By Radhika M
Bar and Bench is the spinal cord of this legal system. Only a coordinated activity of these entities can produce a smooth functioning of legal system. Eminent lawyers at the Bar receive almost the same respect as Judges. And only the cooperation and unity among lawyers can make this system move forward.
Since the Legislature was already aware of this fact, it enacted the Advocate’s Act, 1961 (hereinafter as the Act) to regulate the legal profession.
The Act provided for the constitution of Bar Council of India, State Bar Councils, their powers, enrolment, qualification, disqualification of Advocates etc.
Structure of State Bar Councils
Section 3 of the Advocates Act mandates that there shall be a Bar Council for every state, and it shall be called as Bar Council of that state.
As per Section 5 of the Act, every Bar Council shall be a body corporate with perpetual succession and common seal. It can acquire and hold properties. It can sue or be sued.
There shall be a Chairman and Vice Chairman of each Bar Council elected by the Council. The Advocate – General of a state shall be ex-officio member of that State Bar Council.
There shall be fifteen members in a State Bar council if the electorate doesn’t exceed five thousand. And it becomes twenty if the electorate ranges between five thousand and ten thousand.
There shall be twenty five members in the Council if the number exceeds ten thousand. The members of the Council are elected through system of proportional representation by means of the single transferable vote from amongst Advocates on the electoral roll of the State Bar Council.
As per Section 8 of the Act, the tenure of a member shall be five years from the date of publication of the result. But if the Council fails to conduct an election before the expiry of the term, it may extend such tenure by a maximum of six months by recording reasons in writing.
As per Section 10B of the Act, an elected member to the council may be disqualified on the grounds that he was absent in consecutive meetings or his name is removed from roll of Advocates or he is disqualified under any rules prescribed by Bar Council of India.
Functions of State Bar Council
Section 6 of the Act lays down the important functions of a State Bar Council.
- To admit persons as Advocates on its roll.
- To prepare and maintain such 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.
- To promote and support law reform.
- To conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest.
- To organise legal aid to the poor.
- To manage and invest the funds of the Bar Council.
- To provide for the election of its members.
- To visit and inspect Universities in accordance with the rules for imparting legal education.
- To promote the growth of Bar Associations for the purpose of effective implementation of welfare schemes introduced by the Council.
- To perform any other functions as prescribed by the Act.
- The time within which and form in which an Advocate shall express his intention for the entry of his name in the roll of State Bar Council.
- The form in which an application shall be made to the Bar Council for admission as an Advocate on its roll.
- The conditions subject to which a person may be admitted as an Advocate on any such roll.
- The instalments in which the enrolment fee may be paid.
The Council may constitute funds for the purpose of:
- Giving financial assistance to organise welfare schemes for the indigent, disabled or other Advocates.
- Giving legal aid or advice in accordance with the rules.
The State Bar Council may receive gifts, donations or any grants for the purposes mentioned above and such amount may be credited to the welfare funds constituted accordingly.
Various Committees may be constituted by the State Bar Councils for discharging certain duties. Such as:
The disciplinary committees are constituted to deal with the cases of professional misconduct of Advocates. The Council may constitute one or more disciplinary committees. It shall consist of three persons in out of which two persons shall be members of the Council and the remaining one being selected from the non-member Advocates.
The senior most among the members of the Committee shall be the Chairman of the Disciplinary Committee.
The Disciplinary Committee shall have the same power as that of a civil Court in matters relating to the disposal of disputes relating to professional misconduct.
Legal Aid Committee
One or more legal aid committees may be constituted by the Council. It shall have minimum five members; however it cannot exceed nine.
The Legal Aid activities of the Council are monitored, conducted by the committee. The Council prescribes the qualifications required for the members from time to time.
It shall consist of five members and they are elected by the Council amongst its members.
There must be three members in the enrolment committee who shall be elected from the members of the Council. A State Bar Council shall refer every application for admission as an advocate to its enrolment committee and it shall decide on the same.
- Executive committee which shall consist of nine members elected amongst the members of the Council.
- Legal Education Committee which shall consist of ten members. Five out of ten members shall be elected by the Council from its members and the remaining five shall be co-opted by the council from non-member Advocates.
Every Bar Council and every committee other than Disciplinary Committee shall follow the rules of procedure in regard to transaction of businesses at their meeting. The meeting shall be convened at the headquarters of the Bar Council except that of Disciplinary Committee.
Power of Bar Councils to make Rules
Every State Bar Council has the power to make rules regarding the following matters:
- The election of members of the Bar Council. This will include the manner of conducting election, eligibility to cast postal vote, manner of publishing results etc.
- The manner of election of the Chairman and the Vice-Chairman of the Bar Council.
- Deciding the validity of elections.
- The filling of casual vacancies in the Bar Council.
- The powers and duties of the Chairman and the Vice Chairman.
- Constitution of funds.
- Organisation of legal aid to the poor, constitution of committees and sub committees for the purpose.
- Summoning the meeting of the Bar Council, Conduct of Business, deciding the number of persons to constitute quorum.
- The qualifications and the conditions of service of the secretary, the accountant, and other employees of the Bar Council.
- The maintenance of books of accounts and other books by the Bar Council.
- The appointment of auditors and the audit of the accounts of the Bar Council.
- The management and investment of the funds.
Rules made by the State Bar Councils are effective only when it is approved by the Bar Council of India.
Maintenance of rolls
As per Section 17 of the Act, every State Bar Council shall prepare and maintain a roll of Advocates. It shall contain the names and addresses of the Advocates.
The roll shall consist of two parts. The first part shall include the details of senior Advocates and the second part shall include the details of other Advocates. No person shall be enrolled as an Advocate in more than one state roll.
But a person can file an application before the Bar Council of India to transfer his name from roll of one state to another nevertheless he will retain the same seniority. The State Bar Council may issue a certificate of enrolment to Advocates whose name is entered in the roll.
In the case of Bar Council of Delhi & Anr. vs Surjeet Singh And Ors. the Supreme Court observed that it is manifest that under the Advocate’s Act the qualifications and conditions entitling an Advocate to vote at an election or for being chosen as a member of the State Bar Council has to be prescribed by the Bar Council of India. The State Bar Council has no such power.
The power of the State Bar Council is merely to prepare and revise from time to time the electoral roll subject to the Rules made by the Bar Council of India concerning the qualifications and conditions aforesaid. The Rule making power of the State Bar councils does not override the powers conferred to Bar Council of India. Even though Bar Council of India can approve the rules made by the State Bar Councils, rules which are ultra vires to the parental Act cannot be ratified.
In the case of Pratap Chandra Mehta vs State Bar Council of M.P.& Ors the Supreme Court observed that “This is an Act which has been enacted with the object of preparing a common roll of advocates, integrating the profession into one single class of legal practitioners, providing uniformity in classification and creating autonomous Bar Councils in each State and one for the whole of India. The functioning of the State Bar Council is to be carried out by an elected body of members and by the office-bearers who have, in turn, been elected by these elected members of the said Council. The legislative intent derived with the above stated objects of the Act should be achieved and there should be complete and free democratic functioning in the State and All India Bar Councils. The power to frame rules has to be given a wider scope, rather than a restrictive approach so as to render the legislative object achievable.”
It is an established fact that every profession requires some regulatory mechanism to keep it steady, efficient, and qualitative and law is no exception. Without an efficient monitoring body, the profession may end up in chaos. And only a unity among lawyers can make this justice delivery system effective. And for that, it is necessary that members of Bar must respect and cooperate with each other.
While Bar Council of India has serious issues at hand, it is the State Bar Councils and Bar Associations make things work at a grass root level. And their involvement in various activities in the legal sphere whether that be responding to any contemporary issue or imparting legal education, proves why they are necessary and how they should be strengthened.
Advocates Act, 1961
- Bar Council of Delhi & Anr. vs Surjeet Singh And Ors 1980 AIR 1612, 1980 SCR (3) 946 ↑
- Pratap Chandra Mehta vs State Bar Council of M.P.& Ors (2011) 9 SCC 573 ↑