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TABLE OF CASES

1.
2.
3.
4.

Bar Council of Kerala v. Thankappan Pillai


Bar Council of Delhi v. Bar Council of India
Anup Singh v. Bar Council of India and another
C.D. Sekkizhar v. Secretary, Bar Council of Madras

TABLE OF STATUTES
1. The Advocates Act,1961
2. Bar Council of India Rules

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CHAPTER: 1
BAR COUNCIL: INTRODUCTION
The Bar Council of India is a statutory body established under the Advocates Act 1961 that
regulates the legal practice and legal education in India. Its members are elected from amongst
the lawyers in India and as such represents the Indian bar. 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.
In March 1953, the All India Bar Committee, headed by S. R. Das, submitted a report which
proposed the creation of a bar council for each state and an all:India bar council as an apex body.
It was suggested that the all India bar council should regulate the legal profession and set the
standard of legal education. The Law Commission of India was assigned the job of assembling a
report on judicial administration reforms. In 1961, the Advocates Act was introduced to
implement the recommendations made by the All India Bar Committee and Law Commission.
M. C. Setalvad and C. K. Daphtary were the first chairman and vice chairman respectively. In
1963, C. K. Daphtary became the Chairman and S. K. Ghose became the Vice Chairman.
ORGANISATION

OF THE

BAR COUNCIL

OF I NDIA

The Bar Council of India and the State Bar Councils are constituted as per the Advocates Act,
1961.
As per Section 4(1) of the Advocates Act, 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:

The Attorney:General of India; Ex:officio


The Solicitor:General of India; Ex:officio
One member elected by each State Bar Councils from amongst its members.

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 (i.e. persons
who have for at least ten years been advocates on a state roll, and in computing the said period of
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ten years in relation to any such person, there shall be included any period during which the
person has been an advocate enrolled under the Indian Bar Councils Act, 1926.1
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.2
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, 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, assumes charge of the office.3
The term of office of a member of the Bar Council of India elected by the State Bar Council
shall:
i.

In the case of a member of the 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

ii.

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:

Every Bar Council shall be a body corporate having perpetual succession and a common seal,
with power to acquire and hold property, both movable and immovable, and to contract, and may
by the name by which it is known sue and be sued.4

1 Sec. 4(1-A) of Indian Bar Councils Act, 1926.


2 Sec. 4(2) of Indian Bar Councils Act, 1926.
3 Sec. 4(2-A) of Indian Bar Councils Act, 1926.
4 Sec. 5 of Indian Bar Councils Act, 1926.
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Transaction of business: As per Section 10:A(1) of the Advocates Act, 1961, 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.
CHAPTER 2

SCOPE
The All India Bar Committee has suggested that each State Bar Council should send one
representative to the All India Bar Council and where there are more than one thousand
Advocates on the roll of State Bar Council, it should be entitled to one additional representative,
however the legislative accepted the provision for representation of State Bar Councils on the
Bar Council of India by one member only as it was not felt proper to make distinction between
States in which a large number of persons had joined the legal profession and those in which a
number of Advocates was small. However, under section 4(1) of the Advocates Act, 1961 a State
Bar Council is competent to make a rule providing for a vote of no confidence against a member
of the Bar Council of India elected to the State Bar Council in Bar Council of Kerala v.
Thankappan Pillai,5 the respondent Thankappan Pillai who was a member of the Kerala State
Bar Council was elected on 12.10.1980 to the Bar Council of India, under section 4(1) (c) of the
Act, later on, a no confidence resolution was passed against him on 6.3.1983, on the ground of a
complaint against him. The Bar Council of India requested to terminate his membership and the
Bar Council of Kerala also added rules 10 to 13 to its rules providing for such a no confidence
motion .and for cessation of membership of the Bar Council of India on the motion having been
carried out. The full Bench of Kerala High Court relied on a decision of Delhi High Court in the
Bar Council of Delhi v. Bar Council of India,6 that the power to provide for a vote of no
confidence is incidental to the purpose of sections 3 and 4 of the Advocates Act to elect members
to the State Bar Council and to the Bar Council of India.
FUNCTIONS OF BAR COUNCIL OF INDIA
5AIR 1968 Ker. 144.
6AIR 1975 Delhi 200.
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(1) Section 7 of the Advocates Act provides that the functions of the Bar Council of India shall
be:
(i) To lay down standards of professional conduct and etiquette for advocates;
(ii) To lay down the procedure to be followed by its disciplinary committee and the disciplinary
committee of each State Bar Council;
(iii) To safeguard the rights, privileges and interests of advocates;
(iv) To promote and support law reform;
(v) To deal with the disposal of any matter arising under the Act which may be referred to it by a
State Bar Council.
(vi) To exercise general supervision and control over the State Bar Council;
(2) The Bar Council of India may constitute one or more tunas in prescribed manner
(a) Giving financial assistance to organize welfare schemes for indigents, disabled or other
advocates;
(b) Giving legal aid or advice in accordance with the rules made in this behalf;
(c) Establishing law libraries.
(3) The Bar Council of India may receive any grant, donation, gifts or benefactions for all or any
of the purposes specified in sub: section(2) which shall be credited to the appropriate fund or
funds constituted under that sub: section.
ELECTION TO THE BAR COUNCILS OF STATES
The writ application7 had been filed by the Advocate challenge a notification dated 3:3:2008. By
virtue of this notification, the Bar Council of India while exercising power under Section 8:A of
the Advocates Act, 1967 has constituted a Special Committee of three persons because the
election to the body which is Bihar State Bar council (B.S.B.C) was not held within the statutory
7Parvin Kumar v. Union of India & Others, AIR 2008 Patna 170.
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period.8 Petitioner has a grievance especially on the nomination of two persons in the special
committee who were members of the outgoing council. There cannot be any dispute that the
Advocate General shall have to be one of the persons nominated in this regard ex officio but,
nomination of two other persons who too had a duty and moral responsibility to see the election
is held within time cannot be made part and parcel of the special committee. It would amount to
conferring recognition despite failed responsibility on holding the next election withinthe time
frame.
No doubt, the power under Section 8:A9 has been given to the Bar Council of India (B.C.I) to
nominate any advocate who is, on the roles of the Bar council of the State but, it is not
understood as to how the Bar Council of India understood the same as a provision to mean that
the said nomination shall be restricted to persons or members who were part and parcel of the
outgoing Bar Council.
APPOINTMENT OF COMMITTEES AND STAFF
According to section 9 of the Advocates Act, 1961, the Bar Council of India shall appoint a
Disciplinary Committee. It shall constitute one or more disciplinary Committees each of which
shall consist of three persons of whom two shall be persons elected by the Council of India from
amongst its members and the other shall be a person co:opted by the Council from amongst
advocates who possess the qualifications specified in the proviso to sub:section (2) of section 3
of the Act and who are not members of the Council and the senior most advocates amongst the
members of a disciplinary committee shall be the Chairman thereof
Section 9: A of the Act empowers the Bar Council of India to appoint one or more Legal:Aid
Committees. Each Committee shall consist of such number of members not exceeding nine but
not less than five as may be prescribed.

8According to Section 8 of the Advocates Act,1961, the term of office of an elected


member of State Bar Council is five years, which can be extended to six months by
B.C.I.
9Refer to the Appendix A-Advocates Act, 1961.
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In addition to the above, section 10(2) of the Advocates Act, 1961 requires the Bar Council of
India to constitute the following Committees:
(1) An executive Committee consisting of nine members elected by the Council from amongst its
members;
(2) A legal education Committee consisting of ten members of whom five shall be persons
elected by the Council from amongst its members and five shall be persons co:opted by the
Council who are not members thereof.
A provision for the appointment of a Secretary of the Bar Council is provided m section 11 of the
Advocates Act, 1961. In addition, the power to appoint accountant and such number of other
persons as it may deem necessary is also provided. The Secretary and accountant shall possess
such qualifications as may be prescribed.
INDEMNITY

OF THE

BAR COUNCIL

Section 48 of the Act of 1961 provides for indemnity in respect of the acts of Council against the
legal proceedings. It provides that no suit or other legal proceedings shall lie against any Bar
Council or any Committee thereof or a member of a Bar Council or any Committee thereof for
any act done in good faith or intended to be done m pursuance of the provisions of this Act or of
any rules made there under.
MAINTENANCE OF ACCOUNTS AND ITS AUDIT, ETC .
According to section 12 of the Advocates Act, 1961 the Bar Council of India shall cause to be
maintained such books of account and other books in such form and in such manner as may be
prescribed. The account shall be audited by auditors duly qualified to act as auditors of the
company under the Companies Act, 2013 at such times and m such manner as may be prescribed.
The account shall be audited as soon as may be practicable at the end of such financial year, but
not later than the 31st day of December of the year next following. A State Bar Council shall
send a copy of its account together with a copy of the report of the auditors thereon to the Bar
Council of India and shall cause the same to be published in the official Gazette of and,as soon as
may be practicable at the end of such financial year but not later. Thereafter the 31st day of
December of the year next following, the Bar Council of India shall send a copy of its accounts
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to get herewith a copy of report of the auditors thereon to the Central Government and shall
cause the same to be published in the Gazette of India.

CHAPTER 3

AUTONOMY OF BAR IN INDIA


According to section 5 of the Advocates Act, 1961, every Bar Council shall be a body corporate
having perpetual succession and a common seal, with power to acquire and hold property, both
movable and immovable, and to contract, and may by the name by which it is known to sue and
be sued.
Blacks Law Dictionary Defines a body Corporate thus:
Body corporate is an entity (usually a business) having authority under the law to act as a
single person distinct from the shareholders who own it and having rights to issue stock and exist
indefinitely, a group or succession of persons established in accordance with legal rules in to a
legal or juristic person that has legal personality distinct from the natural persons who make it
up, exists indefinitely apart from them, and has the legal powers that its constitution gives it.
A corporation is created by an act of the public authority and a company under the companies
act, 2013 and a society under Societies Registration Act, 1860.
Many people think that Bar Council is an autonomous body due to the following reasons:
1. Bar Council is created under the provisions of the Advocates Act, 1961 as a statutory
corporation with right to enter into contract and to sue and sued like a legal person;
2. Bar Councils are administered with the elected bodies as per the Advocates Act, 1961;
3. Bar Councils is a body corporate having perpetual succession and a common seal;
4. Bar Councils can acquire and hold property, both movable and immovable;
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Actually Bar Councils are not corporations. They need not be registered as per the societies
Registration Act, 1860 or the Companies Act, 2013. Since the existence of Bar Council is distinct
from its members or office bearers, expiry of terms of its office bearers does not affect the
existence of the corporate status of the Bar Council. A corporation may be dissolved as per the
procedure laid down in Acts.
Bar Council is not an autonomous body totally. It is an autonomous body within the provisions
of the Advocates Act, 1961. It has powers to make rules but these rules shall have effect only
when they have been approved by the Central Government.
As per Section 60 of the Advocates Act, the Central Government has power to make rules:
(1) Until rules in respect of any matter under this Act are made by a State Bar Council and
approved by the Bar Council of India, the power to make rules in respect of that matter shall be
exercisable by the Central Government.
(2) The Central Government after consultation with the Bar Council of India may, by notification
in the Official Gazette, make rules under subsection (1) either for any State Bar Council or
generally for alt State Bar Councils and the rules so made shall have effect, notwithstanding
anything contained in this Act.
(3) Where in respect of any matter any rules are made by the Central Government under this
section for any State Bar Council, and in respect of the same matter, rules are made by the State
Bar Council and approved by the Bar Council of India, the Central Government may by
notification in the Official Gazette, direct that the rules made by it in respect of such matter shall
cease to be in force in relation to that Bar Council with effect from such date as may be specified
in the notification and on the issue of such notification, the rules made by the Central
Government shall, accordingly, cease to be in force except as respect things done or omitted to
be done before the said date.
According to Section 49: A of the Advocates Act, 1961 Central Government has power to
make rules:
(a) Qualifications of membership of a Bar Council and disqualifications for such membership;

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(c) The class or category of persons entitled to be enrolled as advocates under this Act;
(d) The category of persons who may be exempted from undergoing a course of training and
passing an examination prescribed under clause (d) of subsection (1) of Section 24;
(e) The manner in which seniority among advocates may be determined;
(f) The procedure to be followed by a disciplinary committee of a Bar Council in hearing cases
and the procedure to be followed by a disciplinary committee of the Bar Council of India in
hearing appeals;
(g) Any other matter which may be prescribed.
(3) Rules under this section may be made either for the whole of India or for all or any of the Bar
Councils.
(4) If any provision of a rule made by a Bar Council is repugnant to any provision of a rule made
by the Central Government under this section, then, the rule under this section whether made
before or after the rule made by the Bar Council, shall prevail and the rule made by the Bar
Council shall, to the extent of the repugnancy, be void.
(5) Every rule made under this section shall be laid, as soon as may be after it is made, before
each House of Parliament.

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CHAPTER 4

POWER TO MAKE RULES


(1) According to section 15(1) of this Act, a Bar Council may make rules to carry out the
purposes of this chapter, that is, chapter two of the Act
(2) Sub: section of section 15 of the Act provides that in particular and without prejudice to the
generality of the foregoing power, such rule may provide for
(a) the election of members of the Bar Council by secret ballot including the conditions subject
to which persons can exercise the right to vote by postal ballot, the preparation and revision of
electoral rolls and the manner in which the results of election shall be published;
(b) (*****)
(c) The manner of election of the Chairman and the Vice: Chairman of the Bar Council;
(d) the manner in which and the authority by which doubts and disputes as to the validity of the
election to the Bar Council (or to the office of the Vice: chairman) shall be finally decided;
(e) (*****)
(f) The filling of casual vacancies in the Bar Council;
(g) The powers and duties of the Chairman and the Vice chairman of the Bar Council;
(ga) the constitution of one or more funds by a Bar Council for the purpose of giving financial
assistance or giving legal aid or advice referred to in sub:section (2) of section 7;
(gb)organization of legal aid and advice to the poor, constitution and functions of committees
and sub: committees for the purpose and description of proceedings in connection with which the
legal aid or advice may be given;
(h) the summoning and holding of meetings of the Bar council (*****) the conduct of business
there at, and the number of members necessary to constitute a quorum;

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(k) The qualification and the conditions of service of the secretary, the accountant and other
employees of the Bar Council;
(l) The maintenance of books of books of accounts and other books by the Bar Council;
(m) The appointment of auditors and the audits of the account of the BarCouncil;
(n) The management and investment of the funds of the Bar Council.
(3) No rules made under this section by a State Bar Council shall have effect unless they have
been approved by the Bar Council of India.
SCOPE
This section confers power of rule making on the Bar Council of India and State Bar Councils.
Sub: section (1) of the section 15 empowers the Bar Council of India and State Bar Councils
with power to make rules for the purposes specified in sections 3 to 14 of the chapter II of this
act. In order to avoid any dispute between rules framed by the Bar Council of India and by a
State Bar Council subsection (3) of this section has taken care of providing that no rule framed
by a State Bar Council shall be effective unless approved by the Bar Council of India. Both
under section 7 and under section 48:B of the Act the Bar council of the act the Bar Council of
India is empowered to make rules regulating election to a State Bar Council with direction to
comply.10
The matters on which rules can be made are generally matters of procedure or detail. The
delegation of legislative powers is, therefore, of a normal character. Where the entire election to
Bar Council is challenged and not the election of the individual Advocates, it cannot be said that
rules framed by Tamil Nadu Bar Council read with section 15 of the Advocates Act bar the civil
code to entertain the suit challenging the election. 11 Sub:section (2) in view of section 3 (4) of the
Act, the qualification and condition entitling an advocate to vote has to be prescribed by the Bar
Council of India and the State Bar Councils are not so empowered. The State Bar Councils are
10 1974 Bar Council Journal 142 (Calcutta).
11Secretary, Bar Council v. G. PunnerSelvani, AIR 1992 Mad. 304 at 308; (1991) 2 Mad. LW 460:
(1991) 1 Mad. L.J. 481.
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merely empowered to prepare and revise electoral rolls subject to the rules framed by the Bar
Council. No provision of section can override the specific provision of section3(4) and section
49 (1) (a). Thus, under section 15(i) of the Act, the State Bar Council cannot make rules
regarding qualification to vote. Therefore the proviso Added in 1978 to clause (j) of rule (3) of
the Bar Council of Delhi election rules, that the electoral roll shall not include the name of an
advocate who fails to file in the office of the Bar Council of Delhi by the notified date, a
declaration that he is an advocate ordinarily practicing in the Union territory of Delhi, etc. was
held invalid on the ground that the State Bar Council was not competent to prescribe
qualification to vote. This invalidity was not saved by the fact that the rule had been approved by
the Bar Council of India.12
It was held in another case of C.D. Sekkizhar v. Secretary, Bar Council of Madras,13that rule 7 (2)
of the election rules of Madras Bar Council and approved by the Bar Council of India is not
invalid on the ground that it forbids announcement or canvassing of a candidate. A Chairman or
Vice:chairman is removable from his office by no confidence resolution. The reason is that such
power of removal is inherent in the council which elect a Chairman. The two powers are
inseparable.14
The proper forum for raising objection regarding irregularities committed in the election of the
Bar Council is the election Tribunal.15 According to rule 32(5) of the U.P. election rules, the
election Tribunal shall be constituted prior to the election is directory and any delay in its
constitution does not render Tribunal invalid.16 When election of returned candidate has been set

12Bar Council of Delhi v. Surjit singh, AIR 1980 S.C. 1612 at 1616-1617.
13AIR 1967 Mad. 35 (1967) 80 Mad. LW 153 at p.154
14Bar Council of Delhi v. Bar Council of India, (Supra) ; Bar Council of Kerala v. Thamkopam Pillai,
(Supra).
15Ravi Kiran Jain v. Bar Council of U.P., AIR 1975 All. 190.
16ILR (1968) A.P. 233.
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aside, the election committee is bound to order fresh election. 17 According to the rules framed by
the Bar Council of West Bengal, under rule 34 (6), election of a member of a State Bar Council
can be set aside by the election Tribunal either: when there had not been proper counting or on
ground of corrupt practice But where respondents name as also names of many other advocates
had been excluded from electoral roll, the election could be challenged by a suit in a Court. It has
been further held that the jurisdiction of the civil court has not barred expressly or impliedly by
the setting up of the election Tribunal and the remedy lay by way of suit.18
LEGAL EDUCATION
The Advocates Act, enacted in 1961, became the patriarch of the Legal Education system
presently in existence.19 The Bar Council of India Rules, inducted under the Advocates Act,
1961, lays down the curriculum for imparting Legal Education throughout India and said Bar
Council of India Rules have been governing the procedural aspects of Legal Education,
including, but not restricted to the subjects to be taught, mode of examination to be conducted,
the various degrees to be conferred on successful students and the like.20
Rules on Legal Education have been amended from time to time which were incorporated in the
pre:existing regulations. There were demands for a consolidated latest version of the Rules under
Part IV on standards of Education and Recognition of Degrees in Law for admission as
Advocates from Universities and colleges teaching law in country. In response to popular
demand, the Bar Council of India published in the Rules in its final shape as applicable from
30:11:1998.
17Ibid.
18Bar Council of West Bengal v. Ms. Ajanta Augstin, AIR 1979 Cal. 35.
19Section 7(1)(h) and Section 49 of the Advocates Act, 1961 vide Rule 49(1)(d) of
the act authorize the B.C.I. to make Rules towards the Standard of Legal Education
to be maintained by the Universities in India and the Inspection of Universities for
that purpose.
20Part , Chapter 3, Rule 8 of the Bar Council of India provides that the Legal
Education Committee constituted under this Part by the B.C.I. for laying down the
standard of Legal Education for the Universities.
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The minimum qualification for being an Advocate is an L.L.B Degree, generally a three year
course which can be obtained after graduation in other disciplines. A debate as to its efficacy in
the recent past led to proposal of five years integrated course after intermediate (10 + 2)
examination. The three years course itself came to be restructured into semester system and
several papers came to be included and excluded as per the Bar Council Guidelines. Hence, the
Council today allows both the 3 year and 5 year course to continue.
AGENCIES REGULATING LEGAL EDUCATION
The Constitution of India basically laid down the duty of imparting education on the States by
putting the matter pertaining to education in List H of the Seventh Schedule. But it now forms
part of List III, giving concurrent legislative powers to the Union and the States. Legal
profession along with the medical and other professions also falls under List III (Entry 26).
However, the Union is empowered to co:ordinate and determine standards in institutions besides
having exclusive power, inter alia, pertaining to educational institutions of national importance,
professional, vocational or technical training and promotion of special studies or research.
Empowered by the Constitution to legislate in respect of legal profession, Parliament
enacted the Advocates Act, 1961, which brought uniformity in the system of legal practitioners in
the form of Advocates and provided for setting up of the Bar Council of India and State Bar
Councils in the States. Under clause (h) of sub:section (1) of Section 7 of the Advocates Act,
1961 the Bar Council of India has power to fix a minimum academic standard as a pre:condition
for commencement of studies in law. Under clause (i)of sub:section (1) of Section 7, the Bar
Council of India is also empowered to recognize Universities whose degree in law shall be
taken as a qualification for enrolment as an advocate and for that purpose to visit and inspect
Universities. The Act, thus, confers on the Bar Council of India the power to prescribe standards
of Legal Education and recognition of Law Degrees for enrolment of persons as Advocates.
However, for promoting legal education and for laying down standards of Legal Education,
the Universities and State Bar Councils must be effectively consulted. The University Grants
Commission has in the course of time evinced interest in improving legal education and has
taken various steps towards that end, through adequate funding, creation of senior posts and
other means. As suggested by Honble Justice A.M. Ahmadi in the Chief Justices Conference
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held in 1993. There should be proper evaluation of papers in the examination. The students
should be trained to draft pleadings at the college level. The standard of English should be
improved.

MISCELLANEOUS FUNCTIONS OF THE BAR COUNCIL OF INDIA


(i)According to section 46:A inserted for the first time in the Advocates (Amendment) Act (70 of
1973), the Bar Council of India may, if it is satisfied that any State Bar Council is in need of
funds for the purpose of performing its functions under this Act, give such financial assistance as
it deems fit to that Bar Council by way of grant or otherwise,
(ii) Section 47 (1) of the Act provides that where any country, specified by the Central
Government in this behalf, by notification in the Official Gazette, prevents citizens of India from
practicing the profession of law or subjects them to unfair discrimination in that country, no
subject of any such country shall be entitled to practice the profession of law in India, Subject to
the provision of subsection (1) of section 47 of the Act, the Bar Council of India may prescribe
the conditions, if any, subject to which foreign qualification in law obtained by persons other
than citizens of India shall be recognized for the purpose of admission as an advocate under this
Act.
(iii) The Bar Council of India has been empowered under section 48:A of the Act with revisional
power. Under section 48A (1), the Bar Council of India, may, at any time, call for the record of
any Proceeding under this Act which has been disposed of by a State Bar Council or any
committee thereof or a member of a Bar Council or a committee thereof, and from which for the
purpose of satisfying itself as to the legality or propriety of such disposal and may pass such
orders in relation thereto as it may fail. No order which prejudicially affects any person shall be
passed under this section without giving him a reasonable opportunity of being heard.
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(iv) Power of review is also provided to the Bar Council of India or any of its committees, other
than its disciplinary committee, May of its motion or otherwise review any order, within sixty
days of that order, passed by it under this Act.
POWER TO GIVE DIRECTIONS
(1) According to section 48: B (1), for the proper and efficient discharge of the functions of a
State Bar Council or any committee thereof, the Bar Council of India may, in the exercise of its
power of general supervision and control, give such directions to the State Bar Council or any
committee thereof as may appear to it to be necessary, and the State Bar Council or committee
shall comply with such directions.
(2) Sub: section (2) further provides that where a State Bar Council is unable to perform its
functions for any reason whatsoever, the Bar Council of India may, without prejudice to the
generality of the foregoing power, give such directions to the ex officio member thereof as may
appear to it to be necessary and such directions shall have effect, notwithstanding anything
contained in die rules made by the State Bar Council.
POWER OF CENTRAL GOVERNMENT TO MAKE RULES
The Central Government has reserved to itself the power to make rules either for whole of India
or for all or any of the Bar Councils for carrying out the purpose of the Advocates Act. It can
make rules in respect to any matter for which the Bar Council of India or a State Bar Council has
been authorized to make rules. The rules framed by the Central Government have to be published
in the official Gazette. After the rules are framed by the Central Government under this Act, the
rules must be laid before each House of Parliament while it is in Session for a total period of
thirty days which may comprise in one Session or two successive Sessions. The power to make
such rules is provided to the Central Government by section 49:A of the Act by the Advocates
(Amendment) Act, 1964. It is reproduced as under: :
49:A. Power of Central Government to make rules : (1) The Central Government may, by
notification in the official Gazette, make rules for carrying out the purposes of this Act including
rules with respect to any matter for which the Bar Council of India or a State Bar Council has
power to make rules.
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(2) In particular and without prejudice to the generality of the foregoing power, such rules may
provide for
(a) Qualifications of membership of a Bar Council and disqualification? for such membership;
(b) The manner in which the Bar Council of India may exercise supervision and control over
State Bar Councils and the manner in which directions issued or orders made by the Bar Council
of India may be enforced;
(c) The class or category of persons entitled to be enrolled as Advocates under this Act;
(d) The category of persons who may be exempted from undergoing a course of training and
passing an examination prescribed under clause (d) of sub:section (1) of section 24;
(e) The manner in which seniority among advocates may be determined;
(f) the procedure to be followed by a disciplinary committee of a Bar Council in hearing cases
and the procedure to be followed by a disciplinary committee of the Bar Council of India m
hearing appeals;
(g) Any other matter which may be prescribed.
(3) Rules under this section may be made either for the whole of India or for all or any of the Bar
Councils.
(4) If any provisions of a rule made by a Bar Council is repugnant to any provision of a rule
made by the Central Government under this section, then, the rule under this section, whether
made before or after the rule made by the Bar Council shall, prevail and the rule made by the Bar
Council shall, to the extent of the repugnancy, be void.
(5) Every rule made under this section shall be laid, as soon as may be after it is made, before
each House of Parliament, while it is in Session, for a total period of thirty days which may be
comprised in one Session or in two or more successive Sessions and if, before the expiry of the
session immediately following the session or the successive sessions aforesaid, both Houses
agree in making any modification in the rule or both Houses agree in making any modification in
the rule or both houses agree that the rule should not be made, the rule shall thereafter have effect
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only in such modified form or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of anything previously done
under that rule.
RULE MAKING POWER OF STATE BAR COUNCIL
Section 28 of the Act confers on a State Bar Council the power to make for carrying out the
provision of Chapter 3 comprising of Sections 16 to 28 dealing with the admission and
enrolment of advocates. According to section 28 (1) of the Act, a State Bar Council may make
rules to carry out the purposes of this Chapter (16 to 28). Section 28(2) of the Act further
provides that in particular and without prejudice to the generality of the foregoing power such
rules may provide for
(a) The time in which and form in which an advocate shall express his intention for the entry of
his name in the roll of a State Bar Council under section 20;
(b) Clause B is omitted with effect from 19.1.1974;
(c) the form in which an application shall be made to the Bar Council for admission as an
advocate on its roll and the manner in which such application shall be disposed of by the
enrolment committee of the Bar Council;
(d) The conditions subject to which a person may b admitted as an advocate on any such roll;
(e) The instalments in which the enrolment fee may be made;
(f) No rules made under this chapter shall have effect unless they have been approved by the Bar
Council of India.
The matters on which rules can be made are generally matters of procedure. However, rules
made by the State Bar Council are subject to the approval by the Bar Council of India. The words
carry out the purpose of the Act used in sub:section (1) of section 28 are wide enough to justify
the exercise of rule making power laying down substantive standard also. There is nothing in the
language of the section to justify the limiting of the rule making power to mean laying of

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procedure only. The rule making power can take in both substantive and procedural provisions.21
In the above mentioned case Rule 70 (AAA) framed by the liar Council of Andhra Pradesh
permanently debarred from enrolment as advocate a person removed from service. The Rule was
struck down under Article 19(6) of the Constitution of India.Sub: section (2) of section 28
provides some of the areas which could be covered by the rules. It does not contemplate any
power in the State Bar Council to frame rules for election to various posts under any Bar
Association.22
AFFILIATION OF LAW COLLEGES: BAR COUNCIL OF INDIA
In a case titled Krishna Kumar G. and anr. v. UOI and ors,23 the petitioners studied for law in a
Law College at Bangalore which was affiliated to Bangalore University. After completing law,
the petitioners started one year training under the Bar Council of Kerala and completed in
Jan/Feb., 99. After the training, the petitioners were informed by the Bar Council of Kerala, that
the name of college in which the two petitioners studied was not seen included in the list of
affiliated law colleges by the Bar Council of India, for enrolment as advocate. The petitioners
sought declaration for enrolment as advocates.
Section 24 (c) (iii) of the Advocates Act is relevant and reads as under:
(iii) After the 12th day of March, 1967, save as provided in sub: clause (iii:a), after
undergoing a three year course of study in law from any University m India which is recognized
for the purposes of this Act by the Bar Council of India.
The Bar Council of India in exercise of its powers under Section 15 of the Advocates Act framed
rules prescribing standards of legal education and recognition of degrees in law or admission as
Advocates. The relevant rules in this context are reproduced as under:

21 Gummala Purshottam Reddy v. Bar Council of Andhra Pradesh, (1986) 1 APLJ 30 at pp.35-36 (DB)
22 R.N. Tewari v. State Bar Council, (1994) 2 KLT 663.
23 AIR 1999 Ker. 303.
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17 (1). No college after coming into force of these rules shall impart instruction in a course of
study of law for enrolment as an advocate unless its affiliation has been approved by the Bar
Council of India.
(2) An existing Law college shall not be competent to impart instruction in a course of study in
law for enrolment as an advocate if the continuance of it is disapproved by the Bar Council of
India.
(18) The Bar council of India shall cause a law College affiliated or sought to be affiliated to a
university to be inspected by a committee to be appointed.
It was contended by the counsel for petitioners that rule 17 cited above is ultra vires of section
24(c) (iii) of Advocates Act as the requirement of separate recognition by the Bar Council of
India for a college other than the provisions contained in S. 24 of the Act is illegal. If once the
college is affiliated to the University, the Bar Council of India cannot have a separate view on the
question of recognition and affiliation of the said college.
The High Court, however, did not agree. It observed that the contention of the petitioners that
Rule 17 is ultra vires of the Rule making power of the Bar Council of India has no foundation to
stand. Under section 15 of the Advocates Act, the Bar Council of India is empowered to make
rules to carry out the purposes of the Advocates Act. Section 7 of the Act deals with the functions
of the Bar Council of India which includes inter alia:
(1) To promote legal education and to lay down standards of such education in consultation with
the Universities in India imparting such education and the State Bar Councils;
(2) To recognize Universities whose degree in law shall be a qualification for enrolments as
advocates and for that purpose to visit and inspect Universities or cause the State Bar Councils to
visit and inspect Universities in accordance with such directions as it may give in this behalf. The
Court further observed that it is abundantly clear that the Bar Council of India has a
responsibility of maintaining the high standard of legal education. It has also a duty to see that
the students who are becoming members of an honorable profession are well equipped to be the
members of the legal fraternity. For that purpose, the college must have all necessary
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infrastructures, such as suitable building, qualified teachers and a well equipped library. It is also
the duty of the Bar Council of India to see that every institution which imparts legal education
satisfies all these requirements. That is why power is given to the Bar Council of India even to
disaffiliate any existing law which does not comply with the standards of legal education as laid
down the Bar Council of India. The Kerala High Court dissented from the judgment of the
Andhra Pradesh High Court delivered in case of C.M. Balaraman v. Registrar. Usmania
University, Hyderabad.24 In this case also, the plight of the students who passed out of the law
colleges in Hyderabad which were not recognized by the Bar Council of India was considered.
Ultimately what the A.P. High Court did was to allow these students to be enrolled as advocates
subject to the condition that they must succeed in an examination to be conducted by the Bar
Council of India or the Bar Council of Andhra Pradesh. The purpose of this examination was to
ensure that students with basic knowledge of law are alone entitled to enter the profession.
However, the Kerala High court did not persuade to adopt the course of conducting a separate
examination to these students who did not come from the colleges having no affiliation from the
Bar Council of India.
But the High court at the same time pointed out that the college started in 1994. The college
started five years course. The course was approved by the Bar Council of India. The petitioners
brought to the notice of the Bar Council of Kerala and the Bar Council of India their predicament
as early as March, 1998. Still the Bar Council of India has not taken any step either to recognize
and affiliate the said law college or to say no to their request. The Court further observed that
Bar Council of India must definitely take these things more seriously and act quickly. The Court
further held that the plight of the students and the embarrassment they are facing after getting a
Law Degree must wake up the Bar Council to take immediate decision in this matter without any
further delay. The Court then directed the Bar Council of India to take a decision with regard to
the affiliation of the college concerned after completing necessary formalities within three
months from the date of the receipt of this judgment.
POWER

OF THE

STATE BAR COUNCIL

MISCONDUCT

24 AIR 1998 A.P. 105.


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TO PUNISH FOR PROFESSIONAL OR OTHER

The conduct of advocates is dealt with in sections 35 to 44 of Chapter V of the Act. This Chapter
came into force from the first day of September, 1963, by S.O. 2509 dated 31st August, 1963,
published in the Gazette of India, Extraordinary, Part II, section 3 (ii), dated 31st August, 1963,
p. 513.

DISCIPLINARY POWERS OF BAR COUNCIL OF INDIA


While section 35 of the Act provides for disciplinary powers of the State Bar Council, section 36
of the Act confers similar powers concurrently on the Bar Council of India but in respect of any
advocate whose name is not entered on any State roll. Section 36 empowers the disciplinary
committee of the Bar Council of India to withdraw suo Moto on a report by a State Bar Council
or any application by any interested person any proceeding for misconduct pending before the
disciplinary committee of any State Bar Council to its own file and disposed of the same and the
State Bar Council concerned must give effect to any order made by the disciplinary committee of
the Bar Council of India.
Section 36 of the Act is reproduced as under.
Section 36(1), Where on receipt of any complaint or otherwise the Bar In Mangu Sirhari v. Bar
Council of Andhra Pradesh,25 it was observed that the allegations of misconduct against an
advocate should be disposed of expeditiously within a period of one year so that either the cloud
cast on the particular advocate is cleared at the earliest or the noble profession is kept clear of
such members. In Karnataka Bar Council v. Subramaniya Jois,26 it was held in this context that
period of one year prescribed for disposal of complaint, if referred to the disciplinary committee
by the Bar Council would commence from the date on which the matter was referred to the
disciplinary committee and not from the date of lodging the complaint with Bar Council.
Appellate Power of the Bar Council of India Section 37 of the Act empowers the Bar Council of
India to hear appeal against the Order of the disciplinary committee of a State Bar Council
25 AIR 1983 A.P. 271.
26 AIR 1993 Kar. 7 at 9.
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passed under section 35 of the Act. It reads as under: 37(1). Any person aggrieved by an order
of the disciplinary committee of a State Bar Council made under section 35 of the Advocate
General of the State may, within sixty days of the date of the communication of the Order to him,
prefer an appeal to the Bar Council of India: Provided that no Order of the disciplinary
committee of the Bar Council of State shall be varied by the disciplinary committee of the Bar
Council of India so as to prejudicially affect the person aggrieved without giving reasonable
opportunity of being heard to him.
SCOPE
The expression the person aggrieved was examined by the Bench of the Supreme Court before
the amendment of sub:section (1) of this section came into force in 1973. It was held by the
majority of the five judge Bench that an advocate on the roll of Maharashtra State Bar Council
who was charged with professional misconduct was exonerated by the State disciplinary
committee. The Advocate:General of Maharashtra filed appeal before the Bar Council of India
where advocates objection that Advocate General was not an aggrieved party was negative and
the advocate was suspended for a year. He then appealed to the Supreme Court. The majority
was of the view that the Advocate General was not an aggrieved person. Hidayat Ullah, C.J, as
he then was, said that a person who is in the nature of a party as distinguished from a person who
is heard in a dispute between others are not identical. Any person who is disappointed with the
result of the case is not a person aggrieved. He must be disappointed of a benefit. Mitter J, said :
An Advocate:General is of the guardian angel of the Bar nor he is the champion of the public
interest in any matter save as specified in the statute. However, minority view was that die
Advocate:General and the Attorney:General represented the standards to be maintained in the
profession.27
The legislature gave effect to the minority view by amending the Advocates Act in 1973 by
which both sections 37 and 38 were amended and words or an Advocate General of the State
were inserted in section 37 (1) and words or the Attorney:General of India or the Advocates
General of the State concerned, as the case may be were added to section 38 of the Act.
27 Adi Ferozshah Gandhi v. H.M. Seervai, Advocate General, Maharashtra, AIR I971
SC 385 at pp. 389,395 and 421.
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CHAPTER V
APPELLATE POWER OF SUPREME COURT OF INDIA
Section 38 of the Act provides for the appeal to the Supreme Court. It reads as under:
38. Any person aggrieved by an order made by the disciplinary Committee of the Bar Council of
India under section 36 or 37 (or the Attorney:General of India or the Advocate:General of the
State Government, as the case may be,) may within sixty days of the date on which the order is
communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass
such order (including an order varying punishment awarded by the disciplinary committee of the
Bar Council of India) thereon as it deems fit:
(Provided that no order of the disciplinary committee of the Bar Council of India shall be varied
by the Supreme Court so as to prejudicially affect the person aggrieved without giving him a
reasonable opportunity of being heard.)
CONSTITUTIONALITY

OF SECTION

38

The question of the constitutional validity of section 38 of the Act arose before the Supreme
Court in the case of O.N. Mohindroo v. Bar Council of Delhi.28 The appellant was convicted
having been found guilty of professional misconduct and his appeals to the Bar Council of India
and the Supreme Court were also rejected. He then filed a writ petition in the High Court of
28 AIR 1971 SC 107.
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Delhi challenging validity of section 38 of the Act, and Order V Rule 7 of the Supreme Court
Rules. The said Supreme Court Rule provides for dismissal of an appeal on a preliminary
hearing. The appeal failed and the letter patent Appeal in the Supreme Court. His contention was
that section 38 was outside the legislative powers of the parliament for it offends List III, Entry
28 of the Constitution which relates to Legal medical and other professions. The Supreme
Court held that the entry is not concerned with the constitution and organizations of Courts.

CHAPTER VI

CONCLUSION
The Bar Council of India is a statutory body created by Parliament to regulate and represent the
Indian bar. It performs the regulatory function by prescribing standards of professional conduct
and etiquette and by exercising disciplinary jurisdiction over the bar. It also sets standards for
legal education and grants recognition to Universities whose degree in law will serve as
qualification for enrolment as an advocate.
In addition, it perform certain representative functions by protecting the rights, privileges and
interests of advocates and through the creation of funds for providing financial assistance to
organise welfare schemes for them.
BIBLIOGRAPHY
BOOKS REFERRED

1. Dr. S.R. Myneni, Professional Ethics, Accountancy for Lawyers and Bench:Bar Relation,
Asia law house, 2014.
2. S.R.A. Rosedar, Professional Ethics, Accountancy of Lawyers and Bar:Bench
Relationship,2014.
W EBSITES REFERRED

1. www.barcouncilofindia.org/wp:content/.../05/Advocates:Act1961.pdf
2. www.barcouncilofindia.org/
3. https://en.wikipedia.org/wiki/Bar_Council_of_India
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4. lawmin.nic.in/la/subord/bcipart4.htm
5. www.indiankanoon.com

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