History of Legal Profession and the Advocates Act, 1961 notes — Unit 1

Law is not just a business; it is a noble profession.

⇒The Noble Profession

An advocate is an officer of the Court. They hold a unique position in society. While a businessman is focused solely on maximizing profit, a lawyer's primary duty is to assist the court in the administration of justice. This dual responsibility (to the client and to the court) necessitates a strict code of ethics.

Without ethics, a lawyer is merely a mercenary. With ethics, a lawyer is a guardian of liberty and justice.

Did lawyers exist in ancient India?

⇒Ancient Hindu Period

In ancient India (Vedic and Smriti periods), there was no organized legal profession. The King dispensed justice with the help of learned Brahmins (Sabhasads) who interpreted the Dharma Shastras. However, these advisors were not 'lawyers' representing clients for a fee.

⇒Medieval (Islamic) Period

During the Mughal era, a class of persons called Vakils emerged. Litigants could appoint Vakils to represent them before the Qazi (Judge) or the Emperor. However, there was still no formal training, licensing, or code of conduct for these Vakils.

The organized legal profession in India is a direct creation of British colonial rule.

⇒The Charter of 1726

The East India Company established Mayor's Courts in the presidency towns of Madras, Bombay, and Calcutta. However, these courts were presided over by merchants (non-lawyers), and there were no recognized legal practitioners. Anyone could act as an attorney.

This led to chaotic and arbitrary justice, highlighting the need for trained legal professionals.

The Regulating Act of 1773 established the Supreme Court of Judicature at Calcutta (and later in Madras and Bombay).

⇒The Beginning of the Legal Profession

The Supreme Court was empowered to enroll and admit Advocates and Attorneys. However, there was strict racial discrimination. Only British Barristers (trained in the Inns of Court in London) and British Attorneys were allowed to practice in the Supreme Courts. Indians were totally excluded.

While British Barristers monopolized the Supreme Courts in the Presidency Towns, what happened in the rural provinces (Mofussil)?

⇒The Sadar Diwani Adalats

In the mofussil courts run by the East India Company, Indians were allowed to practice. They were known as Pleaders or Vakils.

⇒The Bengal Regulation VII of 1793

This was the first legislation to organize the Indian legal profession. It created a regular profession of authorized Pleaders, prescribed their qualifications (knowledge of Hindu/Muslim law), and fixed their fees. However, these Pleaders were considered highly inferior to British Barristers.

After the 1857 mutiny, the British Crown took over India. They abolished the dual system of Supreme Courts and Sadar Adalats and established unified High Courts in Calcutta, Bombay, and Madras.

⇒The Hierarchy Remains

Though the courts were unified, the legal profession remained deeply fractured into multiple classes:

• Barristers: British-trained, enjoyed the highest status and exclusive right to plead on the Original Side of the High Courts.
• Attorneys/Solicitors: Handled the drafting and briefing (similar to the UK dual system).
• Vakils (Indian): Law graduates from Indian universities. They could practice on the Appellate Side but were barred from the Original Side.

As the freedom struggle intensified, Indian lawyers (Vakils) strongly protested the discrimination by British Barristers.

⇒The Chamier Committee (1923)

This committee recommended organizing the Bar and removing the distinction between Barristers and Vakils.

⇒The 1926 Act

It created Bar Councils for each High Court. It allowed Indian Vakils to finally practice on the Original Side. However, it was a half-measure. It did not create an All-India Bar, and the High Courts still retained massive disciplinary control over the Bar Councils.

After independence, the fragmented legal profession (Barristers, Vakils, Pleaders, Mukhtars) was chaotic and unsuited for a unified democratic republic.

⇒The S.R. Das Committee

The Government constituted the All India Bar Committee chaired by Justice S.R. Das. The committee gave revolutionary recommendations:

• Creation of a unified National Bar.
• Abolition of all classes of practitioners; everyone should just be called an 'Advocate'.
• Creation of an autonomous Bar Council of India and State Bar Councils.
• Transfer of disciplinary power from High Courts to the Bar Councils.

(These recommendations gave birth to the Advocates Act, 1961).

This is the Magna Carta of the modern Indian legal profession.

⇒Key Objectives of the Act

• Unification: Abolished the confusing hierarchy of Pleaders, Mukhtars, and Vakils. Created a single class of legal practitioners known as 'Advocates'.
• Autonomy: Established the Bar Council of India (BCI) and State Bar Councils, making the legal profession largely self-governing.
• Common Roll: An advocate enrolled in one State Bar Council is entitled as of right to practice in ANY court in India, including the Supreme Court (Section 30).
• Discipline: Shifted the power to punish lawyers for misconduct from the Judges to the Disciplinary Committees of the Bar Councils.

While the Act abolished the British-era classes, it created two new internal classes based on merit and experience.

⇒Section 16: Senior and Other Advocates

The Supreme Court or a High Court may designate an advocate as a Senior Advocate, with their consent.

⇒Criteria for Designation

The Court designates a Senior Advocate if it is of the opinion that by virtue of their ability, standing at the Bar (usually 10+ years), or special knowledge in law, they deserve such distinction.

⇒Restrictions on Senior Advocates

Seniors cannot draft pleadings, file vakalatnamas, or directly accept briefs from clients. They must always be briefed by an 'Other Advocate' (Instructing Counsel).

Who can become an Advocate in India?

⇒The Requirements

• Must be a citizen of India (though a national of another country may be admitted if citizens of India, duly qualified, are permitted to practice in that country).
• Must have completed the age of 21 years.
• Must have obtained a degree in law from any university recognized by the Bar Council of India.
• Must pay the prescribed enrolment fee to the State Bar Council.

Even if you have a law degree, the State Bar Council can refuse to enroll you.

⇒Grounds for Disqualification

No person shall be admitted as an advocate if:

• Convicted of an offence involving moral turpitude (e.g., fraud, rape, murder, forgery).
• Convicted of an offence under the Untouchability (Offences) Act, 1955.
• Dismissed or removed from employment or office under the State on any charge involving moral turpitude.

⇒The Cooling-Off Period

This disqualification is not permanent. It ceases to have effect after a period of two years has elapsed since his release or dismissal.

• Evolution: Moved from a fragmented system (Barristers/Vakils) under the British to a unified National Bar.
• Advocates Act, 1961: The milestone legislation that created a single class of 'Advocates' and established autonomous Bar Councils.
• Section 16: Divides the profession into Senior Advocates (designated by High Court/Supreme Court) and Other Advocates.
• Section 24: Qualifications for enrolment (Citizen, 21 years old, recognized LLB degree).
• Section 24A: Disqualified if convicted for moral turpitude, but only for a cooling-off period of 2 years post-release.

⇒Premium Advice for Top Marks

• History Questions: If asked about the history of the profession, do NOT just jump to 1961. Start with the Mayor's Courts (1726), mention the discrimination in the Supreme Courts (Barristers vs Vakils), the Chamier Committee (1923), and finally the S.R. Das Committee (1951) which led to the 1961 Act.
• Senior Advocates: When explaining Sec 16, clearly list the restrictions placed on Senior Advocates (no drafting, no direct client contact). This shows you understand the practical functioning of the Bar.
• Moral Turpitude (Sec 24A): If given a problem question where a law student was convicted of rash driving (not moral turpitude) vs cheating/fraud (moral turpitude), apply Section 24A correctly. Don't forget to mention the 2-year cooling-off period.