This article has been written by Nivrati Gupta, a student at the Institute of Law, Nirma University, Ahmedabad. This article discusses all the necessary things one needs to know if practising law without a Licence.
Table of Contents
Introduction
The Indian Legal System, successfully emerging as one of the world’s ancient judiciary systems, has established a special place of importance in India’s world history. Inherited by the British and their law after more than 200 years of ruling, the Indian Legal System got its existence and similarities from the English Legal System. The Indian Constitution, adapting with modifications, frames and structures the legal system. The Constitution of India became effective on 26 January 1950, empowering the supreme law and the foundations of law. The Indian Judiciary System, modified with time today, is composed of statutory law and common law.
With the Indian Constitution’s state-of-the-art authority, law, structures, procedures, duties and power, the Indian Legal System forms a three-tier legal system in India, namely the Indian Supreme Court: the apex one, the High Court: the state courts and, lastly, the subordinate court: the district courts.
As one of the largest and oldest professions in the world, the Indian Legal Profession is enrolled with over 1.4 million advocates throughout the country. To practice law as a lawyer or barrister or solicitor, the legal practitioner should be registered with the Bar Council of India.
The legal profession in India: evolution of law
In 1726, Mayor’s Courts were established in Madras and Calcutta, there was no legal training at that time and it is recorded that many practitioners were dismissed servants of the East India Company.
Though the first Supreme Court was established at Calcutta in 1774, and the 1773 Regulatory Act allowed the Supreme Court to authorize, admit and enrolThe Advocates Act, 1961l lawyers and lawyers. This article suggests addressing whether the Supreme Court is justified in arguing the “practice of the profession of law” involves litigation and non-litigation given its effect on retired judges and non-lawyers.
Monitoring legal profession in India : evolution of law in 1726
When the Mayor Courts were established in Madras and Calcutta, there was no legal training at the time and it is recorded that many practitioners were dismissed servants of the East India Company. Though the first Supreme Court was established at Calcutta in 1774, and the Regulatory Act allowed the Supreme Court to authorize, admit and enrol lawyers and lawyers.
“The term ‘to practice the profession of law’ in Section 29 of the Advocates Act, 1961 is fairly broad to include all persons engaged in litigious and non-litigious matters and the respondents were therefore bound to obey the provisions of the 1961 Act to practice in non-litigious matters in India. This Bombay High Court decision in Lawyers Collective was recently upheld by India’s Supreme Court in Bar Council of India v. AK Balaji (known as the entry of Foreign Law Firms into India matter).
Legislations governing lawyers in India
The Advocates Act, 1961
The Advocates Act of 1961 revised and consolidated the law on legal practitioners, and provided for the creation of the State Bar Councils and the All-India Bar-India’s Bar Council as its highest body. India’s Bar Council consists of India’s Attorney General and India’s Solicitor General as its ex officio members, as well as one member elected from each of the State Bar Councils. State Bar Council members are elected for a five-year term:
- Standards of professional conduct
- Disciplinary committee
- Law reform
- Legal education
- Legal aid to the poor
- Recognise on a reciprocal basis foreign qualifications
The Bar Council of India
The Bar Council of India, an important role within the Indian judicial system, is a legal body representing and governing the Indian Bar. The Bar Council of India Act, 1926 unites various rates of legal practice and requires separate bars of the courts to operate as an agency or body controlled by itself. The Indian Bar Council is responsible for preparing, administering and enforcing legal education, professional conduct and certification steps above the bar for legal enrolment, legal ethics, professional supervision and disciplinary authority. The Act mainly reserves the right to enroll legal professionals as lawyers at the Indian court to practice law. Also, India’s Bar Council keeps the stake in recognizing only those law universities whose qualifications of students will be accepted in the eyes of the Indian judicial system.
State Bar Council of India
Each member state in India has a Council of State Bar. Every State Bar Council has a differing number of members based on the numerical strength of advocates on their rolls, who are elected to the State Bar Council membership in accordance with the proportional representation system by means of a single transferable vote among advocates on the electoral roll of the State Bar Council. In the case of an electorate not exceeding five thousand members, the State Bar Council shall be composed of 15 members, whereas in the case of an electorate exceeding five thousand but not exceeding ten thousand, the Council’s strength shall be twenty. The Council’s strength shall be twenty-five members if the electorate exceeds ten thousand. In addition, each State Bar Council counts its respective Advocate Generals as members ex-officio. A Chairman, who is assisted by a Vice-Chairman and Secretary, heads each State Bar Council.
Role of Bar Council and State Bar Councils
Rules on Professional Standards
India’s Bar Council sets rules relating to standards of conduct and professional etiquette to be maintained by lawyers in court, with clients, opponents, and with fellow lawyers. The Disciplinary Committee of State Bar Councils initiates disciplinary proceedings against those who violate the rules, and the Bar Council of India acts as an appeals authority for the same.
Legal Training
The Bar Council of India is responsible for the promotion of legal education, in consultation with the universities, and sets the standards of legal education.
The bar council was also responsible for kick-starting the next stage of development of legal education in the country by establishing the first National Law School of India University in Bangalore. Establishing this school of prime law has led to a paradigm change in the teaching of law and science. Students from the National Law Schools founded in different parts of the world shone on the international stage, winning prestigious world-famous moots. Some of which are Philip C. Jessup International Law Moot Competition, Willem Vis International Arbitration Moot Court Competition.
The Bar Council of India Trust
The Indian Bar Council Trust is a public charitable trust aimed at promoting legal study and education. The Trust publishes a quarterly newspaper known as the Indian Bar Review. Being part of its continuing Legal Education Programme, it also conducts a national moot court competition and numerous seminars and workshops.
Bar Associations
Almost every court in the country, apart from BCI and State Bar Councils, has bar associations of advocates who operate at a less formal level. These bar associations take care of the advocates’ welfare, represent their interests and carry out numerous bar social and cultural activities, or even different sections of the bar. The Bar Association of the Supreme Court and the Advocates-on-Record Association of the Supreme Court are an example of two associations which thrive side by side.
Individuals: senior advocates and advocates
There are two groups of advocates: senior advocates and other advocates. Lawyers can be appointed by the Supreme Court or by any of the 25 High Courts as senior advocates. Advocates are appointed with their consent as Senior Advocates if the Supreme Court or High Court is of the opinion that they merit the designation by virtue of their capacity (being at the bar or having special expertise or experience in law). Just 1 percent of the lawyers make up this elite group of senior attorneys who exercise outstanding influence in the profession. Senior counsel receive community priority.
In other courts, a senior lawyer named by one court is often known as a senior. Just the senior advocates hold a joint seniority roll held by BCI. Senior lawyers have some limitations placed on them by the Advocates Act, 961 and the Indian Bar Council. They can not appear without a special lawyer for “briefing” (or an Advocate on Record in the Supreme Court). Seniors are prohibited from writing pleadings and conveyances or taking evidence (A Senior Advocate is not permitted to take any brief directly from a client). The reasons for these limitations are to maximize incentives for younger bar members as well as encourage senior bar members to focus their time on study and education in a competitive manner.
From individual practice to the modern corporate firm sector
Law firms were still present in India, but were primarily confined to the Metropolitan Cities of Bombay, Calcutta, and Madras before the Independence of India in 1947. Such towns had solicitor firms, as well as lawyers. The dual classification system between lawyers and lawyers was abolished in 1970 with compulsory enrolment as advocates, but the dual license system is still being practiced in Bombay and Calcutta, and tests are still being conducted for individuals who wish to qualify as lawyers.
Since the opening up of the economy, almost every city in India has law firms. Large law firms are present in every high court state and region, as well as in shopping centers throughout the country. The division of law firms has been the most affected by globalization and has seen considerable growth, significantly contributing to transactional and litigation work. We also attract the best talent from India’s law schools.
The focus on litigation practice
In an individualistic approach, lawyers practice mostly on their own. They have their own chambers in court or office assisted by their clerks and a couple of juniors depending on their age. And in the case of law firms, most are not litigation-oriented.
The bulk of the lawyers are judicially focused. So, if a lawyer practices at Delhi High Court, this particular court would be devoted to much of his time. While some of the lawyers have started practicing in various other courts these days, these cases are limited to only a few lawyers.
Courtroom advocacy remains the cornerstone of the legal career. More emphasis is placed on oral arguments brought before the court than on written submissions. It represents the supremacy of the British legal model in the Indian court, and only strengthens its supremacy with the kind of prevailing remuneration structure.
The transition to corporate law firms from litigation in recent years has seen law students gravitating to law firms and businesses from prestigious law schools, rather than litigating. The reason for this may be that the new litigation lawyers do not gain as much as their peers in law firms who get paid handsomely. In comparison, as opposed to employment at law firms and businesses, the waiting time for a litigating lawyer is relatively lengthy.
Practices law without a due license
According to Rule 2(xx) of Part IV of the Bar Council of India Rules as set out above, the practice of law is as follows:
- Practice before the Court, the Tribunal, the Authority, the Regulator, the Administrative Authority or the Officer and any quasi-judicial and administrative authority;
- Offer oral or written legal advice, either individually or through a law firm;
- Provide legal advice to any country, foreign body or representative of any foreign dispute resolution agency, including the International Court of Justice;
- Engaged in drafting legislation and participating in any legal proceedings;
- Participating in proceedings under Arbitration or any other Additional Dispute Resolution authorized by law.
In addition to litigious work which requires practice before the courts of law, non-litigious work is also included under the term. There is no ambiguity as to the requirement to be enrolled as a lawyer before appearing and/or exercising in litigious work before the courts. In cases of non-litigious work, it can defer as the same does not entail appearance and/or practice before any court of law and the obligation to be compulsorily enrolled as an advocate under the Act for such type of work has not been specifically envisaged. The Act is not definite when it comes to the penalty on anyone found to be practicing law apart from appearing/practicing before any judge. Therefore, it may be concluded that those who practice law without a license (i.e. registration as a lawyer) do not infringe the provisions of the Act until and unless they appear/practice before the courts.
Important provisions
Section 29 of the Advocates Act 1961
Section 29 of the Advocates Act 1961 states “Advocates to be the only recognized class of persons entitled to practice law- Subject to the provisions of this Act and to any rules laid down therein, as of the specified day, there shall be only one class of persons entitled to practice law, that is, advocates”
Section 33 of the Advocates Act 1961,
Section 33 of the Advocates Act 1961, Practitioners alone entitled to practice- Except as otherwise provided for in this Act or in any other law in effect, for the time being, no person shall, on or after the specified day, be entitled to practice in any court or before any authority or individual unless he is registered as a lawyer under this Act.’.
Section 45 of the Advocates Act 1961
Section 45 of the Advocates Act 1961, “Penalty for persons practicing unlawfully in court and before other authorities- Any person practicing in any court or before any authority or official, in or before which he is not entitled to practice under the provisions of this Act, shall be punishable by imprisonment for a period of up to six months.
Conclusion
The Court has also understood that individuals doing non-litigious work are also obliged to register under the Act as an advocate. The Court concluded as follows. “It has been held that the expression ‘practicing the profession of law’ in Section 29 of the 1961 Act is broad enough to cover both litigious and non-litigious persons in India. Section 35 would apply to both litigious and non-litigious persons. Given the Bombay High Court’s aforementioned judgment and the Court’s interpretation, any person practicing law, litigious or non-litigious work, is required to be enrolled as a lawyer under the Act or otherwise be liable for the punishment under Section 45 of the Act.
References
- https://www.barandbench.com/columns/article-220-non-advocates-practising-law
- https://taxguru.in/corporate-law/unauthorised-practice-law-study.html#:~:text=the%20persons%20who%20are%20practicing,before%20the%20courts%20of%20law.&text=Section%2045%20of%20the%20Advocates%20Act%201961%2C%20reads%20as%20follows%3A&text=Further%2C%20The%20Bombay%20High%20Court%20in%20Lawyers%20Collective%20vs.
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