Lawyers have been in the vanguard of a country’s progress and have always zealously guarded human liberties and the rule of law.
The dawn of Legal Profession in India could be seen in the Indian High Courts Act, 1861 (commonly known as the Charter Act) which authorised establishment of the High Courts under the Letters Patent and those Letters Patent empowered the High Courts to make rules for enrolment of Advocates and attorneys who were also known as solicitors. In the early days three Acts, namely, the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (17 of 1920) and the Indian Bar Councils Act, 1926 (38 of 1926) relating to legal Practitioners were enacted. The importance of legal profession in the Judicial Administration while dispensing justice with the aid of those who could effectively present the case of a litigant, was designed to usher in bringing the rule of law. The legal profession was acknowledged as the noble profession as it catered to, and contributed to lay the firm foundations of a system that dispenses fair and impartial justice. The desire of common man to receive justice was taken care of by making provisions for the presentation of a case and its redressal through persons in whom trust was reposed.
Roscoe Pound, an eminent jurist states that “historically, there are three ideas involved in a profession: organization, learning, and a spirit of public service.”1 While considering these elements essential, he states that the idea of gaining a livelihood through profession is nothing more than an incidental element. However, amongst the three elements, the most important with regards to a profession is the spirit of public service. The ethical compunctions of the professionals are similarly exemplified in a
European Union Directive in which “liberal professions” were described as “those practised on the basis of relevant professional qualifications in a personal, responsible and professionally independent capacity by those providing intellectual and conceptual services in the interest of the client and the public”2.
(emphasis added)
In this background, the founding fathers of our Constitution while adopting a federal governmental system, entrusted a duty on the judiciary to strike a balance between the functioning of the other organs of the Government while protecting the life and liberty of the citizens. With the avowed objective of conforming to the rule of law and dispensation of justice as contained in it, the elements of a perfect system of constituting courts on different tiers together with the system of advocates in the legal profession, who have been conferred with right to practice under the Constitution which now stands embedded in the Advocates Act, 1961 (hereinafter referred to as the Advocates Act).
The expression ‘administration of justice’ occurred in Entry 11-A of List III (Concurrent List) of iNdian Constitution. Whenever, it comes to taking a broad view of the terminology aforesaid, the same can also include within its fold the role of advocates in the administration of justice. Entry 13 of List III, empowers Parliament as well as the State Legislatures to frame rules regarding the procedure. Order 3 Rule 1 of the Code of Civil Procedure, 1908 and section 303 of the Code of Criminal Procedure, 1973 make exhaustive provisions for representation of litigants through recognised agents and pleaders. Thus, the statute has given a legal status to the participation of an advocate in judicial proceedings. Separate sets of rules govern engagement of advocates as empaneled lawyers on behalf of the Central Government and State Governments as well as their undertakings and such other bodies that are within their control. Thus, the presence of advocates as part of the justice delivery system is ingrained in our laws. With this in view Entry 26 in List III of Schedule VII was incorporated in the Constitution, empowering Parliament and the State Legislatures to frame laws with regard to the legal profession as well.
The Advocates Act 1961 amalgamates, codifies and consolidates the law relating to the regulation of practice by advocates and the system of the legal profession. This regulatory law with the various bodies constituted under it, including the Bar Council of India and the State Bar Councils, has been controlling the legal profession for more than half a century with many amendments in the past.
1 Roscoe Pound, “What is a Profession
– The Rise of the Legal Profession in Antiquity”, 19 Notre Dame L. Rev. 203 (1944), at p. 204.
2Directive 2005/36/EC of the European Parliament and of the Council on the Recognition of Professional Qualifications(7 September 2005).
LAW COMMISSION OF INDIA –Report No.266 -2017
