Introduction

The legal profession is an important branch of the administration of justice

mechanism. Without a well-organized legal profession, the courts would not be in a
position to administer justice effectively, as the evidence for or against the parties to a
lawsuit cannot be adequately gathered, the facts cannot be adequately expressed, and
the best legal arguments in support of or against the case of the parties cannot be
presented in court. Although it has a federal structure, the distinctive character of
India according to Constitution has an effect on the country to have a merged bar. The
pre-constitutional legal framework had to go through a modification in the scene of
the struggle of the people of India to achieve their liberation from the colonial rulers
and the eventual takeover of a Democratic-Republican Constitution.
The Indian legal profession is one of the most widespread in the world, with more
than 1.4 million registered lawyers across the country. The approximate total value of
the Indian legal market as of 2020 was approximately USD 1.25 billion. The legal
profession, which developed out of colonial India, has seen great variation since its
independence. The hard work of the members of the bar to achieve excellence in all
areas of their practice through rigid competition is not only evident in each of their
confrontations with new challenges due to technological and other growth, but also in
the recognition received by them in the world. Historically, members of the bar
association have offered guidance both nationally and internationally. Today the
possibilities are much greater.
History of the legal profession in India
The history of the legal profession in India can be traced back to the establishment of
the First British Court in Bombay in the year 1672 by the respective Governor Aungier.
Admissions of attorneys were placed in the hands of the Governor in Council and not in
Court. Before the establishment of the Greater Courts in 1726 in Madras and Calcutta,
there were no legal experts in India. There was no established legal profession until the
establishment of the Mayor’s Court. Lawyers lacked legal training, and some of the
mayor’s court officials were dismissed servants of the British East India Company.
There were some years that played an important role in the creation of courts in India.
The legal profession in ancient India
In ancient India, people lived in small groups. The heads of these groups or tribes
pronounced justice in public before all members. Arguments were presented openly.
In those days, there were no specialists like lawyers. When kings established
themselves in society, they dispensed justice. At the royal court, the king was advised
by his advisors. The law of those days had its roots in Hindu religion and customs.
Dharma was protected by the king. Though there were no bar associations, some
intellectuals ensured justice. From the stories of Maryada and Vikramaditya, who were
the sage who solved the critical cases of those days. In those days, justice was
administered by administrators. For a time, religious leaders dominated society in the
administration of justice. In those days, the victim filed a complaint with the king and
later the court summoned the accused to present his response. The court then
investigated the matter based on the evidence. The king followed the advice of the
religious leaders and wise courtiers and then passed his sentence.
The legal profession in medieval India
During the medieval period, there has been no group of the criminal profession. But
each event to the litigation called their Vakils. This frame comes to a decision the case
and that they have been paid a percentage of the quantity of the claim. The Court has
the authority to determine who needs to be allowed to seem as Vakils. They act as
agents for the directors, however now no longer as attorneys. The identical device
persevered in northern India even beneath neath the guideline of thumb of the East
India Company.
The legal profession in British India
During the British period, the current legal system evolved in India. Before 1726, the
courts derived their authority now no longer from the British crown however from the
East India Company.
Mayors court
In the Charter of 1726, which established the Courts of the Mayor’s Office in the three
cities of the Presidency, no specific provision was made that established particular
requirements for the persons who would have the right to act or advocate as lawyers
in these courts. Presumably, these courts were left to regulate this matter by rules of
practice that these courts were authorized to frame. No change was made to this
position when a new Charter was issued in 1753. No organized legal profession
emerged in the Presidential Cities during the period of the court of the Mayor. Those
who practiced law lacked legal training or legal knowledge. They had adopted the
profession for want of something better to do. Many of these alleged attorneys were
dismissed employees of the Company.
Madras and Bombay regulations
Madras Regulation X of 1802 literally copied Bengal Regulation VII of 1793 with minor
verbal attractions. One notable difference is that the plaintiffs were allowed to
stipulate more, but not less, than the regulatory fee they were paid. Madras
Regulation XIV of 1816 was inspired by Bengal Regulation XXVII of 1814. It provided
some decentralization of the powers of the courts over Vakils. In Bombay, Regulation
XIV of 1802 was a consolidating regulation based entirely on the Bengal regulation
verbatim with minor variations here and there. Further consolidation of the
regulations relating to lawyers was affected by Regulation I of 1827, which repealed all
previous Regulations on the subject. The Regulations went far beyond the Bengal
regulations, for example, every duly qualified person had the right to obtain sand to
practice without any admitted reference to practice in court, and henceforth any
qualified person of good character was promulgated between the Vakil and the client
was recognized and a lawyer could agree with his client a higher or lower rate than the
established rate.
Mukhtars, and Revenue Agents
For an extended time, unlicensed decrease grades of practitioners functioned
withinside the mofussil, called mukhtars, who practiced in criminal courts and acted as
legal professionals for the leaders. There also are appearing revenue sellers in sales
workplaces. All of those had been identified and taken beneath neath the
management of the courts for the primary time via Act XX of 1865, Mukhtar and
Revenue Agents. The Superior Courts had been legal to dictate the guidelines for the
qualifications, admission, and registration of the proper persons be the leader,
Mukhtars, for the charge to be paid for the exam, admission, and registration. Tax
sellers operating in tax places of work and courts additionally obtained the fame of
legal professionals beneath neath this law. They had been taken into consideration to
be the bottom grade and did now no longer play a vast function withinside the
improvement of the legal profession.
Development of legal profession in India after Independence
In 1951, the All-India Bar Committee was formed under the chairmanship of Justice
S.R. Das. In its report, the committee recommended the establishment of an All-India
Bar Council and State Bar Councils. It recommended the powers of registration,
suspension, or dismissal of the lawyers of the Bar Association. He recommended that
the common role of defenders is maintained and that they be authorized to practice in
all the country’s courts. Furthermore, it recommended that no more lawyers or
undergraduate mukhtars be hired. The Fifth Law Commission of India made similar
recommendations in its fourteenth report.
Advocate’s Act,1961
The Advocate’s Act of 1961 amended and mixed the regulation referring to criminal
experts and gave for the charter of the State Bar Councils and an All-India Bar
Association, the Bar Council of India as its principal body. The Indian Council of Lawyers
includes the Attorney General of India and the Attorney General of India as Ex-Officio
individuals, in addition to an elected member from every State Bar Council. The
contributors of the State Bar Councils are elected for a duration of 5 years. Some
distinguished functions of the Bar Council of India are:
(1) Establish requirements of expert behaviour and courtesy for defenders;
(2) Establish the mechanism to be observed via way of means of your healing
committee.
(3) Promote and help criminal reform.
(4) Updating criminal schooling and enjoyable the requirements of such information in
discussions with the Indian universities that transmit such schooling and the Councils
of the State Bar Association.
(5) Adjust criminal help to the bad withinside the prescribed manner;
(6) Recognize on a reciprocal foundation overseas qualification in regulation received
out of doors of India at the grounds of admission as suggest in India.
The Indian Bar Association is chaired via way of means of a President and Vice
President, who’re decided on from the council contributors for a duration of years.
Each of the states of India has a State Bar Council. Each of the State Bar Councils has a
specific range of contributors relying upon the numerical power of the legal
professionals on their lists, who’re elected as contributors of the State Bar council
consistent with the proportional illustration system.

Legal education
The Indian Bar Association is responsible for the promotion of legal education and sets
the standards of legal knowledge in consultation with the universities. The Bar
Association accepts legal education centers and also prescribes various types and
standards of courses of study, admission capacity, infrastructure demands, and course
structures.
The Bar Association also visits and audits these legal education centers as part of its
statutory functions. The Bar Association was also responsible for driving the next level
of evolution in legal knowledge in the country by establishing the first National
University of India Law School in Bangalore. The inception of this premier law school
has brought about a paradigm shift in law teaching and research.

Bar Council of India trust

The Bar Council of India Trust is a charitable public trust aimed at further legal research
and education. The Trust produces a quarterly publication known as the “Indian Bar
Review”. It also runs a national moot court competition and a variety of seminars and
workshops as part of its ongoing Legal Education Program. A scholarship and
placement scheme for young attorneys was initiated in order to provide financial
assistance to the best candidates, which is being followed by the trust.

Conclusion
The Advocate’s Act of 1961 ushered in a new era in the history of the legal profession
by conferring to a large extent on bar boards the power and jurisdiction previously
exercised by the courts. It has fulfilled the aspirations of those who had been
demanding an All-India Bar Association and effecting a unification of the Bar
Association in India by creating a single class of practitioners empowered to practice in
all courts. They are now subject to the rules established in the code of conduct
established by their own bodies to which members can turn for the protection of their
rights, interests, and privileges.
Therefore, the legal profession can play a fundamental role in the defence of individual
rights and in the effective dissemination of justice, while acting as an integrating force
in national life. It is now part of the modern legal system that provides both the
personnel and the techniques for efficient rational utility. The responsibility of this
profession towards Indian society is really great, as has been its history.
However, not all that glitters is gold. The responsibility that the Indian Bar Association
has to society and the challenge it faces today testify that the Indian Bar Association
has not risen to the level to fulfill its functions. The highest obligation is to provide free
legal aid to the “destitute and oppressed.” This obligation is subject to the limits of the
economic condition of the lawyer. But we know that even superstar attorneys whose
financial conditions are exceedingly prosperous even summarily refuse to see an
indigent person in dire need of legal assistance. Most high-profile attorneys steer clear
of state legal aid programs. Unless the bar leaders do some introspection and put the
profession back on the rails, all we are left with is an occupation and not a profession.

Topic 2 : Professional ethics

Professional ethics encompasses an ethical code governing the conduct of persons engaged in the
practice of law as well as persons engaged in the legal sector.   All members of the legal profession
have a paramount duty to the court and towards the administration of justice. This duty prevail over
all other duties, especially in the circumstances where there may be a conflict of duties. It is
important that legal practitioners conduct themselves with integrity, provide proper assistance to the
court, and promote public confidence in the legal system. In carrying out their duties, they are
required and expected to deal with other members of the legal profession with courtesy and
integrity.[1] Advocates, apart from being professionals, are also officers of the court and play a vital
role in the administration of justice.
Accordingly, the set of rules that govern their professional conduct arise out of the duties that they
owe to the court, the client, their opponents and other advocates. Rules on the professional
standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council
of India Rules. These Rules have been provided under section 49(1)(c) of the Advocates Act, 1961.

 Rules on an advocate’s duty towards the Court

 Act in a dignified manner
An advocate must behave in a dignified manner during the time of his case as well as while acting
before the court. He should conduct himself with self-respect. Whenever there is a ground for
complaint against a judicial officer, the advocate has a duty to submit his grievance to the concerned
authorities.
 Respect the Court
The advocate must show his respect towards the Court. He/she has to keep in mind that the dignity
and respect towards the judicial officer are essential for the survival of a free community.
 No communication in private
The advocate should not communicate with the judicial officer in private regarding any matter
pending before the court. The advocate should not influence the decision of a court in any matter
through illegal or improper acts such as coercion, bribe, etc.
 Refusal to act in an illegal manner towards the opposition
An advocate should not act in an illegal manner towards the opposing counsel or opposite party. He
should use his best effort to restrain his client from acting an illegal, improper manner or perform any
unfair practice towards the judiciary, opposing counsel or opposing party.
 Refusal to represent clients who insist on any unfair means of
practice
An advocate shall refuse to represent the client who insists on using unfair or improper means. He
shall be dignified in using his language in correspondence and arguments in the court. He shall not
scandalously damage the reputation of the parties on false grounds during the pleadings.
 Appear in proper dress code
The advocate should be present at all times in the court only in the proper dress code prescribed by
the Bar Council of India Rules, and the dress code must be presentable.
 Not represent the establishment of which he is a member
An advocate should not appear in the court, for or against any establishment in which he is a
member. But this rule does not apply in the case of appointment as an ‘Amicus Curiae’ or without a
fee on behalf of the Bar Council.
 Not appear in matters with pecuniary interest
 The advocate should not act on behalf of any matter in which he has a financial interest. He should
not accept a brief from a company in which he is a Director.
 Not stand as surety for the clients
The advocate should not stand as a surety for his client, or certify the soundness of a surety that his
client requires for the purpose of any legal proceedings.

Advocate’s duties towards his client

  Bound to accept briefs.
 Not withdraw from service.
 Not appear in matters in which he is a witness.
 Full and frank disclosure to the client.
 Uphold interest of the client.
 Not suppress any material of evidence.
 Not disclose any information of his client and himself.
 Not receive any interest in actionable claim.
 Not charge depending on the success of matters..
 Keep proper accounts etc.


Advocate’s duty towards his opponent counsel

 Not to negotiate directly with opposing party
The advocate should not in any way directly communicate with the opposing party regarding any
matter of the case except through the advocate representing the party.
 Carry out legitimate promises made
The advocate should make best of all possible legitimate promises made to his party, even though
not reduced to writing under the rules of the Court.

Other duties include

 Not advertise or solicit work.
 Sign board and nameplate must be of reasonable size.
 Not promote an unauthorized practice of law.
 Obtain the consent of the fellow advocates for vakalat in the same case.[2]


Advantages of having codified professional ethics

 Means of social control. It will keep up with the new perspectives brought to the
profession according to the social requirements and expectations. The dignity of the
profession will be required to be maintained in order to retain the confidence of the public
in it.
 Ethical codes prevent interference of government in such matters through its agencies. If a
degree of standardization is needed, it will keep Governmental interference outside.
 Ethical codes are important in developing higher standards of conduct. The code also
brings about a sense of judgment towards the profession
 The existence of the code will have great educative, corrective and appreciable value for
both the lawyers and the common men.[3]


Authority Concerned
 State Bar Council and its Disciplinary Committee
Section 35 of the Advocates Act deals with the provisions regarding formulation and functioning of
Disciplinary Committee under the State Bar Council. Under this, if any legal practitioner is found guilty
of any professional misconduct, after providing an opportunity of being heard may make any of the
following orders:
 Dismiss the complaint or where the proceedings were initiated at the instance of the State
Bar Council, direct that the proceedings be filed;
 Reprimand the advocate;
 Suspend the advocate for a period as it may deem fit;
 Remove the name of the advocate from the State roll of advocates.
In the case of Nortanmal Chauaisia v. M.R. Murli[4], the Supreme Court held that the term
Misconduct had not been defined under the Advocates Act. But the term envisages a breach of
discipline, although it would not be possible to lay down what would lead to misconduct or
indiscipline, which is wide enough to include wrongful act or omission, whether done intentionally or
unintentionally. It also means improper behaviour, intentional wrongdoing or deliberate violation of
a rule of the standard of behaviour.

Conclusion
Professional ethics can also be stated as the duties that have to be followed by an advocate during his
profession. These are moral duties and the very basic courtesy which every person in this field should
know. An advocate who does not work with sincerity and does not follow the rules of conduct is said
to have violated the code of ethics of this profession. The fundamental aim of legal ethics is to
maintain honor and dignity of the legal profession to ensure the spirit of friendly co-operation,
honorable and fair dealing of the counsel with his clients as well as to secure the responsibilities of
the lawyers towards the society.
Topic 3 BAR COUNCIL

The Advocate Act, 1961, has made provisions for the establishment of Bar Councils.
The Bar Council will be two patterns - Bar Council of India and State Bar Council.  Under
Section 3 of the Act State Bar Council will be established. However, Under Section 4, a
Bar Council of India will be established.

State Bar Councils :  

(1) There shall be a Bar Council — 

      (a) for each of States of Andhra Pradesh, Bihar, Gujarat, Jammu and Kashmir,
Jharkhand Madhya Pradesh, Chhattisgarh, Karnataka, Orissa, Rajasthan Uttar Pradesh
and Uttaranchal, 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, Tripura, Mizoram and Arunachal Pradesh.

      (c) for the State of Kerala and  the Union territory of Lakshadweep, to be known as
the Bar Council of Kerala; 

      (cc) for the State of Tamil Nadu and the Union territory of Pondicherry to be known
as the Bar Council of Madras;

      (ccc) for the States 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; 

        (d) for the States of Punjab and Haryana, and the Union territory of Chandigarh, to
be known as the Bar Council of Punjab and Haryana; 
        (dd) for the State of Himachal Pradesh, to be known as the Bar Council of
Himachal Pradesh;  

          (e) for the State of West Bengal and the Union territory of Andaman and Nicobar
Islands, to be known as the Bar Council of West Bengal; and 

           (f) for the Union territory of Delhi, to be known as the Bar Council of Delhi. 

(2) 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, Manipur,
Meghalaya, Nagaland and Tripura, ex officio; in the case of the State Bar Council of
Punjab and Haryana, the Advocate-General of each of the State of Punjab and
Haryana, ex officio; and in the case of any other State Bar Council, the Advocate-
General of the State, ex officio; 

         (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 the 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: 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).

 Term of Office of the Members of State Bar Council :  Section 8 Provides term of the
office of the Members of the State Bar Council -
             
        The term of office of an elected member of a State Bar Council (other than an
elected member thereof referred to in section 54) shall be five years from the date of
publication of the result of his election: 

         Provided that where a State Bar Council fails to provide for the election of its
member before the expiry of the said term, the Bar Council of India may, by order for
reasons to be recorded in writing, extend the said term, the Bar Council of India may,
by order, extend the said term for a period not exceeding six months.

Powers and functions of State Bar Council are as under  

 Functions of State Bar Council :

                                   
   a) General functions - 

Section 6(1) of the Advocate Act 1961 makes provisions in respect of the functions of
the State Bar Council. 
Functions of State Bar Councils
       (1) to admit persons as advocates on its roll; 
        (2) to prepare and maintain such roll; 
        (3) to entertain and determine cases of misconduct against advocates on its roll; 
        (4) to safeguard the rights, privileges and interests of advocates on its roll; 
        (5) to promote the growth of Bar Associations for the purposes of effective
implementation of the welfare schemes referred to in clause (a) of sub-section (2) of
this section clause (a) of sub-section (2) of section 7;
        (6) to promote and support law reform; 
        (7) to conduct seminars and organise talks on legal topics by eminent jurists and
publish journals and paper of legal interest; 
         (8) to organise legal aid to the poor in the prescribed manner; 
         (9) to manage and invest the funds of the Bar Council; 
        (10) to provide for the election of its members; 
        (11) to visit and inspect Universities in accordance with the directions given under
clause (i) of sub-section (1) of section 7; 
        (12) to perform all other functions conferred on it by or under this Act; (i) to do all
other things necessary for discharging the aforesaid functions. 

 A State Bar Council may constitute one or more funds in the prescribed manner for
the purpose of— 

        (a) giving financial assistance to organise welfare schemes for the indigent,
disabled or other advocates; 
        (b) giving legal aid or advice in accordance with the rules made in this behalf; 
        (c) establishing law libraries.

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 sub-section.

   b) To Issue Certificates of Enrollment -

Section 22 of Advocate Act 1961 provides that, There shall be issued a certificate of
enrollment in the prescribed form by the State Bar Council to every person whose
name is entered in the roll of advocates maintained by it under this Act.
       Every person whose name is so entered in the State roll shall notify any change in
the place of his permanent residence to the State Bar Council concerned within ninety
days of such change.

Admission as an Advocate on a State Roll - 

       A person may be enrolled as an advocate by the State Bar Council if he fulfills the
Conditions required for admission as an advocate Under section 24 of the Advocate
Act, 1961. Conditions laid down in this section for admission as an advocate, may be
enrolled as an advocate by the State Bar Council, namely : 

     a) He is a citizen of India.

     b) He has completed the age of twenty-one years. 

    
     c) He has obtained the degree of Law.

     d) He fulfills such other conditions as may be specified in the rules made by the
State Bar Council.  

     e) He has paid, in respect of enrollment, stamp duty, and an enrollment fee payable
to State Bar Council.

          An application for enrollment shall be made in the prescribed form to the State
Bar Council within whose jurisdiction the applicant proposes to practice. The
application is referred to enrollment Committee of State Bar Council. The application
may be allowed or rejected. Where the Enrollment Committee of Bar Council propose
to refuse any such application, it shall refer such application for the opinion of the Bar
Council of India. 

         It may be noted that Section 26A of Advocate Act empowers a State Bar Council
by amendment of 1973 to remove from the State Roll the name of any Advocate who
is dead or from whom a request has been received to that effect.

 Section 27 of The Act Provides that where an application has been once refused, it
cannot be entertained by another Bar Council except in certain circumstances. It lays
down that where a State Bar Council has refused the application of any person for
admission as an advocate on its roll, no other State Bar Council shall entertain an
application for admission of such person as an advocate on its roll, except with the
previous consent in writing of the State Bar Council which refused the application and
of the Bar Council of India.

          c) To Maintain Roll of Advocates -

  Section 17. of Advocate Act, 1961 provides that every State Bar Council shall prepare
and maintain a roll of advocates in which shall be entered the names and addresses of
all persons who were entered as advocates on the roll of any High Court under the
Indian Bar Councils Act, 1926, immediately before the appointed day including
persons, being citizens of India, who before the 15th day of August, 1947, were
enrolled as advocates under the said Act in any area which before the said date was
comprised within India as defined in the Government of India Act, 1935, and who at
any time express an intention in the prescribed manner to practice within the
jurisdiction of the Bar Council also enroll  all other persons who are admitted to be
advocates on the roll of the State Bar Council under this Act on or after the appointed
date.
 Each such roll of advocates shall consist of two parts - the first part containing the
names of senior advocates and the second part, the names of other advocates. 

Section 19 of the Advocate Act, 1961, requires the State Bar Council to send copies of
rolls of advocates to the Bar Council of India. It provides that every State Bar Council
shall send to the Bar Council of India an authenticated copy of the roll of advocates
prepared by it for the first time under this Act and shall thereafter communicate to the
Bar Council of India all alterations in, the additions to, any such roll, as soon as the
same have been made.

Powers of State Bar Council 

     a) Power to make rules 

               
               The State Bar Council has been empowered to make rules to carry on the
purposes of section 16 to Section 27 of the Advocate Act, 196, dealing with the
admission and enrollment of advocate, Section 28(1) provides that the State Bar
Council may make rules to carry out the purposes of chapter III (Section 16 to section
28) of the Act but this rules shall not effective unless approved by Bar Council of India.
     
     b) Power to punish Advocate 

                  The State Bar Council has Power to punish an advocate for professional
misconduct and other misconduct. The Disciplinary Committee of the State Bar Council
may make any of the following order -
   
               (a)dismiss the complaint or, where the proceedings were initiated at the
instance of the State Bar Council, direct that the proceedings be filed;

               (b) reprimand the advocate;

               (c) suspend the advocate from practice for such period as it may deem fit;

              (d) remove the name of the advocate from the State roll of advocates.

     c) To appoint Committees and Staff Members 

                 A bar Council establishes several committees to its function under this Act
including the disciplinary committee, Executive Committee, Enrollment Committee,
etc. Every such committee is allotted a distinct function to carry.
     d) To Maintain Accounts and Conduct Audit    

Section 12. of Advocate Act 1961 provides that every Bar Council shall cause to be
maintained such books of accounts and other books in such form and in such manner
as may be prescribed. The accounts of a Bar Council shall be audited by auditors duly
qualified to act as auditors of companies under the Companies Act, 1956 (1 of 1956), at
such times and in such manner as may be prescribed. A State Bar Council shall send a
copy of its accounts together with a copy of the report of the auditors thereon to the
Central Government and shall cause the same to be published in the Gazette of India

Bar council of india

The Bar Council of India (BCI) is a statutory body that regulates and represents the
Indian Bar. It was established under section 4 of the Advocates Act, 1961. The
headquarter of BCI is in New Delhi. It is headed by the Chairman and Vice-Chairman.
The present Chairman and Vice-Chairman are Manan Kumar Mishra and Satish A.
Deshmukh respectively.

BCI was made to prescribe a standard of professional conduct, etiquette and exercise
disciplinary jurisdiction. BCI additionally sets standards for legal education and gives
recognition to Universities whose degree in law fills in as a qualification for students to
enrol themselves as advocates after graduation.

BCI comes under the domain of Ministry of Law and Justice, Government of India and it
is a corporate body having an interminable succession and a common seal. The BCI has
constituted a few committees, for example, the Education Committee, the Disciplinary
Committee, the Executive Committee, the Legal Aid Committee, the Advocates Welfare
Fund Committee, the Rules Committee, and different Committees framed to look after
the explicit issues emerging every once in a while.

Formation of BCI

The need for All India Bar was felt just after the enforcement of the Constitution of
India. In the annual meeting of Inter-University Board held in Madras, a resolution was
passed for the need of an All Indian Bar and it was also emphasized that there should
be uniformity in law examination conducted by different universities of the country.

In May 1950, the Madras Provincial Lawyers Conference was held under the
administration of S. Varadachariar settled that the Government of India ought to
appoint an advisory group to develop a scheme for an All India Bar and changing the
Indian Bar Council Act to acquire its congruity with the new constitution. At its
gathering held on October 1, 1950, the Bar Council of Madras embraced a resolution.

Syed Mohammed Ahmad Kazmi, a Member of Parliament, on April 12, 1951,

introduced a comprehensive bill to amend the Indian Bar Councils Act. In August 1951,
the then Law Minister proposed to set a committee of Inquiry to go into the problem
in detail. The committee was asked to prepare a report on the various aspects like the
desirability and feasibility of a unified Bar for the whole India; the establishment of a
separate Bar Council for the Supreme court; and all the related matters. This All India
Bar Committee was led by the Justice S.R. Das and had other seven members. The
committee submitted its detailed report on 30 March 1953. The report consisted of a
proposal to establish a Bar council for each state and an All India Bar Council at the
national level.

In the meantime, the Law Commission of India was assigned the job of assembling a
report on judicial administration reforms. A comprehensive Advocated Bill was
presented in the Parliament which brought about the Advocates Act, 1961 to
implement the suggestion of the All India Bar Committee and the Law Commission’s
proposals related to the legal profession. The Bar Council of India was established
under section 4 of the Advocates Act, 1961. M.C. Setalvad and C.K. Daphtary were the
first chairman and vice-chairman respectively.

It’s objectives and functions

The primary objection of BCI is to control and administer the working of all immediate
subsidiary state-level bar councils other than setting out the measures of professional
conduct and etiquette.

The statutory functions of Bar Council of India are stated under Section 7 of the
Advocate Act, 1961. Following are the functions of BCI concerning the different bodies:

1. Advocates – BCI lays down standards of professional conduct and etiquette for
advocates and BCI also safeguards the rights, privileges, and interests of advocates. 

2. State Bar Council– BCI lays down the procedure to be followed by its disciplinary
committee and the disciplinary committee of each State Bar Council. BCI deals with
and disposes of any matter arising under this Act, which may be referred to it by a
State Bar Council. BCI exercises general supervision and control over State Bar
Councils.

3. Recognition- BCI recognizes Universities whose degree in law shall be a qualification

for enrolment as an advocate and for that purpose to visit and inspect Universities. BCI
also recognizes on a reciprocal basis foreign qualification in law obtained outside India
for admission as an advocate under this Act

4. BCI promotes and supports law reforms and also gives suggestions or

recommendations.

5. Legal Education– BCI promotes legal education and lays down standards of such
education in consultation with the Universities in India imparting such education. BCI
conducts seminars and organizes talks on legal topics by eminent jurists and publishes
journals and papers of legal interest. BCI also organizes legal aid to the poor in a
prescribed manner. 

6. Funds– BCI manages and invests in the funds of the Bar Council. Through this fund
BCI gives financial assistance to organize welfare schemes for poor, disabled, or other
advocates. This fund is also used in giving legal aid and establishing law libraries. 

BCI can receive grants, donations, and gifts for any of the above-mentioned purposes.

7. Elections– BCI conducts elections regularly to elect its members who shall run the
Bar Councils.

Powers

Bar Council of India under its formation has been given powers to regulate many
things. Few major powers that BCI hold are divided amongst the committees set up by
the Advocates Act. Section 9 of the act sets up the Legal Education Committee and
under Section 10 an Executive Committee is set up. Chapter III of the Bar Council of
India Rules permits the Council to form more committees in addition to those specified
in the Act. The Council also has the power to delegate the duties or functions to these
committees.

Legal Education Committee has the power to make recommendations to the council

for laying the standard of legal education. This committee also goes for inspection to
different universities and reports to BCI.

Disciplinary Committee of BCI hears an application for revision by persons against

summary dismissal of their complaints against advocates for professional misconduct,
by the state bar councils.

Executive Committee deals with all the questions related to the management of funds,
affairs of the staff, allotment of work, audit, accounts, library, and legal publications
delegation.

Advocate Welfare Committee is empowered by the Advocates Welfare Act, 2001. This
committee looks after the application procedure made by advocates for welfare funds.
It also verifies their application and provides the fund.

Legal Aid Committee has the power to offer services to the poor, who cannot afford
the services of a lawyer. This committee gives the payment of the court from the
charges of preparing a case, drafting to filing the case.

There are other committees which look after the infrastructure of the council’s office
across the country. 

All these committees work under the BCI. BCI has the power to the discontinuance of
recognition of any University which is based on the recommendation by the Legal
Education Committee. BCI also hears every appeal which is proceeded by the
Disciplinary Committee. 

BCI has the power to conduct the All India Bar Examination (since 2010) which tests an
advocate’s ability to practice law. An advocate must pass this examination to practice
law in any court. 

BCI also conducts the National Moot Court Competition which promotes advocacy
skills amongst law students through Bar Council of India Trust (public charitable trust).
There is an Indian Bar Review which is a quarterly journal of BCI and is among the top
legal periodicals in the country.

Legal basis

Advocates Act, 1961 is the act that provides for the constitution of the Bar Councils
and an All-India Bar. Section 3 of the act talks about the State Bar Council whereas
Section 4 the act talks about the existence of Bar Council of India. Section 4 of the act
also talks about the members who will consist of structure BCI. The Attorney- General
of India and the Solicitor- General of India will be ex officio.  It also talks about that
there will be one representative from each State Bar Council. 

Section 5 of the act establishes that BCI will be a corporate body as there will be
perpetual succession and a common seal, and can it sue by the name which it is
known. 

Section 7 of the act mentions all the functions to be performed by BCI. An amendment
was made by Act 60 of 1973 and more functions were inserted in Section 7. Section 7
also gives power to BCI to become a member of international legal bodies, for
example, the International Bar Association. The Act in Chapter II states all about the
council through different sections. Under Chapter II, the constitution of the different
committees, the criteria of disqualification of members, a staff of Bar Council, etc. are
mentioned. 

Bar Council of India Rules also laid our rules, which were made by BCI in the exercise
of its rulemaking power under the Advocates Act, 1961. Bar Council of India Rules lays
down the procedure for the election or the termination of the members of the council.
It also specifies the powers of the chairman and vice-chairman of the council. Not only
this it also talks about the procedure of the meetings of the council or the meeting of
the committees and their reports. Chapter IV of the rules gives the qualification and
conditions of service of the secretary, accountant, and other members of the staff.

All these section and Advocates Act lays down the legal basis of BCI. 

Critical analysis

In recent times the horizon of BCI is increasing. BCI has seen the rise in legal education,
about fifty years ago the concept of the law school was very different and more of the
convention but, through the efforts of BCI and other authorities the image of legal
education right now is more practical. 

Legal education is also that field which has to fulfil the requirement of globalization.
BCI from time to time is ensuring that the standard of legal education is maintained so
that the graduates can fulfil the requirement of globalization. Hence, BCI ensures that
even paralegal education is also provided to students. Some more changes were
recommended by BCI in legal education after the 184th Report of the Law Commission
which urged the need for having subjects related to International Trade Practice,
Comparative Law, International Human Rights Law, Space Law, etc. to increase
intercontinental endeavour among students.

One of the important things to be noticed is that BCI can only recommend or suggest
things but the power of enforcement is exhaustive. 

In the pandemic time also, BCI is working for the benefit of its members. The Bar
Council of India has told the Hon’ble Supreme Court that it will be providing some
amount for the assistance to the needy lawyers amid the lockdown.

There are certain provisions in the legal field in India today which the Bar Council must
investigate, so as to protect the law standard from degradation and to keep up the
same standard.

Conclusion

The Bar Council of India has plenty of capacities vested inside itself, whereby practicing
those capacities it can rebuild and reframe the entire legal field in the nation. Indeed, it
very well may be all the more overwhelmingly visualized, that in present-day times it
has scarcely contribute valuably in the improvement of law in India. Bar Council of
India is working effectively, although there have been talks related to an increase in
the power of BCI to ensure more effective command over the law as a profession.
Meetings are held regularly to ensure the smooth functioning of BCI.

FUNCTIONS AND POWERS OF THE STATE BAR COUNCILS

Sec. 6 of the Advocates Act 1961 makes provision in respect of the function of State
Bar Council. It provides that the function of the State Bar Council shall be:-

(a) To admit persons as an advocate on its rolls

(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 interests of advocates on its roll
(e) To promote and support law reform
(f) To conduct seminars and organize talk on legal topics by jurists and publish journals
and papers of legal interests
(g) To organized legal aid to the poor in prescribed manner
(h) To manage and invest the funds of the bar council
(i) To provide for the election of its members
(j) To perform all other functions conferred on it by or under this act
(k) To do all other things necessary for discharging the aforesaid functions.

State Bar Council issues a Certificate of Enrollment in the prescribed form. Then State
Bar Council shall notify any change in the place of his permanent residence within 90
days of such change to every person whose name is entered in the state roll.

Section 48 of the advocates act makes provision in respect of indemnity against the
legal proceedings.

ADMISSION AS AN ADVOCATE ON A STATE ROLL

1. If any person fulfill the conditions or terms for admissions as an advocate, or enrolls
as an advocate under this act and under the State Bar Council, an application of
admission of shall be made in the prescribed form to the State Bar Council within
whose jurisdiction the applicant proposes to practices. Which is clearly defined under
section 24 of the Advocates Act 1961.

2. Section 26-A of the Advocate Act empowers a State Bar Council to remove from the
state roll the name of any advocate who is dead or from whom a request has been
received or that effect.

3. Section 27 of the act State Bar Council refuses the application of any person on its
roll, No other State Bar Council shall entertain an application for admissions of such
person as an advocate on its rolls, except with the previsions consent in writing of the
State Bar Council which refused the application and of the Bar Council of India. And the
state bar council is required to issue a certificate of enrollment in the prescribed form
to every person whose name is entered in the roll of advocates maintained by it under
the act.

MAINTAINS OF ROLL OF ADVOCATES

Section 17 provides every State Bar Council shall prepare and maintain a roll of
advocates in which shall be entered the name and address of:-

1. All persons who were entered as advocates on roll of any High Court under Indian
Bar Councils, 1926, immediately before the appointed day including persons being
citizens of India who before 15-8-1947, were enrolled as advocate under the said act in
any area which before the said date was comprised within India as defined in the
government of India act 1935, at any time express or entertain in the prescribed
manner to practice within the jurisdiction of the bar council.

2. All other persons who are admitted to be advocates on the roll of the State Bar
Council under this act on or after the appointed date, each such roll of advocates shall
consist of two parts, the first part containing the names of senior advocates and
second part, the names of other advocates.
RULE MAKING POWER
The State Bar Council has been empowered to make rules regarding the for the
welfare of the advocates, such rules may provide for:-

1. The time within which and form in which an advocate shall express his intention for
the entry of his name in the roll of a state bar council under section 20.

2. The form in which an application shall be made to the Bar Council for admissions as
an advocate on its roll and the manner in which such application shall be disposed of
by the enrollment committee of the bar council.

3. The conditions subject to which a person may be admitted as an advocate on any

such roll.

4. The installments in which the enrollment fee may be paid.

POWER TO PUNISH FOR PROFESSIONAL OR OTHER MISCONDUCT

State Bar Council makes any rules or provision for the professional and misconduct,
accordingly

1. Date fixed for hearing by State bar council

2. Notice to advocate General
3. Refer case to disciplinary committee
4. Opportunity of being heard
5. Decision

 Dismissal after hearing

 Reprimand the advocate
 Suspend from practice
 Removed name of advocate from the state roll
MAINTENANCE OF ACCOUNTS
Section 12 of this act provides every  Bar Council maintained books of accounts and
other books in such form and in such manner as may be prescribed. And it shall be
follow by Indian Companies Act, 1956 and it is published by Central Government.

Topic 4 Necessity of Lok Adalat and Role of Advocates

Introduction
The concept of Lok Adalats stands as a unique contribution of the Indian legal system to world legal
jurisprudence. It is an informal system of justice dispensation which has largely succeeded in
providing a supplementary forum to litigants for determination and settlement of disputes[1].
Originating from Gandhian principles by Mahatma Gandhi, it has become a major helping hand to
courts and is prescribed in Section 89 of the Code of Civil Procedure, 1908 as well[2].
The advent of Legal Services Authority Act, 1987 further gives a statutory status to these Lok Adalats,
promoting the constitutional mandate of Article 39-A of the Constitution of India, which directs the
state to organize Lok Adalats to secure that the operation of the legal system promotes justice on a
basis of equal opportunity[3]. These Lok Adalats provide three-fold benefits involving speedy
resolution of disputes coupled with reduced costs of litigation and avoiding further appeals, thereby
making them the perfect instrument to resolve the heightened burdened on judiciary for disposing
cases[4]. In 2018 alone, about 47 lakh cases were disposed of in National Lok Adalats, which included
about 21 lakh pending cases and 26 lakh pre-litigation cases[5]. Therefore, their efficacy has been a
linchpin in reducing excessive litigation[6].

Keeping in mind their contribution to Indian jurisprudence, the author shall discuss the concept of
Lok Adalats in the country, their functioning, advantages, places for improvement and their role as
functionaries towards access to justice for the poor and downtrodden.

The functioning of Lok Adalats

Level of Organization
Lok Adalats are better known as the people’s courts, therefore they need to be available to people on
every level of governance[7]. The Legal Services Authority Act, 1987 (Hereafter “the Act”) prescribes
for several levels wherein Lok Adalats can be organized, ranging from the lowest courts to the apex
court which can take cognizance and organize Lok Adalats for effective and speedy justice[8]. The
persons residing over these Adalats include serving or retired judicial officials as well as other persons
as prescribed by the authority conducting the Lok Adalats in the given area[9].

Jurisdiction
The jurisdiction of these Lok Adalats is parallel to the courts organizing them, therefore it extends to
any case or matter which is being heard by that court under its original jurisdiction[10]. Matters with
respect to offences not compoundable under law are an exception to this jurisdiction. They cannot be
adjudicated in Lok Adalats[11]. These courts may also take cognizance of cases as per provisions of
the Act for disputes agreed by the parties to be resolved under them or if one of the parties makes an
application to the courts for referring the case to Lok Adalats for settlement and the court is  prima
facie[12] satisfied that there are chances of settlement[13].

Resolution and Award

 After admission of disputes, the Lok Adalats proceed to hear the case and dispose of the matter by
reaching a settlement or compromise in an expeditious manner[14]. The manner of resolution in Lok
Adalats is more towards compromise and less towards conclusive determination[15]. In any case, if
the parties are unable to reach a compromise and the Lok Adalat deems that matter needs more
determination, it can refer the matter back to the courts for adjudication[16].

Eventually once the court is satisfied, it passes an award with respect to the dispute is final and
binding on the parties[17]. The award is enforceable as a decree of the civil court and no appeal lies
from this award[18]. Therefore, this provision ensures that the award is conclusive and the matter is
put to rest once and for all.
Advantages of Lok Adalats
The reason behind the efficiency of Lok Adalats is based on several advantages which it holds over
normal courts of law. These factors are responsible for its quick disposal of several disputes. They are:

Procedural Flexibility
There exist considerable procedural flexibility as major procedural laws such as the Code of Civil
Procedure, 1908 or the Indian Evidence Act, 1882 are not strictly enforced[19]. The parties can
interact directly through their counsels which is not possible in a regular court of law. This dynamic
nature of Lok Adalats allows them to conciliate both party interests and pass awards which are
acceptable to both parties[20].

No Court Fees
There is no court fee payable when a matter is filed in a Lok Adalat[21]. If a matter pending in the
court of law is referred to the Lok Adalat and is settled subsequently, the court fee originally paid in
the court on the complaints/petition is also refunded back to the parties[22].

Final and Binding Award

Under Section 21 of the Act, the award passed by the Lok Adalats stand final and binding. As no
appeal lies to this conclusive determination, the cases are put to rest on first instance[23].

Maintenance of Cordial Relationships

The main thrust of Lok Adalats is on compromise between parties. While conducting the proceedings,
a Lok Adalat acts as a conciliator and not as an arbitrator. Its role is to persuade the parties to reach a
solution and help in reconciling their contesting differences[24]. This encourages consensual
arrangements. Therefore, disputes are not only settled but also the cordial relations between parties
can be retained. Hence, it is a very healthy way of dispute resolution[25].

Areas for Improvement within Lok Adalats

Some areas of improvement whereby the functioning of Lok Adalats can be improved are as follows:

Enforceability lies with Civil Court

The awards passed by the Lok Adalats are deemed equivalent to decrees of the civil court[26].
Although, the enforcement of these decrees cannot be carried out by the Lok Adalats. This function
rests with the civil courts, therefore the parties need to apply for enforcement to execute the award.
It is the author’s recommendation that this power to enforce needs to be provided to the Lok Adalats
itself to ensure that the decisions passed are executed to their finality.
Lack of Criminal Jurisdiction
The jurisdiction of Lok Adalats with respect to criminal disputes is limited to offences which are
compoundable under law[27]. This removes crimes such as that of petty theft other small crimes
from the purview of Lok Adalats. Hence, this should be reviewed to bring petty crimes within the
purview of Lok Adalats.

Lok Adalat and Access to Justice: A Symphonic Interplay

What is “Access to Justice”?

The term “access to justice” can be understood as “the right to ensure that every person is able to
invoke the legal processes for legal redress irrespective of social or economic capacity” and “that
every person should receive a just and fair treatment within the legal system”[28]. Basically, the right
of every person to access judicial forums for putting forth their case can be termed as a chance to
access justice.

Here, there lies an important point of difference between “access” to justice, and access to “justice”;
wherein the former refers to whether a chance of redressal was provided to the aggrieved party
whereas the latter refers to whether justice was served. Both these aspects have been analyzed in
this article.

Role of Lok Adalats in providing “access” to justice

Since their inception in 1982, Lok Adalats have been the instrumentalities for the poor to have
“access” to justice in our country, which is troubled with more than 3.3 crore cases (2018 figures)
pending for adjudication till date[29]. The functioning of these Lok Adalats have been responsible for
the disposal of more than 50 lakh cases in 2017 itself[30], thereby being a major modality for
reduction of judicial workload. The average number of cases resolved by Lok Adalats stand at 4000
cases a day, therefore their existence is undoubtedly vital for solving the judicial backlog which exists
in recent times[31].
A major feature of Lok Adalats to determine disputes without charging any fees has also been a
strong incentive for the poor to approach the Lok Adalats for finality of their disputes. In contrast to
filing an application as an indigent person under Order 33 of the Code of Civil Procedure, 1908, this
alternative dispute resolution mechanism stands as a much friendlier means for the poor to access
legal redressal mechanisms. Hence, Lok Adalats can be said to have passed the test for providing
“access” to justice to the poor.

Role of Lok Adalats in providing access to “justice”

The sheer right to get access to a legal redressal mechanism, cannot in the author’s view, be deemed
sufficient justice. The financial status of parties to the dispute, their situations, fair procedure during
trial and influence on the legal process also need to be considered to understand whether a proper
chance to access “justice” was provided to them[32].
Many times, parties settle in Lok Adalats as they cannot afford the expenses of continuing with
litigation. There is compromise out of necessity rather than will. This can be related due to the issues
in our legal system and therefore it is difficult to deem this as a fair chance. Hence, it is rather difficult
to say that the Lok Adalats have passed the test for providing access to “justice” to the poor.
Conclusion
Lok Adalats have become an integral part of the Indian legal system and have become the apertures
for access to justice for the poor and downtrodden. The have bridged the gap to legal aid, but still
have certain areas of improvement which could increase their efficiency even more. While they are
acting well to bridge the gap of “access” to justice, there needs to be a review of their effectivity in
providing aggrieved parties true access to “justice”. With finality, one can conclude that there is more
than meets the eye which can be done to make Lok Adalats a better redressal system towards rising
litigation.

Topic -5 Bar Bench Relation

Introduction
Attainment of justice for all the parties of the case and the society at a large is the main objective of
our Judicial system. The Bar and Bench are the essential partners for fulfilling this objective of our
judicial system, with the judiciary at the top of a vibrant bar. Both the partners must have mutual
understanding and respect between each other, and each partner has its duties which they should
perform diligently and effectively in order to enable the system to function in its best way. Failure of
performing any duty by anyone partner will affect the other partner naturally. Thus it’s the duty of
both the partners i.e the Bench and Bar to perform their work diligently effectively, and honestly in
order to achieve justice in society.
In Calabar East Cooperative Thrift & Credit Society Ltd. V. Ikot (1999) case the Supreme Court of
Nigeria has summed up the respective duties of Bar and Bench in the administration of justice thus :
“In our Adversary system, the object of adjudication is that the party shall come to the court with his
case which will make the opposite party respond to the case filed by the party, and then the judge,
will adjudicate on the issues in controversy impartially.”

Bar and Bench

There are two parts in a court where cases are conducted namely:

1. The Bench, i.e. the place where the judges take their seat.
2. Bar, i.e. the place where the advocates stand.
The judges are known as the “Bench” and the Advocates are known as the “Bar”. The relation
between the judges and Advocates are referred to as the Bar and Bench relation. Speedy justice and
the faith the public has on the judiciary depend on the relation between the judges and the
Advocates and in the administration of justice the role of Advocates is equally important as that of
judges. Providing justice is the joint responsibility of both the judges and the Advocates.
Duties of Bar and Bench in administration of justice
In the administration of justice, Bar and Bench plays an important role. Following are the duties of
the Bench and the Bar which they should perform for the administration of justice.

Duties of the Bench

In the state, there is no office of such powers as that of the judge, as the powers which are held by
judges are greater than any other functionary. The citizen’s life, liberty, personal domestic happiness,
reputation, and property all are subject to the wisdom of the judges and all the citizens have to
comply with the judge’s decision. If judges become corrupt there will be no security left with citizens
to life and liberty, and also there will be no guarantee of personal domestic happiness to them. Thus,
the state needs a judiciary that is strong, powerful, and impartial. The judges shall perform the
following duties:

Patient Hearing
While hearing cases the judge shall not be biased, and shall not form the opinion regarding the merit
of the case until he heard both the parties, he should act in the interest of justice. Sufficient
opportunity shall be given to the advocates by judges in order to present their case.

Impartiality 
Judges shall act impartial, and shall not do anything in favor of his friend and relatives, he must do
everything for justice.

Avoidance of Interruptions 
When advocates examine witnesses in a case or argue in case, the judge shall make sure that there
are no interruptions. Unwanted interruption or bad comments by the judges during the hearing of
the case disturbs the advocates and as a result, he may not be able to present his case properly. But
the judges can interfere in the following circumstances:

  To prevent waste of time.

  To check the relevancy of arguments put forward by the advocates.
  To get clarifications on a point that is not clear to him.
 To express his opinion on a point.
 To promote speedy disposal of cases.

Interpretation of Statutes
In some cases, interpretations of acts, codes, regulations, orders, etc has to be done by the court,
during the process of administration of justice, in order to remove the ambiguity or inconsistency or
to know the actual meaning of the provisions. So in such cases, proper interpretation of statutes
should be done by the court to render justice to the parties.
Avoidance of unreasonable adjournments
Without reasonable and sufficient grounds cases shall not be adjourned. One of the reasons for
mounting arrears of cases is unreasonable adjournment which causes hardship to the parties.
Speedy disposal
Cases that come before the court shall be disposed of as soon as possible, as when justice is delayed
it means justice is denied.
Avoiding harsh comments
Harsh comments shall be avoided by the judge in the court about the advocate’s lack of knowledge in
law, similarly, without any sufficient reason, they can not ask the advocates to leave the court. Judges
should possess a calm temper.
Independence
The protection of the independence of the judiciary should be the prime duty of the judge.
Meeting of judges and advocates
At regular intervals, meetings shall be conducted between the judges and the Advocates, such that
they can put forward their difficulties in front of each other and it can be sorted out, this will help in
strengthening the Bar and Bench relation. 
Integrity
The character and the conduct of a judge shall be praiseworthy, and he should have personal and
intellectual integrity.
Industriousness
A judge should regularly update his knowledge and should know all the recent developments and
changes made in the law.

Duties of the Bar

Advocates assist the court in the administration of justice, they are the officers of the court.
Advocates present the case before the court after collecting material related to that case, and thus
helps the court in arriving at the judgment. In the process of administration of justice, an advocate is
a partner of the judiciary. An advocate shall perform the following duties-

1. A respectful attitude shall be maintained by advocates towards the courts, bringing in mind
that for the survival of the society the dignity of the judicial office is essential.
2. Efforts shall be made by advocates in order to prevent his/her client from adopting unfair
practices concerning the court.
3. By any illegal or improper means, an advocate shall not try to influence the judgment of
the court.
4. Dignity and self-respect shall be maintained by an advocate while presenting his/her case
in front of the judge.
5. An advocate shall help the court in the trial of the case by presenting clearly the laws
which are relevant to the particular case.
6. An advocate shall not present any fact in front of the court which he knows to be false.
7. An advocate shall not ask for an adjournment of the case without any sufficient reason.
8. An advocate shall always appear in court in a presentable manner and a prescribed dress.
In public places, he should not wear a gown or bands.
9. If an advocate knows a judge personally he should not practice before him.
10. An advocate shall not interrupt in between when an opposite council or judge is speaking.
11. If an advocate has a monetary interest in any case, he shall not plead in such a case.
12. An advocate shall not represent any organization or institution if he is a member of the
executive committee of such an organization or institution.
13. An advocate shall not apply any personal influence over the decision of the court, nor he
should give any kind of impression that he possesses personal influence with the judge
before whom he practices.

What judge requires from an advocate

An advocate is found to be useful and effective by the judge if he satisfies all the needs of the judge,
and a judge requires an advocate to help him in reaching the conclusion of the case and thereby
helping in the performance of his own role. It’s impossible for an advocate to do so unless he is
equipped with the required skills. 

Bar and Bench relation

The process of administration of justice includes both the Bench and Bar. In order to maintain the
cordial relation between Bar and Bench, mutual respect is necessary between them. Both the
Advocate and judge complement each other, the principal ground for recruiting judges is Bar, so they
both belong to the same community. But while discharging their duties sometimes they get into a
harsh or heated argument.
When the advocate scandalizes the court he corrupts the very foundation of justice and such conduct
by an advocate dishonors the process of administration of justice. Whatever is the status of court an
advocate’s behavior towards the court shall always be of respect. Whatever advocate thinks about
the Presiding officer, he must not show that in its attitude, because it’s his duty to uphold the dignity
of the judiciary. Also, it’s the duty of the judges to not only be polite or calm towards the advocates
but to do everything possible that will help the advocate in presenting his/her case.
Any misconduct done by any advocate or judge may amount to contempt of court, for example, if any
advocate uses any offending language against a judge or if he threatens the judge to transfer the case
or make scandalous allegations against a judge, etc. he commits contempt of court and for such an
act he liable to punishment also. In order to protect the confidence of the public in the process of
Administration of justice punishment for contempt of court is provided.
The Supreme Court in P.D. Gupta v. Ram Murti and Others case has laid down his opinion on Bar and
Bench relation in the following words:
“An advocate should be fair not only towards his client but also towards the court as well as towards
the opposite party of the case. The process of administration of justice has to be kept clean and
uncorrupted. The Administration of justice not only concerns the Bench, it concerns both the Bench
and the Bar. The principal ground for recruiting judges is the Bar, both the judges and the advocates
complement each other. The main duty of an Advocate is to present the case in court by informing
the court about the law and the facts of the case and to help the court in arising at the conclusion of
the case. For good administration of justice, an advocate shall possess good advocacy skills, so that
he can put forward the case in court properly and not get interrupted by the judge unless the
interruption is necessary.”
In the case of Mahant Hakumat Rai v. Emperor the high court held that :
“An advocate can claim their right to be heard by the court before which they are practicing while
performing their duty they shall be fearless and independent, and also they have the right to protest
against any irregular procedure done by any judge. He would be perfectly right in asking for getting a
proper hearing and objecting to any interruption made by the judge in order to disturb him while he
is arguing the case in court and performing his duty towards the client. However, the presence of
professional etiquette coupled with the recognition by the judiciary will help in reducing the conflicts
between the Bar and Bench”.

Conclusion
An independent and fearless Bar is not preferred over an independent Bench, similarly, an
independent Bench is also not preferred over an independent and fearless Bar, neither of them is
superior over the other, both are essential for a free society. The freedom given to the Bar requires
an independent judiciary, through which if necessary the freedom that is given to the Bar, be
vindicated. A well-behaved, responsible, cultured, and a leaned Bar is one of the potent means for
assuring judges their independence. Finally, the keystone for the smooth functioning of the courts in
the general interest of the society is the reciprocal adjustment of conduct by the Bar and the Bench.
Constitutional Law

Question -2 Provisions regarding the administration of scheduled areas and tribal

areas.

In the Article 244(1) of the Constitution, expression Scheduled Areas means such areas as the President may by
order declare to be Scheduled Areas.
The President may at any time by order

 direct that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a
part of such an area;
 increase the area of any Scheduled Area in a State after consultation with the Governor of that State;
 alter, but only by way of rectification of boundaries, any Scheduled Area;
 on any alteration of the boundaries of a State on the admission into the Union or the establishment of
a new State, declare any territory not previously included in any State to be, or to form part of, a
Scheduled Area;
 rescind, in relation to any State of States, any order or orders made under these provisions and in
consultation with the Governor of the State concerned, make fresh orders redefining the areas which
are to be Scheduled Areas.

Criteria for Declaring Schedule Areas

The criteria followed for declaring an area as Scheduled Area are

 preponderance of tribal population;

 compactness and reasonable size of the area;
 under-developed nature of the area; and
 marked disparity in economic standard of the people.

These criteria are not spelt out in the Constitution of India but have become well established. They embody
principles followed in declaring 'Excluded' and 'Partially-Excluded' Areas under the Government of India Act
1935, Schedule B of recommendations of the Excluded and Partially Excluded Areas Sub Committee of
Constituent Assembly and the Scheduled Areas and Scheduled Tribes Commission 1961.
Special Provisions for Fifth Schedule Areas
 The Governor of each State having Scheduled Areas (SA) shall annually, or whenever so required by
the President, make a report to the President regarding the administration of Scheduled Areas in that
State.
 The Union Government shall have executive powers to give directions to the States as to the
administration of the Scheduled Areas.
 Para 4 of the Fifth Schedule provides for establishment of a Tribes Advisory Council (TAC) in any State
having Scheduled Areas. If the President so directs, there will be established a TAC in a State having
Scheduled tribes but not Scheduled Areas therein, consisting of not more than twenty members of
whom, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly
of the State. If the number of representatives of the STs in the Legislative Assembly of the State is less
than the number of seats in the TAC to be filled by such representatives, the remaining seats shall be
filled by other members of those Tribes.
 The TAC shall advise on such matters pertaining to the welfare and the advancement of the STs in the
State as may be referred to them by the Governor.
 The Governor may make rules prescribing or regulating
o the number of members of the Council, the mode of their appointment and the appointment
of the Chairman of the Council and of the officers and servants thereof,
 o the conduct of its meetings and its procedure in general; and
o all other incidental matters.
 The Governor may, by public notification, direct that any particular Act of Parliament or of the
Legislature of the State shall or shall not apply to a SA or any part thereof in the State, subject to such
exceptions and modifications, as specified. The Governor may make regulations for the peace and
good government of any area in the State which is for the time being a SA. Such regulations may
o prohibit or restrict the transfer of land by or among members of the Scheduled tribes in such
area;
o regulate the allotment of land to members of the STs in such area;
o regulate the carrying on of business as money-lender by persons who lend money to members
of the STs in such area.
 In making such regulations, the Governor may repeal or amend any Act of Parliament or of Legislature
of the State or any existing law after obtaining assent of the President.
 No regulations shall be made unless the Governor, in case a TAC exists, consults such TAC.

To access the Fifth Schedule of the Constitution, click here.

States having Fifth Schedule Areas
 At present, 10 States namely Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh,
Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana have Fifth Schedule
Areas. 
 The Fifth Schedule of the Constitution deals with the administration and control of Scheduled Areas as
well as of Scheduled Tribes residing in any State other than the States of Assam, Meghalaya, Tripura
and Mizoram. Tribal habitations in the states of Kerala, Tamil Nadu, Karnataka, West Bengal, Uttar
Pradesh and Jammu & Kashmir have not been brought under the Fifth or Sixth Schedule.

QUESTION – PROVISION REGARDING ADMINISTRATION OF

UNION TERRITORIES
According to Article 1 of the Constitution, India's territory is divided into
three categories:

1. States’ Territories.
2. Union Territories.
3. Areas that the Government of India may acquire at any moment.

At present, there are twenty-eight States, eight Union Territories, and no

acquired territories. The UPSC Indian Polity and Governance Syllabus
includes Union Territories And Their Administration which is described in
this article.

Concept
Union Territories - Concept
Union Territories, also known as Centrally Administered Territories, are
federal territories administered by the Union Government of India.

Union Territory Capital Legislature Judiciary (U

Andaman and Nicobar Islands Port Blair Nil Calcutta High
Punjab and H
Chandigarh Chandigarh Nil
High Court
Dadra and Nagar Haveli and
Daman Nil Bombay High
Daman and Diu
Legislative
Delhi Delhi Delhi High Co
Assembly
Jammu(winter), Legislative Jammu and K
Jammu and Kashmir
Srinagar(summer) Assembly High Court
Jammu and K
Ladakh Leh Nil
High Court
Lakshadweep Kavaratti Nil Kerala High C
Legislative
Puducherry Puducherry Madras High
Assembly
Other Relevant Links
Issues with Urban Local Bodies Municipal Corporation
Union Territory of Delhi Fifth Scheduled areas - Scheduled and Trib
Administration
Administration Of Union Territories
 Part VIII (Articles 239 to 241) of the Constitution deals with the Union
Territories.
 Even though all Union Territories belong to the same category, their
administrative systems are not consistent.
 Every Union Territory is governed by the President of India, who
appoints an administrator to do so.
 An administrator of a Union Territory, unlike a Governor, is an agent
of the President rather than the head of State. The President can
name an administrator; it could be a Lieutenant Governor, Chief
Commissioner, or Administrator.
 In the cases of Delhi, Puducherry, the Andaman and Nicobar Islands,
Jammu and Kashmir, and Ladakh, it is currently Lieutenant Governor,
and in the cases of Chandigarh, Dadra and Nagar Haveli, Daman and
Diu, and Lakshadweep, it is Administrator.
 The President can also appoint the Governor of a State to serve as the
administrator of a Union Territory bordering on it. The Governor is to
 operate independently of his council of ministers in this role. The
Governor of Punjab is concurrently the Administrator of Chandigarh.
 A legislative assembly and a council of ministers led by a chief minister
have been established in the Union Territories of Puducherry (in
1963), Delhi (in 1992), and Jammu & Kashmir (in 2019). There are no
comparable popular political institutions in the remaining five Union
Territories.
 However, the establishment of such institutions in Union Territories
does not negate the President's and Parliament supreme control over
them. For the Union Territories, Parliament has the authority to enact
legislation on any subject from the three lists (including the State List).
 Parliament's power extends even to Puducherry, Delhi, and Jammu
and Kashmir, all of which have their legislatures. This means that even
after establishing a local legislature for the Union Territories,
Parliament's legislative power over subjects on the State List remains
unaffected.
 The legislative assembly of Puducherry, on the other hand, has the
power to enact legislation on any subject on the State and Concurrent
Lists. Similarly, the legislative assembly of Delhi can make laws on any
subject of the State List (except public order, police, and land) and the
Concurrent List.
 Likewise, the legislative assembly of Jammu and Kashmir can make
laws on any subject of the State List (except public order and police)
and the Concurrent List.
 The President has the authority to issue regulations for the Andaman
and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman
and Diu, and Ladakh in order to maintain peace, progress, and good
governance.
 The President can also legislate by rules in Puducherry, but only when
the assembly is suspended or dissolved.
 A regulation issued by the President has the same force and effect as a
law passed by Parliament, and it has the power to revoke or alter any
law passed by Parliament that applies to these union territories.
 A High Court for a Union Territory can be established by Parliament, or
it can be placed under the jurisdiction of the High Court of the
neighboring States.
 Delhi is the only Union Territory with its own High Court (since 1966).
 There are no separate provisions in the Constitution for the
administration of acquired territories. However, the constitutional
 provisions governing the administration of union territories also apply
to the territories acquired.

Special Provisions For Delhi

Special Provisions For Delhi
 The 69th Constitutional Amendment Act of 1991 furnished a unique
status to the Union Territory of Delhi and redesignated it as the
National Capital Territory of Delhi (Article 239AA).
 Also, the administrator of Delhi has been redesignated as the
lieutenant (lt.) governor.
 It also created a legislative assembly and a council of ministers for
Delhi.

Advisory Committees
Advisory Committees Of Union Territories
 The Ministry of Home Affairs is the nodal ministry for all matters
concerning Union Territories, including legislation, finance and budget,
services, and the appointment of Lt. Governors and Administrators, as
defined by the Government of India (Allocation of Business) Rules
1961.
 The Home Minister's Advisory Committee (HMAC)/Administrator's
Advisory Committee exists in all five Union Territories without a
legislature (Andaman and Nicobar Islands, Chandigarh, Daman and
Diu, Dadra and Nagar Haveli, Lakshadweep, and Ladakh) (AAC).
 The Union Home Minister chairs the HMAC, while the Administrator of
the concerned Union Territories chairs the AAC.
 Members of Parliament and elected members of local governments,
for example, District Panchayats and Municipal Council of the
respective Union Territories are members of these committees among
others.
 The Committee discusses the general issues relating to the social and
economic development of the Union Territories.

Recent Developments
Recent Developments In Case Of Union Territories
 In 2019, legislation was passed to unite the Union Territories of
Daman and Diu and Dadra & Nagar Haveli, with effect from January
 26, 2020, to become the new Union Territory of Dadra and Nagar
Haveli and Daman and Diu.
 The former state of Jammu & Kashmir has been reorganized as the
new Union Territory of Jammu and Kashmir and the new Union
Territory of Ladakh on 31st October 2019.

Concerns Associated With The Functioning Of Union Territories

Undermining The Democratic Rights

Undermining The Democratic Rights Of The People Living In
Union Territories
 Those in the Union Territories have no recourse to hold those in
charge of them accountable, undermining their democratic rights,
which are otherwise available to citizens in the states.
 There are 3.68 crore Indians residing in eight Union Territories who
are denied the democratic right to have full-power assemblies like
those in the 28 states.
 Even in the case of Union Territories with elected governments, their
powers are limited in comparison to those of states and they are
frequently at the mercy of central government appointments.
 The recent protests in Lakshadweep Island against the administrator's
policy have been cited by constitutional scholars as an example of the
Union Territory administration failing to serve the interests of its
residents.

The Original Criteria

The Original Criteria For The Creation Of Union Territories
Do Not Hold Anymore
 The population or size of a community cannot be used to determine
whether it deserves to be a state or a Union Territory.
 As a result, several former Union Territories, such as Mizoram,
Arunachal Pradesh, and Sikkim, which have since become states,
continue to have lesser populations than other current Union
Territories, such as Puducherry and Dadra and Nagar Haveli.
 Furthermore, the claim that these Union Territories have a different
culture that must be maintained no longer holds water, as there is no
significant cultural divide between them and neighboring states for
 smaller Union Territories like Daman and Diu or Puducherry. In fact,
they maintain cultural and linguistic ties with their neighbors.

Structural Fragility
Structural Fragility Of Union Territories
Because of the Union Territories’ structural vulnerability in the
constitutional scheme of things, it is simpler for the central government to
intervene in their operations and destabilize them.

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Composition of the legislature: According to the constitutional
requirements governing the makeup of the legislature in Union Territories,
the legislature of Union Territory is an elected body or a body that is
partially elected and partly nominated.

 A legislature that is partially elected and partly appointed will not be

able to sustain democratic ideals.
 A minor change to the Government of Union Territories Act of 1963
can result in a legislature with more than half of its members being
nominated.
 A House with a majority of appointed members cannot foster
representative democracy.

Issue of nomination: As seen in the instance of Puducherry, the nomination

process is prone to politicization. The nomination of members to the
Assembly by the Union Government without consultation with the
Government was challenged in court.

 Unlike the provision for the nomination of members to the Rajya

Sabha under Article 80, which specifies the fields from which members
will be nominated, there is no such qualification under Article 239A or
the Government of Union Territories Act for nomination to the
Puducherry Assembly. This opens the door for the Union government
to nominate anyone, regardless of whether or not they are qualified.

Administrator’s power: The required autonomy has not been granted to

the Union Territories, depriving them of a fully democratic setup.

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  In the Union Territories, the Administrator/Lieutenant Governor has
been given enormous authority.
 The administrator has the right to disagree with the Council of
Ministers' decisions and recommend them to the President for a final
judgment under Section 44 of the Government of Union Territories
Act and Article 239 AA(4) of the Constitution.
 In absolute disrespect of the elected government, the administrator
can then take whatever steps he or she sees fit in the case which
permits the Union Government to exert control over the Union
Territory through the administrator, and thus is incompatible with the
idea of Union Territories having free and autonomous Governments.
 On the advice of the Union Government, the President makes his/her
decision and as a result, the Union Government is ultimately
responsible for deciding the contested matter.
 Despite the Supreme Court's ruling in the NCT of Delhi v. Union of
India (2019) case that the administrator should not abuse his or her
power to thwart the elected Government's ability to function in the
territory and should only use it after all other options have failed to
resolve the differences between him and the Council of Ministers,
there has been no progress in this area.
 Conflicts between the Government and the people of Puducherry are
an example of the same.

Articles Related
Articles Related To Union Territories
Conclusion
Conclusion
Due to the existence of Union Territories, many critics have resolved India
into a semi-federal nation, as the central and state governments each have
their legislatures. Union Territories of India have special rights and status
due to their constitutional formation and development. Thus, Union
Territories are also important segments in the administrative jurisdiction of
our Country.

QUESTION 3 TEMPERORY PROVISION OF JAMMU AND

KASHMIR
Title: Temporary provisions with respect to the State of
Jammu and Kashmir
Description: 1[(1) Notwithstanding anything in this Constitution,— (a) the provisions of
article 238 shall not apply in relation to the State of Jammu and Kashmir; (b) the power
of Parliament to make laws for the said State shall be limited to— (i) those matters in
the Union List and the Concurrent List which, in consultation with the Government of
the State, are declared by the President to correspond to matters specified in the
Instrument of Accession governing the accession of the State to the Dominion of India
as the matters with respect to which the Dominion Legislature may make laws for that
State; and (ii) such other matters in the said Lists as, with the concurrence of the
Government of the State, the President may by order specify. Explanation.—For the
purposes of this article, the Government of the State means the person for the time
being recognised by the President as the Maharaja of Jammu and Kashmir acting on
the advice of the Council of Ministers for the time being in office under the Maharaja’s
Proclamation dated the fifth day of March, 1948; (c) the provisions of article 1 and of
this article shall apply in relation to that State; (d) such of the other provisions of this
Constitution shall apply in relation to that State subject to such exceptions and
modifications as the President may by order2 specify: Provided that no such order
which relates to the matters specified in the Instrument of Accession of the State
referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with
the Government of the State: Provided further that no such order which relates to
matters other than those referred to in the last preceding proviso shall be issued
except with the concurrence of that Government. (2) If the concurrence of the
Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or
in the second proviso to sub-clause (d) of that clause be given before the Constituent
Assembly for the purpose of framing the Constitution of the State is convened, it shall
be placed before such Assembly for such decision as it may take thereon. (3)
Notwithstanding anything in the foregoing provisions of this article, the President may,
by public notification, declare that this article shall cease to be operative or shall be
operative only with such exceptions and modifications and from such date as he may
specify: Provided that the recommendation of the Constituent Assembly of the State
referred to in clause (2) shall be necessary before the President issues such a
notification. 1. In exercise of the powers conferred by this article the President, on the
recommendation of the Constituent Assembly of the State of Jammu and Kashmir,
declared that, as from the 17th day of November, 1952, the said art. 370 shall be
operative with the modification that for the Explanation in cl. (1) thereof, the following
Explanation is substituted, namely:- “Explanation.– For the purposes of this article, the
Government of the State means the person for the time being recognised by the
President on the recommendation of the Legislative Assembly of the State as the
*Sadar-I Riyasat of Jammu and Kashmir, acting on the advice of the Council of
Ministers of the State for the time being in office.”. (Ministry of Law Order No. C.O. 44,
dated the 15th November, 1952). 2. See the Constitution (Application to Jammu and
Kashmir) Order, 1954 (C.O. 48) as amended from time to time, in Appendix I.
nder Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”,
the State of Jammu and Kashmir has been accorded special status under Article 370. Even though included in
1st Schedule as 15th state, all the provisions of the Constitution which are applicable to other states are not
applicable to J&K. For example, till 1965, J&K had a Sadr-e-Riyasat for Governor and Prime Minister in place of
Chief Minister.

Historical aspect
When India and Pakistan gained their independence on 15th and 14th August 1947, respectively; J&K chose to
remain independent. There was an agreement by J&K with Pakistan and India that none of them will attack
J&K. While India respected the agreement and exercised restraint, Pakistan attacked Kashmir in a bid to annex
it by force. On 6th October 1947, Kashmir was attacked by “Azad Kashmir Forces” supported by Pakistan. To
save J&K, Maharaja Hari Singh (the then ruler of J&K) chose to accede J&K to India.

In October 1947, the accession was made by the ruler in favour of India in consideration of certain
commitments made by Pt. Jawahar Lal Nehru (the then Prime Minister of India). It was in the pursuance of
those commitments that Article 370 was incorporated in the Constitution.

Special Features
Separate Constitution
J&K is the only state in India which has a Constitution of its own. The Constitution of J&K was enacted by a
separate Constituent Assembly set up by the State and it came into force on 26th January 1957.

Jurisdiction of Parliament
Parliament or the Union Legislature has very limited jurisdiction in case of J&K as compared to other states. Till
1963, Parliament could legislate on subjects contained in the Union List, and had no jurisdiction in case of
Concurrent List under 7th Schedule of the Constitution. But now, the Parliament has power to legislate not just
on subjects contained in the Union List but also on some of the subjects of Concurrent List. Residuary powers,
unlike other states, rest with J&K. The Parliament has no power to legislate Preventive Detention laws for the
state; only the state legislature has the power to do so.

Autonomy in certain matters

Any action of the Union Legislature or Union Executive which results in alteration of the name or territories or
an international treaty or agreement affecting the disposition of any part of the territory of the state requires
the consent of the State Legislature or the State Executive (as the case may be) to be effective. The Union has
no power to suspend the Constitution of J&K.

Emergency Provisions
The Union of India has no power to declare Financial Emergency under Article 360 in the state. The Union can
declare emergency in the state only in case of War or External Aggression. No proclamation of emergency
made on the grounds of internal disturbance or imminent danger thereof shall have effect in relation to the
state unless (a) it is made at the request or with the concurrence of the government of the state; or (b) where
it has not been so made, it is applied subsequently by the President to that state at the request or with the
concurrence of the government of that state. In December 1964, Articles 356 and 357 were extended to the
state.

Fundamental Duties, Directive Principles and Fundamental Rights

Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution are not
applicable to J&K. In addition to other fundamental rights, Articles 19(1)(f) and 31(2) of the Constitution are
still applicable to J&K; hence the Fundamental Right to property is still guaranteed in this state.
High Court of J&K
The High Court of J&K has limited powers as compared to other High Courts within India. It can't declare any
law unconstitutional. Unlike High Courts in other states, under Article 226 of the Constitution, it can't issue
writs except for enforcement of Fundamental Rights.

Official Languages
Provisions of Part XVII of the Constitution apply to J&K only insofar as they relate to (i) the official language of
the Union; (ii) the official language for communication between one state and another; or between a state and
the Union; and (iii) language of the proceedings in the Supreme Court. Urdu is the official language of the state
but use of English is permitted for official purposes unless the state legislature provides otherwise.

Miscellaneous
Certain special rights have been granted to the permanent residents of J&K with regard to employment under
the state, acquisition of immovable property in the state, settlement in the state, and scholarship and other
forms of aid as the state government may provide.

The 5th Schedule pertaining to the administration and control of Schedule Areas and Scheduled Tribes and the
6th Schedule pertaining to administration of tribal areas are not applicable to the state of J&K.

Procedure for Amendment of State Constitution

The Provisions of the State Constitution (except those relating to the relationship of the state with the Union)
may be amended by an Act of the Legislative Assembly of the state passed by not less than two-thirds of its
membership. If such amendment seeks to affect Governor or Election Commission, it needs President's assent
to come into effect. No amendment of the Constitution of India shall extend to J&K unless so extended by an
order of the President under Article 370(1).

Amendment of Article 370

Under Article 370(3), consent of state legislature and the constituent assembly of the state are also required to
amend Article 370. Now the question arises, how can we amend Article 370 when the Constituent Assembly of
the state no longer exists? Or whether it can be amended at all? Some jurists say it can be amended by an
amendment Act under Article 368 of the Constitution and the amendment extended under Article 370(1). But
it is still a mooted question.

Demand for Abrogation of Article 370

Equally valid arguments are forwarded by those in favour of and those against its abrogation. Those in favour
argue that it has created certain psychological barriers. They say that it is the root cause of all the problems in
J&K. The further believe that it is this Article 370 which encourages secessionist activities within J&K and other
parts of the country. They say, at the time of enactment, it was a temporary arrangement which was supposed
to erode gradually. They also argue that it acts as a constant reminder to the Muslims of J&K that they have
still to merge with the country.

Those against its abrogation forward the following arguments. They contend that that Abrogation will have
serious consequences. It will encourage secessionists to demand plebiscite which will lead to
internationalisation of the issue of J&K. They further argue that the contention of Article giving rise to
secessionist activities is baseless as states like Assam and Punjab, which don't have any special status have
experienced such problems. It would not only constitute a violation of the solemn undertaking given by India
through the instrument of accession, but would also give unnecessary misgivings in the minds of the people of
J&K, making the issue more sensitive.
 Conclusion
The demand for abrogation of the special status of J&K is completely justified. The author feels that it is indeed
root cause of all the problems of J&K and encourages secessionist activities within J&K. In the latest
controversy relating to “Land Transfer” to Shri Amarnathji Shrine Board, it was alleged by separatists that it
was a violation of Article 370 as the land was being transferred to India. Whereas, it was not so, as the land
was being “diverted” and not “transferred”, as alleged. It has, indeed, created “psychological barriers” in
minds of people of J&K and people of other parts of the country for each other. Some people in other states
believe that you need a Visa or something like that to enter the state of J&K.

The question of plebiscite doesn't arise till Pakistan doesn't withdraw its forces from POK (Pakistan Occupied
Kashmir). India has taken a stand that after lapse of so much time, the circumstances within state have
changed. Under the changed circumstances, the plebiscite can't be held and hence, the demand for it is
completely unjustified. The view is accepted by most of the nations of the world like USA, UK, France, etc. As
far as the argument pertaining to Punjab and Assam is concerned, every problem has its own reasons. You
can't equate one problem with another just because it appears to be similar. Like death sentence is not
awarded in all cases of murder because of appreciation of the facts of the individual cases; similarly before
giving a verdict on this issue, the “individuality of facts” needs to be appreciated.

QUESTION 4- AMMENDMENT IN INDIAN CONSTITUTION

Law and society regulate each other. Law changes if changes take place in society. The
laws can’t be stagnant. With the growing state of society, its norms and regulations
also need to be amended timely.

The Indian Constitution is neither flexible nor rigid, but a combination of both. Article

368 talks about the powers and procedure for Parliament to amend the Constitution.

 Procedure for Amendment in Constitution

 Modes of Amendment
 Types of Amendment
 Can Fundamental Rights be Amended?

Procedure for Amendment in Constitution

For the amendment to be made in the Constitution of India, it has to be initiated by
the introduction of a bill in either House of Parliament – that is, Lok Sabha or Rajya
Sabha. The bill does not require prior permission of the President. It can be introduced
by any member or minister.
The bill presented before Parliament must be passed by each House with a simple
majority that is more than 50 percent of present and voting or by a special majority
that is the majority of the total members in the House and majority of two-third
present and voting. If the bill doesn’t get passage in any of either House, then there is
no provision of joint sitting.

Once the bill gets passed by both the Houses of Parliament, then it is presented before
the President for his assent. And after receiving assent on the bill, the bill becomes
Constitutional Amendment Act.

Modes of Amendment in Indian Constitution

The two modes of amending the Constitution are:
1. Informal Method
2. Formal Method

Informal Method of Amendment

In this method, the words in the law do not change. It remains the same. The change
takes place in its meaning and interpretation. For example, in Article 21, many
amendments take place. But it never changes the content of Article 21 but changes the
context, scope, and ambit. The right to life includes free air, education, medical aid,
dignity, speedy trial, fair trial, and many more.

Related: 14 Famous Cases Related to Article 21

Formal Method of Amendment

In this form of Amendment, the text or words are changed in the law. The provision is
amended by way of addition, variation, or omission. For example, by the 42nd
amendment 1976, the words Secular, Socialist, and Integrity were added in
the Preamble. This amendment was done by way of adding in the Preamble. Likewise,
the amendments are done by omission or variation.

Types of Amendment in the Constitution

There are three ways in which the Indian Constitution can be amended:
1. Amendment by a Simple Majority
2. Amendment by a Special Majority
3. Amendment by Special Majority and Ratification of Half of the States

By Simple Majority of Parliament

Several provisions in the Constitution of India that can be amended by a simple

majority, that is, more than 50 percent present and voting. Provisions like Article 5 –
Citizenship, Article 169 – the creation of the legislative council, Article 239A – the
creation of local legislatures or council of ministers.

By Special Majority of Parliament

By special majority means more than 50 percent of the total members and two-third of
the present and voting. The total members in each House are 545 in Lok Sabha and
245 in Rajya Sabha. The provisions which get amended by the special majority
are Fundamental Rights, Directive Principles of State policy, and all other provisions
which are not covered under the other two categories.

By Special Majority of Parliament and Ratification of States

All the provisions in the Constitution which are related to the federal structure of
polity can be amended (changed) by a special majority of the Indian Parliament and
ratification of half of the total states.
Provisions like Election of the President, Supreme Court and High Court, lists
mentioned in the seventh schedule, executive and legislative powers of the Union and
the State, Representation of State in Parliament, and Article 368 itself.

Can Fundamental Rights Be Amended?

Shankar Prasad vs. the Union of India, 1951

The court held that the word ‘law’ in Article 13 does not include the amendment of the
Constitution. Therefore Fundamental Rights can be amended under Article 368. The
same was approved in the case of Sajjan Singh vs. State of Rajasthan, 1965.

Golak Nath vs. State of Punjab, 1967

The Supreme Court, with the majority view, said that Fundamental Rights are out of
the reach of the Parliament. The court emphasized that Article 368 does not give
power to the Parliament but merely provides procedure as to how to amend. The
Parliament’s power to amend the constitutional provisions is not under Article 368 but
in Article 245. As we have read earlier that amending the Constitution is a legislative
process whereas Article 368 provides only the procedure to amend. The court said that
the amendment is a law within Article 13, and if in any case violates Fundamental
Rights, then it shall be void or unconstitutional.

24th Amendment Act, 1971

This amendment was an answer to the decision made in Golak Nath’s case. It sought to
reverse the ruling of Golak Nath’s case. It inserted clause 4 in Article 13, which stated
that Article 13 would not apply to any amendment made under Article 368. This
amended the text of Article 368. Before this amendment, Article 368 provided only for
the procedure for amendment. Later it changed to “empower the Parliament to
amend and procedure therefor.”
Keshavanand Bharati Case

The Supreme Court said that the Parliament has powers to amend the Constitution but
not its basic structure. The basic features are those supporting pillars of the
Constitution without which the Constitution cannot stand. The Parliament can under
Article 368 amend any provision but not its basic features.

What is Basic structure can’t be listed, but the Supreme Court illustrated few features
like the supremacy of the Constitution, separation of power, federal character,
sovereignty, democratic character, and so on.

QUESTION -5 PROTECTION OF OF PRESIDENT AND

GOVERNERS AND RAJPRAMUKHS

361. Protection of President and Governors and Rajpramukhs.

(1) The President, or the Governor or Rajpramukh of a State, shall not be answerable

to any court for the exercise and performance of the powers and duties of his office or
for any act done or purporting to be done by him in the exercise and performance of
those powers and duties:

Provided that the conduct of the President may be brought under review by any court,
tribunal or body appointed or designated by either House of Parliament for the
investigation of a charge under article 61:

Provided further that nothing in this clause shall be construed as restricting the right of
any person to bring appropriate proceedings against the Government of India or the
Government of a State.

(2) No criminal proceedings whatsoever shall be instituted or continued against the

President, or the Governor of a State, in any court during his term of office.
(3) No process for the arrest or imprisonment of the President, or the Governor of a
State, shall issue from any court during his term of office.

(4) No civil proceedings in which relief is claimed against the President, or the
Governor of a State, shall be instituted during his term of office in any court in respect
of any act done or purporting to be done by him in his personal capacity, whether
before or after he entered upon his office as President, or as Governor of such State,
until the expiration of two months next after notice in writing has been delivered to
the President or the Governor, as the case may be, or left at his office stating the
nature of the proceedings, the cause of action therefor, the name, description and
place of residence of the party by whom such proceedings are to be instituted and the
relief which he claims.

361A. Protection of publication of proceedings of Parliament and

State Legislatures.

(1) No person shall be liable to any proceedings, civil or criminal, in any court in respect
of the publication in a newspaper of a substantially true report of any proceedings of
either House of Parliament or the Legislative Assembly, or, as the case may be, either
House of the Legislature, of a State, unless the publication is proved to have been
made with malice:

Provided that nothing in this clause shall apply to the publication of any report of the
proceedings of a secret sitting of either House of Parliament or the Legislative
Assembly, or, as the case may be, either House of the Legislature, of a State.

(2) Clause (1) shall apply in relation to reports or matters broadcast by means of

wireless telegraphy as part of any programme or service provided by means of a
broadcasting station as it applies in relation to reports or matters published in a
newspaper.
Explanation-
In this article, “newspaper” includes a news agency report containing material for
publication in a newspaper.

361B. Disqualification for appointment on remunerative political

post.

A member of a House belonging to any political party who is disqualified for being a
member of the House under paragraph 2 of the Tenth Schedule shall also be
disqualified to hold any remunerative political post for duration of the period
commencing from the date of his disqualification till the date on which the term of his
office as such member would expire or till the date on which he contests an election to
a House and is declared elected, whichever is earlier.

Explanation-
For the purposes of this article,-
(a) the expression “House” has the meaning assigned to it in clause (a) of paragraph 1
of the Tenth Schedule;

(b) the expression “remunerative political post” means any office-

(i) under the Government of India or the Government of a State where the salary or
remuneration for such office is paid out of the public revenue of the Government of
India or the Government of the State, as the case may be; or
(ii) under a body, whether incorporated or not, which is wholly or partially owned by
the Government of India or the Government of the State, and the salary or
remuneration for such office is paid by such body,
except where such salary or remuneration paid is compensatory in nature.

362. Rights and privileges of Rulers of Indian States.

Rep. by the Constitution (Twenty-sixth Amendment) Act, 1971, s. 2.

363. Bar to interference by courts in disputes arising out of certain

treaties, agreements, etc.

(1) Notwithstanding anything in this Constitution but subject to the provisions

of article 143, neither the Supreme Court nor any other court shall have jurisdiction in
any dispute arising out of any provision of a treaty, agreement, covenant, engagement,
sanad or other similar instrument which was entered into or executed before the
commencement of this Constitution by any Ruler of an Indian State and to which the
Government of the Dominion of India or any of its predecessor Governments was a
party and which has or has been continued in operation after such commencement, or
in any dispute in respect of any right accruing under or any liability or obligation arising
out of any of the provisions of this Constitution relating to any such treaty, agreement,
covenant, engagement, sanad or other similar instrument.

(2) In this article-

(a) “Indian State” means any territory recognised before the commencement of this
Constitution by His Majesty or the Government of the Dominion of India as being such
a State; and
(b) “Ruler” includes the Prince, Chief or other person recognised before such
commencement by His Majesty or the Government of the Dominion of India as the
Ruler of any Indian State.

363A. Recognition granted to Rulers of Indian States to cease and

privy purses to be abolished.

Notwithstanding anything in this Constitution or in any law for the time being in force-
(a) the Prince, Chief or other person who, at any time before the commencement of
the Constitution (Twenty-sixth Amendment) Act, 1971, was recognised by the
President as the Ruler of an Indian State or any person who, at any time before such
commencement, was recognised by the President as the successor of such ruler shall,
on and from such commencement, cease to be recognised as such Ruler or the
successor of such Ruler;

(b) on and from the commencement of the Constitution (Twenty-sixth Amendment)

Act, 1971, privy purse is abolished and all rights, liabilities and obligations in respect of
privy purse are extinguished and accordingly the Ruler or, as the case may be, the
successor of such Ruler, referred to in clause (a) or any other person shall not be paid
any sum as privy purse.

364. Special provisions as to major ports and aerodromes.

(1) Notwithstanding anything in this Constitution, the President may by public

notification direct that as from such date as may be specified in the notification-
(a) any law made by Parliament or by the Legislature of a State shall not apply to any
major port or aerodrome or shall apply thereto subject to such exceptions or
modifications as may be specified in the notification, or

(b) any existing law shall cease to have effect in any major port or aerodrome except as
respects things done or omitted to be done before the said date, or shall in its
application to such port or aerodrome have effect subject to such exceptions or
modifications as may be specified in the notification.

(2) In this article-

(a) “major port” means a port declared to be a major port by or under any law made
by Parliament or any existing law and includes all areas for the time being included
within the limits of such port;
(b) “aerodrome” means aerodrome as defined for the purposes of the enactments
relating to airways, aircraft and air navigation.

365. Effect of failure to comply with, or to give effect to, directions

given by the Union.

Where any State has failed to comply with, or to give effect to, any directions given in
the exercise of the executive power of the Union under any of the provisions of this
Constitution, it shall be lawful for the President to hold that a situation has arisen in
which the Government of the State cannot be carried on in accordance with the
provisions of this Constitution.

366. Definitions.

In this Constitution, unless the context otherwise requires, the following expressions
have the meanings hereby respectively assigned to them, that is to say-
(1) “agricultural income” means agricultural income as defined for the purposes of the
enactments relating to Indian income-tax;

(2) “an Anglo-Indian” means a person whose father or any of whose other male
progenitors in the male line is or was of European descent but who is domiciled within
the territory of India and is or was born within such territory of parents habitually
resident therein and not established there for temporary purposes only;

(3) “article” means an article of this Constitution;

(4) “borrow” includes the raising of money by the grant of annuities, and “loan” shall
be construed accordingly;

(5) “clause” means a clause of the article in which the expression occurs;

(6) “corporation tax” means any tax on income, so far as that tax is payable
by companies and is a tax in the case of which the following conditions are fulfilled-
(a) that it is not chargeable in respect of agricultural income;
(b) that no deduction in respect of the tax paid by companies is, by any enactments
which may apply to the tax, authorised to be made from dividends payable by the
companies to individuals;
(c) that no provision exists for taking the tax so paid into account in computing for the
purposes of Indian income-tax the total income of individuals receiving such dividends,
or in computing the Indian income-tax payable by, or refundable to, such individuals;

(7) “corresponding Province”, “corresponding Indian State” or “corresponding State”

means in cases of doubt such Province, Indian State or State as may be determined by
the President to be the corresponding Province, the corresponding Indian State or the
corresponding State, as the case may be, for the particular purpose in question;

(8) “debt” includes any liability in respect of any obligation to repay capital sums by
way of annuities and any liability under any guarantee, and “debt charges” shall be
construed accordingly;

(9) “estate duty” means a duty to be assessed on or by reference to the principal value,

ascertained in accordance with such rules as may be prescribed by or under laws made
by Parliament or the Legislature of a State relating to the duty, of all property passing
upon death or deemed, under the provisions of the said laws, so to pass;

(10) “existing law” means any law, Ordinance, order, bye-law, rule or regulation passed
or made before the commencement of this Constitution by any Legislature, authority
or person having power to make such a law, Ordinance, order, bye-law, rule or
regulation;
(11) “Federal Court” means the Federal Court constituted under the Government of
India Act, 1935;

(12) “goods” includes all materials, commodities, and articles;

(12A) “goods and services tax” means any tax on supply of goods, or services or both
except taxes on the supply of the alcoholic liquor for human consumption. *

(13) “guarantee” includes any obligation undertaken before the commencement of

this Constitution to make payments in the event of the profits of an undertaking falling
short of a specified amount;

(14) “High Court” means any Court which is deemed for the purposes of this
Constitution to be a High Court for any State and includes-
(a) any Court in the territory of India constituted or reconstituted under this
Constitution as a High Court, and
(b) any other Court in the territory of India which may be declared by Parliament by
law to be a High Court for all or any of the purposes of this Constitution;

(15) “Indian State” means any territory which the Government of the Dominion of
India recognised as such a State;

(16) “Part” means a Part of this Constitution;

(17) “pension” means a pension, whether contributory or not, of any kind whatsoever

payable to or in respect of any person, and includes retired pay so payable; a gratuity
so payable and any sum or sums so payable by way of the return, with or without
interest thereon or any other addition thereto, of subscriptions to a provident fund;

(18) “Proclamation of Emergency” means a Proclamation issued under clause (1)

of article 352;
(19) “public notification” means a notification in the Gazette of India, or, as the case
may be, the Official Gazette of a State;

(20) “railway” does not include-

(a) a tramway wholly within a municipal area, or
(b) any other line of communication wholly situate in one State and declared by
Parliament by law not to be a railway;

(21) omitted

(22) “Ruler” means the Prince, Chief or other person who, at any time before
the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, was
recognised by the President as the Ruler of an Indian State or any person who, at any
time before such commencement, was recognised by the President as the successor of
such Ruler;

(23) “Schedule” means a Schedule to this Constitution;

(24) “Scheduled Castes” means such castes, races or tribes or parts of or groups within
such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for
the purposes of this Constitution;

(25) “Scheduled Tribes” means such tribes or tribal communities or parts of or groups

within such tribes or tribal communities as are deemed under article 342 to be
Scheduled Tribes for the purposes of this Constitution;

(26) “securities” includes stock;

(26A) “Services” means anything other than goods; *

(26B) “State” with reference to articles 246A, 268, 269, 269A and article 279A includes
a Union territory with Legislature; *

*12A, 26A, and 26B added by 101st Amendment Act in 2016. Here is the full 101st
Amendment Act PDF. (97KB) Please see this once.

(26C) “socially and educationally backward classes” means such backward classes as

are so deemed under article 342A for the purposes of this Constitution; (added in 2018
by 102nd amendment. Here is the full  102nd Amendment Act PDF. (83KB) Please give it
a look.)

(27) “sub-clause” means a sub-clause of the clause in which the expression occurs;

(28) “taxation” includes the imposition of any tax or impost, whether general or local
or special, and “tax” shall be construed accordingly;

(29) “tax on income” includes a tax in the nature of an excess profits tax;

(29A) “tax on the sale or purchase of goods” includes-

(a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any
goods for cash, deferred payment or other valuable consideration;
(b) a tax on the transfer of property in goods (whether as goods or in some other form)
involved in the execution of a works contract;
(c) a tax on the delivery of goods on hire-purchase or any system of payment by
instalments;
(d) a tax on the transfer of the right to use any goods for any purpose (whether or not
for a specified period) for cash, deferred payment or other valuable consideration;
(e) a tax on the supply of goods by any unincorporated association or body of persons
to a member thereof for cash, deferred payment or other valuable consideration;
(f) a tax on the supply, by way of or as part of any service or in any other manner
whatsoever, of goods, being food or any other article for human consumption or any
drink (whether or not intoxicating), where such supply or service, is for cash, deferred
payment or other valuable consideration;

and such transfer, delivery or supply of any goods shall be deemed to be a sale of
those goods by the person making the transfer, delivery or supply and a purchase of
those goods by the person to whom such transfer, delivery or supply is made;

(30) “Union territory” means any Union territory specified in the First Schedule and

includes any other territory comprised within the territory of India but not specified in
that Schedule.

367. Interpretation.

(1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject
to any adaptations and modifications that may be made therein under article 372,
apply for the interpretation of this Constitution as it applies for the interpretation of an
Act of the Legislature of the Dominion of India.

(2) Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to
Acts or laws of, or made by, the Legislature of a State, shall be construed as including a
reference to an Ordinance made by the President or, to an Ordinance made by a
Governor, as the case may be.

(3) For the purposes of this Constitution “foreign State” means any State other than
India:

Provided that, subject to the provisions of any law made by Parliament, the President
may by order declare any State not to be a foreign State for such purposes as may be
specified in the order.