Bar Council of India and it’s Power to make Rules

By Anadi Soni

Introduction

An act was passed by the government of India in 1961 called the Advocates Act which with various other provisions talks about the formation of the Bar Councils in India.

Section 3 of this act gives the provision of State Bar Council whereas Section 4 the act talks about the Bar Council of India.

Before moving to our topic of the rulemaking power of the Bar Council we first need to know what is Bar Council.

Bar Council of India

The Bar Council of India has been set up as a statutory body that works as a regulator and representative of the Indian Bar Association. The bar council governs all the legal practitioner of the country.

This is the vital organ of the Indian judiciary as it sets out rules of professional conduct. The dress code, etiquettes of an Advocate is also given by the Bar Council of India(herein as BCI).

Along with that, the Bar Council of India also sets standards for legal education There is a rule that universities have to enroll themselves in the bar council. Recognition of the university by the BCI is mandatory for a student to enroll themselves as an Advocate.

BCI’s headquarters is in New Delhi. It is headed by the Chairman with Vice-Chairman. Manan Kumar Mishra is the current chairman of BCI.

History

The constitution of India was adopted on January 26, 1950, and since then it is celebrated as Republic day of India. After the Indian Constitution came into effect, it was immediately necessary to establish the “All India Lawyers Association.”

A resolution was passed emphasizing the requirement that the All India Bar Association set a consistently high standard for the legal examinations of various universities. In May 1950, the Madras Provincial Lawyers Conference chaired by Sri S. Varadachariar decided that the committee appointed by the Indian government should formulate the plan of the All India Bar Association and amend the laws of the Indian Bar Association to comply with the new constitution.

On April 12, 1951, Member of Parliament Shri Sayed Mohammed Ahmad Kazmi proposed a bill to amend the Indian Bar Association Act. The Indian government concluded that the government should sponsor the bill.

In August 1951, a committee of inquiry was established to study the possibility of establishing a bar association in India, continuing or abolishing the dual council system in each state, and establishing a separate lawyers committee for the Supreme Court.

The All India Bar Council is chaired by Judge S. Das and consists of seven other members. On March 30, 1953, the committee submitted a detailed report, which included a recommendation to establish a law committee for each state and an Advocacy committee at the national level for the whole of India.

In the process of drafting the Judicial Administration Reform Report, a major bill was submitted to Parliament to activate the Advocates Act of 1961 to implement the proposals of the Indian Bar Council and the legal profession. Setalwad and K. Daftari were the first Presidents and Vice President respectively.

Composition of Bar Council of India

Under Sec 4 bar council consists of 18 members in total.

The Council comprises of a –

(a) The Attorney-General of India as ex-officio.

(b) The Solicitor-General, as ex-officio,

(c) Out of 16 bar council states in total, one member is elected by each State Bar Council to be the member. These members are elected for the term of 5 years.

Also, there are,

1. 1 Chairman,
2. 1 Vice-Chairman of the Council (both are elected for 2 years),
3. A Secretary,
4. An Accountant,
5. And the Committees constituted by BCI namely;

• Legal Education Committee
• Disciplinary Committee
• Executive Committee
• Advocate Welfare Committee
• Legal Aid Committee
• Other committees to take care of infrastructure.

Bar Council of India Rule making power

Rulemaking power is being given to the Bar Council of India by the Advocates act of 1961. So, In 1975 certain rules made by BCI were published in the official gazette, divided into the following parts-

• Parts I, II and III deal with the establishment of the Indian Bar Council, State Bar Councils, Lawyers and their respective functions. Chapter 2 deals with the qualification and disqualification of the members and staff of the bar council.
• Part IV of the rule deals with the rules of legal education also includes the standards of legal education and the recognition of legal degrees for enrollment as an Advocate. This rule also allows law universities and colleges to be inspected for recognition of their degree in the field of law.
• Finally, Parts V, VI, VII, VIII and IX of the Indian Bar Association deal with a few other issues including professional ethics, etiquette or professional misconduct.

The Bar Council of India shall make Rules under the provisions of Section 15 of the Advocate Act.

Section 15 in The Advocates Act, 1961

“ Power to make rules.—

(1) A Bar Council may make rules to carry out the purposes of this Chapter.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for— 1[(a) the election of members of the Bar Council by secret ballot including the conditions subject to which persons can exercise the right to vote by postal ballot, the preparation and revision of electoral rolls and the manner in which the result of election shall be published;]. 3[(c) the manner of election of the Chairman and the Vice-Chairman of the Bar Council;]

(d) The manner in which and the authority by which doubts and disputes as to the validity of an election to the Bar Council 4[or to the office of the Chairman or Vice-Chairman] shall be finally decided;

(f) The filling of casual vacancies in the Bar Council;

(g) The powers and duties of the Chairman and the Vice-Chairman of the Bar Council; 6[(ga) the Constitution of one or more funds by a Bar Council for the purpose of giving financial assistance or giving legal aid or advice referred to in sub-section (2) of section 6 and sub-section (2) of section 7;] 6[(gb) organisation of legal aid and advice to the poor, constitution and functions of committees and sub-committees for that purpose and description of proceedings in connection with which legal aid or advice may be given;]

(h) The summoning and holding of meetings of the Bar Council, The conduct of business threat, and the number of members necessary to constitute a quorum;

(i) The constitution and functions of any committee of the Bar Council and the term of office of members of any such committee;

(j) The summoning and holding of meetings, the conduct of business of any such committee, and the number of members necessary to constitute a quorum;

(k) The qualifications and the conditions of service of the secretary, the accountant and the other employees of the Bar Council;

(l) The maintenance of books of accounts and other books by the Bar Council;

(m) The appointment of auditors and the audit of the accounts of the Bar Council;

(n) The management and investment of the funds of the Bar Council.

(3) No rules made under this section by a State Bar Council shall have effect unless they have been approved by the Bar Council of India.”

Section 49 of the Advocate Act gives the Bar Council of India general power to make Rules for discharging its functions under Advocates Act,1961.

“ Section 49 in The Advocates Act, 1961, General power of the Bar Council of India to make rules-

(1)  The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe— 2[(a) the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council including the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by a State Bar Council;

(ab) Qualifications for membership of a Bar Council and the disqualifications for such membership;

(ac) The time within which and the manner in which effect may be given to the proviso to sub-section (2) of section (3);

(ad) The manner in which the name of any advocate may be prevented from being entered in more than one State roll;

(ae) The manner in which the seniority among advocates may be determined;

(af) The minimum qualifications required for admission to a course of degree in law in any recognised University;

(ag) The class or category of persons entitled to be enrolled as Advocates;

(ah) The conditions subject to which an Advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an Advocate in a Court;

(b) The form in which an application shall be made for the transfer of the name of an Advocate from one State roll to another;

(c) The standard of professional conduct and etiquette to be observed by Advocates;

(d) The standards of legal education to be observed by universities in India and the inspection of universities for that purpose;

(e) The foreign qualifications in law obtained by persons other than citizens of India which shall be recognised for the purpose of admission as an Advocate under this Act;

(f) The procedure to be followed by the disciplinary committee of a State Bar Council and by its own disciplinary committee;

(g) The restrictions in the matter of practice to which senior advocates shall be subject; 4[(gg) the form of dresses or robes to be worn by Advocates, having regard to the climatic conditions, appearing before any Court or tribunal;]

(h) The fees which may be levied in respect of any matter under this Act;

(i) General principles for the guidance of State Bar Councils and the manner in which directions issued or orders made by the Bar Council of India may be enforced;

(j) Any other matter which may be prescribed:

6) Provided that no rules made with reference to clause (c) or clause (gg) shall have effect unless they have been approved by the Chief Justice of India:

7) Provided further that] no rules made with reference to clause (e) shall have effect unless they have been approved by the Central Government.

6[(2) Notwithstanding anything contained in the first proviso to sub-section (1), any rules made with reference to clause (c) or clause (gg) of the said sub-section and in force immediately before the commencement of the Advocates (Amendment) Act, 1973 (60 of 1973), shall continue in force until altered or repealed or amended in accordance with the provisions of this Act.]”

Section 36 gives the disciplinary power to the Bar Council of India where it can punish any Advocate in case of professional or other misconduct and can also remove the name of any Advocate from the state roll of Advocate if found necessary.

Section 37 empowers the Bar Council of India to hear appeals against the order of the Disciplinary Committee of a Bar Council. Every such appeal shall be heard by the disciplinary committee of the Bar Council of India.

Section 38 provides that any person aggrieved by the order passed by the Disciplinary Committee of Bar Council of India may be challenged within 60 days by way of appeal before the Supreme Court.

Since 2010, BCI also has the power to conduct the All India Bar Examination for testing an advocate’s ability to practice law. An advocate must pass this examination to practice law in any Court in India.

BCI also conducts the National Moot Court Competition to promote Advocacy skills in law students through a public charitable trust called the Bar Council of India Trust.

Case laws

Pratap Chandra Mehta vs. State Bar Council of Madhya Pradesh^[1] ,

It was pointed out that if no elections are expected, the Indian Bar Association should set up a special committee to do this. According to Article 15(2), without prejudice to the generality of the previous powers, rules can be formulated to formulate election lists and provide a way to announce the results.

In RaveendranathNaik v. Bar Council of India,

the Bar Association of India decided to order the defense lawyer not to participate in any legal aid plan organized by the LokAdalat Legal Service Agency, this was later ruled as illegal and invalid.

In ExCaptain Harish Uppal v. Union of India^[2],

The Court ruled that Article 7 defines the functions of the Indian Bar Association, but none of the functions mentioned in Article 7 authorize it to cripple the functioning of the Courts. Rather, they are obliged to set standards for professional behavior. and defense attorney etiquette.

No council of lawyers can ever consider calling for a strike or a boycott. If an association calls for a strike or boycott, the relevant Indian Legal Council should do soImmediately take disciplinary action against defenders who call on a strike. It is the duty of every defense lawyer to ignore a strike or boycott call.

In the case, Noratanman Courasia v. M. R. Murali^[3]:

The Supreme Court reviewed the breadth and scope of the term “professional misconduct” in Article 35.

The circumstances of the case are related to the following facts: the lawyer (the defendant who acted as a litigant instead of a lawyer in the rent control procedure) attacked the complainant, kicked him, and asked him not to refrain from the case further.

The main question in this case is whether the lawyer’s lawsuit is a mistake that can be filed, Although he did not act as a lawyer, the Supreme Court ruled that the lawyer must abide by the expected standards of conduct, which will make him worthy of the public’s trust in him as a court official.

Although he did not serve as an Advocate, his behaviour is not the standard of the same, and the Bar Association has the right to institute disciplinary sanctions against him. It should be noted that the Supreme Court considered the case law in the field of Advocates’ misconduct when adjudicating the case, and reiterated that the term “misconduct” cannot be accurately defined but, this means misconduct, deliberate misconduct or deliberate violation of standards of conduct.

The term can also include illegal intent, This is not a simple error in the assessment. Therefore, although “improper behaviour” is not well defined, it has contextual meaning, the improper behaviour of its behaviour and its impact on discipline and the nature of responsibility.

N.G. Dastane v. Shrikant S. Shind^[4],

When either party’s attorney requested ongoing postponements due to the immense inconvenience of the other party, the Supreme Court ruled that demand to postpone the examination of the witnesses present without making other arrangements to examine those witnesses was a negligence of the law and an Advocate owes this duty to the Court, which amounts to fault.

CONCLUSION

The Bar Council of India has a lot of functions vested within itself, whereby exercising those functions it can restructure and reframe the entire legal arena in the country.

It can be more predominantly envisaged that in modern times it has hardly contributed constructively to the improvement of law in India. There are certain loopholes in the legal arena in India today which the Bar Council must look into, to protect the law standard from degradation and to maintain the same standards.

References

1. indiankanoon.org/
2. .indiacode.nic.in
3. .pathlegal.in
4. lawlex.org/
5. old.amu.ac.in

1. Pratap Chandra Mehta v. State Bar Council of M.P., (2011) 9 SCC 573 ↑
2. CASE NO.:

   Writ Petition (civil) 132 of 1988↑

3. CASE NO.:

   Appeal (civil) 5476 of 1999 ↑

4. 2001 Latest Caselaw 279 SC
   Judgement Date : May/2001 ↑