DEVELOPMENT OF LEGAL PROFESSION IN INDIA

Sasi K.G.

01. Introduction

Legal profession in India has a long history to tell, as far as India is concerned. However Before four centuries it was not so. It is the colonial regime that forged the present adversary legal profession in India. However, the legal profession in the precolonial era was not an entire nullity.

02. Legal Profession in Pre-British India

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 Counselors 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 Court was required to investigate the matter and deliver its judgment. The judge was bound to be punished in case it was found that his judgment was wrong. Kautilya's Arthasastra does not mention about the existence of legal profession and therefore most probably such a class did not exist.

03. Muslim 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 organized. The Vakils acted more as agents for principals than as lawyer.

04. Legal Profession during British Period

The legal profession as it exists today was created and developed during the British Period. In early days the legal profession was not paid due attention by the East India Company. There was no uniform judicial system in the settlements of the East India Company.  Before Madras attained the position of a Presidency in 1665 it had two courts namely, the Choultry Court and the Court of the Agent and Council.

From the period ranging from 1661 till 1726, laws of equity and justice in conformity with the laws in England were followed. There was no codified law. In Calcutta, the judicial system was based on the Company’s authority as a Zamindar. This continued till the charter of 1726 was passed.

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. Before 1726 the Courts under East India Company did not derive their authority not from the British Crown 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. 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 practitioners. 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. Indian Legal Practitioners were not authorized 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 authorized to appear before the Supreme Court at Bombay and Madras.

The Bengal Regulation VII of 1793 created for the first time a regular legal profession for the Company's Courts. The Regulation authorized 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 organize 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 authorized 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.

Charter Act of 1774 had permitted the English lawyers to practice in the Supreme Court of Calcutta. In 1801, the English lawyers were allowed to practice in the Madras Supreme Court and in the year 1823 they were allowed to practice in the Bombay Supreme Court, but Indian Lawyers were not allowed to Practice in those courts.  In 1826, these 3 Supreme Courts were abolished and in that place High Courts were created.

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 organized in Bengal, Assam and North-Western Provinces by the Bengal, Agra and Assam Civil Courts Act, 1887. Subsequently, the Courts were organized in other Provinces also. The Criminal Courts were organized 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.

In 1865, the Special Rights Act has conferred the right to the Madras, Bombay and Calcutta High Courts to frame rules for the recognition of Advocates and for preparing the Advocates roll. 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.

05. 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 practice in all the Courts subordinate to the Court on the role of which he was entered. The Legal Practitioners Act, 1879, authorized 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 than 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.

In 1923, an Advocates Committee was constituted under the leadership of Sir. Edward to study the legal profession and to make suitable recommendations to improve the legal profession. This committee has recommended for the creation of Bar Councils in each High Court and allowing the “Vakils” to practice before the High Court.

Accepting the recommendation Indian Bar Councils Act was passed in 1926. This Act has paved the way for the creation of Bar Councils in each High Courts. But the Bar Council was not empowered to enroll Advocates, that power was retained with the High Courts. The function of the Bar Council was only advisory and the rules and regulations made by the Bar Council shall be brought into force only after the concurrence from the High Court.

06. Early Women in the Bar

In 1916, Ms Regina Guha passed her examination of B. L. from the University of Calcutta and applied to Calcutta High Court for her enrolment as a legal practitioner. Their Lordships of the Calcutta High Court observed that it was perfectly true that both, according to the etymological sense and the context of the Indian Legal Practitioners Act, the word ‘person’ made a woman eligible for enrolment as a legal practitioner. However, a full Bench decision of the High Court, delivered on 29^th August 1916, refused the enrolment of Regina Guha as a pleader. In 1921 another lady from Orissa, Ms Sudhansu Bala Hazra, filed a petition before the Patna High Court. The judges again observed that there was no legal impediment to the enrolment of Ms Hazra as a legal practitioner, but in the view of the fact that the Calcutta High Court, in 1916, had held that such an enrolment was limited and confined only to the persons of the male sex, they could not make a deviation. The Patna High Court judges took the view that the reference to a ‘person’ in section 6 of the Legal Practitioner Act of 1879 did not include a ‘female’. At about the same time, another woman law graduate, Ms Cornelia Sorabji, filed an application before the Allahabad High Court, which allowed her to be enrolled as a duly qualified legal practitioner. The position, thus, had then became anomalous. While a woman law graduate was duly enrolled and practicing law in Allahabad in the same manner as a man, women in Calcutta or Patna still did not have this prerogative.

Subsequently the Legal Practitioners (Women) Act, XXIII of 1923, removed this disability of women. This was followed by a series of women legal professionals being registered at the High Court of Allahabad. For example, Shyam Kumari Nehru, Leena Clarke and Begum Menakhi Amina Farrukhi were registered in 1928, 1931 and 1933, respectively.

07. After Independence

After Independence in the year 1951, an Advocates Committee was constituted under the chairmanship of Justice C.R. Das to study the problems in the legal profession and make suitable suggestions to remedy such problems. This committee has made the following recommendations.

1.         All India level, one Bar Council namely Bar Council of India and in each state, State Bar Council should be created.

2.         Power to enroll Advocates and disciplinary power against the Advocates should be entrusted with the Bar Council.

3.         Advocates should be allowed to practice throughout India without any discrimination.

The fifth Law Commission also scrutinized these recommendations and recommended for the implementation of these recommendations. Accepting these recommendations, the Central Govt. passed the Advocates Act in the year 1961 giving suitable provision for creation of Bar Councils and the Bar Councils are entrusted with the power of regulating the legal profession.

08. The Advocate Act, 1961

The Advocate Act, 1961 was passed to redress long standing demands of the Indian Lawyers Community. The main provisions of the Act are,

(1) The Act which extends to the whole of India provides a federal structure for legal profession. It provides for a number of State Bar Councils and Bar Councils of India.

(2) It provides for only one category of lawyers to be known as advocates.

(3) An advocate is initially enrolled with a State Bar Council and a common roll of all the advocates in the Country is maintained by the Bar Council of India. No advocate can get himself enrolled with more than one State Bar Council, though he can get himself transferred from one State Bar Council to another and is also entitled to appear before any court or tribunal throughout the country.

(4) State Bar Councils consist of 15 to 20 members, elected by the advocates. The Advocate General of the State concerned is the ex officio Member. Every State Bar Council has the following committee,—

(a) Executive Committee

(b) Enrolment Committee

(c) One or more Disciplinary Committees

(d) One or more Legal Aid Committees

(e) Committees for Special Projects

The function of a State Bar Council are,

(1) To admit advocates on its roll,

(2) To entertain and determine cases of misconduct against advocates on its roll,

(3) To safeguard the rights, privileges, and interests of advocates on its roll,

(4) To conduct seminars, organize talks and publish legal periodicals,

(5) To organize legal aid for the poor,

(6) To perform any other functions conferred on it under the Act,

5.                  The Bar Council of India is the National body of lawyers. It consists of,

(a) The Attorney General of India

(b) The Solicitor General, and

(c) One member elected by each State Bar Council from amongst its members.

The Bar Council of India has the following committees,

(a) Executive Committee

(b) Legal Education Committee

(c) Disciplinary Committee

(d) One or more Committees for the purpose of carrying out the provisions of the Act

The functions entrusted to the Bar Council of India are,

(1) Laying down standards of professional conduct and etiquette for advocates and the procedure to be followed by its Disciplinary Committee and the Disciplinary Committees of each State Bar Council,

(2) Promotion of law reform,

(3) Supervisions and control over State Bar Councils,

(4) Promotion of legal education,

(5) Recognition of universities whose degree will qualify a person to be enrolled as an advocate as well as recognition of foreign qualifications for the same purpose,

(6) Conducting of seminars and talks on legal matters and publishing of legal journals,

(7) Organizing legal aid for the poor,

(8) All other functions conferred by the Act.

The Advocates Act, 1961, materializes a long dream of the members of legal profession to have an all India Bar and professional autonomy. The Act also achieves other connected objectives such as the improvement of legal education and uniformity of standards.

09. Bar Council of India Rules, 1975

The Bar Council of India made the Bar Council of India Rules, 1975 in exercise of its rule making powers under Section 7(1)(b) of the Advocates Act, 1961. These rules are related to (i) Election of members of the Council, and different Committees, (ii) Administration of Council and finance, (iii) Preparation and maintenance of the State Roll, (iv) Seniority in the State Rolls, (v) Standards of professional conduct and etiquette and (vi) Disciplinary proceedings and Review.

10. Other Major Developments

Advocate (Removal of Difficulties) Orders, 1963, 1966 and 1968 were introduced in exercise of the powers conferred by sub-section (1) of Section 59 of the Advocates Act, 1961, by the Central Government. Advocates (Right to Take up Law Teaching) Rules, 1979 was made by the Central Government, in exercise of the powers conferred by Section 49-A of the Advocates Act, 1961 enabling the advocates to teach law not exceeding three hours while practicing. The Legal Services Authorities Act, 1987  is made to constitute Legal Service Authorities to provide free and competent legal service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on the basis of equal opportunities. The National Legal Services Authority Rules, 1995, was made in exercise of the powers conferred by Section 27 of the Legal Services Authorities Act, 1987 explaining the qualifications, functions and powers of the Legal Services Authorities. The Supreme Court Legal Services Committee Regulations, 1966 was made in exercise of the powers conferred by Section 29 of the Legal Services Authorities Act, 1987 by the Central Authority relating to the Supreme Court Legal Services Committee. Supreme Court Rules, 1966 are related to the practice in the Supreme Court. The advocates who practise in the Supreme Court should follow them. Supreme Court Bar Association Rules are applicable to the advocates who are the members of the Supreme Court Bar Association. Advocates Welfare Fund Acts and Rules of different States along with rules provide for various welfare measures to advocates.

11. Conclusion

The present day legal profession is manifestly politically superior to any other profession, considering the number of incumbents dealing in the political power of both the Central and State Governments. The moral integrity it commanded during the freedom movement lead by Mohandas Karamchand Gandhi could not, however, be maintained properly. The legal framework is strong, but not well founded as repeal of Advocates Act, 1961 is under consideration and as a substitute ‘The Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010’ was introduced as a Bill in the Parliament, but is kept in cold Storage due to strong opposition.

It may well be concluded that the future of legal profession shall be one with legal and moral accountability both to the client and the people in general.