The Procedure of Enrolment: Application, Disposal, Certificate and the Roll

Read those two together and the effect is strong: a State Bar Council cannot refuse enrolment on its own. Every proposed refusal goes to the national body, with reasons, and the national body's opinion binds. This is a real protection for an applicant, and it is the answer to a question about what remedy a rejected applicant has.

Section 26(4): where an application has been refused, the State Bar Council shall as soon as may be inform all other State Bar Councils, stating the name, address and qualifications of the person and the grounds of refusal. That is what makes section 27 work.

The proviso to section 26(1) deals with a different problem: where a person has got his name on the roll by misrepresentation as to an essential fact, or by fraud or undue influence, the Bar Council of India may, on a reference or otherwise, remove the name after giving him an opportunity of being heard. Note who does it: the Bar Council of India, not the State Bar Council.

Step three: the roll, sections 17 to 21

Section 17 requires every State Bar Council to prepare and maintain a roll of advocates, in which are entered the names and addresses of all persons who were advocates on the roll of any High Court under the Indian Bar Councils Act 1926 immediately before the appointed day and who have elected to be enrolled with that Council, and all other persons admitted as advocates on its roll after the appointed day.

The roll has two parts: senior advocates and other advocates. That is the statutory home of the distinction chapter [Designation as Senior Advocate: Section 16, and Indira Jaising] deals with.

A person may be enrolled on only one State roll, which is why section 18 exists.

Section 18: transfer. An advocate on the roll of one State Bar Council may apply to the Bar Council of India for transfer to the roll of another State Bar Council. On transfer his name is removed from the first roll and entered on the second, and, importantly, his seniority is preserved: he retains the same seniority as he had on the roll from which he transferred.

Section 19: every State Bar Council shall send copies of its roll to the Bar Council of India, and shall inform it of every alteration.

Section 20 was a special provision for advocates of the Supreme Court practising before the appointed day, who could within the prescribed time express an intention to be entered on a particular State roll.

Section 21: disputes regarding seniority. Where a dispute arises as to the seniority of any person, it shall be referred for decision to the State Bar Council concerned. Where the dispute is between advocates on different rolls, it goes to the Bar Council of India.

Step four: the certificate, section 22

Section 22(1): there shall be issued a certificate of enrolment in the prescribed form by the State Bar Council to every person whose name is entered in the roll maintained by it.

Section 22(2): every person whose name is so entered shall notify any change in the place of his permanent residence to the State Bar Council within ninety days.

The certificate is the document an advocate produces to show he is entitled to practise, and its loss is why the loss of the right to practise is spoken of as the loss of a sanad, which is the older word for it.

The other two sections: 26A and 27

Section 26A: power to remove names from roll. A State Bar Council may remove from the State roll the name of any advocate who is dead or from whom a request has been received to that effect.

That is the whole section, and its narrowness is the point. It is an administrative housekeeping power. It is not a power to remove a name for misconduct: only a disciplinary committee can do that, under section 35(3)(d). An answer that cites section 26A as a disciplinary power is wrong.

Section 27: a refusal binds every other Bar Council. Where a State Bar Council has refused an application, no other State Bar Council shall entertain an application from that person, except with the previous consent in writing of the State Bar Council which refused the application and of the Bar Council of India.

Two consents, both in writing, both prior. This closes off the obvious evasion of applying in the next State, and it is why section 26(4) requires the refusing Council to circulate the refusal.

Section 28 is the rule-making power for this Chapter, under which a State Bar Council makes rules on the time within which and the form in which an application is made, the conditions under section 24(1)(e), and the instalments in which the enrolment fee may be paid.

A worked example

Sneha graduates in Nagpur and intends to practise in Mumbai.

1. Section 25. She applies in the prescribed form to the Bar Council of Maharashtra and Goa, because that is where she proposes to practise.
2. Section 26(1). The Council refers her application to its enrolment committee.
3. Verification throws up a conviction. The committee proposes to refuse. Under section 26(2) it must refer the application to the Bar Council of India for opinion with a statement of grounds, and under section 26(3) must then dispose of it in conformity with that opinion. It cannot simply reject her.
4. The Bar Council of India opines that the conviction is spent, the two-year period under the proviso to section 24A having elapsed, and that she should be enrolled. The committee must enrol her.
5. Section 17. Her name is entered on the roll of the Bar Council of Maharashtra and Goa, in the part for advocates other than senior advocates.
6. Section 22(1). She is issued a certificate of enrolment.
7. Section 19. A copy of the roll and the alteration go to the Bar Council of India.

Two years later she marries and moves to Bengaluru. Under section 18 she applies to the Bar Council of India for transfer to the roll of the Bar Council of Karnataka, and on transfer she keeps the seniority she had in Maharashtra. She also notifies the change in her permanent residence under section 22(2) within ninety days.

Change one fact. Suppose the Bar Council of Maharashtra and Goa had refused her, the Bar Council of India agreeing. Sneha then applies to the Bar Council of Karnataka. Under section 27 that Council cannot even entertain the application unless it has the previous written consent of both the Bar Council of Maharashtra and Goa and the Bar Council of India.

What beginners get wrong

The State Bar Council does not decide the application. Its enrolment committee does, under section 26(1).

A refusal is never a State Bar Council's own decision. Sections 26(2) and (3) send every proposed refusal to the Bar Council of India, whose opinion binds.

Section 26A is not a disciplinary provision. It covers death and a request by the advocate himself. Removal for misconduct is section 35(3)(d).

The certificate is not the enrolment. Entry on the roll is. The certificate under section 22 evidences it.

Quick revision

• Section 25: application in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposes to practise.
• Section 26(1): referred to the enrolment committee, which disposes of it. Proviso: the Bar Council of India may remove a name obtained by misrepresentation, fraud or undue influence, after a hearing.
• Section 26(2) and (3): a proposed refusal must be referred to the Bar Council of India with grounds, and disposed of in conformity with its opinion.
• Section 26(4): a refusal is circulated to all other State Bar Councils.
• Section 27: no other State Bar Council may entertain the application without the previous written consent of the refusing Council and of the Bar Council of India.
• Section 17: the roll, in two parts, senior advocates and other advocates. Section 18: transfer through the Bar Council of India, seniority preserved. Section 19: copies to the Bar Council of India. Section 21: seniority disputes.
• Section 22: certificate of enrolment; change of permanent residence notified within ninety days.
• Section 26A: removal of the name of an advocate who is dead or who requests it. Not a disciplinary power.

Test yourself

1. To which State Bar Council does an applicant apply, and on what test? To the State Bar Council within whose jurisdiction he proposes to practise, under section 25. The test is intention to practise, not residence or the place of study.

2. Can a State Bar Council refuse an application on its own? No. Under section 26(2) a proposed refusal must be referred to the Bar Council of India for opinion, with a statement of the grounds, and under section 26(3) the enrolment committee must dispose of the application in conformity with that opinion.

3. An applicant refused in one State applies in another. What is the position? Section 27 bars the second State Bar Council from entertaining the application except with the previous consent in writing of both the Council that refused and the Bar Council of India. Section 26(4) requires the refusal to be circulated so that the second Council knows of it.

4. What happens to seniority when an advocate transfers under section 18? It is preserved. The advocate retains on the new roll the same seniority he held on the roll from which his name was transferred.

5. Under what circumstances may a State Bar Council remove a name under section 26A? Only where the advocate is dead, or where a request to that effect has been received from him. Removal for misconduct is not within section 26A; it is an order under section 35(3)(d) of a disciplinary committee.

6. Who may remove a name obtained by fraud, and after what procedure? The Bar Council of India, under the proviso to section 26(1), whether on a reference or otherwise, after giving the person concerned an opportunity of being heard.