By Rudransh Sharma, Debayan Banerjee, and Kripalini Mandal, NLUJAA
Editor’s Note: The history of legal profession in India is therefore a history of struggle: for recognition, characterized by prestige, power and income. The professional standing of the advocates of our country evolved and grew till it finally manifested itself in the Advocates Act of 1961.
Mastering the lawless science of our law,
That codeless myriad of precedent,
That wilderness of single instances,
Through which a few, by wit or fortune led,
May beat a pathway out to wealth and fame.[i]
– Lord Tennyson
Legal history or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilizations and is set in the wider context of social history. Among certain jurists and historians of legal process it has been seen as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better understanding the origins of various legal concepts, some consider it a branch of intellectual history. Twentieth-century historians have viewed legal history in a more contextualized manner more in line with the thinking of social historians.
They have looked at legal institutions as complex systems of rules, players and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civil society. Such legal historians have tended to analyze case histories from the parameters of social science inquiry, using statistical methods, analyzing class distinctions among litigants, petitioners and other players in various legal processes. By analyzing case outcomes, transaction costs, number of settled cases they have begun an analysis of legal institutions, practices, procedures and briefs that give us a more complex picture of law and society than the study of jurisprudence, case law and civil codes can achieve.
India has a recorded legal history starting from the Vedic ages and some sort of civil law system may have been in place during the Bronze Age and the Indus Valley civilization.[ii] Notwithstanding this, the development of ‘law’ as a profession is only a recent phenomenon. The Indian legal profession is one of the largest in the world and plays a vital role in the world’s largest democracy. While the roots of this profession lie before Independence, since then the profession has evolved immensely and currently faces various challenges; the most important being to provide access across the profession, ensure ethical foundations and modernize the practice across the board.
A well-organized and independent legal profession is an essential condition for proper administration of justice.[iii] It is also a necessary ingredient and guarantor of the rule of law.[iv] Its proper organization and maintenance of its independence are, therefore, necessary for a good and just society. This project, traces the history of our efforts in that direction. It will be too ambitious to trace that history from the time of ancient or even Muslim rulers because firstly, we have very little information about that and secondly, our present legal profession, like most of the other legal institutions, is based on the British model. Therefore, we trace the history of the Legal Profession in India form the advent of British rule.
The authors of the instant research hope that this piece of work provides the readers with a decent understanding of the history of the Legal Profession in India. The instant work shall give a brief highlight to the development of the Legal Profession in the world before addressing India.
A BRIEF HISTORY OF THE LEGAL PROFESSION IN THE WORLD
The development of the legal profession has received a lot of attention from scholars. This can be seen in Paul Brand’s The Origins of the English Legal Profession (1992), and J.H. Baker’s The Legal Profession and The Common Law – Historical Essays (1986). The eminent jurist Roscoe Pound also wrote The Lawyer from Antiquity to Modern Times (1953).
In Peter Coss (Ed.), Thomas Wright’s Political Songs of England (1996), the following verse occurs:
“Attorneys in country, they get silver for naught;
They make men begin what they never had thought;
And when they come to the ring, they hop if they can.
All they can get that way, they think all is won for them with skill.
No man should trust them, so false are they in the bile.”
2.1. ANCIENT GREECE
The earliest people who could be described as “lawyers” were probably the orators of ancient Athens. However, Athenian orators faced serious structural obstacles. First, there was a rule that individuals were supposed to plead their own cases, which was soon bypassed by the increasing tendency of individuals to ask a “friend” for assistance.[v] However, around the middle of the fourth century, the Athenians disposed of the perfunctory request for a friend.[vi] Second, a more serious obstacle, which the Athenian orators never completely overcame, was the rule that no one could take a fee to plead the cause of another. This law was widely disregarded in practice but was never abolished, which meant that orators could never present themselves as legal professionals or experts.[vii] They had to uphold the legal fiction that they were merely an ordinary citizen generously helping out a friend for free, and thus they could never organize into a real profession—with professional associations and titles and all the other pomp and circumstance—like their modern counterparts.[viii] Therefore, if one narrows the definition to those men who could practice the legal profession openly and legally, then the first lawyers would have to be the orators of ancient Rome.
2.2. ANCIENT ROME
A law enacted in 204 BC barred Roman advocates from taking fees, but the law was widely ignored.[ix] The ban on fees was abolished by Emperor Claudius, who legalized advocacy as a profession and allowed the Roman advocates to become the first lawyers who could practice openly—but he also imposed a fee ceiling of 10,000 sesterces.[x] This was apparently not much money; the Satires of Juvenal complain that there was no money in working as an advocate.[xi]
Like their Greek contemporaries, early Roman advocates were trained in rhetoric, not law, and the judges before whom they argued were also not law-trained.[xii] But very early on, unlike Athens, Rome developed a class of specialists who were learned in the law, known as jurisconsults (iuris consulti).[xiii] Jurisconsults were wealthy amateurs who dabbled in law as an intellectual hobby; they did not make their primary living from it.[xiv] They gave legal opinions (responsa) on legal issues to all comers (a practice known as publice respondere).[xv] Roman judges and governors would routinely consult with an advisory panel of jurisconsults before rendering a decision, and advocates and ordinary people also went to jurisconsults for legal opinions.[xvi] Thus, the Romans were the first to have a class of people who spent their days thinking about legal problems, and this is why their law became so “precise, detailed, and technical.”[xvii]
During the Roman Republic and the early Roman Empire, jurisconsults and advocates were unregulated, since the former were amateurs and the latter were technically illegal.[xviii] Any citizen could call himself an advocate or a legal expert, though whether people believed him would depend upon his personal reputation. This changed once Claudius legalized the legal profession. By the start of the Byzantine Empire, the legal profession had become well-established, heavily regulated, and highly stratified.[xix] The centralization and bureaucratization of the profession was apparently gradual at first but accelerated during the reign of Emperor Hadrian.[xx] At the same time, the jurisconsults went into decline during the imperial period.[xxi]
In the words of Fritz Schulz, “by the fourth-century things had changed in the eastern Empire: advocates now were really lawyers.”[xxii] For example, by the fourth century, advocates had to be enrolled on the bar of a court to argue before it, they could only be attached to one court at a time, and there were restrictions (which came and went depending upon who was emperor) on how many advocates could be enrolled at a particular court.[xxiii] By the 380s, advocates were studying law in addition to rhetoric (thus reducing the need for a separate class of jurisconsults); in 460, Emperor Leo imposed a requirement that new advocates seeking admission had to produce testimonials from their teachers; and by the sixth century, a regular course of legal study lasting about four years was required for admission.[xxiv] Claudius’s fee ceiling lasted all the way into the Byzantine period, though by then it was measured at 100 solidi.[xxv] Of course, it was widely evaded, either through demands for maintenance and expenses or a sub rosa barter transaction.[xxvi] The latter was cause for disbarment.[xxvii]
The notaries (tabelliones) appeared in the late Roman Empire. Like their modern-day descendants, the civil law notaries, they were responsible for drafting wills, conveyances, and contracts.[xxviii] They were ubiquitous and most villages had one.[xxix] In Roman times, notaries were widely considered to be inferior to advocates and jurisconsults.[xxx] Roman notaries were not law-trained; they were barely literate hacks who wrapped the simplest transactions in mountains of legal jargon since they were paid by the line.[xxxi]
2.3. MIDDLE AGES
After the fall of the western Empire and the onset of the Dark Ages, the legal profession of Western Europe collapsed. As James Brundage has explained: “[by 1140], no one in Western Europe could properly be described as a professional lawyer or professional canonists in anything like the modern sense of the term ‘professional.’ ”[xxxii] However, from 1150 onward, a small but increasing number of men became experts in canon law but only in furtherance of other occupational goals, such as serving the Roman Catholic Church as priests.[xxxiii] From 1190 to 1230, however, there was a crucial shift in which some men began to practice canon law as a lifelong profession in itself.[xxxiv]
The legal profession’s return was marked by the renewed efforts of church and state to regulate it. In 1231 two French councils mandated that lawyers had to swear an oath of admission before practicing before the bishop’s courts in their regions, and a similar oath was promulgated by the papal legate in London in 1237.[xxxv] During the same decade, Frederick II, the emperor of the Kingdom of Sicily, imposed a similar oath in his civil courts.[xxxvi] By 1250 the nucleus of a new legal profession had clearly formed.[xxxvii] The new trend towards professionalization culminated in a controversial proposal at the Second Council of Lyon in 1275 that all ecclesiastical courts should require an oath of admission.[xxxviii] Although not adopted by the council, it was highly influential in many such courts throughout Europe.[xxxix] The civil courts in England also joined the trend towards professionalization; in 1275 a statute was enacted that prescribed punishment for professional lawyers guilty of deceit, and in 1280 the mayor’s court of the city of London promulgated regulations concerning admission procedures, including the administering of an oath.[xl]
2.4. LEGAL PROFESSION IN ENGLAND
In England, the admission of lawyers has been regulated since the middle of the 13th century. In the late 13th century, three critical regulations were adopted[xli] – (a) the Statute of Westminster I, chapter 29 (1275); (b) The London Ordinance of 1280; and (c) the Ordinance of 1292, de Attornatis et Apprenticiis. During the medieval period, further regulations were enacted, called the Statute, 4 Henry IV, chapter 18 (1402) and the Ordinance, 33 Henry VI, chapter 7 (1455). In addition, judges have always used their inherent power to control the admission of lawyers and check their misconduct.
2.5. PROFESSIONAL CONDUCT AND THE LAW SOCIETY
The attorneys were expelled from the principal Inns of Court in the 16th century and in 1739 they formed a professional group called “Society of Gentleman-Practicers in the Courts of Law and Equity”.[xlii] Thus the Law Society was born, though it was not until 1986 that the Law Society formed a committee to collect and draft principles of professional conduct. Now there exists the Guide to Professional Conduct of Solicitors reflecting the ideals of modern solicitors as well. Both branches of the English legal profession had the same core duties over the centuries of litigation: fairness, competence, loyalty, confidentiality, reasonable fees and service to the poor.
Nicholas, in Introduction to Roman law, stated that the Roman jurists were not paid for their work, but were supposed to function due to a keen sense of public service. In Europe, lawyers were under an oath, which was an essence, a condensed code of legal ethics.[xliii]
In France, lawyers had to take an oath which included a pledge of care, diligence and an agreement to support only just causes. In France, the oaths were taken by ecclesiastical lawyers and the French legal tradition had a lasting influence even outside France in Switzerland and other parts of Europe.[xliv]
The concept of a lawyer as an officer of the Court arises from the Roman idea of a lawyer being an ‘advocatus’, who when called upon by the praetor to assist in the cause of a client, was solemnly reprimanded to “avoid artifice and circumlocution”.[xlv]
HISTORY OF THE LEGAL PROFESSION IN INDIA
The Legal Profession is an important limb of the machinery for the administration of justice. Without a well-organized profession of law, the courts would not be in a position to administer justice effectively as the evidence in favor or against the parties to a suit cannot be properly marshaled, facts cannot be properly articulated and the best legal arguments in support or against the case of the parties cannot be put forth before the court. “A well-organized system of judicial administration postulates a properly equipped and efficient Bar.”[xlvi] It is, therefore, in the fitness of things to take note briefly of the development of the legal profession in India.
The history of the legal profession in India can be traced back to the establishment of the First British Court in Bombay in 1672 by Governor Aungier. The admission of attorneys was placed in the hands of the Governor-in-Council and not with the Court. Prior to the establishment of the Mayor’s Courts in 1726 in Madras and Calcutta, there were no legal practitioners.
3.2. MAYOR’S COURT
In the Charter of 1726, which established the Mayor’s Courts at the three Presidency Towns, no specific provision was made laying down any particular qualifications for the persons who would be entitled to act or plead as legal practitioners in these courts. Presumably, it was left to these courts to regulate this matter by rules of practice which these courts were authorized to frame.[xlvii] No change was effected in this position when a fresh Charter was issued in 1753.[xlviii] No organized legal profession came into being in the Presidency Towns during the period of the mayor’s Courts.[xlix] They who practiced law were devoid of any legal training or any knowledge of the law. They had adopted the profession in the absence of anything better to do. Quite a few of these so-called lawyers were the dismissed servants of the Company.[l]
3.3. SUPREME COURTS
3.3.1. Regulation Act, 1773.
The first concrete step in the direction of organizing a legal profession in India was taken in 1774 when the Supreme Court was established at Calcutta. The Regulating Act, 1773, empowered the Supreme Court to frame rules of procedure as it thought necessary for the administration of justice and due execution of its powers. Under CI.11 of its Charter, the Supreme Court was empowered to approve, admit and enroll such and so many Advocates and Attorneys-at-law, as to the Court shall deem fit. Attorneys of record were to be authorized to appear and plead and act for the suitors in the Supreme Court. The court was to have the power to remove any Advocate or Attorney on a reasonable cause. No other person whatever, but Advocates or Attorneys so admitted and enrolled, were to be allowed to appear and plead, or act in the Court for or on behalf of such suitors.
Thus the persons entitled to practice before the Supreme Court could be Advocates and Attorneys. The term Advocate at the time extended only to the English and the Irish barristers and the members of the faculty of Advocates in Scotland. The expression “Attorneys” then meant only British Attorneys or Solicitors. As CI.11 of the Charter prohibited any other person whatsoever to appear and plead or act, it would appear that the Calcutta Supreme Court was, from its very inception, a completely exclusive preserve for members of the British legal profession, namely, the British Barristers, Advocates, and Attorneys. The indigenous Indian legal practitioner had no entry in this Court. The Charter of 1774 introduced the British system of legal practice in Calcutta.[li]
The similar position obtained in the two other Supreme Courts at Bombay and Madras. Thus, in the three Supreme Courts, the only persons who were entitled to practice were the British Barristers, Advocates, and Attorneys. The Indians had no right to appear before these Courts. This continued to be the position all through the existence of these Courts.
Under CI.11 of the Charter, the Supreme Court at Calcutta could admit Advocates and Attorneys who could “appear, plead and act for the suitors of the Court.” But, the Supreme Court provided for the Advocates and Attorneys to exercise the ordinary powers of their respective professions-Advocates having power to appear and plead and Attorneys to appear and act, for the suitors. Similar was the position in other Supreme Courts as well. Thus, the two grades of the legal practice became distinct and separate as they were in England. Commenting on the position prevailing at this time, the Supreme Court of India observed in Aswini Kumar Ghosh v Arbind Bose:[lii]
“Though the Supreme Court was given by the Charter Acts and the Letters Patent establishing them, power to enroll advocates who could be authorized by the rules to act as well as to plead in the Supreme Courts, Rules were made empowering advocates only to appear and plead and not to act, while attorneys were enrolled and authorised to act and not to plead. In the Sudder courts and the courts subordinate thereto, pleaders who obtained a certificate from those courts were allowed both to act and plead.”
3.4. COMPANY’S ADALATS
3.4.1. Regulation VII of 1793.[liii]
In the Company’s adalats, the deplorable state of affairs concerning the legal profession has been graphically narrated in the preamble to Bengal Regulation VII of 1793. The Vakils were and largely ignorant of the law and were subject to harassment and extortion from the ministerial officers of the courts. The professional Vakils charged exorbitant fees. Regulation VII called itself on “for the appointment of Vakils or native pleaders in the courts of civil judicature in the Provinces of Bengal, Bihar, and Orissa.” The regulation stated in its preamble the objects of its enactment as follows:
Object of Enactment: “It is therefore indispensably necessary for enabling the courts duly to administer and the suitors to obtain justice, that the pleading of causes should be made a distinct profession and that no persons should be admitted to plead in the Courts but men of passed by the British Government, and that they should be subjected to rules and restrictions calculate to secure to their clients a diligent and faithful discharge of trusts. The pleaders therefore on either side whilst they will bring the merits of every case to light and collect into one point of view of the information necessary to enable the courts to form their opinion upon it, will be a check upon them by exposing every deviation from the law in their judgments.”
Provisions: The regulation thus laid emphasis on the useful role which a sound legal profession can play in the administration of justice. The Regulations were enacted with a view to strengthening the legal profession in the best interests of the litigant public, the members of the bar serving trustees of their clients and thus helping in the sound administration of justice. The Regulation created for the first time a regular legal profession for the Company’s adults. The Regulation brought some order and measure of quality to pleading and sought to establish practice of law as a pleaders and also a scale of professional fee based on a percentage of the value of the property. He could not demand or accept any fee, goods, effects or valuable consideration from his clients over and above the sanctioned fees. The ultimate punishment for such a violation was dismissal of the lawyer. Thus, the theory of freedom of contact between the Vakil and his client was not recognized. The fees of the pleaders were payable only after decision, and not before, the Court being practically the paymaster.
An interesting provision made was that after a party retained a pleader, he was to execute a vakalatnama constituting him pleader in the clause and authorizing him to prosecute or defend the matter and binding himself to abide by and confirm all facts which such pleader might do or undertake in his behalf in the cause, in the same manner as if he has been personally present and consenting. This provision is the genesis of the modern vakalatnama.
An extraordinary feature of this Regulation was that only Hindus and Muslims could be enrolled as pleaders. Persons for the purpose were to be selected from amongst the students of the Muhammadan College at Calcutta and the Hindu College at benaras. The Sadar Diwani Adalat could appoint other proper persons of good character and liberal education if sufficient number of persons qualified from the said college were not available. Vakeels attached to one court were not permitted to plead in any other court without the sanction of the Sadar Diwani Adalat.
Every pleader was required to attend the court to which he was attached punctually and regularly. If he was unable to attend the court due to any reason he had to notify it in writing to the Registrar of the court. Failure to do so made him liable to a fine. The courts exercised several disciplinary powers over the Vakils. A pleader showing disrespect to the court in open court could be fined up to one hundred rupees by the court. The court could suspend a pleader if convicted of encouraging litigious suits, frauds, or gross misbehavior. Further action against the lawyers could be taken by the Sadar Adalat. A Vakil found to charge more fee than authorized by the Regulation could be dismissed by the Sadar Adalat. Taking note of the drastic control which was imposed on the legal profession in 1793 by Regulation VII, a commentator has observed:[liv]
“What was intended to be the first chatter of the profession turned out to virtually its death warrant. The legal profession which had retained its independent existence down to 1793 was broken up and the members of the bar were made, in a sense, subordinate to the Courts and they were still left an appearance of freedom within narrowly circumscribed limits.”
The provisions in the Regulation were not fully consistent with the objects stated in the Preamble thereto. In effect, the Vakils were converted into servants of the court. It was doubtful if Vakils being under tight control and supervision of the courts could effectively discharge another function envisaged of them in the Preamble, viz., to point out any deviations from the law made by the courts.
3.4.2. Regulation XXVI of 1814[lv]:
From time to time several other Regulations were passed to regulate the legal profession in the Company’s adalats in Bengal, Bihar, and Orissa. Then came a rather lengthy and detailed regulation. Regulation XXVII of 1814, passed on 29 November 1814, which consolidated the law on the subject. The purpose of the Regulation as stated in its Preamble was:
“For reducing into one regulation, with amendments and modifications the several rules which have been passed regarding the office of the Vakeel or native pleader in the Courts of Civil Judicature.”
Provisions: This consolidating and amending Regulation came into force on 1 February 1815 throughout the whole of the territory subject to the Presidency. The power for licensing, disciplining and removal of Vakils which was hitherto vested in the Sadar Adalat was now conferred by the Regulation in the Provincial court also. Whenever the appointment of a Vakeel was required in any court, the judge was to nominate some suitable person for the approval of the Provincial Court. The only person of Hindu or Muhammadan persuasion were eligible for appointment as pleaders.
The rule concerning fees, practice, government pleaders and malpractice were considerably more detailed than before. Preference for enrolment as Vakils was to be given to candidates educated in any of the Muhammadan or Hindu Colleges established or supported by the Government provided that such candidates were in other respects duly qualified for the position. Vakeels were to subscribe to several agreements as required by the Regulations, viz., not to receive less than the prescribed rates of fees[lvi]; not to plead in other courts than to which attached. The disciplinary powers over the Vakeels were re-enacted in substantially the same form as in the 1793 Regulations.
The power of dismissing Vakeels has vested in the Sadar Diwani Adalat as well as the Provincial Court, and a Zillah and city court could suspend a Vakeel. Even the professional work of the Vakeels came under the scrutiny of the courts. The courts were required to carefully point out to the notice of the Vakeels such part of their pleadings as were irrelevant, and otherwise objectionable, and to record their censure of any Vakeel whose conduct was opposed to the practice of the court as laid down by rules or otherwise demanded an inadversion.
3.4.3. Regulation of 1831
Regulation V of 1831 prescribed that vakils need not Hindu or Muhammadan, but could be persons belonging to any religion. Bengal Regulation XII of 1833 modified the provisions of the earlier regulations regarding selection, appointment remuneration of the pleaders. The regulation permitted any qualified person of whatever nationality or religion to be enrolled as a pleader of Sadar Diwani Adalat. The parties were also given freedom to settle with the pleaders any fees for their professional services.[lvii]
3.4.4. Madras and Bombay Regulations
Madras Regulation X of 1802 copied verbatim Bengal Regulation VII of 1793 with minor verbal attractions. One notable difference being that pleaders were permitted to stipulate for more, but not less, than the regulation fee payable to them. Madras Regulation XIV of 1816 was modeled on Bengal Regulation XXVII of 1814. It provided for some decentralization of powers of the courts over Vakils.
In Bombay, Regulation XIV of 1802 was a consolidating regulation modeled entirely on Bengal regulation verbatim with minor variations here and there. Further consolidation of the regulations relating to legal practitioners was affected by Regulation I of 1827 which repealed all the previous Regulations on the subject. The Regulation went much further than the Bengal regulations e.g., every person duly qualified was entitled to get a sannad to practice without any reference admitted to practice in a court and henceforth any qualified person of good character was enacted between the Vakil and the client was recognized and a lawyer could agree with his client for a larger or smaller fee than the established fee.[lviii]
3.4.5. The Legal Practitioners Act,1846
The Legal Practitioners Act (1 of 1846), which was the first All-India law concerning the pleaders in the mofussil, made several important innovations, namely:
1) The office of the pleaders in the courts of the Company was thrown open to all persons of whatever nation or religion, provided he has duly certified (in such manner as directed by the Sadar Courts) to be of good character and duly qualified for the other office. Thus, religious test was abolished for enrolment as a Pleader.
2) Every barrister enrolled in any of Her Majesty’s Courts in India was made eligible to plead in the Sadar Adalats subject to the rules of those Courts applicable to pleaders as regards as language or any other matter.
3) Vakils were allowed freedom to enter into agreement with their clients for their fees for professional services. This Act is regarded as “the first charter of the legal profession”[lix] although it left unsolved the important question of the right of vakils to practice in the Supreme Courts.[lx]
The Legal Practitioners Act, 1853 (Act XX of 1853), declared every Attorney on the roll of any of Her Majesty’s Supreme Courts to be entitled to be plead in any of the Company’s Sadar Adalat. The Barristers and Attorneys of the Supreme Courts were permitted to plead in the Company’s Adalat (subordinate to the Sadar Adalats) as well. Thus, while Barristers and practitioners were rigorously kept out of the three Supreme Courts. The reason was that the authorities held a poor opinion of the native lawyers and it was thought that appearance of English Barristers in the Company’s Adalats would improve the situation.[lxi]
The Act also did away with the system of compulsory attendance of the pleaders in the court to which they were attached. Henceforth no pleader was bound to attend in any court of company on any day fixed for the transaction of civil business or to notify the court his inability to attend unless he was employed in some business or cause which according to the court practice, might be heard or transacted herein on the day.[lxii]
3.4.6. Pleaders, Mukhtars and Revenue Agents
For long there functioned non-licensed inferior grades of practitioners in the mofussil, known as mukhtars, who practiced in criminal courts as well as acted as solicitors for the pleaders. There also functioned revenue agents in revenue offices. All these were recognized and brought under control of the courts for the first time through the pleaders, Mukhtar, and Revenue Agents Act XX of 1865. The High Courts were authorized to make the rules for the qualifications, admission and enrollment of proper persons to be Pleader, Mukhters, for the fee to be paid for the examination, admission and enrolled. Revenue Agents who worked in the revenue offices and courts were also given status as legal practitioners by this Act. They were deemed to be the lowest in grade and did not play a significant part in the development of the legal profession.[lxiii]
3.5. HIGH COURTS
3.5.1. Three Categories of Practitioners
In 1861, legislation was passed by the British Parliament to establish High Courts at Calcutta, Madras, and Bombay. At this time, there were in existence three bodies of practitioners in the Supreme Courts and, the Sadar Adalats-Advocates, Attorneys and Vakils. CI9 of the Letters Patent of 1865 of the High Court of Calcutta empowered the Court “to approve, admit and enroll such and so many Advocates, Vakils and Attorneys as to the said High Court shall deem fit.” These persons were “authorized to appear for the suitors of the High Court, and to plead or to act, or to plead and act for the said suitors, according to as High Court may by its rules and directions determine, and subject to such rules and directions.”[lxiv]
CI.10 of the Letters Patent ran as follows:
“…the said High Court of Judicature at Fort William in Bengal shall have power to make rules for the qualification and admission of proper persons to be advocates, Vakeels, and Attorneys-at-law of the said High Court and shall be empowered to remove or to suspend from practice, on reasonable cause, the said Advocates, Vakeels, or Attorneys-an-laws ; and no person whatsoever, but such Advocates, Vakels or Attornies shall be allowed to act or to plead for on behalf of any suitor…”[lxv]
Similar provisions were made in the Charters of the High Courts of Bombay and Madras.
The admission of Vakeels to practice before these High Courts put an end to monopoly which the Barristers had enjoyed in the Supreme Courts preceding the High Courts. This very much increased the practice and prestige of the India Lawyers by giving them opportunities however achieved without some struggle. The Commissioners appointed to arrange the merger of the Sadar Adalat and the Supreme Court had suggested that the proposed High Court benches be exclusively British and that the bar is open only to the Barristers.[lxvi] But, this suggestion was opposed by several persons on the ground that the exclusion of Indians would nourish class antipathies and injure “at once the state and the individual by depriving the public of the service of the ablest men, preventing wholesome competition, and unduly exalting some without reference to their personal merits and depressing others.”[lxvii]
According to the rules framed by the Chartered High Courts, speaking broadly, there were three categories of legal practitioners: Attorneys, Advocates, and Vakils. Advocates were mainly the Barristers of England or Iceland or the members of the faculty of Advocates of Scotland. The Vakils were Indian Practitioners.[lxviii]
To begin with, on the Original side of the High Courts only Advocates were entitled to appear and plead, on the instruction of Attorneys. On the original side the High Court, solicitors and Advocates remain distinct. This differentiation in the function of legal practitioners was continued under the notion that the High Courts, in the exercise of its Ordinary original Jurisdiction, was the successor of the Supreme Court. On the other hand, the Advocates were entitled both to act and plead on the Appellate Side of the High Court and its subordinate courts. This was because of the feeling that the High Court, on its appellate side, inherited the jurisdiction and powers of the Sadar Adulates. Because of these distinctions, the Vakils were not allowed to act or plead on the Original Side, but they could both act and plead on the Appellate Side.[lxix]
3.5.2. Madras H.C.
Within a short time, the Madras High Court altered its rules. As early as 1866, this Court permitted Vakils admitted under the rules of 1863[lxx] and Attorneys to appear, plead and act for suitors on the Original Side. The result, therefore, was that in the Madras High Court there remained no distinction between Barristers, Vakils and Attorneys as regards their rights to appear and plead on the Original Side. Under the new rules, while the vakils and Attorneys could also act on the original side, the Advocates had to be instructed by an Attorney.
These rules admitting Vakils on the Original Side were challenged by the Attorneys of the High Court in the High Court itself in In the Matter of the Petition of the Attorneys.[lxxi] Their grievance was that these rules had worked great injustice to the Attorneys and Advocates of the Court by taking away a large portion of their practice. Also, the rules had admitted to the Original Side a set of practitioners who were less specially and professionally educated for the practice of law than the Advocates and Attorneys. These rules were challenged as being ultra vires the explanatory letter of the Secretary of State enclosing the Charter of 1862.
The relevant clauses in the Charter of 1865 concerning admission of Advocates, Attorneys and Vakils to practice in the Courts were challenged as being ultra vires the Indian High Courts Act. The High Court ruled that the rules permitting the Vakils to appear, plead and act on the Original Side of the High Court were not ultra vires. These rules were framed under Clauses 9 and 10 of the Letters Patent of 1865. The Court observed:
“…the High Court is empowered by the Letters Patent to enroll Vakils, who are thereby expressly authorized (if the Court so directs) to appear, plead and act for the suitors of the court and not merely for the suitors of the division of the Court.”
Having upheld the legality of the rules, the High Court did however point out an anomaly in the existing situation, viz., “The largest powers are given to one class of practitioners (the Vakils) who are certainly not in advance of the Advocates and Attorneys of the Court in respect of attainment and professional skills.” Therefore, the Court suggested that “some change is required in the present system of admitting Vakils and in the rules of the ascertainment of their qualifications whereby we hope to secure professional attainments proportioned to their large privileges.”[lxxii]
The matter again came before the High Court in 1916 in Namberumal Chetty v. Narasimhachari,[lxxiii] and the rules permitting the Vakils to appear, plead and act for suitors in the matters of ordinary original jurisdiction were held to be within the powers conferred on the Court by the Letters Patent of 1865. The Court also ruled that S4 of the Legal Practitioner Act, 1879, did not prevent a Vakil from appearing on the Original Side of a High Court.
3.5.3. Bombay H.C.
The Original Side of the Bombay High Court was initially a close preserve of the Barristers alone could be enrolled as Advocates entitled to appear and plead on the Original Side on the instructions of any Attorney. The Vakils were not originally permitted to act or plead on the Original Side. This position, however, was relaxed in course of time and a non-Barrister, on passing an examination conducted by the High Court, became eligible for enrolment as an Advocate entitled to appear and plead on the Original Side.[lxxiv] The only limitation was that the Advocates’ of the Original Side, whether Barristers or non-Barristers, had to be instructed by an Attorney before they could appear and plead.
The Vakils of the Calcutta High Court was not entitled to act or plead on the Original Side or in appeals from the Original Side. The High Court maintained this distinction right up to the year 1932. [lxxv]
3.5.4. Calcutta H.C.
In course of time, the Calcutta High Court also liberalized its rules so as to permit non-Barrister Advocates to practice on its Original Side as well which so far had been preserve of the Barristers only. Thus, the distinction between Barristers and Advocates was abolished. There was really no rational reason for any such distinction. In this way what, in the words of K.M. Munshi, was “a hated monopoly or at least an anomaly foisted on them by an alien race” came to an end. However, no Advocate, whether Barrister or not, could act on the Original Side but had to appear and plead on the instruction of an Attorney on record.[lxxvi]
In no High Court other than the three High Courts, of Bombay, Calcutta, and Madras, there was original jurisdiction. Consequently, in the other High Courts except for these three high Courts, there was no distinction maintained between Advocates and Solicitors as well as between Advocates (who were Barristers) and Vakils as regards their respective rights to appear act and plead.[lxxvii]
3.5.5. Non-Chartered H.C.s
In the non-Chartered High Courts, there used to be the Advocates were usually the Barristers, Pleaders, and Mukhtars differed from High Court to High Court in the courts below the High Courts, there used to be different classes of legal practitioners. The setting up of a regular hierarchy of courts of varying jurisdiction and important necessarily led to the creation of different categories of legal practitioners. Because, of paucity of law graduates, permission was granted, to others also to practice as Vakils after having passed an examination conducted by the High court concerned.[lxxviii]
3.6. THE LEGAL PRACTITIONERS ACT.1879
The Act, XVIII of 1879, was enacted to consolidate and amend the law relating to legal practitioners in the mofussils.[lxxix] The Act repealed the Pleaders, Mukhtars and Revenue Agents Act 1865. At this time, there were six grades of practitioners functioning in India. Advocates, Solicitors (Attorneys), and Vakils of the High Court: Pleaders, Mukhtars and revenue agents in the lower courts. The High Court laid down standards for admission of Vakils to practice in the High Court; for Zila Courts, standards were laid down in the Regulations which were lower for pleaders than the High Court vakils. Thus, Vakils became a distinct grade above the Pleader.
3.6.1. Six grades of Legal Practitioners
The Legal Practitioners Act, 1879, brought all the six grades of legal practitioners into one system under the jurisdiction of the High Courts. The Act empowered an Advocate or a Vakil on the roll of any High Court to practice in his own High Court, in all the courts subordinate thereto, in any court in British India other than a High Court on whose roll he was not entered or with the permission of the court in any High Court on whose roll he was not entered. There was a provision, however, to this section to the effect that this power would not extend to the Original jurisdiction of the High Court in a Presidency Town. An Attorney on the roll of any High Court was enabled to practice in all the courts subordinate to such High Court and also in any court in British India other than a High Court established by Royal Charter on the roll of which he was not entered. The right to practice thus conferred by these provisions included the rights to plead as well as to act in the courts.[lxxx]
The Act conferred power on the High Court not established under a Royal Charter to make rules, with the previous sanction of the Provincial Government, to prescribe the qualifications, admission and certificates of proper persons to be Pleaders and Mukhtars of the High Court as well as the subordinate courts, and for suspension and dismissal of these persons. But a Chartered High Court could make such rules for Pleaders and Mukhters of subordinate courts without the approval of the Provincial Government concerned.
Under the rules framed by the High Courts under the Legal Practitioners Act, law graduates who not possesses the additional qualification to enabled to them to be enrolled as the High Court Vakils, and non-law graduates after passing the pleaders examination conducted by the high Court, were enrolled as Pleaders to practice before subordinate courts. These pleaders could not practice before the High Court, unless after a certain numbers of years practice they enrolled themselves as High Court Vakils. In course of time, the High Courts framed rules under S.6 of the Act permitting only those who had taken an L.L.B. degree from an Indian University to enroll as Vakils.
Besides the Pleaders, there were Mukhtarship who after passing the Matriculation or equivalent examination passed the Mukhtarship examination held by the High Court. The Mukhtars pleaded mainly before the criminal courts. The Revenue Agents were to be regulated by rules made by the Chief Controlling revenue Authority. The legal profession in India thus presented a very confused picture.[lxxxi]
The Pleaders and Mukhtars of the High Courts (except the Attorneys), and of those of the subordinate courts, were subject to the disciplinary jurisdiction of the High Court under the Act.
3.6.2. The Legal Practitioner Act, 1884
The power to make rules regarding Advocates of the High Court was also conferred on the non-chartered High Courts by the Legal Practitioners Act, 1884 (X of 1884). Such a High Court could make rules, with the previous sanction of the Provincial Government, as to the qualifications and admission of proper persons to be Advocates of the Court, and subject to such rules could enroll so many Advocates asit thought fit. The High Court could dismiss any advocate or suspend him from practice after giving him an opportunity of defending himself, but such an order needed the confirmation of the Provincial Government.[lxxxii]
The Calcutta High Court held that women were not entitled to be enrolled as Vakils or Pleaders of courts subordinate to the High Court. A similar case came before the Patna High Court. Miss Hazara secured a B.L. Degree for the Calcutta University. She was refused enrolment as Pleader. She challenged this in the High Court of Patna. The Court ruled that the section of the Legal Practitioners’ Act referred to males and not to females. This was to be expected as since 1793 no women held ever been admitted to the roll of pleaders.
Dawson Miller, C.J. observed: “…it is not shown that the women ever acted as pleaders in the courts of this country. On the contrary the enactments referred to show that they have been invariably excluded not by any direct prohibition but inferentially by words appropriate only to the male sex, as though the matter were one well settled by inveterate usage and requiring no express legislation.”
3.6.3. The Legal Practitioners (women) Act, 1923
To remove doubts about the eligibility of women to be enrolled and to practice as legal practitioners, the Legal Practitioners (Eomen) Act, XXIII of 1923, was enacted to expressly provide that no woman would by reason only of her sex disqualified from being admitted or enrolled as a legal practitioner or from practicing as such. Since this enactment, women began getting enrolled as legal practitioners and their number has been increasing ever since.[lxxxiii]
3.7. INDIAN BAR COMMITTEE, 1923
Munshi Ishwar Saran moved in February 1921, a resolution in the Legislative Assembly recommending legislation “with a view to create an Indian Bar so as to remove all distinction enforced by statue or by practice between Barristers and Vakils.” The mover of the resolution not only laid emphasis the removal of distinction between Barristers and Vakils but also advocated the constitution of a recognized body consisting exclusively of lawyers in India to provide for legal education, to exercise disciplinary control over the Bar and to deal with all others matters relating to the legal profession. This was deemed important because many High Courts exercised disciplinary powers over lawyers on the theory that Vakils were officers of the court. As finally adopted, the resolution merely recommended the eliciting of opinion from all quarters before undertaking legislation in the proposed direction.[lxxxiv]
In response to the pressures thus generated the Government of India in 1923 appointed the Indian Bar Committee, popularly known as the Chamier Committee, under the Chairman of Sir Edward Chamier, a retired Chief Justice of the Patna High court. The Committee was composed of four Barristers, one Attorney, one civilian and three representatives of the Vakil Bar. The Committee was asked to examine and report on the proposal to constitute an Indian Bar, whether on an all-India or Provincial basis, and the extent to which the existing distinction between Barristers and Vakils might possibly be removed.
Thus, the Committee made certain proposals to achieve “the largest degree of unification of grades of practitioners” which was then possible to effectuated. Accordingly, the Committee recommended inter alia:
(a) that in all High Courts, a single grade of practitioners entitled to plead, to be called advocates (not Barristers), should be enrolled, and that the grade of for admission to plead on the Original Side of a High Court Vakils or Pleaders be abolished;
(b) that when special conditions are maintained for admission to plead on the Original Side of a High Court, the only distinction should be within the grade which should consist of Advocates entitled to appear on the Original Side and Advocates not so entitled;
(c) that Vakils fulfilling certain conditions be admitted to practice on the original Side;
(d) that the future one-third of the High Court Judges need not necessarily be Barristers;
(e) that Advocates of one High Court should be entitled to practice in another High Court subject to the conditions to be imposed by the Bar Council of the latter court, or by the court where there is no Bar Council.
On the question of organizing the legal profession on an all-India basis, the Committee came to the conclusion that it did not consider it practicable at the time to organize the bar on an all-India basis or to continue an all-India bar Council. The Committee suggested however that a Bar Council should be constituted for each High Court. But, immediately such bar Council were to be established for a few and not all High Courts. The Bar Council should have the power to enquire into matters calling for disciplinary action against a lawyer, but the existing disciplinary jurisdiction of the High Court should be maintained.
The Committee proposed that a Bar Council should have power to make rules subject to the approval of the High Court concerned in respect of such matters as inter alia:
(a) the qualifications, admission, and certificates of proper persons to be advocates of the High Court ;
(b) legal education
(c) matters relating discipline and professional conduct of Advocates, etc.;
(d) the terms on which advocates of another High Court could appear occasionally in the High Court to which the bar Council is attached;
(e) any other matter prescribed by the High Court.
3.8. THE INDIAN BAR COUNCILS ACT, 1926
To give effect to the recommendations of the Chamier Committee to some extent, the Central Legislature enacted the Indian Bar Councils Act, 1926.[lxxxv] The object of the Act, as stated in its preamble, was to provide for the constitution and incorporation of bar Councils for certain Courts in British India, to confer powers and impose duties on such bar Councils, and to consolidate and attend the law relating to legal practitioners entitled to practice in such courts. The purpose of the act thus was to unify the various grades of legal practitioners and to provide some measure of self-government to the bars attached to the various Courts.
The Act extended to the whole of British India, but it was applied immediately only to the High Courts of Calcutta, Madras, Bombay, Allahabad and Patna. The Act could be applied to such other High Court as the “Governor-General in Council may, by notification in the Official Gazette, declare to be High to which the Act applied.”[lxxxvi] Sections 3 to 7 of the Act dealt with the constitution and incorporation of a Bar Council as a body corporate and its powers of making by-laws.
There was to be a Bar Council for each High Court. A Bar Council was to consist of 15 members as follows: Advocate –General, four persons nominated by the High Court, of whom not more than two could be the judges of that court; ten members elected by the advocates of the High Court from amongst themselves. A Bar Council was to elect a chairman and a vice chairman but in Madras, Calcutta and Bombay the Advocate general was to be ex-officio chairman of the Bar Council.
3.9. ALL INDIA BAR COMMITTEE, 1951
The Indian Bar Councils Act had left the pleaders, Mukhters etc. practicing in the mofussil courts entirely out of its scope and did not bring about a unified Indian Bar. Further, the Councils constituted under the Act were merely advisory bodies and were neither Autonomous nor had any substantial authority. The Indian Legal profession was not satisfied with what had been achieved by the Act of 1926. The Indian Practitioners had three main aims in view, namely:
- The abolitions of all distinctions between various classes and grades of legal practitioner,[lxxxvii]
- The democratization of Bar Councils by bringing in representatives Mofussil Lawyers on them,[lxxxviii]
- The taking away of the control exercised by the High Courts over the members of the legal profession, and vesting the same in the Bar Council.[lxxxix]
To end this, they continued the effort for a long period of time. With the establishment of the Supreme Court of India in 1950, under the new consideration, a new stimulus was given to the demand for a unified All India Bar.
Accordingly, in 1951 the Govt. of India constituted a Committee under the chairmanship of Justice S. R. Das of the Supreme Court to examine a report on[xc] –
(a) The desirability and feasibility of a completely unified Bar for the whole of India
(b) The continuance or abolition of the dual system of council and solicitor which obtains in the Supreme Courts and in the High Courts of Bombay and Calcutta.
(c) The continuance or abolition of different classes of legal practitioners, like advocates of the Supreme Courts, advocates of the various High Courts, district court pleaders, Mukhters, revenue agents, income tax practitioners etc.
(d) The desirability or feasibility of establishing a single Bar Council
- For the whole of India; or
- For each state
(e) The establishment of a separate Bar Council for the Supreme Court
(f) The consolidation and revision of the various enactments relating to legal practitioners;
(g) All other connected matters.
3.9.1. Report of the All India Bar Committee
The Committee reported in 1953 and recommended the creation of a unified national bar. The Committee recommended that all grades of legal practitioners be abolished and that one integrated an autonomous All India Bar be formed. There should be a common roll of advocates who would be entitled to practice in all courts in the country. The Committee accordingly suggested compilation and maintenance of one comprehensive common roll of advocates.
The committee recognized that the task of preparation of a common roll of advocates would be difficult but was not an impossible one. The committee made recommendation as to how a State Bar Council was to compile a register of all existing advocates, Vakils and pleaders and sent copy of the same to the All India Bar Council which was then to compile a common roll of advocates.[xci]
The establishment of a unified All India Bar necessarily would require the prescription of minimum qualification to be possessed by a advocate. At the time the committee went to a question qualifications required by different High Court were not uniform. The committee suggested that the uniform minimum qualification for admission to roll of advocates should be a law degree from university obtained at least a two year study of law after graduation as regards new entrance, a candidate having the minimum qualification may apply for enrollment as an advocate to any State Bar Council. On his name being entered in the register of advocates of the state, his name would also be entered in the common roll of advocates maintained by the All India Bar Council.[xcii]
The committee was not favour of abolition of the dual system (advocates & attorneys) whenever it prevails in the High Court as if involved a division of labour and had a no. of advantages and di not militate against the ideal of the All India Bar. The dual system ensured for the better preparation of the case.[xciii]
The committee was of the view the different classes of legal practitioners be abolished. In earlier times, when there was a dearth of law graduates, it was necessary to create inferior grade of lawyers with varying qualification to practice in subordinate courts. So, there came into existence vakils and advocates of the High Court as well as pleaders and Mukhtars. In the larger interest of the unification of the Bar the committee recommended that in future there should be no further recruitment of non graduate leaders and Mukhtars, and that there should be only one class of legal practitioners, viz., advocates.[xciv]
The committee also recommended the creation and All India Bar Councils and State Bar Councils. Under the Indian Bar Council Act’1926, the Bar councils were merely advisory bodies in the power of admission, suspension and removal from the role of advocates were entirely vested in the respective High Courts. Subject to some safeguards, the committee suggested that in the interest of a Autonomous National Bar, the power of enrollment, suspension and removal of advocates be vested in the Bar Councils. The committee did not feel the need for a separate Bar Council for the Supreme Court. Every advocate on the common roll to be maintained by the All India Bar Council would be entitled as of right to practice in the Supreme Court and be amenable to the jurisdiction of the appropriate State Bar Council and of the All India Bar Council.[xcv]
3.10. LAW COMMISSION REPORT: 1958
The recommendations of the Bar Committee were not acted upon for long. Then India came to have a Law Commission, and of its terms of reference mentioned “The level of the Bar.” The law Commission made its famous Fourteenth report in 1953 in which, among other things, it again recommended establishment of a unified All India Bar, preparation of a common role of advocates with right to practice in all the courts. The c committee lamented that notwithstanding the lapse of ten years, “the Bar still remains divided into different grades of practitioners and even practitioners of the lowest grade, namely, Mukhtars, a still being recruited in some of the states”.
The Law Commission regretted that the recommendation made by the Bar committee as per back as March, 1953, had not yet been given legislative effect. The committee fully endorsed the recommendation of the Bar committee, 1951, that there should be no further recruitment of non graduate pleaders of Mukhtars. The commission also endorse the Bar committees view that the insistence on a certain no. of years practice in a High Court as a condition of eligibility for enrollment as an advocate of the Supreme Court should be abolished and that an advocate should be left free to practice in any court including the Supreme Court irrespective of his standing at the bar.
The commission also agreed with the Bar Committee that no case had been made out for the abolition of the dual system prevailing on the Original Side in the Calcutta and the Bombay High Court and that there was no reason why that system should not continue in those two places. The commission felt that the system made for greater efficiency.[xcvi]
The commission also favoured division of the Bar into senior advocates and advocates on a voluntary basis. An advantage of the system would be to put some work in the hands of the junior member of the bar. The system did not militate against the concepts of a unified All India Bar in a common roll of advocates entitled to practice in all courts in the country.
The Committee emphasized the principle of autonomy of the Bar on which the Bar Committee of 1951 had laid stress. Therefore, the Bar Councils would to be entirely Autonomous Body consisting wholly of the members of the profession. The Bar Council would elect their own chairmen.
3.11. THE ADVOCATES ACT, 1961
In 1961, parliament enacted the Advocates Act to amend in consolidated the law relating to the legal practitioner, and to provide for the constitution for the State Bar Council and All India Bar Council. The Advocates Act implements the recommendation of the Bar Committee in the Law Commission with some modifications. It repeals the Indian Bar Council Act, 1926, the Legal Practitioners Act, 1879, in other laws under subject. The act has undergone several amendments since its enactment in 1961. The Act extends to the whole of India.
The Act establishes an All India Bar Council for the first time. The Attorney General of India in the Solicitor General of India is the ex-officio members of the Bar Council of India. Besides, it has one member elected by its State Bar Council from among its members. The Council elects its own chairman and vice-chairman. The Bar Council of India has been entrusted inter alia with the following important functions:
(1) To lay down standards of professional conduct and etiquette for advocates.
(2) To safeguard the rights, privileges and interest of advocates
(3) To promote legal education
(4) To lay down standards of legal educati0on in consultation with the universities imparting such educations in the State Bar Councils.
(5) To recognize universities which degrees in law shall qualify for enrollment as an advocate and up to visit and inspect the universities for that purpose.
(6) To exercise general supervision and control over state bar councils.
(7) To promote and support law reform
(8) To organize legal aid to the poor.
The Act creates a State Bar Council in each state. It is an autonomous body. The Advocate General of the state is an ex-officio member, and there are 15 to 25 elected advocates. These members are to be elected for a period of five years in accordance with the system of proportionate representation by means of single transferable votes from amongst advocates on the roll of the State Bar Council. The State Bar Council has power to elect is own chairman. The main powers and functions of the State Bar Council are:
(a) To admit persons as advocates on its roll
(b) To prepare and maintain such rolls.
(c) To entertain and determine cases of misconduct against advocates on its roll
(d) To safeguard the right, privileges and interest of advocates on its roll
(e) To promote and support law reform
(f) To organize legal aid to the poor
Thus, every State Bar Councils prepares and maintains a roll of an advocate as an authenticated copy of the roll which to be sent to the Bar Council of India.
Advocates have been classified into Senior Advocates and other Advocates. An Advocate may, with his consent, be designated as a Senior Advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, experience and his standing at Bar he is deserving of such distinction. Senior Advocates are, in the matter of their practice, subject to such restrictions as the Bar Council of India may, in the interest of the legal profession prescribe
Originally, the Act had saved the dual system i.e. Advocates and Attorneys, prevailing in the Bombay and Calcutta High Courts on their Original Side.[xcvii] It was left to the two High Courts to continue the system or not. These provisions were deleted with effect from 1st January 1977. The result is that, as a matter of law, Attorneys are no longer recognized as a separate class of lawyers. However, since the system prevailed for a long period in the two towns it continues there still as a matter of practice.
Thus, admission, practice, ethics, privileges, regulation, discipline and improvement of the profession are now all in the hands of the hands of the profession itself. The legal profession has achieved its long-cherished object of having a unified Bar on All-India basis.
3.12. SUPREME COURT BAR
The rules of the Federal Court laid down “a person shall not be entitled to be enrolled as an Advocate unless he is, and has been for not less than ten years in the case of a Senior Advocate or five years in the case of any other Advocate, enrolled as an Advocate in the High Court of a Province”. Under those rules it was not necessary that such an Advocate should hold a degree in law of a University.[xcviii] Any Advocate enrolled with a State Bar Council is now entitled to practice in the Supreme Court irrespective of his standing at the Bar.In the Supreme Court there exist three categories of advocates Senior Advocates, Advocates and Advocates on record.
A Senior Advocate is one who with his consent may be designated as such if the Supreme Court is of the opinion that by virtue of ability, experience and standing at the Bar he is deserving of such distinction. An Advocate can become an Advocate on record after undergoing one year training with an Advocate on record and passing an examination held by the Court. He has to have an office in Delhi within a radius of 16 kilometers of the Court House and has to employ a registered clerk.[xcix]. An Advocate on record corresponds to a Solicitor in Calcutta or Bombay and has the right both to act and plead. Senior and other Advocates have only the right to plead but not act. A senior Advocate cannot appear before the Supreme Court without an advocate on record or without a junior in any other court or tribunal in India. An Advocate (other than a Senior Advocate) cannot appear and plead before the court in any matter unless he is instructed by an Advocate on record. Thus, a sort of dual system exists in the Supreme Court.
There is no separate Bar Council for the Supreme Court. The reason is that every Advocate practicing in the Supreme Country is already a member of one of the State Bar Councils and subject to its discipline. According to the Law Commission: “The Advocates ordinarily practicing before the Supreme the Court will have the opportunity of exercising their franchise as members of the profession in regard to the Bar Council of the State to which they belong.”[c] They would also have representation in the All-India Bar Council. Under Article 145 (1) (a), the Supreme Court has power to make rules as to the persons practicing before it subject to any law made by Parliament and with the approval of the President.
Legal history existing, the law as a profession has evolved after thousands of years which, no denial, is flourishing. Through the various stages of development has it come to the place of recognition and social acceptance! Yet there exists some bias and ill-informed criticisms among the lower strata of the society besides bordering condemnations. The immense stride that the ‘legal profession’ has made post-independence is to the credit of the Government and the Bar Council of India and various states. Globalization has had its own contribution to the development of law as a profession. But with globalization and the trend of India’s emergence on the international fora shortcomings have come to light which immediately needs attention and address. The immense population growth and emerging domestic spheres have added to the growth of the profession and also to irreconcilable shortcomings. Immense strides made, there still is enormous room for evolution and development of the profession. What is needed is a vision based on philosophy.
The area of legal education is one where urgent steps need to be taken to ensure that law students receive sufficient training to deal with the rapidly evolving practice of law in India and abroad. It is well known that there are various shortcomings in this area, including issues that are generic to the higher education space in India such as a teaching resources deficit, access to knowledge databases and accepted practices, lack of monitoring and evaluation etc. While the top law schools in India have surmounted some of these problems, there is a clear divide between these law schools and the significant majority of law schools (and law students) that are struggling to ensure a basic level of competence in the legal profession.
Formatted on 13th March 2019.
[i] Glanville Williams, Learning the Law, Sweet & Maxwell Ltd., London, Eleventh Edition, 2010, p. 67.
[ii] www.barcouncilofindia.org, Retrieved on 03.05.2012.
[iii] The Law Commission in its Fourteenth Report observed: “A well organized system of judicial administration postulate a properly equipped and efficient Bar”, 1958, p. 556.
[iv] “It is essential for maintenance of the rule of law that there should be an organized legal profession free to manage its own affairs….” The Rule of Law in a Free Society. A Report on the International Congress of Jurists, New Delhi, India, 1959, p. 311.
[v] Robert J. Bonner, Lawyers and Litigants in Ancient Athens: The Genesis of the Legal Profession, 1927, p. 202.
[vi] Ibid., p. 204.
[vii] Ibid., p. 206.
[viii] Ibid., p. 208-209.
[ix] John A. Crook, Law and Life of Ancient Rome,Cornell University Press, Ithaca, 1967, p. 90.
[x] Id. Crook cites Tacitus, Annals VI, 5 and 7 for this point. For more information about the complex political affair that forced Emperor Claudius to decide this issue, see The Annals of Tacitus, Book VI, 1982, p. 208.
[xi] Ibid., p. 91.
[xii] Ibid., p. 87.
[xiii] Ibid., p. 88.
[xv] Ibid., p. 89.
[xvi] Ibid., p. 88.
[xvii] John A. Crook, Law and Life of Ancient Rome,Cornell University Press, Ithaca, 1967, p. 88.
[xviii] Ibid., p. 90.
[xix] A. H. M. Jones, The Later Roman Empire, University of Oklahoma Press , Norman, 1964, p. 507.
[xx] Fritz Schulz, History of Roman Legal Science, Oxford University Press, Oxford, 1946, p. 113.
[xxii] Ibid., p. 268.
[xxiii] A. H. M. Jones, The Later Roman Empire, University of Oklahoma Press, Norman, 1964, pp. 508-510.
[xxiv] Ibid., pp. 512-513.
[xxv] A. H. M. Jones, The Later Roman Empire, University of Oklahoma Press, Norman, 1964, p. 511.
[xxviii] Ibid., p. 515.
[xxxi] Ibid. p. 516.
[xxxii] James A. Brundage, “The Rise of the Professional Jurist in the Thirteenth Century,” 20 Syracuse J. Int’l L. & Com., 1994, p. 185.
[xxxiii] Ibid., pp. 185-186.
[xxxiv] Ibid., pp. 186-187.
[xxxv] James A. Brundage, “The Rise of the Professional Jurist in the Thirteenth Century,” 20 Syracuse J. Int’l L. & Com., 1994, p. 188.
[xxxvi] Ibid., pp. 188-189.
[xxxvii] Ibid., p. 190.
[xxxviii] Ibid., p. 189.
[xl] John Hamilton Baker, An Introduction to British Legal History, Butterworths, London, Third Edition, 1990, p. 179.
[xli] http://www.barcouncilofindia.org/about/about-the-legal-profession/history-of-the-legal-profession/, Retrieved on 03.05.2012.
[xlvi] Law Comm, XIV Report, 556 (1958).
[xlvii] Ibid., p. 37. It seems that the Mayor’s Courts exercised power to dismiss an attorney guilty of misconduct: See, Love, Vestiges of Old Madras.
[xlviii] M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 669.
[lii] AIR 1952 SC 369.
[liii] M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 670.
[liv] AIR 1923 JI. at 92.
[lv] M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 671.
[lvi] On this point, clause 7 made the following drastic provision: “All agreements which may be entered to between pleaders and their constituents, for paying or receiving less than the established fees, are to be considered null and void the whole of Vakil’s fees, which may be payable by the party in such cases be forfeited to Government and the pleader who may be convicted of having been a party to such illicit agreement shall be liable to immediate dismissal from his office.”
[lvii] M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 672.
[lix] See AIR 1924 JI. 13, 14.
[lx] Veeraraghavan, Legal Profession and the Advocates Act, 1961, (1972) 14 JILI., 228,230.
[lxi] Commenting on the impact of the Barristers and Attorney on the local bar, a commentator in AIR 1924 JI at 132 stated thus: “…As far as the legal Profession practicing in the Company’s Court’s was concerned the introduction of the Barrister and Attorney element had a wholesome influence. They were in no sense officers of the court. They owed their appointment neither to the Company’s courts nor to their executive officers. Their interests were not provincial and they had unlimited opportunities in all the Presidencies being entitled to appeal in all the courts all over India. It must be admitted that some high class Barristers and Attorneys improved the general level of the profession in the early stages and by their independence and learning added considerably to the strength of the Bar.
[lxii] M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 673.
[lxiv] Ibid, p. 674.
[lxvii] B. S. Baliga, Studies in Madras Administration, 1960, p. 316. Also see, Law and Society Review, p. 356.
[lxviii] M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 674.
[lxx] The first Charter of the High Court was issued in 1862. Accordingly, the High Court made rules in 1863 to admit Vakils.
[lxxi] ILR (1876-78) 1 Mad 24.
[lxxii] M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 675.
[lxxiii] (1916) 31 MLJ 698.
[lxxiv] Motilal Setalvad, the first Attorney-General of India, had passed this examinations and thereafter he began a successful career on the original side of the Bombay H.C. in 1906.
[lxxv] M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 675.
[lxxvi] Ibid., 676.
[lxxvii] The Allahabad High Court ruled in Bakltawar Singh v Sandal, ILR 9 All, 617, “that an Advocate may act for his client in this court … and do all things that a Pleader, i.e., a Vakil may do provided always that he be upon the roll of the Court’s Advocate.”
[lxxviii] M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 676.
[lxxix] The Act extended to the following territory: Lower Provinces of Bengal, North-Western Provinces, the Punjab, Oudh, Central Provinces and Assam.
[lxxx] M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 677.
[lxxxiv] Ibid., p. 678.
[lxxxv] Act XXXVIII of 1926.
[lxxxvi] The Act was made applicable to the Chief Court of Oudh on March 1, 1928. The Act was not made applicable to the High Courts of Lahore, Karachi and Nagpur.
[lxxxvii] M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 683.
[xci] Ibid., p. 684.
[xcvi] Ibid., p. 684.
[xcvii] S. 31 of the Act. The High Courts of Bombay and Calcutta were authorized to admit Attorneys and exercise over them power of removal or suspension from practice for reasonable cause.
[xcviii] M. P. Jain, Outlines of Indian Legal & Constitutional History, LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, pp. 689-690.