What are the Powers of the Bar Council to make rules?

Published on: September 2, 2021, at 13:52 IST

The need of the hour is to build for the future and create access across this honorable profession.
Vision Statement of Bar Council 2011-2013

Introduction

Lately, a new rule was passed by the Bar Council of India related to the post-graduate examination i.e., LLM (Latin Legum Magister). The council has abolished the one-year LLM course. The Bar Council of India (BCI) stated that a two-year postgraduate degree in law is recognizable and a one-year LLM is not adequate.

The Bar Council of India was established under the Advocates Act in the year 1961. It is a statutory body enacted by the Parliament. The council was established as the need was felt to regulate the legal practice and legal education in India. The council prescribes standards of professional conduct and etiquette for the advocates.

The Indian Bar Council consists of lawyers who are elected to represent the bar. It is situated in Delhi. The current Chairman and Vice-chairman are Manan Kumar Mishra and S Prabhakaran respectively.

The Bar Council performs various functions to safeguard the interests of advocates. It promotes and supports law reforms, promotes legal education, helps the legal institutions, provides legal aid to the poor, etc.

Thus, this article deals with the history and powers of the Bar Council of India.

What is the history of the Bar Council of India?

The history of the Bar Council dates back many years ago when Indian Bar Council Act was enacted in the year 1926. It was for the first time the Bar Council was established and provided to each High Courts.

Further, post-independence an All-India Bar Committee was established in 1951 under the chairmanship of Justice S.R Das of the Supreme Court. It recommended the creation of a unified National Bar. The committee also stated that the establishment of an All-India Bar Council is very necessary. The committee in its report also stated the establishment of the State Bar Council for each state.

In the year 1961, the Advocates Act was enacted to provide for the constitution of Bar Councils and an All-India Bar. This Act has implemented the recommendation of the Bar Committee in the Law Commission with some modifications.

Finally, the Bar Council of India was established under Advocates Act, 1961. M.C Setalvad and C.K Daphtary were the first Chairman and Vice-Chairman of the bar council. Similarly, State Bar Council was also established by the same Act for all the states.

What is the structure of the Bar Council of India?

The Bar Council of India comes under the domain of the Ministry of Law and Justice. It is a body corporate having perpetual succession and a common seal. It has the power to acquire and hold property i.e., moveable and immovable. It has the power to contract and sue and be sued.

The Bar Council of India consists of the Attorney General of India and the Solicitor General of India who are ex-officio members. Every state has elected members working for the State Bar Council. The members are elected for a period of five years. The Chairman and Vice-chairman of the Bar Council are elected for a period of two years.

The council also consists of various committees such as the legal education committee, disciplinary committee, executive committee, legal aid committee, advocates welfare fund committee, rules committee, etc. formed to cater to specific issues arising from time to time.

Under Section 15 of the Advocates Act, the Bar Council is entrusted to make rules regarding the procedure for election, termination, and such other things. Following are the powers of the Bar Council to make rules:

The Bar Council has the power to make rules regarding the election of its members by secret ballot. It imposes certain conditions subject to which persons can exercise the right to vote through postal ballot, prepare and revise the electoral rolls, and manners in which the results of the election should be published.
It has the power to make rules regarding the election of Chairman and Vice-Chairman.
It can make rules regarding any doubts and disputes which may arise due to the election.
It can make rules regarding the filing of casual vacancies.
The council can make rules in respect of the powers and duties of the Chairman and the Vice-Chairman.
The council can make rules regarding constituting the funds for the purpose of giving financial assistance or giving legal aid or advice to the indigent, disabled, etc.
As the council provides legal assistance to the poor, it has the power to make rules regarding the organization of legal aid and advice to the poor people, provide rules for the constitution, and functions of committees and sub-committees.
The council being the corporate body has power to make rules for summoning and holding the meetings of Bar Council, deciding the conduct of the business and the number of members necessary to constitute a quorum.
The council makes rules regarding the constitution and functions of any committee of the Bar Council and the term of office of members of any such committee.
It can make rules with respect to maintenance of books of accounts and other such books of Bar Council.
To inspect the books of accounts, the Bar Council can make rules regarding the appointment of the auditors and the audit of the accounts.
The Bar Council is a corporate body that has powers to make rules for the management and funds of the Bar Council.[i]

What are the other general powers of the Bar Council to make rules?

Along with the powers mentioned above, the Bar Council has some other general powers of making rules for discharging its functions. They are mentioned under Section 49 of the Advocates Act, 1961. They are as follows:

The council can make rules in regards to which advocate may be entitled to vote at an election to the State Bar Council, rules regarding qualifications and disqualifications of the voters, etc.
It can make rules regarding the qualifications and disqualifications of membership of the Bar Council.
It can decide and make rules with respect to the manners in which seniority may be determined.
Bar Council being the important body dealing with legal education has the power to prescribe the minimum qualification required for admission to a course of degree in any law in any recognized university.
It also prescribes the class or category of persons entitled to be rolled as advocates.
Further, it also prescribes the conditions to which an advocate shall have the right to practice and the circumstances under which a person shall be deemed to practice as an advocate in the Court.
Law profession being one of the noble professions, the council also prescribes standards of professional conduct and etiquettes to be observed by the advocates.
To provide quality education to the budding law students, the council lays down some rules regarding the standard of legal education to be observed by the universities in India and further inspects the same.
The council also makes provisions regarding the foreign qualifications in law obtained by persons other than citizens of India which shall be recognized for the purpose of admission as an advocate.
As it is mandatory for the advocates to wear the uniform, so the council has powers to make rules regarding the form or type of robes or dresses to be worn by the advocates after taking into consideration the climatic conditions.[ii]

What are some of the new rules made by the Bar Council?

As mentioned above, recently, the Bar Council of India has abolished the one-year LLM program. According to the new rule, a two-year post-graduate degree is recognizable and a one-year LLM is not adequate.

According to the new rules made by the Bar Council, no advocate can make any statement against the court, any judge, or any member of the judiciary, Bar Council of India, or State Bar Council of India in print, electronic, or any social medium platform, which is derogatory, defamatory or motivated. If any advocate makes such a statement, he/she shall be debarred or suspended.

However, it faced widespread opposition from the lawyers. It sparked a controversy that the new rules are trying to suppress the lawyers from publicly criticizing the judges and the bar councils. Many petitions were filed in the Supreme Court stating that the new rules violate the freedom of speech and expression. Therefore, the Bar Council has kept the rules on hold and a committee was set up to review this matter.

Conclusion

The Bar Council of India is one of the most important bodies in the field of law. It is entrusted with a lot of functions and powers. The council has taken various efforts to make rules and prescribed standard etiquette for the advocates. By recognizing the need of the poor, the council has organized legal aid, legal advice. The council tries to promote legal education and maintain the highest standard of education.

However, there are certain loopholes or lacuna in the legal field which the council should look into to protect the law from degradation. As mentioned above the new rules are violative of free speech and expression. Hence, the council should look into this matter and protect the law.

References

[i] Advocates Act, 1961, Section 15

[ii] Advocates Act, 1961, Section 49

What are the Powers of the Bar Council to make rules?

Introduction

What is the history of the Bar Council of India?

What is the structure of the Bar Council of India?