Module 3.

The Advocates Act, 1961

The Indian Advocates Act, 1961 was brought into force to implement all
recommendations made by the All-India Bar Committee. This act aims at amending
and forming laws related to the legal practitioners and to provide for the establishment
of the State Bar Council and the All-India Bar Council.

This act made a provision to set up the Bar Council of India as an autonomous body,
which would be given powers to carry out and discharge certain duties and perform
certain functions. According to this act, an Advocate is defined as “An advocate who
has entered any roll under the Advocate’s Act, 1961”. Earlier, according to the Legal
Practitioners Act, lawyers were classified as advocates, lawyers, vakil etc. but this act
scrapped these titles off and put everyone under the single title of advocate. They are
then also classified as “Senior Advocates” and “other advocates” on their merit.

According to this act, advocates have the right to practice in any court. Although the
advocates have the right to practice in any court, there is a provision under this act
which provides the courts to allow or deny an advocate to practice in that court. Under
article 32 of this act, the advocate whose name is not registered under the Advocates
Act, can also practice in any court, but only at the discretion of the court.

There are various provisions under this act which speak about the punishment of an
advocate in case of any misconduct. A State Bar Council has the right to punish an
advocate for any misconduct done.

Objects of and definitions under the Act

This act enabled the establishment of the Bar council of India and State Bar Councils.

Any advocate cannot enroll himself/ herself in more than one State Council, though he
can be transferred from one state council to another.

The Bar council was given an autonomous stature.

It provided for the provisions for similar roll of Advocates throughout the country.

It also provided to combine all the laws of the legal system into one.

There were various provisions set up for the Bar Council at state and central level.

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As stated earlier, the different titles like lawyer, vakil was scrapped off and a single title
of Advocate was applied.

Sec.2. Definitions.

(1) In this Act, unless the context otherwise requires,

(a) “advocate” means an advocate entered in any roll under the provisions of this Act;

(d) “Bar Council” means a Bar Council constituted under this Act;

(e) “Bar Council of India” means the Bar Council constituted under section 4 for the
territories to which this Act extends; 3[***]

(h) “law graduate” means a person who has obtained a bachelor’s degree in law from
any University established by law in India;

(i) “Legal practitioner” means an advocate 6[or vakil] or any High Court, a pleader,
mukhtar or revenue agent;

(k) “roll” means a roll of advocates prepared and maintained under this Act;

(m) “State Bar Council” means a Bar Council constituted under section 3;

(n) “State roll” means a roll of advocates prepared and maintained by a State Bar
Council under section 17. 7[(2) Any reference in this Act to a law which is not in force
in the State of Jammu and Kashmir or in the Union territory of Goa*, Daman and Diu,
shall, in relation to that State or that territory, be construed as a reference to the
corresponding law, if any, in force in that State or that territory, as the case may be.]

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2. Bar Council of State:

The Advocate Act, 1961, has made provisions for the establishment of Bar Councils.
The Bar Council will be two patterns - Bar Council of India and State Bar Council.
Under Section 3 of the Act State Bar Council will be established. However, Under
Section 4, a Bar Council of India will be established.

Establishment of Bar Councils for Each States and Union Territories

State Bar Councils :

(1) There shall be a Bar Council —

(a) for each of States of Andhra Pradesh, Bihar, Gujarat, Jammu and Kashmir,
Jharkhand Madhya Pradesh, Chhattisgarh, Karnataka, Orissa, Rajasthan Uttar
Pradesh and Uttaranchal, to be known as the Bar Council of that State;

(b) for the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram,
Nagaland and Tripura to be known as the Bar Council of Assam, Nagaland,
Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh.

(c) for the State of Kerala and the Union territory of Lakshadweep, to be known as the
Bar Council of Kerala;

(cc) for the State of Tamil Nadu and the Union territory of Pondicherry to be known as
the Bar Council of Madras;

(ccc) 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;

(d) for the States of Punjab and Haryana, and the Union territory of Chandigarh, to be
known as the Bar Council of Punjab and Haryana;

(dd) for the State of Himachal Pradesh, to be known as the Bar Council of Himachal
Pradesh;

(e) for the State of West Bengal and the Union territory of Andaman and Nicobar
Islands, to be known as the Bar Council of West Bengal; and

(f) for the Union territory of Delhi, to be known as the Bar Council of Delhi.

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Composition of State Bar Council

A State Bar Council shall consist of the following members, namely:—

(a) in the case of the State Bar Council of Delhi, the Additional Solicitor General of
India ex officio in the case of the State Bar Council of Assam, Nagaland, Meghalaya,
Manipur and Tripura, the Advocate General of each of the State of Assam, Manipur,
Meghalaya, Nagaland and Tripura, ex officio; in the case of the State Bar Council of
Punjab and Haryana, the Advocate-General of each of the State of Punjab and
Haryana, ex officio; and in the case of any other State Bar Council, the Advocate-
General of the State, ex officio;

(b) in the case of a State Bar Council with an electorate not exceeding five thousand,
fifteen members, in the case of a State Bar Council with an electorate exceeding five
thousand but not exceeding ten thousand, twenty members, and in the case of the
State Bar Council with an electorate exceeding ten thousand, twenty-five members,
elected in accordance with the system of proportional representation by means of the
single transferable vote from amongst advocates on the electoral roll of the State Bar
Council: Provided that as nearly as possible one-half of such elected members shall
subject to any rules that may be made in this behalf by the Bar Council of India, be
persons who have for at least ten years been advocates on a State roll, and in
computing the said period of ten years in relation to any such person, there shall be
included any period during which the person has been an advocate enrolled under the
Indian Bar Councils Act, 1926 (38 of 1926).

Term of Office of the Members of State Bar Council : Section 8 Provides term of the
office of the Members of the State Bar Council -

The term of office of an elected member of a State Bar Council (other than an elected
member thereof referred to in section 54) shall be five years from the date of
publication of the result of his election:

Provided that where a State Bar Council fails to provide for the election of its member
before the expiry of the said term, the Bar Council of India may, by order for reasons
to be recorded in writing, extend the said term, the Bar Council of India may, by order,
extend the said term for a period not exceeding six months.

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Disqualification of Member of Bar Council of State

Section 10B : Disqualification of members of 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 any rule made by the Bar Council of India.

f) Powers and Functions of Bar Council of State

Functions of State Bar Council:

a) General functions -

Section 6(1) of the Advocate Act 1961 makes provisions in respect of the functions of
the State Bar Council.

Functions of State Bar Councils

(1) to admit persons as advocates on its roll;

(2) to prepare and maintain such roll;

(3) to entertain and determine cases of misconduct against advocates on its roll;

(4) to safeguard the rights, privileges and interests of advocates on its roll;

(5) to promote the growth of Bar Associations for the purposes of effective
implementation of the welfare schemes referred to in clause (a) of sub-section (2) of
this section clause (a) of sub-section (2) of section 7;

(6) to promote and support law reform;

(7) to conduct seminars and organise talks on legal topics by eminent jurists and
publish journals and paper of legal interest;

(8) to organise legal aid to the poor in the prescribed manner;

(9) to manage and invest the funds of the Bar Council;

(10) to provide for the election of its members;

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(11) to visit and inspect Universities in accordance with the directions given under
clause (i) of sub-section (1) of section 7;

(12) to perform all other functions conferred on it by or under this Act; (i) to do all other
things necessary for discharging the aforesaid functions.

A State Bar Council may constitute one or more funds in the prescribed manner 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 in this behalf;

(c) establishing law libraries.

A State Bar Council may receive any grants, donations, gifts or benefactions for all or
any of the purposes specified in sub- section (2) which shall be credited to the
appropriate fund or funds constituted under that sub-section.

b) To Issue Certificates of Enrollment -

Section 22 of Advocate Act 1961 provides that, There shall be issued a certificate of
enrollment in the prescribed form by the State Bar Council 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 to the State Bar Council concerned within ninety
days of such change.

Admission as an Advocate on a State Roll -

A person may be enrolled as an advocate by the State Bar Council if he fulfils the
Conditions required for admission as an advocate Under section 24 of the Advocate
Act, 1961. Conditions laid down in this section for admission as an advocate, may be
enrolled as an advocate by the State Bar Council, namely :

a) He is a citizen of India.

b) He has completed the age of twenty-one years.

c) He has obtained the degree of Law.

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d) He fulfills such other conditions as may be specified in the rules made by the State
Bar Council.

e) He has paid, in respect of enrollment, stamp duty, and an enrollment fee payable
to State Bar Council.

An application for enrollment shall be made in the prescribed form to the State Bar
Council within whose jurisdiction the applicant proposes to practice. The application is
referred to enrollment Committee of State Bar Council. The application may be allowed
or rejected. Where the Enrollment Committee of Bar Council propose to refuse any
such application, it shall refer such application for the opinion of the Bar Council of
India.

It may be noted that Section 26A of Advocate Act empower a State Bar Council by
amendment of 1973 to remove from the State Roll the name of any Advocate who is
dead or from whom a request has been received to that effect.

Section 27 of The Act Provides that where an application has been once refused, it
cannot be entertained by another Bar Council except in certain circumstances. It lays
down that where a State Bar Council has refused the application of any person for
admission as an advocate on its roll, no other State 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 the State Bar Council which refused the application and
of the Bar Council of India.

c) To Maintain Roll of Advocates -

Section 17. of Advocate Act, 1961 provides that every State Bar Council shall prepare
and maintain a roll of advocates in which shall be entered the names and addresses
of all persons who were entered as advocates on the roll of any High Court under the
Indian Bar Councils Act, 1926, immediately before the appointed day including
persons, being citizens of India, who before the 15th day of August, 1947, were
enrolled as advocates under the said Act in any area which before the said date was
comprised within India as defined in the Government of India Act, 1935, and who at
any time express an intention in the prescribed manner to practice within the
jurisdiction of the Bar Council also enroll all other persons who are admitted to be

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advocates on the roll of the State Bar Council under this Act on or after the appointed
date.

Each such roll of advocates shall consist of two parts - the first part containing the
names of senior advocates and the second part, the names of other advocates.

Section 19 of the Advocate Act, 1961, requires the State Bar Council to send copies
of rolls of advocates to the Bar Council of India. It provides that every State Bar Council
shall send to the Bar Council of India an authenticated copy of the roll of advocates
prepared by it for the first time under this Act and shall thereafter communicate to the
Bar Council of India all alterations in, the additions to, any such roll, as soon as the
same have been made.

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3. Bar Council of India:

a) Composition of Bar Council of India

Section 4 (1) of the Advocate Act 1961 provides that there shall be a Bar Council for
the territories to which this Act extends to be known as the Bar Council of India which
shall consist of the following members, namely —

(a) the Attorney-General of India, ex officio;

(b) the Solicitor-General of India, ex officio;

(c) one member elected by each State Bar Council from amongst its members.

Section 4(1-A) No person shall be eligible for being elected as a member of the Bar
Council of India unless he possesses the qualifications specified in the proviso to sub-
section (2) of section 3 of the Advocates Act.

Section 4(2) of the said Act provides that there shall be a Chairman and a Vice-
Chairman of the Bar Council of India elected by the Council in such manner as may
be prescribed.

Section 4 (2-A) makes it clear that a person holding office as Chairman or as Vice-
Chairman of the Bar Council of India immediately before the commencement of the
Advocates (Amendment) Act, 1977 , shall, on such commencement, cease to hold
office as Chairman or Vice- Chairman, as the case may be:

Provided that such person shall continue to carry on the duties of his office until the
Chairman or the Vice-Chairman, as the case may be, of the Council, elected after the
commencement of the Advocates (Amendments) Act, 1977, assumes charge of the
office.

The term of office :

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

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(ii) in any other case, 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.

Powers and Functions of Bar Council of India

The functions of Bar Council of India

Section 7 of the advocate Act 1961 provides that the functions of Bar Council of India
shall be –

A) The functions of bar council of India shall be –

i) to lay down standards of professional conduct and etiquette for advocates; (See
also....Professional Misconduct)

ii) to lay down the procedure to be followed by its disciplinary committee and the
disciplinary committee of each state bar council.

iii) to safeguard the rights, privileges and interests of advocates.

iv) to promote and support law reform.

v) to deal with the disposal of any matter arising under the Act which may be referred
to it by a state bar council.

vi) to exercise general supervision and control over the state bar council.

vii) to promote legal education and to lay down standards of such education in
consultation with the universities in India imparting such education and the state bar
council

viii) to recognize universities whose degree in law shall be a qualification for enrollment
for an advocate for that purpose to visit and inspect universities or cause the state bar
council to visit and inspect universities in accordance with such direction as it may be
given in this behalf

ix) to conduct seminars and organize talks on legal topics by eminent jurist and publish
journals and papers of legal interest.

x) to organize legal aid to the poor in the prescribed manner

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xi) to recognize on a reciprocal basis foreign qualifications in law obtained outside
India for the purpose of admission as an advocate under this Act.

xii) to manage and invest the funds of the bar council.

xiii) to provide for the election of its members

xiv) to perform all other functions conferred on it by or under this Act

xv) to do all other things necessary for discharging the aforesaid functions

2) The bar council of India may constitute one or more funds in the prescribed manner
for the purpose of giving financial assistance to organize welfare schemes for indigent,
disabled or other advocates Giving legal aid or advice in accordance with the rules
made in this behalf establishing law libraries

3) Bar council of India may receive any grants donations, gifts or benefactions for all
or any of the purposes specified in sub-section (2) which shall be credited to the
appropriate funds constituted under the sub section.

According to Section 7 (a) of the Advocate Act, 1961 the Bar Council of India may
become a member of international legal bodies such as the International Bar
Association or International Legal Aid Association, contribute such sums as it thinks fit
to Such bodies by way of subscription or otherwise and authorize expenditure on the
participation of its representatives in any international legal conference seminars.

B) Some of the important functions of Bar Council of India are as under -

I) Admission as advocate -

Section 20 of the Advocate Act provides that every advocate who was entitled as of
right to practice in the Supreme Court immediately before the appointed day and
whose name was not entered in any state roll may, within the prescribed time, express
his intention in the prescribed form to the Bar Council and on receipt thereof, the Bar
Council of India shall direct that the name of each advocate shall, without payment of
any fee, be entered in the role of state Bar Council and the State Bar Council
concerned shall comply with such direction. (See also..Enrolment of Supreme Court
Advocates )

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Section 19 - In this Section of the Advocates Act 1961, requires the State Bar Council
to send copies of rolls of advocate to the Bar Council of India. It provides that every
State Bar Council shall send to the Bar Council of India an authenticated copy of the
roll of Advocates prepare by it for the first time under this Act and shall, thereafter,
communicate to the Bar Council of India all alterations and addition to, such roll as
soon as the same have been made.

Section.18 of Advocate Act 1961 makes provision in respect of transfer of name from
one State roll to another. It provides that any person whose name is entered as an
advocate on the role of any State Bar Council for the transfer of his name from the roll
of State Bar Council to the roll of any other State Bar Council and on receipt of any
such application, the Bar Council of India shall direct that the name of such person
shall, without the payment of any few, be removed from the roll of the first mentioned
State Bar Council and be entered in the roll of the other State Bar Council and State
Bar Council concerned shall comply with such direction.

II) Appointment of committees and Staff members -

Section 9 of the Advocate Act empowers The Bar Council of India to appoint one or
more disciplinary committees, Legal aid committee’s u/s 9-A executive committee u/s
10(2), Legal Education Committee, etc.

Section 11 of the Advocate Act empowered the Bar Council to appoint a secretary
and accountant and such number of other persons as may deem necessary the
secretary and accountant, if any shall possess such qualification. It is mandatory that
the Bar Council shall have a secretary.

III) Maintenance of accounts and other books etc -

Section 12 of the Advocate Act requires the Bar Council of India to m maintain such
book of accounts and other books in such form and in such a manner as may be
described. The account shall be audited by the auditor's duly qualified to act as
auditors of the companies, at such as times and in such a manner as maybe
prescribed. The Bar Council of India shall send a copy of its accountants together with
the copy of the report of the auditors thereon to the Central Government and shall
cause same to be published in the Gazette of India.

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IV) Rules making power -

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

Section 15(2) of this Act provides that in particular and without prejudice to the
generality of the foregoing power. Such Rules may provide for the election of the
members of the Bar Council, chairman and Vice-chairman, Election disputes, filling of
casual vacancies in the Bar Council, power and duties of chairman and vice-chairman,
constitution of one or more funds, organizations of legal aid, and meetings conduct of
business of any committee, management and investment of funds of Bar Council.

Section 49 of the Advocate Act confers on the Bar Council of India general power to
make Rules for discharging its functions under this Act.

V) Power to Punish for Professional or other misconduct -

Section 36 of Advocate Act 1961 empowers the Bar Council of India to punish an
Advocate for professional or other misconduct like suspending advocate from practice
for such as it may deem feet and remove the name of the Advocate from the state roll
of Advocate. It has power to dismiss the complaint, reprimand the Advocate.

VI) Appellate Power -

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

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

VII) Other powers and functions of Bar Council of India -

To give such financial assistance as it fit to the State Bar Council in need of funds for
the purpose of performing its function.

To prevent a citizen of any country from practicing profession of law in India when
that country specified by the central government in this behalf, prevents citizen of India
from practicing the profession of law in their country.

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To call for the record of any proceedings from any State Bar Council or Committee
thereof to see legality and proprietary of such proceeding.

To give its own order of any of its committee accept the disciplinary committee.

To give direction to the State Bar Council or any other Committee thereof for the
proper and efficient discharge of the functions of the State Bar Council.

Membership in international bodies

Section 7A

Membership in international bodies. The Bar Council of India may become a

member of international legal bodies such as the International Bar Association or the
International Legal Aid Association, contribute such sums as it thinks fit to such bodies
by way of subscription or otherwise and authorise expenditure on the participation of
its representatives in any international legal conference or seminar.]

Provisions Common to Bar Council of India and Bar Council of State

Bar Council to be body corporate

Section 5 : Bar Council to be body corporate

Every Bar Council shall be a body corporate having perpetual succession and a
common seal, with power to acquire and hold property, both movable and immovable,
and to contract, and may by the name by which it is known sue and be sued.

Constitution of Committees of Bar Council

Section 10. Constitution of committees other than disciplinary committees.

(1) A State Bar Council shall constitute the following standing committees, namely:--

(a) an executive committee consisting of five members elected by the Council from
amongst its members;

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(b) an enrolment committee consisting of three members elected by the Council from
amongst its members.

(2) The Bar Council of India shall constitute the following standing committees,
namely:--

(a) an executive committee consisting of nine members elected by the Council from
amongst its members;

(b) a legal education committee consisting of ten members, of whom five shall be
persons elected by the Council from amongst its members and five shall be persons
co- opted by the Council who are not members thereof.

(3) A State Bar Council and the Bar Council of India may constitute from amongst its
members such other committees as it may deem necessary for the purpose of carrying
out the provisions of this Act.

Transaction of business by Bar Councils and committees thereof

Section 10A: Transaction of business by Bar Councils and committees thereof

(1) The Bar Council of India shall meet at New Delhi or at such other place as it may,
for reasons to be recorded in writing, determine.

(2) A State Bar Council shall meet at its headquarters or at such other place as it may,
for reasons to be recorded in writing, determine.

(3) The committees other than disciplinary committees constituted by the Bar Councils
shall meet at the headquarters of the respective Bar Councils.

(4) Every Bar Council and every committee thereof except the disciplinary committees
shall observe such rules of procedure in regard to the transaction of business at their
meetings as may be prescribed.

(5) The disciplinary committees constituted under section 9 shall meet at such times
and places and shall observe such rules of procedure in regard to the transaction of
business at their meetings as may be prescribed.

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Section 11 : Staff of Bar Council

(1) Every Bar Council shall appoint a secretary and may appoint an accountant and
such number of other persons on its staff as it may deem necessary.

(2) The secretary and the accountant, if any, shall possess such qualifications as may
be prescribed.

Section 12 : Accounts and audit

(1) Every Bar Council shall cause to be maintained such books of accounts and other
books in such form and in such manner as may be prescribed.

(2) The accounts of a Bar Council shall be audited by auditors duly qualified to act as
auditors of companies under the Companies Act, 1956 (1 of 1956), at such times and
in such manner as may be prescribed.

(3) As soon as may be practicable at the end of each financial year, but not later than
the 31st day of December of the year next following, a State Bar Council shall send a
copy of its accounts together with a copy of the report of the auditors thereon to the
Bar Council of India and shall cause the same to be published in the Official Gazette.

(4) As soon as may be practicable at the end of each financial year, but not later than
the 31st day of December of the year next following, the Bar Council of India shall
send a copy of its accounts together with a copy of the report of the auditors thereon
to the Central Government and shall cause the same to be published in the Gazette
of India.

Power of Bar Council to make Rules

Sec.15. 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-

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a. (Note:- Subs. by Act 60 of 1973, sec.12) 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 results of elections shall be published];

b.(Note:- Clause (b) omitted by Act 60 of 1973, sec.12)

c. (Note:- Clause (c) ins. by Act 38 of 1977, sec.5) 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 [ (Note:- Ins. by Act 38 of 1977, sec.5) or to
the office of the Chairman or Vice- Chairman] shall be finally decided;

e. (Note:- Clause (e) omitted by Act 23 of 1966, sec.3)

f. The filling of casual vacancies in the Bar Council ;

g. The power and duties of the Chairman and the Vice- Chairman of the bar Council ;

(ga) (Note:- Clause (ga) and (gb) ins. by Act 60 of 1973, sec.12) 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;

(gb) Organization 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 thereat, 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
other employees of the Bar Council;

l. The maintenance of books of accounts and other books by the Bar council;
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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.

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Election process

Who can contest and participate in the elections?

The elected members of a State Bar Council shall be elected by and from amongst
advocates, vakils, pleaders and attorneys who, on the date of the election, are entitled
as of right to practice in the High Court and are ordinarily practising within the territory
(including a Union Territory) for which the Bar Council is to be constituted. [Section 53
of the Advocates Act]

Conduct of the elections

Section 15 of Advocates Act states that a Bar Council may make rules to carry out the
election of members of the Bar Council by secret ballot and also lay down guidelines
regarding the manner of election of the Chairman and the Vice Chairman of the Bar
Council.

The term of office of members of State Bar Council

According to Section 8 of Advocates Act, the term of office of an elected member of a

State Bar Council (other than an elected member thereof referred to in section 54)
shall be five years from the date of publication of the result of his election.

Provided that where a State Bar Council fails to provide for the election of its member
before the expiry of the said term, the Bar Council of India may, by order for reasons
to be recorded in writing, the Bar Council of India may, by order, extend the said term
for a period not exceeding six months.

Constitution, functions and procedure of Committees of the Bar Council of India

The Council may appoint from amongst its members, one or more Committees as it
may deem necessary, in addition to those specified in the Act and delegate such
powers, duties, and functions to such Committees as it deems fit.

Any casual vacancy in the above Committees shall be filled up by the Council.

where the Chairman or the Vice-Chairman is a member of the Committee or the Sub-
Committee, the Committee or the Sub-Committee shall choose its Chairman for the
meeting unless at the time of the constitution thereof the name of the Chairman has
been specified.

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Unless otherwise determined at the time of the election, the term of the members of
the Committees of the Council shall be as follows:

Executive Committee – 2 years

Disciplinary Committee – 3 years

Legal Education Committee – 4 years

Legal Aid Committee – 2 years

Advocates Fund Committee – 2 years

Any other Committee not falling under the above clauses – 2 years

Election procedure for various committees

The Executive Committee

The procedure for the election of the Members of the Executive Committee shall be
by secret ballot.

A casual vacancy in the Committee shall be filled up by election by the Council.

The Committee shall elect its own Chairman and Vice Chairman. The Chairman shall
preside over the deliberations of the Committee and in his absence, the Vice-
Chairman shall preside.

The Committee shall be the executive authority of the Council and shall be responsible
for giving effect to the resolutions of the Council.

The Legal Education Committee

The procedure for the election of the Members of the Legal Education Committee shall
be by secret ballot.

The names of the remaining five members of the Committee to be co-opted shall be
proposed and seconded by the members of the Council. In case more than five
persons are proposed they shall be chosen by a show of hands. If there is equality of
votes, the Chairman of the meeting shall have a casting vote.

A casual vacancy in the Committee shall be filled in by the Council from amongst its
members or non-members as the case may be.

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The Disciplinary Committee

The procedure for the election or co-option of the members of the Disciplinary
Committee shall be by secret ballot.

Any casual vacancy shall be filled in by Council by election or co-option from amongst
its members or non-members as the case may be.

The Chairman or the Vice-Chairman of the Executive Committee shall assign and
allocate all matters relating to the Disciplinary Committees amongst them if more than
one such Committee is constituted or is in existence.

In case of the absence of a Bar Council of India’s member during the sitting of the
Disciplinary Committee of the Bar Council of India, the remaining two members of the
said Committee may request any available Bar Council of India member to fill the
vacancy caused by such absence.

Election Process not to be questioned on the grounds that due notice has not been
given to any person entitled to vote

No election of a member to a Bar Council shall be called in question on the ground

merely that due notice thereof has not been given to any person entitled to vote, if
notice of the date has, not less than thirty days before that date, been published in the
Official Gazette. [Section 14 of Advocates Act]

Resort in case of absence of elections

In case of absence of elections for the State Bar Council for a period of five years and
the extended time, according to Section 8A of the Advocates Act, a Special Committee
will be constituted which will consist of-

The chairman who shall be the ex-officio member of the State Bar Council (Usually
the Advocate General of the state)

Two members nominated by the Bar Council of India from amongst advocates of the
State Bar Council.

The Special Committee shall hold elections within a period of six months from the date
of its constitution which can also be extended by the Bar Council of India in case of
any reasonable cause of the delay.

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Loopholes in the election process

Undue delays in the conduct

The State Bar Councils are widely accused of undue delays in the election process
and henceforth of likely stay in the law enforcement mechanism in the country. To cite
an example, in Bihar, the elections were scheduled to happen in 2015 but did not
happen until this year which is almost after 7 whole years since the last elections. The
scenario is not much different for around 14 more states.

Inconsistencies among various bar councils

There is no set standard of the way elections are to be conducted and also no
uniformity in the eligibility of the candidates among various State Bar Councils. For
example, to be eligible for the Bar Council of TamilNadu and Puducherry elections, a
lawyer has to have either 10 reported judgements or must have contested five
judgments in each year in the previous five years. This is not the case with any other
Bar Council of the country. Consequently, there are very high chances of degraded
quality and faltered judgements due to the lack of any uniform standard for all the
councils in the country.

BCI not truly representative

BCI, as it makes rules and lays down guidelines for the whole of the country, is
supposed to be representing all the states and areas in an equal manner. However,
presently this is not the case. Rather, any State Bar Council having less than 5,000
advocates is not allowed to send members to BCI. Hence, BCI only represents
nineteen states out of a total of twenty-nine. Also, with the formation of the Special
Committees in a lot of states which consists of a major chunk of nominated members,
the Bar Councils are increasingly being governed by members who are nominated
rather than elected.

Occupancy of office post completion of tenure

According to the proviso to sub-section(3) of Section 4 of the Advocates Act, every

member of BCI shall continue to hold office as a member of the Bar Council of India
until his successor is elected. Hence the members whose tenure is over are still
occupying the office due to non-conduction of fresh elections. To cite an example, the

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Senior Advocate Manan Kumar Mishra who is currently the chairman of the Bar
Council of India is elected from Bar Council of Bihar and his term at the Bar Council of
Bihar has expired a long time ago. Consequently, his membership in BCI also should
have expired long back but that is not the case due to the aforementioned clause.

Not enough disciplinary powers with BCI

Relating to the ample amount of work that the BCI is allocated, it does not have
proportionate power to initiate disciplinary proceedings. Rather, the power to initiate
such proceedings lies exclusively with the State Bar Council’s Disciplinary Committee.
With the lack of these powers, it becomes very difficult for the BCI to work effectively
and efficiently.

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