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“Bar Councils”
Prof. S.D. Bhosale
(..3..)
Bar Councils
QUESTION BANK
1. Discuss and explain the constitution and functions of the Bar Council of India.
2. Discuss “Powers and Functions of State Bar Council”.
3. What are the various powers and functions of the State Bar Council?
4. State the provisions relating to constitution, powers and functions of the B.C.I.
5. Explain constitution, powers and functions of State Bar Council.
6. “To promote and support law reforms” is one of the functions of Bar Council. Explain
with other functions of Bar Council of India.
Short Notes
1. Appointment of Committees and staff members by State Bar Council.
2. Powers and functions of Bar Council of India.
3. State Bar Council.
4. To promote and support law reforms.
TABLE OF CONTENT
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B. Composition of State Bar Councils-.......................................................................31
1. General Functions (S. 6)-..............................................................................32
1. General Functions (S. 7)-..............................................................................35
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(a) to give financial assistance to State Bar Councils (S. 46-A)-
............................................................... Error! Bookmark not defined.
(b) Reciprocity (S. 47 (1))-................ Error! Bookmark not defined.
(c) Power of revision (S. 48 (A))- .... Error! Bookmark not defined.
(d) Power of Review (S. 48 (AA)- ... Error! Bookmark not defined.
(e)Power to give directions (S. 48-B)-Error!
Bookmark
not
defined.
(f) Indemnity against legal proceedings (S. 48)-Error!
Bookmark
not defined.
In Ex-Captain Harish Uppal v. Union of India................Error!
Bookmark not defined.
I. Introduction-
The Advocates Act of 1961 has made provisions for establishing Bar Councils.
The Bar Councilsare establishedattwo levels, i.e. at the State level “State Bar Councils”
and the national level “Bar Council of India”.
II. State Bar Councils-
A. Establishment of State Bar Councils (S. 3)-
There shall be a Bar Council-
(a) foreachof the Statesof Andhra Pradesh,Bihar, Gujrat, Jammu andKashmir, Madhya
Pradesh, Karnataka, Orissa, Rajasthan and Utter Pradesh- to be known as the Bar
Council of that State.
Thus, the provision states that each of the States mentioned above shall have an
independent State Bar Council.
(b) for the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram,
Nagaland and Tripura- to be known as Bar Council of Assam, Nagaland,
Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh;
Thus, one Bar Council is known by the names of all North Eastern States.
(c) for the State of Kerala and the Union Territory of Laccadive, Minicoy and Amindivi
Islands- to be known as the “Bar Council of Kerala”.
(d) for the States of Tamil Nadu and the Union Territory of Pondicherry- to be known as
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the Bar Council of Madras.
(e) for the States of Maharashtra and Goa and the Union Territories of Dadra and Nagar
Haveli and Daman and Diu to be known as the “Bar Council of Maharashtra and
Goa”;
(f) for the State of Punjab and Haryana and the Union Territory of Chandigarh- to be
known as the “Bar Council of Punjab and Haryana”;
(g) for the State of Himachal Pradesh- to be known as the “Bar Council of Himachal
Pradesh”,
(h) for the State of West Bengal and the Union Territories of Andaman and Nicobar
Islands- to be known as the “Bar Council of West Bengal”, and
(i) for the Union Territory of Delhi- to be known as the “Bar Council of Delhi”.
Thus, it shows that there are independent Bar Councils in each state, and for some
states, there are group Bar Councils.
B. Composition of State Bar Councils-
A State Bar Council shall consist of the following members, namely-
(a) Ex officio member-
In the case of-
(i) the State Bar Council of Delhi- the Additional Solicitor-General of India, ex
officio,
(ii) the State Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura- the
Advocate General of each of the States of Assam, Manipur, Meghalaya,
Nagaland and Tripura, ex officio,
(iii) the State Bar Council of Punjab and Haryana- the Advocate-General of each of
the States of Punjab and Haryana, ex officio
(iv) for any other State Bar Council- the State's Advocate General, ex officio.
(b) Number of other Members-
In addition to ex officio members, there are the following members-
(i) In the case of a State Bar Council with an electorate not exceeding five
thousand,- fifteen members.
(ii) In the case of a State Bar Council with an electorate exceedingfive thousand
but not exceeding ten thousand, twenty members and
(iii) In case of electorates exceeding ten thousand twenty-five members,
Such members are elected in accordance with the system of proportional representation
by means of the single transferable vote from amongst advocates on the State Bar
Council's electoral roll.
C. Qualification-
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As nearly as possible, half of such elected members shall be persons who have
been advocates on a State Roll for at least ten years.
D. Chairman and Vice-Chairman-
There shall be a Chairman and Vice-Chairman of each State Bar Council elected
amongst the members by the Council in such manner as may be prescribed.
E. Disqualification of Members of Bar Council (S. 3 (4))-
An Advocate shall be disqualified from voting at an election and from being a
member of the Bar Council unless he possesses such qualifications or satisfies such
conditions as may be prescribed on this behalf by the Bar Council of India and subject
to such rules that may be made by each State Bar Council.
An elected member of a Bar Council shall be deemed to have vacated his office if
he is declared by the Bar Council of which he is a member to have been absent without
sufficient excuse from three consecutive meetings of such council or if his name is, for
any cause, removed from the roll of advocates or if he is otherwise disqualified under
F. Functions of State Bar Council-
Every Bar Council shall be a corporate body with perpetual succession and a
common seal, with power to acquire and hold movable and immovable property and to
contract, and may, by the name by which it is known, sue and be sued (S. 5).
1. General Functions (S. 6)-
The general functions of the State Bar Council shall be
(1) to admit a person as an advocate on its rolls;
(2) to prepare and maintain the roll of advocates;
(3) to entertain and determine cases of misconduct against advocates on its roll;
(4) to safeguard the rights, privileges and interests of advocates in their roll;
(5) to promote Bar Associations' growth for effective implementation of welfare
schemes.
(6) to promote and support law reforms;
(7) to conduct seminars and organize talks on legal topics by eminent jurists and punish
journals and papers of legal interests;
(8) to organize legal aid to the poor in a prescribed manner;
(9) to manage and invest the funds of the Bar Council;
(10) to provide for the election of its members.
(11) to visit and inspect universities in accordance with the directions.
(12) to perform all other functions conferred on it by or under this Act.
1 Of the Advocates Act, 1961.
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(13) to do all other things necessary for discharging the aforesaid functions.
(14) to constitute one or more funds for the following purposes-
(a) giving financial assistance to organize welfare schemes for the indigent,
disabled or other advocates;
(b) giving legal aid or advice in accordance with the rules made on this behalf;
(c) establishing law libraries.
(15) to receive grants, donations, gifts, and beneficiations for the above purposes.
2. To issue Certificates of Enrolment (S. 22)-
The State Bar Council shall issue a certificate of enrolment in the prescribed form
to every person whose name is entered in the roll of advocates it maintains under this
Act. (Discussed in End notes for further details).
3. To Maintain the roll of Advocates (S. 17)-
Every State Bar Council shall prepare and maintain a roll of advocates, the names
and addressesofalladvocatesregisteredwith it shallbe entered.(DiscussedinEnd notes
for further details).
G. Powers of the State Bar Council-
The Bar Council of States has the following powers.
1. Power to make rules (S. 28)-
A State Bar Council may make rules as to the admission and enrolment of
Advocates.
Without prejudice to the abovementioned general power, the Bar Council may make
rules providing for
(a) the time within which and form in which an advocate shall express his intention to
enter his name in the roll of a State Bar Council.
(b) the form in which an application shall be made to the Bar Council of admission as
an advocateon its roll, and the manner in which such applicationshallbe disposed
of by the enrolment committee of the Bar Council.
(c) the conditions subject to which a person may be admitted as an advocate in any
such role;
(d) the installments in which the enrolment fee may be paid.
The rules made by the State Bar Council need approval from the Bar Council of
India.
2. Power to Punish Advocate for misconduct (S. 35)-
Where on receipt of a complaint or otherwise, a State Bar Council has reason to
believe that any advocate on its roll has been guilty of professional or other misconduct,
it shall refer the case for disposal to its disciplinary committee.
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The Disciplinary Committee, after allowing the advocate concerned and the
Advocate General to be heard, may make any of the following orders, namely; -
(a) dismiss the complaint or, where the proceedings were initiated at the instance of the
State Bar Council, direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates.
3. To appoint Committees and staff members-
Every Bar Council may appoint a disciplinary committee (S. 9), legal aid
committee (S. 9 (A)), and its staff, including a secretary, accountant, etc. (S. 11).
Moreover, A State Bar Council shall constitute standing committees like an executive
committee, legal education committee, etc. (S. 10).
4. To maintain accounts and conduct an audit (S. 12)-
Every Bar Council shall cause to be maintained such books of accounts and other
books in such form and such manner as may be prescribed.
The accounts of a Bar Council shall be audited by auditors duly qualified to act as
auditors of companies at such times and in such manner as may be prescribed.
III. Bar Council of India-
A. Composition (S. 4 (1))-
There shall be a Bar Council for the territories to which this Act extends, known
as the ‘Bar Council of India’.
The Bar Council of India shall consist of the following members viz.
(a) Ex-Officio member-
(i) the Attorney-General of India, ex officio;
(ii) the Solicitor-General of India, ex officio;
(b) Other members-
In addition to the above ex-officio members, the Bar Council of India consists of
one member elected by each State Bar Council from amongst its members.
Thus, the Bar Council of India consists of ex-officio members plus elected
members from each state.
B. Qualification (S. 4 (1-A))-
A person becoming a member of the Bar Council of India must possess the
requisite qualifications. The qualification is the same as discussed above to become a
member of the State Bar Council.
C. Chairman and Vice-Chairman (S. 4 (2))--
The Bar Council of India shall have a Chairman and a Vice-Chairman elected by
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the Council in such manner as may be prescribed.
The term of office of Chairman and Vice-Chairman (S. 4 (3))-
“Bar Councils”
Prof. S.D. Bhosale
The term of office of a member of the Bar Council of India elected by the State
Bar Council shall-
(i) In the case of a member of a State Bar Council who holds office ex-officio, be two
years from the date of his election or till he ceases to be a member of the State Bar
Council, whichever is earlier, and
(ii) In any other case, it will be for the period for which he holds office as a member of
the State Bar Council.
Provided that every such member shall continue to hold office as a member of the
Bar Council of India until his successor is elected.
An elected member of a Bar Council shall be deemed to have vacated his office if
he is declared by the Bar Council of which he is a member to have been absent without
sufficientexercisefromthree consecutivemeetingsof such Council or if his name is, for
any cause, removed from the roll of Advocates or if he is otherwise disqualified under
any rule made by the Bar Council of India (S. 10 (B)).
D. Venue of Meeting (S. 10-A)-
The Bar Council of India shall meet at New Delhi or at such other place as it may
for a reason to be recorded in writing, determine. The committees other than the
disciplinary Committees constituted by the Bar Council shall meet at the headquarters
of the respective Bar Council.
Bar Council and its committee, except the disciplinarycommittee, shall observe
such rules of a procedure regardingthe transaction of business at their meeting as may
be prescribed.
E. Functions of Bar Council of India-
Following are the functions of the Bar Council of India viz.
1. General Functions (S. 7)-
The general functions of the Bar Council of India are as follows-
(1) to lay down standards of professional conduct and etiquette for advocates;
(2) to lay down the procedure to be followed by its disciplinary committee and the
Disciplinary Committee of each State Bar Council;
(3) to safeguard the rights, privileges and interests of advocates;
(4) to promote and support law reform;
(5) to deal with and dispose of any matter arisingunder this Act, which may be referred
to it by a State Bar Council.
(6) to exercise general supervision and control over State Bar Councils;
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(7) to promote legal education and to lay down standards for such education.
(8) to recognise universities whose degree in law shall be a qualification for enrolment
as an advocate and for that purpose to visit and supervise such Universities.
(9) to conduct seminars and organise talks on legal topics by eminent jurists and punish
journals and papers of legal interests;
(10) to organise legal aid to the poor in the prescribed manner.
(11)to organise on a reciprocalbasisforeignqualificationsinlaw obtainedoutsideIndia
for the purpose of admission as an advocate.
(12) to manage and invest the funds of the Bar Council;
(13) to provide for the election of its members;
(14) to perform all other functions conferred on it by or under this Act.
(15) to do all other necessary things for discharging the aforesaid functions.
(16) to constitute funds for the purpose of-
(a) giving financial assistance to organise welfare schemes for the indigent,
disabled or other advocates;
(b) giving legal aid or advice in accordance with the rules made on this behalf;
(c) establishing law libraries.
(17) to receive grants, donations, gifts or benefactions for the above purposes.
(18) Become a member of international legal bodies such as the International Bar
Association or the International Legal Aid Association and contribute such sums as it
thinks fit to such bodies (S. 7-A).
The Supreme Court has heldthatimpartinglegal educationisentrustedtotheuniversities
in India, not the Bar Council of India. The Bar Council of India can suggest ways and
means to promote legal education at the universities. It may also lay down the standards
of education and syllabus in consultation with universities in India.
2. To admit Advocates (S. 24)-
Admitting names of Advocates is also an important function of the Bar Council of
India.
3. To appoint committees and Staff Members-
Like State bar Councils, the Bar Council of India can also appoint a disciplinary
committee (S. 9), a legal aid committee (S. 9 (A)), and its staff, including a secretary,
accountant, etc. (S. 11). Moreover, it can constitute standing committees like an
executive committee, a legal education committee, etc. (S. 10).
4. To maintain accounts and conduct an audit-
2 (1999)3SCC 176
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Prof. S.D. Bhosale
Like State Bar Councils, the Bar Council of India shall maintain such books of
accounts and other books in such form and manner as may be prescribed.
The accounts of a Bar Council of India shall be audited by auditors duly qualified
to act as auditors of companies at such times and in such manner as may be prescribed.
F. Powers of Bar Council of India-
Bar Council of India exercises the following powers-
1. Power to make rules (S. 15)-
The Bar Council of India can make rules like State Bar Councils regarding-
(1) election of its members, Chairman and Vice-Chairman, etc.
(2) the filing of casual vacancies in the Bar Council;
(3) the powers and duties of the Chairman and Vice-Chairman of the Bar Council;
(4) the constitution of funds,
(5) organization of legal aid and advice to the poor etc.
Thus, it showsthat theBar Councilof India is empowered with rule-makingpower
to carry out its functions properly.
The Supreme Court has held that the rule debarringa person who has completed the age
of forty-fivetobeenrolledasanadvocateisarbitrary,unreasonableandbeyondthepower
of the Bar Council of India.
2. Power to punish Advocates for misconduct (S. 36)-
Like the power of Bar Councils of States, the Bar Council of India also has the
power to punish the advocates for professional or other misconducts (refer to S. 35
discussed above).
3. Power to hear appeals (S. 37)-
The Disciplinary Committee of the Bar Council of India hear appeals from the
orders of the Disciplinary Committees of State Bar Councils. The Disciplinary
Committee of the Bar Council ofIndia may passsuchan order,includingan ordervarying
the punishment awarded by the Disciplinary Committee of the State Bar Council.
4. Other powers and functions of the Bar Council of India-
The Bar Council of India has the following powers and functions, viz.
(a) to give financial assistance to State Bar Councils (S. 46-A)-
(b) Reciprocity (S. 47 (1))-
Where any country specified by the Central Government on this behalf prevents
citizens of India from practising the profession of law or subjects them to unfair
discrimination in that country, no subject of any such country shall be entitled to practice
3 AIR 1995 SC 691
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the profession of law in India.
(c) Power of revision (S. 48 (A))-
The Bar Council of India may, at any time, call for the record of any proceeding
underthis Act which hasbeen disposedofby a State Bar Council or a Committee thereof,
and from which no appeal lies, to satisfy itself as to the legality or propriety of such
disposal, and may pass such orders, in relation thereto as it may think fit.
(d) Power of Review (S. 48 (AA)-
The Bar Council of India or any of its Committees, other than its disciplinary
committee, may, on its own motion or otherwise, review any of its orders within sixty
days from the date of that order.
(e)Power to give directions (S. 48-B)-
For the proper and efficient discharge of the functions of a State Bar Council or
any committee thereof, the Bar Council of India may, in the exercise of general
supervision and control, give such directions to the State Bar Council or the Committee
thereof as may appear to be necessary.
(f) Indemnity against legal proceedings (S. 48)-
No suit or other proceeding shall lie against any Bar Council or any committee
thereof or a member of the Bar Council for any act in good faith done or intended to be
done in pursuance of the provisions of this Act or any rule made thereunder.
In Ex-Captain Harish Uppal v. Union of India
The Supreme Court held that a Bar Council couldnot call a ‘strikeor boycott’to paralyse
the functioning of the judiciary.
*****