Submitted by Aadesh Agarkar
Section 16 to 28 of the Advocates Act, 1961 deals with the Admission and Enrollment of Advocates. The provisions of the Advocates Act, 1961 relating to the Admission and Enrollment of the Advocates may be explained under the following headlines.
SENIOR ADVOCATE AND OTHER ADVOCATES (SEC 16)
Section 16 provides that there shall be two classes of advocate namely senior advocate and other Advocates .An advocate may with his consent be designated as a senior advocate if the Supreme Court or High Court is of an opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law he is deserving of such distinction. Senior Advocate shall in matter of their prActice be subject to such restrictions as the Bar Council of India made in the interest of legal profession prescribe. An advocate of the Supreme court who was the senior advocate of that court immediately before the appointment date for this purpose is deemed to be a Senior Advocate. It has also been provided by that senior advocate shall not accept directly from a client any brief or instruction to appear in any Court or tribunal or before any person or other authorities in India.
PERSON WHO MAY BE ADMITTED AS ADVOCATE ON A STATE ROLL (Section 24)
Section 24 of the Advocates Act, 1961 makes provision in respect of a person who may be admitted as an advocate on state roll .Sub Section
1 of Section 24 provides that subject to the provisions of the Advocates Act and rules made thereunder a person shall be qualified
to get admitted as an advocate on a state roll if he fulfills the following conditions namely-
1)He is a citizen of India.
2)He has completed the age of 21 years.
3)He has obtained the degree of law-
a)Before 12-3-1967 from any university in the territory of India or
b)Before 15-8-1947 from any university in any area which was comprised before that day within India as defined in Govt of India Act.
c)After 12-3-1967 save as provided in sub clause 3a) after undergoing 3 years of course in law from any university in India which is recognized for the purpose of this Act by Bar Council of India.
d)After undergoing a course of study in law of duration which is not less than 2 academic years commencing the academic year 1967-68 or any earlier academic year from any university in India which is recognized for the purpose of this Act by the Bar Council of India.
e)In any other case from any university outside the territory of India, if the degree is recognized for the purpose of this Act by the Bar Council of India.
f)if he fulfills such other conditions as may be specified in the rules made by the State Bar Council for this purpose he has paid in respect of the enrollment stamp duty if any chargeable under the Indian stamp Act and prescribe enrollment fees.
Sub Section 2 of Section 24 of that makes it clear that a vakil or a pleader who is a law graduate may be admitted as an advocate on
state roll if he-
a)Makes an application for such enrollment in accordance with the provisions of this Act, not later than 2 years from the appointment day.
b)Fulfills the condition specified in clause a,b,d, and e.
SubSection 3 of Section 24 makes it clear that notwithstanding anything contained in sub Section 1 person who-
a) has for at least 3 years being a pleader, vakil or mukhtar or was entitled at any time to be enrolled under any law as an advocate of High Court including a high Court of a former part b) state or of a court of judicial Commissioner in any Union territory.
b) before 1.12.1961 was entitled otherwise than an advocate to prActice the profession of law by virtue of the provisions of any law or who would have been so entitled had he not been in public service on the same date.
c) before 1.4.1937, advocate of any High Court in any area which was comprised within Burma as defined in the Government of India Act 1935,
d) is entitled to be enrolled as an advocate under the rules made by the Bar Council of India in this Behalf.
Maybe admitted as an advocate on state roll if he-
a) makes an application for such enrollment in accordance with the provisions of this Act.
b) fulfills the conditions specified in clause a) d) and e) of subSection 1 of Section 24.
In the case of HANIRAJ L.CHULANI V. Bar Council OF MAHARASHTRA & GOA
The Supreme Court has held that the rule made by the Bar Council is restricting the entry of person already carrying on another profession is not arbitrary and, therefore not against article 14 of the Constitution. It does not impose unreasonable restrictions, as a result, it is not violative of article 19(1)(g) which guarantees all citizens right to prActice any profession or to carry on any occupation,trade or business. The court has observed that article 19(1)(g) does not provide an absolute right to prActice any profession or carry on any occupation, trade or business. It is subject to clause 6 of article 19 which provides that nothing in sub clause g of clause 1 of article 19 shall affect operation of any existing law in so far as it imposes or prevent the state from making any law imposing, in the interest of general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
ALL INDIA Bar EXAMINATION
As per rule 9 of Bar Council of India rules no advocate enrolled under Section 24 of the Advocates Act shall be entitled prActice under chapter 4 of the said Act, unless such advocate successful passes the All India Bar
Examination conducted by the Bar Council of India. It has been made clear that examination shall be mandatory for all law students graduating from the academic
year 2009 - 2010 and onwards and enrolled as an advocate under Section 24 of the Advocates Act.
Rule 10 makes provision in respect of the All India Bar Examination-
1) the Bar Examination shall be held at at least twice a years.
2) the Bar Examination shall test Advocates in such substantive and procedural law areas as the Bar Council of India holds time to time.
3) such substantive/procedural law areas and syllabi shall be published by the Bar Council of India at least 3 months prior to the scheduled date of examination.
4) the percentage of marks required to pass the Bar Examination shall be determined by the Bar Council of India.
5) an unsuccessful advocate may appear again for the Bar Examination, without any limit on the number of attempts.
6) the Bar Council of India, through a committee of experts, shall determine syllabi, recommended reading, an appointment of paper setters, moderators, evaluators ,model answers, examination hall rules and other related matters.
7) the Bar Council of India shall determine the manner and format of application for the examination.
8) upon successful passing the Bar Examination, the Advocate shall be entitled to a Certificate of PrActice.
Disqualification for enrollment (Section 24-A)
Section 24-A (1) makes provision in respect of disqualification for enrollment as an advocate. It provides that no person shall be admitted
as an advocate on State roll-
a) if he is convicted of an offence involving moral turpitude.
b) if he is convicted of an offence of Untouchability Act, 1955. Provided that the disqualification for enrollment as aforesaid shall cease to have effect after 2 years has elapsed since his release or dismissed, as the case may be.
In ANEES AHMAD V. UNIVERSITY OF DELHI, Delhi High Court has held that no full-time law teachers drawing regular salaries can enroll himself as an advocate.
DISPOSAL OF APPLICATION FOR ADMISSION AS AN ADVOCATE (Section 26)
Section 26 of the Advocates Act provides that state Bar Council shall refer every application for admission as an advocate to its enrollment committee and subject to any directions that may be given in writing by the State Bar Council in this behalf, search committee shall dispose of the application in a prescribed manner. However the Bar Council of India may, if satisfied, either on reference made to it in this behalf or otherwise that any person has got his name entered on the role of advocate by misrepresentation as to an essential fActs or by fraud or by undue influence, remove the name of such person from the role of advocate after giving him an opportunity of being heard.
REMOVAL OF NAME FROM THE ROLL (Section 26 a)
According to Section 26-A Advocates Act, the state Bar Council may remove from the state roll, the name of any advocate who is dead from whom a request has been received to that effect.
Dispute regarding seniority Section 21
According to Section 21 of the Advocates Act where the date of seniority of two or more persons is the same, the one senior in age shall be reckoned as senior to the other. Subject as aforesaid, if any dispute arise with respect to the seniority of any person, it shall be referred to the State Bar Council concerned for decision.
Certificate for enrollment Section 22
Section 22 of the Advocates Act provides that there shall be issued a certificate for enrollment in the prescribed form by the state Bar Council to every person whose name is entered in the role of Advocates maintained by it under this Act. Every person whose name is so entered in the state roll shall notify any changes in the place office permanent residence to the state Bar Council concerned within 90 days of such change.
Right of Pre-audience Section 23
Section 23 of the Act makes provision in the respect of Pre audience.
1) the Attorney General of India shall have pre-audience over all other Advocates.
2) subject to the provisions of subSection 1 stated above the Solicitor General of India shall have pre-audience over all other advocate.
3) subject as aforesaid-
a) senior advocate shall have pre-audience over other Advocates.
b) the right of Pre audience of senior Advocates inter se and other Advocates inter se shall be determined by their respective seniority.
Submitted by Aadesh Agarkar