M Rishi Kumar Dugar
“The expression ‘to practice the profession of law’ in section 29 of the 1961 Act is wide enough to cover the persons practicing in litigious matters as well as persons practicing in non litigious matters and, therefore, to practice in non litigious matters in India, the respondents were bound to follow the provisions contained in the 1961 Act.”
This decision of the Bombay High Court in Lawyers Collective 2010 (2) BomCR 753 was confirmed recently by Supreme Court of India in Bar Council of India v AK Balaji (2018) 5 SCC 379 (popularly known as the entry of Foreign Law Firms into India matter).
This article proposes to discuss if the Supreme Court is justified in holding that “practice the profession of law” includes litigation and non-litigation considering its repercussions on retired judges and non-advocates.
Monitoring Legal Profession in India: Evolution of Law
In 1726 when Mayor’s Courts were established at Madras and Calcutta, there was no legal training at that time and it is reported that many practitioners were dismissed servants of East India Company.
Although, the first Supreme Court was established in 1774 at Calcutta and the Regulating Act of 1773 empowered Supreme Court to approve, admit and enroll advocates and attorneys at law; it was the Legal Practitioners Act, 1846 which was the first of Indian law concerning pleaders and practitioners.
The Bill that brought the 1961, Act into existence sought to implement the recommendations of the All India Bar Committee in 1953, after taking into account the recommendations of the Law Commission on the subject of Reform of Judicial Administration.
The Advocate Act, 1961 eventually came to be enacted. The most important thing to be noted is that, all these laws were confined to regulating the practice of law before courts and tribunals. An examination of all the statutory provisions indicates that it was never the intention to regulate non-litigation work.
Practice the Profession of law
Chapter-IV of the Advocates Act, 1961 is titled “Right to practice”. Section 29 states that only advocates are entitled to practice the profession of law and this right under section 30 extends to all courts, tribunals and other authorities mentioned therein. Section 33 states that only a person enrolled as an advocate can practice in any court or before any authority or person. Section 32 enables the court to permit even a person not enrolled as an advocate to appear before it in any case.
The word “advocate” is defined in section 2A and on a reading of other clauses in the definition in section 2 means advocate who has enrolled with any State Bar Council. In the absence of a definition in the Advocates Act, 1961, ‘practice the profession of law’ would mean taking into consideration the historical evolution of this legislation to mean, practicing before courts and tribunals and would not apply to non-litigation work.
Article 220 and Non-Advocates Practicing Law
Article 220 of the Constitution of India restricts a retired judge from practicing in the court in which he was a judge. However, he is entitled to practice in any other High Court and the Supreme Court. The Advocates Act, 1961 and Bar Council Rules requires such a retired judge to re-enroll himself before a Bar Council so as to re-acquire right to practice.
Several retired judges give extensive legal opinion, which is a non-litigation work. Similarly, deciding disputes as an arbitrator is a mixture of both litigation and non-litigation. Now, according to the aforesaid Supreme Court ruling, retired judges performing all the aforesaid activities are engaged in practice the profession of law but it would be illegal unless they are enrolled as advocates.
Similarly, Chartered Accountants, Company Secretaries, Civil Engineers and Architects shall not be entitled to advise on any law as it would amount to non-litigation practice and practice the profession of law. As earlier mentioned, this was never the intention of the Advocates Act, 1961 or the legislations that preceded it. Till date, there is not a single Bar Council of India Rule that purports regulating the non-litigation practice.
The Supreme Court has failed to take into consideration that non-advocates like Chartered Accountants give opinions or interpret the provisions of Income-tax Act, Company Secretaries gives advise and interpret provisions of Companies Act. Even Civil Engineers and Architects are required to interpret and apply municipal and building laws.
American Jurist and Judge Benjamin Cardozo in his lectures on The Nature of the Judicial Process observed that,
“The judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles.”
It is submitted that the Supreme Court failed to take note several larger bench judgments which were cited before it and which categorically held that “practice the profession of law” would only mean “practice before courts”.
In Aswini Kumar Ghose v Arabinda Bose AIR 1952 SC 369 a Constitution Bench of Supreme Court while deciding a petition on an advocates right to appear in the Calcutta High Court’s original side while he was entitled to act and plead in the appellate side held that,
“…it seems reasonable, therefore to assume that the practice of law in this country generally involves the exercise of both the functions of acting and pleading on behalf of a litigant party.”
Similarly, in re Lilly Isabel Thomas AIR 1964, SC 855 a Constitution Bench of the Supreme Court and a Three Judge Bench of the Supreme Court in Bar Council of Uttar Pradesh v State of UP (1973) 1 SCC 261 held that,
“…the right to practice the profession of law under the 1961, Act is relatable only to the advocates practicing the profession of law before Courts/Tribunals/any other authority.”
Yet another Constitution Bench of the Supreme Court in ON Mohindroo v Bar Council of Delhi AIR 1968 SC 888 held that,
“…Since all those who have been enrolled have a right to practice in the Supreme Court and the High Court, the 1961, Act is a piece of legislation which deals with persons entitled to practice before the Supreme Court and the High Courts. Therefore the 1961, Act must be heed to fall within entries 77 and 78 of List I. As the power of legislation relating to those entitled to practice in the Supreme Court and the High Court is carved out from the general power to legislate in relation to legal and other professions in entry 26 of List III…”
The legal services sector in India has been governed by a legislation which was passed more than 50 years ago. Over these 50 years, the Indian economy has transitioned into a new cycle of macroeconomic growth driven by the liberalization of various sectors.
The legal profession in India is the second largest in the world, it is today beset with several problems and challenges not entirely of its own making. When the Advocates Act, 1961 was formulated the profession was not even one-twentieth of its present size. This article has but attempted to highlight only one of the lacunae in the Advocates Act, 1961. In light of the above discussion, it is time a review of the Advocates Act, 1961 is taken up on priority, so that it is in tune with current times.
In this context, lawmakers and regulatory authority in India should be mindful of these wise words of Lord Justice Denning,
“If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both.”