Introduction to Advocates Act
This Act regulates the legal profession in India and legal professionals are required to perform their professional duties by the Advocates Act, of 1961[1]. This Act contains the provisions for admission, enrollment, and rights and duties of advocates. This Act was brought into existence by the Parliament and was enforced by the Bar Council of India. This Act states the meaning of the vague terms for example ‘Advocate’ which was confusing who are advocates do we call a law student an advocate? Or a legal full-fledged profession with a certificate of AIB to practice? This was clarified by the Advocates Act Section 1 (a) “Advocate” means an advocate entered into any role under the provision of this Act.[2]
Some Important aspects of the Advocates Act:
- This Act brought the All-India Bar and the State Bar Council into existence.
- An advocate joins under only one state board but he can be shifted to various state boards.
- The All-India Bar is a statutory body.
- This act eliminated the use of various terms which were vague for a legal practitioner such as vakil, lawyer, etc., and gave one term “Advocate”.[3]
Difference between an advocate, a lawyer, and a Barrister.
| Advocates | Lawyer | Barrister |
Meaning | An advocate may be a person who expresses their views and wishes on behalf of a third party and helps you stand up for your rights. Example: A union leader putting the demands up to the top management of a country | A person whose profession is to represent clients in a court of law or to advise or act for clients in other legal matters. Example: A certified lawyer representing a client in front of a judge or a jury. | A barrister is a term related to England, it’s a lawyer who represents clients in a higher court of law.[4] |
Requirements | An advocate may or may not be a legal practitioner. | A lawyer must hold graduation under the LLB course from any recognized university and shall hold a Bar Council certificate. | To become a barrister, you will need a degree (along with the Graduate Diploma in Law if it is a non-law degree). You will also need to complete the vocational component and pupillage/work-based component.[5] |
Advocate’s Right to Practice.
The right to practice is a legal right that lies with an advocate to represent his/her client in presence of any judge, jury, or any other legal body. But for the same an advocate is to be registered in a common roll of the state bar council and has to meet all the requirements only then he/ she may be free to practice law under the Supreme Court, any tribunal, or any other authority.[6]
Punishment for misconduct of advocates.
If an advocate carries misconduct against one or on one’s behalf the person against such misconduct is directed to can file a complaint under the state bar council in which the advocate is registered. The bar after receiving such a complaint and having a stringent reason to believe that an advocate has carried out such misconduct shall inform its disciplinary committee about the complaint and address such complaint to it for its further disposal. After receipt of the complaint, the disciplinary committee sends a notice to the advocate against whom the complaint is registered and also to the advocate general of the state after hearing them they take the final stand. The committee may end up dismissing the complaint or criticizing the advocate for his/her misconduct or to an extent it may also remove the name of the advocate from the state roll of advocates.
Shambhuram Yadav vs. Hanumandas Khatri[7]:
In this case, the lawyer suggested to his client that he pay off the judge to give the judgment in the client’s favour. The Advocate was held for professional misconduct by the supreme court under the violation of rules 3 and 4 of BCI rules – Chapter II.
Disciplinary power of Bar Council of India.
The Bar Council can constitute more than one disciplinary committee, each such committee shall consist of 3-person and one member of the said committee shall be elected from the council and one more person shall be co-opted from the advocates who possess qualifications as specified by the Advocates Act. If the Bar Council of India receives any complaint against any advocate, then it shall forward it to the disciplinary committee constituted by it for disposal of such complaint. A disciplinary committee of the bar council of India can dispose of any pending matter of the state disciplinary committee or it may as the state disciplinary committee to dispose of such a complaint.[8]
Power of the state bar council to constitute committees other than the disciplinary committee:
The state bar council can form the following committees:
- An executive committee
- An enrolment Committee
- Any other committee as seen necessary to carry out its functions as under the Advocates Act.
The Bar Council of India can form the following committees:
- Executive Committee
- Legal Education Committee
- Any other miscellaneous committee as deemed necessary by the Bar Council of India for the fulfilment of its duties as per the Advocates Act.[9]
Practising in the court without meeting the criterion of the BCI:
No one without meeting the BCIs requirement is eligible to be a legal practitioner, one cannot practice without meeting the criterion of the BCI if someone does such an act then he is deemed to be an illegal practitioner. If any person is found to be practising without meeting the Bar criterion and is not eligible to practice as per the provisions of the Advocates Act in any court or front of any authority or shall be entitled to imprisonment of a term which may exceed 6 months.[10]
Dissolution of a State Bar Council
A state bar council may be dissolute except for the state bar council of Delhi, but such dissolution shall bring a new state bar council into existence which shall:
- Have all the assets and properties of the old meaning now dissolute bar council.
- All the rights, obligations, and liabilities arising out of any contract or otherwise of the old Bar council shall now be carried forward to the new bar council.
- All the proceedings pending under the disciplinary committee of the previous bar council also are to be carried forward to the new bar council.[11]
Conclusion:
The Advocates Act sets out a boundary under which an advocate is confined to carry out his/her duties as per the guidelines of the State Bar Council as well as the Bar Council of India. It also specifies the supremacy of the Bar Council of India as well as the qualities that the legal institution shall uphold.
*Note: This Blog does not cover every and any aspect of the Advocates Act rather it answers the general questions listed here for clearer classification readers are requested to refer to the said blog with the reference to the original Advocates Act.
Author(s) Name: Keval Cyril Patelia (Maharaja Syajirao University of Baroda)
References:
[1]THE ADVOCATES ACT, 1961 ACT NO. 25 OF 1961 [Introductions]
[2] THE ADVOCATES ACT, 1961 ACT NO. 25 OF 1961 [Definition]
[3] Ibid
[4]Collinsdictionary.com [https://www.collinsdictionary.com/dictionary/english/lawyer#:~:text=noun-,1.,2.] [last visited on 15 – 9 – 2022]
[6] THE ADVOCATES ACT, 1961 ACT NO. 25 OF 1961 [Part IV Right to Practise]
[7] AIR 2001 SC 2509
[8] THE ADVOCATES ACT, 1961 ACT NO. 25 OF 1961 [Chapter V Conduct of Advocates]
[9] THE ADVOCATES ACT, 1961 ACT NO. 25 OF 1961 [Chapter II Bar Councils]
[10] THE ADVOCATES ACT, 1961 ACT NO. 25 OF 1961 [Chapter VI Miscellaneous]
[11] THE ADVOCATES ACT, 1961 ACT NO. 25 OF 1961 [Chapter VII Temporary and Transitional Provisions]
