By Stuti Hasmukh Oswal
Introduction
Bar Councils are mainly created to look after the rights, privileges and interests of the Advocate and to promote and support the law reforms. There are two types of Bar Councils which are State Bar Councils and The Bar Council of India.
The Section 3 of the Advocates Act, 1961 states in detail about the establishment of Bar Councils in the states. Every state like Andhra Pradesh, Bihar, Gujarat, Jammu and Kashmir, Madhya Pradesh, Karnataka, Orissa, Rajasthan, Uttar Pradesh shall have a State Bar Council of their own whereas Maharashtra and Goa along with Union Territories of Dadra & Nagar Haveli and Daman and Diu shall have a State Bar Council of Maharashtra and Goa.
The Union Territory Delhi shall have a Bar Council of Delhi. The Bar Council of India represents the Indian Bar and is a statutory body created by the Parliament.
Statutory Body
Statutory bodies are non-constitutional bodies which means that they are not formed under the constitution but they derive their powers, rules and authority by the Parliament or state legislature.
Every statutory body is incorporated with a specific purpose Examples of these statutory bodies are Securities and Exchange Board India, National Commission for OBC’s, National Green Tribunal, etc. Such bodies are called ‘statutory’ bodies because statues which are laws which are made by parliament.
Constitutional Body
A Constitutional body means the one that is established by the Constitution of India. It derives its powers, rules and authority from the Constitution of India. If a change is required to be made in such bodies it will require constitutional amendment.
Examples of such bodies are Election Commission, Finance Commission, Goods and Service Tax Council, the Comptroller and Auditor General of India, etc. Each of these are formed under some or the other article of the Indian Constitution. These are given certain functions and powers to carry out their duty efficiently.
Difference Between Statutory Body and Constitutional Body
| Statutory Body | Constitutional Body |
| These are not mentioned in the Constitution. These are formed by the Parliament or State Legislative and have enactments to govern them. | These are mentioned in the Constitution. Each constitutional body is formed under an article in the constitution. |
| These can simply be abolished by the parliament with the majority. | These cannot be abolished that simply because that part of the constitution is required to be amended and many consents will be required for the same. |
| Statutory Body is a type of Non-Constitutional Body. | There are mainly two types of bodies which are Constitutional and Non-Constitutional bodies. |
| The statutory bodies are subject to changes as there are changes in laws governing them. | In case of constitutional body, they do not change so often as it requires a lengthy process to be about these changes. |
Dissolution of Statutory Body
In the case of Sukhdev Singh and Ors. Vs. Bhagatram Sardar Singh Raghuvanshi and Anr. 1975 AIR 1331[1] it was held that a statutory body is created by the government and can only be dissolved by the government.
The Oil and Natural Gas Commission, the Industrial Finance Corporation are formed by passing of enactments by the government and it is managed by the government therefore, only the government has the authority to dissolve them.
In the year 2018, the Medical Council of India was dissolved and new board was appointed by the government as the previous board was non-compliant and uncooperative. It was the second time that Apex Court had noted of the MCI being truculent. Before, the Chief Justice Of India Mr. R.M. Lodha had mentioned that urgent action was required.
A Statutory Body can be dissolved only by the government. One can file petitions and writs against these statutory bodies in the Court of Law if they are aggrieved by any decisions made by these statutory bodies.
Similarly, as the Bar Council Of India is a statutory body and is governed by the Indian Bar Council’s Act, 1926 and the Advocates Act, 1961.
As per the Advocates Act, 1961 the term Bar Council is defined as “Bar Council constituted under the said Act” and the term Bar Council of India is defined as “the Bar Council constituted under section 4 for the territories to which this Act extends.” The Definitions of the terms are not quite exhaustive. The Indian Bar Council Act, 1926 does not provide with a definition but gives detail information about the constitution of a Bar Council.
State Bar Council’s First Election
Section 53 of the Advocate’s Act, 1961 provides that members shall be elected and hold office of the State Bar Council. These members which are elected shall have the right and be entitled to practice in the High Court and shall be practicing in the territories for which the said Bar Council is constituted.
The members and the people electing them shall either be Advocates, Attorneys or Pleaders. Section 54 of the Advocate’s Act, 1961 says that member of such first State Bar Council shall hold their office for a period of two years and that such Council shall hold the office till the State Bar Council is not reconstituted.
Dissolution of existing Bar Councils
If a Bar Council is dissolved then according to Section 56 of the Advocate’s Act, 1961
- All the assets that the previous Bar Council held shall be transferred to the New Bar Council.
- All the rights, liabilities and obligations the previous Bar Council held shall be transferred to the New Bar Council.
- All the cases and complaints pending before the previous Bar Council with respect to the Disciplinary Committee shall also be transferred to the New Bar Council.
In this particular section all the State Bar Council shall come except for the State Bar Council of Delhi.
Power to make rules while the Constitution of the Bar Council is Pending
According to Section 57 of the Advocate’s Act, 1961 the powers to make rule until the Bar Council is constituted rests with:
- In the case of Bar Council Of India the powers to make rules shall rest with the Supreme Court of India
- In the case of State Bar Council the powers to make rules shall rest with the High Court of that particular state.
Special Provisions during the transitional period
When a State Bar Council is not constituted then the High Court of that states takes upon the responsibilities and functions of the State Bar Council until its reconstitution. All the Advocates who are required to enroll themselves in the roll of the State Bar Council shall enrolled by the High Court in accordance with the provisions.
Various other special provisions are made for each state for Advocates who have been practicing before a certain period but were not enrolled with the State Bar Council.
Central Government
The Central Government shall have the power to remove all the difficulties that may arise while implementing the provisions of the Advocate’s Act,1961 with respect to the transitions in the Bar Councils. The Central Government shall have the authority to eliminate all the obstacles but only in accordance with the purpose of the provisions and the Act made.
The same shall be done by publishing an order in the official gazette. Such order shall be of retrospective nature but shall be effective from the date prior to 1st December,1961.
Conclusion
The Bar Council of India and the State Bar council are required to perform certain functions as stated by the Advocate’s Act,1961 in order to ensure that the rights, privileges and interest of the Advocates are protected.
The Bar Councils also lay down standards and professional ethics every lawyer is required to follow while presenting himself before the court and while dealing with a client. The Bar Council of India has a lot of functions and powers vested in them and can change and encourage the legal field towards further development.
Reference
- Advocate’s Act, 1961
- .thebetterindia.com
- The Indian Bar Council Act, 1926
- gkplanet.in – GK Planet- Difference between Statutory Body and Constitutional Body.
- Sukhdev Singh and Ors. Vs. Bhagatram Sardar Singh Raghuvanshi and Anr. 1975 AIR 1331 ↑