Touts, and the Monopoly of the Bar: Section 45A

Who a tout is: section 45A(7)(d)

The definition has two limbs and a person is a tout if he falls in either.

Limb (i), the remuneration limb. A person who procures, in consideration of any remuneration moving from any legal practitioner, the employment of the legal practitioner in any legal business; or who proposes to any legal practitioner, or to any person interested in any legal business, to procure, in consideration of remuneration moving from either of them, the employment of the legal practitioner in such business.

Note that the proposal is enough. A person who offers to bring clients for a cut is a tout even if no client ever arrives.

Limb (ii), the frequenting limb. A person who, for the purposes of such procurement, frequents the precincts of Civil or Criminal Courts or of revenue-offices, or railway stations, landing stages, lodging places or other places of public resort.

The list is worth remembering because it tells you what the section is actually about: the person waiting outside the court, at the station, or at the lodging house where litigants from the districts stay.

Section 45A(7) also defines "Judge" as the presiding judicial officer in every Civil and Criminal Court, whatever his title; "subordinate Court" as all courts subordinate to the High Court, including Courts of Small Causes; and "revenue-office" as including all courts other than Civil Courts trying suits relating to landholders and their tenants or agents.

Who may make the list: section 45A(1)

Every High Court, District Judge, Sessions Judge, District Magistrate, and every Revenue-officer not being below the rank of a Collector of a district, each as regards their or his own Court and the Courts subordinate to it, may frame and publish lists of persons proved to their satisfaction, by evidence of general repute or otherwise, habitually to act as touts, and may alter and amend such lists from time to time.

Two words carry weight. "Habitually": a single instance is not enough. "Evidence of general repute or otherwise": the section allows reputation to be evidence, which is unusual and is why the safeguards in sub-sections (2) and (3) matter.

The Explanation makes it concrete: a resolution declaring a person to be or not to be a tout, passed by a majority of the members present at a meeting specially convened for the purpose of an association of persons entitled to practise as legal practitioners in that court or revenue-office, shall be evidence of the general repute of that person.

So a Bar Association can, by a resolution at a specially convened meeting, supply evidence of general repute. Note the safeguards inside the Explanation: it must be a specially convened meeting, a majority of those present, and the resolution can go either way, declaring a person to be or not to be a tout.

The safeguards

Section 45A(2): "No person's name shall be included in any such list until he shall have had an opportunity of showing cause against such inclusion."

That is a plain requirement of natural justice on the face of the section, and it is the first thing to say about any question on this topic.

Section 45A(3) provides the machinery for an inquiry. The authority may send to a subordinate Court the names of persons alleged or suspected to be touts and order it to hold an inquiry. The subordinate Court holds the inquiry, gives each person an opportunity of showing cause as provided in sub-section (2), and reports the name of each person proved to its satisfaction to be a tout. The authority may then include the name in its list.

The proviso to sub-section (3) adds a second hearing: the authority shall hear any such person who, before his name has been included, appears before it and desires to be heard.

So a person may be heard twice: once before the subordinate Court in the inquiry, and again before the listing authority if he asks.

The consequences

Section 45A(4): a copy of every such list shall be kept hung up in every Court to which it relates. Publicity is part of the sanction.

Section 45A(5): the Court or Judge may, by general or special order, exclude from the precincts of the Court any person whose name is included in any such list.

Section 45A(6): any person who acts as a tout whilst his name is included in any such list shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Note carefully that the offence in sub-section (6) is acting as a tout while listed. Being listed is not itself an offence; it is a status that carries exclusion under sub-section (5) and that turns subsequent touting into a punishable act.

Distinctions

A worked example

Outside a District Court, Ramesh meets litigants arriving from the villages, tells them which advocate to engage, and takes a share of the fee from the advocate.

Is he a tout? Yes, on both limbs of section 45A(7)(d). He procures the employment of legal practitioners in consideration of remuneration moving from them, and he frequents the precincts of a court for that purpose.

Can he be dealt with under section 45? No. He does not practise. Section 45 catches the unqualified person who appears; Ramesh does not appear.

How is he listed?

1. The District Judge may frame and publish a list under section 45A(1), being satisfied by evidence of general repute or otherwise that Ramesh habitually acts as a tout.
2. The local Bar Association passes a resolution at a specially convened meeting, by a majority of those present, declaring him a tout. By the Explanation that resolution is evidence of his general repute. It is evidence and not proof, and it does not dispense with the hearing.
3. Under section 45A(2) Ramesh must be given an opportunity of showing cause before his name goes on the list.
4. The District Judge may instead order a subordinate Court to hold an inquiry under section 45A(3), which hears Ramesh and reports.
5. Under the proviso to sub-section (3), if Ramesh appears before the District Judge before inclusion and desires to be heard, the District Judge shall hear him.

After listing. The list is hung up in every court to which it relates, under sub-section (4). The Court may exclude him from the precincts by general or special order under sub-section (5). If he acts as a tout again while listed, he is punishable under sub-section (6) with imprisonment up to three months or a fine up to five hundred rupees or both.

And the advocate? The advocate who paid Ramesh is in a worse position than Ramesh. He has breached rule 36, which forbids soliciting work directly or indirectly, including by touts, and he is liable to a proceeding for professional misconduct under section 35, in which the punishments run up to removal from the roll.

What beginners get wrong

Section 45A does not punish being a tout. It punishes acting as a tout while listed. The list, and the hearing before it, come first.

A Bar Association resolution does not make anyone a tout. It is evidence of general repute under the Explanation, and the opportunity to show cause under sub-section (2) still applies.

The fine is five hundred rupees. It is a small figure and it is the figure the section prints.

The Legal Practitioners Act 1879 is gone. Its last three sections were repealed by section 50(6) on the day section 45A came into force.

The advocate is not outside this. Rule 36 and section 35 catch him, and the punishment there is far heavier than sub-section (6).

Quick revision

• Section 45A was inserted by the Advocates (Amendment) Act 2023, Act 33 of 2023, section 2, with effect from 30 September 2024. On the same day section 50(6) repealed sections 1, 3 and 36 of the Legal Practitioners Act 1879, ending that Act.
• Tout, section 45A(7)(d): (i) procures, or proposes to procure, the employment of a legal practitioner in consideration of remuneration from either side; (ii) frequents the precincts of civil or criminal courts or revenue-offices, railway stations, landing stages, lodging places or other places of public resort for that purpose.
• Who may list, section 45A(1): every High Court, District Judge, Sessions Judge, District Magistrate, and every Revenue-officer not below the rank of a Collector, for their own and subordinate courts, on proof that the person habitually acts as a tout, by evidence of general repute or otherwise.
• Explanation: a resolution of an association of legal practitioners, at a specially convened meeting, by a majority of those present, declaring a person to be or not to be a tout, is evidence of general repute.
• Safeguards: section 45A(2), an opportunity of showing cause before inclusion; section 45A(3), an inquiry by a subordinate Court which hears the person and reports; proviso, the authority shall hear anyone who appears before inclusion and desires to be heard.
• Consequences: (4) the list is hung up in every court concerned; (5) the Court may exclude a listed person from the precincts; (6) acting as a tout while listed is punishable with imprisonment up to three months, fine up to five hundred rupees, or both.
• Section 45: practising without entitlement, imprisonment up to six months. Different offence, different person.
• The advocate who uses a tout breaches rule 36 and is liable under section 35.

Test yourself

1. Define a tout under section 45A. A person who procures, in consideration of remuneration moving from a legal practitioner, the employment of that practitioner in any legal business, or who proposes to a practitioner or to a person interested in legal business to procure such employment for remuneration from either of them; or who, for the purpose of such procurement, frequents the precincts of civil or criminal courts or revenue-offices, or railway stations, landing stages, lodging places or other places of public resort.

2. Who may frame and publish a list of touts? Every High Court, District Judge, Sessions Judge, District Magistrate, and every Revenue-officer not below the rank of a Collector of a district, each as regards his own Court and the courts subordinate to it.

3. What evidential value does a Bar Association resolution have? By the Explanation to section 45A(1), a resolution declaring a person to be or not to be a tout, passed by a majority of the members present at a specially convened meeting of an association of persons entitled to practise in that court or revenue-office, is evidence of the general repute of that person. It is evidence, not proof, and the opportunity to show cause still applies.

4. What must happen before a name is put on the list? The person must have had an opportunity of showing cause against the inclusion, under section 45A(2). Where an inquiry is ordered under section 45A(3), the subordinate Court gives that opportunity and reports; and by the proviso the listing authority must hear any person who appears before it before inclusion and desires to be heard.

5. What is punishable under section 45A(6), and with what? Acting as a tout while one's name is included in a list. Imprisonment which may extend to three months, or fine which may extend to five hundred rupees, or both.

6. What happened to the Legal Practitioners Act 1879? Most of it was repealed in stages by section 50 of the Advocates Act, but sections 1, 3 and 36 survived. Section 3 of the Advocates (Amendment) Act 2023 inserted section 50(6), by which those three sections stood repealed on the date section 45A came into force, that is 30 September 2024. The Act is now wholly repealed.

7. Distinguish section 45 from section 45A. Section 45 punishes a person who practises in a court or before an authority when not entitled to do so, with imprisonment up to six months. Section 45A deals with a person who does not practise but who procures work for legal practitioners for remuneration, and punishes him only if he acts as a tout while his name is on a published list, with imprisonment up to three months or a fine up to five hundred rupees or both.