The Advocates Act 1961: the Bar Councils

3(2): a State Bar Council consists of:

• (a) the Advocate-General of the State, ex officio (the Additional Solicitor-General for Delhi, and the Advocates-General of each State where a Council serves more than one); and
• (b) elected members, whose number depends on the size of the electorate: fifteen where the electorate does not exceed five thousand, twenty where it exceeds five thousand but not ten thousand, and twenty-five where it exceeds ten thousand, elected by the system of proportional representation by means of the single transferable vote from among the advocates on the electoral roll of the Council.

The proviso requires that, as nearly as possible, one half of the elected members shall be advocates of at least ten years' standing on a State roll, and in computing those ten years any period as an advocate enrolled under the Indian Bar Councils Act 1926 counts.

3(3): a Chairman and a Vice-Chairman elected by the Council. 3(4): an advocate is disqualified from voting, and from being chosen or being a member, unless he possesses the qualifications or satisfies the conditions prescribed by the Bar Council of India, and each State Bar Council prepares and revises an electoral roll.

Set section 3 beside section 4 of the Act of 1926 and the change is the whole reform in one comparison.

The High Court has left the room. In 1926 it nominated four of the fifteen and could put two of its own judges among them; in 1961 the only member who is not elected by the advocates is the Advocate-General, who sits ex officio.

Section 4: the Bar Council of India

4(1): there shall be a Bar Council for the territories to which the Act extends, to be known as the Bar Council of India, consisting of:

• (a) the Attorney-General of India, ex officio;
• (b) the Solicitor-General of India, ex officio; and
• (c) one member elected by each State Bar Council from among its members.

4(1A): nobody is eligible to be elected to it unless he has the qualification in the proviso to section 3(2), that is, ten years as an advocate on a State roll.

4(2): a Chairman and a Vice-Chairman elected by the Council.

4(3): the term of a member elected by a State Bar Council is two years in the case of an ex officio member of that Council, or till he ceases to be a member of it, whichever is earlier; and in any other case, the period for which he holds office in the State Bar Council; and every such member continues until his successor is elected.

This is the section the Chamier Committee said could not be done. In 1924 an all-India Bar Council was thought impracticable; in 1953 the All-India Bar Committee said the psychological moment had arrived; in 1961 Parliament created it, and made it a federal body, composed of one delegate from each State Council with the two senior law officers of the Union.

Section 5: a body corporate

Every Bar Council shall be a body corporate having perpetual succession and a common seal, with power to acquire and hold property, movable and immovable, and to contract, and may sue and be sued by its name.

The wording is taken almost unchanged from section 3(2) of the Act of 1926. What is new is that in 1961 a body corporate is given real powers to exercise, which is the subject of the next two sections.

Section 6: what a State Bar Council does

The functions of a State Bar Council are:

• (a) to admit persons as advocates on its roll;
• (b) to prepare and maintain such roll;
• (c) to entertain and determine cases of misconduct against advocates on its roll;
• (d) to safeguard the rights, privileges and interests of advocates on its roll;
• (dd) to promote the growth of Bar Associations for the effective implementation of welfare schemes;
• (e) to promote and support law reform;
• (ee) to conduct seminars and organise talks by eminent jurists and publish journals and papers of legal interest;
• (eee) to organise legal aid to the poor in the prescribed manner;
• (f) to manage and invest its funds;
• (g) to provide for the election of its members;
• (gg) to visit and inspect Universities in accordance with directions of the Bar Council of India under section 7(1)(i);
• (h) and (i) to perform all other functions conferred by the Act and to do all things necessary for discharging them.

6(2) allows a State Bar Council to constitute one or more funds for welfare schemes for indigent, disabled or other advocates and for legal aid.

Read clauses (a), (b) and (c) together and the change from 1926 is complete. Under the Act of 1926 the High Court admitted, the High Court maintained the roll, and the High Court punished after the Bar Council's Tribunal had inquired. Under section 6 all three belong to the State Bar Council.

Section 7: what the Bar Council of India does

The functions of the Bar Council of India are:

• (b) to lay down standards of professional conduct and etiquette for advocates;
• (c) to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council;
• (d) to safeguard the rights, privileges and interests of advocates;
• (e) to promote and support law reform;
• (f) to deal with and dispose of any matter under the Act referred to it by a State Bar Council;
• (g) to exercise general supervision and control over State Bar Councils;
• (h) to promote legal education and to lay down standards of such education, in consultation with the Universities in India imparting it and with the State Bar Councils;
• (i) to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate, and for that purpose to visit and inspect Universities or cause the State Bar Councils to do so;
• (ia) and (ib) to conduct seminars, publish journals, and organise legal aid to the poor;
• (ic) to recognise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate;
• (j) to (m) to manage and invest its funds, provide for the election of its members, and perform all other functions under the Act.

7(2) and (3) let it constitute funds for welfare schemes, legal aid and law libraries, and receive grants, donations, gifts and benefactions for them.

Four of those are worth an examination sentence each.

Clause (b), standards of professional conduct and etiquette, is the source of the Bar Council of India Rules that every advocate in India is bound by.

Clause (g), general supervision and control over State Bar Councils, is what makes the structure federal rather than merely parallel. It is the basis of the powers of revision and direction in the miscellaneous chapter.

Clauses (h) and (i) are the great addition to the Committee's scheme. The Committee had recommended a uniform qualification; Parliament went further and gave the national body power over the standards of legal education and over the recognition of the Universities whose degrees count. Every law degree in India that qualifies its holder for enrolment does so because the Bar Council of India recognises the University that granted it.

Clause (ic) is the reciprocity clause, and it should be read with section 47.

Section 7A allows the Bar Council of India to become a member of international legal bodies, such as the International Bar Association or the International Legal Aid Association, to send delegates and to pay subscriptions.

Sections 8 to 15: how the Councils work

Section 8: the term of office of an elected member of a State Bar Council is five years from the date of publication of the result of his election, with a proviso allowing the Bar Council of India, for reasons recorded in writing, to extend it by not more than six months where the Council has failed to provide for elections.

Section 8A: where a State Bar Council fails to hold elections within the term or the extended term, the Bar Council of India constitutes a Special Committee to discharge its functions until a new Council is elected. That section is what keeps a State's profession governed when its own Council has failed to renew itself.

Section 9: disciplinary committees. A Bar Council shall constitute one or more disciplinary committees, each of three persons, of whom two are elected by the Council from among its members and one is co-opted from among advocates who have the ten years' qualification and are not members of the Council; and the senior-most advocate among the members of a disciplinary committee shall be its Chairman.

The co-opted third member is the point. A disciplinary committee is not simply a sub-committee of an elected body; one of its three members is an outsider to the Council, and the chair goes by seniority at the bar rather than by office.

Section 9A: a Bar Council may constitute one or more legal aid committees of not fewer than five and not more than nine members.

Section 10: the standing committees. A State Bar Council shall constitute an executive committee of five and an enrolment committee of three, elected from among its members. The Bar Council of India shall constitute an executive committee of nine and a legal education committee of ten, of whom five are elected by the Council from among its members and five are co-opted persons who are not members of the Council.

Half the legal education committee is therefore from outside the profession's own elected representatives, which is how the Act keeps academic membership in the body that sets the standards of legal education.

Section 10A provides for the transaction of business by Bar Councils and their committees, including meetings, quorum and the conduct of business; section 10B for the disqualification of a member of a Bar Council; section 11 requires every Bar Council to appoint a secretary and permits it to appoint an accountant and other staff, with qualifications as prescribed; section 12 requires books of accounts to be maintained, audited by qualified auditors, and the audited accounts and the auditor's report to be sent, by a State Bar Council, to the Bar Council of India, and published.

Sections 11 and 12 are the All-India Bar Committee's administrative recommendations enacted almost as it framed them: a secretary, an accountant, an annual audit, and a statutory requirement for both.

Section 13: a vacancy in a Bar Council or a committee does not invalidate anything done. Section 14: an election to a Bar Council shall not be questioned on the ground that due notice was not given to a person entitled to vote, if notice of the date was published in the Official Gazette in the prescribed time. Section 15: a Bar Council may make rules to carry out the purposes of this Chapter, in particular about elections, electoral rolls, the manner of election of the Chairman and Vice-Chairman, filling of vacancies, meetings and the constitution and functions of committees.

A worked example

Vikram Deshpande is enrolled with the Bar Council of Maharashtra and Goa, and in 2024 he wants to stand for election to it.

May he vote? Only if he satisfies the conditions the Bar Council of India has prescribed under section 3(4), and only if his name is on the electoral roll that the State Bar Council prepares and revises.

How many seats are there? The Council has the Advocate-General of Maharashtra ex officio and, because its electorate exceeds ten thousand, twenty-five elected members, elected by proportional representation with the single transferable vote under section 3(2)(b).

Does his standing matter? For the seat, only through the proviso: as nearly as possible half the elected members must be advocates of at least ten years' standing on a State roll, and time as an advocate enrolled under the Indian Bar Councils Act 1926 counts towards those ten years.

He is elected. What is his term? Five years from the publication of the result, by section 8; and if the Council fails to hold the next election in time, the Bar Council of India may extend it by up to six months, and if it still fails, a Special Committee takes over under section 8A.

Can he then sit on the Bar Council of India? Only if his own Council elects him to it under section 4(1)(c), and only if he has the ten years' qualification required by section 4(1A).

He is put on a disciplinary committee. It has three members: he and one other elected by the Council from among its members, and a third co-opted from advocates of ten years' standing who are not members of the Council, under section 9. The senior-most advocate among the three chairs it, which may or may not be him.

What beginners get wrong

"The Bar Council of India enrols advocates." It does not. Enrolment is a State Bar Council function, under section 6(1)(a) and section 17. The Bar Council of India lays down standards, supervises the State Councils, recognises Universities, and hears appeals.

"The High Court has a say in enrolment as it did in 1926." It does not. Under the Act of 1926 the High Court kept the roll, admitted, and retained a discretion to refuse. Under the Act of 1961 those functions are the State Bar Council's, and the High Court's remaining powers are the rule-making power in section 34 and its jurisdiction in contempt.

"A State Bar Council has fifteen members." It has the Advocate-General ex officio and fifteen, twenty or twenty-five elected members, according to the size of its electorate, elected by proportional representation with the single transferable vote.

"The disciplinary committee is a committee of the Council's own members." Two of its three members are; the third is co-opted from advocates of ten years' standing who are not members of the Council, and the senior-most advocate on it is the Chairman.

Limits and criticism

The strongest criticism of the structure is that it makes the profession the judge of its own conduct, and the answer the Act gives is in its appeals: section 37 to the Bar Council of India and section 38 to the Supreme Court, which the next chapters set out. A student should give the criticism and the answer together.

The second is practical. Section 8A exists because State Bar Councils have failed to hold elections, and a Special Committee appointed from Delhi to run a State's bar is not what the All-India Bar Committee had in mind. That section, and the powers of supervision in section 7(1)(g), are the parts of the Act that have grown in importance since 1961.

And the great success of the structure is the one that is least often noticed in an examination answer: legal education. By sections 7(1)(h) and (i) the Bar Council of India sets the standards of legal education and decides which Universities' degrees qualify for enrolment. No committee before 1961 had asked for that, and it is the power that has shaped the Indian law degree ever since.

Quick revision

• Act 25 of 1961. s.1 short title, extent, commencement; s.2 definitions, including "legal practitioner" as an advocate or vakil of any High Court, a pleader, mukhtar or revenue agent, "law graduate", "roll" and "State roll".
• s.3: a State Bar Council for each State or group of States, consisting of the Advocate-General ex officio and fifteen, twenty or twenty-five elected members according to an electorate of up to five thousand, up to ten thousand, or more, elected by proportional representation, single transferable vote; as nearly as possible half must be advocates of ten years' standing, counting time under the Act of 1926. Chairman and Vice-Chairman elected.
• s.4: the Bar Council of India: the Attorney-General and the Solicitor-General ex officio, and one member elected by each State Bar Council from among its members, who must have the ten years' qualification. Chairman and Vice-Chairman elected.
• s.5: every Bar Council a body corporate.
• s.6: State Bar Council functions: admit, maintain the roll, determine misconduct, safeguard advocates' interests, promote Bar Associations, law reform, seminars and legal aid, manage funds, provide for elections, visit and inspect Universities on the Bar Council of India's directions.
• s.7: Bar Council of India functions: standards of professional conduct and etiquette; procedure of the disciplinary committees; safeguard interests; law reform; dispose of references from State Councils; general supervision and control over State Bar Councils; promote legal education and lay down its standards; recognise Universities whose law degree qualifies for enrolment; seminars and legal aid; reciprocal recognition of foreign qualifications; funds. s.7A: membership of international bodies.
• s.8: five years, extendable by six months. s.8A: Special Committee where a Council fails to hold elections.
• s.9: disciplinary committees of three, two elected members and one co-opted advocate of ten years' standing who is not a member, chaired by the senior-most advocate. s.9A: legal aid committees of five to nine.
• s.10: State: executive committee of five, enrolment committee of three. India: executive committee of nine, legal education committee of ten, half co-opted from outside the Council. s.10A business, s.10B disqualification.
• s.11 secretary and accountant; s.12 accounts and audit; s.13 vacancies do not invalidate; s.14 elections not to be questioned for want of individual notice; s.15 power to make rules for this Chapter.

Test yourself

1. How is a State Bar Council composed, and how does that differ from a Bar Council under the Act of 1926? It consists of the Advocate-General ex officio and fifteen, twenty or twenty-five members elected by the advocates on its electoral roll by proportional representation with the single transferable vote, according to whether the electorate is up to five thousand, up to ten thousand, or larger, with as nearly as possible half of them advocates of ten years' standing. Under the Act of 1926 the Council had fifteen members, of whom only ten were elected, four were nominated by the High Court, two of those four might be judges, and one was the Advocate-General.

2. Who sits on the Bar Council of India? The Attorney-General of India and the Solicitor-General of India, ex officio, and one member elected by each State Bar Council from among its own members, who must have been an advocate on a State roll for at least ten years.

3. Which functions did the State Bar Council take over from the High Court? Admission of persons as advocates, preparation and maintenance of the roll, and the entertaining and determining of cases of misconduct: section 6(1)(a), (b) and (c). Under the Act of 1926 the High Court did all three, the Bar Council merely making rules with its sanction and holding inquiries through a Tribunal.

4. What powers does the Bar Council of India have over legal education? By section 7(1)(h) it promotes legal education and lays down the standards of such education in consultation with the Universities imparting it and the State Bar Councils; and by section 7(1)(i) it recognises the Universities whose degree in law is a qualification for enrolment as an advocate, and may visit and inspect Universities or direct the State Bar Councils to do so under section 6(1)(gg).

5. How is a disciplinary committee constituted? Of three persons: two elected by the Bar Council from among its members, and one co-opted by the Council from among advocates who have the ten years' qualification in the proviso to section 3(2) and who are not members of the Council. The senior-most advocate among them is the Chairman.