GOVERNMENT OF INDIA
LAW COMMISSION OF INDIA
The Advocates Act, 1961 (Regulation of Legal Profession)
Dr. Justice B.S. Chauhan
former Judge Supreme Court of India
Law Commission of India
Government of India
Hindustan Times House
K,G. Marg, New Delhi-110 001
Telephone : 23736758, Fax : 23355741
D.O.No.6(3)/297/2016-LC(LS) Dated: March 23, 2017,
Dear Shri Ravi Shankar Prasad Ji,
The Supreme Court in Mahipal Singh Rana v. State of U.P. (AIR 2016 SC 3302) while hearing the appeal in the matter of criminal contempt for intimidating and threatening a Civil Judge (Senior Division) by an advocate expressed its concern over unsatisfactory regulatory mechanism governing the advocates and observed that there was an urgent need to review the provisions of the Advocates Act, 1961, particularly dealing with the regulatory mechanism for the legal profession and other identical issues in consultation with all concerned. Accordingly the matter was referred to the Law uornrnission of India asking to go into all relevant aspects relating to regulation of the legal profession and submit its report.
2. The Law Commission invited suggestions from all stakeholders on the issue under examination and as to how the system could be improved. In particular, the Law Commission requested the Bar Council of India the highest body in the hierarchy under the Advocates Act, to send their views/suggestions on review of the Advocates Act. The Registrar General of all High Courts, the State Bar Councils, Supreme Court Bar Association and Supreme Court Advocates on Record Association were requested to send their suggestions on the subject matter under examination.
3.On 10th March, 2017, the Bar Council of India made comprehensive recommendations on various issues relating to the Advocates Act and also submitted a draft bill, in a comparative statement, for consideration of the Commission. The BCI was of the view that in addition to the regulatory mechanism, other inter-related issue i.e. constitution of the BCI and the State Bar Councils are required to be revisited.
4. A large number of stakeholders have suggested that the Dar Council of India as well as the State Bar Councils must have some non-lawyers as members as provided in other professional bodies. The Medical Council of India, the Council of Institute of Chartered Accountants, and trie Council of Architects provide for representation by respective non-professionals also. Therefore, the Commission has accepted this concept for the Bar Councils to a limited extent.
5. The Law Commission, while reviewing the Advocates Act, felt that the conduct of the advocates, directly as well indirectly affects the functioning of the courts, and thereby contributes to the pendency of cases. The Commission felt that some provisions would be necessary to regulate the conduct of advocates in the court, which affects the functioning of the court as well as the expectations of the aggrieved, alike. Keeping this in view, all the High Courts through the Chief Justices were requested to send data on loss of working days by call of strikes in their respective jurisdictions, during the last five years. The Commission was astonished on going through the responses received pursuant to its request, as it was found that the strikes by the advocates were rampant throughout the length and breadth of the country with little variation in degree. The Commission deliberated upon all suggestions that have been received from all stakeholders throughout the country and hence come to the conclusion that the proposal to reform the Advocates Act has become imperative.
6. The Commission, therefore, recommends that comprehensive amendment should be brought forth in the Advocates Act, not only keeping in view the present requirements, but such other requirements that may arise in future for the better management and regulation of the legal profession. A report titled “The Advocates Act, 1961 (Regulation of Legal Profession)” is placed below for consideration of the Government. With a view to facilitate the initiative of taking forward the reforms in legal profession, the Law Commission has prepared The Advocates (Amendment) Bill, 2017 which placed at Annexure-III of this Report.
7. The Commission acknowledges the commendable assistance provided by Ms. Sakshi Vijay, Sh. Arijeet Ghosh and Sh. Lalit Panda, Consultants while working on this project.
[Dr. Justice B.S. Chauhan]
Shri Ravi Shankar Prasad
Hon’ble Minister for Law and Justice Government of India
New Delhi – 110 115
The Advocates Act, 1961: Regulation of Legal Profession
Table of Contents
|I||Background – Inception of the Legal Profession||1-2|
|II||Advent of the Constitution||3-4|
|III||Era of the Advocates Act, 1961||5-6|
|IV||Period of Aberration||7-8|
|V||Judicial Pronouncements and the Law||9-10|
|VI||Law Commission’s Initiative||11-12|
|VII||Loss of Courts’ Working Days : A Staggering Fact||13-14|
|VIII||Supreme Court Judgements on Strike – Reprehensible act||15-23|
|IX||Denouncing the Contemptuous acts of Advocates||24-29|
|X||Propriety of performing public functions by convicted persons||30-32|
|XI||Advocacy Lurking in the shadows||33|
|XII||Legal Education in India||34-39|
|C||Reports of previous Law Commissions||36-37|
|XIII||Pre-enrolment Training of Advocates||40|
|XIV||Prospects of Foreign Law Firms and Lawyers in India||41-45|
|XV||Need for Defining Misconduct||46-47|
|XVI||The Relevance of Framework of Regulation of Legal Profession in the United Kingdom||48-51|
|XVII||Need of Reviewing Regulatory Mechanism||52-56|
|I||Bar Council of India – Proposed Amendments to the Advocates Act, 1961||57-87|
|II||Analysis of the Responses Received by the Law Commission of India||88-92|
|III||The Advocates (Amendment) Bill, 2017||93-112|