This article is written by Michael Shriney from the Sathyabama Institute of Science and Technology. The Advocates Act, 1961 is addressed in the article, along with its objectives, characteristics, and scope, as well as any relevant case law, amendments to the Act, and frequently asked questions.
It has been published by Rachit Garg.
Table of Contents
The Advocates Act, 1961 contains rules and laws pertaining to advocates. The major goal of the Act is to create a single class of legal practitioners known as “advocates.” Advocates are permitted to represent clients before all courts and tribunals in all states of Indian territory. The advocates can only join one state Bar Council [vide Section 17(4) of the Act], although they are free to move to another State Bar Council. The Indian Bar Councils Act has been replaced by the Advocates Act, 1961. The Advocate Act of 1961 was created in order to carry out the recommendations of the All India Bar Committee, which were supported by the Law Commission’s fourteenth report in 1955. This Act’s primary goal is to unite and create a single class of attorneys called “advocates.” Their major goals are to establish an All India Bar Council and State Bar Councils, as well as a common qualification for the bar. It also outlines an advocate’s obligations and rights.
The Advocates Act’s nature, objectives, important provisions, relevant case laws, and amendments, along with the history of the Act, are all covered in detail in this article.
History of the Advocates Act, 1961
India’s legal profession was managed under the Advocates Act, of 1961, which was set up by Parliament after Independence. The All India Bar Committee was established in 1953 by the government to oversee and control the Indian judiciary after Independence in 1947. The Advocates Act and the Bar Council of India were formed in 1961 as a result of a recommendation submitted to Parliament by the All-India Bar Committee. Legal practitioners were divided into various classes under the Legal Practitioners Act of 1879 until the Advocates Act, 1961 came into effect. They were classified as Advocates, Lawyers, Vakils, Barristers, etc. After the Act came into effect, several classes of legal practitioners were abolished and combined into one class of advocates. These advocates were categorised as Senior Advocates and other subdivision advocates based on their qualifications for expertise and experience. Senior Advocates are given the title with the Supreme Court’s or the High Court’s confirmation.
The Bill behind Advocates Act, 1961
The Bill was drafted in order to carry out the recommendations of the All India Bar Committee, which were issued in 1953. After considering the Law Commission’s proposals on Judicial Administration Reform, as well as the suggestions relating to the Bar and legal education. The Bill was amended to recognise the dual system in operation in the High Courts of Calcutta and Bombay by including the necessary provisions, according to the recommendations provided to the All India Bar Committee and the Law Commission. If they intend to abolish the dual system at any moment, it will only be open to two Courts. The Indian Bar Councils Act, 1926, as well as any other legislation on the subject, may be repealed by this bill because it is a comprehensive measure. This was published on November 19, 1959, in Section 2 of Part II of the Extraordinary Gazette of India.
Main features of the bill behind Advocates Act, 1961
The bill’s primary features were:
- The All India Bar Council must be established, there must be a single class of attorneys, and it must grant attorneys the right to practise in any area of the country, in any High Court, as well as at the Supreme Court of India.
- Combining the bar together into a single class of legal practitioners known as advocates.
- The procedures of a uniform qualification for admitting individuals as advocates and qualifying them as advocates.
- According to their merit, senior advocates and other advocates must be divided.
- There must be the establishment of autonomous Bar Councils, one for all of India and another for each State.
Implementation of Advocates Act, 1961 in India
On May 19, 1961, in the twelfth year of the Republic of India, Parliament passed The Advocates Act, 1961. The Act has a total of 60 sections split into 7 chapters. The Advocates Act, 1961 was implemented by the Central Government. This Act is applicable across India, with the exception of the State of Jammu & Kashmir. The Indian legal profession experienced a lot of changes as a result. Its goal was to establish the legality and utility of the legal profession across the whole of India. The Act amends and unifies the law relating to legal practitioners, according to the preamble of this Act. The primary goal of the Act was to promote uniformity in the legal profession, including uniformity in the academic qualifications for advocates, in the registration process for state-level Bar Councils, in the restrictions put on enrollment, in the disqualification of legal practitioners, etc.
Features or the characteristics of the Advocate Act, 1961
- The Advocates Act, 1961 had the following features: It established the Bar Council of India and State Bar Councils and paved the way for their formation.
- Even though advocates may be transferred from one state to another, advocates are not permitted to enrol in more than one State-Bar Council.
- A self-governing authority has been given to the Bar Council.
- Additionally, the Act has made it possible for advocates to work in positions that are similar all across the world.
- It also included provisions that allowed for the consolidation of all legal system legislation into a single class or document.
- Various Bar Council regulations have been implemented in both state and central laws.
- A single title called ‘advocate’ replaced the several titles that were previously granted to advocates such as legal practitioners, vakils, attorneys, etc.
- On the basis of their qualifications, experience, and level of expertise, there are senior advocates and other advocates as legal practitioners.
- The act primarily focuses on the consolidation of existing legal laws for the legal profession.
- The Bar Council was given control over an autonomous body that has been assigned certain duties.
- It may be seen that the Bar Council is a member of a number of international organisations, including the international bar organisation. The Bar Council is a recognised legal entity with the ability to acquire both moveable and immovable property through litigation.
- Additionally, there are several state Bar Councils that are under the control of the All-India Bar Council.
- They also have the same responsibilities as the All-India Bar Council, but they solely look after their particular states. The Bar Council was granted an autonomous entity that is entrusted with these responsibilities.
- According to the Act, State Bar Councils must exist in every state.
Definitions under the Advocate Act, 1961
- 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:
- 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.
- 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.
Note: Jammu and Kashmir and all other union territories, including Goa, Daman, and Diu, are exempt from the application of any provisions or definitions contained in the Act. However, the laws can be interpreted as references to the relevant laws if they have to apply in the state or territory. Goa, Daman and Diu Reorganisation Act, 1987, which went into effect on May 30, 1987, now recognised as a state and governs the territory of Goa.
Important provisions under the Advocate Act, 1961
Application of the Act (Section 1): In India, the Advocates Act, 1961 is in effect nationally, which is described under Section 1 of the Act. In the State of Jammu and Kashmir as well as the Union Territories of Goa, Daman, and Diu, which comes into effect on the day that the Central Government specifies in a notice published in the official gazette on their behalf.
State Bar Councils (Section 3): Section 3 of the Act allows for the establishment of a Bar Council in each state. Union territories are joined by neighbouring countries. There is a unique Bar Council for the union territory of Delhi. This is based on the All India Bar Committee’s recommendations. For each State Bar Council, a chairman and vice chairman will be chosen by the respective State Bar Council.
Bar Council of India (Section 4): Section 4 of the Act permits the establishment of an All-India Bar Council. The attorney general of India, who serves as an ex officio member, the solicitor general of India, who also serves as an ex officio member and one member who is chosen by each State Bar Council from among its members shall make up the body. The All India Bar Council will have a chairman and vice-chairman who were chosen by the Council itself according to the established procedures.
Bar Council which is to be a body corporate (Section 5): Any corporate body, including the Bar Council of India and all state Bar Councils with perpetual succession and their own common seal, is covered by Section 5 of the Act. Each Bar Council has the authority to acquire and hold real property in its own name. It is capable of being sued, being sued in its name, and entering into contracts in its name. A Bar Council can continue to exist since it is a corporate entity with perpetual succession; therefore, it is unaffected by the fact that the members’ terms of office have ended.
Membership in an international legal body (Section 7A): In accordance with Section 7A of the Act, the Bar Council of India is permitted to join organisations that represent international law, such as the International Bar Association or the International Legal Aid Association. The Bar Council of India is also required under this Section to pay dues to the aforementioned international organisations, and it is also permitted to spend money to send delegates to any international legal conference or seminar.
Term of office of members under the State Bar Council (Section 8): According to Section 8 of the Act, State Bar Council members are chosen to serve terms of five years, starting from the day the results of the election are published. The Bar Council of India will extend the term of office by examining the reasons if the State Bar Council fails to hold elections for its members before the term expires, provided that the extension does not exceed a 6-month period. By extending the term of members, the council will be notified that it must hold a new election for members as the previous one was not held before the term’s expiry.
Transaction of business by the Bar Council and committees (Section 10A): According to Section 10-A, the State Bar Council meets at its headquarters, and the Bar Council of India meets in New Delhi. The meetings of these councils may take place anywhere, but the justifications must be recorded in writing. The headquarters of the relevant Bar Council should be the location of meetings for all committees, excluding the disciplinary committee. The disciplinary committee will henceforth hold a meeting at a time and location where it is possible to follow the rules established by the Indian Bar Council for conducting business at meetings.
The staff of the Bar Council (Section 11): Section 11 deals with the appointment of personnel to the Bar Council. Each and every Bar Council is required to have a secretary. The accountant and other staff that are required for the office’s efficient operation may be appointed by the Bar Council.
Senior and other advocates (Section 16): Section 16 discusses the senior advocate as well as other advocates. The Supreme Court of India or the High Court, believes that if a person has the skill, expertise, or experience to merit the title of “senior advocate,” they may use it with the court’s approval.
State Bar Councils maintain the roll of advocates (Section 17): According to Section 17, it is the responsibility of the State Bar Council to create and maintain a list of state advocates. The roll has two sections. Senior advocates make up the first part, while other advocates make up the second part. The entry is based on seniority in the state roll record. According to Section 17(4), no person may be listed as an advocate on the rolls of more than one State Bar Council.
Transferring the name from one state to another state (Section 18): According to Section 18, anybody who wishes to move from one state’s Bar Council to another must submit an application to the bar association of India, New Delhi, using Form C Rule I Chapter III and Part V of All India Bar Council’s Rules.
The main materials of the application are:
- A certified copy of the applicant’s enrollment on the state register.
- There is no disciplinary action ongoing against the applicant, and there is no objection to transfer being ordered, according to a certificate from the state Bar Council stating that the applicant’s enrollment has not been recalled and that they are permitted to practise as of the date of their application.
Enrolment of certain Supreme Court advocates (Section 20): Section 20 of the Act addresses the certificate of enrolment. For the enrollment of an advocate, a certificate would be issued. The certificate is issued in accordance with the State Bar Council’s authorised format. Any change to a person’s permanent address must be reported to the relevant State Bar Council within 90 days.
Disqualification of enrolment (Section 24A): According to Section 24A of the Act, anyone who has been arrested for an offence involving moral turpitude is ineligible to become a member of the bar. This applies until two years have passed since the end of the imprisonment. This disqualifies you from enrolling; according to the Supreme Court, if the disqualification occurred after you enrolled, the advocate must serve a two-year disqualification from the bar.
Advocates are recognised as a class of persons entitled to practice law (Section 29): According to Section 29 of the Act, advocates are only recognised among a specific group of people who are qualified to practise law. Advocates have been permitted to practice law as of the date on which they were appointed under that class alone.
Right of advocates to practise (Section 30): Section 30 of the Act defines the right to practise as an advocate. An advocate is granted the right to practise law across the territory before all courts and tribunals under this statute.
No one other than advocates is permitted to practice (Section 33): This section states that anyone must be enrolled as an advocate under this Act in order to be permitted to represent themselves in any court or before any authority.
Functions of State Bar Councils (Section 6 of Advocates Act, 1961)
Section 6 outlines the duties of the State Bar Council.
- The Council must compile, maintain, and keep a record of such a roll in addition to allowing applicants to be listed as advocates.
- If there is any misconduct on the part of any of the advocates on its list, the council must investigate it and make a decision;
- It must also defend the rights, privileges, and interests of those advocates;
- It must encourage the growth of the bar association in order to effectively implement welfare programmes;
- It must support and promote law reform; and
- It must also host seminars and organise lectures by eminent jurists on legal subjects.
- It also allows for the publication of journals and papers of legal interest.
- It organises legal help for the poor in a prescribed manner;
- It facilitates elections for its members of the State Bar Council, manages finances for the Bar Council, and invests those funds.
- They can visit and inspect universities in accordance with the guidelines set forth in Section 7(1)(i);
- They can carry out all other duties imposed by the Act; and
- They must also take additional actions required for carrying out the aforementioned duties.
- The council shall establish one or more funds for the following purposes:
- Providing financial assistance to set up welfare programmes for the needy, the disabled, or other advocates;
- It also provides legal assistance or advice when rules are adopted in this regard;
- To create law libraries.
- The State Council may accept grants, donations, gifts, or benefactions for any of the purposes indicated in subsection 2 of Section 6, which must be credited to the relevant fund or funds established under the Subsection.
Functions of the Indian Bar Council (Section 7 of Advocates Act, 1961)
The following are the functions of the Bar Council of India under Section 7 of the Act:
- It must establish standards of professional conduct and etiquette for advocates;
- It must establish specific procedures to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council;
- Their primary function is to prepare and maintain a common roll of advocates and to exercise general supervision and control over State Bar Councils;
- Its duties include general supervision of and control over state Bar Councils.
- It has to promote legal education.
- It has to set standards for that education in consultation with state Bar Councils and universities in India that deal with higher education.
- They also have the responsibility of identifying the universities where a law degree qualifies a graduate for enrolment as an advocate, and to that end, they either visit and inspect those universities or give State Bar Councils specific directions to visit and inspect.
- They also recognise a reciprocal basis for foreign legal qualifications gained outside of India for the purpose of admission as an advocate under the Act.
- Other duties exist that are similar to those of the Indian State Bar Council. The Bar Council of India carries out such activities as setting up one or more funds for the organisation of welfare programmes for poor and disabled advocates providing legal assistance and advice, as well as for establishing law libraries. Additionally, they receive gifts, donations, and benefaction.
Certificate of enrolment (Section 22 of Advocates Act, 1961)
Section 24 of the Act outlines the requirements required to be admitted to the Bar.
- The provision also states that the person would be qualified to be admitted as an advocate on a State Roll if he meets the requirements, which include being a citizen of India, being competent over the age of 21, having obtained a law degree, and passing the Bar Council of India exam.
- The individual can enrol themselves under any State Bar Council if they meet the necessary qualifications.
- After graduating with a single degree, the person must have completed a 5-year integrated course or a 3-year law course.
- The Bar Council of India must recognise the degree if it was earned from a foreign institution of higher learning.
- The advocate is required to pay the State Bar Council’s enrollment fee. It must also satisfy any additional requirements, if any.
Various committees under the Advocates Act, 1961
Constitution of a special committee (Section 8A of Advocates Act, 1961)
- In cases when there is no election, a special committee is constituted. That is formed in accordance with Section 8A of the Act if there is no election. When the State Bar Council fails to hold regular member elections, a special committee is formed. The members of the special committee will be:
- The chairperson shall be a State Bar Council ex-officio member. If more than one person serves as an ex-officio member, the chairman should be the senior-most member.
- The Bar Council of India will nominate two members from the list of advocates on the State Bar Council.
Disciplinary Committee (Section 9 of Advocates Act, 1961)
- According to Section 9, the State Bar Councils and All Bar Councils in India are required to form at least one or more disciplinary committees.
- Two members of the elected council and one member of the co-opted council who is an advocate on the state Bar Council’s roll must provide up each disciplinary committee, which shall have three members total.
- The head of a disciplinary committee must be the most experienced attorney on the panel. According to Section 9, the State Bar Council and the Bar Council of India are required to establish one or more legal assistance committees.
- These committees must have a minimum of 5 members and a maximum of 9 members. The regulations of the All-India Bar Council outline the requirements, the process of selection, and the period of office for members.
Legal Aid Committee (Section 9A of Advocates Act, 1961)
- Section 9A of the Advocates Act creates a constitutional legal aid committee.
- One or more legal aid committees must be established by the Bar Council, and each committee must have a minimum of five and a maximum of nine members.
Various other committees
The State Bar Council and the Bar Council of India are given authority under Section 10. The following committees must be formed by the State Bar Council:
- An executive committee is composed of five council members that are elected by the council.
- An enrollment committee shall consist of three people chosen by the council from among its members.
The following standing committees ought to be established by the Bar Council of India:
- There will be nine people on the executive committee, chosen by the council from among its members.
- A legal education committee consists of ten members; of these, five are chosen by the council from among its members, and the remaining five are co-opted by the council.
Whenever further committees are required, the State Bar Council and the Bar Council Of India will appoint members to such committees. Section 13 of the Act states that no decision made by the Bar Council or any other committee may be challenged because of a vacancy or a fault in the committee’s constitution.
Rights and duties of an advocate under the Advocate Act, 1961
Rights of an advocate under the Advocate Act, 1961
In India, an advocate has the following rights:
Right to practice (Section 30) and freedom of expression and speech:
- From the perspective of the legal profession, the term ‘right to practise’ refers to an exclusive right granted to advocates to represent clients in court and before tribunals. 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 each person’s right to engage in whatever practice they choose.
- Specific Protection: According to Section 30 of the Advocates Act, 1961, a person registered with a State Bar Council is entitled to practice law before any court or body in India, including the Supreme Court.
- The Central Government made it effective recently by issuing a notification. An advocate who is registered with the Bar Council of India is granted the only authority to practise law in courts.
- If an advocate is speaking during practice, no one may interrupt them unless they are violating the court’s rules and regulations.
- The freedom of speech and expression is guaranteed by Article 19(1)(a) of the Indian Constitution. All Indian citizens are entitled to this fundamental right. Even in a court of law, an advocate has the freedom to speak and express oneself.
- A court of law must provide an advocate with the opportunity to speak first, according to Section 23 of the Advocates Act.
- 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 advocacy by the law.
- In India, the following is the preferred hierarchy system:
- Attorney General
- Solicitor General
- Additional Solicitor General
- The Second Additional Solicitor General
- Advocate General of the State
- Senior advocates
- Other advocates
- This is the hierarchy of advocacy used in India. In the absence of another advocate, the attorney general has the right to represent himself in court. 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.
Right of opposition to arrest:
- All advocates are guaranteed under Section 135 of Civil Procedure Civil, 1908 that they won’t be detained while travelling to or from a tribunal or court on another subject, with the exception of cases involving criminal charges and contempt of court.
- In certain situations, the police are not allowed to detain a civil advocate. An advocate is referred to as an officer of the court.
Right to appear in any court:
- All advocates are permitted to practise in any Indian court or tribunal, according to Section 30 of the Act.
- They have the right to enter the court or tribunal even if they haven’t registered with that particular tribunal or court.
- No matter if they are representing a client or not, an advocate may enter the courtroom and take any seat to watch the proceedings. An advocate may also enter the Supreme Court and observe the proceedings.
Right to see an accused person in jail:
- There is no restriction on how often an advocate can visit a client who is being held in jail. Advocates are even permitted to see their clients every day in jail.
- According to the law, a person is deemed innocent unless proven guilty. As a result, it is essential for an advocate to fully understand the case by meeting with his client—even while they are in custody—to discuss the important details and related documents so that they can effectively argue the case in court.
Right to professional communication:
- Communication between an advocate and his client must be regarded as professional communication under Section 126 of the Indian Evidence Act,1872. Such communication shall not be disclosed.
The right to protect the secrecy of communications:
- An advocate has exclusive rights under Section 129 of the Indian Evidence Act of 1872. The advocate has the right to protect the confidentiality of his client’s communications.
- The advocate is not required to disclose to anybody the conversation he and his client had on the matter.
- According to Section 129 of the Indian Evidence Act of 1872, no one is allowed to pressure an advocate into disclosing the conversations he has with his client.
Right to pay a fee:
- According to Rule 11 of Chapter 2 of Part VI of the Rules of the Bar Council of India, an advocate is entitled to get payment when he provides or renders services to a client. According to his position at the bar, he can exercise this right.
Right with respect to vakalatnama:
- The advocate has the right to solely represent his client in that particular matter after a vakalatnama is signed in his name. An advocate also has the authority to support the public prosecutor in court and submit a note of appearance on behalf of a defendant for whom he is not counsel.
Right to refuse a case:
- An attorney has the authority to decline to represent a client in a lawsuit involving illegal activity.
Duties of an advocate
An advocate must perform the following duties:
An advocate’s obligations to the client:
- An advocate’s obligation is to take client briefs and to charge a fee that is comparable to that of other attorneys at the same bar and appropriate to the circumstances of the case. The advocate may provide an explanation for why a specific brief was rejected.
- An advocate has a duty to decline cases or briefs where he would testify as a witness. Similarly, if the advocate has notice of testifying as a witness throughout the course of events, he should not proceed with the case.
- Once the client has consented to have the advocate represent them, the advocate has an obligation to do so. In order to withdraw a case, he must provide the clients with a good explanation and adequate notice. He will refund the customer for a portion of the fee that was not collected.
- The responsibility of an advocate is to deliver the best advice to the best of his abilities.
- It is crucial that the advocate provides the client with complete and honest disclosures of the parties and their interest in the controversy.
- When handling a client’s case, an advocate needs to be cautious.
- When a party has received legal advice from an advocate, the advocate should not participate in the lawsuit since he is now the party’s opponent. An advocate must either withdraw the case or transfer it to another counsel in such a situation.
- An advocate is expected to maintain track of any client funds entrusted to him and provide a copy of that record upon request.
- An advocate is required to uphold the confidentiality clause and not reveal the client’s private information.
An advocate’s obligations to the court
- An advocate must always treat the legal system and courts with respect.
- An advocate must maintain his or her dignity and self-respect.
- It is the duty of an advocate to refrain from using any unlawful or inappropriate measures to influence the court’s judgement and to allow it to be made without bias.
- Advocate has a responsibility to present themselves in court in the appropriate attire. Except in the courtroom, he or she is not authorised to dress in a band and gown.
- Advocates are not permitted to represent a close relative as a member of their family in court or before a tribunal.
- Advocates must not conduct a prosecution in such a way that an innocent person is knowingly convicted.
Punishments provided under the Advocate Act, 1961
Punishment of advocates in case of misconduct (Section 35):
Section 35 of the Act specifies the penalties for misconduct by advocates.
- It specifies that when a complaint is received or a State Bar Council has grounds to suspect that any advocate listed on its register has engaged in professional or other misconduct, it must send the matter to its disciplinary committee for resolution.
- The State Bar Council’s disciplinary committee would be required to set a hearing date, as well as arrange for notice to be sent to the State’s advocate general and the involved attorney.
- The disciplinary committee shall provide the advocate and the advocate general an opportunity to be heard and shall make any instructions from the following categories:
- The complaint or procedures filed at the instance of the State Bar Council where the complaint was submitted must be dismissed; the committee may also reprimand the advocate.
- The committee has the authority to bar an advocate from practising for as long it sees suitable and to have their name removed from the state list of attorneys.
- An advocate whose licence to practice law has been suspended is not permitted to appear before any Indian court, government agency, or person during the suspension period.
Penalty for illegal practice in courts and before other authorities (Section 45):
The consequences for engaging in the illegal practice in court or before other authorities are outlined in Section 45. Any individual who practises in any court, before any authority, or before any person who is not authorised to practise under this Act shall be imprisoned for six months.
Ex. Capt. Harish Uppal v. 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.
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 v. State Bar council of M.P & Ors, (2011)
Facts of the case
In this case, the State Bar Council of Madhya Pradesh established regulations that went beyond the power given to them under Section 15 of the Advocates Act, 1961. The State Bar Council’s power to create rules is not connected to the power given under Section 15 of the Act by Rules 121 and 122A. The Parliament passed the Advocacy Act, giving the State Bar Council the authority to draft and carry out the requirements of Section 15 of the Act. With the Bar Council of India’s consent, the State Bar Council published and amended the State Bar Council MP Rules.
The question is 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
As a result, the court decided that Rules 121 and 122A of the MP Rules are valid because the Bar Council of India approved them. In order to uphold democratic values and the high ethical standards of an advocate, the State Bar Council must conduct itself in a democratic manner. The power of these rules does not exceed or broader than that permitted under Section 15 of the Act. The court also held that the rules of the M.P. State Bar Council are unambiguous and that the Bar Council of India has approved the revised rules.
K.Anjinappa v. K.C. Krishna Reddy, (2021)
Facts of the case
In this case, the Disciplinary Committee of the Bar Council of India issued an impugned order dismissing the appellant’s complaint against his advocate. The complaint was first filed with the State Bar Council of Andhra Pradesh. The case was rejected by the Bar Council of India’s disciplinary body because it was not maintainable. Advocates did not resolve the complaints within a year. The complaints were intentionally kept pending for more than a year; therefore, they were transferred to the Bar Council of India as provided. The appellant filed an appeal against his advocate under Section 35 of the Advocates Act for professional misconduct.
Whether the appeal under Section 35 of the Advocates Act is valid against the advocate.
Judgement of the case
The appeal against the advocate under Section 35 of the Advocates Act was thus denied by the Supreme Court.
The Advocate Act of 1961 holds an important place in India because it outlines guidelines and rules that any person who is enrolled as an advocate must follow. The Act also punishes them if they commit any offence or violate any law. It keeps advocates in check and the legal system running smoothly. The Act provides for the functions of the State Bar Council and the Bar Council of India, along with certain powers rendered to them. It also grants an advocate responsibilities, such as the right to practise and render services to the client, meet their client in jail, and meet the client in jail with no restrictions. The advocates should only be admitted to the State Bar Council once. The client must not be a close relative or family member of the advocate.
Frequently asked questions (FAQs)
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, 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.
- Law Relating to Advocates with case laws by C.Sitaraman & Co.Pvt.Ltd.
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