Submitted by Aadesh Agarkar
Development of Legal Profession in India
Importance of Legal Profession:-
The legal profession plays an important role in the administration of Justice. The lawyer assists the court in arriving at the correct judgement. The lawyers collect material relating to the case and thereby helps the court or judge to arrive at the correct judgement. Without the assistance of the lawyer, it would be a superhuman task for the judge to arrive at satisfactory judgement. Laws are complicated. The language of Acts and Regulations is often found to be very complicated and confusing and not easy to be understood. The citizens of the country require the advice of the advocate to understand the exact meaning of the provisions of the Acts and Regulations. The lawyer plays an important role in the maintenance of peace and order in the society. The peace and order no doubt are necessary for the very existence of the society. The lawyer plays an important role in the law reforms also. By reason of experience gained in daily application and interpretation of law, lawyers are best aware of the imperfection, of the legal system and constitutes the most competent and class of men to advise on law reforms and promote popular enthusiasm and support for it. The most difficult part of the process of legislation is the drafting of its provisions and no one is better fitted to give guidance on this than the lawyers. Advocate is an officer of the court and is required to maintain towards the court respectful attitude bearing in mind that the dignity of the judicial office is essential for the survival of the society. The Supreme Court has rightly observed the legal profession is a partner with the judiciary in administration of Justice.
The legal profession in pre-British India.
Its not well settled as to whether the legal profession was in existence in the pre-British India. However, it is clear that in pre-British India, it was not as organized as today. The legal profession as it exists today was created and developed during the British period. But during the Mughal period, the courts were established and administered by Mughal emperors. During the Hindu period, the court derives its authority from the king who was considered the fountain head of Justice. The king's Court was superior to all another court. The King was advised by his Councilors in hearing and deciding the case but he was not bound by the advice. The institution of lawyers as it exists today was not in existence during this period. According to R P Kangle, there is no mention in the Kautilya's Artha Shastra about the existence of legal profession and therefore, most probably such a class did not exist. But during the Muslim period litigants were represented by body of persons known as vakils. They were paid a percentage of the amount in the suit. But as such there was no such institution which governed the lawyers, at that time.
Legal profession during British period:
In earlier days of the British period the legal profession was not paid due attention and it was not well organized. The East India company was not interested in organizing the legal profession. There was no uniform judicial system in the settlement of East India Company. The Charter of 1726 introduces Mayor's Court in each Presidency town. The Mayor's Court established under the Charter of 1726 were the Royal Court and they derived their authority from the British crown and not from the East India Company. The legal profession was not organized. Many persons having no knowledge of law were practicing. The judicial administration including the legal profession was not of high order. The Regulating Act of 1773 empowered the British crown to establish a Supreme Court at Calcutta by issuing for Charter. In the exercise of this power, the British Crown issued a Charter in 1774 establishing the Supreme Court of Judicature at Calcutta . Clause 11 of the Charter of 1774 empowered the Supreme Court to approve and enroll advocates and attorney at law. The Bengal Regulation 7 of 1793 created for the first time regular legal profession for the company's court. Under this regulation, only Hindus and Muslims could be enrolled as a pleader. The Bengal Regulation XXVII of 1843 also made provisions in order to organize the legal profession. The legal practitioners act 1846 made provisions that the people of any nationality or any religion would be eligible to be leader and attorney and barrister and rolled in any of her majesty's court in India eligible to pleader in the companies Sadar Adalat. The Indian High Courts act, 1861, occupies an important place in the development of judicial administration in India. It empowers the British Crown to establish One High Court in Presidency towns. The criminal courts were organized properly by the Criminal Procedure Code of 1898.
Legal practitioners act 1879
In 1879, the legal practitioners Act was passed to consolidate and amend the law relating to the legal practitioners. It empowers an advocate or vakil on the role of any High Court,to practice in all the court subordinate to the court on the role of which he was entered. The High Courts and the courts other than the High Court of Calcutta allowed even non-barristers to enroll as advocates under certain circumstances. The Vakil had to be a person who has taken the law degree from an Indian University and fulfill certain other conditions. Under the Legal Practitioners Act, 1879 the term "legal practitioner" has been taken to mean advocates, vakil or an attorney of a High Court and pleaders.
Indian Bar Committee 1923
In 1923 a Committee called the Indian bar committee was constituted under the chairmanship of sir Edward Chamber .The Committee was to consider the issue as to the organisation of the bar on all India basis and establishment of an All India Bar Council for the High Court. The committee was not in favour of organising the bar on all India basis. Bar council should be constituted for each high court. It should have the power to inquire into matters calling for disciplinary action against a lawyer.
Indian Bar Councils Act, 1926
In 1926, the Indian Bar Councils act was enacted to give effect to some of the recommendations of the Indian Bar Committee. The main objective of the act was to provide for constitution and incorporation of bar council for certain courts, power and impose duties on such councils and also to consolidate and to amend the law relating to the legal practitioners of such courts. The act made provisions for the establishment of a bar council for every High Court. The Calcutta High Court and Bombay High Court permitted non-barrister advocates to practice on the original sides. The distinction between barristers and advocates was thus abolished.
Legal profession after Independence
All India Bar Committee 1951
The Indian bar councils act 1926 failed to satisfy the bar. The pleader and Mukhtar practicing in the mofussil court were not within its scope. The bar council was not given any significant power. There were only advisory bodies. In 1951 committee known as the All India Bar Committee was appointed under the chairmanship of justice S.R. DAS . The committee recommended the establishment of All India Bar Council and State Bar Council. The committee suggest that the power of enrollment, suspension, removal of advocates should be vested in the bar council. It recommended that there should be no further recruitment of non-graduates, pleaders, mukhtars. It also recommended that there should be a common roll of advocates authorized to practice in all courts of the country. The 5th law commission recommended for establishment of United All India Bar.
Advocates Act, 1961
In 1961, the existing Advocates Act was enacted. It has been enacted for the purpose of amending and consolidating the law relating to legal practitioners' and also for providing the Constitution of Bar Council and all India Bar Council. Section 1 of the Advocates Act, 1961 provides that this act may be called the Advocates Act, 1961 and it extends to the whole of India. In a case, the Supreme Court has made it clear that the expression legal practitioner cannot include a serving judge who might have been appointed as a presenting officer in departmental proceedings.
Submitted by Aadesh Agarkar