The Advocates Act, 1961

What it does

The Act is the statute of the legal profession. It replaced the Indian Bar Councils Act, 1926 and the patchwork of earlier arrangements under which pleaders, vakils and attorneys held different rights in different courts. After it, there is one class of practitioner, the advocate, whose name is entered on a State roll and may be transferred between States.

It sets up the Bar Council of India and a State Bar Council for each State or group of States. The State Bar Councils keep the rolls and enrol advocates who hold the required law degree. The Bar Council of India lays down standards of professional conduct and etiquette, approves legal education and recognises law degrees, and exercises a general supervision over the State Councils.

Two provisions carry most of the weight in practice. Section 29 recognises advocates as the only class of persons entitled to practise the profession of law. Section 33 says that, subject to the Act and any other law, no person is entitled to appear before a court or authority unless enrolled as an advocate. The right to practise in every court and before every tribunal, in section 30, was brought into force by notification in 2011, many years after the Act itself.

Who it binds

Every advocate on a State roll, and, through the bar on appearance, every person who would otherwise act as a legal representative before a court or authority. A foreign lawyer is not an advocate under the Act merely by qualification abroad, and the enrolment provisions are what a foreign-qualified person has to satisfy.

A litigant is not bound by it in the same way, but the Act shapes what a litigant may expect of counsel. The conduct rules made under it, which include the rule on advertising and solicitation known as Rule 36, bind each advocate personally and are the reason this site is written as it is.

What has changed, and when

The Act was brought into force in stages from 1961, with the Bar Council provisions first and the right to practise later. It has been amended many times, and the amendments touch enrolment, disqualification, the Councils' composition and the discipline procedure. The Bar Council of India Rules, made under the Act's rule-making power, have their own history of amendment and are read alongside it.

What turns on it in practice

Discipline is the part that reaches a working lawyer. A complaint of professional or other misconduct goes to the State Bar Council, which may refer it to a disciplinary committee. The committee can reprimand, suspend the advocate from practice, or remove the name from the roll. An appeal lies to the Bar Council of India and from there to the Supreme Court of India. Because the sanction affects the licence to practise, the standard of proof and the procedure are taken seriously.

The second place the Act bites is the question of who may appear. Section 30 gives an advocate a right to practise, but the Supreme Court has held that it does not give a right to appear before every body that decides something. In State Bank of India v. Jah Developers Private Limited, decided on 8 May 2019, the Court held that a bank's in-house committees are not tribunals, that the Act gives no right to be represented before them, and that legal representation is no part of natural justice there. The firm's note on the classification of a wilful defaulter by a commercial bank refers to that decision for this reason: a borrower facing classification by the bank's committees makes a written representation and is not entitled to counsel at the hearing.

For a business, the practical consequence is to separate the bodies where counsel is entitled to appear, which are courts and tribunals, from those where the right is conferred only by the instrument that creates the process.