules to be
Cout The High Court had effective disciplinary power over the Advocates, the role of the Bar Council
heing merelyadvisory. ABar Council could inguire into acomplaintof professional misconduct only
when the matterwas referred to it by the High Court and even then the findings of the Bar Council
Court.
were not binding on the High

3. DEVELOPMENT OFLEGALPROFESSION IN INDIAAFTER INDEPENDENCE

ALL INDIABAR COMMITTEE, 1951

Introduction:
Ttiee SR Das of Supreme Court neaded nisCommitee. This committee s renort islandmark nc
recommendations
in the history of legal profession. Its fulfilledthe demands of lawyer s who wanted o
it for years together. Folowing are ne man propoSals made by the committee. In place ofthe existing
 PROFESsIONAL ETHICS AND CONTEMPT OF COURT LAW (EDITION MAR. 2023)

|Prof. Pathan s S.P. Law Classes, Pune. Page : 17 (Class) 25510256, (Res) 26333908.
hierarchy of different grade of legal practitioners in different Courts, with different educational
Oualifications etc. there was need of unificd Bar consisting of single type of practitionersto be called
as Advocates.
The legal profession should be given an allndia Organisation by constituting an All India Bar
Council in addition to the State Bar Councils.
There was thus a wide-spread demand for establishing an all-India Bar. In this situation, the
Government of India took the view that, in the changed circumstances, it was necessary for it to
sponsor a Bill for setting up an all-India Bar Council. Accordingly, in 19S1, the Government of India
constituted aCommittee under the Chairmanship ofJustice S.R. Das of theSupreme Court to examine
and report on -
a) The desirability and feasibility of acompletely unified Bar for the whole of India;
(b) The continuance or abolition of the dual system of counsel and solicitor (or agent) which
obtains in the Supreme Court and in the High Courts at Bombay and Calcutta;
(C) The continuance or abolition of different classes of legal practitioners, like Advocates of the
Supreme Court, Advocates of the various High Courts, District Court Pleaders, Mukhtars
(entitled to practice in criminal courts only), revenue agents, income-tax practitioners, etc.;
d) The desirability or feasibility of establishing a single Bar Council :
() for the whole of India, or
(ii) for each State;
(e) The establishment of a separate Bar Council for the Supreme Court;
() The consolidation and revision of the various enactments (Central as well as State)
legal practitioners; and relating to
g) Allother connected matters.
The Committee reported in 1953 and recommended the creation of a
Committee recommended that all grades of legal practitioners be abolishedunified national Bar. The
and that one integrated
and autonomous all-India Bar be formed. There should be a
common rollofAdvocates who would be
entitled to practice in all courts in the country. The Committee
and maintenance of one comprehensive common roll accordingly suggested compilation
The establishment of a unified All-India Bar ofAdvocates.
minimum qualification to be possessed by theAdvocates. necessarily would require the prescription of a
The Committee suggested that the uniform
minimum qualification for admission to the roll ofAdvocates should be a law degree from a university
obtained after at least a two-year study of law after
having the minimum qualification may apply for enrolment graduation. As regards new entrants, a candidate
as an Advocate to any State Bar
on hisname being entered in theregister of
Advocates of the State, his
Council.
the common roll of Advocates name would also be entered in
maintained
The Committee was of the view that
by the All IndiaBar Council.
Committee also recommended the creation of different classes of legal practitioners be abolished. The
an All India Bar Council and State
COmmittee suggested that in the interests of an Bar Councils. The
autonomous
Suspension and removal ofAdvocates be vested in the Bar national Bar, the power of enrolment,
need rora separate Bar Council for the Councils. The Committee did not feel the
Supreme Court.
maintained by the All-India Bar Council would be entitled as ofEvery Adyocate on the common roll to be
and be amenable to the right to practice in the Supreme Court
Council. jurisdiction of the appropriate State Bar Council and of the Alf India Bar
 (EDITION MAR. 2023)
PRoESsONAL ETHICS AND CONTEMPTOFCOURTLAW
Page : 18 (Class) 25510256, (Res) 26333908.
|Prof. Pathan s S.P. Law Classes, Pune.
LAW COMMISSION REPORT- 1958
for a long time by the
The report of All India Bar Committee, 1951 was not acted uponrecommended establishment
Government. The Commission of Indiain its 14"report of 1958 again
with right to practicein allthe
of unifiedAllIndia Bar and preparation ofacommon role ofAdvocates Bar Committee, 1951. The
Courts. The Commission fully agreed the recommendation of the therefore the Bar Council
Bar and
(ommissionalso emphasised the principle of autonomy of themembers of the profession. The Bar
oughtto be entirely autonomous bodies consisting only of the expressed the hope that a unified Bar
Council would elect their ownChairman. The Law Commission persons associated together,
would bring into existence and influence brotherhood ofhighly educated
in a commonprofession with common interest and common ideas.
THE ADVOCATESACT, 1961
to the amendment in the
(1) Discuss the provisions of The Advocates Act 196lwith reference
law relating to legal practitioners.
(2) Elaborate upon the background of the enactment of Advocates Act in 1961
(3) Explain the provisions ofAdvocate s Act, 1961.
(4) Discuss the nature ofBar Council of Indiaand its functions. the law relating to
In 1961, Parliament enacted the Advocates Act to amend and consolidate
Councils and an All-India Bar
legal practitioners, and to provide for the constitution of State Bar and the Law
Council. The Advocates Act implements the recommendation of the Bar Committee
Commission with some modifications. It repeals the Indian Bar Councils Act, 1926, the Legal
Practitioners Act, 1879, and other laws on the subject. The Act has undergone several amendments
since its enactment in 196l. The Act extends to the whole of India.
The Act establishes an All-India Bar Council for the first time.The Attorney-General ofIndia
and the Solicitor-General of India are the ex-officio members of the Bar Council of India. Besides, it
has one member elected by each State Bar Council from among its members. The Council elects its
own Chairman and Vice-Chairman.
Bar Councilto be abody corporate, S. 5
Every Bar Council shall be abody corporate, having perpetual succession, agreat seal, with
pOwer to acquire and hold property, bothsued.
movable and immovable, and to contract and they may by the
name by which it is known sue and be
Functionsof Bar Council of India-
S. 7 of the Advocates provides that the function of the Bar Council of India shall be -
(i) tolaydown standards of professionalconduct and etiquette for advocates:
(iü) to lay down the procedure to be followed by it sdisciplinary committee and the disciplinary
committee of each State Bar Council:
(iii) to safeguard the rights, privileges and interests of advocates;
(iv) to promote and support law reform;
(v) to deal with and dispose of any matter arising under this act which may be referred to it by a
State Bar Council;
(vi) toexercise general supervision and control over State Bar Council; in consultation with
(vii) to promote legal education and to lay down standards of such education
the Universities in India importing such education and the State Bar Councils;
 PROFESSIONAL ETHICS AND cONTEMPT OF COURT LAW (EDITION MAR. Z025)

S.P. Law Classes, Pune. Page : 19 (Class) 25510256, (Res) 26333908.

Prof. Pathan s
enrollment as an
(vii) t0 recognize Universities whose degree in law shall be a qualification for
advocate and for that purpose to visit and inspect Universities or cause the State Bar Councils
to visit and respect Universities in accordance with such directions as it may give in this behalf;
(x) to conductseminars and organize talk on legal topics by eminent jurists and publish journals
and papers of legal interest;
(X) to organize legalaid to the poor in the prescribed manner;
(xi) to recognize on areciprocal basis foreign qualifications in law obtained outside India for the
prpose of admission as an advocate under this Act;
(Xii) tomanage and invest the funds of the Bar Council:
(Xiii) to provide for the election of its members;
(av) to perform all other functions conferred on it by or under this Act;
() to do allother things necessary for discharging the aforesaid functions.
S.7-A of the AdvocatesAct, makes itclear that the Bar Council of Indiamay become amember
of international legal bodies, such as, the International bar Association or the International legalAid
Association.Contribute such sumns as it thinks fit to such bodies by way of subscription or otherwise
and authorize expenditure on the participation ofits representatives in any international legal conference
or seminar.
S. 7(2) of the Advocates Act provides that the Bar Council of India may constituteone or more
funds in the prescribed manner for the purpose of
a) giving financial assistance to organize welfare schemes for indigent, disabled or other advocates;
(b) giving legal aid or advice in accordance with the rules made in this behalf;
establishing law libraries.
It may receive any grants, donations, gifts or benefactions for all or any of thepurposes specified
above and such grants, donations, etc. shall be credited to the appropriate fund or funds constituted
under this sub section.
The Act creates a State Bar Council in each State. It is an autonomous body. The Advocate
General of the State is its ex-officio member, and there are 15 to 25 elected Advocates. These members
are to be elected for aperiod of five years in accordance with the system ofproportional representation
by meansof single transferable vote from amongst Advocates on the Roll of the State Bar Council.
The State Bar Council has power to elect its own Chairman. The main powers and functions of the
State Bar Council are
Otn. What are the functions of State Bar Council?
The functions of a State Bar Council shall be -
(a) to admit persons as advocates on its roll;
(b) to prepare and maintain such roll:
(c) to entertain and determine cases of misconduct against advocates on its roll;
(d) to safeguard the rights, privileges and interests of advocates on its roll;
(e) to promote and support law reform;
(ee) to conduct seminars and organize talks on legal topics by eminent jurists and publish
journals and papers of legal interests;
(eee) to organize legal aid to the poor in the prescribed manner;
() to manage and invest the funds of the Bar Council:
(g) to provide for the election of its members:
 (EDITION MAR, 2023)
AND C NTEMt0CRILAW
X,HASNINA THR
Page : 20 (Class) 25510256, (Res) 263339
'ot P'athans S.P. Law Classes, IPune.

perform all other functions conferred on it by or under this Act;

to
other things necessary for dischargingthe aforesaid functions.
() to do all funds in the prescribcd manne for the
purpoe
or more
AState Bar Council mayconstitute one
of.
assistance to organize welfare schemes for the indigent, disabled or
(a) giving financial
other advocates:
(b) financial assistance to organize welfare schemes for the indigent, isabled or
giving
other advocates;
donations, gifts or benefactions for all or any of
AState Bar Council may receive any grants,
purpose specified in sub section (2) which shallbe created to the appropriate fund or
the
funds, constituted that sub section.
a roll ofAdvocates and an authenticated
Thus,every State Bar Council prepares and maintainsapplication forAdmission as an Advocate
copy of the roll is to be sent to the Bar Council of India. An to practice. AStzte
is made to the State Bar Council within whose jurisdictionthe applicant proposes the Council from
Bar Councilhas an Enrolment Committee consisting of three members elected by Where
amongst its members.The Enrolment Committce has to dispose of applications for admission.
the EnrolmentCommittee proposes to refuse any such application, it has to refer the same for opinion
tothe Bar Council of India.
The Bar Council of India regulates the content, syllabi, duration ofthelaw degree. Subject to
the provisions made by the Bar Council, cach University can lay down its own provisions and regulations
conceming the law degree. To perform its functions regarding legal education it is assisted by aLegal
Education Committee consisting of ten members, five being members of the Bar Council of India
and five c0-opted by the Council who are not members thereof. The idea is that the co-opted members
would mainly be law teachers.
The finances of the Bar Councils are essentially met out of the enrolment fees of the Advocates.
Twenty per cent of the fees realized are paid by each State Bar Council to the Bar Council of India
Besides,the Bar Councils may receive donations and grants.
The Bar Councils can frame rules for carrying out their functions and purposes. The rules
made by the State Bar Council have to be approved by the Bar Council of India. The Central Government
has been given an overriding power of mak1ng rules on any matter. There was no such provision oniginally.
This provision was inserted in the Act in 1964. This provision has been criticized as amounting toa
threat to the independence and autonomy of the Bar Councils. For instance, the Bar Council of
Maharashtra objected through astrongly worded resolution on 23.3.1968,when the CentralGovemment
bymaking rules w/s. 49-A permitted enrolment as Advocates of persons holdingthe LL.B. degree
without undergoing the course of training and passing an examination as originally prescribed under
the Act.
The aualifications for admission as an Advocate are citizenship of India, 21 years of age,
and
LL.B. Degree from an Indian University. A foreign national can also be enrolled on the basis of
reciprocity if an Indian citizen is permitted to practice in that country. Foreign Law Degrees can also
be recoonised by the Bar Councilof India for the purpose. The privilege of
enrolmentas an
has also been extended to the carlier Vakils, Pleaders and Mukhtars and to some others underAdvocate
specified
conditions.
Pref. Pathan s S.P. Law Classes, Pune. Page : 21 ?(Class) 25510256. (Re) 2633399%.
Advocateo
The Act recognises only one single clasSsof practitioners, namely,Advocates. An
court
the Siate roll isentitled to practice as of ight before any tribunal, or authority in india, or any
inclucing the Supreme Court. shall be
AHigh Court may make rules laying down the conditions subject to which an AdvocateCouncil of
the Bar
perted to practice in the High Court and the subordinate courts. U/s. 49(1 Nah),
shall have the nght to
Indacan makerules prescribing the conditions subject to which an Advocate
Dractice.
Advocate may,
Advocates have been classified into Senior Advocates and other Advocates. An
Court or a High Court is of
wit his consent, be designated as a Senior Advocate if the Supreme
opinion that by virtue of hisability, experience and standing at the Bar he is deserving of suchdistinction
restrictions as the Bar Councilof
Serior Advocates are, in the matter of their practice, subject to such
Ind:a may. in the interests of the legal profession prescribe.
and improvement of the
Thus, admission, practice, ethics, privileges, regulation, discipline
profession has achieved its long
profession are now all in the hands ofthe profession itself. The legal
chershed object of having a unified Bar on an All-India basis.
PROFESSION ININDIA
IMPACT OF GLOBALIZATION ON LEGAL
practice in the country,
The Supreme Court held that foreign law firms and lawyerS cannot
in and fly out basis for rendering legal
even as it allowed casual visits by foreign lawyers on a fly
advice toclients in India.
process, a bench comprising Justices Adarsh Kumar Goel and U.U.Lalit modified a
In the
law firmsto come to India on fly in and fly
Madras High Court order permitted foreign lawyers andlaws and diverse international legal issues.
offshore
out basis for rendering legal services here on only cover a causal visit not amounting to
W e hold that the expression fly in and fly out will himself to fly in and fly
lawyer was limiting
practice. In case of adispute (over) whether a foreignadvice to clients in India regarding foreign law
legal
outon (a) Casual basis for the purpose of giving
international legal issues or whether in substance he was
or their own svstem of law and on diverse
prohibited can be determined by the Bar Council of India (BCI), the bench
doing practice which is
ruled.
said that the BCIor the central government would be at liberty to make appropriate
The Court applicable to foreign lawyers and
including extending the code of ethicsbeing
rules in this regard
Council Rules, the court said, we uphold the view
entitles.
Refenring to the Advocates Act and the Bar that
Bombay High Court and Madras High Court in para 63 (i))of the judgment to the efYect
of the
foreign lawyers cannot practice profession of law in India, either in
TOreign law firms companies or
the litigation or in non-litigation side. be barred from coming to India for conducting
clarified that foreign lawyers could not
The Court international commercial arbitration, but added that they
aroitration proceedings in disputes involving India.Rules of instituional
nd to the legal profession in
would be subject tothe code of conduct applicable
of arbitration will apply to them, the court said. completely
1s0 also modified provisions of theAdvocates Act, 1961, debarring foreign lawyers hat BPO
It arbitration in the country. Similarty, it heid
ate
ied rom conducting international commercial
 COURT LAW (EDITIONMAR. 2023) 26333908
PROFESSIONALETHICS AND CONTEMPT OF
Page : 22 S (Class) 25510256, (Res)
S.P. Law Classes, Pune.
Prof. Pathan s
services did not come within the purview of the
proof reading
companies providing services, and appeal by the Bar Council of India against the 2012 judgment of
Advocates Act. The ruling came on an
the Madras High Court. globalization of the legal sector for now, it shifts the onus on
While the ruling does not permit president of the Society of Indian Firms (SIF),a body of
Bhasin,
the government to do so. Lalit committed to open up its services sectors under World Trade
corporate law firms, said, India is as well. The government has called up from time to
Organisation (WT0),which includes law firms government scourt.
well as but nowtheball is in the
representations as
time and we have made our ofLakshmikumaran and Sridharan Attorneys, a law fim
V. Lakshmikumaran, managing partner
matters, said, we expect that the Bar Council of India and central
special1zing in international trade entry of law firms and simultaneously ease the
appropriate rules for phased
government will frame playing field, so that the ultimate benefit percolates
restrictions on domestic law firms to provide a level
to the clients.
Madras High Court ruling of 2012 has said that there was no bar on foreign lawyers, under
The basis for rendering legal advice to
regulations, visiting India on a fly in and fly out
Indian laws and could not be barred from coming to India for
their clients in India. It was added that foreign lawyers
international commercial arbitration.
conducting arbitration proceedings in disputes involving said that foreign law/firms
On similar lines, the 2009 ruling of the Bombay High Court litigation or non-litigation
companies or foreign lawyers could not practice law in India either in the
side.
In January, the centre told the Apex Court that the BCI should consider framing rules to open
process.
up the legal sector to foreign lawyers and law firms, failing which it would step in to assist the
BCI, on its part, showed reservations to opening up the legal field to foreign players, it
maintained that although it is not averse to the idea of practice of law by foreign lawyers and firms, it
should be based on reciprocity and regulated by the Advocates Act. The fly in fly out policy also
should be subject to the Indian regulatory framework practice law in India, i.e., advocates admitted on
the State Bar Councilrills. Senior advocate C.U.Singh, appearing for BCI, had said.
It was also BCI scontention that arbitration must also be subject to BCI regulations, as it was
the top regulating body for legal practices in India.
This was opposed by Dushant Dave, counsel for London Council of Arbitration,who argued
that this would result in being a dampener for commercial arbitration. He quoted examples of Indian
lawyers participation in commercial arbitration proceedings in other countries like Singapore and the
UK without the need to acquire any special permissions.
Arvind Datar, who represented six UK-based law firms, said as oftoday, there was no regulatory
mechanism under the Advocates Act, 196lto allow or disallow foreign lawyers/firmns as the trend of
cross-border, international commercial law had not been anticipated under it.