Assignment.docx

ORGANISATION, FUNCTIONS AND POWER OF BAR COUNSILOF INDIA & STATE BAR COUNCIL

Bar Council of India 1. Introduction. 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. 2. History. 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. 3. Functions. The Bar Council of India was established by Parliament under the Advocates Act, 1961. The following statutory functions under Section 7 cover the Bar Council’s regulatory and representative mandate for the legal profession and legal education in India: (a). To lay down standards of professional conduct and etiquette for advocates. (b) To lay down procedure to be followed by its disciplinary committee and the disciplinary committees of each State Bar Council. (c)

To safeguard the rights, privileges and interests of advocates.

(d)

To promote and support law reform.

(e) To deal with and dispose of any matter which may be referred to it by a State Bar Council. (f) To promote legal education and to lay down standards of legal education. This is done in consultation with the Universities in India imparting legal education and the State Bar Councils.

(g) To recognise Universities whose degree in law shall be a qualification for enrolment as an advocate. The Bar Council of India visits and inspects Universities, or directs the State Bar Councils to visit and inspect Universities for this purpose. The Kerela High Court dissented from the judgement of the Andhara Pradesh High Court delivered in case of C.M. Balaraman v. registrar, Usmania University, Hyderabad AIR 1998 A.P. 105. In this case also, the plight of the students who passed out of law colleges in Hyderabad which were not recognised by the Bar Council of India was considered. Ultimately, what the A.P. High Court did was to allow these students to be enrolled a sadvocates subject to the condition that they must succeed in an examination to be conducted by the Bar Council of India or Bar council of Andhara Pradesh. The Purpose of this examination was to ensure that students with basic knowledge od law are alone entitled to enter the profession. (h) To conduct seminars and talks on legal topics by eminent jurists and publish journals and papers of legal interest. (i)

To organise legal aid to the poor.

(j) To recognise on a reciprocal basis, the foreign qualifications in law obtained outside India for the purpose of admission as an advocate in India. (k)

To manage and invest the funds of the Bar Council.

(l) To provide for the election of its members who shall run the Bar Councils. 4.

The Bar Council of India can also constitute funds for the following purposes: (a) Giving financial assistance to organise welfare schemes for poor, disabled or other advocates, (b)

Giving legal aid, and

(c)

Establishing law libraries.

(d) The Bar Council of India can also receive grants, donations, and gifts for any of these purposes. Organisation of Bar council of India 5. Constitution. As per the Advocates Act, the Bar Council of India consists of members elected from each state bar council, and the Attorney General of India and the Solicitor General of India who are ex officio members. The members from the state bar councils are elected for a period of five years. The council elects its own Chairman and Vice-Chairman for a period of two years from amongst its members. Assisted by the various committees of the Council, the chairman acts as the chief executive and director of the Council. 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 AIR 1968 Ker. 144, the respondent Thankappan Pillai who was a member of the Kerela 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 06.03.1983, on the grounds of complaint against him. The Bar Council of India requested to Terminate his membership and the Bar council of Kerela also added rules 10 and 13 to its rules providing for such 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 the Kerela High Court relied on a decision of Delhi High Court in Bar Council of Delhi v. Bar Council of India. 6. Committee. The Bar Council of India has various committees which make recommendations to the council. The members of these committees are elected from amongst the members of the Council:(a) Executive Committee: This committee deals with the issues related to management of funds, affairs of the staff, accounts, allotment of work, management of council's affairs, audit, library and legal publications delegation of work. (b) Legal Education Committee: This committee make recommendations to the BCI on matters related to legal education and sets standards of legal education, visits and inspects universities, recommend the pre requisites for foreign advocates practicing law in India, recommend recognition or discontinuance of a law degree from a university etc. (c) Disciplinary Committee: This committee reviews applications by persons against summary dismissal of their complaints against advocates for professional misconduct, by the state bar councils and appeals against orders of the disciplinary committees of the state bar councils. (d) Advocate Welfare Committee: This committee looks into applications made by advocates for welfare funds. It verifies the application and provides funds. The Advocates Welfare committee is certified by the Advocates Welfare Fund Act, 2001. (e) Legal Aid Committee: The Legal Aid Committee provides aids to those requiring legal assistance. (f) Building Committee: The Building Committee is responsible for setting up offices for the Council. (g) Rules Committee: The Rules Committee reviews the rules and regulations of the Council. Other than these, there are Finance Committee, Special or Oversee Committee and All India Bar Examination Committee.

7. Directorate of Legal Education. The Bar Council of India has established a Directorate of Legal Education for the purpose of organising, running, conducting, holding, and administering the following: (a)

Continuing Legal Education.

(b)

Teachers training

(c)

Advanced specialised professional courses

(d) Education program for Indian students seeking registration after obtaining Law Degree from a Foreign University (e) Research on professional Legal Education and Standardisation seminar and workshop (f)

Legal Research

(g) Any other assignment that may be assigned to it by the Legal Education committee and the Bar Council of India. 8. All India Bar Examination On April 10, 2010, the Bar Council of India resolved to conduct an All India Bar Examination that tests an advocate’s ability to practice law. It is required for an advocate to pass this examination to practice law. This examination is held biannually and tests advocates on substantive and procedural law. The syllabi for this examination has to be published at least three months before the examination. An advocate may appear for the examination any number of times. Once the advocate passes the examination, he/she will be entitled to a Certificate of Practice law throughout India. The All India Bar Examination (AIBE) IX scheduled to be held on 13 December 2015. It is clarified that the Bar Examination shall be mandatory for all law students graduating from academic year 2009-2010 onwards and enrolled as advocates under Section 24 of the Advocates Act, 1961. 9. Enrollment of advocates. Eligible persons having a recognised law degree are admitted as advocates on the rolls of the state bar Councils. The Advocates Act, 1961 empowers state bar councils to frame their own rules regarding enrolment of advocates. The Council’s enrolment committee may scrutinise a candidate’s application. Those admitted as advocates by any state bar council are eligible to take the All India Bar Examination which is conducted by the Bar Council of India. Passing the All India Bar Examination awards the state-enrolled advocate with a 'Certificate of Enrolment' which enables the state-enrolled advocate to practice law as an advocate in any High Court and lower court within the territory of India. However to practise Law before the Supreme Court of India, Advocates must first appear for and qualify in the Supreme Court Advocate on Record Examination conducted by the Supreme Court. State Bar Council. 10. Functions of State Bar Council. The functions of a State Bar Council in accordance with S 6 of Advocates Act, 1961 shall be-

(a)

To admit persons as advocates on its roll.

(b)

To prepare and maintain such roll.

(c) To entertain and determine cases of misconduct against advocates on its roll. (d)

To safeguard the rights, privileges and interest of advocates on its roll.

(e) To promote the growth of Bar Associations for the purpose of effective implementations of the welfare schemes referred to in clause (a) of sub section (2) of the section and clause (a) of sub section (2) of the section. (f)

To promote and support law reform.

(g) To conduct seminars and organize talks on legal topics by eminent jurists and publish journals and papers of legal interest. (h)

To organize legal aid to the poor in the prescribed manner.

(i) To manage and invest the funds of the Bar Council.(g) to provide for the election of its members. (j) To visit and inspect Universities in accordance with the directions given under clause (I) of sub-section (1) of section7. (k)

To perform all other functions conferred on it by or under this Act;

(l)

To do all other things necessary for discharging the aforesaid functions

(m) A State Bar Council may constitute one or more funds in the prescribed manner for the purpose of. (i) Giving financial assistance to organize welfare scheme for the indigent, disabled or other advocates. (ii). Giving legal aid or advice in accordance with the rules made in this behalf. (iii).

Establishing law libraries.

(n) A State Bar Council may receive any grants, donations, 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 subsection Organisation of State Bar Councils. 11. There shall be a Bar Council in accordance with section 3 of the Advocates Act, 1961.:-

(a). For each of the States of Andhra Pradesh, Bihar, Gujarat, Jammu and Kashmir, Madhya Pradesh, Karnataka, Orissa, Rajasthan and Uttar Pradesh, to be known as the Bar Council of that State. (b) For the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura to be known as the Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura, Mizoram and Arunachal Pradesh. (c). For the State of Kerala and the Union territory of Lakshadweep, Minicoy and Amindivi islands to be known as the Bar Council of Kerala. (d) For the words "State of Madras" state of Tamil Nadu and the Union territory of Pondichery to be known as the Bar Council of Madras. (e). For the State of Maharashtra and Goa, and the Union territories of Dadra and Nagar Haveli and Daman and Diu, to be known as the Bar Council of Maharashtra and Goa. (f) For the State of Punjab and Haryana, and the Union territory of Chandigarh to be known as the Bar Council of Punjab and Haryana. (g) For the State of Himachal Pradesh to be known as the Bar Council of Himachal Pradesh. (h) For the State of West Bengal and union territory of Andaman and Nicobar islands to be known as the Bar Council of West Bengal and for the Union territory of Delhi to be known as the Bar Council of Delhi. 12. Members of State Bar Council. A State Bar Council shall consist of the following members, namely:(a) In the case of the State Bar Council of Delhi, the Additional Solicitor General of India, ex officio in the case of the State Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura, the Advocate-General of each of the State of Assam, Nagaland, Meghalaya, Manipur and Tripura, ex officio, in the case of the State Bar Council Punjab and Haryana, ex officio] and in the case of any other State Bar Council, the Advocate- General of the State. (b) In the case of a State Bar Council with an electorate not exceeding five thousand, fifteen members, in the case of a State Bar Council, with an electorate exceeding five thousand but not exceeding ten thousand, twenty members, and in the case of a State Bar Council with an electorate exceeding ten thousand, twenty-five members, elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council. (c) Provided that as nearly as possible one half of such elected members shall, subject to any rules that may be made in this behalf by the Bar Council of India, be persons who have for at least ten years been advocates on a State roll, and in computing the said period of 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 (38 of 1926). (d) There shall be a Chairman and a Vice-Chairman of each State Bar Council elected by the Council in such manner as may be prescribed. (e) Every person holding office as Chairman or as Vice-Chairman of any State Bar Council 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 every 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 each State Bar Council, elected after the commencement of the Advocates (Amendment) Act, 1977, assumes charge of the office. (f) An advocate shall be disqualified from voting at an election under subsection (2) or being chosen as, and for being a member of a State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to tome by each State Bar Council. (g) Nothing in the proviso to sub-section (2) shall affect the term of office of any member elected before the commencement of the Advocates (Amendment) Act, 1964 but every election after such commencement shall be held in accordance with the provisions of the rules made by the Bar Council of India to give effect to the said proviso. (h) Nothing in clause (b) of sub-section (2) shall affect the representation of elected members in any State Bar Council as constitute immediately before the commencement of the Advocates (Amendment) Act, 1973 (60 of 1973), until that State Bar Council is reconstituted in accordance with the provisions of this Act. 13. In Sanjay Jain and anr. v. Bar Council of Delhi and others AIR 1999, the question for decision,among others was as to whether there is a provision for the institution of Honorary Secretary in the Bar Council of Delhi. Bar Council of Delhi Rules do not provide for the same. Rule 126 of the Bar Council of Delhi provides that the following full time employees shall be appointed to carry on the business of the council: 1. Secretary 2. Accountant 3. Steno typist 4. Peon 5. Employees recommended by the Legal Education Committee to perform duties connected with that committee 6. Any other employee as may be considered necessary from time to time. In view of the above Rules, Honorary Secretary is not creation of statute. References:

1.

“About the Bar Council of India". Bar Council of India. Retrieved 3 May 2014.

2. "The Indian Legal Profession" (PDF). President and Fellows of Harvard College. Retrieved June 4, 2014. 3.

"Advocates Act, 1961" (PDF). Parliament of India. 1961. Retrieved 3 May 2014.

4. "History of Bar Council of India". Bar Council of India. Archived from the original on 14 March 2014. Retrieved 4 June 2014. 5. "Office Bearers of Bar Council of India «The Bar Council of India". www.barcouncilofindia.org. Retrieved 2016-11-21. 6. "Office bearers of the Bar Council of India". Bar Council of India. Archived from the original on 28 March 2014. Retrieved 4 June 2014. 7. "Committees of Bar Council of India". Bar Council of India. Archived from the original on 28 March 2014. Retrieved 4 June 2014. 8. "All India Bar Examination (AIBE)". Bar Council of India. Retrieved 14 May 2014. 9.

"All India Bar Exam". West Bengal Bar Council of India. Retrieved 14 May 2014.

10.

"The All India Bar Examination 2015".

11.

"bar council rules". Retrieved 3 February 2017.