History Of Legal Profession In India & Its Future Today!
Legal profession is an important limb for administration of justice. Without well-organized profession of law, court will not be in the position to administer justice effectively.
Development of legal profession can be divided into four phases i.e legal profession in ancient India, legal profession in medieval India, legal profession in British India and legal profession of India after Independence.
In ancient India, Kingship established, they used to deliver justice advised by their Councilors, there was no institution of lawyers only intellectuals served justice.
In medieval India, there was no institution of legal profession, but both litigating parties appointed Vakils. Court has the power to do a choice regarding who should appear as Vakil. They acted as an agent for the principal not as a lawyer.
The history of legal profession in British India can be seen by an advent of Mayor’s Court in 1726, there was no established legal profession until the establishment of the Mayor’s Court. They established Mayor’s Court at three presidencies i.e Madras, Bombay and Calcutta. There was no specific provision were made for the qualification for those people, who will be entitled to act or plead as legal practitioner in these courts. They administered English law. No facilities were given for legal training and education relating to legal practitioner[1].
The first concrete step in the direction of organizing a legal profession of India was taken in 1774 when the Supreme Court established at Calcutta. It empowered Supreme Court to frame rule of procedure as it though necessary for administration of justice and due execution of its power. Indian legal practitioner had no entry in this court, the only person entitled to practice were the British barrister, advocate and attorneys.
Legal Practitioner Act 1846 opens doors for legal profession to all those duly qualified certified and who are of good character irrespective of nationality and religion. But women are still excluded until Legal Practitioners’ (Women) Act, 1923 came into existence, formally after the passing of this Act of 1923 abolishing the bar on women from practicing Law , Indian women were granted the right to take up the legal profession and practice as Advocates in the Courts of Law.[2]
Indian High Court Act, 1861 empowered to establish High Court. After the establishment of High Court, Civil Courts and Criminal Courts were also organized. Criminal Courts were organized by Criminal Procedure Code 1898.
Legal Practitioner Act 1879, the preamble of the Act states that the objective of the Act is to consolidate and amend the law relating to Legal Practitioners. Under this, legal practitioner means ‘Advocates’. There were six grades of legal practice in India after the founding of High Court i.e Advocates, Attorneys (Solicitors), Vakils of High Court, Pleaders, Mukhtars and Revenue Agent. This Act of 1879 brought all the six grades of the profession into one system under the jurisdiction of High Court[3].
Indian Bar Council Act, 1926 was enacted to provide a bar council for each High Court. Bombay High Court and Calcutta High Court allowed non barrister advocates to practice, hence the distinction between barristers and advocates were abolished. After the enactment of this Act, High Court has power of enrollment of advocate and function of Bar Council was adversary, rule made by Bar Council were ineffective without approval of High Court. Section 10 of the same empowers High Court to reprimand or suspend or remove from practice any advocate of High Court if he was found guilty of professional or other misconduct.
To have a unified all India Bar having one grade of practitioners, and autonomous Bar Council, legal profession had to wait for three decades, it got fructified in 1961 when Indian Parliament enacted the Advocate Act in Independent India.
After Independent it was felt that Judicial Administration in India should be changed according to the need of the time. Hence Law Commission was assigned to prepare a report on the reform of Judicial Administration. Meanwhile All India Bar Committee made recommendation in 1953. So after considering Law Commission report and recommendation of All India Bar Committee, bill was introduced in the Parliament.
Under All India Bar Committee 1951, government of India took view that in the changed circumstances of independence, a Bill sponsored by government is necessary. The government of India considered a proposal and set up a committee to enquire the problem in detail. They examine the issues like desirability of completely unified Bar for whole India, the continuance or abolition of different classes of legal practitioner, the desirability of establishing a single Bar Council for whole India and also for each State etc. Finally, they submitted the detailed report in 1953 which consisted proposal for constituting a Bar Council for each State and All India Bar Council at national level at the apex for regulating legal profession. Not only this but also to organize the standard of legal education in India.[4]
The recommendation of the Law Commission contained in its Fourteenth Report (1958) provided a blueprint for the Government of India to bring out a comprehensive legislation on legal profession in India.
In 1961, parliament enacted the Advocates Act to amend and consolidate the law relating to legal practitioner. After the establishment of this Act of 1961 all the old classes of experts and legal practitioners (vakils, barristers, pleaders of various grades, and mukhtars) were abolished and were compiled into a single category known as “Advocates” who enjoys the privilege to practice in courts throughout the India. This Act establishes All India Bar Council for the first time. The Bar Council of India entrusted with the functions like to lay down standard of professional conduct and etiquettes for Advocate, to lay down procedure to be followed by disciplinary committees, to safeguard the rights privileges and interests of Advocate, to promote legal education, to promote and support law reform and to organize legal aid to the poor etc. This Act also establishes State Bar Council in each State having functions like to admit persons as Advocates on its Roll, to prepare and maintain such Roll, to promote and support law reform and to organize legal aid to the poor etc[5].
The Advocate Act, 1961 contains 60 Sections set out in 7 chapters.
Chapter I -deals with primary issues such as short title, extent and commencement and definitions.
Chapter II -Section 3 to15 deals with the bar councils.
Chapter III -Section 16 to 28 deals with admission and enrolment of advocates.
Chapter IV- deals with the right to practice chapter.
Chapter V- Section 35 to 44 deals with the conduct of advocate.
Chapter VI -Miscellaneous issues.
Chapter VII -deals with the temporary and transitional provisions.[6]
The Advocate Act, 1961 repeals the Indian Bar Council Act, 1926 and all other laws on the subject. The Advocate Act, 1961 provides for an autonomous bar council in each state and All India Bar Council consisting mainly of the representatives of the state bar councils. Under the act, a state bar council is to enrol the qualified person as advocates and prepare a roll of advocates practicing in the state and thereafter a comment roll of advocates for the whole of India is to be prepared by the bar council of India. The Advocates whose Names are entered in the common roll would be entitled as of right to practice in all courts in India including the Supreme Court.
Thus, admission, practice, ethics, privileges, regulation, discipline and improvement of the profession are now all in the hands of the profession itself. Hence the Advocates Act, 1961 has marked the beginning of a new era in the history of legal profession by vesting largely in the Bar councils the power and the jurisdiction which the courts till then exercised.[7]
Amendment to Advocates Act, 1961
The Law Commission of India has proposed amendments in the Advocates Act, 1961 with a view to facilitate initiation of taking forward reforms in the legal profession.
184th Law Commission Report
In 2002, the Law Commission of India undertook a comprehensive Suo motu review of the structure and regulation of the professional legal education system in India. The Report prepared by Law Commission of India titled as the “184th Report on the Legal Education & Professional Training and Proposals for Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956”analyses in detail the conjoint responsibility of BCI and UGC towards the regulation of professional legal education[8].
The Law Commission in its 184thReport (2002) ( Para 5.16) has pointed out that there are revolutionary changes which have come into legal education by reason of developments in information, intellectual property, corporate law, cyber law, human rights, ADR, international business, comparative taxation laws, environmental laws etc. And that the very nature of law, legal institutions and law practice are in the midst of a paradigm shift.[9]
The aim of transnational legal education is not to create individuals who can “practice” law in a number of jurisdictions. If done, such should not be seen as an objective in itself, but merely as an incidental result. Our Legal Education must help students specialize in international trade practices, comparative law, conflict of laws, international human rights law, environmental law, gender justice, international advocacy etc. They must also acquire a general knowledge of American, French, German, Chinese and Japanese Law. Globalization does not merely mean addition or inclusion of new subjects in the curriculum as stated above but to prepare the legal profession to handle the challenges of Globalization. Apart from expanding the curriculum, law schools have to improve their libraries, use of computers and internet must be made compulsory in all law schools. As far as faculty is concerned, experience in other countries show that video conferencing of lectures by foreign faculty can help in overcoming the shortage of teachers having knowledge of new subjects.[10]
The Law Commission has also placed before the Government the Advocates (Amendment) Bill, 2017. Key proposals constituted action against lawyers who go on strike, allowing entry of foreign law firms and lawyers, and need for defining misconduct and effective actions are to be taken against lawyers indulging in professional misconduct[11].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 expectations of the aggrieved.
The recent judgment of the Supreme Court in the case of Mahipal Singh Rana v. State of UP[12], directed the Law Commission of India to revisit the provisions relating to regulation of disciplinary control over lawyers under the Advocates Act and to recommend appropriate amendments so as to make the Act more comprehensive hence facilitating Parliament to enact a law that would effectively empower the authorities for such effective regulation
The Law Commission on 22 July 2016 asks for comment from the BCI, State Bar Council and Advocates association by 21 Aug, 2016 in a notice on its website. The Advisory Committee constituted by the BCI submitted recommendations along with draft bill on issues relating to the Advocates Act including strong measures to tackle the boycotts or abstention from work by the Advocates or their Associations, matters related to the disciplinary committee, enhancement of penalty for persons illegally practicing in courts or other authorities, pre-enrolment training and apprentice for a period of one year and regulation of foreign law firms and lawyers.[13]
In view of the above, the Law Commission of India has submitted its 266thReport titled The Advocates Act, 1961 (Regulation of Legal Profession), to the Central Government for its consideration, on 23.03.2017.
Shweta Rao
Intern-INBA
[1]Historical evolution of the Indian legal system, available at: http://cbseacademic.nic.in/web_material/doc/Legal_Studies/XI_U3_Legal_Studies.pdf (last visited on December 12, 2019)
[2]Palak, legal profession in India, available at: http://www.legalservicesindia.com/article/2192/Legal-Profession-in-India.html (last visited on December 12, 2019)
[3]Ramanuj, historical development of law relating to legal profession and Bar in India, available at: https://blog.ipleaders.in/historical-development-of-law-relating-to-legal-profession-and-the-bar-in-india/(last visited on December 12, 2019)
[4]History, available at: http://www.barcouncilofindia.org/about/about-the-bar-council-of-india/history/ (last visited on December 12, 2019)
[5] Bar Council of India, available at: https://delhibarcouncil.com/resources-for-lawyers/bar-council-of-india/ (last visited on 13 December, 2019)
[6]Advocates Act, 1961
[7]History of the legal profession, available at: http://www.barcouncilofindia.org/about/about-the-legal-profession/history-of-the-legal-profession/ (last visited on 12 December 2019)
[8] Law Commission of India, 184th Report on The Legal Education & Professional Training and Proposals for Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956 (December 2002).
[9]Role of the Bar in Development of Legal Education in India, available at: http://www.delhihighcourt.nic.in/library/legal_articles.htm(last visited on 12 December, 2019)
[10] Ibid
[11] Law commission of India, 266th Report on The Advocates Act, 1961 (Report on Regulation of Legal profession) (March 2017).
[12] AIR 2016 SC 3302
[13]Draft Amendments to the Advocate Act, 1961 proposed by the Bar Council of India, available at: https://barandbench.com/wp-content/uploads/2016/10/DRAFTadvoctes_act_amendment_september2.9.2016_2.pdf (last visited on 13 December, 2019)