Advocate Rajnish R. Singla

“Unauthorized practice of law” (UPL) is an act sometimes prohibited by statute, regulation, or court rules.

Definition

The definition of “unauthorized practice of law” is variable, and is often conclusory and tautological, i.e., it is the doing of a lawyers or counsellor’s work by a non-lawyer for money. There is some agreement that appearing in a legally constituted court in a legal proceeding to represent clients (particularly for a fee) is considered to be unauthorized practice of law. But other variations are subject to interpretation and conflicting regulation, particularly as to the scope and breadth of the prohibition.

Ballentine’s Law Dictionary defines unauthorized practice of law as “Conduct the practice of law without the license required by the law”

Black’s Law Dictionary defines unauthorized practice of law as “The practice of law by a person, typically a non lawyer, who has not been licensed or admitted to practice law in a given jurisdiction.

QUERIES ;

  1. Definition of Persons entitled to practice law.
  2. Definition and Scope of what constitutes Practice of law.
  3. In case someone practices law without due license, what is the remedy against such person?
  4. In case such person is a Chartered Accountant, is there restriction under ICAI or similar norms against practicing two professions ?
  5. In case such person is a Company Secretary, is there restriction under ICSI or similar norms against practicing two professions ?
  6. In case such an entity is a foreign entity or a affiliate/ branch/ subsidiary etc of a foreign entity, can RBI be approached to stop them and cancel their license?
  7. In case certain enactments such as Income Tax Act, Value Added Tax Act etc. allows to appear before authorities is a right to practice law ?
  8. What is the objective of The Chartered Accountants Act, 1949 and The Advocates Act, 1961?
  9. Are Advocates and Chartered Accountants equal ?

OPINION ;

Query No. 1: Definition of Persons entitled to practice law.

The Advocates Act 1961, Section 29, 30, 32, 33 and Section 55 reads as follows:

Section- 29 Advocates to be the only recognised class of persons entitled to practise law.—Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practice the profession of law, namely, advocates.

Section- 30 Right of advocates to practise.—Subject to provisions of this Act, every advocate whose name is entered in the 1[State roll] shall be entitled as 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 practise.”

Section- 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.”

Section- 33 Advocates alone entitled to practise.—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 authority or person unless he is enrolled as an advocate under this Act.

Section- 55. Rights of certain existing legal practitioners not affected.

Notwithstanding anything contained in this Act,

(a) every pleader or Vakil practising as such immediately before the date on which Chapter IV comes into force (hereinafter in this Section- referred to as the said date) by virtue of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (17 of 1920), or any other law who does not elect to be, or is not qualified to be, enrolled as an advocate under this Act.

2[(c) every Mukhtiar practising as such immediately before the said date by virtue of the provisions of the Legal Practitioners Act, 1879, or any other law, who does not elect to be, or is not qualified to be, enrolled as an advocate under this Act;

(d) every revenue agent practising as such immediately before the said date by virtue of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), or any other law,] shall, notwithstanding the repeal by this Act of the relevant provisions of the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (Bombay Act 17 of 1920), or other law, continue to enjoy the same right as respects practice in any court or revenue office or before any authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed or, as the case may be, to which he was subject immediately before the said date and accordingly the relevant provisions of the Acts or law aforesaid shall have effect in relation to such persons as if they had not been repealed.

Further Rule 2 of The Bar Council of India Rules under Part VI, Chapter III

Rule 2 Conditions for right to Practice states as follows:

“An advocate shall not enter into partnership or any other arrangement for sharing remuneration with any person or legal practitioner who is not an advocate.”

Therefore, the Act and BC! Rules also recognizes other class of persons as well who can practise law namely – “Legal Practitioner“.

The definition of legal practitioner is provided under Section- 2(i) of the Act which says

“Legal Practitioner means an advocate or vakil or any High Court, a pleader, mukhtar or revenue agent.”

However, apart from the above, The Practise of Law can be divided into two categories broadly

1) Litigious matters; and

2) Non-litigious matters.

Practically speaking, there are certain class of legal professional who have obtained a bachelor’s degree of law from the recognized institutes across India but they do not wish to en roll themselves as advocate in the concerned state rolls as they do not intend to practice law before any of the courts, tribunals and persons as provided under Section 30 of the Act.

The Act, by virtue of en rollment as an advocate gives right to audience before the courts, tribunals and persons. Therefore, corollary to this is that if a person does not en roll, he waives his right of audience before the courts, tribunals and persons. However, it is correct that the Act does not expressly

recognize such a class of persons and hence this anomalous situation has occurred wherein legality of not enrolled class of persons doing non-litigious work has arisen.

Further Article 19(1)(g) of The Constitution of India provides every citizen have a right to practice and carry their own choice of business and profession. There cannot be any unreasonable restriction on such freedom guaranteed under the Constitution until and unless that restriction is reasonable and addressed in the Advocates Act which governs ‘practice of law’ in India.

Recently it has been observed by The Apex Court in N.K. Bajpai V/s Union of India 2012 (2) Supreme 417, ” the right to practice is not an absolute right which is free of restriction and is without any limitation. There are persons like Mukhtiars and other, who were earlier entitled to practice before the Courts, but the Advocates Act itself took away the right to practice which was available to them prior to its coming into farce. Thus, the Advocates Act placed a complete prohibition upon the right to practice of those persons who were not Advocates enrolled with the State Bar Council.

Therefore, The right to practices, which is not only a statutory right under the provisions of the Advocates Act but would also be a fundamental right under Article 19(1)(g) of the Constitution is subject to responsible restrictions.”

OPINION ;

Query No. 2: Definition and scope of what constitutes Practice of law.

Part IV of Bar Council of India Rules provides for rules of legal education and Rule 2 defines practice of law as follows:

“Rule 2 (xx) ‘Practice of law’ means and includes‑

(a) practising before the Court, Tribunal, Authority, Regulator, Administrative Body or Officer and any Quasi Judicial and Administrative Body;

(b) giving legal advice either individually or from a law firm either orally or in writing;

(c) giving legal advice to any government, international body or representing any international dispute resolution bodies including International Court of Justice; and

(d) engaged in Legal Drafting and participating in any Legal Proceedings; and

(e) representing in Arbitration Proceedings or any other ADR approved by law.”

Therefore, it is also clear from the above that apart from practicing before the courts, tribunals and persons, there are other aspects also which fall under the definition of the expression ‘practice of law’. Undoubtedly, The Advocates Act, 1961 regulates and governs the ‘practice of law’ whether litigious or nonlitigious practice.

The Act under Section- 33 provides that a person not enrolled as an advocate is not entitled to practice before court. However, the Act lacks clarity on the aspect that whether the non-litigious category of work (i.e. work that does not involve practice before court) could only be done by the advocates enrolled under the Act or it may be performed by those who have chosen not to enroll themselves or might have been surrendered their enrollment under the Act. Therefore, to arrive at the correct position of law, the interpretations of the court of law must be resorted and referred. It appears from the judicial interpretation that the law recognizes the other category of persons who are involved in the non-litigious work and are not enrolled as advocate under the Act but certainly subject to provisions of the Advocates Act, 1961.

Further, The Bombay High Court in the case of Lawyers Collective vs. BC! (2010 (2) Bom CR 753) laid down that: “the persons practicing the profession of law whether in litigious matters or non litigious matters would be governed be governed by the 1961 Act and the Bar Councils framed there under,

apart from the powers of the Court to take appropriate action against advocates who are found guilty of professional misconduct.”

Further the Bombay high Court held that: “the expressions ‘to practise the profession of law’ in Section-29 of the 1961 Act is wide enough to cover the persons practising in litigious matters as well as persons practising in non litigious matters and, therefore, to practise in non litigious matters in India, the respondent Nos. 12 to 14 were bound to follow the provisions contained in the 1961 Act.”

In the case of Legal Practice Board v. Wilhelmus Van Der Zwaan reported in (2002) WASC 133, the Supreme Court of Western Australia, has held that:

“The expression “administration of law” in Section- 77 is to be read as meaning “the practice of law” or “the practice of the law”. The practice of the law includes the giving of legal advice and counsel to others as to their rights and obligations under the law, and the preparation of legal instruments by which legal rights are either obtained, Secured or given away, although such matters may not then, or ever, be the subject of proceedings in a court. If the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the person giving such advise possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct, constitutes the practice of the law.

Where an instrument is to be shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing laws in order to ensure a specific result and to guard against others, more than the knowledge of the layman is required. A charge for such service brings it within the term “practice of the law”.

OPINION ;

Query No. 3: In case someone practices law without due license, what is the remedy against such person?

As stated herein above the practice of law entails, under the Rule 2(xx) of Part IV of Bar Council of India Rules, is as follows:

(a)practising before the Court, Tribunal, Authority, Regulator, Administrative Body or Officer and any Quasi Judicial and Administrative Body;

(b) giving legal advice either individually or from a law firm either orally or in writing;

(c) giving legal advice to any government, international body or representing any international dispute resolution bodies including International Court of Justice; and

(d) engaged in Legal Drafting and participating in any Legal Proceedings; and

(e) representing in Arbitration Proceedings or any other ADR approved by law.”

It appears from the above that non-litigious work is also covered under the definition in addition to litigious work which certainly involves practice before the courts of law. There is no ambiguity as far as the requirement to be enrolled as an advocate before appearing and/or practicing before the courts in litigious work, however, it may defer in cases of non-litigious work as the same does not require appearance and /or practice before any court of law and the requirement to be enrolled compulsorily as an advocate under the Act for such category of the work has not been expressly contemplated.

Further, the Advocates Act either provides for the penalty to the advocate for their misconduct under Section 35 or for punishment to those who are illegally found to be practicing before any of the courts of law under Section 45. However, the Act is silent on the aspect of punishing / those who are found to be practicing law apart from appearing/practicing before any of the courts of law. Thus, it may inferred that

the persons who are practicing law without the license (i.e. enrolment as advocate) are not violating the provisions of the Act until and unless they are not appearing /practicing before the courts of law.

The relevant provisions of The Advocates Act, 1961 are as follows:

Section 29 of the Advocates Act 1961, reads as follows:

“Advocates to be the only recognized class of persons entitled to practice law- Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practice law the profession of law, namely, advocates”

Section 33 of the Advocates Act 1961, reads as follows:

“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 practice in any court or before any authority or person unless he is enrolled as an advocate under this Act.” Section 35 of the Advocates Act 1961 deals with “Punishment for advocates for misconduct-………………………………………………………………………………………………. If
Section 45 of the Advocates Act 1961, reads as follows:

“Penalty for persons illegally practicing in courts and before other authorities- Any person who practices in any court or before any authority or person, in or before whom he is not entitled to practice under the provisions of this Act, shall be punishable with imprisonment for a term which may extend to six months.”

Further, The Bombay High Court in Lawyers Collective vs. BC! [2010 91120 Born L.R. 32] [(2010) 2 Comp LJ 108 (Born)] has taken a view that the litigious as well as non-litigious matters are covered under the expression `to practice the profession of law’ used in Section 29 of the Act.

Thus, the Court has interpreted that the persons person doing nonlitigious work are also compulsorily required to enrolled as an advocate under the Act. The Court has held as follows:

“It has been held that the expression ‘ to practice the profession of law’ in Section- 29 of the 1961 Act is wide enough to cover the persons practicing in the litigious matters as well as non litigious matters in India therefore Section 35 would apply to persons practicing in litigious matters as well as nonlitigious matters.”

In view of the aforesaid judgment of the Bombay high Court and interpretation rendered by the Court, every person practicing law, litigious or non-litigious work, is mandatorily required to be enrolled himself as an advocate under the Act or otherwise he would be liable for the punishment under Section 45 of the Act.

OPINION ;

Query No. 4: If a person is not en rolled under The Advocates Act, 1961 and in case such person is a Chartered Accountant, is there a bar under ICAI or similar norms against practicing two professions?

A chartered accountant is barred from practicing two professions. Any person who is a chartered accountant and is engaged in any other business or occupation will be guilty of professional misconduct under the Chartered Accountants Act, 1949.

Part I of the First Schedule of the Chartered Accountants Act, 1949 deals with:

Professional misconduct in relation to chartered accountants in practice. Clause 11 of Part I states that: “A chartered accountant in practice shall be deemed to be guilty of professional misconduct if he engages in any business or occupation other than the profession of chartered accountant unless permitted by the Council so to engage:

Provided that nothing contained herein shall disentitle a chartered accountant from being a director of a company (not being a managing director or a whole time director) unless he or any of his partners is interested in such company as an auditor.”

Section 21-A of the Chartered Accountants Act, 1949 pertains to the Board of Discipline. Clause 3 of Section- 21-A states that:

‘Where the Board of Discipline is of the opinion that a member is guilty of a professional or other misconduct mentioned in First Schedule, it shall afford to the member an opportunity of being heard before making any order against him and may there after take any one or more of the following actions, namely:‑

a) reprimand the member;

b) remove the name of the member from the Register up to a period of three months;

c) impose such fine as it may think fit which may extend to Rs. One Lakh.”

CA Ethics Plus Serial no. 24 is as follows

24. Can a Chartered Accountant in practice also practice as an Advocate ?

Yes, Council direction under Clause (7) of Part I of the First Schedule to the Act prescribes that a Chartered Accountant in practice who is otherwise eligible may practice as Advocate subject to the permission of the Bar Council but in such cases, he should not use designation ‘Chartered Accountant” in respect of the matters involving the practice as an Advocate. In respect of other matters he should use the designation “Chartered Accountant” but he should not use the designation “Chartered Accountant” and “Advocate” simultaneously.

The Chartered Accountants appear on the basis of Power of Attorney before various authorities where as Advocates appear on the basis of Vakalatnama before various authorities. Chartered Accountants pay Stamp duty on Power of Attorney where as Advocates pay court fee on Vakalatnama.

The Full Bench of Punjab High Court has observed in Ganpat V/s Prem Singh (1912) 15 India Cases 122 that all sums realised from count fees are devoted, in the first instance to the maintenance of courts, while sums realised from the stamps are devoted to other purposes.

The issue of Vakalatnama V/s Power of Attorney came for consideration before the Apex Court in M/s Goa Antibiotics & Pharmaceuticals Ltd. Vs. R.K. Chawla & Another 2011 (3) KLT 499 (SC) “A natural person can, of course, appear in person and argue his own case personally but he cannot

give a power of attorney to anyone other than a person who is enrolled as an advocate to appear on his behalf. To hold otherwise would be to defeat the provisions of the Advocates Act.”

Both the enactments are regulatory in nature, having prohibitory provisions.

Therefore, the Attorney who is not an Advocate cannot appear before the court and plead for anybody. To appear before the court and plead for anybody is the pure prerogative of the Advocate only.

While one can appear for self, if anybody else appoints attorney, he can do only certain things before the court on the behalf of the person who appoints him as his attorney – that is submitting the paper to the court etc.

OPINION;

Query No. 5: If a person is not enrolled under The Advocates Act and in case such person is a company Secretary, is there a bar under ICSI or similar norms against practicing two professions?

Regulation 168 of ICSI dated 24.04.1990: Company Secretaries in practice not to engage in any other business or occupation:

“(1) A Company Secretary in practice shall not engage in any business or occupation other than the profession of Company Secretary unless it is permitted by a general or specific resolution of the Council:

Provided that a Company Secretary in practice who at the commencement of the act was engaged in any business or occupation other than the profession of Company Secretary may continue to engage himself in such business or occupation for a period of six months from the commencement of these Regulations.

(2) Without prejudice to the discretion vested in the council in this behalf, a Company Secretary in practice may act as a Secretary, trustee, executor, administrator, arbitrator, receiver, appraiser, valuer, internal auditor, management auditor, management consultant or as a representative on financial matters including taxation and may take up an appointment that may be made by the Central or any State Government, court of Law, Labour Tribunals, or any other statutory authority.”

The validity of Regulation 168 of ICSI was challenged in the case of T. U. Khatri vs. ICS [(2002) 122 Taxman 532 Boni].

‘Whether there is anything wrong in the decision dated 24-4-1990 taken by the Institute of Company Secretaries of India (herein after referred to as “the Institute”) not to allow the advocates to practice as company secretaries is the principal question in these two writ petitions and, therefore, these writ petitions were heard together and are disposed of by this common judgment.”

“A Company Secretary in practice is a serious profession which requires whole-time devotion and focus. The standards of advocacy are high and exacting as well. So what is wrong if the Institute, which is the regulatory body of Company Secretaries, has taken the decision that a Company Secretary in practice shall not be allowed to practise law as by such permission, the professional proficiency expected of a Company Secretary may clash with the exacting standards of advocacy. Both professions, Company Secretary in practice and law, assume certain responsibilities for the competence of its members and need whole-time devotion and observation of certain standards, intellectual and ethical, and, therefore, it is but reasonable that a person eligible to practice law and as a Company Secretary restricts himself to one profession and does not carry on both professions simultaneously and such restriction imposed by the council of the Institute in conformity with regulations and demand of profession of Company Secretary in practice cannot be faulted.”

It has been held in this judgment that decision taken by the institute on 24.04.1990 does not suffer from legal infirmity.

Therefore, Company Secretaries in practice cannot engage themselves in any other profession simultaneously.

Further, It was held in (Dr.) Haniraj L. Chulani V/s Bar Council of Maharashtra & Goa (1996) 3 SCC 342

“The appellant is not denied his right to livelihood. he is already a professional carrying on the profession of a medical practitioner. he wants to have a second string to his bow. He wants simultaneously t be permitted to practise law with a view to earn additional or more livelihood. So far as his aforesaid demand is concern the impugned rule requires that unless he gives up that other practice and joins wholeheartly the legal profession he cannot to be permitted to enter the legal profession”.

Recently it was observed by The Apex Court in Madras Bar Association V/s Union of India, [Transferred Case (C) No.15012006, decided on 25.09.2014] Supreme Court.

“Keeping in mind the fact, that in terms of Section 15 of the NU Act, the NU would hear appeals from the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) only on

substantial questions of law, it is difficult for us to appreciate the propriety of representation, on behalf of a party to an appeal, through either Chartered Accountants or Company Secretaries, before the NTT. The determination at the hands of the NTT is shorn of factual disputes. It has to decide only substantial questions of law. In our understanding, Chartered Accountants and Company Secretaries would at best be specialists in understanding and explaining issues pertaining to accounts. These issues would, fall purely within the realm of facts. We find it difficult to accept the prayer made by the Company Secretaries to allow them, to represent a party to an appeal before the NTT. Even insofar as the Chartered Accountants are concerned, we are constrained to hold that allowing them to appear on behalf of a party before the NTT, would be unacceptable in law. We accordingly reject the claim of Company Secretaries, to represent a party before the NTT. Accordingly the prayer made by Company Secretaries in Writ Petition (Civil) no. 621 of 2007 is hereby declined. While recording the above conclusion, we simultaneously hold Section 13(1), insofar as it allows Chartered Accountants to represent a party to an appeal before the NTT, as unconstitutional and unsustainable in law. “

OPINION;

Query No. 6: If a person is not en rolled under the Advocates Act and in case such person/an entity is a foreign entity or an affiliate/ branch/subsidiary etc of a foreign entity, can RBI be approached to stop them/cancel their licenses?

Regulations No. 3 of the Foreign Exchange Management (Establishment In India of Branch or office or other place of business) Regulations, 2000

Provides for prohibition against establishing branch office in India. “No person resident outside India shall, without prior approval of the Reserve bank, establish in India a branch or a liaison office or any other place of business by whatever name called.”

Further the regulation provides that the foreign entity can not undertake any other activities except what are specifically permitted by the Reserve Bank of India. Therefore if the foreign entity found to be practicing law without due license and permission of RBI, the license /permission of such entity will be cancelled.

Section- 13 of the Foreign Exchange Management Act, 1999-

“Provides for penalties if any person contravenes any provision of this Act, rules, regulation notification or direction.”

Section- 14 of the Foreign Exchange Management Act, 1999-

“Enforcement of the order of Adjudicating Authority appointed under Section- 16.”

Appeal lies to Special Director (Section-17) Appellate Tribunal (Section-19) High Court (Section- 35).

Section- 36 of the Foreign Exchange Management Act, 1999 provides for: “Power of search and seizure of Directorate of Enforcement.”

Further it was held in Bar Council of India V/s A. K. Balaji & Others interim order of Hon’ble Supreme Court dated 04/07/2012

“In the meanwhile, it is clarified that Reserve Bank of India shall not grant any permission to foreign law firm to open liaison offices in India under section 29 of the foreign Exchange Regulation Act, 1973. It is also clarified that the expression “to practice the profession of law” under Section 29 of the Advocates Act, 1961 covers the persons practicing litigious matters as well as not — litigious matters other than contemplated in para 63(ii) of the impugned order and, therefore, to practice in non- litigious matters in India the foreign law firms, by L. P. (Civil) No(s). 17150-17154/2012 whatever name called or described, shall be bound to follow the provisions contained in the Advocates Act, 1961.”

OPINION;

Query No. 7: . In case certain enactments such as Income Tax Act, Value Added Tax Act etc. allows certain persons to appear before authorities. Is a right to practice law ?

There is no doubt that certain enactments such as Income Tax Act, VAT Acts of various States have provisions of representation by certain persons such as — relative, person regularly employed, legal practitioner, accountant etc. But these enactments firstly allows only Appearance and Secondly these enactments cannot over ride specific provision of The Advocates Act, 1961. The Advocates Act confers statutory right to practice under section 30 which is brought into force only from 15.06.2011.

Basically these enactments entitles litigant a right of representation through others but do not create any right in favour of that persons, who may represent a litiganl.

The Honb’le Supreme Court has held in the case of L.M.Mahurkar V/s The Bar Council of Maharashtra, 101 STC 541.

It has been specifically held that the appearance is not equated to practice with the profession of law they can appear before the authorities for the purpose of giving / taking copies of documents or if there is any courting problem regarding certain entries in the books of a/c not of law. Hence they are not authorized to practice the profession of law

In this dictum of the large bench it has been held that “it may also pointed out that the construction suggested by appellant will lead to anomaly and must be avoided. After passing of the Advocate Act, only one class or persons is entitled to practice the profession of law, namely, advocates (section 29).

If the phrase “practice the profession of law” is equated to appear before the Sales Tax Authority in that event, a Chartered Accountant or a Cost Account or even a relative or an employee of an assess will not be entitled to appear before a Sales Tax Authority after the Advocate Act came into force. Not only that, it the contention of the appellant is accepted, after appointed date the sale tax practitioner who does not have a degree in law will not be entitled to be enrolled as an advocate, will not be able to practice the profession of law and consequently will not be able to appear before any sales tax authority. Notwithstanding the provision of section 71 of the Bombay Sales Tax Act.

This decision made it evident that a mere right to appear in tax matters, did not empower a person , either to be enrolled as an advocate or to argue matters of law as of right.

OPINION ;

Query No. 8: What is the objective of The Chartered Accountants Act, 1949 and The Advocates Act, 1961?

Objectives of an Act, can best be understood from the Preamble of the Act. Therefore we have to see preamble of both the Acts.

Preamble of The Chartered Accountants Act is as follows

“An Act to make provision for the regulation of the profession of chartered accountants

Whereas it is expedient to make provision for the regulation of the profession of chartered accountants and for that purpose to establish an Institute of Chartered Accountants;

From the perusal of Preamble of the Chartered Accountants Act it is very much clear that the above Act was enacted with clear vision of regulating of the profession of chartered accountants and for this purpose establishing Institute of Chartered Accountants. Meaning there by that Institute of Chartered Accountants is a regulatory body regulate the profession of chartered accountancy only.

Further Council of the Institute was established under section 9 and its functions are described in section 15. From the perusal of above sections it is clear that Institute has regulatory powers only.

It has been observed by Central Information Commission in Mr. Satish Jadon vs Ministry of Corporate Affairs on 4 July, 2013 – “The Respondents, during the hearing, submit that the ICAI is a regulatory body of Chartered Accountants in India discharging quasi judicial function under the Chartered Accountants Act, 1949.They are also the Disciplinary Authority for the matters related to the complaint regarding misconduct against erring members.”

Preamble of The Advocates Act Act is as follows

“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;

From the perusal of Preamble of the Advocates Act it is very much clear that the above Act was enacted with clear vision of amending and consolidating law related to legal practitioners and for constituting Bar Councils.

Further State Bar Councils were formed under section 3 and their functions are described in section 6. From the perusal of above sections it is clear that Bar has regulatory powers as well as under an obligation to safeguard the rights, privileges and interests of advocates on their roll.

It has been observed by Hon’ble Karnataka High Court in Prakash Joseph v. MIS Malabar Cement Ltd. & Others (2014) 4 KU 357 “In other words , s 30 does not confer upon a litigant a right to legal representation. It only protects the right of an advocate to practice.”

Further Hon’ble The Punjab & Haryana High Court, in Paramjit Kumar Singh v. Union of India AIR 2014 P&H 121 while dealing with the bar against legal representation created under s 17 of the Maintenance and Welfare of Parents and Senior citizens Act, 2007 held the same to be inapplicable, since s 30 was brought in force after enactment of the said Act, thus making it a posterior law. Accordingly it was held that s 17 would not act as an absolute bar.

OPINION ;

Query No. 9: Are Advocates and Chartered Accountants equal ?

Advocates and Chartered Accountants are not equal. The two professions are governed by two different Acts.

Article 14 of The Constitution of India is as follows

14. Equality before Law.- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Therefore, if any State law treats un equals as equals, that is ultra vires.

It has been observed by The Apex Court in St. Stephen’s college v. University of Delhi (1992) 1 SCC 558 – “Unequals are not only permitted to be treated unequally but also they have to be so treated.”

Further, It has been observed by The Apex Court in Onkar Lal Bajaj v. Union of India, AIR 2003 SC 2562 – “The equal treatment to unequals is nothing but inequality. To put both categories-tainted and the rest –at par is wholly unjustified , arbitrary, un constitutional being violative of article 14 of the Constitution.”

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5 responses to “Unauthorised Practice of Law – A Study”

  1. Rakesh Bansal Adv. (Tax India)9250696505 says:

    (1) Legal Practitioners are also authorized to prepare return of income & represent assesses U/s.288(2) of Income-Tax Act read with Rule 12A. Rule 12A inserted by Notification No.2029 Dt.13.6.1962, require Legal Practitioner covered U/s 288(2) to furnish report on the examination of assesses account books & documents in the assessment proceedings. Here question arises when such audit clause already present in Rule 12A of IT Rules, why once again Section 44AB inserted in Income-Tax Act.

    (2) When Legal Practitioners are authorized to prepare return of income under 12A of Income-Tax Rules, it is presumed that such persons possess knowledge of Income-Tax law read with accounting principle prescribed U/s 145 of Income-Tax Act. Information to be furnished in Certificates/Reports under Income-Tax Act amounts to practice of law as it require interpretation of law more & basic accounting knowledge sufficient.

    (3) When Legal Practitioners are the only class of persons entitled to practice law U/s 29 of Advocates Act, 1961 (Law Professionals), there is no justification in
    prohibiting Advocates to issue Certificates or Reports in Income-Tax Act. (This is well supported by Bar Council of India Vs. A.K.Balaji SLP (Civil) 17150-17154/2012)

  2. Rakesh Bansal Adv. (Tax India Group) says:

    I do 100% agree with the view of Rajnish Singla ji in this article. I am of the further opinion that such orders passed under proposed GST Law can not be appealed before the appellate authority.

  3. RAKESH BANSAL ADV.(Delhi) says:

    Other than Advocates can not appear before revenue authority on own motion by the strength of power of attorney against the notice issued to the client. But other than Advocates can definitely appear before revenue authority against specific summons issued to him.

  4. gajanan khare says:

    Supreme Court of India
    L.M. Mahurkar vs The Bar Council Of Maharashtra And … on 8 April, 1996
    Equivalent citations: 1996 AIR 1602, JT 1996 (4) 224

    It may also be pointed out that the construction suggested by the appellant will lead to anomaly and must be avoided. After passing of the Advocates Act, only one class of persons is entitled to practise the profession of law, namely, advocates (Section 29). If the phrase ‘practise the profession of law’ is equated to appearance before the sales tax authority, in that event, a chartered accountant or a cost accountant or even a relative or an employee of an assessee will not be entitled to appear before a sales tax authority after the Advocates Act came into force. Not only that, if the contention of the appellant is accepted, after the appointed date the sales tax practitioner who does not have a degree in law will not be entitled to be enrolled as an advocate, will not be able to practise the profession of law and consequently will not be able to appear before any Sales tax authority notwithstanding the provisions of Section 71 of the Bombay Sales Tax Act.

  5. VINOD MITTAL says:

    SINGH SAHIB YOU HAVE RIGHTLY UNFOLDED THE LAW AND PRACTICE OF LAW, IT IS VERY INFORMATIVE

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