By Radhika M
Introduction
Legal profession has always been a reputed profession. The effort, knowledge and persistence shown by the members of Bar and Bench has always earned respect from people. It is an indisputable fact that, this respect earned by our predecessors shall be maintained by the successors.
The professionals in the legal field shall be refined to the extent that no one shall complain about the efficiency and candour of this Justice delivery system.
This notion gave form to the Advocates Act, 1961(hereinafter called as Act). Later Bar Council of India nourished the flesh of the Act by formulating much wider rules.
In this article, we will be discussing about the qualification, disqualification and suspension of Advocates.
Qualification for entering name in a State Roll
Section 24 of the Act says that a person can be admitted as an Advocate in a State Roll, if-
- He is a citizen of India. However a foreign national may be admitted to a State Roll, if qualified Indian citizens are allowed to practice in that country.
- He has completed twenty one years of age.
- He has obtained a law degree from a University or college recognised by Bar Council of India.
- He fulfills any other conditions set out by the concerned State Bar Council.
So any person who satisfies the above conditions can make an application to the State Bar Council in whose jurisdiction he intends to practise as an Advocate. The application shall be accompanied by prescribed fees payable to the State Bar Council and Bar Council of India.
The application for enrolment is scrutinised by the Enrolment Committee of the State Bar Council. The State Council may refuse to admit an application provided that they shall refer the application to Bar Council of India for their opinion.
The State Council shall intimate the Bar Council, its grounds for refusing the application. The application shall be finally disposed in conformity with the opinion made by the Bar Council of India.
Once a State Bar Council has refused to entertain an application for enrolment, the Council shall intimate the details of the applicant, reasons for refusal etc to other State Bar Councils. And if the requirements are met, the applicant will be admitted as an Advocate in the State Roll.
Within two years of enrolling with the State Bar Council, an enrolled advocate shall appear for All India Bar Examination conducted by Bar Council of India. The exam is conducted twice in a year. The Bar Council of India decides eligibility, syllabi, pattern, fees and marks required to qualify the exam.
Once the exam is cleared by the candidate, Bar Council of India issues Certificate of Practice. The All India Bar Examination is conducted by the Council to examine the practical knowledge of an Advocate.
In the case of Archana Girish Sabnis v Bar Council Of India [1], the appellant after the completion of professional course Licentiate of the Court of Examiners in Homoeopathy medicines (LCEH), took admission to LL.B course conducted by University of Mumbai. After the completion of LL.B course, she applied to Bar Council of Maharashtra and Goa for enrolment as an Advocate.
But the Council referred her matter to the Bar Council of India for opinion regarding her eligibility. And the Bar Council of India rejected her application because the qualifying degree she obtained for joining LL.B was not recognised by the Bar Council of India.
She challenged the decision before Bombay High Court which opined that the Bar Council of India has the independent power to recognize any equivalent qualification to a graduate degree for the purpose of admission in the course of graduate degree in law.
The Supreme Court in an appeal upheld the decision of High Court. And it observed that “Pursuing law and practicing law are two different things. One can pursue law but for the purpose of obtaining license to practice, he or she must fulfil all the requirements and conditions prescribed by the Bar Council of India”
The Supreme Court in the case of V.Sudeer v. Bar Council of India[2] held that the rule making power conferred to Bar Council under the Act doesn’t enable the Council to impose additional restriction other than those mentioned in Section 24 on the eligibility of an applicant who seeks enrolment.
Therefore the Court declared that the pre-enrolment training mandated by the Bar Council for enrolling as an advocate cannot be entertained. However, the Court opined that the Parliament can introduce an amendment to the Act which will strengthen the rule making power of Bar Council in matters related with enrolment.
But this decision led to the massive enrolment of fresh law graduates who in fact lacked even basic legal knowledge. So as per the decision in Sudeer’s case, Bar Council was not in a position to add any additional criteria before enrolment of Advocates.
So they decided to conduct a post-enrolment exam to ensure the quality of newly enrolled Advocates. Since the Bar Council is vested with the power to make rules relating to practise of profession, post – enrolment examination of Advocates wouldn’t be overstepping of its boundaries.
That is how the Bar Council decided to conduct All India Bar Examination from year 2010 onwards.
Disqualification for enrolment
Section 24A speaks about disqualification for enrolment. The section says that, no person shall be admitted as an Advocate in a State Roll-
- If he is convicted for an offence involving moral turpitude.
- If he is punished for an offence under Untouchability (Offences) Act.
- If he was dismissed or removed from an employment or service under the State for an offence involving moral turpitude.
However, such disqualification will cease to have effect after the lapse of two years since his removal or dismissal or release. Also the Bar Council of India is empowered to remove the name of a person from State Roll, if it is satisfied that he got his name entered through misrepresentation or undue influence or fraud.
As per Section 30 of the Act, an Advocate whose name entered in a State Roll shall have a right to practise-
- In all courts including Supreme Court.
- Before any tribunal or person legally authorised to take evidence.
- Before any other authority or person before whom such advocate is entitled to practise under any law for the time being in force.
But as per Supreme Court Rules, only an Advocate on Record can appear, plead and address the Supreme Court.
Nevertheless, High Courts are empowered to make rules regarding the conditions as to which an Advocate shall be permitted to practise before such High Court and Courts subordinate to it.
The rules made by Bar Council of India under Section 49 (1) (ah) of the Act provide that an Advocate who voluntarily suspends his practice for any reason whatsoever shall intimate the matter to State Bar Council.
The intimation shall be done through a registered post, accompanied with the certificate of enrolment. An Advocate who wants to resume his practice after suspension shall apply to the Secretary of State Bar council. It shall be accompanied by an affidavit stating whether he has incurred any disqualification during the period of suspension.
The application will be scrutinised by the Enrolment Committee. If the application is accepted, the certificate surrendered by the applicant will be returned to him. If the Committee thinks that, the applicant has incurred any disqualification it shall refer the matter to Bar Council of India.
Bar Council Rules provide that a practising Advocate shall not engage in any other employment. The rule originates from the notion that legal profession requires full attention from a person who intends to practice it. It is a reputed profession which one cannot do as a side business.
However an Advocate can be a sleeping partner, part of a business entity as long as he doesn’t participate in its management, holder of an inherited property etc.
Professional misconduct
Every profession has to maintain its dignity and some kind of responsible behaviour is expected from persons engaged in a profession. And legal profession is no exception.
Advocates have duty towards court, client, colleagues, society etc. He/she is bound to fulfil them while keeping the dignity of the profession. So any improper conduct from an advocate or an irresponsible behaviour from the part of him may be called as professional misconduct.
The preamble to rules under Section 49 (1) (c) of the Act says that-
“An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit”
Section 35 of the Act prescribes the punishment for misconduct. If upon receipt of a complaint or otherwise a State Bar Council has reason to believe that an advocate enrolled in its roll has been guilty of professional or any other misconduct, it shall refer the matter to disciplinary committee.
The disciplinary committee after hearing the parties may issue any of the following orders;
- Dismiss the complaint.
- Reprimand the Advocate.
- Suspend the Advocate from practice for such period as it may deem fit.
- Remove the name of such Advocate from its roll.
If an Advocate who is not enrolled with any State Bar Council has been alleged with professional misconduct, the matter shall be disposed by the disciplinary committee of Bar Council of India.
Also any person aggrieved by the order of disciplinary committee of State Bar Council may appeal to the Bar Council of India. An appeal from the orders of Bar Council of India shall lie to the Supreme Court.
In the case of George Frier Grahame Vs. Attorney-General,[3] the privy council accepted the following definition of professional misconduct-
“If it is shown that an Advocate in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to say that he is guilty of professional misconduct[4]”
In the case of Supreme Court Bar Association v Union Of India [5], an Advocate practising in the Supreme Court was suspended for three years in relation to the contempt proceedings initiated against him. The suspension order was passed by the Court in exercise of the powers conferred under Article 129 and 142.
Aggrieved by the order, the Supreme Court Bar Association moved a writ petition. While deciding the petition, the Court observed that-
“Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142.”
The power to suspend the right to practice of an Advocate for professional misconduct is vested with Bar Councils. Only when an appeal is filed against the order of Bar Council under Section 38, Supreme Court can decide the matter.
However, if the Supreme Court has already given reference to the Bar Council to invoke proceedings against the Advocate for professional misconduct and if the Bar Council fails to do so, it is open for the Court to decide the matter under Section 38. Also such power is only available to Supreme Court.
In the case of M. Veerabhadra Rao vs Tek Chand [6], the Supreme Court observed that an Advocate who forged documents and misled an Income Tax Officer to issue income tax clearance certificate , is guilty for gross professional misconduct. He was ordered to be suspended for five years from practising as an Advocate.
Conclusion
The recent trend of people losing faith in legal system is quietly alarming. They no longer believe in the independency, impartiality and integrity of Courts. And most importantly, lawyers are pictured as persons without morals and who lack commitment towards society.
So it is necessary to restore the faith in people by ensuring the integrity of the lawyers. This is possible only by elevating legal education standards, stringent disqualification terms. And Advocates who are liable for professional misconduct shall be punished severely so that, they don’t pose challenge to the legal system as well as to the clients.