Historical Perspective-Development of Legal

Profession In India 1. Legal Profession in Pre-British India

In Pre-British India, Legal Profession was not as organised as today.

Actually, the legal profession as it exists today was created and developed· during the

British Period.

During the Hindu period the Courts derived their authority from the King who

was considered the fountain head of justice. The King's Court was superior to all other

courts. The King was advised by his Councellor in hearing and deciding the case but

he was not bound by their advice. The institution of lawyer as it exists today was not

in existence during this period.

The plaintiff was required to present plaint before the Court and thereafter the

Court could direct the defendant to submit his reply. Thereafter the Court was required

to investigate the matter and deliver its judgment. The Courts delivered judgment on

the basis of evidence gathered from various sources, e.g., witnesses, documents, etc.

Ordeal was also recognised as means of proof.

According to RP. Kangle there is no mention in the Kautilya's Arthasastra

about the existence of legal profession and therefore most probably such a class did

not exist. However, Justice Ashutosh Mukherjee has expressed a contrary opinion.

According to him the legal profession was in existence during the Hindu Period.

During the Muslim period the litigants were represented by a body of persons

known as vakils. The vakil was paid a percentage of the amount in the suits. The

Court of the native administrations concerned determined who should be allowed to

appear as Vakil in a Zilla Court. Even during this period, the legal profession was not

organised. The Vakils acted more as agents for principals than as lawyer.

3. Legal Profession during British Period

As has been stated above, the legal profession as it exists today was created and

developed during the British Period. However, it is notable that in early days of the

British Period the legal profession was not paid due attention and it was not well

organised. Actually the East India Company was not interested in organising the

legal profession. There was no uniform judicial system in the settlements of the East

India Company. In 1726 by a Charter known as Charter of 1726 in each Presidency

Town a Mayor's Court was established and, thus, by the Charter a uniform judicial

system was introduced in all the three Presidency Towns-Bombay. Calcutta and

Madras. It may, here, be mentioned that before 1726 the Courts were the Courts of

East India Company and they derived their authority not from the British Crown but

from the East India Company and their decisions were not as authoritative as those of

the Courts in England.

The Mayor’s Court established under the Charter of 1726 were· the Royal

Courts and they derived their authority from the British Crown and not from the East

India Company. The Mayor's Courts were to follow well-defined procedure based on

the English law and procedure. The Charter of 1726, thus, introduced Royal Courts in

India but did not make provisions for the regulations of the legal practitioners. There

was no provision for the legal training. The legal profession was not organised.

Many persons having no knowledge of law were practicing. The judicial

administration including the legal profession was not of a high order.

In 1753 a new Charter known as the Charter of 1753 was issued to modify the

Charter of 1726 but even this Charter did not contain significant provisions for legal

training and legal education of legal practitioner and thus, even after this Charter the

legal profession was not organised.

The Regulating Act, 1773 and the Charter of 1774 contributed much to the

development on legal profession in India. The Regulating Act, 1773, empowered the

British Crown to establish a Supreme Court at Calcutta by issuing a Charter. In the

exercise of this power the British Crown issued a Charter in 1774 establishing the

Supreme Court of Judicature at Calcutta. The Charter of 1774 superseded the

provisions of the Charter of 1753 and resulted in the abolition of the Mayor's Court at

Calcutta. In 1801 the Supreme Court was established at Madras and in 1823 the

Supreme Court was established at Bombay by the British Crown by issuing Charters.

Clause 11 of the Charter 1774 empowered the Supreme Court to approve and

enroll advocates and attorneys-at-law. The Supreme Court had power to remove any

advocates or attorney on reasonable cause. They were to be Attorneys of Record.

They were authorized to appear and plead and act for the suitors of the Supreme

Court. This clause made it clear that no other persons but advocates or attorneys

so admitted and enrolled could appear and plead or act in the Supreme Court for

or on behalf of such suitors or any of them. The term "Advocate" then extended

only to English and Irish Barristers and members of the Faculty of Advocates in

Scotland and the term "Attorneys" then meant only the British attorneys or

solicitor.

Thus, the Indian Legal Practitioners were not authorised to appear before the

Supreme Court. Similar provision was made in respect of Bombay and Madras when

the Supreme Court was established there. In the Supreme Court at Bombay and

Madras also only British Barristers, advocates and attorneys were eligible for

enrolment and, thus, the Indian Legal Practitioners were not authorised to appear

before the Supreme Court at Bombay and Madras.

As regards the legal profession in the Company's Courts, it may be concluded

that it was not organised.

Before the rise of the British power in , India the administration of justice in

Northern India was in the hands of the Courts established by the Moghul Emperor or

ruling chiefs owing allegiance to the Moghul. Emperor.

In addition, the big Zamindars also had Courts exercising both civil and

criminal jurisdiction. There existed a class of persons called vakils. The vakils

acted more as agents for principals than as lawyers. The legal profession was not

organised. The vakil practising before the Moghul Courts appeared in the Courts of

the East India Company. The Bengal Regulation VII of 1793 created for the first time

a regular legal profession for the Company's Courts. The Regulation authorised the

Sadar Diwani Adalat to enroll pleaders for the Company's Courts. Under this

regulation only Hindus and Muslims could be enrolled as pleaders. Bengal Regulation

XXVJI of 1814 also made provisions in order to organise the legal profession. Bengal

Regulation XII of 1833 modified the provisions of the earlier Regulations regarding

the appointment of the pleaders. It permitted any qualified person of whatever

nationality or religion to be enrolled as a pleader of the Sadar Diwani Adalat. The

Legal Practitioners Act, 1846 made provisions that the people of any nationality or

religion would be eligible to be Pleaders and Attorneys and Barristers enrolled in any

of Her Majesty's Courts in India and would be eligible to plead in the Company's

Sadar Adalats. The Legal Practitioners Act, 1853 authorised the Barristers and

attorneys of the Supreme Court to plead in any of the Company's Courts subordinate

to the Sadar Courts subject to rules in force in the said subordinate Courts as regard

language or otherwise.

The Indian High Courts Act, 1861, occupies an important place in the

development of the judicial administration in India. It empowered 'the British Crown

to establish one High Court in each Presidency Town. In the exercise of this power the

British Crown issued the Charters to establish the High Courts. After the

establishment of the High Courts, the Civil Courts were organised in Bengal, Assam

and North-Western Provinces by the Bengal, Agra and Assam Civil Courts Act, 1887.

Subsequently, the Courts were organised in other Provinces also. The Criminal Courts

were organised properly by the Criminal Procedure Code of 1898. The High Courts

were empowered to exercise the power of superintendence over the Criminal and Civil

Courts in Mufussil.

The Letter Patent of 1865 made provision in respect of the enrolment of the

legal practitioners. The High Court of Judicature at Fort William in Bengal was

empowered to approve, admit and enroll such advocates and so many advocates, vakil

and attorneys as to the said High Court shall deem fit. Such advocates, vakil and

attorneys could appear for the suitors of the said High Court and to plead or to act or

to plead and act for the said suitors according to, as the said High Court might, by its

rules and directions, determine and subject to such rules and directions. The High

Courts not established by the Royal Charters were empowered by the Legal

Practitioners Act, 1879 to make rules as to the qualifications and admission of proper

persons to be advocates of the Court. Such High Courts were to make such rules with

the previous sanction of the Provincial Government. In 1866 the Chief Court of

Punjab was established at Lahore. Section 10 of the Punjab Chief Court Act, 1866 laid

down qualifications of those who were permitted to appear and act as pleaders in the

Chief Court. After some years this was repealed.

Legal Practitioners Act, 1879

In 1879, the Legal Practitioners Act was passed to consolidate and amend the

law relating to the legal practitioners. It empowered an advocate or vakil on the

role of any High Court or a pleader of the Chief Court of the Punjab, to practise

in all the Courts subordinate to the Court on the role of which he was entered.

The Legal Practitioners Act, 1879, authorised the High Court not established under a

Royal Charter to make rules with the previous sanction of the Provincial Government

as to the qualification and admission of proper persons to be pleaders and Mukhtars of

the High Court. The Chartered High Courts framed rules. According to the rules

framed by such High Courts apart from attorneys, there were advocates and vakils.

Advocates were to be the barristers of England or Ireland or Members of the Faculty

of Advocates of Scotland. The High Courts other the High Court of Calcutta allowed

even non-Barristers to be enrolled as Advocates under certain circumstances, e.g., in

Bombay law graduates of the Bombay University could be enrolled as advocates.

There were  six  grades of  legal practice  in  India  after  the  founding of  the High 

Courts – a) Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) 

Mukhtars, f) Revenue Agents.  The Legal Practitioners Act of 1879 in fact brought all the 

six grades of the profession into one system under the jurisdiction of the High Courts. The vakils were to be the persons who had taken the law degree from an

Indian University and fulfilled certain other conditions. As regards the non-

Chartered High Courts there were, advocates, pleaders and mukhtars. The Pleaders

and Mukhtars were the Indian Lawyers but Advocates were to be the Barristers.

The High Courts were empowered to make rules as to the 'qualification and admission

of the proper persons to be pleaders and mukhtars of the subordinate Courts.

Under the Legal Practitioners Act, 1879 the term "legal practitioner" has been

taken to mean advocate, vakil or attorney of a High Court and pleader. Mukhtar or

revenue agent. All these were brought under the jurisdiction of the High Court.

According to section 4 of the Legal Practitioners Act, 1879 every person now or after

entered as an advocate or vakil on the roll of any High Court under the Letters Patent

constituting such Court or under section 41 of this Act or enrolled as a pleader in the

Chief Court of the Punjab under section 8 of this Act shall be entitled to practise in all

the Courts subordinate to the Court on the role of which he is entitled and in all

revenue offices situate within the local limits of the appellate jurisdiction of such

Court, subject to the rules in force relating to the language in which the Court or office

is to be addressed by pleaders or revenue agents and any person so entered who

ordinarily practises in the Court on role of which he is entered or some Court

subordinate thereto shall, notwithstanding anything therein contained, he is entitled, as

such, to practise in any Court in the territories to which this Act extends other than a

High Court on which roll he is not entered or with the permission of the Court or in

the case of a High Court in respect of which the Indian Bar Council Act, 1926, is in

force subject to rules made under that Act in any High Court on which roll he is not

entered and in any revenue office : Provided that no such Vakil or pleader shall be

entitled to practise under this section before a Judge of the High Court, Division Court

or High Court exceeding original jurisdiction in a presidency town.

Section 5 of the Act made it clear that every person entered as an attorney on

the role of any High Court would be entitled to practise in all the Courts subordinate

to such High Court and in all revenue offices situate within the local limits of the

appellate jurisdiction of such High Court.

Section 6 of the Act empowered the High Court to make rules consistent with

this Act as to suspension and dismissal of pleaders and mukhtars. Section 7 of the Act

made provisions in respect of issue of certificates to the pleaders and mukhtars.

Section 8 empowered the pleaders to practise in Court and revenue offices after

enrolment. Section 9 of the Act empowered the mukhtars to practise in the Courts

after enrolment. Section 12 of the Act empowered the High Court to suspend or

dismiss any pleader or mukhtar holding a certificate issued under section 7 of the Act

if he was convicted of any criminal offence implying a defect of character which unfit

him to be pleader or mu tar, as the case may be.

Professional Misconduct

Section 1 of the Act empowered the High Court to suspend or dismiss pleader

or mukhtar guilty of unprofessional conduct. According to Section 13 "the High Court

may also, after such, inquiry as it thinks fit, suspend or dismiss any pleader or

mukhtar holding a certificate as aforesaid-

a) who takes instruction in any case except from the party on whose'

behalf he is retained or some person who is the recognised agent of such

party within the meaning of the Code of Civil Procedure or some servant,

relative or person authorised by the party to give such instructions; or

b) who is guilty of fraudulent or grossly improper conduct in the discharge

of his professional duty ; or

c) who tenders, gives or consents to the retention out of any fee paid or

payable to him for his services or any gratification for processing or having

processed the employment in any legal business of himself or any other

pleader or mukhtar, or

d) who directly or indirectly, procures or attempt to procure the

employment of himself as such pleader or mukhtar, through or by the

intervention of any person to whom any remuneration for obtaining such

employment has been given by him or agreed or promised to be so given ;

or

e) who accepts any employment in any legal business through a person who

has been proclaimed as a tout under section 36 ; or

f) for any other reasonable cause.

Section 14 of the Act made provisions in respect of the procedure when charge

of unprofessional -conduct was brought in subordinate Court or revenue office.

Section 17 of the Act empowered the Chief Controlling Revenue Authority to

make rules consistent with this Act as to the qualification, suspension, dismissal, etc.

of the revenue agent.

Indian Bar Committee, 1923

In 1923 a Committee called the Indian Bar Committee was constituted under

the Chairmanship of Sir Edward Chamier. The Committee was to consider the issue as

to the organisation of the Bar on all India basis and establishment of an all-India Bar

Council for the High Court. The Committee was not in favour of organising the Bar

on all India basis and establishing an all India Bar Council. The Committee suggested

that in all High Courts a single grade of practitioners should be established and they

should be called advocates. On the fulfilment of certain conditions vakils should be

allowed to plead on the original side of the three High Courts. A Bar Council should

be constituted for each High Court. It should have power to enquire into matters

calling for disciplinary action against a lawyer. The High Court should be given

disciplinary power but before taking any action, it should refer the case to the Bar

Council for enquiry and report.

Indian Bar Councils Act, 1926 In 1926 the Indian Bar Councils Act was enacted to give effect to the some of

the recommendations of the Indian Bar Committee, 1923 (stated above). The main

object of the Act was to provide for the constitution and incorporation of Bar Council

for certain courts, to confer powers and impose duties on such Councils and also to

consolidate and amend the law relating to the legal practitioners of such courts. The

Act made provision for the establishment of a Bar Council for every High Court.

Every Bar Council was to consist of 15 members. Four of such members were to be

nominated by the High Courts and ten of them were to be elected by the Advocates of

the High Court from amongst themselves. One of them was to be the Advocate-

General. Even after this Act the High Court had power of enrolment of Advocates and

the function of the Bar Council was advisory in nature. The rules made by the Bar

Council were to be effective only on the approval of the High Court.

The Calcutta High Court and Bombay High Court permitted non-Barrister

Advocate to -practise on the original sides. The distinction between barristers and

advocates, thus, was abolished. However, no advocate (whether barrister or not) was

permitted to act on the original side, but he could appear and plead only on the

instruction of the attorney on record.

Section 10 of the Indian Bar Council Act, 1926 empowered the High Court to

reprimand, suspend or remove from practice any Advocate of the High Court when it

found him guilty of professional or other misconduct. Section 10 of the Bar Council

Act, 1926, provided "upon receipt of a complaint made to it by any Court or by the

Bar Council or by any other person that any such advocate has been guilty of

misconduct, the High Court shall, if it does not summarily reject the complaint, refer

the case for inquiry either to the Bar Councilor after consultation with. the Bar

Council to the Court of a District Judge and may of its own motion so refer any case

in which it has otherwise reason to believe that any such Advocate has been so

guilty."

4. Legal Profession after Independence: All India Bar Committee, 1951

The Indian Bar Council Ad, 1926 (stated above) failed to satisfy the Bar.

The pleaders and Mukhtars practising in the Mufussil Courts were not within its

scope. The Bar Councils were not given any significant power. They were only

advisory bodies. In 1951 a committee known as the All India Bar Committee was

appointed under the Chairmanship of Justice S.R. Das. The Committee

recommended the establishment of an All India Bar Council and State Bar

Councils. Subject to certain safeguards, the Committee suggested that the powers of

enrolment, suspension and removal of advocates should be vested in the Bar Councils.

It also recommended that there should be a common role of Advocates who should be

authorised to practise in all Courts in the country. The Fifth Law Commission in its

Fourteenth report submitted in 1958, recommended for establishment of a United all

India Bar. The Commission favoured the recommendation of the All India Bar

Committee, 1951, that there should be no further recruitment of non-graduates

pleaders or mukhtars. It also recommended for the division of Bar in to senior

advocates and advocates.

Advocates Act, 1961

In 1961 the existing Advocates: Act was' enacted. It has been enacted for the

purpose of amending and! consolidating the law relating to legal practitioners and also

for providing the constitution of Bar Council and an All India Bar. Section 1 of the

Advocates Act, 1961 provides that this Act may be called the Advocates Act, 1961

and it extends to the whole of India.

Section 2 of the Advocates Act 1961, defines certain terms. It provides that,

unless the context otherwise requires-

(1) advocate means an advocate entered in any role under the provisions of this'

Act;

(2) 'appointed day' in relation to any provision of this Act, means the day on

which the provision comes into force;

(3) 'Bar Council' means a Bar Council constituted under this Act.

(4) 'Bar Council of India' means the Bar Council constituted under section 4 for

the territories to which this Act extends;

(5) 'High Court', except in sub-section (1) and sub-section (I-A) of section 34

and in sections 42 and 43 does not include a Court of the Judicial Commissioner and

in relation to a Stat~ Bar Council, means-

(i) in the case of a Bar Council constituted for a State or for a State and one or

more Union Territories, the High Court for the State;

(ii) in the case of the Bar Council constituted for Delhi, the High Court of

Delhi.

(6) 'law graduate' means a person who has obtained a bachelor's degree in law

from any University established by law in India.

(7) 'Legal practitioner' means an advocate or vakil of any High Court, a

pleader, mukhtar or revenue agent.

In a case, the Supreme Court has made it clear that the expression 'legal

practitioner' cannot include a serving judge who might have been appointed as a

presenting officer in the departmental proceedings.

The Advocates Act makes provision for the establishment of the State Bar

Council and Bar Council of India. The main functions of the Bar Council of

India are to lay down the standards of professional conduct and etiquette for

advocates, to lay down the procedure to be followed by its disciplinary

committee, to safeguard the rights, privileges and interest of advocates, to

promote and support law reform, to promote legal education, to recognise

Universities which degree in law shall be a qualification for enrolment as an

advocate, to conduct seminars, etc. It provides for two classes of advocates,

senior advocates and other advocates. The State Bar Council are required to

maintain role of advocates and to send copies of rolls of advocates to the Bar

Council of India. The Act contains exhaustive provisions relating to enrolment

and admission of advocates, rights of advocate, punishment for professional and

other misconduct, etc. These provisions have been discussed exhaustively in the

subsequent chapters.