The Indian Bar Committee 1923 and the Indian Bar Councils Act 1926

Its principal recommendations were:

• that in all High Courts a single grade of practitioners, to be called advocates, should be enrolled, the grade of High Court vakils or pleaders being abolished;
• that where special conditions were maintained for admission to plead on the original side, the only distinction within the grade of advocates would be between those entitled to appear there and those not;
• that English barristers should be enrolled as advocates on terms equivalent to those on which Indians would be enrolled;
• that except when advocates appeared on the original sides at Calcutta, Bombay and Madras on the instruction of an attorney, all practitioners who acted should file vakalatnamas, and those who merely appeared and pleaded might file a memorandum of appearance;
• that the existing distinctions in precedence and preaudience be abolished, and that advocates who were barristers should rank among themselves by the date of call to the bar, and other advocates by the date on which they became entitled to practise in the High Court, a barrister advocate taking precedence over another advocate only if he was called before the other became so entitled;
• that no appointment should be reserved for barristers as such;
• that vakils should be enrolled on the original sides at Bombay and Calcutta, those of ten years' standing at once, those of between five and ten years after reading for a year with an approved advocate practising on the original side, and those of less than five years on passing an examination in commercial law and original side practice; that such vakils be subject to the same rules as barrister advocates; and that attorneys should also be entitled to be enrolled as advocates without a further examination.

Read that list and the shape of the grievance is plain. It is not principally about money or work. It is about rank: who speaks first, who may sit where, whose years count, and which appointments are reserved. A profession in which an English barrister of one year's standing outranked an Indian vakil of twenty was not going to be quieted by anything less.

The Act of 1926

To give effect to that part of the recommendations relating to Bar Councils, the Central Legislature enacted the Indian Bar Councils Act 1926 (38 of 1926), in spite of protests by Sri T. Rangachariar and Sri K. C. Neogy that the measure was insufficient and did not set up an autonomous all-India bar. It received the Governor-General's assent on 9 September 1926, and its main provisions came into force in the different Provinces in 1928 and 1929: sections 3 to 7 at Calcutta from 1 March 1928 and sections 8 to 16 from 1 July 1928, at Madras from 16 July 1928, at Allahabad from 1 June 1928, at Bombay and Patna from 1 January 1929, at the Oudh Chief Court from 1 March 1928, and at Nagpur in 1937.

Its long title is "An Act to provide for the constitution of Bar Councils and for other purposes", and the preamble adds the third purpose: to consolidate and amend the law relating to legal practitioners entitled to practise in such courts.

Section 1 gives the short title, extent and application: it applied to the High Court of every State and to such Judicial Commissioners' Courts in Union territories as the Central Government declared to be High Courts for its purposes. Section 2 is the interpretation section, and its first definition is the one that matters: "advocate" means an advocate entered in the roll of advocates of a High Court under this Act. It also defines "Advocate-General" to include, where there is none, the Government Advocate or such officer as the State Government declares.

The Bar Council itself, ss.3 to 7

Section 3: for every High Court a Bar Council shall be constituted, and every Bar Council so constituted is a body corporate with perpetual succession and a common seal, able to acquire and hold property, to contract, and to sue and be sued in its own name.

That is the central achievement of the Act in one sentence. Until 1926 the profession had no legal existence of its own; from 1926 it had a corporation.

Section 4: every Bar Council consists of fifteen members:

• one is the Advocate-General;
• four are nominated by the High Court, of whom not more than two may be judges of that court; and
• ten are elected by the advocates of the High Court from among their number.

4(2): of the elected members, not less than five must have been entitled as of right to practise in that High Court for not less than ten years. 4(3): at Calcutta and Bombay a proportion of the elected members fixed by the High Court must be advocates entitled to practise on the original side, and a number of those must be barristers of England or Ireland or members of the Faculty of Advocates in Scotland. 4(4): there is a Chairman and a Vice-Chairman, elected by the Council, with a proviso making certain Advocates-General chairmen ex officio.

Ten elected out of fifteen is a real majority for the profession, and the reservation in 4(3) for original side and barrister members is the old division surviving inside the new body.

Section 5 provides for the first Bar Councils: their elected members were to be chosen by and from among the advocates, vakils and pleaders then entitled as of right to practise in the High Court, and held office for three years. Section 5A made an ad hoc arrangement for the Gujarat High Court, whose first Council was nominated by the Chief Justice for twelve months.

Section 6: rules about elections, terms of office, casual vacancies, meetings and quorum, and the Chairman and Vice-Chairman. The first rules under this section were to be made by the High Court, and the Bar Council might afterwards add to, amend or rescind them with the previous sanction of the High Court.

Section 7: the Bar Council may make bye-laws for the appointment, pay and conditions of its ministerial officers and servants, and for the appointment and constitution of its Committees, their procedure, and the delegation of the Council's powers to them.

Admission and enrolment, ss.8 and 9

Section 8(1): no person is entitled as of right to practise in any High Court unless his name is entered in the roll of advocates of that High Court maintained under this Act, with a proviso excepting attorneys.

8(2): the High Court shall prepare and maintain the roll, entering the names of all persons who were, as advocates, vakils or pleaders, entitled as of right to practise in the High Court immediately before the section came into force, and of all persons afterwards admitted as advocates under the Act, on payment of the stamp duty and of a fee to the Bar Council, ten rupees for the first class.

That subsection is where the vakil disappears. Everybody on the old rolls, whatever he had been called, becomes an advocate. The Chamier Committee's first recommendation is carried out by a transitional provision.

8(3): seniority. Existing practitioners keep their order inter se; a later entrant ranks by the date of his admission, or, if he is a barrister, by the date of admission or the date he was called to the bar, whichever is earlier; and a person previously entitled to practise in another High Court ranks by the date he became so entitled. 8(4): rights of preaudience are determined by seniority, the Advocate-General having preaudience over all. The words giving King's Counsel preaudience over all advocates except the Advocate-General were removed in 1951.

8(5) to (7): the High Court issues a certificate of enrolment, sends a copy of the roll to the Bar Council, and communicates all alterations and additions, which the Bar Council enters in its copy.

Section 9(1): the Bar Council may, with the previous sanction of the High Court, make rules to regulate the admission of persons to be advocates, with a proviso that such rules shall not limit or in any way affect the power of the High Court to refuse admission to any person at its discretion.

9(2): those rules shall provide for the qualifications of applicants, the form of application to the High Court, notice by the High Court to the Bar Council of every application, the hearing by the High Court of any objection preferred on behalf of the Bar Council, and the fees payable to the Bar Council.

9(3) deserves its own sentence: rules made under the section shall provide that no woman shall be disqualified for admission to be an advocate by reason only of her sex.

9(4) preserves the powers of the High Courts at Calcutta and Bombay to prescribe qualifications for practice on their original jurisdiction, to grant or refuse such applications as they think fit, and to prescribe the conditions on which such persons may practise or plead.

Notice the machinery in 9(2) carefully, because it is the exact measure of what the Bar Council was. The application goes to the High Court. The High Court tells the Bar Council. The Bar Council may object. The High Court hears the objection and decides. The power of enrolment remained in the High Court, and the function of the Bar Council was advisory.

Misconduct, ss.10 to 13

These four sections are now printed as repealed, all four by section 50(4) of the Advocates Act 1961 with effect from 1 September 1963, and their marginal notes preserve the scheme: section 10, punishment of an advocate for misconduct; section 11, the Tribunal of the Bar Council; section 12, procedure in inquiries; section 13, the powers of the Tribunal and the courts in inquiries.

The working of them was this. The High Court might reprimand, suspend or remove from practice any advocate of the High Court whom it found guilty of professional or other misconduct. On a complaint by any court, by the Bar Council, or by any other person, the High Court was bound, unless it summarily rejected the complaint, to refer the case for inquiry to the Bar Council or to the court of a District Judge, and might refer of its own motion where it otherwise had reason to believe there had been misconduct. Sections 11 to 13 constituted the Tribunal of the Bar Council to hold such an inquiry and gave it and the District Court their procedure and powers.

So the profession inquired and the High Court decided. Compare the Advocates Act 1961, where the disciplinary committee of a Bar Council both inquires and punishes, and the appeal is to the Bar Council of India and then to the Supreme Court.

The rest, ss.14 to 20

Section 14(1): an advocate is entitled as of right to practise, subject to section 9(4), in the High Court of which he is an advocate; and, save as otherwise provided, in any other court and before any other tribunal or person legally authorised to take evidence, and before any other authority before whom he is entitled by law to practise.

14(2) makes the right to practise in another High Court subject to rules made by that High Court or its Bar Council under section 15 regulating the conditions on which advocates of other High Courts may be permitted to practise there. 14(3) preserves the power of the High Courts at Calcutta and Bombay to make rules determining who may plead and who may act on the original side.

That is a national right of audience with two large qualifications, and the qualifications are why the All-India Bar Committee was appointed twenty-five years later.

Section 15: the Bar Council may, with the previous sanction of the High Court, make rules about the rights and duties of advocates and their discipline and professional conduct; the conditions on which advocates of other High Courts may practise; facilities for legal education and training and the holding of examinations by the Bar Council; fees for those facilities and examinations; the investment and management of the Bar Council's funds; and any other matter on which the High Court requires rules.

Section 16: the High Court shall make rules fixing and regulating the fees payable as costs by a party in respect of his adversary's advocate's fees, in the High Court and in courts subordinate to it.

Section 17: indemnity. No suit or legal proceeding lies against a Bar Council, or any Committee, Tribunal or member of it, for anything done in good faith in pursuance of the Act or the rules.

Section 18: all rules made under the Act are to be published in the Official Gazette.

Section 19 is the reconciling section, and 19(2) is remarkable. When sections 8 to 16 came into force for a High Court established by letters patent, the Act was to have effect notwithstanding anything in those letters patent, and the letters patent were deemed to have been repealed so far as inconsistent with the Act or the rules. 19(1) amended the enactments in the Schedule; 19(3) displaced the Bombay Pleaders Act 1920 except section 7 for persons enrolled as advocates, and provided that nothing in it authorised the admission of anybody as a vakil or pleader of the High Court; 19(4) provided that any other enactment or instrument previously applicable to advocates, vakils or pleaders should be construed as applying to advocates enrolled under this Act.

Section 20 is a transitional provision made after the reorganisation of the States in 1956, continuing the Bar Councils of certain High Courts as the Bar Councils of the corresponding new States, dissolving those of Hyderabad and Saurashtra, and dividing the assets and liabilities of the Hyderabad Bar Council between three others.

What the Act achieved, and what it did not

What it achieved. Every High Court got a Bar Council which was a body corporate, with a majority of elected advocates, power to make bye-laws and to constitute committees, power to make rules on discipline, professional conduct and legal education with the High Court's sanction, a Tribunal to inquire into misconduct, and indemnity for acting in good faith. The vakil disappeared into a single grade of advocate by section 8(2). Seniority and preaudience were put on a statutory footing by section 8(3) and (4). Women were expressly not disqualified by reason of sex, by section 9(3). And by section 19(2) the Act overrode inconsistent letters patent, which is a considerable thing for a statute of the Indian legislature to do to a grant of the Crown.

What it did not do, and the All-India Bar Committee listed these in 1953:

• The power of enrolment stayed with the High Court, and the Bar Council's function was advisory.
• It did not create an all-India bar or an all-India Bar Council. Rangachariar and Neogy said so in the debates and were right.
• It did not touch the original sides at Calcutta and Bombay, preserved expressly by sections 9(4) and 14(3).
• It did not touch the attorneys, excepted by the proviso to section 8(1), whose enrolment and discipline remained with the High Court under the letters patent.
• It did not reach the pleaders, mukhtars and revenue-agents at all, who went on under the Legal Practitioners Act 1879.

Two grades became one at the top of the profession in each Province. Everything below the High Court, and everything peculiar to the original side, was left where it was. That is why there was another committee in 1951 and another Act in 1961.

A worked example

Sundaram, a vakil of the Madras High Court of twelve years' standing, in 1929.

What is he called after the Act comes into force? An advocate. By section 8(2)(a) the High Court enters on its new roll the names of all persons who were, as advocates, vakils or pleaders, entitled as of right to practise in the High Court immediately before that date, on payment of ten rupees to the Bar Council.

Where does he rank? By section 8(3)(a) he keeps the seniority he had among the existing practitioners; and by 8(4) his right of preaudience follows that seniority, the Advocate-General having preaudience over all.

A young man wants to be enrolled. He applies to the High Court under section 9(2)(b). The High Court gives notice to the Bar Council, which may object; the High Court hears the objection and decides, and by the proviso to section 9(1) nothing in the Bar Council's rules affects the High Court's discretion to refuse.

A woman applies. By section 9(3) the rules must provide that no woman shall be disqualified for admission to be an advocate by reason only of her sex.

Sundaram is accused of misconduct. The complaint goes to the High Court, which, unless it summarily rejects it, must refer the case for inquiry to the Bar Council's Tribunal or to the court of a District Judge under sections 10 to 13. The Tribunal inquires; the High Court reprimands, suspends or removes.

He wants to appear in the Bombay High Court. By section 14(1) he is entitled as of right to practise in his own High Court and in any other court; but by 14(2) his practice in another High Court is subject to that court's or its Bar Council's rules made under section 15; and by 14(3) and 9(4) the original side at Bombay is governed by rules that court makes for itself.

What beginners get wrong

"The Bar Councils Act 1926 created the Bar Council of India." It did not. It created a Bar Council for every High Court. The Bar Council of India is a creation of the Advocates Act 1961, and the Chamier Committee had expressly thought an all-India Bar Council impracticable.

"After 1926 the Bar Council enrolled advocates." The High Court prepared and maintained the roll under section 8(2) and admitted under section 9, on rules made by the Bar Council with its previous sanction, and its discretion to refuse admission was expressly preserved. The Bar Council could object; the High Court decided.

"1926 abolished the distinction between barristers and vakils." It abolished the separate grade of High Court vakils and pleaders, by putting them all on one roll as advocates under section 8(2). It kept a barrister's date of call for seniority under 8(3), and it kept the original side's separate qualifications under 9(4).

"The Bar Council punished misconduct." Under sections 10 to 13 the Bar Council's Tribunal inquired; the High Court reprimanded, suspended or removed. Those sections were repealed with effect from 1 September 1963, when the Advocates Act's disciplinary committees took over.

Limits and criticism

The Act is the classic half-measure, and it is worth being able to say precisely in what the half consisted.

It gave the profession a corporation and denied it a power. A body with fifteen members, ten of them elected, which can make rules only with the previous sanction of the court, whose objection to an applicant is heard and decided by that court, and whose inquiry into misconduct results in a decision by that court, is a consultative body with a common seal.

It was provincial when the grievance was national. An advocate of one High Court could practise in another only on the conditions that other court's rules imposed, by section 14(2).

And it entrenched the original side. Sections 9(4) and 14(3) name Calcutta and Bombay and preserve their powers in terms, so the one place where the English system was strongest was the one place the Act deliberately did not reach.

What should be said for it is that it settled the principle. After 1926 nobody in India argued about whether the profession should have a statutory body of its own; the argument was only about what that body should be allowed to do, and that argument was won in 1961.

Quick revision

• Indian Bar Committee 1923, the Chamier Committee, reported 1 February 1924: no all-India bar, but a single grade of advocates in each High Court, the abolition of distinctions in precedence and preaudience, no appointments reserved for barristers, and the enrolment of vakils and attorneys on the original sides.
• Indian Bar Councils Act 1926 (38 of 1926), assent 9 September 1926, in force in the Provinces in 1928 and 1929.
• s.1 short title, extent, application; s.2 "advocate" means one on the roll of a High Court under this Act.
• s.3: a Bar Council for every High Court, a body corporate. s.4: fifteen members, the Advocate-General, four nominated by the High Court (not more than two judges), and ten elected; five elected members of ten years' standing; special provision for the original side at Calcutta and Bombay; Chairman and Vice-Chairman.
• s.5 first Bar Councils elected by advocates, vakils and pleaders, three years; s.5A ad hoc Council for Gujarat. s.6 rules on elections and meetings, first made by the High Court, amended by the Council with its previous sanction. s.7 bye-laws on officers and committees.
• s.8: no right to practise unless on the roll, except attorneys; the High Court prepares and maintains the roll, entering existing advocates, vakils and pleaders; seniority, with a barrister's date of call; preaudience by seniority, the Advocate-General first; certificate of enrolment; copies to the Bar Council.
• s.9: the Bar Council makes admission rules with the previous sanction of the High Court, which keeps its discretion to refuse; the Council may object and the High Court hears the objection; no woman disqualified by reason only of her sex; original sides of Calcutta and Bombay preserved.
• ss.10 to 13, now repealed with effect from 1 September 1963: punishment for misconduct, the Tribunal of the Bar Council, procedure and powers. The Tribunal inquired; the High Court punished.
• s.14: right to practise in his own High Court, in any other court, and before tribunals; other High Courts subject to their rules; original sides preserved. s.15: rules on rights and duties, discipline, professional conduct, legal education and examinations, and funds, with the High Court's sanction. s.16: the High Court fixes fees payable as costs. s.17: indemnity for good faith. s.18: publication. s.19: amendments, and inconsistent letters patent deemed repealed. s.20: transition after States' reorganisation.

Test yourself

1. What were the Chamier Committee's terms of reference, and what did it decide about an all-India bar? To examine the proposals for constituting an Indian bar, whether on an all-India or a provincial basis, with reference to the constitution, statutory recognition, functions and authority of a Bar Council or Councils and their position in relation to the High Courts; and the extent to which the distinctions enforced by statute or practice between barristers and vakils might be removed. It did not consider it practicable to organise the bar on an all-India basis or to constitute an all-India Bar Council.

2. Describe the composition of a Bar Council under section 4. Fifteen members: the Advocate-General; four nominated by the High Court, of whom not more than two might be judges of that court; and ten elected by the advocates of the High Court from among themselves. Not less than five of the elected members had to have been entitled as of right to practise in that High Court for at least ten years, and at Calcutta and Bombay a proportion fixed by the High Court had to be original side advocates, some of them barristers of England or Ireland or members of the Faculty of Advocates in Scotland.

3. Who enrolled advocates under the Act, and what was the Bar Council's part? The High Court. It prepared and maintained the roll under section 8(2) and admitted under section 9. The Bar Council made the admission rules, but only with the previous sanction of the High Court, and those rules could not affect the High Court's discretion to refuse admission. The Council received notice of every application and might object, and the High Court heard the objection and decided. The function was advisory.

4. How was misconduct dealt with between 1926 and 1963? Under sections 10 to 13. The High Court might reprimand, suspend or remove an advocate for professional or other misconduct, but on a complaint it was bound, unless it summarily rejected the complaint, to refer the case for inquiry to the Bar Council or to the court of a District Judge, and might refer of its own motion. Sections 11 to 13 constituted the Tribunal of the Bar Council and gave it its procedure and powers. Those sections were repealed with effect from 1 September 1963.

5. Give three things the Act of 1926 did not do. It did not create an all-India bar or an all-India Bar Council; it did not transfer the power of enrolment from the High Court to the Bar Council; and it did not touch the original sides of the Calcutta and Bombay High Courts, the attorneys, or the pleaders, mukhtars and revenue-agents who continued under the Legal Practitioners Act 1879.