ADVOCATES ACT, 1961
Module -4
1. ADMISSION AND ENROLLMENT OF ADVOCATES
Introduction-
The legal profession plays a pivotal role in upholding justice, defending the rights of
individuals and ensuring the proper functioning of a democratic society. In India,
advocates, often referred to as lawyers or attorneys, are individuals who represent
clients in various legal matters, from civil disputes to criminal cases.
To become an advocate in India, one must undergo a rigorous process of admission
and enrolment, governed by the Advocates Act, 1961 and the rules set forth by the
Bar Council of India and State Bar Councils.
The Legal Framework on Admission and Enrolment of Advocates in India
The admission and enrolment of advocates in India are primarily governed by the
Advocates Act of 1961. This legislation sets out the rules and regulations that govern
the legal profession in India and establishes the framework for becoming a practising
advocate.
Under the Advocates Act, the Bar Council of India (BCI) and the State Bar Councils are
responsible for overseeing the admission and enrolment of advocates. The BCI is the
apex regulatory body for the legal profession in India and lays down the standards for
legal education and professional conduct. Each state in India has its own State Bar
Council, responsible for enrolling advocates within its jurisdiction.
Senior and other Advocates
The admission and enrolment of advocates in India are regulated by the Advocates
Act of 1961, specifically Sections 16 to 28.
Under Section 16 of the Advocates Act, advocates are classified into two categories:
Senior Advocates and Other Advocates.
Senior Advocate designation is granted by the Supreme Court or a High Court when
they believe that an advocate’s legal expertise, reputation at the Bar or unique
knowledge warrant such recognition, with the advocate’s consent. This honour
comes with significant responsibilities, as senior advocates are expected to set an
example for younger members of the profession.
The procedures for designating an advocate as a Senior Advocate in the Supreme
Court and their practice restrictions can be found in the Supreme Court Rules, 1966.
Each High Court has its own processes for appointing Senior Advocates. The Bar
Council of India imposes certain restrictions on Senior Advocates, including:
Senior Advocates may not file vakalatanamas, memoranda of presence,
pleadings or applications in any court, tribunal or authority.
In the Supreme Court, Senior Advocates cannot appear in court without an
Advocate on Record.
In High Courts, Senior Advocates must be accompanied by an Advocate from
the state roll.
They cannot undertake drafting activities for pleadings, affidavits or any similar
tasks.
They are not allowed to engage in conveyancing work of any kind.
Senior Advocates cannot directly accept cases or instructions to appear in
courts or tribunals.
When an advocate is recognised as a Senior Advocate, the registrar of the respective
Supreme Court or High Court must notify all relevant High Courts, the secretary of
the State Bar Council and the Bar Council of India, including the advocate’s name and
the date of recognition.
Eligibility Criteria for Admission as an Advocate
The Advocates Act, 1961 and its associated rules define the eligibility criteria for
individuals seeking admission and enrolment as advocates in India. These eligibility
criteria include the following:
1. Citizenship: The applicant must be a citizen of India. This requirement ensures that
only Indian nationals are eligible to practice law in the country.
2. Age: The applicant must have attained the age of 21 years. There is no upper age
limit for admission as an advocate, as affirmed by the Supreme Court in the case
of Indian Council of Legal Aid and Advice vs. Bar Council of India (AIR 1995 Supreme
Court 691).
3. Educational Qualifications: To be eligible for admission, an applicant must possess
a law degree from a recognised university. The law degree can be obtained through
various routes:
a) Completing a 3-year law course after graduation (regular university studies).
b) Completing a 5-year integrated law course after 10+2.
c) Completing a law degree from a foreign university recognised by the Bar Council of
India.
4. Additional Conditions: Applicants must meet any other conditions specified by the
State Bar Council through their rules.
5. Enrolment Fee: Applicants are required to pay an enrolment fee to both the State
Bar Council and the Bar Council of India.
Roll of Advocates
Every State Bar Council is mandated by Section 17 of the Advocates Act to maintain a
roll of advocates.
This roll is divided into two sections, with the first section containing the list of Senior
Advocates and the second section comprising Other Advocates.
In cases where multiple advocates are enrolled on the same day, their names are
arranged based on their seniority by age.
An individual cannot be enrolled as an advocate with more than one Bar Council.
However, someone whose name is already enrolled in one state’s roll may apply to
the Bar Council of India for a transfer to another state’s roll, subject to reasonable
grounds and the absence of pending disciplinary proceedings.
The State Bar Council is responsible for transmitting authorised copies of the
Advocates Roll when new advocates are added or names are removed.
Certificate of Enrolment
Section 22 of the Advocates Act requires the State Bar Council to provide a certificate
of enrolment in the prescribed format to any individual whose name is included in
the roll of advocates maintained by that council.
Advocates listed on the state roll must promptly inform the concerned State Bar
Council of any changes in their place of business or permanent residence within 90
days.
Procedure for Admission and Enrolment of Advocates in India
The process of admission and enrolment as an advocate involves the following steps:
1. Educational Qualification: The applicant must first obtain the necessary
educational qualifications by completing the prescribed law degree program.
2. Application: After fulfilling the educational criteria, the candidate must submit an
application for enrolment to the State Bar Council in the jurisdiction where they
intend to practice.
3. Payment: Along with the application, the candidate must submit the prescribed
enrolment fee through a bank draft drawn in favour of the respective Bar Council.
[Link]: The State Bar Council will verify the application and eligibility of the
candidate.
5. Enrolment: Once the application is approved, the candidate’s name is entered into
the State Bar Council’s roll of advocates. The candidate is now eligible to practice law
in the jurisdiction of that State Bar Council.
6. Bar Council of India: The State Bar Council forwards the enrolled advocate’s details
to the Bar Council of India for inclusion in the All-India Bar Council.
7. Practice: The enrolled advocate can then begin practising law, representing clients
in various legal matters and appearing in courts of law.
Exceptions and Special Provisions on Admission and Enrolment of Advocates in India
The Advocates Act, 1961, also includes certain exceptions and provisions for
individuals with specific qualifications or experience:
1. Vakils and Pleaders: Those who were practising as Vakils, Pleaders or Mukhtars for
at least three years are eligible for admission as advocates.
2. Former Public Servants: Individuals who were entitled to practice law but were in
public service on a particular date may still be eligible for admission.
3. Qualifications by Experience: The Bar Council of India may specify qualifications by
experience for admission as an advocate.
4. Judges: Former judges of any High Court in India may be admitted as advocates
upon retirement.
Disqualification for Admission and Enrolment of Advocates in India
Section 24A of the Advocates Act defines disqualifications for enrolment, including
individuals who are ineligible to become advocates:
Those convicted of moral turpitude offenses.
Individuals convicted under the Untouchability (Offenses) Act of 1955.
Those dismissed from government employment due to allegations of moral
turpitude. The disqualification is lifted two years after their release from
prison or dismissal from service.
However, if someone found guilty under the above conditions is benefiting
from the Probation of Offenders Act, 1958, they are not disqualified.
In cases of denial of enrolment due to disqualification, the State Bar Council must
inform all other State Bar Councils, providing the applicant’s name, address and
reasons for denial and the applicant will be prohibited from reapplying.
In legal precedents, it has been established that individuals with legal degrees cannot
practice other professions concurrently.
Therefore, a person with a legal degree working in a different field cannot become an
advocate.
Similarly, full-time law professors receiving regular salaries are prohibited from
practising as advocates and full-time salaried law officers cannot enrol as advocates.
Disposal of Admission Applications
Section 26 of the Advocates Act states that the State Bar Council sends all admission
applications to its enrolment committee.
This committee, subject to written directives from the State Bar Council, processes
and disposes of these applications accordingly.
However, if the Bar Council of India finds, through referral or other means, that an
advocate has obtained enrolment through misrepresentation, fraud or undue
influence, they may remove that person’s name from the advocate’s roll after
providing an opportunity for the advocate to present their case.
Removal of Name from the Roll
According to Section 26-A of the Advocates Act, the State Bar Council has the
authority to remove an advocate’s name from the state roll upon receiving a request
for a deceased advocate
Conclusion
The admission and enrolment of advocates in India is a well-regulated process
designed to ensure that only qualified individuals with the requisite educational
background and eligibility criteria can practice law.
The Advocates Act, 1961 and the rules set by the Bar Council of India and State Bar
Councils govern this process.
Aspiring advocates must fulfil these requirements, submit their applications and pay
the necessary fees to embark on a fulfilling and challenging career in the legal
profession, upholding justice and the rule of law in India.
2. RIGHT OF PRE-AUDIENCE
Pre-audience is a fundamental right accorded to advocates in India, as under Section
23 of the Advocates Act, 1961. This right essentially grants advocates the privilege of
being heard before others in legal proceedings.
By prioritizing experienced counsel, the legal system aims to ensure efficient,
informed, and just legal processes.
The Hierarchy of Pre-Audience
The Advocates Act, 1961, establishes a clear hierarchy of pre-audience:
1. Attorney General of India: As the highest legal officer of the Government of
India, the Attorney General enjoys the highest priority.
2. Solicitor General of India
3. Additional Solicitor General of India
4. Second Additional Solicitor General of India
5. Advocate General of a State
6. Senior Advocates
7. Other Advocates
This hierarchy ensures that senior advocates, who possess greater expertise and
experience, are given priority in legal proceedings.
The Significance of Pre-Audience
Pre-audience plays a crucial role in several aspects of legal practice:
1. Efficient Legal Proceedings: By prioritizing experienced counsel, the courts can
expedite legal proceedings and deliver timely justice. Senior lawyers can quickly
understand cases and present clear arguments, saving time. This can significantly
reduce the time taken for hearings and judgments, leading to a more efficient legal
system.
2. Effective Representation: Senior advocates can provide effective representation to
their clients by identifying key legal issues, gathering relevant evidence, and
developing strong legal arguments.
3. Preserving Legal Ethics: Pre-audience helps maintain the dignity and decorum of
legal proceedings. By prioritizing experienced and ethical advocates, the courts can
ensure that legal arguments are presented in a fair and respectful manner. This
contributes to a legal system that is based on the principles of justice, fairness, and
integrity.
4. Promoting Legal Education and Training: Pre-audience provides an opportunity for
young lawyers to learn from experienced counsel. By observing senior advocates in
action, young lawyers can develop their skills, knowledge, and understanding of the
law. This can help to improve the overall quality of legal representation in the
country.
5. Strengthening the Judiciary: Pre-audience helps to strengthen the judiciary by
ensuring that judges have access to the best legal minds. By hearing arguments from
experienced and knowledgeable advocates, judges can make informed and well-
reasoned decisions. This contributes to the development of a strong and
independent judiciary.
While pre-audience is a valuable right, it's important to note that it doesn't give
advocates absolute control over the course of legal proceedings. Courts retain the
discretion to manage case schedules and allocate time for arguments, ensuring that
all parties have a fair opportunity to present their case.
In the Prabal Dogra case, the Court held that the accused has no say in the matter of
investigation. The accused cannot dictate the investigation process or interfere with
the appointment of investigating officers. This decision reinforces the principle that
the investigation process is the sole prerogative of the investigating authorities.
While advocates have the right to access case records and prepare their cases, they
cannot dictate the course of the investigation or the appointment of investigating
officers. The investigative process remains the sole right of the investigating
authorities, and advocates must respect this principle.