The Advocates Act: Important Sections And Case Laws

By Nirali Nayak   on 26 July 2021


KEY TAKEAWAYS

INTRODUCTION

Enforced on 16th August, 1961 this Act was enacted to amend and consolidate the laws that are related to the legal practitioners and provide for the constitution of Bar Councils and an All India Bar. It lays down the legal framework and guidelines for the legal practitioners. It includes the process of registering with state-level bar councils along with the credentials that are required by an individual to practice law. The Advocates Act, 1961 has replaced the Indian Bar Councils Act. In order to implement the recommendations of All India Bar Committee that was endorsed by fourteenth Report of the Law Commission in 1955, this Advocates Act of 1961 came into existence. The main objective of this Act is to integrate and constitute one class of legal practitioners called ‘Advocates’. It also aims at prescribing a uniform qualification for the Bar and creating an All India Bar Council and State Bar Councils.It also gives the rights and duties of an advocate.

IMPORTANT SECTIONS

Below mentioned are the important sections that are reflected in the Advocates Act.

LANDMARK JUDGEMENTS

1. Pratap Chandra Mehta vs. State Bar Council of Madhya Pradesh

In this judgement, it was observed that on failure to provide for the election, the Bar Council of India must constitute a special committee for that purpose. Under Section 15(2), it is stated that without prejudice to the generality of foregoing powers, rules can be made to provide for the electoral rolls and the manner of publishing the results. The rules formed by the State Bar Council will become effective only after it gets approval by the Bar Council of India, in terms of Section 15(3) of the Advocates Act. The conduct of the State Bar Council must be maintained in consonance with the democratic principles, keeping in mind the high professional standards of the advocates. Therefore, this power does not fall beyond the preview and scope of Section 15, read in conjunction with other provisions. Further it was held that, the language of Section 15(3) of the Advocates Act, is clear and the amended rules had received the approval of the Bar Council of India.

2. T. N. Raghupathy vs High Court of Karnataka and others.

In this case, the appellant claimed a writ of mandamus for forming new norms in consonance with the provisions mentioned in Section 16(2) of the Advocates Act, relating to the designation of Senior Advocates. The Court observed that the appellant did not have any locus standi to file a writ petition in view of the public interest. Learned Senior Counsel, Mr. K. K. Venugopal, Mr. Kapil Sibal, Mr. Gopal Subramaniam and Mr. Aditya Sondhi submitted before the High Court that it is not right in holding that view. Some of the issues that were raised in the writs did require consideration. It was concerned with the High Court only, as it is the High Court that deals with the formation of rules, guidelines, regulation regarding the designation of the Senior Advocates. Hence the impugned order was set aside and the High Court was requested to consider the matter on merits.

3. Mahipal Singh Rana vs State of UP

Here the Bar Council of India submitted that Section 24A of the Advocates Act gives a bar against the admission of a person as an advocate if he is convicted of any offence which involves moral turpitude. It also provides that the bar can be lifted after two years of release. But the provisions did not explicitly mention the removal of an advocate if the conviction is done after the person is registered as an advocate. It was stated that, the term moral turpitude has to be understood because even a minor offence could be termed as involving moral turpitude. The only other related provision was to take action under Section 35, and prove misconduct. It was further submitted that only the Bar Council has the power to punish an advocate under professional misconduct as per the provisions given under Section 35 of the Advocates Act. The counsel also submitted that a general order must be communicated to all the courts regarding the conviction of an advocate involving moral turpitude. And after the judgement is delivered, the Bar Council of India and concerned Bar Councils start proceedings against such advocates.

4. Noratanman Courasia vs M. R. Murali

Here the Supreme Court explored the term “professional misconduct” in Section 35 of the Advocates Act. The facts of the case included, an advocate assaulting the complainant, and asking him to refrain from proceeding with the case. The question being put up was, whether the act of advocate would amount to misconduct? The Supreme Court held that a lawyer is obliged to observe the norms of behaviour that are expected of him. In addition to the fact that he was not acting in his capacity as an advocate, his behaviour as a whole was unfit for an advocate. The Bar Council was justified in conducting disciplinary actions against him. The Court had carried out an over view of the jurisprudence of the Court regarding misconduct of advocates, and held that “misconduct” is incapable of a precise decision. It includes improper behaviour, intentional wrongdoing, deliberate violation of a rule etc. Therefore, “misconduct” though incapable of an appropriate definition, it acquires its connotation from the context, the delinquency in its performance and its effect on the discipline and nature of duty.

5. Thyssen Krupp Industris vs Suresh Maruti Chougule, Union of India, Bar Council of India and Others

In this case, the Bombay High Court dismissed a challenge questioning the constitutional validity of Section 36(4) of the Industrial Dispute Act, 1947. It restricts the appearance of lawyers in labour courts and tribunals stating that there must be a legal distinction between the right of an advocate to practice law under Section 29 and 30 of Advocates Act and the right to appear and address a court of law or tribunal. The welder filed an application against the engagement of Thyssen’s with a legal practitioner, which was allowed by the Court. Thyssen’s counsel argued that the assistance of a trained advocate is essential due to the complicacy related with the industrial adjudication. Due to this, the companies are unable to represent their case before a labour court effectively. The counsel on behalf of the welder argued that, right to practice law is not a Fundamental Right, vested or a legal right, thus a party cannot claim such a right to engage an advocate. The High Court held that there is a legal distinction between the two Acts and the right to practice guaranteed under Advocates Act do not confer on a litigant the right to get represented by any particular advocate, but can only be represented by an advocate if necessary. And, the right to practice is not an absolute right but only restricted in nature. It was also observed that, as Fundamental Rights do not provide a litigant the right to be represented by a lawyer in a court, it becomes difficult to accept the arguments that Section 36(4) of ID Act is unconstitutional and ultra vires with Article 14 and 21 of the Constitution of India.

Conclusion

The Advocate Act holds a great importance in laying down the guidelines and rules that any person enrolled as an advocate must follow. It also gives grounds for the actions taken against them if they commit any offence. It keeps the advocates under check and balance rule and this helps in the smooth functioning of the legal system. Various landmark judgements have made the ambiguity related with the Advocate Act clear.


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