By Nirupam Deo
Introduction
Occupation is a term derived from the word “occupy”, it’s something that occupies our mind and a portion of our entire day. Merriam Webster Dictionary defines Occupation as “an activity in which one engages” or “the principal business of one’s life”.
Therefore, it can be said that an Occupation is an activity meant to keep us engaged throughout the day and helps us earn a living. There are many kinds of Occupation worldwide, most of them requiring a variety of Education and Skillsets. Some common Occupations are Law, Engineering, Medical, Software, etc.
The Occupation of Law is one of the most ancient and Noblest professions of all. A person who is engaged in the Profession of Law is called an Advocate or a Lawyer.
An Advocate is an Officer of Justice and helps the Judge to reach a fair Judgement. He is a friend of the Court. An Advocate must help any client who comes to him and tends to his case and tries to get a fair Judgement for his client in an honorary way.
It is the primal duty of a Lawyer to Administer Justice in the Court. An Advocate serves Society by providing Legal Advice whenever necessary as it is uncommon for a layman to understand all the Rules and Acts of the Law because the Language of Law is hard to decipher.
Lawyers help people in Economic Transactions like Contract, Agreement, Deed, Will, etc. He also helps people to know the taxation policies and Trade.
The Lawyer must protect Fundamental and Human Rights and make the common folks aware of them. A Lawyer is an entity that always fights against the Injustice of Society and strives to eliminate them.
The occupation in the field of Law is a special responsibility as it determines the very issue of justice to be served to everyone and no one’s rights to be violated, the practitioners of Law have to take special care that these responsibilities are met otherwise it is a failure on the part of Law.
Thus, this article deals with the history of legal profession in India.
Development of Legal Profession in India
The development of the Legal Profession in India can be surmised into:
- Legal Profession in Ancient India
During ancient times, societies existed in groups and tribes. There was one head of the clan who had to pass decisions and orders. Justice was given under the open sky in the presence of all members of the tribe.
Arguments were bought forth in front of everybody and decision was made, leaders decision was final, there were no specialists like Lawyers to assist the tribe.
Later when the kings took over the role of Tribal Leaders and the Power became yet more Centralized, they continued the same ritual. The King was the supposed shadow of God on Earth and his decisions were binding. Although he had wise men to guide him and sometimes soldiers were asked to gather evidence.
The primary basis of their Judgements used to be the preservation of Religion and Customs so as everyone follows the way they have made them follow. Capital Punishments were rampant to create the fear of deviating from the King’s Plan.
Both parties were heard, Special Administrators were appointed for Legal Administration, Religious Heads opinion was given a lot of importance. It was usually a set of wise men and Religious heads advising the king. This is how Legal Adjudication worked then.
- Legal Profession in Medieval India
In the Mughal Era, there was a similar continuation of the Ancient Model of Justice. King was the Judge and Jury advised by his trusted Counsellors to reach for a Judgement. Most of the Judgement given somehow was timed to coincide with the words of the Holy Quran.
King’s decision was final and binding on both Parties. The major demarcation of Medieval Indian Justice with the ancient ones were ‘Vaqils’ were appointed by both the Parties to argue cases on their behalf.
These Vaqils were intellectually higher-ups, mostly specialised in some selected Subjects. They can be compared to modern Day Lawyers and used to Argue cases for their Client.
- Legal Profession in British India
The modern Legal System was developed in India during this period. Full-fletched proceedings happened Vaqeels argued from both sides, there was a Jury to decide the fate of the case.
A legitimate form of Legal profession begun in India only after the Advent of the British reign. In Britain, the Legal profession started during the 13th Century and it had become quite proficient at handling Legal affairs by the time it started ruling India.
Britishers did have a way with the imposition of their own cultures on their colonies, so as they can function efficiently and hence the formal Legal culture in India was inherited from Great Britain.
The initiation of the formal Legal profession can be traced back to the establishment of the First Court in Bombay in 1672. This led to the beginning of a culture of Attorneys, Barristers, Judges and Juries for imparting Justice. The formal introduction of practitioners in India only began after the establishment of the Mayors Court in 1726 in Madras and Calcutta.
Mr Benjamin Sullivan was the first Barrister appointed for Madras in 1778 and that led to an inflow of British Barristers in India. Mayors Courts failed to prove efficient and after the realisation, the Supreme Court was established to rehabilitate the System.
The First Supreme Court in India was set up in 1774 by the Regulating Act of 1773 by the Britishers at Fort Williams in Calcutta.
Later Supreme Courts of similar stature were established in Madras (1801) and Bombay(1823). The establishment of Supreme Courts brought the trend of the regal nature of the Legal profession in India. It used to have a Chief Justice and three puisne judges who must have been Barristers for a term not less than 5 years.
The Charters signed approved admission and enrollment of Advocates to plead in the Court on behalf of their clients. It also gave Court authority to remove Lawyers and even Barristers on the reasonable ground and prohibit them to practice.
The Court had the right to admit, discipline and remove Advocates. They could not practice in a case without the recommendation of a high official from England or a Judge in India.
The Legal Profession in Diwani Court was not recognized and controlled. The practise was carried on by Vakils and agents. No law was made to establish qualification, work ethics, morals or their relationship to the Court. It was changed by the Bengal Regulation Act of 1793 where the standards of the legal profession were established and only the men proficient in Hindu Law or Muslim Law were allowed to practice.
The Supreme Courts and Sudder Courts were merged into one and were converted into High Courts. This was done with the mind of uniting the legal learning and judicial experience of Barristers with the ethnic knowledge of Indian Vaqeels.
This eradicated all the barriers and distinctions and made Indian Advocates play on equal feet with the Royal Barristers. This merge led to a contemporary conversion of the Indian Legal System, and the establishment of the Guru-Shishya System through which the veterans in Law trained the Apprentices, this process continues to date.
The Legal Practitioners Act made it mandatory for people aspiring to work as Vaqeels and Lawyers to be made proficient in the field of Law. It was required of them to get an L.L.B three-year degree from a respected and recognized University, with three other certificates.
The degree was proof that the person is versed in the field of Law and has a good character. These determined the Legal Foundation in India until The Advocates Act, 1961 was enacted.
The Indian Bar Council Act, 1926 further directed the foundation of taking care of Legal Education, Rules and Regulations, Enrollment, Qualification, discipline and control of the Advocates in India. Every Indian Advocate is required to enrol in The Indian Bar Council to practice in the Courts of India.
In furtherance to Indian Bar Council, the Advocates Act reformed the process of Admission, Practice, Ethics, Privileges, Regulation and discipline of the profession overall.
Overview of The Legal Practitioners Act
The Legal Practitioners Act, 1846 The Act allowed people of any nationality or religion to act as leaders. It also allowed Attorneys and Barristers enrolled in any of Her Majesty’s Courts in India to plead in the company’s Sardar Adalat.
The Legal Practitioners Act, 1853 – This Act authorized the Barristers and Attorneys of the Supreme Court to plead in any of the companies courts subordinate to Sadar court subject to rules in force in the said subordinate courts as regards language or otherwise.
- Section 5 of the Legal Practitioners Act connotes that any person who enters the High Court as an Attorney can practice in any Court of India which is Subordinate to it in its stature or any Revenue Court which is of lower stature.
- Section 6 of the Act empowered the High Court to make rules consistent with the Act as to Suspension and dismissal of Pleaders and Mukhtars.
- Section 8 empowered the Pleader to practice in Courts and Revenue Offices after enrolment.
- Section 9 empowered the Mukhtar to practice in the courts after enrolment.
- According to Section 12, the High Court can Suspend or dismiss any pleader or Mukhtar if he was convicted of any criminal offence and according to Section 13, the High Court can suspend or dismiss pleader or Mukhtar guilty of Professional misconduct
- Section 14 of the Act made provisions in respect of the procedure when the charge of Professional misconduct was brought in subordinate Court or Revenue Office.
- Section 17 of the Act deals with the Power of the chief controlling revenue authority to make rules consistent with this act as to qualification, suspension, dismissal etc. of the revenue agent.
Importance of The Indian Bar Council Act, 1926
Indian Bar Council Act 1926 – In 1926, the Indian bar council of India Act was enacted to provide a Bar Council for each High Court. The Bombay High Court and Calcutta High Court allowed Non-Barrister Advocates to practice.
Thus the distinction between Barristers and Advocates was abolished. The Pleaders and Mukhtars practising in Mufassil Courts were not within the scope of the Indian bar council act 1926.
Even after the enactment of the Bar Council Act 1926, the High Court had the Power of Enrolment of Advocates and the functions of the Bar Council was the adversary in nature and the rules made by the Bar Council were to be effective only on the approval of the high court.
Section 10 of the Indian Bar Council Act 1926 empowered the High Court to reprimand, suspend or remove from practice any advocate of the High Court if he was found guilty of professional misconduct or other misconduct.
The legal profession in India after independence
All India Bar Committee, 1951 – In 1951, the All India Bar Committee was constituted under the Chairmanship of Justice S.R. Das. The Committee in its report recommended the establishment of an All India Bar Council and State Bar Councils. It recommended the powers of enrolment, suspension or the removal of Advocates to the Bar Council.
It recommended the common role of Advocates should be maintained and they should be authorized to practice in all Courts in the Country. It further recommended that there should be no further recruitment of non-graduated pleaders or mukhtars.
Similar recommendations Were made by the fifth Law Commission of India in its fourteenth report.
Advocate Act 1961 – As a result of the report of the “All India Bar Committee Act, 1961 “.The central government enacted the Advocate Act 1961. This Act has been in Force In entire India.
It brought Revolutionary changes in the legal profession in India. It was set out to achieve the utility and dignity of the profession of law on an all India basis. The Preamble says that the Act amends as well as consolidates the law relating to legal practitioners.
The Advocate Act,1961 contains 60 Sections set out in 7 chapters.
- Chapter I – deals with primary issues such as short title, extent and commencement and definitions.
- Chapter – II Section 3 to15 deals with the bar councils.
- Chapter III Section 16 to 28 deals with the admission and enrolment of Advocates.
- Chapter IV deals with the right to practice chapter.
- Chapter V Section 35 To 44 deals with the conduct of the Advocate.
- Chapter VI Miscellaneous issues.
- Chapter VII deals with the temporary and transitional provisions.
The Advocate Act 1961 repealed the Indian Bar Council Act,1926 and all other laws on the subject.
The Advocate Act,1961 provides for an autonomous Bar Council in each State and the All India Bar Council consisting mainly of the representatives of the State Bar Councils.
Under the Act, a State Bar Council is to enrol the qualified person as Advocates and prepare a roll of Advocates practising in the state and thereafter a common roll of Advocates for all of India is to be prepared by the Bar Council of India.
The Advocates whose Names are entered in the common roll would be entitled as of right to practice in all courts in India including the Supreme Court.
Advocate Act 1961 was amended many times to bring changes with the changing times and to solve the practical problems.
Conclusion
It was a long drawn process to a proper Legal System established in India. Although the concept of Justice was an ancient model where each party had a different definition for Justice, it is a subjective topic. There was a need to view arguments from an unbiased point of view and demarcate a neutral decision.
Earlier that role of being the guardian of Truth and Justice which the Tribe Leaders and Kings wore with utmost pride is now held with Judges and Jury who are well versed in Law and qualified to pass the Judgements.
Implementing a proper Judicial Structure was necessary as India has a huge population and that implies a huge number of arguments and grudges which needs to be solved. Our Courts and Tribunals are doing splendid work there.
As necessary was it to establish a proper Judicial Infrastructure, so was the need of time to increase the number of learned Lawyers and Advocates to help the Judge reach a proper conclusion.
The reality and evidence are often tampered with, so it becomes necessary for the need of good Lawyers who can bring the truth in light to everyone and decipher the complex cases where almost every time both the Parties have a different meaning of Justice.
References