Legal Profession in India

A Historical Study

Journey starts from the British regime

• E erge e of the legal professio is a out o e of the legal system introduced by the British.

• Two categories - Ki g s ourts a d Co pa y s ourts

• Ki g s Courts

– Charter of 1726 (King George I)–

• Mayor s Court a d Court of Oyer and Terminer and General Gaol Delivery – Madras, Bombay and Calcutta

• Courts of Record

• No rules relating to who could act or plead

• Use of English language

– Charter of 1755 (King George II)

• Re-established the court system in the three settlements

Regulating Act of 1773

• Supreme Court established at Fort William, Calcutta • Language of the court was English

• Approve, admit and enroll advocates and attorneys at law

• Shall be attorneys of record and be authorized to appear, plead and act for or on behalf of the suitors.

• Advocates entitled to appear were English and Irish barristers and members of the Faculty of Advocates in Scotland.

• Attorneys were referred to the British attorneys and solicitors.

– Court was preserved for members of the British legal profession. Indian lawyers had no right of appearance.

– Similar powers for enrolment of advocates and attorneys-at-law were conferred on the Supreme Courts of Bombay and Madras

Co pa y s ourts

• Under Moghul emperors and ruling chiefs courts for administering justice was established.

– Vakils appeared in the native courts to help litigants

• After battle of Plassey and Buxar civil and criminal courts established in the mofussil areas outside Calcutta

– Sadar Diwani Adalat (civil courts)

– Sadar Nizamat Adalat (criminal courts)

• Language of the courts – Persian

• Vakils could appear

• Bengal Regulation VII of 1793

– Created a regular legal professio for the Co pa y s courts.

– Regulated the appointment of vakils or native pleaders in the civil courts.

– Gave powers to the court to determine

• enrollment of pleaders

• Fix the retaining fees for pleaders

• Fix a scale based on a percentage of the value of the property

• Only Hindus and Muslims could be enrolled as pleaders.

• Bengal Regulation XXVII of 1814

– Pleaders were empowered to act as arbitrators

– Give legal opinions on payment of fees

• Bengal Regulation XII of 1833

– Any person duly qualified, irrespective of their

nationality or religion, could be enrolled as

pleaders in the civil courts

• The Legal Practitioners Act 1846 i. Office of pleaders were thrown open to all persons of whatever

nationality or religion duly certified by the Sadar courts to be of good character and duly qualified for the office

ii. Attor eys a d arristers of the Quee s ourts were eligi le to plead in any Sadar courts subject to language and other rules

iii. Pleaders were permitted to enter into agreements with their clients for their fees for professional services.

• The Legal Practitioners Act 1853 – Barristers and attorneys of the Supreme Court were allowed to be

admitted and be pleaders at the Company courts subject to language and other rules

– Pleaders could only attend court during the hearing of a case

• Indian High Courts Act, 1861

– Authorized the setting up by Letters Patent of High

Courts in place of Supreme Court and Sadar

Courts.

• Letters Patent of 1865

– High Court could admit and enroll advocates,

vakils and attorneys

The Legal Practitioners Act, 1879

• Consolidate and amend the law relating to legal practitioners.

• All the different grades of legal practitioners were under the disciplinary jurisdiction of the High Court.

• An advocate, attorney or vakil on the roll of any High Court could practice in all the courts subordinate to the court on the roll of which he has entered.

• Every advocate so enrolled was entitled to appear, plead, or to act for the suitors in that court, according to the rules made.

• High Court could dismiss any advocate so enrolled from practice but not without allowing him an opportunity of defending himself.

High Courts could frame the Rules of

Enrollment

• Chartered High Courts –

Advocates • Barristers of England or Ireland or Members of the Faculty of the

Advocates of Scotland.

• Additional qualification of reading in chamber

• Vakils • Madras – A person has taken a degree in law and if he passed an

examination in procedure and practic and underwent training with a practicing advocate, vakil or attorney for a year.

• Calcutta – A graduate in Arts or Science, taken a degree in law and served as an articled clerk with a vakil of five years standing

• Other High Courts made similar rules.

• Attorneys • Calcutta – Served as an articled clerk for five years and

passed certain examinations.

• Bombay – Served as an articled clerk for three years and passed certain examinations

• High Courts could make rules as to the qualification, admission and certificates of persons to become -

• Pleaders of subordinate courts

• Mukhtars

• Pleaders of revenue offices

• Pleader –

• Law graduates and graduates who passed the pleadership

examination could practice in all the civil and criminal courts

of three districts by getting enrolled as 1st grade pleaders.

• 2nd grade pleaders – graduates in Arts only and had passed

the pleadership examination. Practice in one district.

• Mukhtar

• A person could apply to be enrolled as mukhtar in any civil or

criminal court mentioned in the certificate issued.

• He could practice in such courts

– Revenue Pleader – Practiced in the revenue courts

• High Court fix and regulate the fees payable by any party.

• Section 36 – District Judges, sessions judges, district magistrates and presidency magistrates, revenue officers – have the power to frame and publish lists of persons proved to their satisfaction by evidence of general reports or otherwise to be touts. – The court or judge may exclude from the precincts of the

court any person included in such list.

– A person so named is punishable with imprisonment or fine.

[Provision still applicable]

Right to act or plead on original side

• Calcutta – Only advocates i.e. barristers - on the instructions of an attorney

• Bombay – A person who was not a barrister could be enrolled as advocate – on the instructions of an attorney

• Madras – Barristers, attorney and vakil could appear on the original side

• Other High Courts – no original side, hence no distinction

Legal Practitioners (Fees) Act 1926

• Right to enter into private agreement to settle

the terms of his engagement and the fees to

be paid for his service

• Right of legal practitioners to sue for their fees

• Liability to be sued in respect of negligence in

the discharge of their professional duties

resulting in any loss or injury.

Need for Reform

• Distinction between barristers and vakils

should be removed

• Special privileges enjoyed by the British

barristers and solicitors should be removed

• Need to constitute an Indian Bar

Indian Bar Committee 1923 –

Chairman Sir Edward Chamier

• Recommendations

a. Remove distinctions between legal practitioners over a period of time

b. Bring uniformity in the provincial legal systems

c. Continue with the dual system for the time being but reduce the distinctions

d. Recognized the importance of a unified Bar

e. Need to constitute Bar Councils for each High Courts

f. With the approval of the High Courts, the Bar Councils will make rules relating to qualifications, admissions, certificates of practice, legal education, disciplinary proceedings etc.

g. Disciplinary jurisdiction of the High Courts to continue but must refer to the Bar Councils for inquiry and report.

The Indian Bar Councils Act, 1926

• Implement recommendations of Charmier

Committee

• To consolidate and amend the law relating to

the legal practitioners

• Bar Councils in different provinces and High

Courts

1. Every High Court shall have a bar council

2. The Bar Councils with the previous approval of the High Court may make rules regarding the constitution and procedure of Bar Councils

3. High Court shall prepare and maintain a roll of advocates

4. High Court shall issue a certificate of enrollment

5. High Courts of Calcutta and Bombay to determine the qualification and admission of advocates in the original side

6. High Court may reprimand, suspend or remove from practice any advocate whom it finds guilty of professional or other misconduct. The matter may be referred to the Bar Council for inquiry.

7. Rules relating to right of practice to be determined by High Court.

Post-Independence - Mandate

• Need for an unified Bar for whole of India

• Continue/abolish the dual system of counsel and solicitor

• Continue/abolish different categories of legal practitioner

• Establishing a single Bar Council for whole of India or each State

• Consolidation of laws relating to legal practitioners

Indian Bar Committee 1951

under Chairmanship of S.R. Das J.

• Recommendations

1. Create a unified National Bar

2. Minimum qualification – Graduation degree+ 2 year

Law course + 1 year apprenticeship

3. Establish an All India Bar Council

4. Creation of State Bar Councils in each state

5. Separate Bar Council for Supreme Court not

necessary

6. Each SBC shall prepare and maintain a Register of all

existing Advocates and legal practitioners.

7. All India Bar Council to prepare a common roll of

Advocates in order of Seniority

8. Each Advocate in the Common Roll of Advocates shall

have the right to practise in all Courts in India

9. In future no further recruitment of non-graduate

Pleaders, Mukhatars or Revenue Agents.

Fourteenth Law Report of 1959

Law Commission of India 1. Legal education is defective and will not produce either jurists or

competent legal practitioners

2. Need to improve standards – only graduates to be allowed

3. Law Course – 2 years and be confined to teach theory and principles of law. Procedural, taxation and other practical law papers not included in the course

4. Roman law not to be taught. Jurisprudence in II year after gaining knowledge of legal principles.

5. Full time law teaching institutes with full-time law teachers

6. Method of teaching – Lecture method; lecture synopsis or outline distributed to the students in advance. Case method in some subjects.

7. Seminars, group discussions and tutorial methods to be introduced and encouraged. Moot courts and mock trials have limited utility and only applicable in third year.

8. Standard of examination is poor

9. Entry to law colleges through strict tests so that only deserving candidates are admitted.

10. Legal research to be encouraged in colleges.

11. Financial assistance to law colleges by government.

12. Establish a Council of Legal Education

13. All India Bar Council – ascertain the standards of law colleges and refuse recognition to colleges which do not maintain minimum standards

14. Person joining the profession – Law degree +professional course + apprenticeship

15. Professional course – procedural laws, practical subjects and professional ethics and drafting. Conducted by Bar Councils.

16. Apprenticeship – work in the chambers of experienced lawyer for one year and be subjected to a very stiff practical test.

Consequence

• Legal Practitioners Bill 1959 was introduced in

Parliament –

– to amend and consolidate the law relating to legal

practitioners

– Constitute State Bar Councils and All India Bar

Councils

Bill was passed but the name was changed to

The Advocates Act