INTRODUCTION
The Bar Council of India is a statutory body that regulates and represents the Indian bar. It was created by Parliament under the Advocates Act, 1961. It prescribes standards of professional conduct, etiquettes and exercises disciplinary jurisdiction over the bar. It also sets standards for legal education and grants recognition to Universities whose degree in law will serve as a qualification for students to enroll themselves as advocates upon graduation.
Section 4. Of the Bar Council of India provides-
1. There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely: –
a) the Attorney- General of India, ex officio;
b) the Solicitor- General of India, ex officio;
c) one member elected by each State Bar Council from amongst its members.
Section 4(1-A) of the Act makes it clear that no person shall be eligible for being elected as a member of the Bar Council of India unless he possesses the qualifications specified in the proviso to sub- section (2) of section 3.
Section 4(2) of the Act provides that there shall be a Chairman and a Vice- Chairman of the Bar Council of India elected by the Council in such manner as may be prescribed.
Section 4(2-A) of the Act makes it clear that a person holding office as Chairman or as Vice- Chairman of the Bar Council of India immediately before the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), shall, on such commencement, cease to hold office as Chairman or Vice- Chairman, as the case may be:
Provided that such person shall continue to carry on the duties of his office until the Chairman or the Vice- Chairman, as the case may be, of the Council, elected after the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), assumes charge of the office.
Section 4(3) of the Act provides that the term of office of a member of the Bar Council of India elected by the State Bar Council shall–
in the case of a member of a State Bar Council who holds office ex officio, be two years from the date of his election [or till he ceases to be a member of the State Bar Council, whichever is earlier]; and
in any other case, be for the period for which he holds office as a member of the State Bar Council:
Provided that every such member shall continue to hold office as a member of the Bar Council of India until his successor is elected.
Section 10-A of the Act provides that The Bar council of India shall meet at New Delhi or at such other place as it may, for reasons to be recorded in writing, determine. A State Bar Council shall meet at its headquarters or at such other place as it may, for reasons to be recorded in writing, determine .The committees other than disciplinary committees constituted by the Bar Councils shall meet at the headquarters of the respective Bar councils. Every Bar Council and every committee thereof except the disciplinary committees shall observe such rules of procedure in regard to the transaction of business at their meetings as may be prescribed. The disciplinary committees constituted under section 9 shall meet at such times and places and shall observe such rules of procedure in regard to the transaction of business at their meetings as may be prescribed.
Section 10-B of the Act provides that an elected member of a Bar Council shall be deemed to have vacated his office if he is declared by the Bar Council of which he is a member to have been absent without sufficient excuse from three consecutive meetings of such Council, or if his name is, for any cause removed from the roll of advocates or if he is otherwise disqualified under any rule made by the Bar Council of India.
Section 14 of the Act provides that no election of a member to a Bar Council shall be called in question on the ground merely that due notice thereof has not been given to any person entitled to vote threat, if notice of the date has, not less than thirty days before that date, been published in the Official Gazette.
HISTORY OF THE BAR COUNCIL OF INDIA
After the Constitution of India was established on January 26, 1950, the Inter-University Board passed a resolution emphasizing the need for an all-India Bar and the importance of uniformly high standards for law examinations in different Universities. In May 1950, the Madras Provincial Lawyers Conference, held under the presidency of Shri S. Varadachariar, resolved that a committee appointed by the Government of India should evolve a scheme for an all-India Bar and amend the Indian Bar Councils Act such that it conforms to the new Constitution. On April 12, 1951, Shri Syed Mohammed Ahmad Kazmi, a Member of Parliament, proposed a bill to amend the India Bar Councils Act. The Government of India concluded that it was necessary for the Government to sponsor the Bill. In August 1951, a Committee of Inquiry was set up to consider the feasibility of a unified Bar in India, the continuance or abolition of the dual system of counsel for each state, possibility of a separate Bar Council for the Supreme Court and the revision of enactments related to the legal profession.
STRUCTURE OF THE BAR COUNCIL OF INDIA
The Bar Council of India consists of 18 Members. The Attorney General of India and the Solicitor General of India are Ex-officio Members of the council and the other 16 Members represent the 16 State Bar Councils in the country. The Members are elected for a period of five years and the Chairman and Vice -Chairman are elected for a period of two years from among the Members of the Bar Council of India. The Bar Council further consists of various committees viz., Legal Education Committee, Disciplinary Committee, Executive Committee, Legal Aid Committee, Advocates Welfare Fund Committee, Rules Committee and various other Committees formed to look into specific issues arising from time to time.
FUNCTIONS OF BAR COUNCIL OF INDIA
The Bar Council of India was established by Parliament under the Advocates Act, 1961. The following statutory functions under Section 7 cover the Bar Council’s regulatory and representative mandate for the legal profession and legal education in India:
1. To lay down standards of professional conduct and etiquette for advocates.
2. To lay down procedure to be followed by its disciplinary committee and the disciplinary committees of each State Bar Council.
3. To safeguard the rights, privileges and interests of advocates.
4. To promote and support law reform.
5. To deal with and dispose of any matter which may be referred to it by State Bar Council.
6. To promote legal education and to lay down standards of legal education. This is done in consultation with the Universities in India imparting legal education and the State Bar Councils.
7. To recognize Universities whose degree in law shall be a qualification for enrolment as an advocate. The Bar Council of India visits and inspects Universities, or directs the State Bar Councils to visit and inspect Universities for this purpose.
8. To conduct seminars and talks on legal topics by eminent jurists and publish journals and papers of legal interest.
9. To organize legal aid to the poor.
10. To recognize on a reciprocal basis, the foreign qualifications in law obtained outside India for the purpose of admission as an advocate in India.
11. To manage and invest the funds of the Bar Council.
12. To provide for the election of its members who shall run the Bar Councils.
The Bar Council of India can also constitute funds for the following purposes:
1. Giving financial assistance to organize welfare schemes for poor, disabled or other advocates,
2. Giving legal aid, and
3. Establishing law libraries.
The Bar Council of India can also receive grants, donations, and gifts for any of these purposes.
With respect to the point 6, (stated above) the Supreme Court has made it clear that the question of importing legal education is entrusted to the Universities in India and not to the Bar Council of India. All that the Bar Council can do is to suggest ways and means to promote suck legal education to be imparted by the Universities and for that purpose it may lay down the standards of education. Sections 7 do not entitle the Bar Council itself to frame rules laying down pre-enrolment as Advocate.
In Raveendranath Naik v. Bar Council of India, the resolution passed by the Bar Council of India directing advocates not to participate in any programme organized by the Legal Services Authorities in any LokAdalat or any legal aid programme has been held illegal and void.
In Ex-Captain Harish Uppal v. Union of India, the court held that section 7 provides in respect of the functions of the Bar Council of India, but none of its functions mentioned in section 7 authorizes it to paralyze the working of the Courts. On the contrary it is enjoined with a duty to lay down standards of professional conduct and etiquette for advocates. No Bar Council can ever consider giving a call of strike or a call of boycott. In case any association calls for a strike or boycott the concerned State Bar Council of India must immediately take disciplinary action against the advocates who gives a call for a strike. It is the duty of every advocate to ignore a call of strike or boycott.
COMMITTEES OF BAR COUNCIL OF INDIA
The Bar Council of India has various committees that make recommendations to the Council. The members of these committees are elected from amongst the members of the Council.
The Advocates Act mandates the creation of a Disciplinary Committee (under section 9), a Legal Education Committee, and an Executive Committee (under section 10). Chapter III of the Bar Council of India Rules permit the Council to appoint from amongst its members, one or more committees in addition to those specified in the Act. The Council can delegate powers, duties, and functions to these committees.
The term of the members of the committees of the Council has been specified in Chapter III of the Bar Council of India Rules. A different term can be specified at the time of election.
1. LEGAL EDUCATION COMMITTEE
The Legal Education Committee consists of five members of the Bar Council of India and five co-opted members to represent the judiciary, the Law Ministry, the University Grants Commission, and academia. This committee makes recommendations to the Bar Council of India on all matters pertaining to legal education in the country. The committee elects its own Chairman.
The Legal Education Committee has the power: –
Ø To make recommendations to the Council for laying down the standards of legal education for Universities.
Ø To visit and inspect Universities and report the results to the Council.
Ø To recommend to the Council the conditions subject to which foreign qualification in law obtained by persons other than citizens of India may be recognized.
Ø To recommend to the Council for recognition of any degree in law of any University in the territory of India.
Ø To recommend the discontinuance of recognition of any University already made by the Council.
Precisely, Legal education matters within the Bar Council are regulated by the Legal
Education Committee, which consists of five Members of the Bar Council of India and
five Members co-opted from outside and they represent Judiciary, Law Ministry,
University Grants Commission and Academicians. This is a high-powered committee
which makes recommendations to the Bar Council of India on all matters pertaining to
Legal Education in the country. The Legal Education Committee elects its own Chairman.
2. DISCIPLINARY COMMITTEE
The disciplinary committee of the Bar Council of India hears applications for revision by persons against summary dismissal of their complaints against advocates for professional misconduct, by the State Bar Councils.
Appeals lie before the Bar Council of India against orders of the disciplinary committees of the State Bar Councils. Every such appeal is heard by the disciplinary committee of the Bar Council of India, which may pass an order, including an order varying the punishment awarded by the disciplinary committee of the State Bar Council.
Each disciplinary committee consists of three members. The term of the members of this committee is three years.
3. EXECUTIVE COMMITTEE
The Executive Committee is the executive authority of the Council, and is responsible for giving effect to the resolutions of the Council.
Members of the Executive Committee are elected from amongst the members of the Bar Council of India. The committee elects its Chairman and Vice-chairman.
The Executive Committee has the power:
Ø To manage the funds of the Council,
Ø To invest the funds of the Council in the manner directed by the Council from time to time,
Ø To grant leave to members of the staff, other than casual leave,
Ø To prescribe books of account, registers and files for the proper management of the affairs of the Council,
Ø To appoint and supervise the work of the members of the staff and prescribe their conditions of service
Ø To appoint auditors and fix their remuneration,
Ø To consider the annual audit report and place it before the Council with its comments for its consideration,
Ø To maintain a library and under the directions of the Council, publish any journal, treatise or pamphlets on legal subjects,
Ø To prepare and place before the Council, the annual administration report and the statement of account,
Ø To provide for proper annual inspection of the office and its registers,
Ø To authorize the Secretary to incur expenditure within prescribed limits,
Ø To fix travelling and other allowances to members of the committees of the Council, and to members of the staff,
Ø To delegate to the Chairman and/or the Vice-Chairman any of its aforementioned powers,
Ø To do all other things necessary for discharging the aforesaid functions.
4. ADVOCATE WELFARE COMMITTEE
The Advocates Welfare Committee looks into applications made by advocates through various State Bar Councils for welfare funds. The committee verifies the application and allocates funds.
The Advocates Welfare committee is empowered by the Advocates Welfare Fund Act, 2001. The State Bar Council shall pay to the Fund annually, an amount equal to twenty per cent of the enrolment fee received by it from advocates clause (f) of Section 24 of the Advocates Act.
The members of the Advocates Welfare Committee are elected from amongst the members of the Bar Council of India. The term of each member in this committee is two years.
5. LEGAL AID COMMITTEE
The Legal Aid Committee provides aids to those requiring legal assistance.
6. BUILDING COMMITTEE
The Building Committee is responsible for setting up offices for the Council.
7. RULES COMMITTEE
The Rules Committee reviews the rules and regulations of the Council.
SUPREME COURT SEEKS BAR COUNCIL TO REPLY ON ALL INDIA BAR EXAMINATION
“Supreme Court was hearing a plea of R Nagabushana seeking quashing of BCI’s notification on AIBE on the ground that it takes away the statutory right, given to an eligible person to practice law.”
The Supreme Court on March 1, 2016 questioned the Bar Council of India’s authority to conduct the All India Bar Examination (AIBE), which a law graduate has to clear to be eligible to practice in a court.
Bar Council of India reply on All India Bar Examination
A bench of Chief Justice T S Thakur and Justice U U Lalit asked BCI whether it had statutory backing to conduct the examination. “A committee appointed by the SC had recommended amendments to the Advocates Act before conducting such an examination. But you (BCI) went ahead with the AIBE merely on the basis of a resolution,” it said.
“You can make rules and regulations to stop malpractices by advocates. But to make clearing of an examination mandatory for a law graduate to be able to practice is like negating a lawyer’s right to appear in court?” the bench asked. T he bench asked BCI’s counsel Ardhendumauli Prasad to come prepared on Wednesday to answer these fundamental questions. “You are a body which is regulating advocates and yet you have no answers. Are you a law unto yourself?” it asked.
The bench clarified that it was not against holding the examination per se. “But without an amendment to the Act, can you hold the examination?” it asked.
The Law Commission of India, in its 184th report to the government in 2002, had recommended amendment of the UGC Act for setting up a ‘Legal Education Committee’ and amendment of the Advocates Act to set up a similar committee by the BCI.
The commission had recommended that “a law graduate shall get training from advocates having 10 years experience in courts and should also qualify bar exam before being allowed to practice”. However, the BCI, under the chairmanship of then solicitor general Gopal Subramaniam, passed a resolution to conduct AIBE and went ahead with it from 2010.
The Supreme Court on March 2nd, 2016 sought response from apex bar body Bar Council of India on a plea-challenging holding of All India Bar Examination for granting advocacy licences, saying the profession has become “overcrowded” and the system is “crying for reforms”.
A bench comprising Chief Justice T S Thakur and Justice U U Lalit said the matter needs elaborate examination by a three-judge bench and indicated that it may appoint an amicus curaie to assist it in reforming the system. The bench also said that it would examine as to whether conducting the AIBE falls under the statutory sanction of the Advocates Act or not.
CONCLUSION
The Bar Council of India has a lot of functions vested within itself, whereby exercising those functions it can restructure and reframe the entire legal arena in the country. In fact, it can be more predominantly envisaged that in modern times it has hardly contributed constructively in the improvement of law in India. There are certain loopholes in the legal arena in India today which the Bar Council must look into, in order to protect the law standard from degradation and to maintain the same standards.
In a significant development, the Supreme Court today issued notice to the Bar Council of India in a petition challenging the Constitutional validity of the All India Bar Examination and posted the matter before a 3-judge Bench.
A Division bench of Chief Justice of India TS Thakur and JusticeUU Lalit, however, made it clear that it is not averse to having an exam. However, the Court will examine if the existing system is within the confines of law, and if not, seek to strengthen it.
Sanjay Nuli appeared for petitioner Nagabushana whileArdhendumauli Kumar Prasad appeared for Bar Council of India.
The petition, which was filed in 2013, had come up for hearing yesterday when the Court had enquired about the rationale behind the exam and whether it would negate the right to practice law. The BCI today submitted that a decision of the Supreme Court has barred a pre-enrollment exam and hence, a post-enrollment exam was being held.
The Bench, after some deliberation, issued notice while posting the matter before a 3-judge Bench. It also said that it might consider appointing an amicus. CJI Thakur then went on a lengthy monologue on how the court is inclined to strengthen the existing system and regulate the quality of entrants into the legal profession.
“Let me make it clear that we are not averse to having an exam. We only want to examine if the AIBE is within the parameters of law. We only want it to be strengthened.
We now have lawyers coming straight to Supreme Court. They don’t know what burden of proof is or how to conduct themselves in court. We already have two million lawyers. 60,000 new lawyers enroll every year. Out of that around 2000 are from National Law Universities. What about the remaining 58,000? Any further addition should be based on merit and talent.
Just because you have a law degree does not mean you can start your practice. We don’t want half-baked lawyers. We have to make sure that even the most junior of the Advocates is good enough to ensure that justice is done.
The system has to be reformed and time has come.”
The case will now come up before a 3-judge Bench this Friday. The ninth edition of the AIBE is scheduled to be held on March 6 and there is no stay on the same.
