The Advocates Act 1961: Admission, Enrolment and the Right to Practise

Sections 17 to 22: the roll

Section 17(1): every State Bar Council shall prepare and maintain a roll of advocates containing the names and addresses of all persons who were entered as advocates on the roll of any High Court under the Indian Bar Councils Act 1926 immediately before the appointed day, and of all other persons admitted as advocates on its roll under this Act.

17(2): each roll consists of two parts, the first containing the names of senior advocates and the second of other advocates.

17(3): entries in each part are in order of seniority, existing advocates keeping the seniority they had, and a person who was a senior advocate of the Supreme Court ranking accordingly.

17(4): no person shall be enrolled as an advocate on the roll of more than one State Bar Council. One lawyer, one roll: that is the rule that makes a national profession administrable.

Section 18: transfer from one State roll to another, on application to the Bar Council of India, which directs the removal from the first roll and the entry in the second without payment of any fee. The proviso lets the Bar Council of India reject the application, after hearing the applicant, where a disciplinary proceeding is pending against him or where the transfer does not appear to be sought bona fide.

Section 19: every State Bar Council shall send the Bar Council of India an authenticated copy of its first roll and communicate all alterations and additions as soon as they are made. That is the common roll of the All-India Bar Committee's recommendation, kept in that form.

Section 20: a special provision for the advocates of the Supreme Court who were entitled as of right to practise there immediately before the appointed day and whose names were on no State roll. They might, within the prescribed time, express their intention to the Bar Council of India, which would direct the entry of the name without payment of any fee; and if such an advocate failed to express his intention in time, his name was entered on the roll of the State Bar Council of Delhi.

Section 21: where the date of seniority of two persons is the same, the one senior in age is senior; and any other dispute about seniority goes to the State Bar Council concerned.

Section 22: the State Bar Council issues a certificate of enrolment in the prescribed form, and every advocate must notify any change in the place of his permanent residence within ninety days.

Section 23: preaudience

Preaudience is the right to be heard before another advocate. Section 23 sets out the order, and it is easily learned and often asked:

1. the Attorney-General of India;
2. the Solicitor-General of India;
3. the Additional Solicitor-General of India;
4. the second Additional Solicitor-General of India;
5. the Advocate-General of any State, and among Advocates-General by their respective seniority;
6. senior advocates, over other advocates; and
7. among senior advocates, and among other advocates, by their respective seniority.

Compare section 8(4) of the Act of 1926, where preaudience went by seniority on the High Court roll, with the Advocate-General first and, until 1951, King's Counsel next. The 1961 order is the same idea rebuilt around the law officers of a Republic.

Section 24: who may be admitted

This is the section a student is most likely to be asked to state, and it should be given as a list of conditions.

A person is qualified to be admitted as an advocate on a State roll if:

• (a) he is a citizen of India, with a proviso that a national of another country may be admitted if citizens of India duly qualified are permitted to practise law in that country, which is reciprocity;
• (b) he has completed twenty-one years of age;
• (c) he has obtained a degree in law, and the sub-clauses date the requirement: before 12 March 1967 from any University in the territory of India; before 15 August 1947 from a University in an area then within India as defined by the Government of India Act 1935; after 12 March 1967, after undergoing a three-year course of study in law from any University in India recognised for the purposes of this Act by the Bar Council of India, or a course of not less than two academic years from the academic year 1967-68 or earlier from such a University; or from a University outside India if the degree is recognised by the Bar Council of India. The clause also admits a barrister called to the Bar on or before 31 December 1976, a person who has passed the articled clerk's examination or another examination specified by the High Court at Bombay or Calcutta for enrolment as an attorney of that High Court, and a person with another foreign qualification recognised by the Bar Council of India;
• (e) he fulfils such other conditions as the State Bar Council's rules specify; and
• (f) he has paid the stamp duty, if any, and the enrolment fee, six hundred rupees to the State Bar Council and one hundred and fifty rupees to the Bar Council of India by bank draft.

Two things to notice. The date 12 March 1967 is the line between a law degree from any Indian University and a law degree from a recognised one, and it is the point at which section 7(1)(i) begins to bite: from that date the Bar Council of India decides which Universities count. And the transitional entries for barristers and for articled clerks are the last appearance in Indian law of the two branches of the English profession that clause 11 of the Charter of 1774 admitted.

Section 24A: disqualification for enrolment. A person is disqualified if he is convicted of an offence involving moral turpitude, or of an offence under the Untouchability (Offences) Act 1955, with a saving where the person was dealt with under the provisions for release of offenders on probation or after admonition.

Sections 25 to 28: how enrolment works

Section 25: the application is made in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposes to practise.

Section 26: the State Bar Council refers every application to its enrolment committee, which disposes of it in the prescribed manner. 26(2): where the enrolment committee proposes to refuse an application, it must refer it for the opinion of the Bar Council of India, with a statement of the grounds. 26(3): the committee must then dispose of the application in conformity with the opinion of the Bar Council of India. 26(4): where an application is refused, the State Bar Council must inform all other State Bar Councils of the name, address, qualifications and grounds.

The proviso to 26(1) gives the Bar Council of India power, on a reference or otherwise, to remove the name of a person who got on the roll by misrepresentation as to an essential fact, or by fraud or undue influence, after giving him an opportunity of being heard.

That machinery is the All-India Bar Committee's recommendation almost exactly: the State Council admits, and where it will not, the national Council decides. Section 27 completes it: where a State Bar Council has refused an application, no other State Bar Council shall entertain an application from that person except in the circumstances the section allows.

Section 26A lets a State Bar Council remove from the roll the name of an advocate who is dead or who has asked for his name to be removed.

Section 28 gives a State Bar Council power to make rules to carry out the purposes of this Chapter, including the time within which and the form in which an advocate is to express his intention for entry of his name on a roll, the form of applications for admission, the conditions subject to which a person may be admitted, and the instalments in which the enrolment fee may be paid.

Sections 29 to 34: the right to practise

Section 29 is the sentence the entire second half of Module IV has been building towards.

"Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates."

One class. Not advocates and vakils; not advocates of the Supreme Court and advocates of a High Court; not pleaders of the first, second and third grades; not mukhtars and revenue-agents. Advocates.

Section 30: every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends:

• (i) in all courts including the Supreme Court;
• (ii) before any tribunal or person legally authorised to take evidence; and
• (iii) before any other authority or person before whom such advocate is by or under any law entitled to practise.

Set that beside section 14 of the Act of 1926, where an advocate practised as of right only in his own High Court and elsewhere subject to that High Court's rules, and beside section 4 of the Act of 1879, where an advocate needed the permission of a High Court on whose roll he was not entered. Section 30 abolishes the local bar.

Section 31 was a special provision for attorneys and was omitted by the Advocates (Amendment) Act 1976 with effect from 1 January 1977.

Section 32: notwithstanding anything in the Chapter, any court, authority or person may permit any person not enrolled as an advocate to appear before it in any particular case. That is the saving that lets a party's relative, or an expert, or a party in person, be heard by leave.

Section 33: except as otherwise provided in this Act or in any other law, no person shall be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act. Section 29 says who the profession is; section 33 shuts the door on everybody else, subject to section 32 and to any other law.

Section 34(1): the High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate to it. 34(1A): the High Court shall make rules fixing and regulating by taxation or otherwise the fees payable as costs by a party in respect of his adversary's advocate's fees, in the High Court and courts subordinate to it, which is section 16 of the Act of 1926 carried forward.

Section 34 is what remains of the High Court's control of the profession, and it is worth being exact about its size. It is a power to regulate the conditions of practice before that court, and to fix costs. It is not a power to admit, to enrol, to refuse, or to strike off.

A worked example

An advocate enrolled with the Bar Council of Maharashtra and Goa in 2015.

Where is his name? On the State roll maintained by that Council under section 17, in the second part, in order of seniority, and on the copy sent to the Bar Council of India under section 19. He may not be on any other State roll, by section 17(4).

May he appear in the Madras High Court? Yes, as of right, by section 30(i), in all courts including the Supreme Court, subject to the conditions of practice that High Court may prescribe under section 34(1).

May he appear before an income-tax tribunal? Yes, by section 30(ii) and (iii).

He moves to Bengaluru permanently. He notifies the change of his permanent residence to his State Bar Council within ninety days under section 22(2), and may apply to the Bar Council of India under section 18 to transfer his name to the Bar Council of Karnataka, without any fee; if a disciplinary proceeding is pending against him, the Bar Council of India may refuse after hearing him.

A High Court thinks him deserving of distinction. With his consent it may designate him a senior advocate under section 16(2); his name then moves to the first part of the roll, and he becomes subject to the restrictions on practice prescribed by the Bar Council of India under section 16(3), and gains preaudience over other advocates under section 23(5).

What beginners get wrong

"The Advocates Act created one class of advocates, so there are no distinctions." There are two classes by section 16(1): senior advocates and other advocates. What was abolished was the distinction between different kinds of practitioner, not the distinction of rank within one profession.

"The Bar Council of India designates senior advocates." The Supreme Court or a High Court does, under section 16(2), with the advocate's consent. The Bar Council of India prescribes the restrictions on a senior advocate's practice under 16(3).

"An advocate may be enrolled in more than one State." Section 17(4) forbids it. He transfers under section 18 instead, on application to the Bar Council of India and without a fee.

"Only an advocate may ever appear in a court." Section 33 is subject to section 32, under which any court, authority or person may permit a person not enrolled to appear in any particular case, and to any other law for the time being in force.

"A refusal by one State Bar Council can be got round by applying to another." Section 26(4) requires the refusing Council to inform all the others, and section 27 bars any other State Bar Council from entertaining an application from that person except in the circumstances the section allows.

Limits and criticism

The reform of 1961 is the largest in this module and it left three things standing.

The original sides. The All-India Bar Committee had declined to abolish the dual system at Calcutta and Bombay, and section 24(1)(c) still speaks of the articled clerk's examination for enrolment as an attorney of those High Courts. Section 31, the special provision for attorneys, was not omitted until 1977.

The High Court's conditions of practice. Section 34(1) leaves each High Court free to lay down conditions subject to which an advocate may practise in it and its subordinate courts, which is a smaller version of the rule-making power that had governed the profession since 1726, and disputes about its extent have been a steady source of litigation.

And the qualification is a floor, not a training. Section 24 asks for citizenship, an age, a recognised degree and a fee. The All-India Bar Committee had recommended a further one-year apprentice course in practical subjects with an examination held by the State Bar Council, and the section as enacted does not require it; what fills the gap is the Bar Council of India's own rules, made under section 7(1)(h) and (i) and section 49.

What it achieved is a single sentence: since the appointed day there has been one legal profession in India, whose members may appear in any court in the country as of right. Nothing in the two hundred years this module covers is a larger change than that.

Quick revision

• s.16: two classes, senior advocates and other advocates; designation by the Supreme Court or a High Court with the advocate's consent, for ability, standing at the Bar or special knowledge or experience; senior advocates subject to restrictions prescribed by the Bar Council of India.
• s.17: every State Bar Council maintains a roll in two parts, seniors first, in order of seniority; no person on more than one State roll. s.18: transfer by direction of the Bar Council of India, without fee, refusable where a disciplinary proceeding is pending or the application is not bona fide. s.19: copies and all alterations to the Bar Council of India.
• s.20: former Supreme Court advocates entered without fee; in default of intention, on the roll of Delhi. s.21: equal seniority resolved by age; disputes to the State Bar Council. s.22: certificate of enrolment; change of permanent residence notified within ninety days.
• s.23: preaudience: Attorney-General, Solicitor-General, Additional Solicitor-General, second Additional Solicitor-General, Advocates-General, then senior advocates, then by seniority.
• s.24: citizen of India (with reciprocity for foreign nationals), twenty-one years, a law degree, after 12 March 1967 from a University recognised by the Bar Council of India after a three-year course, with transitional entries for barristers called by 31 December 1976 and articled clerks, plus other conditions and the fees. s.24A: disqualification for conviction of an offence involving moral turpitude or under the Untouchability (Offences) Act 1955.
• s.25: application to the State Bar Council where he proposes to practise. s.26: to the enrolment committee; a proposed refusal must go to the Bar Council of India and the committee must follow its opinion; refusals notified to all State Bar Councils; names got by fraud or misrepresentation removable by the Bar Council of India. s.26A: removal on death or request. s.27: a refused applicant may not apply to another State Bar Council. s.28: State Bar Council rules for this Chapter.
• s.29: only one class of persons entitled to practise the profession of law, namely advocates.
• s.30: every advocate on a State roll entitled as of right to practise throughout the territories, in all courts including the Supreme Court, before any tribunal or person legally authorised to take evidence, and before any other authority before whom he may practise.
• s.31 omitted in 1977. s.32: a court may permit an unenrolled person to appear in a particular case. s.33: nobody else may practise. s.34: the High Court may make rules on the conditions of practice, and shall make rules fixing fees payable as costs.

Test yourself

1. State the effect of sections 29 and 30 together. Section 29 provides that from the appointed day there shall be only one class of persons entitled to practise the profession of law, namely advocates. Section 30 gives every advocate whose name is on a State roll the right, as of right, to practise throughout the territories to which the Act extends, in all courts including the Supreme Court, before any tribunal or person legally authorised to take evidence, and before any other authority before whom he is by law entitled to practise. Together they create a single national profession with a national right of audience.

2. Who may be admitted as an advocate on a State roll? A citizen of India of at least twenty-one years who holds a degree in law, being, for degrees obtained after 12 March 1967, a degree after a three-year course from a University in India recognised for the purposes of the Act by the Bar Council of India, or a recognised foreign degree; a foreign national may be admitted on a reciprocal basis. Transitional provisions admit barristers called on or before 31 December 1976 and persons who passed the articled clerk's examination for enrolment as an attorney at Bombay or Calcutta. The applicant must also satisfy the State Bar Council's other conditions and pay the stamp duty and enrolment fees.

3. What happens if an enrolment committee proposes to refuse an application? By section 26(2) it must refer the application to the Bar Council of India for its opinion, with a statement of the grounds of refusal, and by section 26(3) it must then dispose of the application in conformity with that opinion. If the application is refused, the State Bar Council must inform all other State Bar Councils under section 26(4), and by section 27 no other State Bar Council may entertain an application from that person except in the circumstances that section allows.

4. Set out the order of preaudience under section 23. The Attorney-General of India; then the Solicitor-General; then the Additional Solicitor-General; then the second Additional Solicitor-General; then the Advocate-General of a State, and among Advocates-General according to their seniority; then senior advocates over other advocates; and within each of those two classes according to their respective seniority.

5. What powers over the profession did the High Courts keep? Two of substance. By section 16(2) the Supreme Court or a High Court designates senior advocates, with the advocate's consent. By section 34(1) a High Court may make rules laying down the conditions on which an advocate may practise in it and in the courts subordinate to it, and by section 34(1A) it must make rules fixing and regulating the fees payable as costs. It no longer admits, enrols, refuses or strikes off.