This article was written by Michael Shriney and further updated by Monesh Mehndiratta. The present article gives an overview of the Advocates Act, 1961 and explains its provisions. It provides the division of the Act, its features and important provisions related to the admission of advocates and their enrolment, the constitution of the State Bar Council and the Bar Council of India, punishment of advocates for misconduct, etc. 

Table of Contents

Introduction 

Have you ever approached an advocate?

Do you know that there is legislation in place that governs the activities of advocates and people belonging to the legal fraternity? Do you know how an advocate gets enrolled and becomes eligible to practise?

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You might have these questions in mind whenever you approach an advocate but it is possible that you have not asked them or missed asking them. This brings us to the present article, which will answer all such questions. The present article provides an overview of the Advocates Act, 1961, which regulates and governs the activities of advocates and their profession in the country. From enrollment and admission of advocates to the constitution and functions of the Bar Council of India and the State Bar Council, the Act provides all the necessary provisions. It provides provisions for the punishment of advocates in case of professional misconduct and also provides powers to the central government. The Act also recognises the right of advocates to practise when enrolled. Let us delve further into the Act and understand its provisions. 

History of the Advocates Act, 1961

The legal profession is not new to India. It has existed since the emergence of society. The legal profession has played a pivotal role in the administration of justice throughout history and its development has been marked by significant milestones. India was a colony of Britain and was ruled by the British government for over two centuries. All the laws, reforms, infrastructure and earlier developments in the country have been inspired by British policies, as have the judicial system and legal profession. First court was established by Governor Aungier in 1672.  However, there were no legal practitioners in the country prior to the establishment of the Mayor’s Court in 1726 in Madras and Calcutta. These courts were known as the Crown Courts with the right to appeal. The first appeal could be made to the governor-in-council and the second appeal to the privy council. A strong need for experienced lawyers and attorneys was felt by the judges in 1771 and so the role of attorney was upheld in each Mayor’s Courts. The courts were also given the right to dismiss an attorney guilty of misconduct. Another milestone in this era was achieved with the establishment of the Supreme Court in 1774 through a royal charter. Similar courts were established in Madras and Bombay in 1801 & 1823, respectively. 

The courts were further given the right to admit, discipline and dismiss attorneys and barristers. The court approves, admits and enrols advocates and attorneys to plead and act on behalf of suitors.  Later, the High Courts were established in Calcutta, Madras and Bombay in 1862. The High Court bench was designed in a manner to combine the practice of the Supreme Court and Sudder Court traditions. The purpose was to combine legal learning and judicial experience in the process. These courts were also given the power to make rules regarding the qualifications of advocates and attorneys and their registration and enrollment at the bar. Similar courts were established in Allahabad, Patna and Lahore in 1886, 1916 and 1919, respectively. 

Prior to independence, statutes like the Legal Practitioners Act, 1879, and the Indian Bar Councils Act, 1926, governed the legal profession. The Legal Practitioners Act, 1879, was enacted and implemented to bring all six grades of the legal profession (advocates, attorneys, vakils, pleaders, mukhtars and revenue agents) under one umbrella. On the other hand, the Indian Bar Councils Act, 1926, was enacted to bring various grades of the legal profession under one umbrella and to promote self-governance at the bar councils. Each High Court under the Act was under obligation to constitute a bar council with the following members:

  • Advocate General, 
  • Four men were nominated by the court, out of whom two must be judges and 
  • Ten members are elected from the bar. 

After independence and enforcement of the Indian Constitution, 1950,  an annual meeting of the inter-university board was held in Madras, wherein a resolution was passed. This resolution highlighted the need for an All India Bar, which would further bring uniformity in standards related to the legal profession and law examinations in different universities in the country. Another conference named the Madras Provincial Lawyers Conference was held in May 1950 under the leadership of Shri S. Varadachariar. It was recommended that the government should appoint a committee to propose a scheme for an All India Bar and suggest amendments to the Indian Bar Councils Act to bring conformity to the laws. The resolution was further adopted by the Bar Council of Madras on October 1, 1950. 

A comprehensive bill was introduced by Shri Syed Mohammed Ahmad Kazmi on April 12, 1951. This bill proposes amendments to the Indian Bar Councils Act. Later, a committee was constituted under the leadership of the Honourable Judge of the Supreme Court, Shri S.R. Das, to:

  • Examine the desirability and feasibility of a unified bar for the entire country.
  • Prepare a report on whether to continue or abolish the dual system of counsel and solicitor.
  • Prepare reports on different classes of legal practitioners, like Supreme Court advocates, high court advocates, muktars (who practise in criminal courts), revenue agents and income tax practitioners.
  • Examine the consequences of establishing a separate bar council for the Supreme Court. 
  • Report on revision of central and state enactments. 
  • To make suggestions regarding the establishment of a bar council for the entire nation and State Bar Councils in every state. 

The committee, consisting of the Attorney General of India, retired high court judges, the Advocate General of Madras, etc., submitted its detailed report in March 1953. The report proposed the constitution of bar councils in each state and an All India Bar Council at the national level to regulate the profession and set standards for it. Finally, in 1961, the Advocates Bill was introduced in Parliament to implement the recommendations of the committee. The Bill was further enacted as the Advocates Act, 1961, which regulates the legal profession till date. 

The Advocates Act, 1961, provides rules and regulations governing the conduct of advocates and legal practice. The Act recognises the right of advocates to represent clients before all courts and tribunals in all states of India. However, an advocate can only register himself in one State Bar Council but can always transfer his or her name from one State Bar Council to another. The present Act of 1961 has been enacted to implement the recommendations of the All India Bar Council Committee, along with the 14th report of the Law Commission in 1955. The purpose of the Act is to outline the qualifications of an advocate, his or her registration and enrolment, provisions for the conduct of advocates, constitution of bar councils, etc.

Division of the Act

The Act is divided into 7 chapters, 60 sections and 1 schedule. The chapters provide for the following:

  • Chapter I deals with definitions and applicability of the Act.
  • Chapter II provides the composition of State Bar Councils and Bar Council of India, their functions, tenure, qualifications and disqualifications of members etc. 
  • Chapter III provides provisions regarding the admission and enrollment of advocates.
  • Chapter IV deals with the right of advocates to practise.
  • Chapter V provides provisions regarding the conduct of advocates and punishment for misconduct, along with remedies.
  • Chapter VI provides provisions related to penalties for illegal practices, financial assistance to bar councils, etc.
  • Chapter VII deals with temporary and transitional provisions for example, term of office for members of the first State Bar Council, dissolution of the bar council, power of central government, special provisions during the transitional period, etc. 

Objective and applicability of the Act

The Advocates Act, 1961, received the assent of the President on May 19, 1961 and is applicable to the whole country. It has been enacted with the objective to:

  • Consolidate and amend laws relating to the legal profession and practitioners.
  • The Act also aims at constituting the bar council and State Bar Council in each state.
    • It also provides powers to the Bar Council of India to make rules and guidelines in order to regulate the universities involved in teaching law. 

Features of Advocates Act, 1961

  • The Act provides for the establishment of the Bar Council of India and State Bar Councils.
  • It sets the procedure for the registration of advocates and their enrolment at the bar.
  • The bar council has been recognised as a self-governing authority. 
  • It recognises the right of advocates to practise. 
  • It gives the Bar Council of India to provide regulations for the State Bar Councils in order to supervise and control them. 
  • A record containing names of senior advocates and other advocates has to be maintained by every State Bar Council.  
  • The purpose of the Act is to focus on the consolidation of existing laws for the conduct of advocates and the legal profession.
  • The Bar Council also regulates the conduct of universities offering courses related to law necessary for the registration of advocates.
  • Every state is required to have its own State Bar Council under the supervision of the Bar Council of India. 
  • State Bar Councils have the same responsibilities as the Bar Council of India but can only exercise such responsibilities and powers in their state of jurisdiction.

Important definitions under the Act

  • Advocate: The term ‘advocate’ is discussed under Section 2(1)(a) of the Act. A person who has registered on any roll created by this Act is an advocate. There were various classifications of legal professionals known as pleaders, vakils, lawyers, and attorneys before the enactment of this Act.
  • Appointed day: The term ‘appointed day’ is discussed under Section 2(1)(b) of the Act. The term ‘appointed day’ refers to the day the Provisions took effect.
  • Bar Council of India: The word ‘Bar Council’ is covered by Section 2(1)(e) of the Act. Section 4 of the Act establishes the Bar Council for the territories to which the Act applies.
  • Law graduate: The word ‘law graduate’ is discussed under Section 2(1)(h) of the Act. A person is referred to as a law graduate if they have completed a bachelor’s degree in law from any university recognised by Indian law.
  • Legal practitioner: The word ‘legal practitioner’ is covered by Section 2(1)(i) of the Act. A legal practitioner is a person who is an advocate or vakil in any High Court, as well as a pleader, mukhtar, or tax agent.
  • High Court: The term ‘High Court’ is covered by Section 2(1)(g) of the Act. The term ‘High Court’ does not include a court for judicial commissioner, except in Sections 34(1) and 34(1A), as well as Sections 42 and 43. The term High Court in relation to a State Bar Council means:
    1. If a State Bar Council is established for a state or for a state and one or more union territories, the High Court for the state.
    2. If a bar council is constituted for Delhi, the High Court of Delhi.
  • Roll: The term ‘roll’ is discussed under Section 2(1)(k) of the Act. Under this Act, rolls are recorded and maintained. It is a list of advocates or legal practitioners who practise in a court or who are frequently present in court.
  • State: The term ‘State’ is discussed under Section 2(1)(l) of the Act. A state is a country or territory that is organised as a political community and has a single state government under the territory. The union territory is not included as a state 
  • State roll: The term ‘State roll’ is discussed under Section 2(1)(n) of the Act. According to Section 17, a State Bar Council must record, prepare, and maintain a state roll, which is a list of advocates.

Provisions related to State Bar Councils under the Act

Chapter III deals with the State Bar Councils. It provides that every state is required to constitute a State Bar Council. It further provides their constitution, tenure, functions and powers. Let us understand them in detail. 

Composition of State Bar Councils

Section 3 of the Act provides the composition of State Bar Councils. It provides that:

  • In the case of Delhi, the State Bar Council will consist of the Additional Solicitor General of India, while other State Bar Councils will consist of Advocate General. 
  •  A State Bar Council with an electorate of less than five thousand members will consist of 15 members. 
  • A State Bar Council with an electorate of 5,000-10,000 members must have 20 members, while a State Bar Council with an electorate of more than 10,000 members will consist of 25 members. 
  • It will also consist of a chairman and vice-chairman elected by the council. 

These members will be elected by proportional representation through a single transferable vote. It also provides that half of the elected members must have been advocates for at least 10 years, which will include the period during which they were enrolled as advocates under the Indian Bar Councils Act, 1926. However, Section 3(4) provides that an advocate will be disqualified from elections if he does not fulfil the criteria and qualifications for the same. 

Term of office of the members of councils

According to Section 8 of the Act, the tenure of office of members of every State Bar Council will be five years from the date when the results of elections have been published. Every State Bar Council is under an obligation to conduct elections before the expiry of the above-mentioned term and if it fails to do so, the period can be extended to six months. Section 5 further provides that every bar council is a corporate body having perpetual succession and a common seal, along with the power to acquire and hold movable and immovable property and to sue and be sued in its own name. 

Functions of State Bar Councils

Section 6 of the Act provides the functions of the State Bar Councils:

  • Admit advocates on a roll. 
  • Prepare and maintain the roll. 
  • Determine cases of misconduct against advocates on a roll.
  • Promote the growth of bar associations. 
  • Safeguard the rights, interests and privileges of advocates. 
  • Support and promote the reformation of law.
  • Conduct seminars, organise talks on legal topics by famous and eminent jurists and publish papers and journals in the legal area.
  • Organise legal aid.
  • Manage and invest funds of the council. 
  • Visit and inspect universities. 
  • Organise legal aid to help the poor.
  • Conduct elections of its members. 
  • Organise funds for providing financial assistance for welfare schemes for indigent, disabled or other advocates, provide legal aid and establish law libraries. 
  • The State Bar Councils can also receive gifts, donations and grants in this regard, which will be credited to their appropriate funds.

Provisions related to the Bar Council of India

The Act also provides provisions for an All India Bar Council known as the Bar Council of India (BCI), whose jurisdiction extends to the whole country. Let us understand about the BCI in detail. 

Composition of the council

Section 4 provides that the Bar Council of India will consist of:

  • Attorney General of India.
  • Solicitor General of India.
  • One member of each State Bar Council is elected among its members. 
  • Chairman and vice-chairman to be elected by the council.

Term of office of members 

The term of office of members of the BCI is as follows:

  • If a member belongs to the State Bar Council and holds office as an ex-officio member, the tenure will be two years from the date of his election or until he ceases to be a member of the State Bar Council. 
  • For any other member, tenure is the period until he holds office as a member of the State Bar Council.

All the members are supposed to hold office until their successor is elected.

Disqualification of members of the council

According to Section 10B of the Act, an elected member will be disqualified on the following grounds:

  • Absence from the three consecutive meetings of the council without excuse.
  • The name is removed from the roll of advocates.
  • Disqualified under the rules made by the BCI. 

Functions of the Bar Council of India 

Section 7 provides the functions of BCI:

  • To provide standards of professional conduct and etiquette for advocates.
  • To provide the procedure for its disciplinary committee and that of each State Bar Council. 
  • Safeguard rights, interests and privileges of advocates.
  • Support and promote the reformation of law. 
  • To deal with and dispose of matters arising under the Act.
  • Exercise control and supervision over the State Bar Council.
  • Promote legal education and provide standards for the same to the universities and State Bar Councils.
  • Recognised universities providing degrees for the qualification and enrolment of advocates. 
  • Visit and inspect universities.
  • Conduct seminars.
  • Publish journals on legal topics. 
  • Organise legal aid.
  • Recognise foreign qualifications for admission as advocates.
  • Manage and invest funds of BCI.
  • Election of members.
  • Constitute funds for providing financial assistance to organise welfare schemes for the indigent, disabled and other advocates, organising legal aid and establishing law libraries. 

Powers of the Bar Council of India under the Act

According to Section 15 of the Act, the Bar Council of India can make rules regarding:

  • Election of members of the council by secret ballot, along with conditions to be imposed to decide who can exercise the right to vote. 
  • Preparation and revision of electoral rolls and manners of publishing the results.
  • Manner of election of chairman and vice-chairman of the Bar.
  • Manner in which the disputes regarding the election of chairman and vice-chairman are decided.
  • Filling of casual vacancies in the council.
  • Powers and duties of chairman and vice-chairman of the council.
  • Constitution of the funds of the Council in order to provide financial assistance or legal aid.
  • Organise legal aid and advice for the poor and constitution of various committees in this regard.
  • Summoning and conducting meetings.
  • Functions of various committees of the council and their constitution.
  • Qualifications for the post of secretary, accountant and other employees of the bar.
  • Maintaining account books.
  • Appointment of auditors and audit of the accounts.
  • Management of the funds of the council.

Constitution of committees 

The Act also provides for the constitution of various committees in order to perform specific functions and fulfil the purpose.

Special committee 

A special committee is to be constituted by the bar council according to Section 8A of the Act if the State Bar Council fails to conduct elections of its members before the expiry of its term. The committee will consist of:

  • Ex officio member of the State Bar Council. If there is more than one such member, the senior member will be part of the committee and be the chairman.
  • Two members were nominated by the bar council.  

All the properties and assets of the State Bar Council will vest with the committee upon its constitution, along with all the rights, liabilities and obligations. Any disciplinary matter or proceeding will be transferred to the committee. The special committee is supposed to conduct elections within 6 months, but where it cannot do so, the Bar Council of India can extend the time period for reasons stated in writing. 

Disciplinary committee 

The bar council has been empowered under the Act to constitute one or more disciplinary committees under Section 9. It provides that the committee will consist of three people, of whom two will be elected and the other co-opted by the council. The purpose of the committee is to deal with any complaint regarding misconduct against the advocates. 

Legal aid committee 

Section 9A provides the constitution of one or more legal aid committees, which consist of a minimum of five members and not more than nine members. 

Other committees

Section 10 provides for the constitution of other committees:

  • The executive committee has nine members elected by the council.
  • The legal education committee has ten members. 

The section also provides that the State Bar Councils can constitute the following committees:

  • The executive committee has 5 members elected by the council.
  • The enrollment committee has 3 members elected by the council. 

Admission and enrolment of advocates under Advocates Act, 1961

Chapter III of the Act provides provisions for the registration and enrolment of advocates.  Section 25 provides that an application for the admission of advocates must be made to the State Bar Council, under whose jurisdiction the application desires to practise. 

Classes of advocates 

According to Section 16 of the Act, there are two classes of advocates:

  • Senior advocates 
  • Other advocates 

An advocate can be designated as a senior advisor only if the Supreme Court or a High Court opines the same on the basis of his ability, standing at the bar and experience. However, the senior advocates will have to obey certain restrictions to be imposed by the council. The section also provides that any senior advocate can make an application to remove his name as a senior advocate to the bar council. 

Roll of advocates 

Section 17 provides that the State Bar Council have to maintain a roll of advocates consisting of names and addresses of:

  • People who have been entered as advocates on the roll of any High Court under the Indian Bar Councils Act, 1926. 
  • Persons admitted as advocates on the roll of the State Bar Council under the Act. 
  • Each roll will consist of two parts:
    • Part 1 will deal with the names of senior advocates.
    • Part 2 will provide the names of other advocates.
  • The entries must be in the order of seniority to be decided according to the date of enrolment. The seniority of an advocate will be determined as follows:
    • The seniority of an advocate registered and enrolled under the India Bar Councils Act will be determined on the basis of his date of enrolment.
    • The seniority of any senior advocate before the appointed day will be determined by the principles laid down by the bar council for the first state roll, while the seniority of the advocate after the appointed day will be determined on the basis of his date of enrollment.  

Section 21 further provides that in case of a dispute regarding seniority, the same will be decided according to age and can be referred to the State Bar Council. 

Certificate of enrolment 

According to Section 22, a certificate of enrolment will be issued by the State Bar Council to every person whose name has been entered into the roll of advocates. Any change in the place of permanent residence must be notified to the State Bar Council within 90 days. 

Right to pre-audience

Advocates have the right not to be interrupted before their statement is completed. This provision is employed as an advocate’s privilege as well as a right to pre-audience rule. The right to be heard comes first and foremost. The person in the top position in the hierarchy is given the right to advocate by the law.

According to Section 23 of the Act, the following advocates will have pre-audience over the others:

  • Attorney General
  • Solicitor General
  • Additional Solicitor General
  • The Second Additional Solicitor General
  • Advocate General of the State
  • Senior advocates

In accordance with this rule, an advocate is also permitted to speak in front of the courtroom audience and to represent his client in front of a judge. It must be noted that the right of pre-audience among advocate-generals of different states will be determined on the basis of their seniority. Similarly, the right of pre-audience among all senior advocates will be determined in accordance with their seniority. 

Qualification and disqualifications for admission on a state roll 

According to Section 24, in order to qualify for admission as an advocate on the state roll, a person must be:

  • A person with a different nationality can be admitted as an advocate if citizens of India are allowed to practise law in that country. 
  • Completed twenty-one years of age.
  • Obtained degree in law. 
  • Fulfills other conditions as prescribed. 

A person will be disqualified from admission as an advocate if:

  • He is convicted of any offence involving moral turpitude.
  • He is convicted under the Untouchability (Offences) Act, 1955 (renamed as Protection of Civil Rights Act, 1955). 
  • He is dismissed or removed from employment or office under the state on the charge of moral turpitude. 

Rights of advocates to practise under the Act

From the perspective of the legal profession, the term ‘right to practise’ refers to an exclusive right of the advocates to represent their clients in court and before tribunals in the country.  There are two levels of protection for the right to practise, and they are as follows:

  • Protection in General: Article 19(1)(g) of the Indian Constitution safeguards the right of every person to engage in the practice of their choice.
  • Specific Protection: According to Section 30 of the Advocates Act, 1961, an advocate who is registered with a State Bar Council is entitled to practice law before any court or body in India, including the Supreme Court.

Thus, the Act recognises the right of advocates of practice law in the country. If an advocate is speaking during practice, no one may interrupt them unless they violate the rules and regulations set by the court.

Provisions for the conduct of advocates

Chapter V of the Act deals with the conduct of advocates and provides provisions for punishment in case of misconduct, procedures to be followed by the disciplinary committee, etc. 

Punishment of misconduct

According to Section 35(3) of the Act, a disciplinary committee can make the following orders against an advocate guilty of misconduct after giving the concerned advocate and the Advocate-General an opportunity to be heard:

  • Dismiss the complaint against the advocate or direct to file the proceedings where they were initiated by the State Bar Council. 
  • Reprimand the advocate.
  • Suspension of advocate from practice for a specific period.
  • Remove the name of the advocate from the state roll. 

Procedure to be followed in case of misconduct 

Section 35 also provides the procedure to be followed in case a complaint of misconduct is made against an advocate:

  • Any complaint of misconduct against any advocate will be referred to the disciplinary committee of the State Bar Council.
  • The State Bar Council can also withdraw the proceedings either on its own motion or upon an application and direct that the inquiry  be conducted by any other disciplinary committee of the council. 
  • An opportunity to be heard must be given to the concerned advocate and the advocate general and then pass necessary orders. 

Powers of the disciplinary committee 

Section 42 provides that the disciplinary court will have the same powers as the civil court in the following matters:

  • Summoning and enforcing the attendance of any person and his examination.
  • Discovery and production of documents.
  • Receiving evidence on affidavits. 
  • Requisition of public records.
  • Issuance of commissions for examination of witnesses. 

However, no disciplinary committee has the right to require the attendance of:

  • Presiding officer of a court without the prior sanction of the High Court.
  • Officer of the revenue court except for prior sanction by the state government. 

Remedies against the punishment given by the disciplinary committee 

The chapter also provides certain remedies against the order of the disciplinary committee of the State Bar Council. 

Review of orders  

Section 44 provides that the disciplinary committee of the bar council has the power to review its own orders. This can be done either on its own motion or upon receipt of the application within 60 days from the date when the order was passed. However, this power can only be exercised once it is approved by the BCI. 

Appeal to Bar Council of India 

Section 37 provides that any person aggrieved by the order or decision of the disciplinary committee of the State Bar Council can make an appeal to the BCI.  The appeal has to be made within 60 days from the date when the order was communicated to the aggrieved party. 

Appeal to Supreme Court 

An appeal to the Supreme Court can be made under Section 38 of the Act against the order of BCI within 60 days from the date when the order was communicated. 

Powers of Central Government 

According to Section 49A of the Act, the central government can make rules regarding:

  • Qualifications and disqualifications of members of the bar council.
  • Supervision and control of BCI over the State Bar Councils.
  • The manner in which the BCI can give directions to the State Bar Council.
  • People entitled to be enrolled as advocates. 
  • Manner to decide the seniority among the advocates.
  • Procedure to be followed by the disciplinary committee of the bar council, etc. 

Duties of an advocate

An advocate must perform the following duties:

Duties towards a client

  • To take briefs from clients.
  • Not to withdraw from the case or refuse to provide services.
  • Make full and frank disclosures to the client regarding the case.
  • Always uphold the interest of the client and not act in a manner that is detrimental to his interest. 
  • Not to suppress any material or evidence from the client. Proceedings must be conducted in such a manner that an innocent person is not convicted. 
  • Not to disclose any communications done with the client. 
  • Not to charge fees on the basis of the success of the matter with the client.
  • Not to receive any interest in actionable claims.
  • Not to transfer, purchase or bid for a property arising in a legal matter. 
  • Not to adjust the fees against any personal liability. 
  • Fees must be adjusted after the proceedings are terminated. 
  • Not to give loans or lend money to clients.
  • To charge a fee that is comparable to that of other attorneys and advocates. 
  • Not to take cases where he himself is a party or witness. 
  • To represent the client before court and withdraw the same at the request of the client. 
  • To provide the client with the best advice possible. 
  • Not to represent the opponent or where he rendered advice to the opponent. 
  • To maintain a record of fees, accounts and other funds provided by the client and to furnish the same to the client when asked. 
  • To maintain confidentiality and not make disclosures about the case to any person. 

Duty towards the court

  • To respect the court and the judges.
  • To act in a dignified manner.
  • Not to indulge in any private communication with the presiding officer or judicial officer regarding a case.
  • To refrain from illegal practices. 
  • Refuse to act in an illegal manner against the opposition.
  • Not to take the case where the client insists on using unfair means.
  • Not to represent those establishments and institutions of which he is a member. 
  • Not to appear in cases where the advocate has any pecuniary interest. 
  • Not to ask for favours from the presiding officer. 
  • To wear proper dress in court. The band must not be worn in public or in places not prescribed by the court.
  • Not to appear before relatives in court, like the wife of the advocate, is the presiding officer or judge.
  • Conduct himself in a professional manner. 
  • Not to appear in cases where he himself is a party or witness to it. 
  • Not to promote illegal transactions and practices. 
  • Not to act as surety for the clients. 

Duty towards fellow advocates and opponents

An advocate has the following duties towards his fellow advocates:

  • Not to promote, advertise or solicit work through any advertisement, touts, circulars, etc.
  • Not to have a big signboard or nameplate. The size of sign boards must be reasonable, and they must not indicate his relation with a particular organisation or person, that he is the president of a bar association, a judge, an advocate general or his specialisation in any particular work. 
  • An advocate must refrain from promoting an unauthorised practice of law or the use of unfair means in a case.
  • Not to accept less fees than those charged by fellow advocates.
  • Take the consent of fellow advocates to appear in their matter. 

An advocate must perform the following duties towards his opponent in a case:

  • He must not communicate or negotiate with the opposite party if they are represented by an advocate. This must be done through their representing advocate.
  • He must fulfil all the legitimate promises that he made to the opposite, despite the fact that the promises were not made in writing. 

Case laws

Ex. Capt. Harish Uppal vs. Union of India (2002)

The Supreme Court of India has held in this landmark decision that lawyers do not have the power to strike or call for a boycott of the court.

Facts of the case

According to the facts, the petitioner is an ex-Army officer. The petitioner was assigned to Bangladesh in 1972, after which he was charged with theft and appeared before an Indian military court. He spent two years behind bars. He requested an audit of the case through a pre-affirmation application in a civil court, and after an 11-year delay, when the survey’s limitation period had passed, he received a response from the judge. Documents and the application were found to have been missing following a violent strike by lawyers. The petitioner submitted a special petition to declare unlawful advocates’ strikes.

Issues involved

The question is whether lawyers have the right to strike.

Judgement of the case

The Supreme Court of India decided that attorneys do not have the power to call for a boycott of the court or to go on strike, not in a purely symbolic way. On the other hand, lawyers have the choice to peacefully protest outside the court building and away from its premises by making press statements, participating in TV interviews, adhering to the rules for court premises, posting additional notices, wearing armbands in black and white or any other shade, holding dharnas, etc.

Pratap Chandra Mehta vs. State Bar Council of M.P & Ors, (2011)

Facts of the case

In this case, the State Bar Council of Madhya Pradesh made certain regulations beyond its power given under Section 15 of the Advocates Act, 1961. The power of the council to make rules has been provided under Section 15 of the Act, along with Rules 121 and 122A under the State Bar Council of MP Rules. However, these rules were amended with the permission of the Bar Council of India. It was alleged that the regulations made by the council were not at par with its power and, thus, ultra vires. 

Issues involved

  • Whether Rules 121 and 122A of the MP Rules are ultra vires to Section 15 of the Advocates Act, 1961, which got approval from the Bar Council of India.

Judgement of the case

The court held that Rules 121 and 122A of the MP Rules are valid because they have been approved by the Bar Council of India and that the State Bar Council does not exceed its power given under Section 15 of the Act. It was also held that the rules of the MP State Bar Council are unambiguous and correct, as they were made after the approval of BCI.

K. Anjinappa vs. K.C. Krishna Reddy (2021)

Facts of the case

In this case, a complaint was made to the State Bar Council of Andhra Pradesh against an advocate on the grounds of professional misconduct. It was further transferred to the disciplinary committee of the BCI, wherein the committee dismissed the complaint on the ground that it was not maintainable. Moreover, there was a delay of more than a year in deciding the complaint. Aggrieved by the order of the committee, the complainant preferred an appeal to the Supreme Court under Section 35 of the Act. 

Issues involved

  • Whether the appeal under Section 35 of the Advocates Act is valid against the advocate?
  • Whether the advocate is guilty of misconduct?

Judgement of the case

It was observed by the Apex Court that, despite guidelines and provisions regarding expeditious disposal of such complaints, the State Bar Councils and the BCI are reluctant to do so. The State Bar Councils and the BCI were directed to decide and dispose of such complaints expeditiously within a year and only in exceptional circumstances can there be a delay and proceedings be stretched for more than a year. The court issued the following directions in this regard:

  • It is the duty of bar councils to uphold the standards of professional conduct and etiquette. Every State Bar Council must ensure that the monopoly of the practice provided under the Act is not abused or misused by any advocate. These councils have been established to protect the public and maintain the dignity of the profession. 
  • The bar council must act as a custodian of the practices of the profession. 
  • The State Bar Councils are expected to carry out functions like admission of advocates, preparation of roll, determining cases of misconduct, safeguarding rights and privileges of advocates, etc. on the other hand, the functions of BCI are to provide a standard of conduct for advocates, guidelines for the disciplinary committees, etc. 
  • The bar councils play a major role in receiving complaints, forming a belief regarding professional misconduct and finally referring the case to the disciplinary committee. 
  • The BCI can empanel experienced advocates or retired judicial officers as inquiry officers for the quick and efficient disposal of complaints. 

Conclusion 

Advocacy is a noble profession. It is not a money-making venture. It aims at public service, learning and brotherhood within the legal fraternity. However, the justice system of any country is such a vast field that it needs to be regulated. Apart from the Advocates Act, advocates also have to adhere to the Bar Council of India (BCI) rules. The present legislation proves to be a check on the powers and rights of advocates and also regulates their activities and behaviour. Advocates are expected to be professional and conduct themselves in such a manner that people entrust their trust in the judicial system of a country. However, any malpractice or professional misconduct on the part of advocates can lead to people losing their faith in the justice delivery system. 

Despite the present legislation in place, there have been instances of misconduct on the part of advocates and people belonging to the legal fraternity. It’s time that these activities be regulated and a strict penalty imposed upon them in order to regain the trust of the common man. The legislature has to come up with new ideas and changes in order to rectify the current situation and make it better.

Frequently Asked Questions (FAQs)

Can an advocate be enrolled in more than one State Bar Council?

No, according to Section 17(4), a person cannot be enrolled as an advocate in more than one State Bar Council.

Does the State Bar Council have the power to remove the names of advocates from the roll?

Yes, the State Bar Council has the power to remove the name of any advocate who is dead or who has made a request in this regard from the state roll as given under Section 26A. 

Will a person be published if he practises in a court where he is not entitled to do so?

Yes, according to Section 45, if a person is practising in a court or before an authority where he is not entitled to do so, he will be punished for illegal practice and sentenced to imprisonment for up to 6 months. 

Name two important features of the Advocates Act, 1961?

Two important features of the Advocates Act, 1961, are as follows:

  • Advocates can practise before any court or tribunal in India, subject to the provisions of the Act and rules made therein.
  • There are different names of legal practitioners, such as lawyers, vakils, attorneys, etc. and they refer to the term ‘advocates.’

When was the Advocates Act of 1961 enforced?

In 1961, on August 16, the Advocates Act became operative. The act was amended to combine the legal practitioners’ laws and to provide for the establishment of bar councils and an All Indian Bar.

How does an advocate become eligible to enrol as an advocate?

He or she must possess a legal degree and be an Indian citizen. He or she must give the State Bar Council an enrollment fee. His name would be evaluated by the enrollment committee, which would either approve or reject his application. If the application is turned down, the National Bar Council will be notified along with the reasons why, and the other State Bar Councils will also be informed. The applicant may appeal to the Supreme Court or the High Court, challenging the Bar Association’s decision.

References 

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