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BAR BENCH RELATION
01. Introduction
The whole purpose of adjudication in our adversary system is for a party to explicitly put his case across the table which will enable the opponent to respond appropriately to that case he has fielded, and then the Judge, as an impartial umpire will adjudicate on the issues in controversy. That and nothing more is the epitome of what justice or fair trial is all about. But the persons playing different roles in this due discharge of Justice is never regarded as equals in a judicial proceedings. The Judges shall always be superiormost, officers of the court such as persons appointed for examination, commission, receiver etc come next, the prosecutor and the advocates are the intermediary, the Police and other investigation and executing branch form the next group, the witnesses and those who give evidence are regarded next, the petitioner respondent complainant etc lower still, and the defendant respondent accused etc are the least regarded. Persons appointed for examination, commission, receiver etc are usually advocates. Thus Bar Bench Relations relate to the power equations between the top most layers of the functionaries of the judicial process.
02. Bar and Bench
The court hall where cases are conducted consists of two parts namely: (i) The place where the judges sit is called as Bench (ii) The place where the Advocate sit is called as Bar. The term Bench’ refers to the judges and theBar’ refers to the Advocates. Bar-Bench relation means the cordial relation between the judges and the Advocates. The faith on the judiciary to the general public and the speedy justice mainly depends on the cordial relation between the judges and the Advocates and the role of Advocates are equally important to the judges in the Administration of justice. Rendering justice is their joint responsibility.
03. The Changing Bar and Bench
1. Broad purpose of Bench and Bar The primary duty of Judges and the Advocates is to provide "Justice” according to the law which has to be administered in the existing society. Justice, as embodied in the law, has different contents and connotations. The functions of the Bench and Bar, due to the somewhat differing basic concepts of justice seems different in different States. These concepts have been produced and moulded by the operations of complex and interconnected, constantly acting and counter-acting, sets of factors in the course of our histories. 2. Shrunk and organically interlinked modern world Distances have vanished in the various parts of the modern shrinking world. Space time relationships have altered vastly. Speedy and easy communication facilities have produced a uniformity in patterns of thinking, behaving, and living, cutting across all barriers of political organisation and ideology, culture, race, creed, and colour, resulting in a progressive development of uniform basic notions of justice as well as common patterns of law in various parts of the world. In this modern age of science, the problems of justice cannot be dogmatic. 3. Changing Concepts Our concepts of Justice consist of the products of an interchange of shifting pulls and forces. New moral values, ultimately translated into law, emerge in the process. Our notions of Justice are relative and results of empirical knowledge of what satisfies certain needs believed to be basic. 4. Sense of Dedication The spirit of consecration and dedication which impels human beings towards what they believe to be 'Justice' certainly appears to be a part of the eternal and the unchanging human nature. The urge to see justice done to others, viewed as reflections and even as parts of one's own self, is often submerged by other powerful drives and passions. The effort of the members of both the Bench and the Bar will be to overcome the passions and prejudices which interfere with such a disinterested pursuit of justice. Justice, in a sense, may be conceived of as an eternal quest of every being who deserves to be called human. 5. The Specialist's approach The quest of the Judge and of the Advocate must be dedicated to the pursuit of justice and seeks it scientifically by employing ordered knowledge contained in the form of law and by scientific and legal tools. 6. The Judge's Persona The persona of the Judge today in India is the ability to detach themselves from the pursuit of private gain and selfishness and rise above all pettiness, passions,
prejudices, obsessions and complexes and preserve an unruffled temper even when faced with the most trying of situations. 7. What the Judge requires from the Advocate What the Judge requires from an Advocate is assistance in the performance of his own role. The effectiveness and usefulness of an Advocate is determined by his capacity to satisfy the needs of the Judge. It is impossible for an Advocate to give that assistance unless he is equipped with required learning.
8. Power of Judge and Advocate over the Judicial Process The power exercised by the Judge in India over the fate of a criminal or civil litigation is really enormous. The power of the advocate is rather prodigious in determining whether justice will hit or miss its mark. But Rules of professional ethics and etiquette can be violated both by advocates and judges in India without being properly punished. 9. A Source of Miscarriages of Justice The best of institutions can be misused and human frailties cannot be entirely eliminated anywhere and judicial proceedings is no exception. Bar and Bench should be vigilant about that. 10. A Source of Legitimate Pride to Indian Citizens Even though the present pronunciations of the Bench and the irresponsible behavior of the advocates are very often subjected to public criticism, the People of India have not started to disbelieve the judicial process in India. However Judiciary is now frequently using its contempt jurisdiction, as if fearing that it may happen in near future. 11. The responsibility of the Constitutional role The Constitution places a very heavy responsibility on the part of the Judges as well as the Advocates who assist them, of propounding solutions which are in harmony with "Justice: social, economic, and political." The "Judicial Process" in our country includes the task of "Social Engineering too." Isolationism of Judges from the rest of society invites the criticism that they live in "ivory towers”. As the officers of the Court, lawyers are expected to assist the Bench in administering justice. They are expected to maintain respectful attitude, towards the Bench keeping in mind that, the dignity of judicial office is essential for the survival of the society.
04. Legacy of Bar and Bench Relationship
1. The power relation in Courts The conflict-co-operation relationship in between Bar and Bench cannot be properly evaluated without going into its history. Before enactment of Advocates Act, 1961, it was the Court itself which was giving licence and taking it away under the Acts/Rules framed therefore. The conduct and behaviour of lawyers were under direct supervision of the Court. During the freedom struggle, lawyers played important part and they suffered much for their independent view against the government policy and even courts did not recognise their right to dissent with the government policy. The colonial concept of the existence of lawyer is best described in Mahant Hakumat Rai v. Emperor, the Lahore High Court AIR 1943 Lahore 14 which reads: “Without failing in respect to Bench, it is the duty of the members of the Bar to assert their just right to be heard by the Tribunal before which they practising. They should be fearless and independent in the discharge of their duties, and would be perfectly right in protesting against irregular procedure on the part of any judge; and if the advocate is improperly checked or found fault with, he should vindicate the independence of the Bar. He would be perfectly justified in insisting on getting a proper hearing and he would be perfectly right to object to any interruption with the course of his argument such as to disturb him in doing his duty to his client. Plenary powers vested in the Presiding Officer of the Court, apart from the fact that they have rarely been used against members of the legal profession so far, should only be used to vindicate the honour of the court or to satisfy the necessities of public justice and not as a matter of course.” The creation of courts and inner partitioning of the court’s room with high pedestal for the seat of judges, lower sitting arrangement of lawyers on chairs/benches, rear dock for the accused and similar small dock for witness smacks the colonial values and not the constitutional values of equality and human dignity. 2. Strike by Lawyers Strike by lawyers are normally not for gaining something for them from governments or courts, rather it aims at either for dignity of the lawyers as a class/individual or for some other cause deeply related to public justice, rule of law and factors affecting public justice. In Harish Uppal Ex. Captain v. Union of India A.I.R. 2003 SC 739 Supreme Court held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest if any is required, can only be by giving press statement. T.V. interviews carrying out of Court premises banners or placards,
11. Integrity: A Judge should be honest and morally upright. He should have personal and intellectual integrity. His character and conduct should be praise worthy. 12. Industriousness: It means regular and systematic hard work and study. A Judge should get acquainted with the latest developments and changes in the law by regular updating of the knowledge. 13. Meeting of Judges and Lawyers: To strengthen Bar-Bench relation, at regular intervals meeting of judges and the Advocates shall be arranged. In such meetings the respective sides difficulties can be discussed and the differences can be sorted out.
07. Legal Duties of an advocate to the Court
Bar Council of India Rules, 1975 Part V, Chapter II Standards of Professional Conduct and Etiquette imposes many duties on the Advocates, a few among which are reproduced below. Duty to the Court (Rule 1-10) In the administration of the justice, the role of the advocate is to help the court to take a right decision in the dispute.
- An Advocate shall show the due respect to the court and shall never act in any manner to undermine the confidence in the judiciary.
- He shall not exert or attempt to exert any personal influence on the decision of the court, nor shall give any impression that he possesses personal influence with the judge before whom he normally practices.
- He shall be always punctual in attending courts in the prescribed dress.
- He shall be fair and frank in the court proceedings.
- He shall not include any fact which he knows to be false in the pleadings, petitions or affidavits.
- He shall not ask for any adjournment of a case without genuine reasons.
- He shall not communicate privately with the judges to influence them relating to any pending case.
- He shall not speak ill of judges or use abusive remarks about them. But, if the judge behaves improperly, it is not only the right but also his duty to report it to the proper authorities.
- He shall not interrupt when the counsel for the otherside or the judge is speaking.
- He shall appear in the court in the prescribed dress and his appearances shall always be presentable. He shall not wear bands or gown in the public places.
- He shall not practice before a judge if he is related to him.
- He shall not act or plead in any matter in which he has pecuniary (monetary) interest.
- He shall not appear for any organization, institution, society or corporation if he is the member of the executive committee of such organization, institution, society or corporation.
08. Conclusion
The Colonial Institution of Judicial Courts have not completely evolved into a democratic constitutional set up. Thus it is evident that the values and thus relationships between the Bar and the Bench have not fully evolved as equally responsibly functionaries for the due discharge of legal justice. What the time being in force requires is a cordial and mutually respected Bar and Bench with the high aspirations of the welfare of the people and the furtherance of the statutory, fundamental and human rights of the aggrieved individuals, citizens and other persons. During the course of the interaction between the Bar and the Bench, they should not forget their own long lasting dignity as well as the dignity of the least man whom you can imagine. Our Father of the Nation was also an advocate and his vision was so. He too was both respected and tried for contempt by the Judges of then Indian Judiciary.
Duties of an Advocate in the Court while dealing with his case
- As the advocate s are officers of the court, they are required to maintain towards the court respectful attitude bringing in mind that the dignity of the judicial office is essential for the
survival of the society.
- an advocate should make his best effort to restrain and prevent his Clint from resorting to unfair practices in relation to the court
- an advocate should not influence the decision of the court by any illegal or improper means
- an advocate should not communicate with a judge relating to pending case
- an advocate is required to conduct himself with dignity and self-respect during the presentation of the case
- an advocate should not consider himself mere mouthpiece of the client and should exercise his own judgment in the use of restrained language in dealing with the court
- an advocate should not use intemperate language during arguments in the court .he should avoid scurrilous attacks in pleadings
- an advocate should make accurate statement of facts and should not twice them
- an advocate should not misguide the court by citing knowingly an overruled decision or a repealed statue
- an advocate should uphold the dignity and should not do anything which brings the court into disrepute “ Judge is a public officer who hears and decides cases, settling the dispute in the court of law. There is no office in the State of such power as that of the Judge. Judges hold power which is immensely greater than that of any other functionary.”
Duties of Judges
- A person who is acting as a Judge in the Court of Law must discharge his duties without fear or favor, ill will or affection.
- A Judge must be impartial and must do everything for justice and nothing for himself or his friends or relatives.
- A Judge should have patience and gravity of heating. He should allow the advocate or party fullest opportunity to present case.
- A Judge should respect the Privilege of Bar.
- A Judge should sit with a receptive mind. No Judge should form the opinion regarding the merit of the case till he heard the parties.
- No Judge Should desire that the Bar Should be servile
- A Judge must not allow himself to be subjected to any influence other than the influence of law and justice of the cause.
- A Judge should avoid a controversial manner or tone in addressing controversial manner or tone in addressing counsel litigant or witness.
- A Judge should avoid interruption in the Counsel in their argument and in the examination of the witness.
- An advocate shall not influence the decision of a Court by any illegal or improper means. Private communication with a judge relating to a pending case are forbidden.
- An advocate shall use his best efforts to restrain and prevent his client from restoring to sharp or unfair practices or from doing anything in relation to the court, opposing Counsel or parties which the advocates himself ought not to do. An advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouthpiece of the client, and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attack in pleadings, and using intemperate language during arguments in court. 5 ) An advocate shall appear in court at all times only in the prescribed dress, and his appearance shall always be presentable.
- An advocate shall not enter appearance, act,plead or practice in any way before the court, tribunal or authority mention in Section 30 of the Act, if the sole or any member thereof is related to the Advocate as father, mother, grandfather, son, grandson, daughter, sister , father in law, mother in law , son in law, brother in law , daughter in law or sister in law. For the purposes of this rule, court shall mean a court bench or tribunal in which above mentioned relation of an advocate is a Judge , member of the preseding officer.
- An advocate shall not band or gown in public places other than in courts except on such ceremonial occasions and as such places as the bar council of India or the court may prescribe.
- An advocate shall not appear in or before any court or tribunal or any other authority for or against an organisation or an Institution, society or Corporation, if he is a member of the executive committee of such organisation or institution or society or Corporation," executive committee " ,by whatever name it may be called shall include any committee or body of persons which, for the time being is vested with the general management of the affairs of the organisation or institution, society or Corporation : provided that this rule shall not apply to such a member appearing as amicus Curie or without a free on behalf of a bar council, incorporated law Society or a bar association.
- An Advocate should not act or plead in any matter in which he himself is pecuniarily interested.
- An advocate shall not stand as a surety, or certify the soundness of a surety for his client required for the purpose of any legal proceedings.
- An advocate should have sense of humour and pleasing manners in his argument.
- An advocate should be straight forward and his argument should be pointed, clear precious and concise
- An Advocate must be tactful in presenting the matters.
- An Advocate should not mislead Court.
- An advocate shall not criticize the Judiciary with malice
What are the duties of an advocate towards his colleagues and opponent?
The judges administer the law with the participation of advocates as officers of the court. The Bar and Bench, thus, play an important role in the administration of justice. The advocates are expected to assist the court in an appropriate manner in the administration of
justice. The legal profession is a branch of administration of justice and is a partner with judiciary in this context. An advocate is a Privileged member of the community and gentlemen besides being a citizen he has greater responsibility to protect the country and lead the community Duties of an advocate towards his colleagues and opponents are as follows - A) Duty to Opponent - (Section – III) –
- An advocate shall not in any way communicate or negotiate upon the subject matter of controversy with any party represented by an Advocate except through that Advocate.
- An Advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the court.
- An advocate shall not mislead an opponent, or put him on the wrong scent, regarding any point in this case. B) Duty towards Colleagues (Section – IV)–
- An advocate shall not solicit work or advice directly or indirectly through Mass Communication.
- An advocate shall not pursue his profession in spirit of competition or rivalry, with his brethren.
- An advocate should be courteous to opposing Counsel and should accede to reasonable request regarding Court proceedings.
- An advocate shall not enter appearance in any case in which there is already a Vakalatnama or Memo of appearance filed by an advocate engaged for a party expect with his consent.
- An advocate does not envy another advocate who attains to position and rank and earns well.
- An younger advocate must be cordial and relationship and pay respect to senior advocates.
- An advocates shall be ready to give help and advice to brother members.
- An advocate shall strive at all the levels aid the legal profession in advancing the standard of members of profession.
- An advocate shall not accept a fee less than taxable under the rules when the client is able to pay the same.
- An advocate shall not permit his professional services or his name to be used in aid or the make possible, the unauthorized practice of law by any lay agency. Advocate should maintain their high traditions of Fearless Independence, probity and integrity, and live up to their noble ideals and dedicated lives for the Vindication of truth, and Justice, and also for good of the common man.
Misconduct is the antonyms of conduct. Conduct means behavior with good manners and treatment shown towards others. Misconduct represents misbehavior. Misconduct as explained in the Dictionary is 'improper conduct'. The term 'misconduct' has been defined in Black's Dictionary as 'a transgression of some established and defined rule of action, a forbidden act , a dereliction of duty, unlawful behavior, wilful in character, improper or wrong behavior'. Its synonyms are misdemeanor, impropriety, mismanagement,offence , but not negligence or carelessness. In State of Panjab V. Ram Singh (AIR 1992, SC 2188) the Supreme Court held that the term may involve moral turpitude, An advocate is bound to conduct himself in a manner befitting the high and honorable legal profession. The legal profession is a noble profession having high traditions. An advocate is expected to uphold those traditions. He must comply with the conduct of professional ethics and etiquette as laid down by bar council of India. 2) Meaning of Professional misconduct and other misconduct - Section 35 of the Advocate makes it clear that an advocate may be punished for professional misconduct or other misconduct. The terms misconduct and professional misconduct are not defined In Section 35 or any other provisions of the Advocate Act, 1961. The expression 'professional or other misconduct' are mentioned in section 10 of Bar councils Act,1926. by using those words it was made clear that the authority might take action in all cases of misconduct, whether in professional or other capacity. Every misconduct may not be Professional or other misconduct. Only unsatisfactory professional conduct of a substantial, recurring or continuing nature is considered as professional or other misconduct. Thus a guilty or fraudulent grossly improper conduct of an advocate in the discharge of his professional duty is considered as professional misconduct. Professional misconduct is conduct occurring otherwise than in connection with the practice of law that would justify a finding that its preparation is not of good fame and character or is not a fit and proper person to remain on the Roll of Legal Practitioners. Giving of improper Advice and wrong Advice - It is professionally improper for a member of Bar to prepare false document or to draw pleadings knowingly that the allegations made are untrue to his knowledge. Thus, giving of improper legal advice may amount to professional misconduct. Negligence and Professional misconduct - Whether negligence will amount professional misconduct or not depends upon the facts and circumstance of each case.Gross negligence in the discharge of duties partake of shade of delinquency and would undoubtedly amount to professional misconduct. But negligence without moral turpitude or delinquency may not amount to professional misconduct. Moral turpitude - Moral turpitude is very serious professional misconduct. From section 24-A of the Advocate Act, it is clear that a person cannot be admitted as an advocate on a State Roll if he is convicted of an offence involving moral turpitude. Thus a person who is convicted of an offence involving moral turpitude is disqualified for being admitted as an advocate on the State Roll of
advocates. This means that the conduct involving conviction of an offence moral turpitude which will disqualify a person from being enrolled as an advocate has to be considered a serious misconduct.when found to have been committed by a person who is enrolled as an advocate and it would call for the imposition of punishment of removal of the name of the advocate from the Roll of Advocates
Types of contempt of courts
Types of contempt of courts - Section 2(A) of The Contempt of courts Act,1971 , provides that contempt of court means civil contempt or criminal contempt. contempt of court classified mainly in two categories 1) Civil contempt of courts,and
- Criminal contempt of Court The willful disobedience to the order of court is considered civil contempt, while the scandalizing or lowering the authority of the court in the public eye is considered criminal contempt. The classification or categorization of contempt of court into Civil and criminal are not closed. There are several contempt which do not fall in any of them. for example, undue delay in pronouncing the order by a judge or judge coming late to the court by amount to contempt of court, but they are not covered exactly by the definition of classification of contempt in the act.
1) Civil contempt-
According to section 2 (b) of The Contempt of court Act, 1971, civil contempt means " willful disobedience to any judgement, decree, direction , order, writ or other process of a court or willful breach of an undertaking given to the Court. " Thus Civil contempt consist of disobeying the orders and process of the court .Civil contempt involves only the willful disobedience of the courts order or breach of undertaking given to the court. The purpose of the proceeding for the Civil contempt is not only to punish the container but also to exercise enforcement and obedience to the order of the court. Civil contempt serves two purposes -
- Vindication of the public interest by punishment of contemptuous conduct; and
- coercion to compel the container to do what the court requires of him. To constitutes 'civil contempt' the following things are required to be proved : A) there is disobedience of the order, decree etc. of the court or breach of undertaking given to the court ;and B) the disobedience of Breach Is Wilful. For civil contempt it is necessary that order which has been disobeyed must have been passed by the court having jurisdiction to pass such order. If the order has been passed without jurisdiction , it is not binding on the party against which it has been Passed by the and therefore disobedience of such order will not amount to contempt of Court. The burden to prove that the court has no jurisdiction to pass the order lies on the person who alleges it. When the court orders a person to do something or not to do something, it is incumbent on that party to comply with that order forthwith. The person disobeying the order of the court will
'Scandalize' connotes to speak falsely, or maliciously, to bring into approach ,dishonor, disgrace, to offend the feelings, conscious or property of an action. ' scandalize' also means to offend a moral feeling, and to make a public scandal of, to utter false or malicious reports of a person's conduct, slander, or to bring same or discredit or to disgrace. We can say that the disgraceful word scandalize means the defamatory , derogatory, false malicious disgraceful statements regarding the persons as Judges. It is for the court to decide whether or not the publication or act is likely to scandalize or lower the authority of the court or interfere with due course of any judicial proceeding for administration of justice. The publication act will be taken as criminal contempt, if it has resulted in scandalizing the authority of court or interference with the due course of judicial proceedings or interfering the administration of justice in any matter. The word ' Publication ' was given very wide meaning. The publication may be by words written or spoken by sign's or by visible representations or otherwise of any matter. but in the Act it is not clear as to whether the publication should be taken to mean Publication to the general public or any kind of Publication. Scandalizing the court means any hostile criticism of the judge ; any Personal attack on him unconnected with the office he holds, is dealt with under the ordinary rules of Slender and libel. The criticism can form the basis for committal of contempt of court only if it is made against the judge in exercise of his judicial function. The publication which prejudice or interferes with or tends to interfere with, the due course of any judicial proceeding is taken as contempt of court. Whenever the publication or any other act unduly influences the result of a litigation it is treated as criminal contempt of court and a punished therefore. If the parties to a pending proceeding are abused and vilified and the words are likely to cause prejudice to the case, it will amount to contempt of court. The publication of doing of any other act which interferes or tend to interfere with or obstructs or tend to obstruct the administration of justice in any of other manner is also taken as contempt of court. An Advocate is an officer of the court and hence undue interference with the Advocate in the discharge of his professional functions amount to contempt of court. Any conduct by which course or Justice is prevented either by a party or a stranger is a contempt of court. Any person who interfere or prevent other person from coming to the stream of justice is he liable for contempt of Court. The Court must be very careful in analyzing the facts and circumstances of the case for determining whether or not the action taken by a person amounts to interfere with the course of Justice. Witnesses are also integral part of the judicial process and they must have freedom to perform their duties and so interference with performance of their duties is taken as contempt of Court Abuse of the process of court calculated to hamper the due course hamper of judicial proceedings or the administration of Justice amounts to contempt of court.
Development of Legal Profession In India
What is Profession?
In society, people occupy different occupations for their livelihood or for their satisfaction. The occupations may be broadly divided as productive occupation and service occupations. The occupations which require advanced education and special training are called professions. LAW, teaching, architecture, medicine, etc are related to professions. They are intended to serve mankind. What is the legal profession? The profession of law is one of the oldest and noblest professions. The person in the legal profession is called an advocate or lawyer. An advocate is an officer of justice and a friend of the court. He has to accept a brief for any man who comes before the courts and do what one can do honorably on behalf of his client. He has to collect legal material relating to the case of his client had argue in the courts to help the judges to deliver judgments. The central function that the legal profession must perform is nothing less than the administration of Justice. An advocate also serves the public by giving legal advice by explaining the complicated and confusing provisions of different Acts and Rules to citizens who seek his service. An advocate assists the parties in drafting the economic transactions like contracts, agreements, deeds, wills etc. An advocate also provides professional services regarding taxation and trade performance. An advocate should provide free Legal Aid to the poor and deserving people on compassionate grounds. An advocate has to protect the fundamental and Human Rights in addition to propagating them among citizens. An advocate is the foreigner of the society. He has to fight for law reforms and social change and at the same time extend his services to maintain law and order. Development of legal profession in India - Development of legal profession in India can be divided into three phases are as follows - **1) Legal profession in ancient India -
- Legal profession in medieval India -
- Legal profession in British India -
- Legal profession in India after independence -
- Legal profession in ancient India -** In India during the earlier period, people live in small groups. The heads of these groups or tribes delivered justice under open sky before all the members. Open arguments were made. There were no specialist like a lawyer during those days. When Kingships was established in the society, Kings delivered justice. In King's Court, the king was advised by his councilors. The law of those days was a rooted in Hindu religion and custom. Dharma was protected by the king. Though there was no Institution of a lawyer, some intellectual people served justice. From the stories of Maryada Ramayana and Vikramaditya, we are well aware of the wise man who solved the critical cases of those days. During those days the legal profession
qualified persons of any nationality or religion to enroll as a pleader of the Sardar Diwani Adalat. v) The Legal Practitioners Act, 1846 - The legal practitioners Act 1846 allowed at the people of any nationality or religion to act as leaders. It also allowed attorneys and barristers enrolled in any of Her Majesty's courts in India to plead in the company's Sardar Adalat. The Legal Practitioners Act, 1853 - This Act authorized the barristers and Attorneys of the Supreme Court to plead in any of the companies courts subordinate to Sadar court subject to rules in force in the said subordinate courts as regards language or otherwise. vi) Indian High Court Act, 1861 - The Indian High Court Act, 1861 empowered the government to establish High Court in Presidency towns. After the establishment of the High Courts, the Civil Courts were organized at different towns. The criminal courts were organized by the Criminal Procedure Code 1898. vii) Legal Practitioners Act 1879 - Under the Legal Practitioners Act 1879 the term 'legal practitioner' means Advocate, Vakil or attorney of a High Court and pleader, Mukhtar or revenue agent, who were non-graduates and matriculates only. All these were brought under the jurisdiction of the high court. Vakils were the persons who had taken the law degree from Indian Universities. Pleaders and mukhtars Were the Indian lawyers but advocate were to be the barristers. Section 5 of the Act says that every person entered as an attorney on the role of any High Court would be entitled to practice in all the courts subordinate To Such High Courts and in all revenue offices. Section 6 of the Act Empowered the High Court to make rules consistent with the Act as to Suspension and dismissal of pleaders and Mukhtars. Section 8 empowered the pleader to practice in courts and revenue offices after enrollment. Section 9 empowered the Mukhtar to practice in the courts after enrollment. According to Section 12, the High Court can Suspend or dismiss any pleader or Mukhtar if he was convicted of any criminal offense and according to Section 13, the high court can suspend or dismiss pleader or Mukhtar guilty of professional misconduct. Section 14 of the Act made provisions in respect of the procedure when the charge of professional misconduct was brought in subordinate Court or revenue office. Section 17 of the Act deals with the power of chief controlling revenue authority to make rules consistent with this act as to qualification, suspension, dismissal etc. of the revenue agent. viii) Indian Bar Committee 1923 - A committee called Indian bar committee under the chairmanship of Sir Edward Chaminer was constituted in 1923 to consider the issue of the organisation of the bar on all India basis. The committee did not favor the establishment of All India Bar Council. It was of the view that bar council should be constituted for each High Court. Indian Bar Council Act 1926 -
In 1926, the Indian Bar Council of India Act was enacted to provide a bar council for each High Court. The Bombay High Court and Calcutta High Court allowed non- barrister advocates to practice. Thus the distinction between Barristers and advocates was abolished. The pleaders and Mukhtars practicing in Mufusil Courts were not within the scope of the Indian bar council act 1926. Even after the enactment of the Bar Council Act 1926, the High Court has the power of enrollment of advocates and the functions of the bar council was the adversary in nature and the rules made by the bar council were to be effective only on the approval of the high court. Section 10 of the Indian Bar Council Act 1926 empowered the high court to reprimand, suspend or remove from practice any advocate of the high court if he was found guilty of professional misconduct or other misconduct. 4 ) Legal profession in India after independence - All India Bar Committee, 1951- In 1951, the All India Bar committee was constituted under the chairmanship of justice S.R.Das. The committee in its report recommended the establishment of an All India Bar Councils and State Bar Councils. It recommended the powers of enrollment, suspension or the removal of advocates to the Bar Council. It recommended the common role of advocates should be maintained and they should be authorized to practice in all courts in the country. It further recommended that there should be no further recruitment of non-graduated pleaders or mukhtars. The similar recommendations Were made by the fifth Law Commission of India in its fourteenth report. Advocate Act 1961 - As a result of the report of the "All India Bar Committee Act, 1961 " .the central government enacted the Advocate Act 1961.This Act has been in Force In entire India. It brought Revolutionary changes in the legal profession in India. It was set out to achieve the utility and dignity of the profession of law on an all India basis. The Preamble of The says that the Act amends as well as consolidates the law relating to legal practitioners. The Advocate Act,1961 contains 60 Sections set out in 7 chapters. Chapter I - deals with primary issues such as short title, extent and commencement and definitions. Chapter - II Section 3 to15 deals with the bar councils. Chapter III Section 16 to 28 deals with admission and enrolment of advocates. Chapter IV deals with the right to practice chapter. Chapter V Section 35 To 44 deals with the conduct of advocate. Chapter VI Miscellaneous issues. Chapter VII deals with the temporary and transitional provisions. The Advocate Act 1961 repeals the Indian Bar Council Act,1926 and all other laws on the subject. The Advocate Act,1961 provides for an autonomous bar council in each state and All India Bar Council consisting mainly of the representatives of the state bar councils. Under the act, a state bar council is to enroll the qualified person as advocates and a prepare a roll of
Sec.30 of the Advocate Act 1961 says. Subject to the provisions of this Act , every advocate whose name is entered in the state roll shall be entitled as of right to practice throughout the territories to which this act extends-
- In all courts including the Supreme court.
- Before any tribunal or person legally authorised to take evidence;
- Before any other authority or person before whom such advocate is by under any law for the being in force entitle to practice Restrictions on Senior Advocates - a) A senior advocate shall not file a vakalatnama or act in any court , or tribunal , or before any person or other authority mentioned in section 30 of the act. b) (i) A senior advocate shall not appear without an advocate on on record in the supreme court without an advocate an advocate of the state roll in any court or any tribunal or before any person or other authorities mentioned in section 30 of the act. (ii) where a senior advocate has been engaged prior to the coming into force of the rule in this chapter shall not continue thereafter unless an advocate in Part II of the state roll is engaged along with him: c) He shall not accept instruction to draft pleading or affidavit , advice on evidence or to do any drafting work of an analogous kind in any court or tribunal , or before any person or authority mentioned in the section .30 of the act or undertake conveyancing work of any kind whatsoever. This restriction however shall not extend to settling any such matter as aforesaid in consultation with an advocate in Part-II of t state roll. cc) A Senior advocate shall, however, be free to make connections or give undertaking in the course of arguments on behalf of his clients on instructions from the junior advocates. d) He shall not accept directly from a client any brief or instructions to appear in any court or tribunal , or before any person or any other authority in India. e) S senior advocate who had acted as an advocate (junior) in a case, shall not after he has been designated as a senior advocate advice on grounds of appeal in a court of appeal in a court of appeal or in the supreme court , except with an advocate as aforesaid. f) A senior Advocate may in recognition of the services rendered by an advocate in Part II of the state roll appearing in any matter pay him a fee which he consider reasonable.
The Constitution, Powers and Functions of a State Bar Council
The Advocate Act, 1961, has made provisions for the establishment of Bar Councils. The Bar Council will be two patterns - Bar Council of India and State Bar Council. Under Section 3 of the Act State Bar Council will be established. However, Under Section 4, a Bar Council of India will be established. State Bar Councils : (1) There shall be a Bar Council — (a) for each of States of Andhra Pradesh, Bihar, Gujarat, Jammu and Kashmir, Jharkhand Madhya Pradesh, Chhattisgarh, Karnataka, Orissa, Rajasthan Uttar Pradesh and Uttaranchal, to be known as the Bar Council of that State;
(b) for the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura to be known as the Bar Council of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh. (c) for the State of Kerala and the Union territory of Lakshadweep, to be known as the Bar Council of Kerala; (cc) for the State of Tamil Nadu and the Union territory of Pondicherry to be known as the Bar Council of Madras; (ccc) for the States of Maharashtra and Goa, and the Union territories of Dadra and Nagar Haveli and Daman and Diu, to be known as the Bar Council of Maharashtra and Goa; (d) for the States of Punjab and Haryana, and the Union territory of Chandigarh, to be known as the Bar Council of Punjab and Haryana; (dd) for the State of Himachal Pradesh, to be known as the Bar Council of Himachal Pradesh; (e) for the State of West Bengal and the Union territory of Andaman and Nicobar Islands, to be known as the Bar Council of West Bengal; and (f) for the Union territory of Delhi, to be known as the Bar Council of Delhi. (2) A State Bar Council shall consist of the following members, namely:— (a) in the case of the State Bar Council of Delhi, the Additional Solicitor General of India ex officio in the case of the State Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura, the Advocate General of each of the State of Assam, Manipur, Meghalaya, Nagaland and Tripura, ex officio; in the case of the State Bar Council of Punjab and Haryana, the Advocate-General of each of the State of Punjab and Haryana, ex officio; and in the case of any other State Bar Council, the Advocate-General of the State, ex officio; (b) in the case of a State Bar Council with an electorate not exceeding five thousand, fifteen members, in the case of a State Bar Council with an electorate exceeding five thousand but not exceeding ten thousand, twenty members, and in the case of the State Bar Council with an electorate exceeding ten thousand, twenty-five members, elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council: Provided that as nearly as possible one- half of such elected members shall subject to any rules that may be made in this behalf by the Bar Council of India, be persons who have for at least ten years been advocates on a State roll, and in computing the said period of ten years in relation to any such person, there shall be included any period during which the person has been an advocate enrolled under the Indian Bar Councils Act, 1926 (38 of 1926). Term of Office of the Members of State Bar Council : Section 8 Provides term of the office of the Members of the State Bar Council - The term of office of an elected member of a State Bar Council (other than an elected member thereof referred to in section 54) shall be five years from the date of publication of the result of his election: Provided that where a State Bar Council fails to provide for the election of its member before the expiry of the said term, the Bar Council of India may, by order for reasons to be recorded in writing, extend the said term, the Bar Council of India may, by order, extend the said term for a period not exceeding six months.
