Historical Perspective-Development of Legal

Profession In India
1. Legal Profession in Pre-British India
In Pre-British India, Legal Profession was not as organised as today.
Actually, 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 who
was considered the fountain head of justice. The King's Court was superior to all other
courts. The King was advised by his Councellor in hearing and deciding the case but
he was not bound by their advice. The institution of lawyer as it exists today was not
in existence during this period.
The plaintiff was required to present plaint before the Court and thereafter the
Court could direct the defendant to submit his reply. Thereafter the Court was required
to investigate the matter and deliver its judgment. The Courts delivered judgment on
the basis of evidence gathered from various sources, e.g., witnesses, documents, etc.
Ordeal was also recognised as means of proof.
According to RP. Kangle there is no mention in the Kautilya's Arthasastra
about the existence of legal profession and therefore most probably such a class did
not exist. However, Justice Ashutosh Mukherjee has expressed a contrary opinion.
According to him the legal profession was in existence during the Hindu Period.
During the Muslim period the litigants were represented by a body of persons
known as vakils. The vakil was paid a percentage of the amount in the suits. The
Court of the native administrations concerned determined who should be allowed to
appear as Vakil in a Zilla Court. Even during this period, the legal profession was not
organised. The Vakils acted more as agents for principals than as lawyer.

3. Legal Profession during British Period

As has been stated above, the legal profession as it exists today was created and
developed during the British Period. However, it is notable that in early days of the
British Period the legal profession was not paid due attention and it was not well
organised. Actually the East India Company was not interested in organising the
legal profession. There was no uniform judicial system in the settlements of the East
India Company. In 1726 by a Charter known as Charter of 1726 in each Presidency
Town a Mayor's Court was established and, thus, by the Charter a uniform judicial
system was introduced in all the three Presidency Towns-Bombay. Calcutta and
Madras. It may, here, be mentioned that before 1726 the Courts were the Courts of
East India Company and they derived their authority not from the British Crown but
from the East India Company and their decisions were not as authoritative as those of
the Courts in England.
The Mayor’s Court established under the Charter of 1726 were· the Royal
Courts and they derived their authority from the British Crown and not from the East
India Company. The Mayor's Courts were to follow well-defined procedure based on
the English law and procedure. The Charter of 1726, thus, introduced Royal Courts in
India but did not make provisions for the regulations of the legal practitioners. There
was no provision for the legal training. The legal profession was not organised.
Many persons having no knowledge of law were practicing. The judicial
administration including the legal profession was not of a high order.
In 1753 a new Charter known as the Charter of 1753 was issued to modify the
Charter of 1726 but even this Charter did not contain significant provisions for legal
training and legal education of legal practitioner and thus, even after this Charter the
legal profession was not organised.
The Regulating Act, 1773 and the Charter of 1774 contributed much to the
development on legal profession in India. 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
provisions of the Charter of 1753 and resulted in the abolition of the Mayor's Court at
Calcutta. In 1801 the Supreme Court was established at Madras and in 1823 the
Supreme Court was established at Bombay by the British Crown by issuing Charters.
 Clause 11 of the Charter 1774 empowered the Supreme Court to approve and
enroll advocates and attorneys-at-law. The Supreme Court had power to remove any
advocates or attorney on reasonable cause. They were to be Attorneys of Record.
They were authorized to appear and plead and act for the suitors of the Supreme
Court. This clause made it clear that no other persons but advocates or attorneys
so admitted and enrolled could appear and plead or act in the Supreme Court for
or on behalf of such suitors or any of them. The term "Advocate" then extended
only to English and Irish Barristers and members of the Faculty of Advocates in
Scotland and the term "Attorneys" then meant only the British attorneys or
solicitor.
Thus, the Indian Legal Practitioners were not authorised to appear before the
Supreme Court. Similar provision was made in respect of Bombay and Madras when
the Supreme Court was established there. In the Supreme Court at Bombay and
Madras also only British Barristers, advocates and attorneys were eligible for
enrolment and, thus, the Indian Legal Practitioners were not authorised to appear
before the Supreme Court at Bombay and Madras.
As regards the legal profession in the Company's Courts, it may be concluded
that it was not organised.
Before the rise of the British power in , India the administration of justice in
Northern India was in the hands of the Courts established by the Moghul Emperor or
ruling chiefs owing allegiance to the Moghul. Emperor.
In addition, the big Zamindars also had Courts exercising both civil and
criminal jurisdiction. There existed a class of persons called vakils. The vakils
acted more as agents for principals than as lawyers. The legal profession was not
organised. The vakil practising before the Moghul Courts appeared in the Courts of
the East India Company. The Bengal Regulation VII of 1793 created for the first time
a regular legal profession for the Company's Courts. The Regulation authorised the
Sadar Diwani Adalat to enroll pleaders for the Company's Courts. Under this
regulation only Hindus and Muslims could be enrolled as pleaders. Bengal Regulation
XXVJI of 1814 also made provisions in order to organise the legal profession. Bengal
Regulation XII of 1833 modified the provisions of the earlier Regulations regarding
the appointment of the pleaders. It permitted any qualified person of whatever
nationality or religion to be enrolled as a pleader of the Sadar Diwani Adalat. The
Legal Practitioners Act, 1846 made provisions that the people of any nationality or
religion would be eligible to be Pleaders and Attorneys and Barristers enrolled in any
of Her Majesty's Courts in India and would be eligible to plead in the Company's
Sadar Adalats. The Legal Practitioners Act, 1853 authorised the Barristers and
attorneys of the Supreme Court to plead in any of the Company's Courts subordinate
to the Sadar Courts subject to rules in force in the said subordinate Courts as regard
language or otherwise.
The Indian High Courts Act, 1861, occupies an important place in the
development of the judicial administration in India. It empowered 'the British Crown
to establish one High Court in each Presidency Town. In the exercise of this power the
British Crown issued the Charters to establish the High Courts. After the
establishment of the High Courts, the Civil Courts were organised in Bengal, Assam
and North-Western Provinces by the Bengal, Agra and Assam Civil Courts Act, 1887.
Subsequently, the Courts were organised in other Provinces also. The Criminal Courts
were organised properly by the Criminal Procedure Code of 1898. The High Courts
were empowered to exercise the power of superintendence over the Criminal and Civil
Courts in Mufussil.
The Letter Patent of 1865 made provision in respect of the enrolment of the
legal practitioners. The High Court of Judicature at Fort William in Bengal was
empowered to approve, admit and enroll such advocates and so many advocates, vakil
and attorneys as to the said High Court shall deem fit. Such advocates, vakil and
attorneys could appear for the suitors of the said High Court and to plead or to act or
to plead and act for the said suitors according to, as the said High Court might, by its
rules and directions, determine and subject to such rules and directions. The High
Courts not established by the Royal Charters were empowered by the Legal
Practitioners Act, 1879 to make rules as to the qualifications and admission of proper
persons to be advocates of the Court. Such High Courts were to make such rules with
the previous sanction of the Provincial Government. In 1866 the Chief Court of
Punjab was established at Lahore. Section 10 of the Punjab Chief Court Act, 1866 laid
down qualifications of those who were permitted to appear and act as pleaders in the
Chief Court. After some years this was repealed.

Legal Practitioners Act, 1879

In 1879, the Legal Practitioners Act was passed to consolidate and amend the
law relating to the 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 practise
in all the Courts subordinate to the Court on the role of which he was entered.
The Legal Practitioners Act, 1879, authorised the High Court not established under a
Royal Charter to make rules with the previous sanction of the Provincial Government
as to the qualification and admission of proper persons to be pleaders and Mukhtars of
the High Court. The Chartered High Courts framed rules. According to the rules
framed by such High Courts apart from attorneys, there were advocates and vakils.
Advocates were to be the barristers of England or Ireland or Members of the Faculty
of Advocates of Scotland. The High Courts other the High Court of Calcutta allowed
even non-Barristers to be enrolled as Advocates under certain circumstances, e.g., in
Bombay law graduates of the Bombay University could be enrolled as advocates.
There  were  six  grades  of  legal  practice  in  India  after  the  founding  of  the  High 
Courts – a) Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) 
Mukhtars, f) Revenue Agents.  The Legal Practitioners Act of 1879 in fact brought all the 
six grades of the profession into one system under the jurisdiction of the High Courts.
The vakils were to be the persons who had taken the law degree from an
Indian University and fulfilled certain other conditions. As regards the non-
Chartered High Courts there were, advocates, pleaders and mukhtars. The Pleaders
and Mukhtars were the Indian Lawyers but Advocates were to be the Barristers.
The High Courts were empowered to make rules as to the 'qualification and admission
of the proper persons to be pleaders and mukhtars of the subordinate Courts.
Under the Legal Practitioners Act, 1879 the term "legal practitioner" has been
taken to mean advocate, vakil or attorney of a High Court and pleader. Mukhtar or
revenue agent. All these were brought under the jurisdiction of the High Court.
According to section 4 of the Legal Practitioners Act, 1879 every person now or after
entered as an advocate or vakil on the roll of any High Court under the Letters 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 practise in all
the Courts subordinate to the Court on the role of which he is entitled and in all
revenue offices situate within the local limits of the appellate jurisdiction of such
Court, subject 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 practises in the Court on role of which he is entered or some Court
subordinate thereto shall, notwithstanding anything therein contained, he is entitled, as
such, to practise in any Court in the territories to which this Act extends other than a
High Court on which 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 Council Act, 1926, is in
force subject to rules made under that Act in any High Court on which roll he is not
entered and in any revenue office : Provided that no such Vakil or pleader shall be
entitled to practise 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 practise in all the Courts subordinate
to such High Court and in all revenue offices situate within the local limits of the
appellate jurisdiction of such High Court.
Section 6 of the Act empowered the High Court to make rules consistent with
this Act as to suspension and dismissal of pleaders and mukhtars. Section 7 of the Act
made provisions in respect of issue of certificates to the pleaders and mukhtars.
Section 8 empowered the pleaders to practise in Court and revenue offices after
enrolment. Section 9 of the Act empowered the mukhtars to practise in the Courts
after enrolment. Section 12 of the Act empowered the High Court to suspend or
dismiss any pleader or mukhtar holding a certificate issued under section 7 of the Act
if he was convicted of any criminal offence implying a defect of character which unfit
him to be pleader or mu tar, as the case may be.
Professional Misconduct
 Section 1 of the Act empowered the High Court to suspend or dismiss pleader
or mukhtar guilty of unprofessional conduct. According to Section 13 "the High Court
may also, after such, inquiry as it thinks fit, suspend or dismiss any pleader or
mukhtar holding a certificate as aforesaid-
a) who takes instruction in any case except from the party on whose'
behalf he is retained or some person who is the recognised agent of such
party within the meaning of the Code of Civil Procedure or some servant,
relative or person authorised by the party to give such instructions; or
b) who is guilty of fraudulent or grossly improper conduct in the discharge
of his professional duty ; or
c) who tenders, gives or consents to the retention out of any fee paid or
payable to him for his services or any gratification for processing or having
processed the employment in any legal business of himself or any other
pleader or mukhtar, or
d) who directly or indirectly, procures or attempt to procure the
employment of himself as such pleader or mukhtar, through or by the
intervention of any person to whom any remuneration for obtaining such
employment has been given by him or agreed or promised to be so given ;
or
e) who accepts any employment in any legal business through a person who
has been proclaimed as a tout under section 36 ; or
f) for any other reasonable cause.
Section 14 of the Act made provisions in respect of the procedure when charge
of unprofessional -conduct was brought in subordinate Court or revenue office.
Section 17 of the Act empowered the Chief Controlling Revenue Authority to
make rules consistent with this Act as to the qualification, suspension, dismissal, etc.
of the revenue agent.

Indian Bar Committee, 1923

In 1923 a Committee called the Indian Bar Committee was constituted under
the Chairmanship of Sir Edward Chamier. 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 and establishing an 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 fulfilment 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 action against a lawyer. The High Court should be given
disciplinary power but before taking any action, it should refer the case to the Bar
Council for enquiry and report.

Indian Bar Councils Act, 1926

In 1926 the Indian Bar Councils Act was enacted to give effect to the some of
the recommendations of the Indian Bar Committee, 1923 (stated above). 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 Councils and also to
consolidate and amend the law relating to the legal practitioners of such courts. The
Act made provision for the establishment of a Bar Council for every High Court.
Every Bar Council was to consist of 15 members. Four of such members were to be
nominated by the High Courts 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 High Court had power of enrolment of Advocates and
the function of the Bar Council was advisory in nature. The rules made by the Bar
Council were to be effective only on the approval of the High Court.
The Calcutta High Court and Bombay High Court permitted non-Barrister
Advocate to -practise on the original sides. The distinction between barristers and
advocates, thus, was abolished. However, no advocate (whether barrister or not) was
permitted to act on the original side, but he could appear and plead only on the
instruction of the attorney on record.
 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 when it
found him guilty of professional or other misconduct. Section 10 of the Bar Council
Act, 1926, provided "upon receipt of a complaint made to it by any Court or by the
Bar Council or by any other person that any such advocate has been guilty of
misconduct, the High Court shall, if it does not summarily reject the complaint, refer
the case for inquiry either to the Bar Councilor after consultation with. the Bar
Council to the Court of a District Judge and may of its own motion so refer any case
in which it has otherwise reason to believe that any such Advocate has been so
guilty."

4. Legal Profession after Independence:

All India Bar Committee, 1951
The Indian Bar Council Ad, 1926 (stated above) failed to satisfy the Bar.
The pleaders and Mukhtars practising in the Mufussil Courts were not within its
scope. The Bar Councils were not given any significant power. They were only
advisory bodies. In 1951 a committee known as the All India Bar Committee was
appointed under the Chairmanship of Justice S.R. 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 powers of
enrolment, suspension and removal of advocates should be vested in the Bar Councils.
It also recommended that there should be a common role of Advocates who should be
authorised to practise in all Courts in the country. The Fifth Law Commission in its
Fourteenth report submitted in 1958, recommended for establishment of a United all
India Bar. The Commission favoured 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 in to senior
advocates and advocates.

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 an All India Bar. 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.
Section 2 of the Advocates Act 1961, defines certain terms. It provides that,
unless the context otherwise requires-
(1) advocate means an advocate entered in any role under the provisions of this'
Act;
(2) 'appointed day' in relation to any provision of this Act, means the day on
which the provision comes into force;
(3) 'Bar Council' means a Bar Council constituted under this Act.
(4) 'Bar Council of India' means the Bar Council constituted under section 4 for
the territories to which this Act extends;
(5) 'High Court', except in sub-section (1) and sub-section (I-A) of section 34
and in sections 42 and 43 does not include a Court of the Judicial Commissioner and
in relation to a Stat~ Bar Council, means-
(i) in the case of a Bar Council constituted for a State or for a State and one or
more Union Territories, the High Court for the State;
(ii) in the case of the Bar Council constituted for Delhi, the High Court of
Delhi.
(6) 'law graduate' means a person who has obtained a bachelor's degree in law
from any University established by law in India.
(7) 'Legal practitioner' means an advocate or vakil of any High Court, a
pleader, mukhtar or revenue agent.
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 the departmental proceedings.
The Advocates Act makes provision for the establishment of the State Bar
Council and Bar Council of India. The main functions of the Bar Council of
India are to lay down the standards of professional conduct and etiquette for
advocates, to lay down the procedure to be followed by its disciplinary
committee, to safeguard the rights, privileges and interest of advocates, to
promote and support law reform, to promote legal education, to recognise
Universities which degree in law shall be a qualification for enrolment as an
advocate, to conduct seminars, etc. It provides for two classes of advocates,
senior advocates and other advocates. The State Bar Council are required to
maintain role of advocates and to send copies of rolls of advocates to the Bar
Council of India. The Act contains exhaustive provisions relating to enrolment
and admission of advocates, rights of advocate, punishment for professional and
other misconduct, etc. These provisions have been discussed exhaustively in the
subsequent chapters.