Advocates Act: The Backbone Of Legal Profession
The Advocates Act passed in May 1961 and enforced on 16th August
1961 applies to the whole of India.
The Advocates Act
was to amend the laws related to legal practitioners. It provides the
constitution of members for the State Bar Council and Bar Council of India.
The act aims to
constitute only one class of legal practitioners known as ‘Advocate’ and
provides uniform qualification for admission to the Bar. The act also vests the
powers on the Bar Council of India and the State Bar Council to take
disciplinary action when required. Let’s get into the depth to understand the
Advocates Act, 1961 better.
Table of Contents
- Characteristics of Advocates Act
- Sections under Advocates Act
- Who is an Advocate?
- Law Graduate
- Roll and State Roll
- State Bar Council
- Bar Council Of India
- Functions of Bar Council Of India
- Power to make rules
- Disqualification of a member of Bar Council
- Disqualification of Enrolment
- Status of Bar Council
- The staff of Bar Council
- Membership in International Bodies
- Senior Advocate
- Advocates Roll
- Certificate of Enrolment
- Qualification to be enrolled in State Roll
- Various committee
- Rights of Advocate
- Punishment for misconduct
- Conclusion
·
It consolidates existing laws on
the legal profession.
·
The Advocates Act 1961 established
the Bar Council of India and State Bar Council.
·
An advocate cannot enrol under
more than one State Council but can transfer from one state bar council to
another.
·
It abolishes the difference
between a vakil and an advocate. So, all those who practice law are now called
advocates.
Sections
under Advocates Act
Who is an Advocate?
Section 2 (1)(a) of the Advocates Act, 1961 provides the meaning
of an advocate. Accordingly, an advocate is a person enrolled on any roll under
the provision of this Act. Before enacting this act, there were different
classes of legal practitioners, referred to as pleaders, vakils, lawyers,
attorneys.
Law Graduate
Section 2(1)(i) of the act defines a law graduate as a person who
obtained a Bachelor’s degree in law from any university established under law.
Roll and State Roll
Section 2(1)(k) of the Advocates Act defines Roll as a roll of
advocates prepared and maintained under this Act.
State Roll
Section 2(1)(n) of
the act defines State Roll as a roll of advocates maintained by the State Bar
Council under Section 17.
State Bar Council
Section 3 of the Advocates Act, 1961 states that for every state,
there shall be a Bar Council in the manner prescribed under Section 3(1).
Number of
Members of State Bar Council
According to Section 3(2)(a), the Advocate General of the
concerned state is the ex-officio member of the State Bar Council.
As per Section 3(2)(b) following number of
members should be there in the bar council of state:
1. When the number of Advocates in the state roll is less than
5000, the number of members of the Bar Council is 15.
2. When the number of Advocates in the state roll is between 5000
and 10000, the number of members of Bar Council is 20.
3. When the number of Advocates in the state roll is more than
10000, the number of bar council members is 25.
Advocate having
their name in the state roll elect the members, and the advocates can vote by a
single transferable vote.
According to
Section 3(3), there shall be a Chairman and a Vice-Chairman of the State Bar
Council, elected in the manner prescribed.
The term of office
of the member of the State Bar Council is for five years (Section 8). The
five-year span starts from the date of publication of the result of the
elections.
Functions
of State Bar Council
Section 6 of the Advocates Act, 1961 provides the function of the
State Bar Council. Functions of the council are as follows:
· To enrol the qualified persons as
an advocate.
· To prepare the State Roll.
· To take disciplinary action for
professional misconduct by the advocate.
· To protect the rights and
privileges of advocates.
· To constitute an executive
committee, enrolment committee, or any other committee as required.
· To manage the funds of the Bar
Council.
· To conduct the election for
electing the members of the State Bar Council.
· To prepare legal aid programmes.
· To prepare schemes to help poor
advocates.
· To grant recognition to the law
college.
· To allot funds for implementing
legal aid schemes and other schemes.
Bar Council Of India
Section 4 of the Advocates Act provides that there shall be a bar
council for the whole of India and is known as the Bar
Council of India.
Constitution
of the Bar Council of India
There shall be the following members in the Bar council of India:
·
Attorney General of India who is
Ex- Officio member. (Section 4(1)(a))
·
Solicitor General of India is Ex-
Officio member. (Section 4(1)(b))
· One member gets elected amongst
the member of each State Bar Council. ((Section 4(1)(c))
· A Chairman and a Vice-chairman
Section 4(2)
Attorney General and Solicitor general remains a member of the Bar
Council of India till they hold their post.
Functions of Bar
Council Of India
Section 7 of the Advocate Act lays down the functions of the Bar
Council of India.
Following are the
functions performed by the Bar Council of India:
1. To frame rules related to professional ethics.
2. To frame rules of procedure to be followed by the disciplinary
committee of the State Bar Council and the Bar Council of India.
3. To protect the rights of the Advocates.
4. To encourage legal reforms.
5. To decide matters related to professional misconduct transferred
from a disciplinary committee of state bar council.
6. To decide appeal against the disciplinary committee of state bar
council.
7. To supervise functions performed by the state bar council.
8. To prescribe syllabus of law course after consulting state car
council and university.
9. To inspect university.
10. To spend funds of Bar Council of India.
11. To conduct elections
12. To allow persons who studied abroad to practice in India.
Power to make rules
Section 15 of the Advocates Act gives power to the Bar Council to
make rules to carry out its purpose. The rules are for:
·
The election of members of bar
council done by secret ballot includes conditions subject to which a person can
exercise the right to vote by postal ballot.
·
The election manner of a member
of the Chairman and Vice-Chairman of the Bar Council
·
To decide the doubts and disputes
related to the election of the Bar Council members and appointment of Chairman
and Vice-Chairman.
·
To fill casual vacancies in Bar
Council.
·
The constitution of funds by the
bar council
·
Organising legal aid and advice
to the poor.
·
To summon and hold a meeting of
the Bar council.
·
To provide constitution and
functions of the Bar Council, including the term of office of members of the
committee.
The section of the
Act also provides that no rules by the State Bar Council under this section
shall have effect after approval from the Bar Council of India.
Disqualification of a member of Bar Council
Section 10B of the act states conditions related to
disqualification of the Bar Council of India members.
An elected member
of the Bar Council should vacate his office if he is declared absent without
sufficient excuse for three consecutive meetings by the Bar council of state he
is a member. The member can also be disqualified from being a member of the
council if his name is removed from the roll of advocates or upon
disqualification by any rule made by the Bar Council of India.
Disqualification
of Enrolment
Section 24 A provides criteria for disqualification of a person
for enrolment. A person gets disqualified from being enrolled as an advocate
due to the following reasons:
1. The person on conviction for an offence that involves moral
turpitude.
2. The person on conviction for an offence committed under the
Untouchability (Offences) Act, 1955.
3. For removal from government service on a charge that involves
moral turpitude.
Such
disqualification cease to have effect after two years has passed since his
dismissal or release.
Status of Bar Council
Section 5 of the Advocates Act provides the Bar Council with body
corporate. It provides the following features of the Bar Council:
·
Body corporate
·
Perpetual succession
·
Common seal
Bar Council can
have the power to acquire or hold property both movable and immovable. The Bar
Council can acquire and hold a property. It can also enter into a contract on
its name and sue and get sued in its name.
The staff of Bar
Council
Section 11 of the Advocates Act, 1961 states that every bar
council should appoint a secretary and an accountant. Any other staff member
can be appointed as required, and the Secretary and accountant should possess
skills as prescribed.
Membership in
International Bodies
Section 7A of the Advocates Act provides that the Bar Council of
India can become a member of the international legal bodies. The Bar Council
can contribute an amount to such bodies by way of subscription and authorise
expenditure if a representative participates in an international conference or
seminar.
Senior Advocate
Section 16 of the Advocates Act classifies advocates into two
types, senior advocates and other advocates.
The Supreme Court or the High Court can designate an
advocate as a senior advocate with his consent. For being eligible to be a
senior advocate, an advocate must be in the court’s opinion to possess the
ability, standing at the Bar or special knowledge, experience in law. So, being
a senior advocate is considered a privilege.
It is a saying
that great power comes with great responsibility. The same goes for the
designation of a senior advocate. They are responsible for acting as a role
model for junior members in the profession. They are subject to certain
restrictions imposed by the Bar Council of India. When an advocate gets
designated as a senior advocate, he should communicate it to the High Court and
the secretary of the State Bar Council and Bar Council of India.
Advocates Roll
Section 17 of the Advocates Act provides that every State Bar
Council shall prepare and maintain the roll of advocates.
The roll gets
prepared in two parts, and the first part contains the list of senior advocates
and the second part contains the list of other advocates. When more than one
advocate gets enrolled in a single day, their names in the state roll is added
according to the seniority.
In the Advocates
roll following details are mentioned:
·
Name
·
Date of Birth
·
Permanent address
·
Education details
·
Place of interest to practice
A person cannot
get enrolled in more than one Bar Council. But, he can transfer his name from
one state to another state roll-on genuine grounds.
Certificate of
Enrolment
Section 22 of the Advocates Act, 1961 provides
the provision for the Certificate of Enrolment. According to this section, a certificate
should get issued for the enrolment of an advocate.
The certificate is
issued in the prescribed form provided by the State Bar Council. Any change
made in the place of permanent address of the person is to get notified to the
concerned State Bar Council within ninety days.
Qualification to be enrolled in State Roll
Section 24 of the Advocates Act provides qualifications required
for a person to get enrolled as an advocate. The qualification prescribed for
the enrolment in the state roll are as follows:
1. The person must be a citizen of India. Even a national of any
other country can be admitted as an advocate on a State Roll if he belongs
citizens of India who duly qualifies the requirement for qualification are
permitted to practice law in that country.
2. The person should have completed 21 years of age.
3. The person should have passed 5 years integrated course after
the 12th standard or a 3-year regular law course after graduation. If the
degree is from any Foreign University then, the degree must be recognised by
the Bar Council of India.
4. Enrolment fee must be paid by the advocate as prescribed by the
State Bar Council.
5. Fulfils any other condition as required.
Various committee
Constitution of Special Committee when there was no election
Constitution
of Special Committee
Section 8A of the Act provides the Constitution of Special Committee in
the absence of an election. A special committee gets formed when a State Bar
Council fails to conduct the election of its member. The special committee
consists of:
1. Ex-officio member of the State Bar Council will be the Chairman.
In case of more than one member being an ex-officio member, then the
senior-most member should be Chairman.
2. Two members to get nominated by Bar Council of India from
advocates on the electoral roll of the State Bar Council.
Disciplinary
Committee
Section 9 of the act provides that the Bar Council should constitute
one or more disciplinary committees. The disciplinary committee consists of 3
members elected by the bar council, and the senior-most member is the chairman
of the committee.
Legal Aid
Committee
Section 9A of the Advocates Act provides the constitution of the Legal
Aid Committee. The bar council can constitute one or more legal aid committees,
and the legal aid committee has a minimum of five and a maximum of nine
members.
Committee
other than disciplinary committee
Section 10 grants power to the State Bar Council and Bar Council of
India.
State Bar Council should constitute the
following committee:
1. An executive committee consists of five-member elected by the
council among its member.
2. An enrolment committee consists of three members elected by the
Council from the member.
Bar Council of India should constitute the
following standing committee:
1. An executive committee comprises nine members elected by the
Council among its members.
2. A legal education committee consists of ten members. Among these
ten members, five members get constituted by the council among themselves, and
the remaining five-member should get co-opted by the council who are not
members.
State bar council
and the bar council of India can constitute other committees among its members
as it deems necessary.
According to Section 13,
no action done by the Bar Council or any other committee can get questioned due
to any vacancy or a defect of the constitution of the committee.
Rights of
Advocate
·
Right to Pre-Audience: Section 23 of the Advocates Act, 1961 provides
the privilege of reight to pre-audience to the advocate. The right of
pre-audience is a right of being heard before another. This right is available
in the given hierarchy:
1. Attorney General
2. Solicitor General
3. Additional Solicitor General
4. Second Additional Solicitor General or Advocate General of India
5. Advocate General of State
6. Senior Advocate
7. Other Advocate
In the hierarchy mentioned above, starting from the Attorney
General of India to have the right of pre-audience and at last, the right is
available to other advocates. According to this section, the advocate has the
right to represent the case in court, and he can speak when he wants before an
audience is present in the court and cannot be stopped from speaking unless he
violates the decency of the court.
·
Right to enter in court: Section 30 of the Advocates Act, 1961 provide the right to
practice in any court to an advocate. An advocate can enter any court
concerning any matter and has the right to enter the Supreme Court of India. He
can also be present in any of the hearings whether or not he is related to the
matter.
·
Right to practice any profession: This right gets provided under Article 19 of the Constitution of India.
According to this right, advocates can practice their profession in two
categories; General protection and Specific Protection. General Protection
provides the right to practice any profession or maintain any occupation. And
Specific Protection concerns the right to practice as an advocate under section
30 of the Advocates Act.
·
Right against arrest: The Right against arrest get provided under Section 135 of
the Code of Civil Procedure.
This section provides that an advocate cannot get arrested under any
circumstance. Accordingly, the advocate cannot get arrested under civil process
if he is going to visit or is presiding or is returning from the court.
·
Right to meet the accused: For the proper understanding of the case, the advocate has
the right to meet the accused whenever he wishes to do. He can even meet the
accused in jail.
Punishment for misconduct
Section 35 of the Advocates Act provides punishment for an
advocate for misconduct. This section provides that when a complaint is
received, or State Bar Council has the reason to believe that an advocate on a
roll is guilty of professional misconduct, the matter gets referred to the
Disciplinary Committee for disposal. The disciplinary committee then decided
the date of the hearing. The notice gets served to the concerned advocate and
the Advocate – General of the State.
Conclusion
Advocates Act, 1961 has great importance in framing rules and
regulations for advocates. The Act consolidates existing laws related to the
legal profession. The act also provided the provision for creating the Bar
Council of India and State Bar Council. Along with the responsibility of an
advocate, the act also sets the conditions where an advocate can get punished.
Reference : getlegalindia.com
No comments:
Post a Comment