This article is written by Gursimran Kaur Bakshi, a student at the National University of Study and Research in Law, Ranchi. The author of this article has explained the step-by-step procedure for the transfer of the State Bar Council enrolment registration of an advocate from one State Bar Council to another.
Transfer of registration of the Bar Council enrolment prima facie seems to be a lengthy process. However, in reality, it is not. An advocate who wishes to transfer his enrolment from one State Bar Council to another must know two things. First, the main legislation which governs this is the Advocates Act, 1961 (‘1961 Act’). Secondly, that certain rules are accompanied by this legislation.
Before understanding how the transfer of enrollment registration takes place, there are certain basics that need to be known beforehand. First, there is a difference between the two terms which are ‘lawyer’ and ‘advocate’. Most people and even those who have studied law often use these two interchangeably. As per law, these are two different terms.
A lawyer is someone who is a fresh law graduate. Whereas, an advocate is someone who is enrolled with one of the State Bar Councils and is empowered to exercise the statutory right to practice in different courts and tribunals across India. This is not just a statutory right because the right to practice a profession is recognised as a fundamental right under Article 19(1)(g) of the Constitution of India.
This article will briefly discuss the various nuances of the Advocates Act, 1961 and then it will proceed to discuss the procedure of how an advocate can apply to the Bar Council of India (‘BCI’) for the transfer of his enrolment registration.
About the Advocates Act of 1961
The Advocates Act traces its legislative competence under Entry 77 and 78 of the Union List. The Act, in pith and substance, deals with the qualification, enrolment, legal education, right to practice in courts, enrolment by a State Bar Council, and discipline of advocates. The Advocates Act, 1961, defines an advocate as someone whose name appears on the State Bar Council’s role.
Under the 1961 Act, there are two statutory bodies that are responsible for regulating the rights, functions, and obligations of legal practitioners. To govern the different aspects of the legal practitioners including legal education in India, the Bar Council is formed under the Advocates Act. There are two types of Bar Councils, namely, the BCI at the central level and the State Bar Councils present in different states across India. The list of State Bar Councils is mentioned here.
Application for registration of enrolment
- Under the 1961 Act, every State Bar Council has a duty to register advocates on a roll under Section 6(a). A roll is nothing but a register in which the information of lawyers who are willing to register as advocates are entered. Once the registration is done, the advocate can exercise the right to practice in Courts.
- An application for the registration as an advocate is to be made to the specific State Bar Councils within whose jurisdiction the person wants to practice as per Section 25. A bare reading of the provision makes it clear that a person’s right to practice as an advocate has nothing to do with his place of domicile. It means that irrespective of where the person permanently resides, he can exercise his right to practice in any courts throughout India.
Transfer of registration of enrolment
It should be noted that Section 27 read with BCI Rules under Chapter II prevents the person from making registration for his enrolment in more than one state. Simultaneous registration is prohibited and due action will be taken against a person who attempts to do it. However, a voluntary transfer of registration can be an exception to this rule. The BCI is empowered to deal with the transfer applications under the 1961 Act.
Conditions for the transfer of registration
Section 18 permits a person who has been enrolled in a State Bar Council to transfer his registration to another State Bar Council by applying through an application for the same. The application has to be filled in accordance with the prescribed form by the BCI.
The application can only be made if there are no disciplinary proceedings against the person and that the transfer is for bona fide reasons. In this case also, if the BCI refuses to entertain a transfer application, the person will be given a fair chance of hearing.
Procedure for transfer of registration
- Section 18 read with Rule I, Chapter III of the BCI rules lays down the procedure for the transfer of registration.
- The person who wants to make an application for transfer must refer to ‘Form C’ present in the BCI rules. The person is required to submit this form to the BCI.
- The form should be accompanied by a certified copy of the entry in the state roll, a certificate by the State Bar Council declaring that the person’s certificate of enrolment has not been recalled and that the person is entitled to practice on the date of his application, a declaration that there are no ongoing disciplinary proceedings against him, and that there is no objection on this transfer.
- Once all this is received, on receipt of the application, the Secretary of BCI is required to verify the declarations made by the person above.
- The person is supposed to transmit entire records of his enrolment together with his original application for enrolment. An authentic copy of his original enrolment application must be retained with the original State Bar Council where the application was first made.
- The disposal of the application shall either be dealt with by a committee constituted for this purpose or by the BCI itself. If the committee is hearing the transfer case and it refuses to accept the transfer application, the decision will be referred to the BCI for final orders.
Order of BCI on the transfer of application
- The order of the BCI should be declared in a format as specified under ‘Form D’ and the person should be duly informed of the decision of the Council.
- Under Form D, two subforms, Form D-1 and D-2 are to be used for endorsement.
- On receipt of the decision of the BCI for the transfer, the person must produce the original certificate of his enrolment for endorsement under Form D-1 to the State Bar Council where his name appears on roll.
- The State Bar Council after receiving the endorsement and making important entries on the roll will transmit the enrolment certificate to the State Bar Council to which the transfer application is made and an order for the transfer has been declared by BCI.
- The new State Bar Council which has received the receipt of transfer may use Form D-2 for making a further endorsement.
- Once these formalities are completed, the transfer will be deemed to be successful under Section 18. A copy of the notice of transfer shall be put on the notice board of the transferor and transferee Bar Councils.
- Lastly, the BCI will have to transmit the original records received by the transferor State Bar Council to the transferee Bar Council.
Transfer of registration application is not technical, provided that the person is aware of the law that regulates it along with the procedure. There could be a number of reasons why a person would want to transfer his application. The reasons could either be personal or professional. Whatever may be the reasons, the 1961 Act allows the person to easily transfer his application. However, it should be noted that no person should engage in dual registration as it is not considered the right practice.
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