This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. It focusses primarily on the growth of legal profession in India since its inception. The author has also tried to postulate the futuristic aspect or approach of the legal profession in India.
A brief introduction: Importance of legal profession
It is generally observed that the legal profession is the limb which binds the common man to the uppermost end of the pyramid of justice i.e. the Judiciary. Without this limb, there cannot exist a fruitful relationship between the common man and the Courts as in the upcoming paragraphs, one can notice how the legal profession was so rudimentary in ancient India due to lack of proper machinery. The Courts as well as the people need the lawyers to bring forth the facts of the case and advocate for their rights respectively.
It was rightly pointed out in Law Commission, XIV Report, 556 (1958):
“A well-organized system of judicial administration postulates a properly equipped and efficient Bar.”
Thus, development or growth of legal profession can be studied under fourmajor heads i.e. Ancient, Medieval, British And Post-Independence era.
Due to people living in small groups in ancient India, usually the heads of these tribes or groups administered justice and solved their disputes. After a while the notion of Kingship came into being in which the King’s Court was set up and the Councillors of King would advise the King on the various matters by applying the Principle of Dharma. Hence, legal profession was not in vogue back then rather justice was delivered by the administrators or the religious heads as per the norms of the society back then.
In medieval India too, there was no institution of legal profession. As a rule of practice, both litigating parties appointed Vakils. The Court then used its power to make a choice as regards who should appear as Vakil. This body decides the case and they were paid a percentage of the amount in the suit. The just acted as agents and not lawyers of the principals.
British Rule in India
It was only during the British rule that the legal profession became a bit organized though it was highly discriminatory towards Indians. Before 1726, the courts derived their power from the East India Company. After 1726, this shifted from East India Company to the British crown.
Mayor’s Courts: In 1726, the Mayor’s Courts were established at the presiding towns of Bombay, Calcutta, and Madras under the Charter of 1726. They were the Royal Courts. They tailed the procedure based on English law of 1661. Yet these courts lack people with proper legal acumen and the practitioners were just as ignorant as other laymen due to no provisions being made for their proper legal training. Another feature of this was that they did not have any jurisdiction in criminal matters and it was exclusive to the Governor.
Subsequently, other charter was introduced in 1753 to regulate the legal profession yet this did not bring the existing practices in order and was a futile attempt.
Supreme Courts: The first concrete step in the direction to organize a legal profession in India was taken in 1774 when the Supreme Court was established at Calcutta by virtue of Regulating Act, 1773. It empowered the Supreme Court to frame rule of procedure as it thought necessary for administration of justice and due execution of its power. The only people entitled to practice were the British barristers, advocates and attorneys and not the native Indians. The Supreme Court was empowered to remove any advocate or attorneys y giving a reasonable cause for their removal. The term ‘Advocate’ was meant to be used for the British and Irish Barristers and member of the faculty of advocates in Scotland. The term ‘Attorney’ applied to the British attorneys or solicitors.
There came various regulations from time to time focussing on the participation of people who were Hindus and Muslims as pleaders who studied at Hindu College at Benaras and Muhammadan College at Calcutta.[i]
The Legal Practitioners Act, 1846 – It was the first All- India law concerning the pleaders in Mofussil Courts and introduced various reforms. This Act allowed the people of any nationality or religion to act as pleaders. It also allowed attorneys and barristers enrolled in any of Her Majesty’s courts in India to plead in the company’s Sardar Adalat. It was rightly called ‘first charter of the legal profession.’
The Indian High Court Act, 1861: It authorized the government to establish High Courts in the three Presidency towns. After the establishment of the High Courts, the Civil and Criminal Courts were organized at different towns. The criminal courts were organized by the Criminal Procedure Code, 1898.
Legal Practitioner Act 1879: It was enacted to consolidate and amend the law relating to legal practitioners in the mofussil as the same was stated in its preamble. The Pleaders, Mukhtars and Revenue Agents Act, 1865 was repealed by introduction of this Act, 1879. There were six grades of legal practice in India after the founding of High Court i.e. Advocates, Attorneys (Solicitors), Vakils of High Court, Pleaders, Mukhtars and Revenue Agent. This Act brought all the six grades of the profession into one system under the jurisdiction of High Court.
Indian Bar Councils Act 1926 – A committee called Indian bar committee or Chamier Committee was established under the chairmanship of Sir Edward Chamier in 1923 and it did not favour the establishment of All India Bar Council rather it suggested that every High Court should have its own Bar Council. Thus, in 1926, the Indian Bar Councils Act, 1926 was enacted to provide a Bar Council for each High Court and the distinction between Barristers and advocates was abolished. The pleaders and mukhtars practicing in Mofussil Courts were outside the purview of this Act. The High Courts still had the powers to approve the rules made by various Bar Councils and they were empowered to reprimand, suspend or remove from practice any advocate of the High Court if he was found guilty of professional misconduct or other misconduct.[ii]
The realm of Indian Legal Profession has to wait for nearly three decades to have a unified All-India Bar which would have one grade of practitioners only. This became possible when in 1961, the Indian Parliament passed the Advocates Act, 1961 after taking due consideration of the XIV Law Commission Report, 1958. The Commission’s Report took note of various recommendations made by an All India Bar Committee, 1951 under the chairmanship of Justice S. R. Das. The committee had submitted its report after two years i.e. in 1953 and the Law Commission of 1958 fulfilled some demands as well as took note of the recommendations of the 1953 Report. The Advocates Act, 1961 contains 60 Sections in 7 chapters. The Act, 1961 repeals the Indian Bar Councils Act,1926 and all other laws on the subject.
The Advocate Act,1961 provides for an autonomous bar council in each state and All India Bar Council consisting mainly of the representatives of the state bar councils. Under the act, a State Bar Council is to enrol the qualified person as advocates and a prepare a roll of advocates practicing in the state and after that a comment roll of advocates for the whole of India is to be prepared by the Bar Council of India. The Advocates whose names are entered in the common roll would be entitled as of right to practice in all courts in India including the Supreme Court.
After the establishment of this Act, 1961 all the old classes of experts and legal practitioners were abolished and were assembled into a single kind known as “Advocates”. They enjoy the privilege to practice in all courts throughout India. All India Bar Council was established for the first time ever in India. The Bar Council of India is entrusted with numerous functions necessary for fulfilling the purpose of achieving an effective and organized Legal Profession.
Thus, admission of advocates, their practice, ethics, privileges as well as regulating and discipline their conduct for the improvement of the profession are now all vested in the profession alone.
In 2002, the 184th Law Commission Report also suggests the joint responsibility of Bar Council of India and University Grant’s Commission towards the regulation of professional legal education. In Para 5.16 of the Report, it has been pointed out that there are revolutionary changes which have come into legal education due to various developments in various other branches of law viz. information, intellectual property, corporate law, cyber law, human rights, ADR, international business, comparative taxation laws, environmental laws etc. And this has led to shifting in the very structure of the legal institutions also.
Recently, the Law Commission of India has submitted its 266th Report titled “The Advocates Act, 1961 (Regulation of Legal Profession)” for consideration to the Central Government for regulating the increasing misconduct of the legal professionals.
Thus, the legal profession has gone through enormous changes before shaping into what it today has become. The Corporate, LLPs, Cyber Law as well as many other sectors have certainly seen growing number of practitioners in these fields as litigation solely does not pay much to a newcomer so there has been a paradigm shift from litigation towards the Corporate Law recently by the lawyers as well as law students which fulfils the need of a job security required by new professionals in the field to survive. This has certainly resulted to an approach towards non-litigation practices in legal profession.
[i] Regulation VII of 1793
[ii] Section 10 of the Indian Bar Councils Act, 1926.
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