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THE ADVOCATES ACT, 1961 |
No.25 OF 1961
[19th May, 1961]
An Act to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All-India Bar.
BE it enacted by Parliament in the Twelfth Year of the Republic of India as follows:-
CHAPTER I
PRELIMINARY
1.Short title; extent and commencement.- (1) This Act may be called the Advocates Act, 1961.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date1 as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act.
2.Definitions.- In this Act, unless the context otherwise requires,-
(a) “advocates” means an advocate entered in any roll under the provisions of this Act;
(b) “appointed day”, in relation to any provision of this Act, means the day on which that provision comes into force;
(c) “attorney” includes a solicitor;
(d) “Bar Council” means a Bar Council constituted under this Act;
(e) “Bar Council of India” means the Bar Council constituted under section 4 for the territories to which this Act extends;
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I The provisions of the Act have been brought into force as under:-
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Date Provisions Notification
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16-8-1961 Chap.I, II and VII. S.O.1870, dated 7-8-1961, Gazette of India, Extraordinary,
Pt.II, Sec.3 (ii), p.1237.
1-12-1961 Chap.III and Section S.O.2790, dated 24-11-1961, ibid., p.1723.
50 (2).
15-12-1961 Section 50 (I). S.O.2919, dated 13-12-1961, ibid., p.1745.
24-1-1962 Sections 51 and 52 S.O.297, dated 24-1-1962, ibid., p.169.
29-3-1962 Section 46. S.O.958, dated 29-3-1962, ibid., p.589.
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(f) “common roll” means the common roll of advocates, prepared and maintained by the Bar Council of India under section 20:
(g) “High Court”, except in sub-section (1) of section 34 and in sections 42 and 43, does not include a court of the Judicial Commissioner, and, in relation to a State Bar Council, means,-
(i) in the case of a Bar Council constituted for a State or for a State and one or more Union territories, the High Court for the State;
(ii) in the case of the Bar Council constituted for Delhi, the High Court for the Punjab;
(h) “law graduate” means a person who has obtained a bachelor’s degree in law from any University established by law in India;
(i) “legal practitioner” means an advocate, vakil or attorney of any High Court, a pleader, mukhtar or revenue agent;
(j) “prescribed” means prescribed by rules made under this Act;
(k) “roll” means a roll of advocates prepared and maintained under this Act;
(l) “State does not include a Union territory;
(m) “State Bar Council” means a Bar Council constituted under section 3;
(n) “State roll” means a roll of advocates prepared and maintained by a State Bar Council under section 17.
CHAPTER II
BAR COUNCILS
3.State Bar Councils.- (1) There shall be a Bar Council-
(a) for each of the States of Andhra Pradesh, Bihar, Gujarat, Madhya Pradesh, Madras, Maharashtra, Mysore, Orissa, Rajasthan and Uttar-Pradesh, to be known as the Bar Council of that State;
(b) for the State of Assam and the Union territory of Manipur, to be known as the Bar Council of Assam;
(c) for the State of Kerala and the Union territory of Laccadive, Minicoy and Admindivi Islands, to be known as the Bar Council of Kerala;
(d) for the State of Punjab and the Union territory of Himachal Pradesh, to be known as the Bar Council of Punjab;
(e) for the State of West Bengal and the Union territories of Tripura and the Andaman and Nicobar Islands, to be known as the Bar Council of West Bengal; and
(f) for the Union territory of Delhi, to be known as the Bar Council of Delhi.
(2) A State Bar Council shall consist of the following members namely:-
(a) in the case of the State Bar Council of Delhi, the Additional Solicitor-General of India, ex-officio; and in the case of any other State Bar Council, the Advocate-General of the State, ex-officio;
(b) in the case of the Bar Council of Assam, the Bar Council of Orissa and the Bar Council of Delhi, fifteen members and in every other case, twenty members, elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the roll of the State Bar Council.
(3) There shall be a Chairman and a Vice-Chairman of each State Bar Council elected by the Council in such manner as may be prescribed.
4.Bar Council of India.- (1) There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely:-
(a) the Attorney-General of India, ex-officio;
(b) the Solicitor-General of India, ex-officio;
(c) one member elected by each State Bar Council from amongst its members.
(2) There shall be a Chairman and a Vice-Chairman of the Bar Council of India elected by the Council in such manner as may be prescribed.
5.Bar Council to be body corporate.- Every Bar Council shall be a body corporate having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and to contract, and may by the name by which it is known sue and be sued.
6.Functions of State Bar Councils.- (1) The functions of a State Bar Council shall be-
(a) to admit persons as advocates on its roll;
(b) to prepare and maintain such roll;
(c) to entertain and determine cases of misconduct against advocates on its roll;
(d) to safeguard the rights, privileges and interests of advocates on its roll;
(e) to promote and support law reform;
(f) to manage and invest the funds of the Bar Council;
(g) to provide for the election of its members;
(h) to perform all other functions conferred on it by or under this Act;
(i) to do all other things necessary for discharging the aforesaid functions.
(2) A State Bar Council may constitute a fund in the prescribed manner for the purpose of giving assistance to indigent or disabled advocates.
7.Functions of Bar Council of India.- The functions of the Bar Council of India shall be-
(a) to prepare and maintain a common roll of advocates;
(b) to lay down standards of professional conduct and etiquette for advocates;
(c) to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council;
(d) to safeguard the rights, privileges and interests of advocates;
(e) to promote and support law reform;
(f) to deal with and dispose of any matter arising under this Act, which may be referred to it by a State Bar Council;
(g) to exercise general supervision and control over State Bar Councils;
(h) to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils;
(i) to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities;
(j) to manage and invest the funds of the Bar Council;
(k) to provide for the election of its members;
(l) to perform all other functions conferred on it by or under this Act;
(m) to do all other things necessary for discharging the aforesaid functions.
8.Term of office of members of Bar Council.- The term of office of the elected members of a Bar Council shall be six years, but as nearly as possible one-third of the members first elected to each such Council shall retire on the expiration of every second year in the prescribed manner, and the vacancies so caused shall be filed by the election of new members in the prescribed manner.
9.Disciplinary committees.- (1) A State Bar Council shall constitute one or more disciplinary committees, each of which shall consist of five persons of whom three shall be persons elected by the Council from amongst its members and two shall be persons elected by the Council from amongst advocates on its roll who are not members of the Council.
(2) The Bar Council of India shall constitute a disciplinary committee consisting of five persons of whom three shall be persons elected by the Council from amongst its members and two shall be persons elected by the Council from amongst advocates on the common roll who are not members of the Council.
10.Constitution of committees other than disciplinary committees.- (1) A State Bar Council shall constitute the following standing committee, namely:-
(a) an executive committee consisting of five members elected by the Council from amongst its members;
(b) an enrolment committee consisting of three members elected by the Council from amongst its members.
(2) The Bar Council of India shall constitute the following standing committees, namely:-
(a) an executive committee consisting of nine members elected by the Council from amongst its members:
(b) a legal education committee consisting of ten members, of whom five shall be persons elected by the Council from amongst its members and five shall be persons co-opted by the Council who are not members thereof.
(3) A State Bar Council and the Bar Council of India may constitute from amongst its members such other committees as it may deem necessary for the purpose of carrying out the provisions of this Act.
11.Staff of Bar Council.- (1) Every Bar Council shall appoint a secretary and may appoint an accountant and such number of other persons on its staff as it may deem necessary.
(2) The secretary and the accountant, if any, shall possess such qualifications as may be prescribed.
12.Accounts and audit.- (1) Every Bar Council shall cause to be maintained such books of accounts and other books in such form and in such manner as may be prescribed.
(2) The accounts of a Bar Council shall be audited by auditors duly qualified to act as auditors of companies under the Companies Act, 1956, (1 of 1956) at such times and in such manner as may be prescribed.
(3) As soon as the accounts of a State Bar Council have been audited, that Bar Council shall send a copy of such accounts together with a copy of the report of the auditors thereon, to the Bar Council of India.
13.Vacancies in Bar Councils and committees thereof not to invalidate action taken.- No act done by a Bar Council or any committee thereof shall be called in question on the ground merely of the existence of any vacancy in, or any defect in the constitution of, the Council or committee, as the case may be.
14.Election to Bar Councils not to be questioned on certain grounds.- No election of a member to a Bar Council shall be called in question on the ground merely that due notice thereof has not been given to any person entitled to vote thereat, if notice of the date has, not less than thirty days before that date, been published in the Official Gazette.
15.Power to make rules.- (1) A Bar Council may make rules to carry out the purposes of this Chapter.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-
(a) the manner in which the election of members of the Bar Council shall be held and the manner in which results of elections shall be published.
(b) in the case of a State Bar Council, the constitution of a fund for giving financial assistance to indigent or disabled advocates;
(c) the manner of election of the Chairman and the Vice-Chairman of the Bar Council;
(d) the manner in which and the authority by which doubts and disputes as to the validity of an election to the Bar Council or to the office of the Chairman or Vice-Chairman shall be finally decided;
(e) the manner in which the order of retirement by rotation of the members of the Bar Council shall be determined;
(f) the filling of casual vacancies in the Bar Council;
(g) the powers and duties of the Chairman and the Vice-Chairman of the Bar Council;
(h) the summoning and holding of meetings of the Bar Council, the times and places where such meetings are to be held the conduct of business thereat, and the number of members necessary to constitute a quorum;
(i) the constitution and functions of any committee of the Bar Council and the term of office of members of any such committee;
(j) the summoning and holding of meetings, the conduct of business of any such committee, and the number of members necessary to constitute a quorum;
(k) the qualifications and the conditions of service of the secretary; the accountant and other employees of the Bar Council;
(l) the maintenance of books of accounts and other books by the Bar Council;
(m) the appointment of auditors and the audit of the accounts of the Bar Council;
(n) the management and investment of the funds of the Bar Council.
(3) No rules made under this section by a State Bar Council shall have effect unless they have been approved by the Bar Council of India.
CHAPTER III
ADMISSION AND ENROLMENT OF ADVOCATES
16.Senior and other advocates.- (1) There shall be two classes of advocates, namely, senior advocates and other advocates.
(2) An advocates may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, experience and standing at the Bar he is deserving of such distinction.
(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interests of the legal profession prescribe.
(4) An advocate of the Supreme Court who was a senior advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate.
17.State Bar Councils to maintain roll of advocates.- (1) Every State Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of-
(a) all persons who were entered as advocates on the roll of any High Court under the Indian Bar Councils Act, 1926, (38 of 1926) immediately before the appointed day and who, within the prescribed time, express an intention in the prescribed manner to practise within the jurisdiction of the Bar Council:
(b) all other persons who are admitted to be advocates on the roll of the State Bar Council under this Act on or after the appointed day.
(2) Each such roll of advocates shall consist of two parts, the first part containing the names of senior advocates and the second part, the names of other advocates.
(3) Entries in each part of the roll of advocates prepared and maintained by a State Bar Council under this section shall be in the order of seniority, and such seniority shall be determined as follows:-
(a) the seniority of an advocate referred to in clause (a) of sub-section (1) shall be determined in accordance with his date of enrolment under the Indian Bar Council Act, 1926 (38 of 1926);
(b) the seniority of any person who was a senior advocate of the Supreme Court immediately before the appointed day shall, for the purposes of the first part of the State roll, be determined in accordance with such principles as the Bar Council of India may specify;
(c) notwithstanding anything contained in clause (a), the seniority of a vakil, pleader or an attorney who was enrolled as an advocate immediately before the appointed day, or who is enrolled as an advocate after that day, shall be determined in accordance with the date of his entry in the register of vakils, pleaders or attorneys, as the case may be;
(d) the seniority of any other person who, on or after the appointed day, is enrolled as a senior advocate or is admitted as an advocate shall be determined by the date of such enrolment or admission, as the case may be.
(4) No person shall be enrolled as an advocate on the roll of more than one State Bar Council.
18.Transfer of name from one State roll to another.- (1) Notwithstanding anything contained in section 17, any person whose name is entered as an advocate on the roll of any State Bar Council may make an application in the prescribed form to the Bar Council of India for the transfer of his name from the roll of that State Bar Council to the roll of any other State Bar Council and, on receipt of any such application, the Bar Council of India shall direct that the name of such person shall, without the payment of any fee, be removed from the roll of the first mentioned State Bar Council and entered in the roll of the other State Bar Council and the State Bar Councils concerned shall comply with such direction.
(2) For the removal of doubts it is hereby declared that where on an application made by an advocate under sub-section (1), his name is transferred from the roll of one State Bar Council to that of another, he shall retain the same seniority in the latter roll to which he was entitled in the former roll.
19.State Bar Councils to send copies of rolls of advocates to the Bar Council of India.- Every State Bar Council shall send to the Bar Council India an authenticated copy of the roll of advocates prepared by it for the first time under this Act and shall thereafter communicate to the Bar Council of India all alterations in, and additions to, any such roll, as soon as the same have been made.
20.Common roll of advocates.- (1) The Bar Council of India shall prepare and maintain a common roll of advocates which shall comprise the entries made in all State rolls and shall include the names of all advocates entitled as of right to practise in the Supreme Court immediately before the appointed day whose names are not entered in any State roll.
(2) The common roll of advocates shall consist of two parts, the first part containing the names of senior advocates, and the second part, the names of other advocates.
(3) Entries in each part of the common roll shall be in the order of seniority and such seniority shall be determined as follows:—
(a) the seniority of an advocate enrolled in a State roll shall be determined in accordance with his seniority in that roll;
(b) the seniority of any person who was a senior advocate of the Supreme Court immediately before the appointed day and whose name is not entered in any State roll shall, for the purposes of the first part of the common roll, be determined in accordance with such principles as the Bar Council of India may specify in this behalf;
(c) the seniority of any person who was an advocate (but not a senior advocate) of the Supreme Court immediately before the appointed day and whose name is not entered in any State roll shall, for the purposes of the second part of the common roll, be determined in accordance with the date of his enrolment as an advocate of the Supreme Court.
(4) There shall be entered in the common roll of advocates all alterations and additions communicated to the Bar Council of India under section 19 by a State Bar Council.
21.Disputes regarding seniority.- (1) Where the date of seniority of two or more persons is the same, the one senior in age shall be reckoned as senior to the other.
(2) Subject as aforesaid, if any dispute arises with respect to the seniority of any person, it shall be referred,—
(a) if the dispute relates to seniority in a State roll, to the State Bar Council;
(b) if the dispute relates to seniority in the common roll, to the Bar Council of India;
and the decision of the State Bar Council or the Bar Council of India, as the case may be, in respect of such dispute shall be final.
22.Certificate of enrolment.- There shall be issued a certificate of enrolment in the prescribed form to every person whose name is entered in any roll of advocates maintained under this Act.
23.Right of preaudience.- (1) The Attorney-General of India shall have pre-audience over all other advocates.
(2) Subject to the provisions of sub-section (1), the Solicitor-General of India shall have pre-audience over all other advocates.
(3) Subject to the provisions of sub-section (1) and (2), the Additional Solicitor-General of India shall have pre-audience over all other advocates.
(4) Subject to the provisions of sub-sections (1), (2) and (3) , the Advocate-General of any State shall have pre-audience over all other advocates, and the right of pre-audience among Advocates-General inter se shall be determined by their respective seniority.
(5) Subject as aforesaid—
(i) senior advocates shall have pre-audience over other advocates, and
(ii) the right of pre-audience of senior advocates inter se and other advocates inter se shall be determined by their respective seniority.
24.Persons who may be admitted as advocates on a state roll.- (1) Subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfils the following conditions, namely:–
(a) he is a citizen of India:
Provided that subject to the other provisions contained in this Act, a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practise law in that other country;
(b) he has completed the age of twenty-one years;
(c) he has obtained a degree in law–
(i) before the appointed day, from any University in the territory of India; or
(ii) before the 15th day of August, 1947, from any University in any area which was comprised before that date within India as defined by the Government of India Act, 1935; or
(iii) after the appointed day, from any University in the territory of India or elsewhere, if the degree is recognised for the purposes of this Act by the Bar Council of India; or
he is a barrister;
(d) he has undergone a course of a training in law and passed an examination after such training both of which shall be prescribed by the State Bar Council:
Provided that this clause shall not apply to—-
(i) a barrister who has received practical training in England or a person who has obtained a degree in law from any University in India before the appointed day;
(ii) any person who has for at least two years held a judicial office in the territory of India or is a member of the Central Legal Service;
(iii) any person who has for at least two years held a judicial office in any area which was comprised before the 15th day of August, 1947,within India as defined in the Government of India Act, 1935, or has been an advocate of any High Court in any such area;
(iv) any person who has practised before any High Court and who has discontinued practice by reason of his taking up employment under the Government, a local authority or any other person; and
(v) any other class of persons who by reason of their legal training or experience are declared by the Bar Council of India to be exempt from the provisions of this clause;
(e) he fulfils such other conditions as may be specified in the rules made by the State Bar Council under this Chapter.
(f) he has paid an enrolment fee of two hundred and fifty rupees to the State Bar Council.
(2) Notwithstanding anything contained in sub-section (1) , a vakil, pleader or an attorney who is a law graduate, or who is not a law graduate but was entitled to be enrolled as an advocate of a High Court immediately before the appointed day under any law then in force, may be admitted as an advocate on a State roll if he—
(a) makes an application for such enrolment in accordance with the provisions of this Act, not later than two years from the appointed day; and
(b) fulfils the conditions specified in clauses (a) , (b) , (e) and (f) of sub-section (1).
25.Authority to whom applications for enrolment may be made.- An application for admission as an advocate shall be made in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposes to practise.
26.Disposal of applications for admission as an advocate.- (1) A State Bar Council shall refer every application for admission as an advocate to its enrolment committee, and subject to the provisions of sub-sections (2) and (3) , such committee shall dispose of the application in the prescribed manner.
(2) Where the enrolment committee of a State Bar Council proposes to refuse any such application, it shall refer the application for opinion to the Bar Council of India and every such reference shall be accompanied by a statement of the grounds in support of the refusal of the application.
(3) The enrolment committee of a State Bar Council shall dispose of any application referred to the Bar Council of India under sub-section (2) in conformity with the opinion of the Bar Council of India.
27.Application once refused not to be entertained by another Bar Council except in certain circumstances.- Where a State Bar Council has refused the application of any person for admission as an advocate on its roll, no other State Bar Council shall entertain an application for admission of such person as an advocate on its roll, except with the previous consent in writing of the State Bar Council which refused the application and of the Bar Council of India.
28.Power to make rules.- (1) A State Bar Council may make rules to carry out the purposes of this Chapter.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for—
(a) the time within which and the manner in which an intention to practise within the jurisdiction of the Bar Council shall be expressed;
(b) a course of practical training in law and the examination to be passed after such training for admission as an advocate on the roll of the Bar Council;
(c) the form in which an application shall be made to the Bar Council for admission as an advocate on its roll and the manner in which such application shall be disposed of by the enrolment committee of the Bar Council;
(d) the conditions subject to which a person may be admitted as an advocate on any such roll;
(e) the instalments in which the enrolment fee may be paid.
(3) No rules made under this Chapter shall have effect unless they have been approved by the Bar Council of India.
CHAPTER IV
RIGHT TO PRACTISE
29.advocates to be the only recognised class of persons entitled to practice law.- Subject to the provisions of this Act and any rules made there-under, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.
30.Right of advocates to practice.- Subject to the provisions of this Act, every advocate whose name is entered in the common roll shall be entitled a of right to practise throughout the territories to which this Act extends,—
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.
31.Special provision for attorneys.- Notwithstanding anything contained in sections 29 and 30, the High Court at Calcutta or the High Court at Bombay may provide for the admission of proper persons to be attorneys and shall have power to remove or to suspend from practice on reasonable cause, any such attorney.
32.Power of court to permit appearances in particular cases.- Notwithstanding anything contained in this Chapter, any Court, authority or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.
33.Advocates alone entitled to practice.- Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any au
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