The Legal Profession in Pre-British India

An advocate, in the sense the rest of this book uses, appears for you because a court has admitted him to appear. His authority comes from an enrolment. He may be struck off by the body that enrolled him, owes duties to the court that override his duties to you, and is expected to know the law rather than your affairs.

A vakil of the Mughal period was the first. A vakil enrolled under Bengal Regulation VII of 1793, whom you will meet in chapter 730, was on the way to being the second, and the difference is the invention of a profession.

What this chapter does not say

Four things a student may have read elsewhere are not supported by anything read for this book, and are therefore not asserted here.

That there was a regulated bar in ancient India, with rules about who might speak for another. The sources read for this book do not describe one, and this chapter does not invent one.

That the panchayat was a court with practitioners. The panchayat, the assembly of a village or a caste, appears in this book only where the Charter of 1753 left Indian parties to settle their disputes "among themselves", and no source read here describes anyone practising before it as a professional.

That the qazi's court had a recognised bar. The qazi is not described in the sources read here in any detail beyond the fact that Mughal courts existed and that vakils could be used in them.

That vakils had a qualification or an enrolment before 1793. The source says the opposite in substance: it says the first regular legal profession for the Company's courts was created by Bengal Regulation VII of 1793, which is a statement that there was not one before.

If an examiner wants more, the honest thing is to say what is known and say that it is what is known. A student who writes a page about the ancient Indian bar and cannot name a source for it is writing a page that a good examiner will read as invention, which is what it usually is.

Why the answer is neither yes nor no

Ask the question the topic really asks: was there a legal profession in pre-British India?

No, if by profession you mean what India has now: a single class of persons admitted on a stated qualification, entered on a roll, entitled as of right to appear in courts, and removable for misconduct by a body of their own. Nothing of that kind is described in the sources, and every element of it can be dated to a statute in the chapters that follow: enrolment to 1793, a common law for all grades to 1879, self-government to 1926, and one national class to 1961.

Yes, if the question is only whether people appeared in court for other people and were paid for it. They did, and they were called vakils, and the practice was old enough and general enough that the Company's own courts absorbed it without inventing anything.

The honest answer to an examination question is both halves in that order, with the reason for each, and then the sentence that matters: the profession this paper traces did not grow out of the vakil of the Mughal courts so much as it grew alongside him, because for the first century of British justice in India there were two professions, one in the King's courts and one in the Company's, and the vakil belonged to the second.

A worked example

A dispute over a field in a Mughal district, some time before the Company's courts reached it. Follow it as far as the sources allow, and stop where they stop.

Which court? One established by the Emperor or by a ruling chief owing him allegiance; or, if the parties are the tenants of a large landholder, the court of that zamindar, which exercised both civil and criminal jurisdiction.

May a party bring somebody to speak for him? Yes. The sources record a class of persons called vakils whose services were available to litigants in those courts.

Whose man is that vakil? His principal's. He acts as an agent rather than as a lawyer; his authority comes from his appointment, not from any admission by the court, and he may be dismissed by the man who appointed him.

Must he be qualified? Nothing read for this book describes any qualification, any enrolment, any examination or any scale of fees for him.

If he cheats his client, who disciplines him? Nothing read for this book answers that question, and this chapter does not invent an answer.

Now take the same field a generation later, in a Company's zilla court after 1793, and the four questions have answers. The court is the Company's. The man who appears is a pleader enrolled by the Sudder Dewanny Adawlat. He is enrolled under Bengal Regulation VII of 1793, which at first admits only Hindus and Muslims. His fee is fixed by a statutory scale on the value of the property. And the court that enrolled him can strike him off.

That contrast is the answer to this chapter's question, and the next chapters are the two halves of how it came about.

What beginners get wrong

"There was no lawyer in India before the British." Too strong, and it contradicts the source. There were vakils, and litigants used them. What there was not was a profession in the modern sense.

"The vakil was the Indian equivalent of the advocate." Not in this period. He was an agent for his principal. The vakil became a legal practitioner in the modern sense when the Company enrolled and licensed him, and by then he had a qualification, a roll and a scale of fees.

"The British created the Indian legal profession from nothing." Also too strong. The class of vakils already existed and moved into the Company's courts. What the British created was the apparatus of a profession, and, for the first century, an English-only bar in the King's courts alongside it.

Quick revision

• Before British power, justice in northern India was administered by courts of the Mughal Emperors and of ruling chiefs, and by the courts of petty chieftains and large zamindars, civil and criminal.
• A class of persons called vakils existed, available to litigants in those courts, who acted more as agents for principals than as lawyers.
• The same class later appeared in the Company's courts.
• No qualification, enrolment or discipline is described for them; the first regular legal profession for the Company's courts dates from Bengal Regulation VII of 1793.
• The vakil was an agent, deriving authority from his principal; an advocate derives it from admission by a court, and owes duties to the court.

Test yourself

1. Who administered justice in northern India immediately before the rise of British power? Courts established by the Mughal Emperors and by ruling chiefs owing real or pretended allegiance to them, and, apart from the ruling chiefs, the courts of petty chieftains and large zamindars, which exercised both civil and criminal jurisdiction.

2. What was a vakil in this period? A member of a class of persons whose services were available to litigants in the indigenous courts, and who acted more as an agent for his principal than as a lawyer. He had no stated qualification, no enrolment and no professional discipline.

3. State the difference between an agent and an advocate, and say why it matters to this paper. An agent's authority comes from his principal, who appoints and dismisses him; an advocate's comes from admission by a court, which may also remove him, and he owes duties to the court that override his instructions. It matters because the rest of Module IV is the story of how the first turned into the second, by enrolment in 1793, by one law for all grades in 1879, by self-government in 1926 and by a single national class in 1961.

4. Was there a legal profession in pre-British India? Not in the modern sense: no admission on a stated qualification, no roll, no right of audience as such, and no disciplinary body. But people did appear in court for others and were paid for it, and that class of vakils passed into the Company's courts and became the profession of the mofussil.