The Profession under the Indian High Courts Act 1861

That is how the profession got into the letters patent rather than into the Act: the Act delegated, and the letters patent provided.

Clause 9 of the Letters Patent of 1865 is the provision to learn.

"And we do hereby authorise and empower the said High Court of Judicature at Fort William in Bengal to approve, admit, and enrol such and so many Advocates, Vakeels, and Attornies as to the said High Court shall seem meet; and such Advocates, Vakeels, and Attornies shall be and are hereby authorised to appear for the suitors of the said High Court, and to plead or to act, or to plead and act, for the said suitors, according as the said High Court may by its rules and directions determine, and subject to such rules and directions."

Read it against clause 11 of the Charter of 1774 and four differences stand out.

Three descriptions, not two. Advocates, vakeels and attorneys. The vakeel, who had been the practitioner of the Company's courts and could not set foot in the King's, is now named in the letters patent of the King's court's successor.

Plead, or act, or plead and act. The 1774 charter said "appear and plead, and act". The 1865 clause separates the functions and allows a practitioner to be authorised to do one, the other, or both. That is what made it possible to keep the dual system on the original side of Calcutta and Bombay while running a single fused profession on the appellate side.

"According as the said High Court may by its rules and directions determine." Everything is remitted to High Court rules: which class may plead, which may act, on which side, and on what conditions. The rules, not the letters patent, are where the real law of the profession lived from 1865 to 1961.

And no exclusion clause. Clause 11 of 1774 had said that no other person whatsoever might appear. Clause 9 of 1865 does not repeat it; the exclusivity is left to the High Court's rules and, from 1879, to the statute.

What actually changed for an Indian practitioner

Here is the honest measure of 1861, and it is a mixed one.

The bar of the High Court was opened to Indians in principle. A vakeel could be enrolled in the High Court, by name, under clause 9. That was impossible in the Supreme Courts.

The bench had already been opened by the Act itself. Section 2 made pleaders of a Sadar Court or a High Court of ten years' standing eligible to be judges, alongside barristers and covenanted civil servants. A profession whose members may be judges is a profession in a way that one whose members may not is not.

But the old division survived inside the new court. The original side of the High Courts at Calcutta and Bombay kept the English practice and the dual system: attorneys who acted and counsel who pleaded, with separate rules of admission. On the appellate side, advocates and vakeels appeared and there was no attorney. The distinction between advocates and vakils, in precedence, in preaudience and in the right to practise on the original side, lasted into the twentieth century, and abolishing it was the first term of reference of the Indian Bar Committee of 1923.

And the law applied on each side was still different. Clause 19 of the Letters Patent of 1865, read with clause 18 of the Letters Patent of 1862, required the High Court, in the exercise of its ordinary original civil jurisdiction, to apply the same law or equity as the Supreme Court would have applied, which meant English common law and rules of equity as modified by Indian legislation. Clause 21 required it, in its appellate jurisdiction, to apply the law or equity and rule of good conscience which the court of first instance ought to have applied. Clause 37 empowered the High Court to make rules for proceedings in civil cases, being guided as far as possible by the Code of Civil Procedure 1859.

So one court, two sides, two bodies of law, and a profession divided along the same seam. That is the answer to "did 1861 unify the legal profession?": it created the court in which unification became possible, and it did not itself unify anything.

Section 19, and why the definition matters

Section 19 provides that the word "barrister" in the Act shall be deemed to include barristers of England or Ireland or members of the Faculty of Advocates in Scotland, and that "Governor-General and Governor" comprehends the officer administering the government.

It is an interpretation clause, and it is on this syllabus for a reason. The Act uses "barrister" twice in a way that matters: barristers of not less than five years' standing are the first class of person eligible to be a High Court judge under section 2, and not less than one third of the judges, including the Chief Justice, must be barristers. Section 19 is what tells you that a Scottish advocate or an Irish barrister counts for both purposes.

It is also worth noticing what section 19 does not do. It does not define "advocate", "vakeel" or "attorney", and those words are not used in the Act at all: they appear in the letters patent. The Act defines the qualification for the bench and leaves the qualification for the bar to the Crown's grant and the court's rules.

The High Courts that were not created by charter

Not every High Court was established by letters patent. Where a High Court was not established by Royal Charter, section 41 of the Legal Practitioners Act 1879 empowered that court, with the previous sanction of the Provincial Government, to make rules as to the qualifications for, and the admission of, proper persons to be advocates of the Court.

That is worth a line in an answer because it shows the pattern completing itself. Chartered High Courts admitted under clause 9 of their letters patent; unchartered ones admitted under section 41 of the Act of 1879; and in both cases the operative law was rules made by the court itself. The next chapter is about the Act those rules sat inside.

A worked example

Calcutta, 1870. Ramnath's grandson is a vakil of ten years' practice in the mofussil courts of Bengal.

Can he be enrolled in the High Court? Yes. Clause 9 of the Letters Patent authorises the High Court to approve, admit and enrol advocates, vakeels and attorneys.

Can he plead on the appellate side? Yes, if the High Court's rules and directions so determine, because clause 9 makes the right to plead or act, or both, subject to those rules.

Can he plead on the original side? That depends on the High Court's rules, and at Calcutta and Bombay the original side kept the English practice, with counsel instructed by attorneys. This is the restriction the Chamier Committee addressed in 1923 and the All-India Bar Committee in 1951.

Can he be a High Court judge? Yes. Section 2 of the Act makes a pleader of a Sadar Court or High Court of ten years' standing eligible, and the Act does not require him to be a barrister; only that a third of the bench must be.

What beginners get wrong

"The Act of 1861 provided for advocates, vakils and attorneys." The letters patent did, in clause 9. The Act provided, in section 9, that the High Court should have such powers as Her Majesty granted by letters patent, and left it there.

"1861 abolished the distinction between barristers and vakils." It did not. The distinction in precedence, in preaudience and in access to the original side survived, and its removal was one of the two terms of reference of the Indian Bar Committee in 1923.

"Section 19 defines who may practise." It defines "barrister" for the purposes of the Act, which matters for the qualification of judges under section 2, not for the bar.

"Every High Court's bar was governed by letters patent." Only the chartered ones. For a High Court not established by Royal Charter, section 41 of the Legal Practitioners Act 1879 gave the power to make rules about admission, with the previous sanction of the Provincial Government.

Limits and criticism

The reform was real and it was incomplete, and it is worth being precise about why.

Unification was left to rules. Clause 9 named three classes and told the High Court to sort out by its own rules who might plead, who might act, and where. A court that has inherited two traditions and is told to make rules will tend to make rules that preserve both, and that is what happened.

The original side kept the old world alive. English law, English procedure, attorneys and counsel, and admission on conditions that few mofussil vakils could satisfy. The Presidency towns therefore kept a bar that looked like the bar of 1774 for another century.

And there was still no professional body. Admission, discipline and precedence were all matters for the High Court. The practitioners had no voice in any of it. That is the gap the Indian Bar Committee of 1923 was appointed to consider, and the Indian Bar Councils Act 1926 was the first, partial, answer.

Quick revision

• s.9 of the Act: the High Court has such civil, criminal, admiralty and vice-admiralty, testamentary, intestate and matrimonial jurisdiction, original and appellate, and such powers, as Her Majesty grants by letters patent, plus every power of the abolished courts.
• Clause 9 of the Letters Patent of 1865: the High Court may approve, admit and enrol such and so many Advocates, Vakeels and Attornies as shall seem meet, who may appear for suitors and plead, or act, or plead and act, according as the High Court may by its rules and directions determine.
• Three classes, not two; the vakeel is admitted to the successor of the King's court for the first time; and everything else is left to High Court rules.
• s.19 of the Act: "barrister" includes barristers of England or Ireland and members of the Faculty of Advocates in Scotland. It governs the qualification of judges under s.2, where a third of the bench must be barristers and a pleader of ten years' standing is also eligible.
• Clause 19 of the 1865 letters patent with clause 18 of 1862: English law and equity on the ordinary original civil side; clause 21: on appeal, the law the court below ought to have applied; clause 37: rules of civil procedure guided by the Code of 1859.
• s.41 of the Legal Practitioners Act 1879: a High Court not established by Royal Charter may make rules for the qualification and admission of advocates, with the previous sanction of the Provincial Government.
• The advocate and vakil distinction survived, and so did the dual system on the original side at Calcutta and Bombay.

Test yourself

1. Where is the power to admit practitioners to a High Court found, and why is it not in the Act? In clause 9 of the Letters Patent. Section 9 of the Indian High Courts Act 1861 gave each High Court such jurisdiction, powers and authority as Her Majesty might grant by letters patent, together with all the powers of the courts abolished by the Act, so the detail of the court's constitution and practice, including the admission of practitioners, was left to the Crown's grant.

2. Quote the effect of clause 9 of the Letters Patent of 1865. That the High Court is authorised and empowered to approve, admit and enrol such and so many advocates, vakeels and attorneys as shall seem meet to it; and that they are authorised to appear for the suitors of the Court and to plead, or to act, or to plead and act, for those suitors according as the High Court may by its rules and directions determine, and subject to those rules and directions.

3. What does section 19 define, and why does it matter? It provides that "barrister" in the Act includes barristers of England or Ireland and members of the Faculty of Advocates in Scotland. It matters because section 2 makes barristers of not less than five years' standing eligible to be judges of a High Court and requires not less than one third of the judges, including the Chief Justice, to be barristers, so the definition decides who counts.

4. Did the Act of 1861 unify the legal profession? No. It created one court in place of two and made it possible for a vakeel to be enrolled where the King's court's successor sat, and the Act made pleaders of ten years' standing eligible for the bench. But the distinction between advocates and vakils in precedence, preaudience and access to the original side survived, the dual system of counsel and attorney continued on the original sides at Calcutta and Bombay, and everything was left to rules made by each High Court.

5. How were practitioners admitted to a High Court that was not established by Royal Charter? Under section 41 of the Legal Practitioners Act 1879, which empowered such a High Court, with the previous sanction of the Provincial Government, to make rules as to the qualifications for and the admission of proper persons to be advocates of the Court.