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The State Bar Council and Advocates – A Reality

Indian Judicial system is partly legacy of the British Rule in India. The best thing which the Britishers gave to this country is the judicial system. The basic feature of the administration of justice is adversary system of trial. Both the parties place their cases before the court and the Judge sits only as an umpire and does not play any investigative role. Therefore, the judiciary consists of both Bench and Bar and the latter plays an important role in entire system.
Advocate Rajnish R. Singla

Legal profession in India, the second largest in the world.

Indian Judicial system is partly legacy of the British Rule in India. The best thing which the Britishers gave to this country is the judicial system. The basic feature of the administration of justice is adversary system of trial. Both the parties place their cases before the court and the Judge sits only as an umpire and does not play any investigative role. Therefore, the judiciary consists of both Bench and Bar and the latter plays an important role in entire system.

In order to implement the recommendations of the All India Bar Committee made in 1953 and the Report of the Law Commission regarding reforms in the administration of justice a Bill was drafted in the year 1959 which was ultimately passed by the Parliament (both the Houses ) and became the Advocates Act, 1961 after receipt of the President’s assent on the 19th May, 1961. It was a complete enactment giving autonomy to the Bar and creating a unified All India Bar. Under this Act, State Bar Councils were constituted for each State and one All India Bar Council the apex supervisory body of the Bar. Except an appeal before Supreme Court against the decision of Bar Council of India in disciplinary matters, the Bar Councils have complete autonomy in regulating enrolment to the Bar and the maintenance of professional etiquette.

The Advocates Act, 1961 is 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.

Under Section 29 read with Sections 17 and 24 of the Act, only Indian citizens who are enrolled with the State Bar Councils as advocates have the right to practise the profession of law in India. The Act has only created one class of persons entitled to practise the profession of law viz. Advocates who are enrolled in the rolls of the respective State Bar Council.

The State Bar Councils of have been constituted under Section 3 of The Advocates Act, 1961, is the apex professional body for advocates is concerned with the standards of legal profession and the equipment of those who seek entry into the profession.

The State Bar Councils have been conferred the functions under The Advocates Act to admit persons as advocates on its roll, to entertain and determine cases of misconduct against advocates on its roll, to safeguard the rights, privileges and interests of advocates on its roll and to do all things necessary for discharging the functions under the Act.

The Hon’ble Supreme Court in N. K. Bajpai v/s Union of India J.T. 2012(3) S.C. 354. “The Advocates Act, 1961 (hereinafter referred to as ‘the Advocates Act’) itself was introduced to implement the recommendations of the All India Bar Committee made in 1953. It aimed at establishment of an All India Bar Council, a common roll for the advocates and integration of the Bar into a single class of practitioners known as ‘advocates’. It was also to create autonomous Bar Councils, one for the whole of India and one for each State. The Advocates Act provides for various aspects of the legal profession. Under Sec.29 of the Advocates Acct, only one class of persons entitled to practice the profession of law, namely, Advocates. Section 30 of the Advocates Act provides that subject to the provisions of the Act, every advocate whose name is entered in the State rolls shall, as a matter of right, be entitled to practice throughout the territories to which this Act applies, in all Courts including the Supreme Court of India. Such an advocate would also be entitled to practice before any Tribunal or person legally authorized to take evidence and before any other authority or person before whom such an advocates is, by or under any law for the time being in force, entitled to practice, Section33 of the Advocates Act further states that except as otherwise provided in that 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 the Advocates Act. A bare reading of these provisions clearly shows that this is a statutory right given to an advocate to practice and an advocate alone is the person who can practice before the Courts, Tribunals, authorities and person. But this right is statutorily regulated by two conditions- one, that a person’s name should be on the State rolls and second. that he should be permitted by the law for the time being in force, to practice before any authority or person. Where the advocate has a right to appear before an authority or a person, that right can be denied by a law that may be framed by the competent Legislature. Thus, 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 force. 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.”

Thus, it is clear that that when an advocate of other country, who has not been got enrolled with State Bar Council of any State in India under the Advocates Act’1961, has not been permitted for “practice the profession of law” in India, then, why those persons who have not been enrolled as an advocate with Bar Council of any State in India are being permitted “to practice the profession of law”

The Hon’ble Bombay High Court in the case of Lawyers Collective v Bar Council of India (2010) 2 Comp. L.J 108 (Bom) has held:

“In the statements of Objects & Reasons for enacting the 1961 Act, it is stated that the main object of the Act is to establish All India Bar Council and a common roll of advocates and Advocate on the common roll having a right to practise in any part of the country and in any Court, including the Supreme Court. Thus, from the Statement of Objects and Reasons, it is seen that the 1961 Act is intended to apply to (one) persons practising the profession of law in any part of the country and (two) persons practising the profession of law in any Court including the Supreme Court. Thus, from the statement of objects and reasons it is evident that the 1961 Act is intended to apply not only to the persons practising before the Courts but it is also intended to apply to persons who are practising in non litigious matters outside the Court . Apart from the above, Section 29 of the 1961 Act specifically provides that from the appointed day, there shall be only one class of persons entitled to practise the profession of law, namely Advocates . It is apparent that prior to the 1961 Act there were different classes of persons entitled to practise the profession of law and from the appointed day all these class of persons practising the profession of law, would form one class, namely, advocates.”

The Hon’ble Supreme Court in the case of Bar Council of India v. Board of Management, Dayanand College of Law reported in (2007) 2 SCC 202 has held :

“It may not be correct to say that the Bar Council of India is totally unconcerned with the legal education, though primarily legal education may also be within the province of the universities. But, as the apex professional body, the Bar Council of India is concerned with the standards of the legal profession and the equipment of those who seek entry into that profession. The Bar Council of India is also thus concerned with the legal education in the country. Therefore, instead of taking a pedantic view of the situation, the State Government and the recommending authority are expected to ensure that the requirement set down by the Bar Council of India is also complied with.”

Thus, when efforts are being made to see that the legal profession stand tall in this fast changing world, it would be improper to hold that the 1961 Act and the Bar Council constituted there under have limited role to play in the field relating to practising the profession of law. It is not in dispute that once a person is enrolled as an advocate, he is entitled to practise the profession of law in litigious matters as well as non-litigious matters. If the argument of the respondents that the 1961 Act is restricted to the persons practising the profession of law in litigious matters is accepted, then an advocate found guilty of misconduct in performing his duties while practising in non-litigious matters cannot be punished under the 1961 Act. Similarly, where an advocate who is debarred for professional misconduct can merrily carry on the practise in non-litigious matters on the ground that the 1961 Act is not applicable to the persons practising the profession of law in non litigious matters. Such an argument which defeats the object of the 1961 Act cannot be accepted….

For all the aforesaid reasons, we hold that in the facts of the present case, the RBI was not justified in granting permission to the foreign law firms to open liaison offices in India under Section 29 of the 1973 Act. We further hold 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 . The petition is disposed of accordingly with no order as to costs.”

The Hon’ble Supreme Court in the case of Indian Council of Legal Aid and Advice v. Bar Council of India and another (1995) 1 SCC 732 has held:

“The Bar Councils are rejoined with the duty to act as sentinels of professional conduct and must ensure that the dignity and purity of the profession are in no way undermined. Its job is to uphold the standards of professional conduct and etiquette. Thus every State Bar Council of India has a public duty to perform, namely, to ensure that the monopoly of practise granted under the Act is not misused or abused by a person who is enrolled as an advocate. The Bar Councils have been created at the State level as well as the Central level not only to protect the rights, interests and privileges of its members but also to protect the litigating public by ensuring that high and noble traditions are maintained so that the purity and dignity of the profession arc not jeopardized . It is generally believed that members of the legal profession have certain social obligations;, e.g,to render ‘probono publico’ service to the poor and the under privileged. Since the duty of a lawyer is to assist the court in the administration of justice the practise of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct behaving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession. So far as the Bar Council of India is concerned, its functions are of a more general nature, e.g., to lay down standards of professional conduct and etiquette for advocates, to safeguard their rights, privileges and interests to supervise and. control the working of the State Bar Council, to promote legal education, to recognise universities, to organise legal aid to the poor and to perform all other functions conferred by or under the Act and do everything that may be necessary to discharge the functions enumerated in Section 7. Besides the above it too is required to exercise discipline and control over the members of the profession .”

The Hon’ble Supreme Court in the case of (Dr.) Haniraj L. Chulani vs Bar Council of Maharashtra & Goa (1996) 3 SCC 342 has held:

“The rules framed by the Bar Council of India especially relating to standards of professional conduct and etiquette clearly aim at securing high standards of competence in legal services and seek to strengthen professional relationships among its members and promote the welfare of the society as a whole . Specific norms have been laid down in respect of conduct of the persons practising the profession vis-a-vis the public, the court, the client, the opposite lawyer and professional brethren. Lawyer’s duty to train juniors and impart free legal aid to poor is part of the ethics. The code thus provides standards for identification and  measurement of professional deviance. As noted earlier the Act besides highlighting the essential functions of Bar Council of India provides for enforcement of the same and sets up disciplinary authorities to chastise and, if necessary, punish members of the profession for misconduct . The punishment may include suspension from practice as well as removal of the name from the roll of advocates. Section 49(1) confers power on the Bar Council of India to make rules, inter alia, for discharging its functions under the Act. Section 49(1)(ag) when read with Section 24 of the Act confers wide powers on the Bar Council of India to indicate the class or category of persons who may be enrolled as advocates which power would include the power to refuse enrolments in certain circumstances. The obligation to maintain the dignity and purity of the profession and to punish ensuring members carries with it the power to regulate entry into the profession with a view to ensuring that only profession- oriented and service-oriented people join the Bar and those not so oriented are kept out. The role of an advocate is essentially different from the role of any other profession an advocate is said to belong to a noble profession. The Act itself envisages the State Bar Councils who are the elected peers of advocates themselves to lay down the standards for the professional conduct and etiquette. That would naturally bring in its wake the power to regulate entry to such a noble profession. It is said that law is a jealous mistress that calls for undivided loyalty and unflinching attention from her devotees. Dry drudgery of desks’ dead wood is the essential requirement of an advocate aspiring to win laurels in the profession. The attack on the impugned rule on the ground of excessive delegation of legislative power will have to be examined in the light of scheme of the Act which has entrusted the power and the duty to elected representatives of the profession constituting the State Bar Councils to lay down the high standards of professional etiquette as expected of the advocates enrolled by it. It is pertinent to note that the Act has entrusted to the Bar Council of India, amongst others, the functions 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. The Bar Council of India is entrusted with the function to recognize Universities whose degree in law shall be a qualification for enrolments as an advocate and for that purpose to visit and inspect Universities or cause the State Bar Councils to visit and inspect Universities with such directions as it may give in this behalf. It conducts seminars and organize talks on legal topics by eminent jurists and publishes journals and papers of legal interest. In this connection, it also exercises general supervision and control over the State bar Councils. It is also entrusted with the task of promoting and supporting law reform. All these provisions as laid down by Section 7 of the Act leave no room for doubt that even prior to the enrolments as advocate the teaching of law and laying down of the curriculum for law courses are also the tasks entrusted to the Bar Council of India, which is the apex body of professionals monitoring these matters in conjunction with the State Bar Councils. Thus even at pre-entry stage of an advocate to the profession his equipments as a student of law and the requirement of basic legal education with which he should be armed before he can aspire to be enrolled as an advocate are also looked after by the Bar Council of India and the concerned Stats Bar Council which works under the general supervision and control of the apex body, namely, the Bar Council of India. Thus the Bar Council of India is cast with the duty to take all such steps as it considers necessary to filter students at the entry stage to the law course e.g. by providing an entrance test, as well as at the entry point to the profession, e.g. by providing an examination or a training course before enrolments as an advocate. The Act also deals with the topic of regulation of professional conduct of advocates from the entry point itself. The concerned State Bar Councils have to monitor the role of advocates so long as they continue to practise law after initial entry. As the enrolments by the State Bar Council entitles an advocate after entry to the profession, to practise the noble profession of law and who becomes, by such enrolments, an officer of the court, the said entrant can be validly subjected by the concerned Bar Council to the strict requirements of the profession for enabling such an aspirant to effectively cater to the needs of the legal profession. The power and the duty entrusted to the State Bar Councils to monitor such entry, in the light of the nature of the profession to which such entry is given would themselves supply the necessary yardstick and guidelines for the exercise of such power by the elected body of advocates constituting the concerned Bar Councils. The scheme of the Act thus lays down a complete code for regulating the legal education and professional equipments of an aspirant seeking entry to legal profession from the grass root level where he is student of law till he equips himself with essential legal knowledge and seeks enrolments and even thereafter till he practices law and completes his professional career as advocate. Thus, from the pre-entry point to legal Profession till the exit point from the legal profession, the Bar Council of India and the State Bar Councils monitor the career of the legal practioner. It is the entire scheme of the Act when considered in the light of the nature of the legal profession to which such entry is given which has to be kept in view while considering the submission of learned senior counsel for the appellant that the power given to the State Bar Councils to regulate such entries by framing rules is a piece of excessive delegation of legislative power. It cannot be gainsaid that law is universally described as an honourable profession. An advocate is an officer of justice and friend of the court. A conduct, therefore, which is unworthy of him as an officer of justice cannot be justified by stating that he did it as the agent of his client. His status as an officer of justice does not mean that he is subordinate to the Judge. It only means that he is an integral part for the Administration of justice. Legal profession is monopolistic in character and this monopoly itself inheres certain high traditions which its members are expected to upkeep and uphold. Members of the profession claimed that they are the leaders of thought and society. The central function that the legal profession must perform is nothing less than the administration of justice.

It is no doubt true that under Article 19, sub-Article (1)(g) all citizens have a right to practise any profession, or to carry on any occupation, trade or business and any profession may include even plurality of professions. However, this is not an absolute right. It is subject to sub-Article (6) of Article 19 which lays down that nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub- clause. It cannot be gainsaid that litigants are also members of general public and if in their interest any rule imposes a restriction on the entry to the legal profession and if such restriction is found to be reasonable Article 19(1)(g) would not get stultified . It is true that the appellant as a citizen of India having obtained the qualification required for being enrolled as an advocate can legitimately aspire to be enrolled as an advocate but his aforesaid right is fettered by the impugned rule framed by the State Bar Council. We have to consider whether the said restriction imposed by the rule is in any way unreasonable. We have to keep in view the fact that the impugned rule restricts entry of a person who is otherwise qualified for being enrolled as an advocate if he is already carrying on any other profession. Question is whether such a person carrying on other profession can be validly told off the gates by the State Bar Council by resorting to the impugned rule. In our view looking to the nature of the legal profession to which we have made detailed reference earlier the State Bar Council would be justified in framing such a rule prohibiting the entry of a professional who insists on carrying on other profession simultaneously with the legal profession. As we have seen earlier legal profession requires full time attention and would not countenance an advocate riding two horses or more at a time. He has to be full time advocate or not at all. Learned senior counsel for the appellant submitted that, even though the appellant is a practising surgeon he undertaking, if given entry to the legal profession, not to practise medicine during the court hours. This is neither here nor there. It is obvious that even though medical profession also may be a dignified profession a person cannot insist that he will be a practising doctor as well as a practising advocate simultaneously. Such an insistence on his part itself would create an awkward situation not only for him but for his own clients as well as patients . It is easy to visualize that a practising surgeon like the appellant may be required to attend emergency operation, even beyond court hours either in the morning or in the evening.

On the other hand the dictates of his legal profession may require him to study the cases for being argued the next day in the court. Under these circumstances his attention would be divided. We would naturally be. in a dilemma as to whether to attend to his patient on the operation table in the evening or to attend to his legal profession and work for preparing cases fur the next day and to take instructions from his clients for efficient conduct of the cases next day in the court. If he is an original side advocate he may be required to spend his evenings and even late nights for making witnesses ready for examination in the court next day. Under these circumstances as a practising advocate if he gives attention to his clients in his chamber after court hours and if he is also required to attend an emergency operation at that very time, it would be very difficult for him to choose whether to leave his clients and go to attend his patient in the operation theatre or to refuse to attend to his patients. If he selects the first alternative his clients would clamour, his preparation as advocate would suffer and naturally it would reflect upon his performance in the court next day. If on the other hand he chooses to cater to the needs of his clients and his legal work, his patients may suffer and may in given contingency even stand to lose their lives without the aid of his expert hand as a surgeon. Thus he would be torn between two conflicting loyalties, loyalty to his clients on the one hand and loyalty to his patients on the other. In a way he will instead of having the best of both the worlds, have worst of both the worlds. Such a person aspiring to have simultaneous enrolments both as a lawyer and as a medical practitioner will thus be like ‘trishanku’ of yore who will neither be in heaven nor on earth. It is axiomatic that an advocates has to burn midnight oil for preparing his cases for being argued in the court next day. Advocate face examination every day when they appear in courts. It is not as if that after court hours advocate has not to put in hard work on his study table in his chamber with or without the presence of his clients who may be available for consultation. To put forward his best performance as an advocate he is required to give whole hearted and full time attention to his profession. Any flinching from such unstinted attention to his legal profession would certainly have an impact on his professional ability and expertise. If he is permitted to simultaneously practise as a doctor then the requirement of his full time attention to the legal profession is bound to be adversely affected. Consequently however equally dignified may be the profession of a doctor he cannot simultaneously be permitted to practise law which is a full time occupation. It is for ensuring the full time attention of legal practitioners towards their profession and with a view to bringing out their best so that they can fulfil their role as an officer of the court and can give their best in the administration, of justice, that the impugned rule has been enacted by the State Bar Council. It, therefore, cannot be said that it is in any way arbitrary or that it imposes an unreasonable restriction on the new entrant to the profession who is told not to practise, simultaneously any other profession and if he does so to deny to him entry to the legal profession . It is true as submitted by learned senior counsel for the appellant that the rule of Central Bar Council does not countenance an advocate simultaneously carrying on any business and it does not expressly frown upon any simultaneous profession. But these are general rules of professional conduct. So far as regulating enrolments, to the profession is concerned it is the task entrusted solely to the State Bar Council by the Legislature as seen earlier while considering the scheme of the Act. While carrying on that task if the entry to the profession is restricted by the State Bar Council by enacting the impugned rule for not allowing any other professional to enter the Bar. When he does not want to give up the other profession but wants to carry on the same simultaneously with legal practice, it cannot be said that the Bar Council has by enacting such a rule imposed any unreasonable restriction on the fundamental right of the prospective practitioner who wants to enter the legal profession. Learned senior advocate for the appellant vehemently contended that such a rule is not found to have been framed by other State Bar Councils. In our view that would not make any difference. We are called upon to decide the question whether the impugned rule framed by the respondent-State Bar Council stands the test of Article 19(1)(9) or not. While deciding that question whether other State Bar Councils permit by their rules entry of other professional to the legal profession, would be an aspect which would not be strictly relevant. In our view the impugned rule does not impose any unreasonable restriction on the right of the professional carrying on any other avocation and insisting on continuing to carry on such profession, while it prohibits entry of such a person to the legal profession. If the contention of the learned senior counsel for the appellant is countenanced and any person professing any other profession is permitted to join the legal profession having obtained the Degree of Law and having fulfilled the other requirements of Section 24, then even chartered accountants, engineers and architects would also legitimately say that during court hours they will practise law and they will simultaneously carry on their other profession beyond court hours. If such simultaneous practices of professionals who want to carry on more than one profession at a time are permitted, the unflinching devotion expected by the legal profession from its members is bound to be adversely affected. If the peers being chosen representatives of the legal profession constituting the State Bar Council, in their wisdom, had thought it fit not to permit such entries of dual practitioners to the legal profession it cannot be said that they have done anything unreasonable or have framed an arbitrary or unreasonable rule.”

The Hon’ble Supreme court of India in the case of Bar Council of India v A.K.Balaji & Ors. SLP No. 17150-171541/2012 has held:

“It is also clarified that the expression to practice the profession of law under section 29 0f the Advocates Act, 1961 covers the persons practising litigious matters as well as non-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 S.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.”

The Hon’ble Supreme Court of India in the case of Madras Bar Association v Union of India, [Transferred Case (C) No. 150 / 2006, decided on 25.09.2014] has held:

“Chartered Accountants and Company Secretaries would at best be specialists in understanding and explaining issues pertaining to accounts. The Hon’ble Supreme Court struck down the provision allowing Company Secretaries and Chartered Accountants to appear on behalf of a party before National Tax Tribunal. “

The Hon’ble Madras High Court in the case of A K Balaji v The Government of India and others, [WP No. 5614 of 2010, decided on 21.02.2012] has held:

“As noticed above, the fact of the case before the Bombay High Court were that the Respondents which were Foreign Law Firms practising the profession of law in US/UK sought permission to open their liaison office in India and render legal assistance to another person in all litigious and non-litigious matters. The Bombay High Court, therefore, rightly held that establishing liaison office in India by the Foreign Law Firm and rendering liaisoning activities in all forms cannot be permitted since such activities are opposed to the provisions of the Advocates Act and the Bar Council of India Rules. We do not differ from the view taken by the Bombay High Court on this aspect.

At this juncture, it is necessary to note yet another submission made by the Government of India in their counter. It has been stated that Law Firms as such or not required to register them selves or require permission to engage in non-litigation practice and that Indian Law Firms elsewhere are operating in a free environment without any curbs or regulations. It is further submitted that the oversight of the Bar Council on non-litigation activities of such Law Firms was virtually nil till now, and exploiting this loop hole, many accountancy and management firms are employing law graduates, who are rendering legal services, which is contrary to the Advocates Act.

Therefore, the concern of the Government of India as expressed in the Counter Affidavit requires to be addressed by the Bar Council of India. Further, it is seen that the Government in consultation with the Bar Council of India proposes to commission a study as to the nature of activities of LPOs, and an appropriate decision would be taken in consultation with the Bar Council of India.

After giving our anxious consideration to the matter, both on facts and on law, we come to the following conclusion: Foreign Law Firms or Foreign Lawyers cannot practice the profession of law in India either on the litigation or non-litigation side, unless they fulfil the requirement of the Advocates Act, 1961 and the Bar Council of India Rules.”

The Hon’ble Supreme Court in the case of Ex-Captain Harish Uppal v Union of India and another (2003) 2 SCC 45 has held:

“The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc . The right to practice, no doubt, is the genus of which the right to appear and conduct cases in the Court may be a specie of the right to practise.”

The Hon’ble Supreme Court in the case of Bar Council of Maharashtra v M V Dabholkar (1976) 2 SCC 291 has held:

“The rule of law cannot be built on the ruins of democracy, for where law ends tyranny begins. If such be the keynote thought for the very survival of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon his probity and professional life-style. Be it remembered that the central function of the legal profession is to promote the administration of justice .”

The Hon’ble Supreme Court in the case of Madras Bar Association v. Union of India [Transferred Case (C) No. 150 / 2006, decided on 25.09.2014] held:

“Keeping in mind the fact, that in terms of Section 15 of the NTT Act, the NTT 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.”

The Hon’ble Supreme Court in the case of Mahesh Chandra Gupta v/s Union of India, 2010 (1) SCJ 102 has held:

“The Advocates Act, 1961 inter alia provides that once a person is enrolled by any one of the State Bar Councils, he becomes entitled to practice in all Courts including Supreme Court. This Act creates one common Bar, all its members being of one class, namely Advocates.”

It has been held in the case of Lowell Bar Association v Loeb 315 Mass. 176:

“The justification for excluding from the practice of law persons not admitted to the bar is to be found, not in the protection of the bar from competition, but in the protection of the public from being advised and represented in legal matters by incompetent and unreliable persons, over whom the judicial department could exercise little control.”

The Hon’ble Allahabad High Court has held in Tax Lawyers Association LKO. Through General Secretary And Anothers Vs State of U. P. Throgh Principal Sec. Tax And registration UP LKO And Others (2014) 25 VLJ 321-

“ In the mean time, As an Interim Measure, we direct the respondents that no person who so ever , may be permitted to advertise in the newspaper any leaflet, inviting assessee for the purpose of filing e returns or arguing before the under vat act any person who is not a registered advocate shall not be permitted to the appear before the authority under the Vat Act.”

The Bar Council does not have a limited role in the practise of the profession of law but has to cater to the greater public interest in meeting the demands of the noble profession and the regulating the profession which is integrally involved in administration of justice. Whereas the Bar Council has been set up to also protect the litigating public by ensuring that high and noble traditions of the legal profession are maintained and also make sure that the purity and dignity of the profession are not jeopardized. Whereas Advocates are involved in the duty of administration of justice and this element of public utility has to be safeguarded by this Council and also ensure the protection of welfare of the society as a whole.

Now is the time for the legal fraternity to rise to the situation and join hands to evolve a Code for themselves in addition to mandate of the Advocates Act, Rules made there under, and the Rules made by Supreme Court and various High Courts for strengthening the belief of the common litigant in the institution of the Judiciary in general and in their profession in particular. The creation of such faith and confidence would not only strengthen the rule of law but also result in achieving excellence in this noble profession.

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  • dear singla hi nice article MY COMMENTYS Interpretation of ‘to practise the profession of law’ –
    There is an inherent flaw in the interpretation of this phrase in section 29 of the Act. As the phrase has been uniformly interpreted by three Constitutional Courts including the Supreme Court, I think it is very crucial to look into one argument of Navroz. H. Seervai (Sr. Adv) in the Lawyer’s Collective case. According to him, if it is accepted that that the Act applies both to non-litigious matters as well as litigious matters before the Supreme Court and High Courts, then, it would render the Act ultra vires of the Constitution, because the Act was enacted by the Central Government using its power under entry 77 and 78 of the Union List in the Seventh Schedule of the Constitution. The schedule specifically provides for enacting laws relating to persons practising in the Supreme Court and the High Courts. Therefore, the interpretation given by the Courts till now , cannot be good in law. The Supreme Court has to extensively discuss the interpretation of this phrase in the current matter in order to reach the most accurate interpretation.

    DOCTRINE OF BASIC STRUCTURE IN CONTITUTION It may be said that the final word on the issue of the basic structure of the Constitution has not been pronounced by the Supreme Court- a scenario that is unlikely to change in the near future. While the idea that there is such a thing as a basic structure to the Constitution is well established its contents cannot be completely determined with any measure of finality until a judgement of the Supreme Court spells it out. Nevertheless the sovereign, democratic and secular character of the polity, rule of law, independence of the judiciary, fundamental rights of citizens etc. are some of the essential features of the Constitution that have appeared time and again in the apex court's pronouncements. One certainty that emerged out of this tussle between Parliament and the judiciary is that all laws and constitutional amendments are now subject to judicial review and laws that transgress the basic structure are likely to be struck down by the Supreme Court. In essence Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments.

  • I have some cases related to Excise/Customs as well as forgery by an Advocate and hence want meeting u. my cell No is 09426523751 please send address/cell No so that the matter can be disscussed in person while we meet.
    thanks
    TARUN PATEL

  • There are certain lines, where any person can appear before quasi-judicial authorities, like Sub-Registrars, Income Tax Appellate Authority. There other professionals like CA, CS or even ordinary person, who is well conversant with the law, can present his client's matter.
    I agree that in judicial courts, dealing with criminal matter, which requires presenting of evidence, cross examination, where learned lawyer's presence is necessary.
    In the above case, where any person can present the matter to quasi-judicial authority, if presence of an advocate is insisted upon, it is a clear violation of Fundamental Right under Article 19(1)(g), and practicing of such profession is not a violation of prohibition of certain profession under the Article 19(6).

  • Non-Advocates must be prohibited strictly from practicing Legal Profession at all. Non-Advocates are doing legal practice (litigious as well as non-litigious) illegally which has to be checked into as early as possible. They must be punished under various Act ......

  • Anyway by the Bar Council's own admission 30% of the lawyers practising are fake. Maybe that should be looked into first instead of wasting time oneupmanship over CAs and other professionals who have specific skill sets in certain aspects of law.

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