ANALYSIS OF LEGAL PROFESSION AND ADVOCATE ACT 1961

INTRODUCTION TO LEGAL PROFESSION

The legal profession is an important limb of the machinery for the administration of justice. Without a well-organized profession of law, the courts wouldn’t be in a position to administer justice effectively. The profession of law is one of the oldest and noblest professions. The person in the legal profession is called an advocate or lawyer. An advocate is an officer of justice and a friend of the court. The central function that the legal profession must perform is nothing less than the administration of justice. An advocate assists the parties in drafting economic transactions like contracts, agreements, deeds, wills, etc. An advocate should provide free legal aid to the poor and deserving people on compassionate grounds.

DEVELOPMENT OF LEGAL PROFESSION IN INDIA:

Development of the legal profession In India can be divided into the following phases:

• Legal profession in Ancient India
• Legal Profession in Medieval India
• Legal profession in British India
• Legal profession in India after Independence.

Legal Profession in Ancient India:

In India during the earlier period, people live in small groups. The head of these groups or tribes delivered justice under the open sky before all the members. There was no specialist like a lawyer during those days. When kingship was established, the king delivered justice. King was advised by his councilors. The law of those days was rooted in Hindu religion and custom. From the stories of Maryada Ramayana and Vikramaditya, we are well aware of the wise men who solved the critical cases of those days. During those days, the sufferer presented complaints before the king and the king with the help of his religious heads and wise courtier delivered the judgment.

Legal Profession in Medieval India:

During the Muslim period, there was the existence of the Legal profession, as the party of the litigation appoints their vakils. This body decides the case and they were paid a percentage of the amount in the suit. However, in this period the legal profession was not so organized. Vakils performed their work as an agent for the principal but not as lawyers.

Legal Profession in British India:

During the British period, the model legal system was developed in India. Before 1726, the courts derived their power, not from the British Crown but the East India Company.

As the Mughal Empire was weakened by emerge of the British East India Company, they strengthen their economic power by external trade. The impact started with the advent of the British, Portuguese, and French at the beginning of the 17th century. The major impact was from Britishers whose company reigned from 1757 to 1857 before the sepoy mutiny spark given by Mangal Pandey. In 1754, As the Royal troops arrived in India, the terms of the Mutiny Act and the Articles of War made applicable to Company’s military forces5.

The result of Plassey, in 1757, paved the way for the British conquest of Bengal and eventually the whole of India. The need for the law authority in the three jurisdictions which were presidencies at that time (Calcutta, Bombay, and Madras). In 1772 Warren Hasting laid the foundation for two types of judicial administration: 1) Mofussil or District Court 2) Sadar or Provincial court. The company established its own provincial and appellate courts for resolving the civil as well as criminal courts.

In 1773, Regulating Act established for the first time, the Supreme Court of Fort Williams in Calcutta 1774, consisting of the Chief Justice and three judges (later reduced to two) appointed by the Crown acting as King’s court7. Sir Elija Impey was appointed as the first chief justice of the court of Calcutta. Coming to the litigation at that time, As written in Introduction about the development of two pleaders: vakils and British Barristers, this was still prevalent in forms of administrative institutions by Mughal empire and was continued by British. For the first time, the regular legal profession of vakils and other native pleaders was created in (Schmitthener 1968-1969).

A large population of vakils and attorneys were involved in trial courts or adjudications. Before the 1857 revolt the Bengal regulations, 1793 and 1833, The Legal Practitioners Act, 1846 was passed. In former (Bengal regulations) as written earlier which was evolved in work of S.W. Schmitthener later in 1968. The Bengal Regulation VII of 1793 was given by Lord Cornwallis. It gave the power to create Sadr Diwani Adalat to enroll advocates for the first time.

This also ensured the quality of the practicing advocates which became more respectable. In the Legal Practitioners Act, 1846 the pleading power was given to the person of whatever nationality or religion and were registered by Sadr Courts. Moreover, the 1846 act permitted barristers and attorneys to be admitted as pleaders in a court of East India Company.

Legal Profession in India After Independence:

All India Bar Committee was constituted under the chairmanship of Justice S.R. Das. The committee in its report recommended the establishment of an All India Bar Council and State bar Council. It recommended the powers of enrollment, suspension, or the removal of advocates to the Bar Council. Further recommended that there should be no further recruitment of non-graduated pleaders or Mukhtars.

The central government enacted the Advocates Act in 1961. This act has been in force in entire India. It brought revolutionary changes in the legal profession in India. It sets out to achieve the utility and dignity of the profession of law on an All-India basis. The preamble of the act says that the act amends as well as consolidates the law relating to legal practitioners.

LAW AS PROFESSION NOT A BUSINESS :

In the case of Dhanraj Singh Choudahry Vs Nathulal Vishwakarma SC 2011 where it has been seen that the Disciplinary Committee of the State Bar Council has considered the entire material, including the evidence of the complainant and the advocate appellant and arrived at the finding that the advocate appellant was guilty of professional mis-conduct for having attested the sale deed dated November 3, 1999 containing a statement that the shop on the western side of the saleable property in occupation of the complainant has already been transferred to the advocate appellant by giving him ownership right. The attestation of the sale deed containing the above statement, which was apparently false to the knowledge of advocate appellant, amounted to professional mis- conduct. The vendor- Jitender Singh Bakna and his father Sardar Desh Singh Bakna were the clients of the advocate appellant. As a matter of fact, the advocate appellant had filed a suit on behalf of the vendor against the complainant seeking his eviction from the premises for which the statement was made in the sale deed dated November 3, 1999 that the said premises in occupation of the complainant has been transferred by the vendor to the advocate appellant.

From the material on record the professional mis-conduct of the advocate appellant is clearly established and the Disciplinary Committee of the State Bar Council, Madhya Pradesh, cannot be said to have committed any error in holding him guilty of the professional mis-conduct. Having held that, the Disciplinary Committee of the State Bar Council awarded him punishment of reprimand. Against the inadequate punishment awarded to the advocate appellant for the proved professional mis-conduct, the complainant preferred appeal. In that appeal, notice was issued to the advocate appellant and in response thereto, he did appear before the Disciplinary Committee of the Bar Council of India on October 30, 2004 and was fully heard. The requirement of the proviso appended to Section 37(2) of the 1961 is, thus, fully met.

The legal profession is a noble profession. It is not a business or a trade. A person practicing law has to practice in the spirit of honesty and not in the spirit of mischief-making or money-getting. An advocate’s attitude towards and dealings with his client has to be scrupulously honest and fair.

In V.C. Rangadurai Vs. D. Gopalan and others Krishna Iyer, J. stated :- “Law’s nobility as a profession lasts only so long as the members maintain their commitment to integrity and service to the community.”

Any compromise with the law’s nobility as a profession is bound to affect the faith of the people in the rule of law and, therefore, unprofessional conduct by an advocate has to be viewed seriously. A person practising law has an obligation to maintain probity and high standard of professional ethics and morality.

REGULATION OF ADVOCATES ACT, 1961

The Advocates Act, 1961 contains rules and laws pertaining to advocates. The major goal of the Act is to create a single class of legal practitioners known as “advocates.” Advocates are permitted to represent clients before all courts and tribunals in all states of Indian territory. The advocates can only join one state Bar Council [vide Section 17(4) of the Act], although they are free to move to another State Bar Council. The Indian Bar Councils Act has been replaced by the Advocates Act, 1961. The Advocate Act of 1961 was created in order to carry out the recommendations of the All India Bar Committee, which were supported by the Law Commission’s fourteenth report in 1955. This Act’s primary goal is to unite and create a single class of attorneys called “advocates.” Their major goals are to establish an All India Bar Council and State Bar Councils, as well as a common qualification for the bar. It also outlines an advocate’s obligations and rights.

India’s legal profession was managed under the Advocates Act, of 1961, which was set up by Parliament after Independence. The All India Bar Committee was established in 1953 by the government to oversee and control the Indian judiciary after Independence in 1947. The Advocates Act and the Bar Council of India were formed in 1961 as a result of a recommendation submitted to Parliament by the All-India Bar Committee. Legal practitioners were divided into various classes under the Legal Practitioners Act of 1879 until the Advocates Act, 1961 came into effect. They were classified as Advocates, Lawyers, Vakils, Barristers, etc. After the Act came into effect, several classes of legal practitioners were abolished and combined into one class of advocates. These advocates were categorised as Senior Advocates and other subdivision advocates based on their qualifications for expertise and experience. Senior Advocates are given the title with the Supreme Court’s or the High Court’s confirmation.

The Bill was drafted in order to carry out the recommendations of the All India Bar Committee, which were issued in 1953. After considering the Law Commission’s proposals on Judicial Administration Reform, as well as the suggestions relating to the Bar and legal education. The Bill was amended to recognise the dual system in operation in the High Courts of Calcutta and Bombay by including the necessary provisions, according to the recommendations provided to the All India Bar Committee and the Law Commission. If they intend to abolish the dual system at any moment, it will only be open to two Courts. The Indian Bar Councils Act, 1926, as well as any other legislation on the subject, may be repealed by this bill because it is a comprehensive measure. This was published on November 19, 1959, in Section 2 of Part II of the Extraordinary Gazette of India.

Features of the Advocate Act, 1961

The Advocates Act, 1961 had the following features: It established the Bar Council of India and State Bar Councils and paved the way for their formation.

• Even though advocates may be transferred from one state to another, advocates are not permitted to enrol in more than one State-Bar Council.
• A self-governing authority has been given to the Bar Council.
• Additionally, the Act has made it possible for advocates to work in positions that are similar all across the world.
• It also included provisions that allowed for the consolidation of all legal system legislation into a single class or document.
• A single title called ‘advocate’ replaced the several titles that were previously granted to advocates such as legal practitioners, vakils, attorneys, etc.
• On the basis of their qualifications, experience, and level of expertise, there are senior advocates and other advocates as legal practitioners.
• The act primarily focuses on the consolidation of existing legal laws for the legal profession.
• The Bar Council was given control over an autonomous body that has been assigned certain duties.
• Additionally, there are several state Bar Councils that are under the control of the All-India Bar Council.
• They also have the same responsibilities as the All-India Bar Council, but they solely look after their particular states. The Bar Council was granted an autonomous entity that is entrusted with these responsibilities.
• According to the Act, State Bar Councils must exist in every state.

Rights of an advocate under the Advocate Act, 1961

In India, an advocate has the following rights:

• Right to practice (Section 30) and freedom of expression and speech-
• Pre-audience rights
• Right of opposition to arrest
• Right to appear in any court
• Right to see an accused person in jail
• Right to professional communication
• The right to protect the secrecy of communications
• Right to pay a fee
• Right with respect to vakalatnama
• Right to refuse a case

Role of Bar Council

The following are the functions of the Bar Council of India under Section 7 of the Act:

• It must establish standards of professional conduct and etiquette for advocates;
• It must establish specific procedures to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council;
• Their primary function is to prepare and maintain a common roll of advocates and to exercise general supervision and control over State Bar Councils;
• Its duties include general supervision of and control over state Bar Councils.
• It has to promote legal education.
• It has to set standards for that education in consultation with state Bar Councils and universities in India that deal with higher education.
• They also have the responsibility of identifying the universities where a law degree qualifies a graduate for enrolment as an advocate, and to that end, they either visit and inspect those universities or give State Bar Councils specific directions to visit and inspect.
• They also recognise a reciprocal basis for foreign legal qualifications gained outside of India for the purpose of admission as an advocate under the Act.
• Other duties exist that are similar to those of the Indian State Bar Council. The Bar Council of India carries out such activities as setting up one or more funds for the organisation of welfare programmes for poor and disabled advocates providing legal assistance and advice, as well as for establishing law libraries. Additionally, they receive gifts, donations, and benefaction.

BAR AND BENCH RELATIONSHIP

For the administration of Justice, the judicial system is composed of the judges and the advocates who assist the judiciary in dispensing justice through discharging their duties. The Bar and the Bench are two elements of the same system, and without them, justice cannot be efficiently administered in the courts.

The Bar and the Bench are considered as the two wheels of a chariot that play a role in administering the law. Both are subordinate to and interrelated to one another in their respective roles. In law, the term “Bar-Bench relationship” pertains to the friendly relationship that advocates have with judges. The Bar (advocates) and the Bench (judges) both play critical roles in the administration of justice. Maintaining cordial relations between the Bench and the Bar requires respect and understanding on both sides of the bench and bar.

Role of bar-bench in the administration of justice

The practice of law and the administration of justice is vitally important to each other. There is no other office in the state that possesses the same level of authority as that of the judge. Judges carry enormous power, far exceeding that of any other official in the government or military. The common people’s lives and liberty, individual domestic happiness, property, and public image are subordinate to the judges’ wisdom, and citizens are held accountable for their judgments. If judicial power is corrupted, there is no longer any assurance of life, liberty is forfeited, and there is no longer any guarantee of personal or domestic happiness. A strong judiciary that is active, unbiased, and competent is the most important thing a state can have. Judges must carry out their responsibilities due to the importance of judges in the maintenance of civil and orderly society.

The administration of justice is not limited to the courtroom. It also has significance for the Bar. The preservation of cordial relations between the Bar and the Bench necessitates respect and understanding on both sides of the bar. The roles of attorneys and judges are supplementary to one another. The primary source of judges’ recruitment is the legal profession. As a result, they are both members of the same community. The Bar and bench need to sustain cordial relations with one another. However, because of the nature of the responsibilities that attorneys and judges must fulfill, they may engage in dialogues that are sometimes amusing, sometimes heated, and sometimes tough.

Role of the bar in strengthening the bar-bench relation

Advocates are court officers, and they are required to aid the court in the administration of justice on behalf of the court. Advocates gather resources relevant to the case to aid the court in reaching an (outcome) in the case. An advocate works in collaboration with the judiciary to ensure that justice is administered properly. Advocates, like judges, play a significant role in the administration of justice. An advocate has to practice the following steps to preserve and strengthen the relation between Bar and Bench

• They should show reverence to the judges and refrain from disparaging the judges or the judiciary in any way whatsoever.
• They should assist the judges in the court hearing of the cases by conveying the relevant law accurately and understandably during the trial. They should never behave in a way that would displease the judges.
• If the judges make a mistake in their decision, they should not be criticized. They should attempt to correct the error in the order by filing an appeal.
• If the judge’s conduct is annoying and disrespectful to the advocates, they should refrain from engaging in violent talks with the judge in question. The issue should be addressed with the judge in his chambers, and the Bar Association should make a formal request that such misbehavior not be repeated.
• It is the responsibility of an advocate to make every effort to constrain and avert his or her client from engaging in unfair practices with the court.

Role of the bench in strengthening the bar-bench relation

A judge is a public official who hears and decides cases in the court of law, thereby resolving a legal dispute. Judges wield enormous power, far exceeding that of any other official in the government or military.  A judge has to practice the following steps to preserve and strengthen the relation between Bar and Bench:

• In the same way that the advocates respect the judges, the judges should respect the advocates as well.
• It is important for judges to approach the case with an open mind and to do so without bias or prejudice, as appropriate. They will act in a manner that is beneficial to the interests of justice. They will give the advocates sufficient time to present their case in its entirety.
• Judges are expected to act in a fair and unbiased manner. They are not permitted to act in the interests of any prosecutor or party to the dispute.
• In the course of administering justice, the courts are frequently called upon to decipher the law’s rules, directives, regulations, codes, bylaws, circulars, notices, and other documents to determine the true significance of the statutes or to clear up confusion or incoherence in the legislation. In these instances, a proper explanation should be provided to provide full justice to the parties involved in the situation.
• Adjournments are granted to allow the parties a reasonable amount of time to present their arguments. Cases will not be adjourned where possible unless there are reasonable and appropriate grounds to do so. Excessive postponement of cases, which causes the parties to suffer financial difficulties is the most common cause of mounting backlogs in the court system.
• The case of ‘justice deferred is justice denied’ will also be resolved as soon as possible as well. When older cases are given priority over new cases, new cases should not fall behind in their disposition.
• Judges should refrain from making unjustified public remarks about a lawyer’s lack of legal insight in open court. They should not ask any lawyer to leave the trial unless they have a compelling reason to do so. Likewise, they should not request that any advocate not appear in his or her court in the future.
• Judges will have a thorough understanding of the law. They should be able to apply the appropriate legislation to the evidence available and come to the best possible conclusion on the matter.
• A judge’s moral responsibility and honesty should be unquestionable. He should be treated with respect, both personally and intellectually. There should be something to commend about the character and the action.

REFORMS NEEDED IN LEGAL EDUCATION:

The result of a large population and a never-ending profession is what legal education in India looks like today. There are over 1,500 law schools and law colleges across the country, with over 1.5 lakh graduates every year. The number of law colleges doesn’t include branches of the institutes. With these many institutes, laws relating to them remain complex and multi-layered. This affiliation system seems to be a major problem to regulate law institutes in the country.  A rapid growth leads to declining efficiency and quality. Thus, having many institutes become a problem, as a lack of standards can be seen in many. This leads to incompetent law graduates who eventually lead to dilution in the profession as well as education.

Another problem seems to be that of entry to these institutes. As a student entering into the field of law, the number of entrance tests is vast. For those schools under a university or affiliated to them, a student may give the State Common Entrance Test. Others include CLAT, AILET, LSAT, and private entrance tests for private colleges. While a Student may prepare and appear for many, the standards for these tests aren’t uniform. This creates a status-quo amongst colleges and their students, and may act as a judgement factor when it comes time for employment.

Another reform seems to be needed in the syllabi and infrastructure of these Institutes. Many still have outdated syllabi and lack basic infrastructure. These do not take into account the changing role of law in society and also lack teaching basic social engineering skills needed in any practicing lawyer. Due to various lacunas in these institutes, many students lack the opportunities of competitions and activities that fuel in developing many skills. Even though it is agreed that Internships are a great medium to learn hands-on, an institute cannot declare its work to be ended after teaching the laws.

REFORMS NEEDED IN LEGAL PROFESSION AND INDUSTRY:

The sector has been a fast-growing and flourishing Industry, in a fast-growing economy and a developing country. Naturally with the population load, the cases under Indian Courts are always overflowing. The “pending cases in courts” is an issue that seems no end. The Central Government is the single largest litigant in the country in terms of initiating cases and responsible directly for a significantly large number of cases as a respondent. This increases government costs and burdens the judiciary. This may be resolved by taking a normative approach along with technological impact.

Normatively, the National Litigation Policy should be made binding and enforceable against officers of the Government. A lower monetary threshold should be introduced for appeals in matters that form the bulk of government litigation, and alternative dispute resolution methods should be made an option. Additionally, there should be greater monitoring of the number of pending cases where the Government is a litigant.

Further, legal in-awareness can be seen in the common man. Efforts can be taken to make the common man more aware of their rights and duties, helping them to contribute to the betterment of the sector.

APPLICATION OF INFORMATION TECHNOLOGY IN LEGAL PROFESSION

Over the last five decades, the legal industry has undergone a significant transformation.

What is Legal Tech – Legal technology (usually called Legal tech) refers to technologies and software that substantially changes the way we use legal services in our daily lives. In broader terms, it represents the set of technologies that –

Eases the practice of law for attorneys and legal professionals, and enables customers access legal competence or justice. With the terminology clearly defined, let’s take a closer look at the set of advantages of technology in law industry.

Role of Technology in Legal Sector – Technology has been playing a vital role in the legal industry. It has increased the efficiency of legal offices and productivity of clerical workers. With the advent of legal tech, there is greater transparency between legal firms and clients. Clients know how much fees they have to pay and can keep track of day-to-day progress of the lawyer on their case. Also, there is no doubt that technology, if used correctly, is fast and efficient – more than any human individual. This can prove to be of great assistance to any law firm.

Here are a few pointers that show how technology is revolutionizing the legal sector:

1. Automated processes
2. Ease of research
3. Better resource management
4. Decline in risk of errors
5. Increased transparency
6. Introduction of new legal products/services
7. Higher convenience
8. Enhanced customer experience
9. More collaboration among lawyers:
10. Faster processing of information:

 

CONCLUSION/ SUGGESTIONS

Law has a limitation in India depends on politics and socio-economic pressure. Social engineering, as well as economic, politics is a prerequisite.

• For legal practice as written in developments, the license of a lawyer should be renewed every year rather than every five years to maintain the quality as well as the authenticity of the legal profession. The curriculum should be updated according to the need of the current legal issues which is prevalent in Indian Society.
• Private and Public legal institutions should be recognized globally and give facilities equally so that from the bottom, the middle and upper sections can study together with no social and economic burden.
• New Law must be created which is the need of the dynamic science and technology and growth of the day-to-day routine and futuristic approach for overall development.
• In India, there is a scarcity of in-depth and analytical research that should be promoted at a local and large scale.

Suggestions on the relation between bar and bench

• A reputed and unbiased judiciary, as well as a powerful bar, are required to maintain the system of democracy and independence under the rule of law in the country. Furthermore, the lawyers must have the impression that they were given a fair court hearing and that their issues would be addressed by an unbiased and credible attorney, among other things.
• It is critical for the productive discharge of the court’s duties that the high level of optimism, prestige, and dignity that they have admired throughout their careers be sustained and not weakened in any manner. Whether it is judges or lawyers, they bear the main duty of administering and maintaining the public’s trust in the courts.

The adoption of technology in legal sector and agencies can go a long way in improving their efficiency and also helps in attracting a lot more clients. It creates flexible legal services, increases transparency, and reduces the chance of errors in documentation.

The Indian Legal Sector is open for a lot more reform. Its problems can be seen even by the common man. However, the faith and hope from the Legal World is never lost. Understanding and bettering the legal scenario will likely lead to better social and legal outcomes, allowing us as a nation to develop laws needed for the society. It will also help in making a system robust to new and upcoming challenges in the ever changing world.

Law is the only profession dealing with society and all its problems. There is no doubt that the legal scenario has come a long way, but there is also no denying that it needs to move forward too.

 

This article is writen by Abhinav Chaturvedi, a penultimate law student, IP university, Delhi.