39
“Law Master’s” Publication “Admission and Enrollment of Advocates” Prof. S.D. Bhosale
(..4..)
Admission and Enrollment of Advocates
QUESTION BANK
1. Who is eligible to enrol as an advocate on a state roll? What are the disqualifications for
enrollment?
2. To provide legal aid to poor person is important provision under Advocates Act. 1961.”
Discuss the same in the light of other salient features of Act.
3. Who is an advocate? What are the qualification to enroll as an advocate? Explain the
procedure for enrollment.
4. State the provisions relating to constitution, powers and function of the B.C.I.
5. What are the qualificationsand disqualifications and explain in detail the procedure to
enroll an advocate.
6. Explain the provisions relation to-
a) Admission as Senior Advocate and
b) Restrictions on Senior Advocates under Advocate Act, 1961 and Bar Council of
India Rules.
7.What are the provisions of Advocate Act, 1961, regarding disqualifications from roll?
Short Notes
1. Right of advocate.
40
“Law Master’s” Publication “Admission and Enrollment of Advocates” Prof. S.D. Bhosale
2. Qualification for enrolment as an advocate.
3. Right to practice.
4. Senior Advocate
SYNOPSIS
I. Persons who may be admitted as Advocates on a State Roll (S. 24)-..............................41
a) He is a citizen of India-.............................................................................................41
b) He has completed the age of twenty-one years-....................................................41
1. Convicted of an offence involving moral turpitude-.............................................42
IV Removal of names from roll of State Bar Council (S. 26-A)-........................................44
41
“Law Master’s” Publication “Admission and Enrollment of Advocates” Prof. S.D. Bhosale
Chapter III of AdvocatesAct, 1961from Ss. 16 to 28 dealswith theadmission and
enrolment of advocates.
I. Persons who may be admitted as Advocates on a State Roll (S. 24)-
A person is qualified to be admitted as an advocate on a State roll if he applies to
that and the following conditions are fulfilled-
a) He is a citizen of India-
The first qualification required to be enrolled as an advocate is that the person
applying must be a citizen of India. However, a national of any other country may be
admitted as an advocate on a State Roll if citizens of India, duly qualified, are permitted
to practice law in that other country. Thus, there is a reciprocal arrangement to admit
other nationals if Indian citizens are allowed to practice advocacy in that country.
b) He has completed the age of twenty-one years-
A person who has not attained the age of twenty-one is not eligible to be an
advocate.
In Supreme Court in India Council of Legal Aid and Advice v. Bar Council
Facts—The Bar Council of India had a fixed upper age limit of 45 for enrolment as an
advocate. A person beyond 45 was not enrolled as an advocate.
Supreme Court held the rule ultra-vires the Advocates Act and hence void.
c) He has obtained a decree in law-
To be enrolled as an advocate, the person should have passed a three-year course
of study in law from any university in India recognised by the Bar Council of India for
the purposes of this Act.
In some cases, the person who has obtained a degree from any University outside
the territory of India, if the degree is recognised for this Act by the Bar Council of India,
may be enrolled as an advocate.
e) He fulfils conditions specified in the rule-
The person to be enrolled as an advocate must fulfil such other conditions as may
be specified in the rules made by the State Bar Council.
All India Bar Examination-
The Bar Council of India inserted Rules 9 to 11 under Chapter III in
1 AIR 1995 SC 691
42
“Law Master’s” Publication “Admission and Enrollment of Advocates” Prof. S.D. Bhosale
advocacy unless he successfully passes the All India Bar Examination conducted by the
Bar Council of India.
Thus, the All India Bar Examination has made it compulsory to practice advocacy
since 2010, as per the rules framed under this Chapter.
After passing the examination, the Bar Council issues a Certificate of Practice.
After getting the certificate, the already enrolled advocate can start practice.
f) Pays stamp duty and enrolment fees-
The person enrolled as an advocate should pay such enrolment fee as may be
determined from time to time.
Supreme Court held that the rules made by the Bar Council of India for compulsory
pre-enrolment Training and apprenticeship are ultra vires.
II. Disqualification for enrolment (S. 24-A)-
A person cannot be admitted as an advocate on a State roll in the following
circumstances-
1. Convicted of an offence involving moral turpitude-
Accordingto the Supreme Court, ‘offenceagainstmoral turpitude’means‘anyact
contrary to justice, honesty, modesty or good morals. Several Acts prohibit offences of
moral turpitude.
2. Convicted of an offence under the Untouchability (Offences) Act, 1955-
Any person convicted of an offence under the provisions of the Untouchability
(Offences) Act, 1955, cannot also be enrolled as an advocate.
3. Dismissed from office on any charge involving moral turpitude-
Any person dismissed or removed from employment or office under the State on
any charge involving moral turpitude cannot be enrolled as an advocate.
A person convicted of the offence mentioned above cannot be enrolled as an advocate
unless two years have elapsed from his release, dismissal, or removal.
However, any person convicted of the offence mentioned above can be enrolled
as an advocate after two years have elapsed from his release, dismissal, or removal.
Moreover, the above disqualification from enrollment does not apply if a person
is dealt with after being found guilty under the provisions of the Probation of Offenders
2 The Bar Council of India resolution oat is meeting held on 30 April to amend Part, VI, Chapter III of the Bar
Council of India Rules (Conditions for Right to Practice) was published in Gazette of India on June 12, 2010. The
Resolution to conduct
3 AIR 1999 Supreme Court 1167
43
“Law Master’s” Publication “Admission and Enrollment of Advocates” Prof. S.D. Bhosale
Act, 1958. In other words, if the person convicted is released on probation for good
behaviour, the disqualification does not apply.
S. 24 A was introduced in the Advocates Act of 1961 by the 1973 amendment to
disqualify certain persons from entering the legal profession for a limited period.
The Supreme Court held that a conviction for obtaining a false certificate about social
status, i.e. backwardness, etc., would be an offence involvingmoral turpitude and such
a person would be disqualified for enrolment.
III. Enrolment procedure-
A. Authority to whom an application for enrolment is to be made (S. 25)-
An application for admission as an advocate shall be made in the prescribed form
to the State Bar Council within whose jurisdiction the applicant proposes to practice.
Such an application is to be made in the form the State Bar Council prescribes.
B. Disposal of application for admission as an advocate (S. 26)-
A State Bar Council shall refer every application for admission as an advocate to
its enrolment committee, and such committee shall dispose of the application in the
prescribed manner.
Every State Bar Councilshall prepareandmaintaina roll of all advocatesadmitted
to the Bar (S. 17). The State Bar Councils have to send copies of rolls of advocates to
the Bar Council of India (S. 19). Moreover, an advocate whose name is entered into the
roll of one State Bar Council may get it transferred to another State Bar Council (S. 18).
Where the enrolment committee of a State Bar Council proposes to refuse any
such application, it shall refer the application for opinion to the Bar Council of India,
and every such reference shall be accompanied by a statement of the grounds in support
of the refusal of the application. The decision of the Bar Council of India shall be final
in such cases.
Where theenrolmentcommittee of a State Bar Councilhasrefusedanyapplication
for admission as an advocate on its roll, the State Bar Council shall, as soon as may be,
send intimation to all other State Bar Councils about such refusal stating the name,
address and qualifications of the person whose application was refused and grounds for
the refusal.
Where a State Bar Council has refusedthe applicationofanypersonfor admission
as an advocate on its roll, no other Bar Council shall entertain an application for
admission of such person as an advocate on its roll, except with the previous consent in
writing of theState Bar Councilwhich has refusedtheapplicationandofthe Bar Council
4 AIR 1995 SC 94
44
“Law Master’s” Publication “Admission and Enrollment of Advocates” Prof. S.D. Bhosale
of India (S. 27).
IV Removal of names from roll of State Bar Council (S. 26-A)-
A State Bar Council may remove from the State roll the name of any advocate
who is dead or from whom a request has been received to that effect.
Moreover, as per provisoto S. 26, the Bar Council of India may, if satisfied,either
on a reference made to it on this behalf or otherwise, that any person has got his name
entered on the roll of the advocates by misrepresentation as to an essential fact or by
fraud or undue influence, remove the name of such person from the roll of advocates
after giving him an opportunity of being heard.
V. Certificate 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 maintained by it under
this Act.
Every person whose name is so entered in the State roll shall notify any change in
the place of his permanent residence State Bar Council concerned within ninety days of
such change.
VI. Rights of Advocates-
Advocates have the following rights-
1. Only Advocates can practice the profession of law (S. 29)-
Advocates are the only recognised class of persons who are entitled to practice
law. Before the Advocates Act of 1961, there were Vakils, Mukthars, pleaders, revenue
agents, attorneys, etc., who were practising the legal profession. However, by the
Advocates Act of 1961, all these classes are eliminated from practice, and only
Advocates can practice the legal profession. However, Vakils, Mukhtars, etc., who were
practisingbefore cominginto existence of the Advocates Act of 1961, were permitted to
practice. However, new practitioners can only be Advocates (S. 55).
2. Right to practice (S. 30)-
Every advocatewhose name is enteredin the State roll shall be entitledto the right
to practice throughout the territory to which the Advocates Act applies. The right to
practice is available-
(i) in all courts, including the Supreme Court;
(ii) before any Tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any
law for the time being in force entitled to practice.
Thus, theright to practiceis twofold:first, it extendsto thewhole of India to which
the Advocates Act applies; second, it is available before all courts and tribunals or
45
“Law Master’s” Publication “Admission and Enrollment of Advocates” Prof. S.D. Bhosale
authorities legally authorised to take evidence.
Right to practice is a fundamental right-
As per Art. 19 (1) (a) of the Indian Construction, the right to freedom of speech
and expression is a fundamental right. Advocacy is a manifestation of that right. An
advocatehasto carryon his dutieswithout fear of police,bureaucrats,legislationor even
judges. However, his right is subject to the reasonable restrictions mentioned in Art. 19
The Supreme Court has held that the right to practice is not only a statutory right under
the Advocates Act but is also a Fundamental right under Art. 19 (1) (g) of the
Constitution. However, the right is subject to the restrictions providedunder Art. 19 (6).
However, no person is entitled to practice in any court or before any authority or
person unless he is enrolled as an advocate under this Act (S. 33). It is further provided
that even non-advocate can also be permitted by the Court or the authority to appear
before it in a particular case (S. 32). Whoever, the right to appear by non-advocate is
The High Court can also make rules laying down the conditions subject to which
an advocate shall be permitted to practice in the High Court and the Courts subordinate
thereto (S. 34).
Under S. 49 (1) of the Advocates Act, the Bar Council of India has made rules
subject to which the right of practice is to be exercised. Chapter III of Part VI of the
Rules of the Bar Council of India contains several rules dealingwith the condition of the
right to practice. Those conditions are as follows-
(a) Every advocate is duty bound to see that his name appears on the roll of the State Bar
Council within which jurisdiction he ordinarily practices.
(b) An advocate is prohibited from enteringinto a partnership or any other arrangement
to share remuneration with any person who is not an advocate.
(c) EveryadvocateshallkeepinformedtotheBar Councilof everychangeof hisaddress.
(d) An advocate who voluntarily suspends the practice for any reason is required to
intimate to the Bar Council by the registered post of such suspension together with
his certificate of enrolment in the original.
e) No advocate shall be entitled to practice if, in the opinion of the Council, he is
sufferingfrom such contagious disease, which makes the practice of law a hazard to
the health of others.
3. Right of a fee (Rule 11)-
5 AIR 2002 Supreme Court 1310
6 In Surender Raj Jaiswal v. Smt. Vijaya Jaiswal AIR 2003 A.P. 317
46
“Law Master’s” Publication “Admission and Enrollment of Advocates” Prof. S.D. Bhosale
An Advocate has a right to a fee consistent with his standingat the bar and the nature
of the case.
Short Notes
Senior Advocate-
I. Admission as Senior Advocate (S. 16)-
There shall be two classes of advocates, namely, (i) senior advocates and (ii) other
advocates.
An advocate may, with his consent, be designated as a senior advocate-
(i) if the Supreme Court or a High Court is of the opinion that
(ii) by virtue of his ability, standingat the Bar or special knowledge or experience in law,
(iii) he is deserving of such distinction.
Position of a Senior Advocate-
Designation as a Senior Advocate’ means recognition by the Supreme Court or
High Court advocate’s professional skill, long-standing in the Bar, experience and
services rendered by him to society.
The Supreme Court held that “by virtue of the pre-eminence which seniorcounsels enjoy
in the profession, they not only carry greater responsibilities, but they also act as a model
to the junior members of the profession. A senior counsel occupies a position next to the
Attorney-General and the Solicitor-General. It is an honour and privilege conferred on
advocates of standing and experience by the Chief Justice and judges of the High Court
or the Supreme Court. Senior Councils, thus, become leading counsel and take
precedence on all counsels not having that rank.”
The Senior Advocate has the right of pre-audience over all other advocates after
the Attorney-General of India, Solicitor-General of India, and Advocate-General of
States (S. 23). ‘Right of pre-audience’ means the right to be heard before another
advocate is heard.
Restrictions and limitations on Senior Advocates-
Under S. 49 (1) (g), the Bar Council of India has made rules subjecting Senior
Advocates to the following restrictions.-
1. A senior advocate shall not appear without an advocate on Record in the Supreme
Court or without an advocate of the State Roll in any Court, Tribunal, or before any
person or other authorities.
2. A Senior Advocateshallnotfile a Vakalatamaor actin any Court orTribunalor before
any person or other authority. He just appears finally to argue or exceptionally to
7 AIR1987 Supreme Court 1550
47
“Law Master’s” Publication “Admission and Enrollment of Advocates” Prof. S.D. Bhosale
3. He shall not accept instructions to draft pledgingor affidavits, advice on evidence, or
to do any drafting work of an analogous kind in any Court of Tribunal or before any
person or other authority. He cannot undertake conveyancing work of any kind
whatsoever,
4. He shall not accept directly from a client any brief or instructions to appear in any
Court or Tribunal or before any person or other authority in India.
5. A senior advocate may, in recognition of the services rendered by an advocate on
6. A senior advocate, however, is free to make concessions or give undertakings in the
course of arguments on behalf of his clients on instruction from the junior advocates.
7. A senior advocate who had acted as an advocate (Junior) in a case shall not, after he
has been designated as a senior advocate, advise on the grounds of appeal in a Court of
Appeal or in the Supreme Court, except with an advocate as aforesaid.
*****
8 Saraswati v. Tulsi Ram Seth AIR 1971 Delhi 110
9 Each roll of advocates shall consists of two parts, the first part containing the names of senior advocates and the
second part, the names of other advocates.