The Legal Practitioners Act 1879

Pleaders were the practitioners of the mofussil courts, the descendants of the licensed vakils of 1793, and in some Provinces they existed in first, second and even third grades.

Mukhtars were a separate and lower class. They were generally persons who had passed the entrance examination corresponding to the later matriculation and then the mukhtarship examination held by the High Court. Their sanads, that is, their licences, permitted them to practise in all subordinate courts, but High Court rules and orders confined them in practice mainly to acting and pleading in the criminal courts of the mofussil, and they were not permitted to plead in any subordinate civil court, let alone the High Court. Their representatives complained of exactly that to the All-India Bar Committee in 1951.

Revenue-agents were certificated and enrolled under rules made by the Chief Controlling Revenue-authority under section 17, and their practice was confined to the revenue offices named in their certificate and offices subordinate to them.

What each chapter of the Act did

The section notes survive in India Code's print, and they are enough to reconstruct the whole scheme.

Chapter I, Preliminary, ss.1 to 3. Section 1 the short title and commencement; section 2 the repeal of enactments; section 3 the interpretation clause.

Chapter II, Of Advocates, Vakils and Attorneys, ss.4 and 5. Section 4, headed "Advocates and Vakils", is the right-to-practise section for the High Court bar. It empowered an advocate or vakil on the roll of any High Court, or a pleader of the Chief Court of the Punjab, to practise in all courts subordinate to the court on whose roll he was entered and in all revenue offices within the local limits of that court's appellate jurisdiction, subject to the rules in force about the language of the court; to practise in any court in British India other than a High Court on whose roll he was not entered; and, with the permission of the court, in any High Court on whose roll he was not entered, and in any revenue office. There was a proviso: the power did not extend to the original jurisdiction of a High Court in a Presidency Town.

Section 5, "Attorneys of High Court", did the same for attorneys: an attorney on the roll of any High Court might practise in all courts subordinate to it and in all revenue offices within its appellate jurisdiction, and in any court in British India other than a High Court on whose roll he was entered, and in any revenue court.

Those two sections were a wide enlargement of rights. Before them a practitioner's right of audience was essentially local; after them the roll of one High Court carried a right to practise throughout the courts under it and, on permission, further.

Chapter III, Of Pleaders and Mukhtars, ss.6 to 16. Section 6, power to make rules as to the qualifications, admission and certificates of pleaders and mukhtars, and publication of those rules; section 7, certificates to pleaders and mukhtars; section 8, pleaders on enrolment may practise in courts and revenue offices; section 9, mukhtars on enrolment may practise in courts; section 10, no person to practise as a pleader or mukhtar unless qualified; section 11, power to declare the functions of mukhtars; sections 12 and 13, suspension and dismissal of pleaders and mukhtars convicted of a criminal offence, and of those guilty of unprofessional conduct; section 14, the procedure when a charge of unprofessional conduct is brought in a court or revenue office, and suspension pending investigation; section 15, power to call for the record in case of an acquittal under section 14; section 16, power to make rules for mukhtars on the appellate side of a High Court.

Chapter IV, Of Revenue-agents, ss.17 to 24, repeats that scheme for the revenue side: section 17, power to make rules as to their qualifications; section 18, certificates; section 19, enrolment; section 20, no person to act as agent in revenue offices unless qualified; section 21, dismissal on conviction; section 22, suspension and dismissal for unprofessional conduct; section 23, the procedure when the charge is brought in a subordinate office; section 24, power in the Chief Controlling Revenue-authority to call for the record.

Chapter V, Of Certificates, ss.25 and 26: section 25, the fee for certificates; section 26, dismissed practitioners to surrender their certificates.

Chapter VI, Of the Remuneration of Pleaders, Mukhtars and Revenue-agents, ss.27 to 31: section 27, the High Court and the Chief Controlling Revenue-authority to fix fees on civil and revenue proceedings; section 28, agreements with clients; section 29, power to modify or cancel such agreements; section 30, agreements to exclude further claims; section 31, reservation of responsibility for negligence, so that a fee agreement could not contract out of liability.

Chapter VII, Penalties, ss.32 to 36: section 32, penalty on persons illegally practising as pleaders, mukhtars or revenue-agents; section 33, on a suspended or dismissed practitioner failing to deliver up his certificate; section 34, on a suspended or dismissed practitioner practising during suspension or after dismissal; section 35, revision of fines; and section 36, power to frame and publish lists of touts.

A tout is a person who procures work for a legal practitioner in return for payment, by soliciting clients at the court gate or the police station. Section 36 let a court frame and publish a list of them, and it is one of the three sections of this Act that survived into the twenty-first century.

Chapter VIII, Miscellaneous, ss.37 to 42: section 37, the State Government to appoint examiners; section 38, exemption of High Court practitioners from certain parts of the Act; section 39, suspension or dismissal of a person holding both a mukhtar's and a revenue-agent's certificate; section 40, pleaders and others not to be suspended or dismissed without being heard; section 41, power for certain High Courts to enrol advocates, that is, for a High Court not established by Royal Charter to make rules, with the previous sanction of the Provincial Government, as to the qualifications for and admission of advocates; and section 42, the repeal of Chapter VI of Bombay Regulation II of 1827 and of Acts 1 of 1846 and 20 of 1853.

The First Schedule listed the enactments repealed; the Second Schedule fixed the value of stamps for certificates.

Who disciplined whom

This is a favourite examination point and the Act does not answer it alone.

All the grades of High Court practitioner except the attorneys, and all the grades of subordinate-court practitioner except the revenue-agents, were subject to the disciplinary jurisdiction of the High Courts under this Act, by sections 12 to 15 and the corresponding provisions.

The attorneys of the High Courts, being officers of the court, were dealt with in matters of discipline by the High Courts under the letters patent, not under this Act. Section 38 exempted High Court practitioners from certain parts of the Act for the same reason.

The revenue-agents were liable to be suspended or removed by the Chief Controlling Revenue-authority under sections 21 to 24.

So there were three disciplinary regimes for one profession, and in none of them did the practitioners themselves have any part. That is the state of affairs the Indian Bar Committee of 1923 was appointed to consider, and the reason the demand of the Indian bar was for a Bar Council.

The repeals, in order, and why they matter

Students are routinely taught that the Advocates Act 1961 repealed the Legal Practitioners Act 1879. That is wrong in a way that a careful answer can turn to advantage: the repeal took ninety-eight years from the first section to the last, and the dates tell you what each stage of reform actually achieved.

Read down that table and it is a history of the profession in six rows.

1926: fees stopped being a matter for this Act and became a matter for a separate one.

1961 and 1963: the Advocates Act came into force in stages, and the parts of the old Act it displaced first were the parts that governed the lower grades, because the new Act's central idea was to abolish those grades. Discipline followed two years later, when the Bar Councils' disciplinary committees were in place.

2011: the sections about the right to practise, the penalties for practising unqualified and the enrolment of advocates by unchartered High Courts survived for fifty years after the Advocates Act was passed, because the classes of practitioner they governed did not disappear overnight: existing pleaders, mukhtars and revenue-agents went on practising under them.

2024: the power to publish lists of touts outlived everything else in the Act by thirteen years, and was repealed only when Parliament amended the Advocates Act to deal with touts itself.

A worked example

Take four practitioners in the same district town in 1900 and ask what each may do.

An advocate on the roll of the Calcutta High Court. By section 4 he may practise in all courts subordinate to that High Court and in the revenue offices within its appellate jurisdiction, subject to the rules about the language of the court; in any court in British India other than a High Court on whose roll he is not entered; and, with permission, in another High Court. By the proviso he may not practise on the original side of a High Court in a Presidency Town under this section.

An attorney on the roll of that High Court. By section 5 he may practise in all courts subordinate to it and in the revenue offices within its appellate jurisdiction, and in any court in British India other than a High Court on whose roll he is entered.

A pleader. He practises on his certificate under sections 7 and 8, in the courts and revenue offices his enrolment covers, and he may not practise at all unless qualified, by section 10.

A mukhtar. His sanad under sections 7 and 9 covers all subordinate courts, but the High Court's rules and orders confine him in practice to the criminal courts of the mofussil; he may not plead in a subordinate civil court.

Now suppose each is accused of taking money for a case he never filed.

The advocate and the attorney. The High Court deals with the advocate under the Act; the attorney, being an officer of the court, is dealt with by the High Court under the letters patent, and section 38 exempts High Court practitioners from parts of the Act.

The pleader and the mukhtar. Under sections 13 and 14 the charge of unprofessional conduct is investigated on the prescribed procedure, with power to suspend pending investigation, and by section 40 neither may be suspended or dismissed without being heard. If dismissed, he must surrender his certificate under section 26, and if he practises after dismissal he is punishable under section 34.

And the man who brought them the client for a commission? His name may be put on a published list of touts under section 36.

What beginners get wrong

"The Advocates Act 1961 repealed the Legal Practitioners Act 1879." It did, but not in 1961. Four sections went on 1 December 1961, ten on 1 September 1963, and twenty-three on 15 June 2011; four had already gone in 1926 and two in 1938; and ss.1, 3 and 36 were repealed by the Advocates (Amendment) Act 2023 with effect from 30 September 2024.

"The Act created the classes of practitioner." It consolidated them. Advocates and attorneys came from the charters and letters patent, vakils and pleaders from the Regulations of 1793 onwards, and mukhtars and revenue-agents from practice and rules. Section 42 repealed the Acts of 1846 and 1853 and gathered the law into one place.

"It applied to the whole of India." It applied to certain Provinces and empowered every other Provincial Government to extend such portions as it thought fit, and it was then amended Province by Province. That patchwork is one of the reasons an all-India bar took until 1961.

"It gave the profession self-government." It gave the courts power over the profession: High Court rules, High Court certificates, High Court suspension and dismissal, and the Chief Controlling Revenue-authority for revenue-agents. The practitioners had no statutory voice at all until 1926.

Limits and criticism

The Act is a competent piece of consolidation and it entrenched what it consolidated.

It made the hierarchy of grades statutory. Six descriptions of practitioner, with different qualifications, different rights of audience, different disciplinary authorities and different social standing, all in one Act. The Chamier Committee's hope in 1924 was that these grades would disappear; the All-India Bar Committee found in 1951 that they had not.

It left the Presidency towns alone. The proviso to section 4 kept advocates and vakils off the original side of a High Court in a Presidency Town, and section 38 exempted High Court practitioners from parts of the Act. The original sides at Calcutta and Bombay went on under their letters patent and their own rules, with attorneys who were not touched by the Act at all.

And it gave the profession no say in its own affairs. Admission, certificates, fees, discipline and even the examinations were in the hands of courts and governments. That is not a small criticism of a statute governing a profession, and the whole of the next eighty years is the attempt to answer it.

What should be said for it is that it made one law where there had been Regulations and scattered Acts, that it protected the practitioner as well as the client, by section 40's rule that nobody could be suspended or dismissed without being heard and by section 31's refusal to let a fee agreement exclude liability for negligence, and that it lasted, in one form or another, until 2024.

Quick revision

• Act 18 of 1879, assented 29 October 1879, "to consolidate and amend the law relating to Legal Practitioners". Applied to certain Provinces, with power in others to extend it.
• Ch. I, ss.1 to 3: short title, repeals, interpretation. Ch. II, ss.4 and 5: advocates, vakils and attorneys, and their right to practise; s.4's proviso excludes the original jurisdiction of a High Court in a Presidency Town.
• Ch. III, ss.6 to 16: pleaders and mukhtars. Rules, certificates, enrolment, the bar on unqualified practice, and suspension and dismissal for conviction or unprofessional conduct, with procedure.
• Ch. IV, ss.17 to 24: revenue-agents, on the same pattern, under the Chief Controlling Revenue-authority.
• Ch. V, ss.25 and 26: certificate fees; surrender of certificates on dismissal. Ch. VI, ss.27 to 31: fees fixed by the High Court and the revenue authority, agreements with clients, and no contracting out of negligence.
• Ch. VII, ss.32 to 36: penalties for illegal practice and for practising while suspended, and lists of touts. Ch. VIII, ss.37 to 42: examiners, exemptions, no suspension without a hearing, s.41 enrolment of advocates by unchartered High Courts, and s.42 repealing the Acts of 1846 and 1853.
• Discipline: High Court under the Act for all grades except attorneys (letters patent) and revenue-agents (Chief Controlling Revenue-authority). The practitioners had no voice.
• Repeals: 1926 fees; 1938 spent sections; 1-12-1961; 1-9-1963; 15-6-2011; and ss.1, 3 and 36 on 30-9-2024.

Test yourself

1. Name the six grades of legal practitioner under the Act and say where each practised. Advocates, vakils and attorneys of the High Courts, under Chapter II; pleaders and mukhtars in the subordinate courts, under Chapter III; and revenue-agents in the revenue offices, under Chapter IV. Mukhtars, though their sanads covered all subordinate courts, were confined by High Court rules mainly to the criminal courts of the mofussil; revenue-agents were confined to the offices named in their certificates.

2. What did sections 4 and 5 achieve, and what was the limit on section 4? They enlarged the right to practise: an advocate or vakil on the roll of any High Court, or a pleader of the Chief Court of the Punjab, might practise in all courts subordinate to that court and in the revenue offices within its appellate jurisdiction, in any court in British India other than a High Court on whose roll he was not entered, and with permission in such a High Court; and section 5 did the same for attorneys. The limit was the proviso to section 4: the power did not extend to the original jurisdiction of a High Court in a Presidency Town.

3. Who could discipline a legal practitioner under this scheme? The High Court, under the Act, for advocates, vakils, pleaders and mukhtars; the High Court under the letters patent, not under the Act, for attorneys, who were officers of the court; and the Chief Controlling Revenue-authority for revenue-agents. The practitioners themselves had no part in any of it.

4. Is it accurate to say the Advocates Act 1961 repealed this Act? Explain. Only loosely. Sections 28 to 31 had gone in 1926 and sections 2 and 42 in 1938. The Advocates Act repealed sections 6, 7, 18 and 37 with effect from 1 December 1961, the disciplinary sections 12 to 15, 21 to 24, 39 and 40 from 1 September 1963, and the remaining twenty-three sections only from 15 June 2011. Sections 1, 3 and 36 survived until the Advocates (Amendment) Act 2023 repealed them with effect from 30 September 2024.

5. What is a tout, and which section dealt with them? A person who procures work for a legal practitioner for reward, by soliciting clients about the courts. Section 36 gave power to frame and publish lists of touts, and it was one of the last three sections of the Act to be repealed, in 2024.