Advocacy is a noble profession and an indispensable part of the judicial system. A properly equipped and efficient Bar Council is essential for a well-organised judiciary. The citizens of our nation depend on advocates to draft economic transactions such as deeds, contracts, wills, and agreements. Law is a vast subject, and it is impossible for every commoner to read and study provisions and precedents whenever he/she needs a court representation. Therefore, advocacy enables a specialised group of individuals with profound legal expertise to serve as the eyes, ears, and voice within the courtroom.
The Legal Practitioners Act of 1879 is a part of a long list of legislations that were introduced to organise the legal profession. The Act aimed to ensure professionalism and a code of conduct into the field. Post the enactment of this legislation, all legal professionals were to follow certain ethics and etiquettes.
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History of the Legal Practitioners Act
In the pre-independence era, the courts derived their powers from the British Crown. Mayor’s courts were established in Madras, Bombay, and Calcutta according to the Charter of 1736. These courts usually heard only civil matters and did not have any criminal jurisdiction. Criminal jurisdiction was conferred only to the Governor. People who did not have knowledge of the law practised in courts. The Charter of 1753, which was instituted to modify the previous charter, failed to organise the profession and impart knowledge and training. The Charter of 1774 established the Supreme Court of Judicature at Calcutta. The Supreme Court had the power to approve and enrol, as well as remove advocates.
The Bengal Regulation Act of 1793 established a regular legal profession in the company’s court. The Act provided for Muslims and Hindus to be enrolled as pleaders. The Indian High Courts Act of 1861 established a High Court in every presidency town. This Act also organised civil courts within the provinces.
The Legal Practitioners Act of 1879 was established and enacted on 1 January 1880. The aim of the Act was to amend and consolidate laws related to the legal profession. The Act allowed advocates and vakils to practise in all subordinate courts that fall under the jurisdiction of the high court they are enrolled in.
Key Provisions of the Act
The only existing Provisions of the original Act are Sections 1, 3, and 36. The Act of 1938 repealed Section 2, and Sections 4 to 35 were repealed by Section 50 of the Advocate Act of 1961.
- Section 3 is an interpretation clause. As per this section, a subordinate court refers to all courts, including courts of small causes, that are subordinate to the High Court. A legal practitioner refers to an attorney, an advocate, a pleader mukhtar, a revenue agent, or a vakil. A judge refers to the presiding judicial officer of every criminal and civil court. Revenue offices are the other form of courts that try civil suits. Additionally, a tout is a person who employs legal practitioners to assist businesses comply with legal requirements.
- The power to frame and publish lists of touts is provided for under Section 36 of the Act. As per this section, every Sessions Judge, High Court judge, District Judge, District Magistrate, Revenue Officer, and Presidency Magistrate can publish a list of touts. The list is altered from time to time. No name can be added without showing sufficient evidence to prove his/her authority. A list of persons who are alleged to be touts is sent to the appropriate authority. The authority carries out an inquiry and decides whether such a person is qualified to be a tout.
Some of the important repealed provisions are as follows:
Pleaders and Mukhtars
As per Section 8 of the Act, pleaders can enrol themselves in any revenue office or court if they possess a certificate. Such a revenue office or court must be within the appellate jurisdiction of the High Court that issued the pleader the certificate. Similarly, all Mukhtars after receiving a certificate from the respective High Courts, can practise in any Criminal or Civil Court within the appellate jurisdiction of the High Court. This guideline is given under Section 9 of the Act. The High Court prescribes the powers, functions, and duties of Mukhtars from time to time.
As per Section 10, a person who does not hold the required qualifications and training cannot practise before any court. By this point in the Indian judicial system, the profession of lawyers had become organised. The Chief Controlling Revenue Authority and the High Court decided the remuneration to be paid to the Mukhtars and pleaders.
Section 17 of Chapter IV gives the Chief Controlling Revenue Authority the power to make rules for the revenue agents. The rules are made regarding fees to be paid, qualifications, certificates, admissions, suspension, and dismissals. The duties, powers, and functions of such officers are also declared.
As per Section 19, all revenue agents must enrol in a revenue office that functions under the jurisdiction of the Chief Controlling Revenue Authority. Only a qualified and certified revenue agent can act as an agent in revenue offices. If a revenue agent is convicted of a criminal offence or is found guilty of unprofessional conduct, he or she may be dismissed or suspended.
All certificates that are issued in compliance with the provisions of this Act are to be written on a stamped paper of value as prescribed in Section 25 of Chapter V. Additionally, all practitioners who have been either suspended or dismissed due to whatever the case may be must surrender their certificates within the stipulated time period. The certificate must be delivered to any court or officer to which the High Court or the Chief Controlling Revenue Authority orders him to deliver the same.
Legal Profession in India Post-Independence
The Indian Bar Committee of 1923 was constituted under the chairmanship of Sir Edward Charminar. The major concern of the committee was organising the bar on an Indian Basis. The committee favoured the establishment of a bar council under every High Court. The committee suggested that all legal officers practising at the High Courts should be called Advocates. The committee would also have the power to inquire into disciplinary matters against advocates and could punish guilty advocates as it pleases.
The Indian Bar Council Act of 1926 was enacted to give effect to the recommendations made by the Committee of 1923. The major purpose of the Act was the incorporation and constitution of the Bar Council for the High Courts. The secondary purposes were the consolidation and amendment of laws applicable to legal professionals and imposing duties and confirmation of powers on bar councils. As per the Act, every bar council was to consist of 15 members. Of the 15 members, 10 members were to be elected by the High Court advocates from among themselves. Five members were to be nominated by the respective High Courts.
The All India Bar Committee of 1951 was established under the chairmanship of Justice S. R. Das. The report of this committee recommended the setting up an All India Bar Council and a separate State Bar Council. Recommendations were also made regarding the procedure of enrollment, suspension, and removal of advocates from the bar council. This committee abolished the recruitment of non-graduated pleaders and Mukhtars.
The All India Bar Committee finally proposed the Advocates Act, of 1961. This act is applicable to the whole of India. The primary objective of the Act is to provide a framework of ethics and etiquette for a lawyer to adhere to and bring about revolutionary changes to the legal profession in our country.
Advocates, Vakils, and Attorneys
Advocates and Vakils
Chapter II of the Legal Practitioners Act of 1879 details the role of advocates, vakils, and attorneys. Advocates and Vakils are described under Section 4 of the Act. According to this section, every individual who is currently or subsequently listed as an advocate or vakil on the roll of any High Court is entitled to practise in all Courts subordinate to it.
They can also practise in all revenue offices located within the local limits of such Courts’ appellate jurisdiction. With the permission of their parent court, such practitioners can practise in other High Courts or subordinate courts as well. The Section also states that a Vakil cannot practise before a High Court or a Division Court that is exercising original jurisdiction in a Presidency town.
Section 5 of the Act describes the Attorney of the High Court. Any person listed as an attorney on the rolls of any High Court is entitled to practise in all Courts below it as well as in all revenue offices located within its local appellate jurisdiction. However, any person listed can also practise in other High Courts and revenue offices established by the Royal Charter. The High Court of the State in which an attorney practises may occasionally set regulations defining what is to be considered an attorney’s roles, responsibilities, and obligations.
Penalties for the Infringement of the Provisions of the Act
Chapter VII of the Act describes the penalties that the Act can impose. Section 32 of the Act states that if a person practises before a court of law without possessing the required qualifications, then the person shall be liable to pay a fine that equals ten times the amount of the stamp required on the certificate they would have possessed if they were a legitimate lawyer. If such a fine is not paid, then the offender may be sentenced to a 6-month prison term in a civil establishment.
When a revenue agent, mukhtar, or pleader is suspended or dismissed, he/she needs to submit his certificate as per the provisions of Section 26. If such delivery is not done within the stipulated time, then a fine of not more than Rs 200 is to be paid, as per Section 33 of the Act.
According to Section 34, if any revenue agent, mukhtar, or pleader is found to be practising after being suspended or dismissed, then he/she would be liable to pay a fine of not more than Rs 500. If a payment default is made, then the offender may be sentenced to 6 months of civil imprisonment.
Section 36 of the Legal Practitioners Act gives every District Judge, District Magistrate and Presidency Magistrate, High Court, and Revenue officer the power to frame and publish a list of touts. Only the persons mentioned in the list are to perform the duties of a tout. If any person, without authorisation, tries to scout lawyers for businesses or companies, then they shall be subjected to an inquiry. If found guilty, they shall be punishable with imprisonment, which may extend to 3 months, or with a fine extending to Rs 500.
In India, advocacy has undergone a gradual yet significant transformation over time. This noble profession has evolved from being influenced by individuals lacking legal knowledge or training to becoming well-structured and organised. Nowadays, the ethical standards and regulations of the legal field are as intricate and complex as the subject matter.
The enactment of the Legal Practitioners Act of 1879 marked a pivotal moment in fostering professionalism within law practice. During the era of this Act, skill development was emphasised. Esteemed institutions such as High Courts and the Supreme Court were established to outline the powers, functions, and responsibilities of the judiciary. Moreover, mandatory enrollment for all categories of legal professionals was instituted.
FAQs on the Legal Practitioner Act
What is the penalty for non-submission of the certificate once a pleader, Mukhtar, or revenue agent is dismissed?
The penalty is a fine of not more than Rs 200. In case of a default in payment, the offender may be sentenced to 3 months of civil imprisonment.
Who is an advocate or a Vakil as per Section 4 of the Act?
An advocate or a Vakil is every individual who is currently or subsequently listed as such on the roll of any High Court under the letters patent establishing such court and is entitled to practise in all Courts subordinate to the court on whose enrollment he/she is listed.
The enactment of which Act was a culmination of the All India Bar Committee of 1951?
The enactment of the Advocates Act of 1961 was the culmination of the All India Bar Committee of 1951.
What was the significance of the Bengal Regulation Act of 1793?
The regular legal profession was established in the company’s court by the Bengal Regulation Act of 1793. The Act provided for Muslims and Hindus to be enrolled as pleaders.
Why does a pleader need to certify himself?
As per Section 8 of the Legal Practitioners Act, all pleaders, once they are in possession of a certificate, can enrol themselves in any revenue office or court. Such revenue office or court must be within the appellate jurisdiction of the High Court that provided the pleader with the certificate.