THE
INDIAN INDEPENDENCE ACT 1947
The
plan of Lord Mount Batten was accepted by the Congress and Muslim League and to
give effect to the plan, the British parliament enacted the Indian independence
act 1947. The Indian independence bill was introduced in the House of Commons
on 4th July 1947 and it was passes by the House of Commons on 15th
July 1947. It was passed by the House of Lords on 16th July 1947 and
it obtained the Royal assent on 18th July 1947.
The main provisions
of Indian Independence Act 1947 –
1)
The Indian Independence Act 1947 provided for
the establishment of 2 Independent Dominions. India and Pakistan with effect
from 15th August 1947.
2)
Each Dominion was to have a Governor General
who was to be appointed by His Majesty and was to represent His Majesty for the
purpose of the Government of the Dominion. However, he was to be a constitution
head.
3)
The Act provided for the establishment of a
fully sovereign legislature in each dominion. The legislature of each dominion
was to be given full powers to make laws for the dominion including laws having
extra territorial operation.
4)
The Act provided for the termination of
suzerainty of the British Crown over the Indian States from 15th
August 1947. It provided that all treaties and agreements in force at the date
of passing of this Act between His Majesty and the rules of the Indian States.
5)
The Act provided that the existing
constituent Assemblies would Act as Dominion legislature until a new
Constitution was framed for each dominion.
6)
Each of the dominions and all the government
of India Act 1935 subject to such modifications as were made their in by the
Governor General.
7)
The Act provided for the abolition of the
office of the secretary of state for India. The Act also provided for the
transfer of his work to the secretary of state for common wealth affairs.
8)
The Act declared that the instruments of
instruction issued before the passing of the Indian Independence Act 1947 by
His Majesty to the Governor-General and the Governor of the provinces would
lapse from 15th August 1947 and nothing in this Act would be
constructed as continuing in force any provision of the Government of India Act
1935 relating to such instruments of instruction.
9)
The laws of British India and of the several
parts there of existing immediately before 15th August 1947 would
remain in force until amended by the new dominion Legislature.
10) The
Act empowered the Governor-General to make, by order such provision as would
appear to him to be necessary or expedient for bringing the provision of Indian
Independence Act 1947 into effective operation and for dividing between the new
dominions and between the new provinces to be constituted under this Act the
powers, right property duties and liabilities of the Governor – General in
Council or at relevant provinces which were to cease to exist under this Act.
11) The
Governor –General was to make provisions for the division of Indian armed force
of His Majesty between the new dominion and for the command and Governance of
those force until the division was completed.
The
commission was appointed in November 1953 for 3 Years and thus its life (or
tenure) was to expire in 1856. During its tenure, the commission submitted 4
reports.
First
Report –
The First report was submitted by the commission in 1855.
In this report, the commission submitted a plan for the amalgamation of the
Supreme Court at Fort William in Bengal with the Sadar Diwani and Sardar
Nizamat Adalat. The commission suggested to establish High Court instead of Supreme
Court and Adalats Court and for the preparation of simple and Uniform Civil
Code and Criminal Procedure Code.
Second
Report –
The commission agreed with the Lex Loci Report submitted
by the First Law Commission that there should be substantive Civil Law for the
Person inhabiting in Mufassil, who had no laws of their own. The commission
expressed the view that India was in a great need of a body of the substantive
Civil Law which should be enacted on the basis of the law of England but after
enactment it should be the law of India on the subject it embraced.
Thus, the First Law commission suggested that the
substantive law of England should be treated as Lexi Loci while the Second Law
of England as Lexi Loci but it suggested that a body of the substantive Civil
Law should be enacted on the basis of the law of England and of the enactment,
it should itself be the law of India.
Third
Report –
In this report the commission proposed a plan for
establishing a judicial system and procedure in North Western provinces. The
Judicial system proposed in this plan was similar to the judicial system
proposed. For Bengal with minor changes made to meet the special conditions.
Fourth
Report –
In this report the commission proposed a judicial plan
for the presidencies of Bombay and Madras.
Third
Law Commission –
The Third Law Commission was pointed in India in December
1861. Lord Pomilly was appointed as the chairman of this commission. The other
members of the commission were, Sir W. Erle, Sir E. Ryan, Mr. R. Lowe, MR.
Justice Willes and John Macpher, Son Macleod. Later on, Sir Erle and Mr.
Justice Willes were retired and in their places Mr. W. M James and Mr. John
Henderson were appointed. Later on Mr. John Henderson died and in his place Mr.
Justice Lush was appointed.
This commission was directed to prepare a body of
substantive law for the preparation of the body of substantive law for India,
the Commission was to make the law of England as a basic having due regard for
the institutions, conditions and religions of the inhabitants of India. The
third law commission, thus was to prepare a body of substantive law for India
on the basis of the principles laid down by the second law commission, that a
body of substantive law should be enacted for India on the basis of the law of
England and after enactment it should itself be the law of India on the subject
it embraced.
Contribution
–
The
Commission Submitted Seven Reports –
The
First Report –
The First Report contained a
draft of the law of inheritance and succession generally applicable to all
persons except Hindus and Mohammedans.
The
Second Report –
The Second Report was
submitted in 1866. It contained a draft of the contract bill. The draft
provided a contract applicable to all persons. This draft possessed great
merit. Renkin has expressed the view “it was original and expert attempt to
present a simplified statement of the English law of contract with some modification
not a great number though some were important and indeed remarkable. Indeed to
make it suitable for India.
The
Third Report –
The Third Report contained a draft of the negotiable
instrument Bill. This report was submitted by the commission in 1867. A revised
draft of the code of Criminal procedure.
The Fourth law Commission
Report –
In 1875 Lord Salibury the Secretary of State for India
wrote to the Government of India that under the Provision of Indian Council
Act, it was possible to appoint a Law Commission. He also pointed out that a
small body of eminent draftsmen might be entrusted with the task of preparing
the remaining branches of the Indian Code for the Legislative Council.
The commission submitted to the Indian Government only
one report. As a result of the recommendation of the commission the Negotiable
Instrument Act 1881, the T. P. Act 1882, the easement Act 1882 and Trust Act
1882 were enacted.
It was the last commission appointed by the British
government before the Indian Independence. The labour of these commission gave
to India a system of code dealing with important parts of substantive and
procedural laws.
The
Fifth Law Commission Report –
The Fifth Law Commission Report was appointed in 1955
after the Independence of India. After the Independence of the country the need
for the appointment of a law commission was felt so that it might be assigned
the task of reconsideration the old Acts in the light of the new conditions and
making recommendations for the modernization of laws reducing the questions of
case law and resolving the conflicts in the decisions of the High Court on many
points. The Fifth Law Commission was appointed in 1955 under the chairmanship
of Sir M.C. Setalvad (the Attorney General of India ).
The Fifth Law Commission Report still function and has
submitted more than 195 reports. It is not a permanent body. It is
re-constituted at every 3 years. Based on the reports and recommendations of
the 5th law commission, so many reforms have been made to the laws
and judicial system.
PART
III
CHAPTER
NO I
LEGAL
PROFESSION
Legal
profession in Pre-British India –
The Legal profession in Pre-British India was not as
organized as today. The legal profession as it exists today was created and
developed during the British period.
During the Hindu period the courts derived their
authority from the King. The King was considered the fountain head of Justice.
The Kings Court was superior to all other Courts. The Kings Courts was the
highest court of appeal. It has original jurisdiction in important cases. The
King was advised by his councilor in hearing and deciding the cases. However
the King was not bound by their advice. The King, thus made law through their
decisions. The institutions of lawyers as it exists today was not in existence
during this period.
The Muslim period the legal profession was not organized.
The King was regarded as Fountain of Justice. He was regarded as the servants
of the God on the earth and his duty was to see that his laws were obeyed. It
was the primary duty of the King to administer Justice. He could disclose his
duties personally or through his officers. The King was the Judge of the
Emperor and Keeper of the God conscience. The Courts were to be guided by
Quran, Sunna, Etc.
The law of evidence was not satisfactory. The evidence of
a Mohammedan was given more weight that of a Hindu. A Muslim could not be
convicted for the offence of Murder on the evidence of a Non-Muslim. The
evidence of a female was considered inferior to that of a male.
Thus, before the British period the legal profession was
not organized. There wa no provision for the legal training. Before the rise of
the British power in India, the administration of Justice in Northern India was
in the hand of Courts established by the Mughal Emperors or ruling Chiefs owing
alleging to them.
PART
III
CHAPTER
NO. 2
LAW
PRACTITIONERS IN MAYOR’S COURT ESTABLISHED UNDER CHARTER OF 1726.
Before 1726 the judicial administration was not of a high
order mainly because the judges were not lawyers but laymen and did not have
sufficient knowledge of law. They used to decide cases according to their own
sense of justice. As a result uncertainty
prevailed in the judicial administration. An attempt was made to introduce
lawyer judges under the Charter Act of 1683, by providing that the Judge
Advocate of the admiralty court must be an expert in Civil Law. The company was
not interested in organizing the legal profession. As a result the local
profession was not well organized. There was no Uniform judicial system in the
company’s settlements. Each settlement had its own judicial system distinct
from that of the other settlements. The whole judicial administration was
executive oriented. Before 1726, thus there was no uniform judicial system in
the company settlement.
The Mayor’s Court established under the Charter of 1726
were the Royal Courts and they derived there, authority from the British Crown and
not from the East India Company. The Mayor’s Court were to follow well defined
procedure based on English Law and procedure. The Charter of 1726, thus
introduced Uniform Judicial System in all the 3 presidency towns and Royal
Court in India but it did not make provisions for the regulation of legal
practitioners. There was no provision was not organized. Many persons having no
knowledge of law were practicing. Thus, the legal profession was not paid due
attention. Even after, this Charter the Judicial administration remained in the
hand of Non-Professional persons. Charter of 1753 did not contain significant
provision for legal training and legal education of legal practitioners. The
legal profession was not organized.
PART
III
CHAPTER
NO. III
LEGAL
PROFESSION UNDER THE CHARTER OF 1774
The Regulating Act, 1773 empowered the British crown to
establish a Supreme Court at Calcutta by issuing a Charter. In the exercise of
this power the British Crown issued a Charter in 1774 establishing the Supreme
Court of judicature at Calcutta. The Charter of 1774 superseded the provision
of the charter of 1753 and resulted in the abolition of the Mayor’s Court at
Madras and in 1823 the Supreme Court was established at Bombay by the British
Crown by issuing Charter.
The Regulating Act 1773 and the Charter of 1774 are
considered of much importance. They have played an important role in the
development of organized legal profession and sound judicial system.
Clause II of the Charter of
1774 empowered the Supreme Court to approve and enroll advocates and attorney
at laws. The Supreme Court had power to remove any advocate or attorney on
reasonable clause.
After the
establishment of the Supreme Court at Calcutta a serious conflict arose between
the judges of that court and the Governor- General and Council. To avoid this
conflict the Act of Settlement 1781 was passed to remove out the defects of the
Regulating Act of 1773, which were the main causes of the conflict it did not
introduce any changes in the organization of the legal profession, so far as
the Supreme Court was concerned? However it empowered the Governor – General
and Council to frame regulations were to be sent to the court of Directors and
Secretary of State within 6 months of their passage.
PART
III
CHAPTER
IV
LEGAL
PROFESSION IN THE COMPANY’S COURTS AND LEGAL PRACTITIONERS ACT 1853
Before the rise of the British power in India, the
administration of Justice in Northern India was in the hands of the Court
established by the Moghul Emperor or Ruling Chiefs owning allegiance to the
Moghul Emperor. In addition, the big zamindars also had courts exercising both
Civil and Criminal Jurisdictions. There existed a clause of persons called
Vakils. The Vakils acted more as agents for Principals administration in the
settlements of the East India Company was not of high order. The Company gave
lesser importance to the judicial independence and rule of law. The judges of
the company’s courts were not lawyers but laymen. The legal profession was not
organized. The clause of Vakils practicing before the courts of East India
Company. The Bengal Regulation VII of 1793 created for the First time a
regulation legal profession for the company’s court. This regulation authorized
the Sardar Diwani Adalat to enroll pleaders for the courts of the company.
Under this regulation only Hindus and Muslims could be enrolled as pleaders.
The Legal Practitioners Act 1846 made provisions that
people of any nationality or religion would be eligible to be pleaders and
Attorney and Barristers enrolled in any of Her Majesty’s Court in India, would
be eligible to plead in the Company’s Sardar Adalats. The Pleaders were allowed
to enter into agreements with their clients for their fees for professional
service.
The Legal Practitioner Act 1853 authorized the barristers
and attorneys of the Supreme Court subject to rule in force in the said
subordinate courts as regards language or otherwise. It is to be noted that the
barristers and attorney were permitted to practice in the courts of East India
Company.
PART
III
CHAPTER
NO. V
HIGH
COURT UNDER INDIAN HIGH COURT ACT 1861 AND PROVISION FOR THE ENROLEMENT OF THE
ADVOCATES UNDER THE LETTER PATENT ISSUED
In 1861 the High Court Act was passed by the British
Parliament. The main object of the Act was to abolish the Supreme Court and the
Sardar Adalats, and in their place to establish High Court in presidency towns.
The Act empowered the British crown to establish one High Court in each
presidency town.
The High Court would exercise all such Civil, Criminal,
Admiralty and Vice – Admiralty, testamentary, intestate and matrimonial
jurisdiction and all sub power and authority in relation to the administration
of justice in the presidency for which it was established, as the British Crown
might grant and direct by such letter patent. It was made clear that by letters
patents the British Crown could impose direction limitations as to exercise of
original Civil and Criminal jurisdiction beyond the limits of the presidency
towns. Each High Court to exercise the appellate jurisdiction of the Sardar
Adalats and original jurisdiction of the Supreme Court. The Act of parliament
or orders of the British Crown or Acts of the Indian Legislature which were
applicable to the Supreme Court would apply to the High Court as to the extent
they would apply to the High Court as to the provision of the Indian High Court
Act and the Charter or Letter patent issued under the Indian High Court Act.
And subject to the legislative power of the Governor – General in Council.
PART
III
CHAPTER
VI
LEGAL
PRACTITIONERS ACT OF 1879 AND THE REPORT OF THE INDIAN BAR COMMITTEE – 1923
The
Legal Practitioners Act of 1879 –
It was passed to consolidate and amend the law relating
to legal practitioners. It empowered an Advocate or Vakil on the role of any
High Court or a Pleader of the Chief Court of the Punjab, to practice in all
the Courts subordinate to the court on the role of which he was entered Section
4 of the legal practitioner act.
Every person now or after entered as an advocate or vakil
on the role of any High Court under the Letter patent constituting such court
or under Section 41 of this Act or enrolled as a Pleader in the Chief Court of
the Punjab under Section 8 of this Act shall be entitled to practice in all the
courts subordinate to the court on the roll of which he is entered and in all
revenue officers situate within the local limits of the appellate jurisdiction
of such court subject nevertheless, to the rules in Force relating to the
language in which the court or office is to be addressed by pleaders or revenue
agents, and any person so entered who ordinarily practices in the court as the
roll of which he is entered or same court subordinate thereto shall, now withstanding
anything herein contained, he is entitled, as such, to practice in any court in
the territories to which this Act extends other than a High Court on whose roll
he is not entered or with the permission of the court or in the case of a High
Court in respect of which the Indian Bar Councils Act, 1926 is enforce subject
to the rules made under that Act in any High Court on whom roll he is not
entered and in any revenue office.
Provided that no such Vakil or pleader shall be entitled
to practice under this Section before a judge of the High Court, Division Court
or High Court exceeding original jurisdiction in a Presidency Town.
Section 5 of
the Act made it clear that every person entered as an Attorney on the role of
any High Court would be entitled to practice in all the courts subordinate to
such High Court and in all revenue offices situate within the local limits of
the appellate jurisdiction if such High Court.
Section 7 made
provisions in respect of issue of certificates to pleaders and Mukhtars.
Section 8 provided that the pleaders on enrolment, any practice in courts and
revenue offices.
Section 9 of
the Act made it clear that Mukhtars could practice in the court on enrolment.
According to Section 9, “Every Mukhtat holding a certificate issued under
Section 7 may apply to be enrolled in any Civil and Criminal Court mentioned
therein and situte within the same limits; and subject to such rules as the
High Court may, from time to time, make in this behalf, the presiding Judge or
officer shall enroll him accordingly and there upon the may practice as a
Mukhtar in any Civil Court and any subordinate thereto and may (subject to the
provisions of the code of Criminal Procedure) appear, period and act in any
such Criminal Court and any court subordinate thereto”
Section 11 of
the Act made provision in respect of power to declare the functions of the
Mukhtar, the High Court was empowered to rules declaring what shall be deemed
to be Functions, Powers and duties of Mukhtars practicing in the subordinate
courts and in the case of High Court and established by Royal Charter, in such
court.
Section 12
empowered the High Court to suspend or dismiss any pleader or Mukhtar holding a
certificate issued under Section 7 if the Act who was convicted of any Criminal
offence implying a defect of charter which unfits him to be a pleader or
Mukhtar, as the Case may be.
Section 13. Empowered
the High Court to suspend or dismiss Pleader or Mukhtar quality of unprofessional
conduct.
Section 14
made provision in respect of the procedure when changes of unprofessional
conduct was brought in subordinate or the revenue office.
Section 17
empowered the chief controlling revenue authority to make rules consistent this
act to be qualification, suspension, and demission etc. of the revenue agent.
In short, the legal practitioners Act 1879 was passed to consolidate and amend
the law relating to legal practitioner. This act authorized the High Court not
established under a Royal Charter to make rule with the previous sanction of
the provincial government as to the qualification and admission of proper
persons to be Pleader and Mukhtars of the High Court. The Chartered High Court
framed rules. According to the rules framed by such High Court apart from Attorneys,
there were advocates and Vakils. Advocate were to be Barrister of England or
Ireland or Members of the faculty of Advocates of Scotland. The High Court
other than the High Court of Calcutta allowed even non-Barristers to be
enrolled as advocates under certain circumstances.
Indian
Bar Committee 1923 –
In 1923 the Indian Bar Committee was constituted under
the chairmanship of Sir Edward Charmier. This committee was to consider the
issue as to the organization 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
organizing the Bar of all India Bar and establishing on all India Bar Council.
The Committee suggested that in all High Court a single grade of practitioners
should be established and they should be called Advocates. On the fulfilment of
certain conditions Vakils should be allowed to plead on the original side of
three High Court. A Bar Council Should be constituted for each court. It should
have power to enquire into matters calling for disciplinary action against a
lawyer. The High Court should be given disciplinary power, but before taking
any action, it should refer the case of the Bar Council for enquiry and report.
In 1926 the Indian Bar Council Act was enacted to give effect to some of the
recommendations of the Indian Bar Committee 1923. The main subject of the Act
was to provide for the constitution and incorporation of Bar Council for
certain Courts to confer powers and impose duties ion such Councils and also to
duties on such Councils and also to consolidate and amend the law relating to
consolidate of such courts.
Ever Bar Council was to consist of 15 members four of
such members were to be elected by the Advocates of the High Court and ten of
them was to be the Advocate-General. Even after this Act the High Court had
power of enrolment of Advocate and the function of the Bar Council was advisory
in nature, the rule made by the Bar Council were to be effective, only on the
approval of the High Court.
CHAPTER
NO. VII
INDIAN
BAR COUNCILS ACT 1926 AND ALL INDIA BAR COMMITTEE 1951
Indian
Bar Council Act 1926 –
The Indian Bar Council Committee was constituted to
consider the issue as to organization of the Bar on all India basis and
establishment of an all India Bar Council for the High Court. The Committee was
not in favor of organizing the Bar on all India Bars and establishing on All
India Bar Council. The committee suggested that in all High Courts a single
grade of practitioners should be established and they should be called
Advocates. On the fulfillment of certain conditions Vakils should be allowed to
Plead on the original side of the three High Courts. A Bar Council should be
constituted for each High Court, it should have power to enquire into matters
calling for disciplinary power but before taking any action, it should refer
the case to the Bar Council for enquiry and report. In 1926 the Indian Bar Council
Act was enacted to give effect to some of the recommendations of the India Bar
Committee 1923. The main object of the Act was to provide for the constitution
and incorporation of Bar Council for certain courts to confer powers and impose
duties on such council and also to consolidate and amend the law relating to
legal practitioners of such courts. The Act made provision for the
establishment of a Bar Council for every High Court. Every of such members were
to be nominated by the High Court and ten of them were to be elected by the
Advocates of the High Court from amongst themselves. One of them was to be the
Advocate- General. Even after this Act the function of the Bar Council was
advisory in nature. The rules made by the council were to be effective, only on
the approval of the High Court.
Section 10 of the Indian Bar Council Act 1926 empowered
the High Court to reprimand, suspend or remove from practice any advocate of
the High Court whom it found guilty of professional or other misconduct.
All
India Bar Committee, 1951 –
The Indian Bar Council Act, 1926 could not satisfy the
Bar. The pleaders and Mukhtars practicing in the Mofussil Courts were not
within its scope. The Bar Council were not given any significant power. They
were only advisory body. In 1951, a committee known as the All India Bar
Committee was appointed under the chairmanship of Justice S.P Das. The
Committee recommended the establishment of an All India Bar Council and State
Bar Councils. Subject to certain safeguards the committee suggested that the
power of enrolment suspension and removal of advocate should be vested in the
Bar Councils, it recommended that there should be no further recruitment of
Non-Graduate pleaders or Mukhtars. It also recommended that there should be a
common role of advocates who should be authorized to practice in all courts in
the country.
The Fifth Law Commission in its Fourteenth Report
submitted in 1958, recommended for the establishment of a united All India Bar.
The commission favored the recommendation of the All India Bar Committee 1951
that there should be no further recruitment of Non-Graduates Pleaders or
Mukhtars. It also recommended for the division of Bar into senior Advocates and
Advocates.
PART
III
CHAPTER
VIII
ADVOCATES
ACT 1961
The Advocate Act 1961 was enacted in 1961. This was
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 this Act made provision for the establishment of State Bar Council
and Bar Council of India. The main function of the Bar Council of India are to
lay down the standard of professional conduct and etigate for advocates to lay
down the procedure to be followed by its disciplinary committee and the disciplinary
committee of the each state Bar Council to safe guard the rights privileges and
interest of advocates to promote and support Law reforms to exercise general
supervision and control over the state Bar Council to promote Legal Education
for recognized university whose degree in Law shall be a qualification for the enrolment
as an advocate and to conduct seminars Etc. the Advocate Act 1961 provide for
two classes of Advocates – Sr. Advocate and other Advocate. The State Bar
Council are required to maintain the role of Advocate and to send copies of roles
of Advocate to the Bar Council of India.
Section 29 – of the Advocate Acts 1961 provide that
subject to the provision of this Act and any rule made there under. The Advocates
will be the only recognized class of person entitled to practice law according
to Section 30 of this Act subject to provision of this Act. Every Advocate
whose name is entered in the State role shall be entitled as of right to
practice throughout the territories to which this Act extent –
1)
In all Court including the Supreme Court
2)
Before any tribunal or person legally
authorized to take evidence and
3)
Before any other authority or person before
whom such Advocate is by or under any Law for the time being enforce entitle to
practice.
Section 24 – of
the Advocate 1961 deals with the person who any be admitted as Advocate on the
state role. Sub Section (1) of section 24 provides that subject to the
provision of this Act and the rules made there under, a person shall be
qualified to be admitted as advocate on a state role if be fulfill the
following conditions –
a) He
is a Citizen of India provided that subject to the other provision, contained
in this Act, a national for any other country may be admitted as an advocate on
a state role. If citizen of India duly qualified are permitted to practice law
in that other country.
b) He
has completed the age of 21 years.
c) He
has obtain the degree in law.
The
Functions of a State Bar Council are –
a)
To admit person as advocate on its role.
b)
To prepare and maintain such role.
c)
To entertain and determine cases of
misconduct against advocate on its role.
d)
To safeguard the rights, privileges and
interest of advocate on its role.
e)
To promote and support law reforms.
f)
To conduct seminars and organized talk on
legal topics by eminent jurist and published journals and people of Legal
interest.
g)
To organize legal aid to the poor in the
prescribed manner
h)
To provide for the election of it member
i)
To perform all other functions conferred on
it by or under this Act.
j)
To do all other thing necessary for
discharging the aforesaid functions.
According
to Section 6 sub section 2 of this Act. State Bar Council can constitute one or
more functions in the prescribed manner for the purpose of giving financial
assistance to organize welfare schemes for the indigent, disabled or other
advocate and giving legal aid or advice in accordance with the rules made in
this behalf for this purpose it may receive any grants, donation, and Etc.
Section 7 – of
this Act state the function of the Bar Council of India. The function of the
Bar Council of India are to lay down standard of professional conduct and
etigate for the advocates, the procedure to be followed by its disciplinary
committee. Safeguard the rights, privilege and interest of advocate, promote
law reforms, promote legal education, lay down standard of such education in
consultation with the university in India, imparting such education and the
State Bar Council. Recognized university whose degree in law shall be a
qualification for enrolment as an advocate and for that purpose to visit and
inspect and university Etc.
Section 9 –
empowers a Bar Council to constitute few or more disciplinary committee.
Section 10 – empowers a Bar Council to constitute one or more legal aid
committee. According to Sub-Section of Section 10 the Bar Council of India
shall constitute an executive committee consisting of a member and also a legal
execution committee consisting of 10 members, of whom shall be person elected
by the Council from amongst its members and shall be person to co-opt by the
Council who are not member thereof.
The
State Bar Council and bar Council of India have been empower to punish Advocate
for misconduct. According to Section 35 whereon receipt of complaint or other
wise a State Bar Council has reason to believe any Advocate on its role has
been guilty of profession or other misconduct, it shall refer the case for
disposal to its disciplinary committee. The disciplinary committee of a State
Bar Council shall fix a date for the hearing of the case and shall cause a not
thereof to be given to the advocate concerned and to the advocate –general of
the state.
The
disciplinary committee of the State Bar Council after giving the advocate concerned
and the advocate- general an opportunity of being heard, may make any of the
following orders namely –
a) Dismiss
the complaint or, where the proceeding were inviated at the instance of the
State Bar Council, direct that the proceeding to be filled.
b) Warning
the Advocate.
c) Suspend
the advocate from practice for such period as it may deem of it.
d) Remove
the name of the advocate from the State role of advocate from the state role of
advocates.
Where
an advocate is suspended from practice under clause (c) of the Sub-Section 3,
he shall during the period of suspension be debarred from practicing in any
Court or before any authority or person in India.
Section 36 –
confers disciplinary power on the Bar Council on the Bar Council of India,
according to this Section where on receipt of a complaint or otherwise, the Bar
Council of India has reason to believe that any advocate whose name is not
entered on any state role has been guilty of professional or other misconduct,
it shall refer the case for disposal to its disciplinary committee.
The disciplinary committee of the Bar Council of India
may either of its own motion or on report by any state Bar Council or on an
application made to it by person interested withdraw for enquiry before itself
any proceeding for disciplinary action against any advocate pending before the
disciplinary committee of any State Bar Council and disposal of the same.
The disciplinary committee of the Bar Council of India,
in disposing of any case under this Section shall observe so for as may be the
procedure laid down in Section 35, the reference to the advocate- general is
that Section being constructed as reference to the Attorney –General of India.
Any person aggrieved by an order of the disciplinary
committee of State Bar Council made under Section 35, or the Advocate-General
of the State may within sixty days of the date of the communication of the
order to him. Prefer and appeal to the Bar Council of India.
Section 45 –
make provision in respect of the penalty for the person illegally practicing in
courts and before other subordinates. Any person who practices in any court or
before any authority on person, in or before whom he is not entitled to
practice under the provision of this Act, shall be punishable with imprisonment
for a term which may extent to six months.
The Advocates Act, 1961, thus has established on All
India Bar Council it has made provision for a common role of advocates. Such
advocates can practice in any court in India including Supreme Court. The Act
has established only one class of legal practitioner, called advocates. The Act
has established State Bar Council and All India Bar Council on democratic
lines. The Bar Council of India controlled the State Bar Council besides it
lays down standard of legal educational maintain a common role of advocates.
PART
III
CHAPTER
NO. IX
LEGAL
EDUCATION IN INDIA
Legal education is the basis of an efficient legal
profession which is the basis of a well-organized and sound judicial system.
The legal practitioners helps the courts in the administration of justice by
providing the best legal argument for and against the case, such help to the
court is possible only when the legal practitioners have sufficient legal
knowledge. For a sound judicial administration, the judges and the person in
legal profession must have through knowledge of the law. For this purpose the
legal education should be well organized, and modernized. Unfortunately the
legal education was not paid due attention during the British period and even
after independence it has been the most neglected branch of the education.
Earlier the LLB degree course was of 2 years, this period
was not sufficient to cover the important branches of law. Subsequently, this
period was extended to 3 years even this period was not found sufficient for
covering the important branches of law. This period has been extended to 5
years. Extension of the period would not be sufficient for improving the legal
education unless it syllabus is prepared taking into account the relevancy and
practical importance of the law, the syllabus should be uniform throughout
India. The 5 year LLB degree course has not been adopted by all the university.
The Bar Council of India Should play more creative role even in promoting the
legal education.
The success of the legal education depends mainly on
teaching staff, libraries, law reports, syllabus for law student’s research
facilities etc. to attract good teachers, the teachers should be provided
reasonably good salaries and other facilities. The libraries should be provided
sufficient financial assistance for purchasing relevant books, law reports,
etc. it should properly see that the relevant books are purchased and the grant
is not misused. Besides, as far as possible the part – time teachers should be
avoided. The syllabus should be uniform throughout the country. The emphasis
should be on the inclusion of the laws of practical importance in the syllabus.
The law students should have not only theoretical knowledge but also practical
knowledge.
The teaching in the institutions imparting legal
education should be improved. Good teaching creates interest in the students
for the subjects and inspire the to have a deep knowledge for the subjects.
Good books are necessary for promoting legal education. Several teachers and
lawyers have written treaties and papers. The research facilities should be
increased. The law reports play an important role in the legal education. The
number of law reports is not adequate. It should be increased. The law
reporting should be in simple language and precise. Sometimes the reporting is
found to be very difficult for the law students to grasp the principles laid
down in the cases. This defect in the reporting should be avoided.
PART
III
CHAPTER
NO. X
HISTORY
OF LAW REPORTING IN INDIA
The
Indian Law Reports Act 1875
The system of law reporting prevailing at that time in
India was severely criticized by Sir James Fatzjames Stephen, the Law members
of the Government of India.
“These reports are of very different degrees of Merit,
some are very good, other judgment of the Judges with no statement of fact of
the case or of the arguments of the advocates. He said that reporting should be
regarded as a branch of legislation. In 1875 the Indian Law Report Act was
passed.
Section 3 – of the Act provided no court shall be bound
to hear cited or shall receive or treat as an authority binding on it the
report published under the authority of the government. Its object was to
diminish the quantity of aw reporting and to improve its quality. The Act made
rich contribution to the development of Law reporting in India. An official
series of reports known as the Indian Law Reports was started. Each High Court
has a series of Indian Law Report for itself. Some of them are I.L.R Madras,
I.L.R Bombay, I.L.A Calcutta, I.L.A Allahabad, I.L.R Punjab etc. beside several
non-official report are also being published in India. The non-official report
have also made significant contribution to the development of te law reporting
in India. Some of the non-official report are madras law journal, Allahabad Law
journal, Calcutta weekly notes, all India reporter company case, and Income-Tex
reports. Taxation Law reports,etc..The 5th law commission has also
examined system of law reporting in India and has opposed the creation of
monopoly in favor of official report.
The law reports play an important role in the legal
education. The number of law reports is not adequate it should be increased. The
law reporting should be precise an in simple language, so that law student may
be able to understand. The principles laid down in the cases correctly and
clearly.
