ADVOCATE’S ACT 1961

The Advocates Act, 1961 contains rules and laws pertaining to advocates. The major goal of
the Act is to create a single class of legal practitioners known as “advocates.” Advocates are
permitted to represent clients before all courts and tribunals in all states of Indian territory.
The advocates can only join one state Bar Council [vide Section 17(4) of the Act], although
they are free to move to another State Bar Council. The Indian Bar Councils Act has been
replaced by the Advocates Act, 1961. The Advocate Act of 1961 was created in order to carry
out the recommendations of the All India Bar Committee, which were supported by the Law
Commission’s fourteenth report in 1955. This Act’s primary goal is to unite and create a
single class of attorneys called “advocates.” Their major goals are to establish an All India
Bar Council and State Bar Councils, as well as a common qualification for the bar. It also
outlines an advocate’s obligations and rights.

On May 19, 1961, in the twelfth year of the Republic of India, Parliament passed The
Advocates Act, 1961. The Act has a total of 60 sections split into 7 chapters.

Features or the characteristics of the Advocate Act, 1961

 The Advocates Act, 1961 had the following features: It established the Bar Council of
India and State Bar Councils and paved the way for their formation.

 Even though advocates may be transferred from one state to another, advocates are
not permitted to enrol in more than one State-Bar Council.

 A self-governing authority has been given to the Bar Council.

 Additionally, the Act has made it possible for advocates to work in positions that are
similar all across the world.

 It also included provisions that allowed for the consolidation of all legal system
legislation into a single class or document.

 Various Bar Council regulations have been implemented in both state and central
laws.

 A single title called ‘advocate’ replaced the several titles that were previously granted
to advocates such as legal practitioners, vakils, attorneys, etc.
  On the basis of their qualifications, experience, and level of expertise, there are senior
advocates and other advocates as legal practitioners.

 The act primarily focuses on the consolidation of existing legal laws for the legal
profession.

 The Bar Council was given control over an autonomous body that has been assigned
certain duties.

 It may be seen that the Bar Council is a member of a number of international

organisations, including the international bar organisation. The Bar Council is a
recognised legal entity with the ability to acquire both moveable and immovable
property through litigation.

 Additionally, there are several state Bar Councils that are under the control of the All-
India Bar Council.

 They also have the same responsibilities as the All-India Bar Council, but they solely
look after their particular states. The Bar Council was granted an autonomous entity
that is entrusted with these responsibilities.

 According to the Act, State Bar Councils must exist in every state.

Definitions under the Advocate Act, 1961

Advocate: The term ‘advocate’ is discussed under Section 2(1)(a) of the Act. A person who
has registered on any roll created by this Act is an advocate. There were various
classifications of legal professionals known as pleaders, vakils, lawyers, and attorneys before
the enactment of this Act.

Bar Council of India: The word ‘Bar Council’ is covered by Section 2(1)(e) of the Act.
Section 4 of the Act establishes the Bar Council for the territories to which the Act applies.

Legal practitioner: The word ‘legal practitioner’ is covered by Section 2(1)(i) of the Act. A
legal practitioner is a person who is an advocate or vakil in any High Court, as well as a
pleader, mukhtar, or tax agent.

High Court: The term ‘High Court’ is covered by Section 2(1)(g) of the Act. The term ‘High
Court’ does not include a court for Judicial Commissioner, except in Sections 34(1) and
34(1A), as well as Sections 42 and 43. The term High Court in relation to a State Bar Council
means:

If a State Bar Council is established for a state or for a state and one or more union territories,
the High Court for the state.

If a Bar Council is constituted for Delhi, the High Court of Delhi.

Roll: The term ‘roll’ is discussed under Section 2(1)(k) of the Act. Under this Act, rolls are
recorded and maintained. It is a list of advocates or legal practitioners who practise in a court
or who are frequently present in court.

State: The term ‘State’ is discussed under Section 2(1)(l) of the Act. A state is a country or
territory that is organised as a political community and has a single state government under
the territory. The union territory is not included as a state

State roll: The term ‘State roll’ is discussed under Section 2(1)(n) of the Act. According to
Section 17, a State Bar Council must record, prepare, and maintain a state roll, which is a list
of advocates.

Important provisions under the Advocate Act, 1961

Application of the Act (Section 1): In India, the Advocates Act, 1961 is in effect nationally,
which is described under Section 1 of the Act. In the State of Jammu and Kashmir as well as
the Union Territories of Goa, Daman, and Diu, which comes into effect on the day that the
Central Government specifies in a notice published in the official gazette on their behalf.

Bar Council of India (Section 4): Section 4 of the Act permits the establishment of an All-
India Bar Council. The attorney general of India, who serves as an ex officio member, the
solicitor general of India, who also serves as an ex officio member and one member who is
chosen by each State Bar Council from among its members shall make up the body. The All
India Bar Council will have a chairman and vice-chairman who were chosen by the Council
itself according to the established procedures.

Bar Council which is to be a body corporate (Section 5): Any corporate body, including
the Bar Council of India and all state Bar Councils with perpetual succession and their own
common seal, is covered by Section 5 of the Act. Each Bar Council has the authority to
acquire and hold real property in its own name. It is capable of being sued, being sued in its
name, and entering into contracts in its name. A Bar Council can continue to exist since it is a
corporate entity with perpetual succession; therefore, it is unaffected by the fact that the
members’ terms of office have ended.

Membership in an international legal body (Section 7A): In accordance with Section

7A of the Act, the Bar Council of India is permitted to join organisations that represent
international law, such as the International Bar Association or the International Legal Aid
Association. The Bar Council of India is also required under this Section to pay dues to the
aforementioned international organisations, and it is also permitted to spend money to send
delegates to any international legal conference or seminar.

Term of office of members under the State Bar Council (Section 8): According to Section
8 of the Act, State Bar Council members are chosen to serve terms of five years, starting from
the day the results of the election are published. The Bar Council of India will extend the
term of office by examining the reasons if the State Bar Council fails to hold elections for its
members before the term expires, provided that the extension does not exceed a 6-month
period. By extending the term of members, the council will be notified that it must hold a
new election for members as the previous one was not held before the term’s expiry.

Transaction of business by the Bar Council and committees (Section 10A): According
to Section 10-A, the State Bar Council meets at its headquarters, and the Bar Council of India
meets in New Delhi. The meetings of these councils may take place anywhere, but the
justifications must be recorded in writing. The headquarters of the relevant Bar Council
should be the location of meetings for all committees, excluding the disciplinary committee.
The disciplinary committee will henceforth hold a meeting at a time and location where it is
possible to follow the rules established by the Indian Bar Council for conducting business at
meetings.

The staff of the Bar Council (Section 11): Section 11 deals with the appointment of
personnel to the Bar Council. Each and every Bar Council is required to have a secretary. The
accountant and other staff that are required for the office’s efficient operation may be
appointed by the Bar Council.

Senior and other advocates (Section 16): Section 16 discusses the senior advocate as well
as other advocates. The Supreme Court of India or the High Court, believes that if a person
has the skill, expertise, or experience to merit the title of “senior advocate,” they may use it
with the court’s approval.
State bar councils maintain the roll of advocates (Section 17): According to Section 17, it
is the responsibility of the State Bar Council to create and maintain a list of state advocates.
The roll has two sections. Senior advocates make up the first part, while other advocates
make up the second part. The entry is based on seniority in the state roll record. According to
Section 17(4), no person may be listed as an advocate on the rolls of more than one State Bar
Council.

Transferring the name from one state to another state (Section 18): According to Section
18, anybody who wishes to move from one state’s Bar Council to another must submit an
application to the bar association of India, New Delhi, using Form C Rule I Chapter III and
Part V of All India Bar Council’s Rules.

The main materials of the application are:

 A certified copy of the applicant’s enrollment on the state register.

 There is no disciplinary action ongoing against the applicant, and there is no objection
to transfer being ordered, according to a certificate from the state Bar Council stating
that the applicant’s enrollment has not been recalled and that they are permitted to
practise as of the date of their application.

Enrolment of certain Supreme Court advocates (Section 20): Section 20 of the Act
addresses the certificate of enrolment. For the enrollment of an advocate, a certificate would
be issued. The certificate is issued in accordance with the State Bar Council’s authorised
format. Any change to a person’s permanent address must be reported to the relevant State
Bar Council within 90 days.

Disqualification of enrolment (Section 24A): According to Section 24A of the Act, anyone
who has been arrested for an offence involving moral turpitude is ineligible to become a
member of the bar. This applies until two years have passed since the end of the
imprisonment. This disqualifies you from enrolling; according to the Supreme Court, if the
disqualification occurred after you enrolled, the advocate must serve a two-year
disqualification from the bar.

Advocates are recognised as a class of persons entitled to practice law (Section

29): According to Section 29 of the Act, advocates are only recognised among a specific
group of people who are qualified to practise law. Advocates have been permitted to practice
law as of the date on which they were appointed under that class alone.
Right of advocates to practise (Section 30): Section 30 of the Act defines the right to
practise as an advocate. An advocate is granted the right to practise law across the territory
before all courts and tribunals under this statute.

No one other than advocates is permitted to practice (Section 33): This section states that
anyone must be enrolled as an advocate under this Act in order to be permitted to represent
themselves in any court or before any authority.

STATE BAR COUNCILS (SECTION 6 OF ADVOCATES ACT, 1961)

State Bar Councils (Section 3): Section 3 of the Act allows for the establishment of a Bar
Council in each state. Union territories are joined by neighbouring countries. There is a
unique Bar Council for the union territory of Delhi. This is based on the All India Bar
Committee’s recommendations. For each State Bar Council, a chairman and vice chairman
will be chosen by the respective State Bar Council.

Composition of State Bar Councils

There shall be a chairman and a vice chairman of each State Bar Council elected by the
council. Advocate General of eac states shall be an ex-officio member of those respective
states. Further a State Bar Council consists of following members:

1. 15 members, if electorate is less than 5000

2. 20 members, if electorate is b/w 5000 to 10,000
3. 25 members, if electorates is more than 10,000

These members shall be elected in accordance with the system of proportional

representation by means of the single transferable vote from amongst advocates the electrol
roll of the State Bar Council.

Functions of the State Bar Councils (Section 6) Section 6(1) of the Advocates Act makes
provisions in respect of the functions of the State Bar Council. It provides that the functions
of the State Bar Council shall be

(i) to admit persons as advocates on its rolls;

(ii) to prepare and maintain such roll;

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

(iv) to safeguard the rights, privileges and interests of advocates on its roll;
(v) to promote the growth of Bar Associations for the purposes of effective implementation
of the welfare schemes referred to in Section 7;

(vi) to promote and support law reform;

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

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

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

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

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

(xii) to perform all other functions conferred on it by or under this Act;

xili) to do all other things necessary for discharging the aforesaid functions; Section 6(2)
provides that 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. Section 6(3)

further provides that a State Bar Council may receive any grant, donations, gifts or
benefactions for all or any of these purposes and it shall be credited to the appropriate fund
constituted for this purpose under this sub-section.

Section 6 outlines the duties of the State Bar Council.

 The Council must compile, maintain, and keep a record of such a roll in addition to
allowing applicants to be listed as advocates.

 If there is any misconduct on the part of any of the advocates on its list, the council
must investigate it and make a decision;
  It must also defend the rights, privileges, and interests of those advocates;

 It must encourage the growth of the bar association in order to effectively implement
welfare programmes;

 It must support and promote law reform; and

 It must also host seminars and organise lectures by eminent jurists on legal subjects.

 It also allows for the publication of journals and papers of legal interest.

 It organises legal help for the poor in a prescribed manner;

 It facilitates elections for its members of the State Bar Council, manages finances for
the Bar Council, and invests those funds.

 They can visit and inspect universities in accordance with the guidelines set forth
in Section 7(1)(i);

 They can carry out all other duties imposed by the Act; and

 They must also take additional actions required for carrying out the aforementioned
duties.

 The council shall establish one or more funds for the following purposes:

o Providing financial assistance to set up welfare programmes for the needy, the
disabled, or other advocates;

o It also provides legal assistance or advice when rules are adopted in this
regard;

o To create law libraries.

 The State Council may accept grants, donations, gifts, or benefactions for any of the
purposes indicated in subsection 2 of Section 6, which must be credited to the relevant
fund or funds established under the Subsection.

BAR COUNCIL OF INDIA

Bar Council of India (Section 4): Section 4 of the Act permits the establishment of an All-
India Bar Council. The attorney general of India, who serves as an ex officio member, the
solicitor general of India, who also serves as an ex officio member and one member who is
chosen by each State Bar Council from among its members shall make up the body. The All
India Bar Council will have a chairman and vice-chairman who were chosen by the Council
itself according to the established procedures.

Composition of the BCI

Composition/Organisation of Bar Council [Sections 4(1), 4(1) & 4(2)

Section 4(1) of the Advocates Act 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:—

 the Attorney-General of India, ex officio;

 the Solicitor-General of India, ex officio;

 one member elected by each State Bar Council from amongst its members.

Ex-officio members will continue as members so long as they hold the offices of Attorney
General and Solicitor General posts. The other members will continue as members so long
they are continuing as members of the State Bar Council.

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

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

Functions of the Indian bar council (section 7 of advocates act, 1961)

The following are the functions of the Bar Council of India under Section 7 of the Act:

 It must establish standards of professional conduct and etiquette for advocates;

 It must establish specific procedures to be followed by its disciplinary committee and

the disciplinary committee of each State Bar Council;

 Their primary function is to prepare and maintain a common roll of advocates and to
exercise general supervision and control over State Bar Councils;

 Its duties include general supervision of and control over state Bar Councils.
  It has to promote legal education.

 It has to set standards for that education in consultation with state Bar Councils and
universities in India that deal with higher education.

 They also have the responsibility of identifying the universities where a law degree
qualifies a graduate for enrolment as an advocate, and to that end, they either visit and
inspect those universities or give State Bar Councils specific directions to visit and
inspect.

 They also recognise a reciprocal basis for foreign legal qualifications gained outside
of India for the purpose of admission as an advocate under the Act.

 Other duties exist that are similar to those of the Indian State Bar Council. The Bar
Council of India carries out such activities as setting up one or more funds for the
organisation of welfare programmes for poor and disabled advocates providing legal
assistance and advice, as well as for establishing law libraries. Additionally, they
receive gifts, donations, and benefaction.

Powers of the Bar Council of India

Apart from the functions mentioned above the Bar Council of India has been specifically
conferred certain special powers, which are as follows:—

1. Power to appoint Committee and Staff-members: To perform above mentioned

functions the Act authorise Bar Council of India to constitute a number of committees
like:

Disciplinary Committee:

Legal Aid Committee:

Standing Committee: Section 10(1) makes provisions in respect of constitution of Standing

Committees by a State Bar Council.

Executive Committee and Legal Education Committee: Section 10(2) of the Advocates Act
requires the Bar Council of India to constitute the following committees:—

1. an executive committee consisting of nine members elected by the Council from

amongst its members,
 2. 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.

Section 11(1) of the Advocates Act requires every Bar Council to appoint a secretary. It also
empowers the Bar Council to appoint an accountant and such member of other persons on its
staff as it may deem necessary.

(Section 11(2)] The secretary and the accountant shall possess such qualifications as may be
prescribed.

2. Power to remove name from the rolls: The Bar Council of India is empowered,
either on a reference made to it or otherwise, if it is satisfied that any person has got
his name entered in the roll of the Advocates by misrepresentation, to remove such
person from the roll of advocates after giving him an opportunity of being heard.
Besides, the name of advocate may be removed from the roll as punishment for
misconduct in disciplinary proceedings.
3. Power of Revision: Apart from the power vested in it to remove the name of an
advocate in certain cases, and the power vested in its disciplinary committees to hear
and dispose of the disciplinary matters whether by way of original hearing or on
appeal, the Bar Council of India has the power at any time to call for the record of any
proceedings under the Act, which has been disposed of by a State Bar Council or a
Committee thereof, and from which no appeal lies, for satisfying itself as to the
legality or propriety of such a disposal and may pass such orders thereon as it deemed
fit. No order which prejudicially affects any person can be passed without giving him
a reasonable opportunity of being heard.
4. Power to punish for professional or other misconduct: Section 36 of the Advocates
Act empowers the Bar Council of India to punish an advocate for professional or
other misconduct. It provides that where on receipt of a complaint or otherwise the
Bar Council of India has reason to believe that any advocate whose name is entered
on any State roll has been guilty of professional or other misconduct, it shall refer the
case for disposal to its disciplinary committee. The disciplinary committee of the Bar
Council of India, in disposing of any case of professional or other misconduct of
advocate shall observe, so far as may be, the procedure laid down in Section 35 of the
Act.
 5. Appellate power: Section 37 of the Advocates Act empowers the Bar Council of
India to hear appeal against the order of the disciplinary committee of a State Bar
Council made under Section 35 of the Act. It provides that any person aggrieved by
an order of the disciplinary committee of a State Bar Council under Section 35 for
punishing an advocate for professional or other misconduct or the Advocate-General
of the State may, within 60 days of the date of the communication of the order to him,
prefer an appeal to the Bar Council of India.' Every such appeal shall be heard by the
disciplinary committee of the Bar Council of India which may pass such order
including the State Bar Council an order varying the punishment awarded by the
disciplinary committe of thereon as it deems fit. However, no order of the disciplinary
committee of the State Bar Council shall be varied by the disciplinary Committee of
the Bar Council of India so as to prejudicially affect the person aggrieved without
giving him reasonable opportunity of being heard.

Section 38 provides remedy to the person aggrieved by the order passed by the disciplinary
committee of the Bar Council of India. It provides that any person aggrieved by an order
made by the disciplinary Committe of the Bar Council of India under Section 36 or Section
37 of the Advocates Act or the Attorney-General of India or Advocate-General of the State
concerned, as the case may be, may within 60 days of the date on which the order is
communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may
pass such order including an order varying the punishment awarded by the disciplinary
committee of the Bar Council of India thereon as it deems fit. However, no order of the
disciplinary committee of the Bar Council of India shall be varied by the Supreme Court so as
to prejudicially affect the person aggrieved without giving him a reasonable opportunity of
being heard. (vi) Rule-making Power: Section 15 enumerates the powers of the State Bar
Councils and the Bar Council of India to make rules on the matters dealt with in Chapter II of
the Act relating to the Bar Council. Section 28 gives power to the State Bar Councils to make
rules on some matters connected with the preparation of rolls, training and examinations for
admission of advocates, form of application for enrolment and conditions for enrolment.

Section 15(3) makes it clear that any rule made by State Bar Council, whether under Section
15 or 28 shall have effect only if it has been approved by the Bar Council of India. It may be
noted in this connection that under the Indian Bar Councils Act, 1926, the rules made by the
Bar Councils required the previous sanction of the High Court.

49 of the Advocates Act confers on the Bar Council of India a general power to make rules.
It provides that the Bar Council of India may make rules for discharging its functions under
this Act, which includes rules on standards of professional conduct and etiquettes by Council
advocates, principles for guidance of the State Bar Councils and the manner in which
directions issued or orders made by the Bar council of India may be enforced and 'any other
matter which may be prescribed'. The Bar Council of India has made its rules on all these
matters.

6. Other Powers and Functions: Section 46A of the Advocates Act provides that the
Bar Council of India may if it is satisfied that any State Bar Council is in need of
funds for the purpose of performing its functions under the Advocates Act, give such
financial assistance as it deems fit to that Bar Council by way of grant or otherwise.

Section 47 provides that the Bar Council of India may prescribe the conditions subject to
which foreign qualifications in law obtained by persons other than citizens of India shall be
recognised for the purpose of admission as an advocate under this Act.

Where any country specified by the Central Government in this behalf by the notification in
the official Gazette, 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 practise the profession of law in India.

Section 48-A provides that the Bar Council of India may, at any time, call for the record of
any proceeding under this Act which has been disposed of by a State Bar Council or a
committee thereof and from which no appeal lies for the purposes of satisfying itself as to the
legality or propriety of such disposal and may pass such orders in relation thereto as it may
think fit. It has been made clear that no order which prejudicially affects any person shall be
passed under this section without giving him a reasonable opportunity of being heard.

Section 48-B of the Advocates Act empowers the Bar Council of India to give direction to a
State Bar Council or any Committee thereof for the proper and efficient discharge of the
functions assigned to it. Where a State Bar Council is unable to perform its functions for any
reason whatsoever, the Bar Council of India may, without prejudice to the generality of the
foregoing power, give such directions to the ex officio member thereof as it may appear to it
to be necessary and such directions shall have effect notwithstanding anything contained in
the rules made by the State Bar Council.

Various committees under the Advocates Act, 1961

Constitution of a special committee (Section 8A of Advocates Act, 1961)

 In cases when there is no election, a special committee is constituted. That is formed

in accordance with Section 8A of the Act if there is no election. When the State Bar
Council fails to hold regular member elections, a special committee is formed. The
members of the special committee will be:

 The chairperson shall be a State Bar Council ex-officio member. If more than one
person serves as an ex-officio member, the chairman should be the senior-most
member.

 The Bar Council of India will nominate two members from the list of advocates on
the State Bar Council.

Disciplinary Committee (Section 9 of Advocates Act, 1961)

 According to Section 9, the State Bar Councils and All Bar Councils in India are
required to form at least one or more disciplinary committees.

 Two members of the elected council and one member of the co-opted council who is
an advocate on the state Bar Council’s roll must provide up each disciplinary
committee, which shall have three members total.

 The head of a disciplinary committee must be the most experienced attorney on the
panel. According to Section 9, the State Bar Council and the Bar Council of India are
required to establish one or more legal assistance committees.

 These committees must have a minimum of 5 members and a maximum of 9

members. The regulations of the All-India Bar Council outline the requirements, the
process of selection, and the period of office for members.

Legal Aid Committee (Section 9A of Advocates Act, 1961)

 Section 9A of the Advocates Act creates a constitutional legal aid committee.

  One or more legal aid committees must be established by the Bar Council, and each
committee must have a minimum of five and a maximum of nine members.

Various other committees

The State Bar Council and the Bar Council of India are given authority under Section 10. The
following committees must be formed by the State Bar Council:

 An executive committee is composed of five council members that are elected by the
council.

 An enrollment committee shall consist of three people chosen by the council from
among its members.

The following standing committees ought to be established by the Bar Council of India:

 There will be nine people on the executive committee, chosen by the council from
among its members.

 A legal education committee consists of ten members; of these, five are chosen by the
council from among its members, and the remaining five are co-opted by the council.

Whenever further committees are required, the State Bar Council and the Bar Council Of
India will appoint members to such committees. Section 13 of the Act states that no decision
made by the Bar Council or any other committee may be challenged because of a vacancy or
a fault in the committee’s constitution.

Rights and duties of an advocate under the Advocate Act, 1961

Rights of an advocate under the Advocate Act, 1961

In India, an advocate has the following rights:

Right to practice (Section 30) and freedom of expression and speech:

 From the perspective of the legal profession, the term ‘right to practise’ refers to an
exclusive right granted to advocates to represent clients in court and before tribunals.
There are two levels of protection for the right to practise, and they are as follows:

1. Protection in General: Article 19(1)(g) of the Indian Constitution safeguards

each person’s right to engage in whatever practice they choose.
 2. Specific Protection: According to Section 30 of the Advocates Act, 1961, a
person registered with a State Bar Council is entitled to practice law before
any court or body in India, including the Supreme Court.

 The Central Government made it effective recently by issuing a notification. An

advocate who is registered with the Bar Council of India is granted the only authority
to practise law in courts.

 If an advocate is speaking during practice, no one may interrupt them unless they are
violating the court’s rules and regulations.

 The freedom of speech and expression is guaranteed by Article 19(1)(a) of the Indian
Constitution. All Indian citizens are entitled to this fundamental right. Even in a court
of law, an advocate has the freedom to speak and express oneself.

Pre-audience rights:

 A court of law must provide an advocate with the opportunity to speak first, according
to Section 23 of the Advocates Act.

 Advocates have the right not to be interrupted before their statement is completed.
This provision is employed as an advocate’s privilege as well as a right to pre-
audience rule. The right to be heard comes first and foremost. The person in the top
position in the hierarchy is given the right to advocacy by the law.

 In India, the following is the preferred hierarchy system:

1. Attorney General

2. Solicitor General

3. Additional Solicitor General

4. The Second Additional Solicitor General

5. Advocate General of the State

6. Senior advocates

7. Other advocates

 This is the hierarchy of advocacy used in India. In the absence of another advocate,
the attorney general has the right to represent himself in court. In accordance with this
 rule, an advocate is also permitted to speak in front of the courtroom audience and to
represent his client in front of a judge.

Right of opposition to arrest:

 All advocates are guaranteed under Section 135 of Civil Procedure Civil, 1908 that
they won’t be detained while travelling to or from a tribunal or court on another
subject, with the exception of cases involving criminal charges and contempt of court.

 In certain situations, the police are not allowed to detain a civil advocate. An advocate
is referred to as an officer of the court.

Right to appear in any court:

 All advocates are permitted to practise in any Indian court or tribunal, according to
Section 30 of the Act.

 They have the right to enter the court or tribunal even if they haven’t registered with
that particular tribunal or court.

 No matter if they are representing a client or not, an advocate may enter the
courtroom and take any seat to watch the proceedings. An advocate may also enter the
Supreme Court and observe the proceedings.

Right to see an accused person in jail:

 There is no restriction on how often an advocate can visit a client who is being held in
jail. Advocates are even permitted to see their clients every day in jail.

 According to the law, a person is deemed innocent unless proven guilty. As a result, it
is essential for an advocate to fully understand the case by meeting with his client—
even while they are in custody—to discuss the important details and related
documents so that they can effectively argue the case in court.

Right to professional communication:

 Communication between an advocate and his client must be regarded as professional

communication under Section 126 of the Indian Evidence Act,1872. Such
communication shall not be disclosed.

The right to protect the secrecy of communications:

  An advocate has exclusive rights under Section 129 of the Indian Evidence Act of
1872. The advocate has the right to protect the confidentiality of his client’s
communications.

 The advocate is not required to disclose to anybody the conversation he and his client
had on the matter.

 According to Section 129 of the Indian Evidence Act of 1872, no one is allowed to
pressure an advocate into disclosing the conversations he has with his client.

Right to pay a fee:

 According to Rule 11 of Chapter 2 of Part VI of the Rules of the Bar Council of India,
an advocate is entitled to get payment when he provides or renders services to a client.
According to his position at the bar, he can exercise this right.

Right with respect to vakalatnama:

 The advocate has the right to solely represent his client in that particular matter after
a vakalatnama is signed in his name. An advocate also has the authority to support the
public prosecutor in court and submit a note of appearance on behalf of a defendant
for whom he is not counsel.

Right to refuse a case:

 An attorney has the authority to decline to represent a client in a lawsuit involving

illegal activity.
Professional Misconduct under The Advocates Act, 1961

By all means, the legal profession is intended to be divine or sacred. Every profession has a
set of standards for professional conduct that members of that profession must uphold.
However, there is also the reality that professional misconduct occurs frequently in both
advocacy work and other professions.

In layman’s words, it refers to various actions taken by individuals that appear to be

inconsistent with professional ethics and unsuited for the profession. Black’s Dictionary gives
a precise definition of the phrase as the violation of some established and unambiguous rule
of action, a prohibited act, a failure to perform a duty, unlawful behaviour, and improper or
wrong behaviour.

The Advocates Act, 1961 as well Indian Bar Council are silent in providing an exact
definition for professional misconduct because of its wide scope, though under Advocates
Act, 1961 to take disciplinary action punishments are prescribed when the credibility and
reputation of the profession come under a clout on account of acts of omission and
commission by any member of the profession.

Advocates Act

The provisions of Section 35 of the Advocates Act, which are as follows, address
professional misconduct by Indian attorneys and advocates:

If a person is found guilty of professional misconduct, the case will be referred to a

disciplinary committee, a hearing date will be set, and the Advocate and the Advocate
General of the State will be given a show-cause notice. After hearing from both parties, the
State Bar Council’s disciplinary commission The disciplinary committee of the State Bar
Council, after being heard of both the parties, may:

1. Dismiss the complaint, or where the proceedings were initiated at the instance of the
State Bar Council, directs that proceedings be filed;

2. Reprimand the advocate;

3. Suspend the advocate from practice for such a period as it deems fit;

4. Remove the name of an advocate from the state roll of advocates.[3]

There are multiple kinds of misconduct, thus this expression must be considered broadly to
extend the meaning under natural law. It is not justified to limit their natural meaning. The
Bar Council of India has the authority to establish guidelines and standards for professional
misconduct under Section 49 of the Advocate Act. According to the Act, it is against the
advocate’s code of ethics for anybody to make advertisements or solicitations. Additionally,
he is not permitted to use the name or service for unlawful purposes, demand payment for
training, or place advertisements in publications, personal communications, or interviews.

Misconduct is broad enough to cover both misfeasance and malfeasance, and it applies to
professionals. It also covers unprofessional acts, even if they are not always wrong. Any
behaviour that has the potential to reflect poorly on the legal profession or damage the
positive perception that the public should have of it constitutes professional misconduct.

The Supreme Court ruled in State of Punjab v. Ram Singh that misconduct can include moral
turpitude, must be improper or wrong behaviour, unlawful behaviour, wilful behaviour, a
forbidden act, a violation of an established and clear rule of action or code of conduct, but not
just a mistake of judgement, carelessness, or negligence in the performance of duty.

Section 35 of the Advocates Act of 1961 deals with the disciplinary powers of the State
Bar Councils and the punishment of advocates for misconduct.

Section 35[2] states that –

“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”.

Furthermore, the disciplinary committee of a State Bar Council shall set a date for the case to
be heard and shall give notice to the advocate involved as well as the State’s Advocate-
General. After giving the advocate in question and the Advocate-General an opportunity to be
heard, the disciplinary committee of a State Bar Council may decide on the matter.

The Disciplinary Committee can issue the following orders: dismiss the complaint or direct
that the proceedings be filed if the complaint was filed at the request of the State Bar Council.

 Reprimand the lawyer.

 Suspend the lawyer from practising for as long as it sees fit

 Remove the advocate’s name from the State’s list of advocates.

When dealing with any case brought under this section, the Bar Council of India’s
disciplinary committee must follow the same procedure as set out in section 35. When it
comes to the Bar Council of India, notice must be given to both the concerned advocate and
the Attorney-General of India, which in the case of the State Bar Council is the State
Advocate-General.

Any person who is aggrieved by an order of the disciplinary committee of a State Bar
Council made under section 35 or by the Advocate-General of the State may appeal to the
Bar Council of India under section 37 within sixty days of the date of communication of the
order to him.

The Bar Council of India’s disciplinary committee will hear such an appeal. Furthermore, any
person who is still aggrieved by an order made by the Bar Council of India’s disciplinary
committee under section 36 or section 37, or the Attorney-General of India, as the case may
be, may file an appeal with the Supreme Court within sixty days of the date on which the
order is communicated to him, and the Supreme Court may pass such order (including an
order varying the punishments awarded by the disciplinary committee of the Bar Council of
India) thereon as it deems fit.

Case laws

Contempt of court as professional misconduct

Contempt of court may be defined as an offence of being disobedient or disrespectful towards

the court or its officers in the form of certain behaviour that defies the authority, justice, and
dignity of the court. In various cases involving contempt of court, the court held that if any
advocate or legal practitioner is found guilty of the act of contempt of court, he/she may be
imprisoned for six years and may be suspended from practicing as an advocate (In re Vinay
Chandra Mishra). The court also held that license of the advocate to practice a legal
profession might be canceled by the Supreme Court or High Court in the exercise of the
contempt jurisdiction.

There have been numerous additional significant rulings concerning instances of professional
misconduct by attorneys. The court in V.C. Rangadurai v. [Link] examined the issue of
professional misconduct in such a way that the judgement was rendered in a humane manner,
taking the accused’s future into consideration. Even yet, the court declared, “justice has a
corrective edge, a socially beneficial purpose, especially if the offender is too old to be
pardoned and too young to be disbarred. Therefore, given the social environment of the legal
profession, a remedial punishment that is not cruel must be administered.

The court then rendered a ruling after carefully considering each and every element of the
case as well as the parties involved. It established a deterrence style of justice such that the
accused individual receives certain sanctions but also served as a message to others who
could be planning similar crimes.

The verdict proved to be a turning point in cases involving professional misconduct since it
gave a successful verdict without endangering the accused person’s future. The court
delivered the ruling in a number of other cases, such as J.S. Jadhav v. Musthafa Haji
Muhammed Yusuf[5] in a manner that gave the wrongdoers the impression that offenders will
be punished accordingly.

Case laws

In Sambhu Ram Yadav v. Hanuman Das Khatry, the appellant filed a complaint with the
Rajasthan Bar Council against an advocate alleging that while acting as counsel in the case,
the advocate wrote a letter alleging that the judge in question accepts bribes and requested Rs.
10,000 to acquire the judge’s favour. The Disciplinary Committee declared the advocate to be
completely unsuitable to be a lawyer after finding the advocate guilty of “misconduct” The
Rajasthan Bar Council’s conclusion that the legal profession is not a trade or business was
upheld by the Supreme Court.

Members of the profession have a special responsibility to uphold the to ensure that justice is
carried out legally, it is important to maintain the integrity of the profession and to deter
corruption. The advocate’s actions were extremely improper because they not only interfered
with the administration of justice but also damaged the profession’s standing in the eyes of
the general public.

Bar Council of Maharashtra v. M.V. Dahbolkar [6] The facts under consideration involved
advocates positioning themselves at the entrance to the Magistrate’s courts and rushing
towards potential litigants, often leading to an ugly scrimmage to snatch briefs and
undercutting of fees.

The Disciplinary Committee of the State Bar Council found such behaviour to amount to
professional misconduct, but on appeal to the Bar Council of India, it was the Bar Council of
India absolved them of all charges of professional misconduct on the ground that the conduct
did not contravene Rule 36 of the Standards of Professional Conduct and Etiquette as the rule
required solicitation of work from a particular person with respect to a particular case, and
this case did not meet all the necessary criteria, and such method of solicitation could not
amount to misconduct.

This approach of the Bar Council of India was heavily reprimanded by the Supreme Court. It
was held that a restrictive interpretation of the relevant rule by splitting up the text does not
imply that the conduct of the advocates was warranted or justified. The standard of conduct
of advocates flows from the broad cannons of ethics and high tome of behaviour.

It was held that “professional ethics cannot be contained in a Bar Council rule nor in
traditional cant in the books but in new canons of conscience which will command the
member of the calling of justice to obey rules or morality and utility.” Misconduct of
advocates should thus be understood in a context-specific, dynamic sense, which captures the
role of the advocate in the society at large

Conclusion

Many cases of professional misconduct have been seen in the recent scenario, where online
hearings are taking place due to the Covid-19 virus. Advocates are not adhering to the dress
code and appear before the Honourable Court in an unprofessional manner, which is contrary
to their duty to the court.

During a live virtual hearing before the Rajasthan High Court, a Senior Advocate was seen
smoking hookah. These are the kinds of things that one would not expect from someone who
works in a noble profession.

Advocates have the dual responsibility of zealously protecting their clients’ interests while
also acting as officers of the court. As a result, they are expected to uphold the highest levels
of integrity and honour. The conduct of an advocate should reflect their privileged position in
society, which stems from the profession’s nobility.