A RESEARCH PROJECT ONA RESEARCH PROJECT ON

BAR AND LEGAL PRACTITIONERS RELATIONSHIPBAR AND LEGAL PRACTITIONERS RELATIONSHIP

BAR AND BENCH RELATIONSHIP

INTRODUCTIINTRODUCTIONON

A bar association is a professional body of lawyers organized primarily to deal with issues

affecting the legal profession. It is established to promote professional competence, enforce

standards of ethical conduct, and encourage a spirit of public service among members of the

legal profession. In general, they are concerned with furthering the interests of lawyers through

advocating reforms in the legal system, sponsoring research projects, regulating professional

standards etc. Some bar associations are responsible for the regulation of the legal profession in

their jurisdiction while others are professional organizations dedicated to serving their members;

in many cases, they are both. Some also administer the examinations required for admission to

practice law.

Bar associations accomplish these objectives by offering continuing education to lawyers in the

form of publications and seminars. This education includes instruction on recent developments in

the law and in managing a law practice successfully as a business. Bar associations encourage

members to offer pro bono legal services (to provide legal services at no cost to members of

society who cannot afford them). Bar associations develop guidelines and rules relating to ethics

and professional responsibility and enforce sanctions for violation of rules governing lawyer

conduct. Bar associations also offer attorneys the opportunity to meet socially to discuss

employment prospects and legal theories.

In many Commonwealth jurisdictions, the ‘bar association’ comprises lawyers who are qualified

as barristers or advocates (collectively known as ‘the bar’, or ‘members of the bar’), while the

‘law society’ comprises solicitors. These bodies are sometimes mutually exclusive. In other

jurisdictions like that of India, the ‘bar’ may refer to the entire community of persons engaged in

the practice of law.

In India under the legal framework as established by the Advocates Act, 1961 [hereinafter the

Act], a law graduate is mandatorily required to be enrolled with the Bar Council of India

[hereinafter BCI]. The process of enrollment is delegated by the BCI to the State Bar Councils

[hereinafter SBC/s] wherein almost each state has a Bar Council of its own. Once enrolled with a

SBC, the law graduate is recognized as an Advocate and thereupon is entitled to appear and

practice before any court in India. There is no formal requirement for further membership of any

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Bar Association. However Advocates do become members of various local or national bar

associations for reasons of recognition and facilities which these associations offer. Besides BCI,

other known Bar Associations in India are All India Bar Association [hereinafter AIBA] and

Supreme Court Bar Association [hereinafter SCBA]. Each State and local court generally also

has a Bar Association of its own like the Delhi High Court Bar Association, Bombay High Court

Bar Association etc.

In this project an attempt has been made to examine the role, functions and utility of bar

associations vis-à-vis legal profession. This is to note here that legal education has been excluded

from the purview of this project. In Chapter I brief history of bar association / council has been

provided. In Chapter II the author shall deal with BCI and SBCs in the context of legal

profession while in Chapter II same approach shall be adopted for the SCBA and AIBA.

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I. BAR ASSOCIATIONS IN INDIA- HISTORICAL PERSPECTIVEI. BAR ASSOCIATIONS IN INDIA- HISTORICAL PERSPECTIVE By the beginning of the third decade of the twentieth century need was felt by the bar to have

autonomy in dealing of its internal matters and discipline.1 One can trace the growth and

development of bar associations in India in following manner;

I.A. INDIAN BAR COMMITTEE, 1923

In 1923 the government constituted a committee called Indian Bar Committee which was headed

by Sir Edward Chamier. One of the issues before the committee was the ‘proposal for

constituting an Indian Bar, whether on an all India or Provincial basis and the position of the

Bar Councils vis-à-vis the High Court’. It recommended that an all India Bar Council is

impracticable and that Statutory Bar Council should be established at Calcutta, Madras, Bombay,

Allahabad, Patna and Rangoon. It also suggested that provisions should be made permitting the

constitution of councils at Lahore, Nagpur, Karachi and Lucknow at a later point of time. It

recommended that Council ‘should have power to frame rules concerning qualifications,

education, discipline, elections etc.’ It also recommended that the Bar Council should have

power to enquire into the allegation culminating in suspension or dismissal of an Advocate.

I.B. INDIAN BAR COUNCIL ACT, 1926

Based on the recommendations of the Indian Bar Committee, 1923 Indian Bar Council Act, 1926

was enacted.2 One of the purposes of the Act was to provide some measure of self-government to

the bars attached to the various courts. Its preamble reads: “Whereas it is expedient to provide for

the constitution and incorporation of Bar Councils for certain courts, to confer powers and

impose duties on such Bar Councils....it is hereby enacted.”3

The Act provided for every High Court a Bar Council and conferred upon it a legal personality. 4

Under the Act the Bar Council was empowered to frame rules to regulate the admission of

1 Dr. Anirudh Prasad, PRINCIPLES OF THE ETHICS OF LEGAL PROFESSION IN INDIA 39 (2nd ed., 2006).

2 P. Ramanatha Aiyer, LEGAL & PROFESSIONAL ETHICS 71 (3rd ed., 2003).

3 Indian Bar Council Act, 1926, Preamble.

4 Indian Bar Council Act, 1926, Section 3(2).

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persons to be advocates of the High Courts.5 In addition it was empowered to frame rules on

various matters pertaining to legal profession u/s 15.

I.C. ALL INDIA BAR COMMITTEE, 1951

The government of India appointed All India Bar Committee in 1951 under the chairmanship of

Mr. Justice S.R. Das to examine the following matters related to bar association- (a) the

desirability and feasibility of establishing a single Bar Council for the whole of India or for each

state; and (b) establishment of a separate Bar Council for the Supreme Court.

Recommendations of the committee relevant for our purpose are- (a) that the legal profession

should be given an all-India organization by constituting an All India Bar Council [hereinafter

AIBC] in addition to the SBCs;6 (b) that the bar should be given an all India recognition for the

purposes of legal practice under the auspices of AIBC; (c) that the Bar should be made

autonomous and independent; (d) that lawyers should have a common code of professional ethics

to be determined and prescribed by a single authority i.e. AIBC; and (e) that AIBC should

prescribe the uniform minimum educational qualification for admission to the Bar.

I.D. FOURTEENTH REPORT OF THE LAW COMMISSION

Fourteenth Law Commission headed by Mr. M.C. Setalvad made following recommendations in

relation to bar council / association- (a) an unified all India bar should be created; and (b) the

recommendation of the All India Bar Committee with regard to the establishment, composition

and function of the State and all India Bar Councils should be implemented.

The report accelerated the process of the implementation of the recommendation of the All India

Bar Committee and Fourteenth Report of the Commission itself.7 A bill to give effect to the

recommendations of the Commission was introduced in 1959 in parliament which culminated in

the form of Advocates Act, 1961.

5 Indian Bar Council Act, 1926, Section 9(1).

6 “The benefit of such a council was thought to provide a comprehensive arrangement for dealing with the matters

relating to advocates.” Dr. Anirudh Prasad, supra n. 2 at 44.7 Dr. Anirudh Prasad, supra n. 2 at 45.

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II. ROLE OF BCI AND SBCII. ROLE OF BCI AND SBCSS VIS-A-VIS LEGAL PRACTIONERS- AN VIS-A-VIS LEGAL PRACTIONERS- AN APPRAISALAPPRAISAL

I.A. BCI

BCI is a statutory body created to regulate and represent the Indian bar8 and has been established

under Section 4 of the Act9 as a body corporate.10

I.A.1. FUNCTIONS & POWERS OF BCI VIS-À-VIS LEGAL PROFESSION

The following statutory functions under Section 7 of the Act cover the BCI’s regulatory and

representative mandate for the legal profession in India- (1) to lay down standards of

professional conduct and etiquette for advocates;11 (2) to lay down procedure to be followed by

its disciplinary committee and the disciplinary committees of each SBC;12 (3) to safeguard the

rights, privileges and interests of advocates;13 (4) to exercise general supervision and control over

SBCs;14 (5) to recognize Universities whose degree in law shall be a qualification for enrolment

as an advocate;15 (6) to conduct seminars and organize talks on legal topics by eminent jurists

and publish journals and papers of legal interest;16 and (7) to recognize on a reciprocal basis, the

foreign qualifications in law obtained outside India for the purpose of admission as an advocate

in India.17

8 See generally The Advocates Act, 1961, Preamble (“An Act to amend and consolidate the law relating to legal

practitioners and to provide for the constitution of Bar Councils and an All-India Bar.”).9 The Advocates Act, 1961, Section 4(1).

10 The Advocates Act, 1961, Section 5.

11 The Advocates Act, 1961, Section 7(1)(b); see also Chapter II of Part VI of BCI Rules titled ‘Standards of

Professional Conduct and Etiquette’. 12 The Advocates Act, 1961, Section 7(1)(c); see also Chapter III of Part II of BCI Rules titled ‘Constitution,

functions and procedure of the meetings of the Committees of the Bar Council of India’; see also Chapter I of Part

VII of BCI Rules titled ‘Complaints against advocates and procedure to be followed by Disciplinary Committees of

the State Bar Council and the Bar Council of India’.     13 The Advocates Act, 1961, Section 7(1)(d).

14 The Advocates Act, 1961, Section 7(1)(g).

15 The Advocates Act, 1961, Section 7(1)(i); see generally Part IV of BCI Rules titled ‘Standards of Legal

Education and Recognition  of Degrees in Law for admission as advocates’.16 The Advocates Act, 1961, Section 7(1)(ia).

17 The Advocates Act, 1961, Sections 7(1)(ic) & 47.

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The powers of BCI in relation to legal profession are- (1) power to constitute one or more funds

for the purpose of providing financial assistance to organize welfare schemes for the indigent,

disabled or other advocates18 and for establishing law libraries19; (2) power to constitute such

other committees as it may deem necessary for the purpose of carrying out the provisions of this

Act;20 (3) power to restrict the practice of advocates;21 (4) power to make rules pertaining to

seniority of advocates on roll;22 (5) power to make rules related to enrollment of advocates;23 (6)

power to direct a SBC to transfer the name of an advocate from its roll to any other roll; 24 (7)

power to remove names of advocates from roll subject to the conditions specified in proviso to

Section 26(1);25 (8) power to listen appeals against certain decisions of the SBCs26 and thereby

grant stay;27 (9) power of revision;28 (10) power to take disciplinary actions against advocates

under Section 36 r/w Section 35; (11) power of review u/s 48AA;29 and (12) power to frame

18 The Advocates Act, 1961, Section 7(2)(a).

19 The Advocates Act, 1961, Section 7(2)(c).

20 The Advocates Act, 1961, Section 10(3); see also Chapter III of Part II of BCI Rules titled ‘Constitution, functions

and procedure of the meetings of the Committees of the Bar Council of India’. 21 The Advocates Act, 1961, Section 49(ah) r/w Section 16(3); see also Chapter III of Part II of BCI Rules titled

‘Additional qualification for enrolment as advocates’; see also Chapter I of Part VI of BCI Rules titled ‘Restrictions

on Senior Advocates’; see also Chapter III of Part VI of BCI Rules titled ‘Conditions for right to practice’; see also

V. Sudheer v. BCI & Anr., AIR 1999 SC 1167; see also Indian Council of Legal Aid & Advice v. BCI, 1995 SCC (1)

732. 22 The Advocates Act, 1961, Section 17(3); See also Chapter IV of Part V of BCI Rules titled ‘Seniority in the State

Rolls’.23 The Advocates Act, 1961, Section 24(d); See also Chapter I of Part V of BCI Rules titled ‘Preparation and

maintenance of the State Roll’. 24 The Advocates Act, 1961, Section 18(1); See also Chapter III of Part V of BCI Rules titled ‘Transfer of name

from one State Roll to another State Roll’.  25 See also Chapter VII of Part II of BCI Rules titled ‘Proceeding for removal of name from roll’.  

26 See generally The Advocates Act, 1961, Section 37.

27 See generally The Advocates Act, 1961, Section 40.

28 The Advocates Act, 1961, Section 48A; see also Chapter IX of Part II of BCI Rules titled ‘Revision under Section

48A of the Act’. 29 see also Chapter X of Part II of BCI Rules titled ‘Review under Section 48AA of the Act’.

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general principles for guidance of SBCs and power to give directions to SBCs and any

committee thereof.30 In addition it has general power to make rules u/s 49 of the Act.

II.A.2. BAR COUNCIL OF INDIA TRUST

The Bar Council of India Trust [hereinafter Trust] was created by the BCI on April 27, 1974 as a

public charitable trust.31 One of the major aims of the trust is to maintain professional standards

in the legal profession. It invests heavily in updating the knowledge and skills of practicing

advocates and to promote specialization in professional services. For this purpose it regularly

organizes workshops in various parts of the country to help advocates develop their skills in a

variety of topics like constitutional litigation, labor adjudication etc.32 The Trust has also

assembled high-quality reading materials on all these subjects. Its activities also include

promoting welfare of the members of the Indian legal profession. For instance, the Trust assists

the professional development of numerous deserving junior advocates through its placement

scheme.33 The Trust regularly selects advocates under the scheme for year-long training under

experienced and reputed legal professionals at the High Courts and the Supreme Court such as

senior advocates and Bar Council of India members.34 It also publishes a quarterly journal called

Indian Bar Review to cater the needs of legal professionals.

II.B. SBCS

Sub-section (1) of Section 3 of the Act establishes SBCs for almost all states. The Act also

provides for the composition35 and election36 of the SBCs.

30 The Advocates Act, 1961, Section 49(i) r/w Section 48B; see also Part IX of BCI Rules titled ‘General Principles

to be followed by State Bar Councils and the Bar Council of India and Rules for Supervision and Control by the Bar

Council of India’. 31 The Bar Council of India, Bar Council of India Trust, available at http://www.barcouncilofindia.org/about/bar-

council-of-india-trust/. 32 Id.

33 Id.

34 Id.

35 The Advocates Act, 1961, Sections 3(2)(a) & 3(3).

36 The Advocates Act, 1961, Sections 3(2)(b) & 3(4).

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I.B.1. FUNCTIONS & POWERS OF SBCS VIS-À-VIS LEGAL PROFESSION

The major functions of SBCs vis-à-vis legal profession are- (1) to admit persons as advocates on

its roll;37 (2) to prepare and maintain such roll38and transfer that to BCI;39 (3) to entertain and

determine cases of misconduct against advocates on its roll;40 (4) to safeguard the rights,

privileges and interests of advocates on its roll;41 (5) to promote the growth of Bar

Associations;42 and (6) to conduct seminars and organize talks on legal topics by eminent jurists

and publish journals and paper of legal interest.43

The powers of SBCs in relation to legal profession are- (1) power to constitute one or more funds

for the purpose of providing financial assistance to organize welfare schemes for the indigent,

disabled or other advocates44 and for establishing law libraries45; (2) power to constitute one or

more disciplinary committees;46 (3) power to constitute an enrolment committee;47 (4) power to

settle disputes pertaining to seniority of advocates;48 (5) power to specify such conditions as it

deems fit for admission to bar;49 (6) power to constitute such other committees as it may deem

37 The Advocates Act, 1961, Section 6(1)(a); see also Sections 25 & 26.

38 The Advocates Act, 1961, Section 6(1)(b).

39 The Advocates Act, 1961, Section 19.

40 The Advocates Act, 1961, Section 6(1)(c); see also Section 17 which provides the modalities for preparing and

maintaining such roll. 41 The Advocates Act, 1961, Section 6(1)(d); see also A.S. Mohammed Rafi v. State of Tamil Nadu, AIR 2010 TN

1132.42 The Advocates Act, 1961, Section 6(1)(dd).

43 The Advocates Act, 1961, Section 6(1)(ee).

44 The Advocates Act, 1961, Section 6(2)(a).

45 The Advocates Act, 1961, Section 6(2)(c).

46 The Advocates Act, 1961, Section 9(1); see also Section 35. For powers of disciplinary committee refer

Sections 42, 43 & 44. 47 The Advocates Act, 1961, Section 10(1)(b); see also Sections 25 & 26.

48 The Advocates Act, 1961, Section 21(2).

49 The Advocates Act, 1961, Sections 21(2) & 28(d); see also Dr. Hiralal L. Chulani v. Bar Council of Maharashtra

& Goa, AIR 1996 SC 1014 for a detailed discussion over the said power of SBCs.

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necessary for the purpose of carrying out the provisions of this Act;50 (7) power of review u/s

48AA. In addition SBCs have power to make rules in consonance with Sections 15 and 28.

50 Supra n. 19.

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III. ROLE OF SCBA AND AIBA VIS-A-VIS LEGAL PRACTITIONERSIII. ROLE OF SCBA AND AIBA VIS-A-VIS LEGAL PRACTITIONERS

II.A. SCBA

From its very inception, SCBA has been in the vanguard of the movement for upholding,

maintaining and consolidation of the highest values of legal profession. In its meeting dated 4th

May, 1951, the Executive Committee of the SCBA consisting of legal luminaries like M. C.

Setalvad, C. K. Daphtary and K. M. Munshi condemned the proposed move to combine the

office of Law Minister and Attorney General as a threat to independence of Judiciary.51 It came

forward to raise its voice against the contempt notice issued by the Patna High Court against the

defense lawyer who had written an article against the report of the Law Commission. It has thus

maintained its fraternal links with other Bar Associations in India. It also showed its concern for

the indigent and infirm members of the Bar who needed financial support.

In the aftermath of the historic decision in Keshavananda Bharati case when three eminent

judges of the Supreme Court [hereinafter SC], Hegde, Shelat and Grover JJ were superseded and

Justice A. N. Ray was appointed as Chief Justice [hereinafter CJ] of the SC on 25th April, 1973

on the ground that SC needs judges who are ‘forward looking’ and understood ‘the winds of

change’ SCBA rose against this onslaught on the Judiciary. Justice Hidyatullah J represented an

emotional concern of the SCBA in one word. He remarked that this was an attempt of not

creating 'forward looking judges' but the 'judges looking forward' to the plumes of the office of

CJ. Shri C. K. Daphtary described 25th April, 1973, as the ‘blackest day in the history of

democracy’. On 26th April, 1973, it passed a resolution strongly condemning the supersession

and called upon all Bar Associations in India to observe 3rd May, 1976 as a ‘Bar Solidarity Day’

and to abstain from court work. The call was enthusiastically supported by most of the Bar

Associations all over India.

SCBA joined the national movement against the ‘eclipse of democracy’ during the Emergency

proclaimed in 1975. It actively canvassed for restoration of democracy, abolition of MISA and

DIR and holding free and fair elections. It raised strong objections against the 42nd Amendment

which was aimed at giving arbitrary powers to the Executive and curtailing the judicial review.

51 See generally SCBA, From President Desk, available at http://scbfaindia.org/.

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By the end of 1979, SCBA decided to celebrate 26th November every year as a ‘Law Day’ to

mark the anniversary of the adoption of the Constitution. The resolution to the same effect

highlights that “…Lawyers owe their allegiance, by the traditions, training and tenets of their

noble profession to the cause and quest of Justice.”52

It also showed concern for rule of law and democracy in the neighboring countries like Pakistan,

Bangladesh and Sri Lanka. It opposed inequitable terms of the settlement of compensation to the

victims of Bhopal gas and its Executive to intervene in the pending case in SC. It did not falter to

protest against the conduct of the CJs and the Judges of the SC which tended to compromise

judicial independence and integrity. It also took introspective steps to control the eminent

members of the Bar who had gone astray from the exemplary professional conduct and

professional ethics.

In the last decade, for the first time, a judge of the SC was impeached by the Parliament for

corruption. SCBA intervened in the pending litigation in the SC as the concerned judge had not

resigned and was purporting to do judicial work. In another case, the then CJ disclosed in the

Court that one gentleman was trying to interfere with the Hawala case then pending and had

tried to meet the CJ and the Judge of the SC. SCBA took exception to this mere expression of

displeasure by the then CJ and passed a resolution urging the then CJ to start contempt

proceedings against the said gentleman. In addition SCBA has also contributed to the

amendment of the SC Rules and the Procedure and Practice in the SC.

II.B. AIBA

The aims and objectives of AIBA vis-à-vis legal profession are as follows53- (1) to uphold the

honor, dignity and the independence of the Bar and the Bench; (2) to assist the Bar in upholding

its rights and the dignity in its relations with the executive, judiciary and legislation; (3) to

promote and protect the privileges, interest and prestige of the Association and to promote union

and co-operation and solidarity among the Advocates practicing in different Courts; (4) to set up

a code of professional conduct, discipline and etiquette; (5) to improve relations and cooperation

52 Text of the original resolution reproduced and available at

http://www.lexsite.com/services/network/scba/history.shtml. 53 All India Bar Association, Aims and Objectives, available at http://www.allindiabar.org/Aims_and_Obj.aspx.

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between the Bar and the Bench, between the Bar and the public, and between the Indian Bar and

the lawyers and the Bar of other countries; (6) to promote, organize and participate in All-India

or International organizations of lawyers and judges; (7) to constitute or cause to be constituted

State level ‘State Bar Association’ in every State and ‘Union Territory Bar Association’ in every

Union Territory of India to promote the activities of the Association; (8) to conduct and hold

seminars, symposia, conferences, rallies, and to carry out protests in any manner on issues and

topics of interest to the legal profession and the Bench and the public at large; (9) to take

measures, including funding and applying of funds for aid to deserving advocates and its

employees; (10) to take measures to provide for financial aid to the members of the Bar in

strained circumstances and to members of their families on their death or in any incapacity; and

(11) to provide group insurance and other welfare schemes meant for the lawyers.

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CONCLUSION

There is no denying the fact that if the Bar Associations perform their duties earnestly they have

the potential to bring far reaching changes in our legal profession. Unfortunately, that’s not

happening. The Bar Associations should be concerned about the standards in the bar, should

guide the future advocates, should work towards upholding the dignity of profession and

judiciary and finally should serve the public at large. But, barring few occasions in the recent

past, our Bar Associations and Senior Advocates of the Bar have preferred to remain silent

spectators of all the unwanted happenings in the profession.

Our bar associations need to take a leaf from the life of H. M. Seervai who raised his voice even

against a sitting judge when he was leading the Bombay Bar. Also a lesson is needed to be learnt

from the Madras High Court Advocates Association which fought a bitter fight against the then

Chief Justice Subhashan Reddy. The recent act of passing a resolution by the Punjab and

Haryana Bar Association against the Chief Justice of India and the Attorney General and the

recently concluded agitation of the Bangalore Bar against their Chief Justice Dhinakaran should

be an eye opener for other bar associations.  

I wonder when Bar Associations of India will meet the mission statement of a Bar Association

described by Roscoe Pound in the following words;

“[T]o promote and maintain the practice of law as a profession, that is, as a learned art

pursued in the spirit of a public service — in the spirit of a service of furthering the

administration of justice through and according to law.”

I would also like to put this project at rest with these golden words of Lord Denning J.R.;

“It is a mistake to suppose that he (the barrister) is the mouthpiece of his client to say what he

wants: or his tool to do what he directs. He is none of these things. He owes allegiance to a

higher cause. It is the cause of truth and justice.”

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BIBLIOGRAPHYBIBLIOGRAPHY

I. ACTS / RULES / BILLS

Advocates Act, 1961

Advocates Bill, 1959

BCI Rules 1963

Indian Bar Council Act, 1926

II. CASE-LAWS

A.S. Mohammed Rafi v. State of Tamil Nadu, AIR 2010 TN 1132.

Dr. Hiralal L. Chulani v. Bar Council of Maharashtra & Goa, AIR 1996 SC 1014

Hawala case

In re Rouss, 221 N.Y. 81 (1917)

Indian Council of Legal Aid & Advice v. BCI, 1995 SCC (1) 732. 

V. Sudheer v. BCI & Anr., AIR 1999 SC 1167

III. BOOKS

Dr. Anirudh Prasad, PRINCIPLES OF THE ETHICS OF LEGAL PROFESSION IN

INDIA (2nd ed., 2006)

P. Ramanatha Aiyer, LEGAL & PROFESSIONAL ETHICS (3rd ed., 2003)

IV. COMMITTEES / COMMISSIONS

All India Bar Committee, 1951

Fourteenth Law Commission

Indian Bar Committee, 1923

V. URLS

http://scbfaindia.org/.

http://www.allindiabar.org/Aims_and_Obj.aspx.

http://www.barcouncilofindia.org/about/bar-council-of-india-trust/

http://www.lexsite.com/services/network/scba/history.shtml

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