Q3.

Right to Practice / Practice of law:

Q4. Explain the rules of regulation governing enrolment and practice:
Q5. Disqualification of enrolment:
 Right is a legally enforceable claim & is inseparably associated with remedy. It is
a legally protected interest. But privilege is benefit conferred by law on person or
a group of persons. Right involves something to be done or not to be done by
another person for the benefit of the person with the right. Whereas privilege
means freedom to do or not to do. There is no restraint in privilege. But in widest
terms right includes privilege. According to Advocates Act, 1961 practice of
advocates is a right. They are entitled to practice law subject to provisions & rules
of the Act.
 Advocates right to practice: Every advocate whose name is entered in the State
rolls is entitled for right to practice throughout the territories in which this Act
extends - in all courts including Supreme Court, before any tribunal & before any
authority of law.
 Advocates alone entitled to practice - Except as otherwise provided in this Act or
any other law for time being in force, no person is entitled to practice in any court
or authority unless he is enrolled as an advocate under this Act.
Condition for Right to Practice:
 Conditions for right to practice are laid down in the Chapter III and Part VI of the
Bar Council of India rules.
 Every advocate must see that his name appears on the rolls of State Bar Council
within whose jurisdiction he ordinarily practices. He must apply for a transfer
within 6 months to the jurisdiction he is ordinarily practicing. Else he would be
guilty of professional misconduct. Every advocate must update the change of
address, if any, where he is enrolled.
 If any advocate voluntarily suspends his practice for any reason, he must intimate
the concerned State Bar council by registered post along with his certificate of
enrolment in original. Whenever he wants to resume practice, he shall apply to
the Secretary of State Bar Council for resumption of practice along with an
affidavit stating whether he incurred any disqualifications during the period of
suspension. The enrolment committee of state bar council may order resumption
of his practice and return the certificate to him with necessary endorsement.
 An advocate must not enter into partnership for sharing remuneration with any
person or legal practitioner who is not advocate. An advocate whose name has
been removed by order of Supreme Court or High Court or Bar Council is not
entitled to practice the profession of law before any court or authorities of law.
The council can call upon an advocate and ask him to furnish his details of
enrolment. No advocate is entitled to practice if in the opinion of council, he is
suffering from such contagious disease which may be hazardous to the health of
others. An officer after his retirement shall not practice for a period of 2 years in
the area in which he exercised jurisdiction for a period of 3 years before his
retirement.
 If a person who is not enrolled as an advocate in the State rolls practices as an
advocate he is said to be cheating by personation under IPC and is punishable
with an imprisonment which may extend to 3 years or fine or both. In C/L Rahim
Khan case, he practiced as advocate from 1985 in City Civil Court in AP without
holding the degree in law and without enrolling as an advocate in AP State Bar
Council and imprisoned for a period of 6 months.
 Right to practice is a right of advocates only, however any person can defend his
own case, if he wants to do so. As per Sec 32, in particular cases, court may
permit any person not enrolled as an advocate under this Act. Right to appear
before a sales authority is not confined to advocates only. An employee, a
relative, a sales tax practitioner or professionally qualified people like lawyers and
accountants can appear before the court.
Right to Practice - Constitutional Guarantee U/A 19(1)G):
 As per Art 19(1)(G) All the citizens have to the right to practice any profession or
to carry on any occupation, trade or business. However, this is regulated by Art
19(6). This freedom of profession is available only to citizens and not to
foreigners or aliens.
 Freedom to take up any profession, occupation, trade or business is the
fundamental right to the citizens guaranteed by Indian Constitution. But keeping
in mind the larger interests of the community some reasonable restrictions have
been imposed. Viz.
o Professional or technical qualifications are necessary for practicing the
respective profession.
o State can carry on any trade or business even excluding the citizens wholly or
partly.
 These restrictions apply even to the advocates. A person to be appointed as
advocate must be a citizen of India, possess degree in law, must 21years of age.
In C/L Indian Council of Legal Aid & Advice Vs Bar Council of India, Supreme
Court held that the imposition of a rule whereby all persons above 45years are
not qualified to be enrolled as advocates is beyond rule making power of BCI and
is therefore ultra vires.
 Thus, right to practice as an advocate is neither an absolute right nor a
fundamental right but a special favor or advantage available to advocates
according to the constitutional right of Art 19(1)(g) & 19(6).
Rules governing Enrolment:
 No person can give a power of attorney to defend his case to a person who is not
an advocate. Similarly, no person, who is not an advocate, can claim to plead for
another. In C/L Hamiraj vs Bar Council of Maharashtra & Goa SC held that “Bar
council restricting the entry of a person already carrying on another profession is
not arbitrary or unreasonable. It is not violative of his fundamental right U/A 19(1)
(g) since legal profession requires full time attention. For advocate to argue in
court of justice, he needs to enroll in the bar council. There are certain
requirements, rules and conditions for a person to be enrolled in the bar council.
 According to Sec 24(1) of Advocates Act, 1961 he/she needs to fulfil the following
5 conditions:
1. He must be the citizen of India: The person who wants to be enrolled in state bar
council should be a citizen of India as per Art 5, 6, 7 8 & 9 of Indian constitution.
 Art 5 – Citizenship by domicile at the commencement of constitution
 One who was born in the territory of India
 Either of this parents were born in the territory of India
 One who has been ordinarily resident in the territory of India for a period
not less than 5years immediately preceding its commencement.
 Art 6 - Citizens migrated from Pakistan - If he or either of his parents or any of
his grandparents were born in Indian territory as defined in GOI Act 1935 and
he
 came to India before 19 Jul 1948 - Got Citizenship without application.
(Advani)
 came to India after 19 Jul 1948 - had to register for citizenship before
commencement of Constitution & be a resident for not less 6 months
preceding application.
 Art 7 - Persons who migrated to Pakistan – All citizens who migrated to
Pakistan after 1 Mar 1947 cease to be citizens. If anyone returns for
resettlement Art 6 applies. However, exemption for those who came for
resettlement are entitled for citizenship subject to fulfilment of conditions.
 Art 8 & 9 - Citizenship of Indians Abroad - Person of Indian origin residing
abroad can obtain citizenship if:
 Such person or either of his parents or grandparents was born in India as
per GOI Act 1935
 Such person is registered as Citizen of India by the Diplomatic
representative of the country where he is residing
Person who voluntarily acquired citizenship of another country he cannot
claim citizenship of India
 Art 10 - Citizenship given as per the laws made by parliament: – Every person
who is or deemed to be citizen of India under any of the above provisions are
subject to provisions of any law made by Parliament.
 Art 11 - Parliament is empowered to regulate the citizenship Act with regards
to provisions on Acquisition and termination of citizenship. According to that
Act, citizenship of India can be acquired by
 By birth – persons born within the territory of India, whose one of the
parents is India.
 By descent - A person born outside India on or after 26 Jan 1950 shall be
citizen of India by descent:
 If such person or either of his parents or grandparents was born in
India as per GOI Act 1935.
 If such person is registered as Citizen of India by Diplomatic
representative of the country where is residing.
  By naturalization - A foreigner can acquire citizenship on application of
naturalization to GOI.
 By incorporation of territory - When a new territory is incorporated into
territory of India automatically they become citizens. Ex: Goa & Sikkim
 Overseas citizenship can be acquired by registration, conferment of right,
renunciation or deprivation.
2. He must have completed 21years of age : The person who has attained age of 21
years is eligible to be an advocate. In Advocates Act, there was no other
restriction on age. Hence the Bar Council of India’s rule disqualifying the persons
above 45years of age for enrolment as advocates was held as ultra vires by the
Supreme Court.
3. Educational qualification – A law degree
o Before 12th March 1967: He must have obtained a law degree from any
university in the territory of India
o Before 15th Aug 1947: He must have obtained a law degree from any
university within the territory of India as per Government of India Act 1935.
o After 12th March 1967: He must do a 3-year law course from any university of
India recognized by BCI for the purpose of Advocates Act.
o Before 1967-68: He must have undergone a 2-year law course from any
university in India recognized for the purpose of Advocates Act by BCI.
o Degree from any university outside the territory of India:
 Such foreign degree or qualification in law which is recognized by BCI for
the purpose of Advocates Act or
 He must be a barrister on or before 31st Dec 1976 or
 He must have passed the article clerks examination or another
examination specified by Bombay or Calcutta for enrolment as attorney of
that High court
A person shall be deemed to have obtained a degree in law from University on
the date on which the results are published by the University on its notice board.
4. State Bar Council Rules – The person must fulfil such other conditions specified
by the State Bar Council.
5. Payment of fees: He must pay an enrolment fee of Rs.6000/- payable to the State
Bar Council & Rs.150/- to BCI by way of bank draft drawn in favor of that council.
Enrolment fee payable by the scheduled caste or scheduled tribe member,
provided he produces a certificate to that effect, shall be Rs.100/- to State Bar
Council and Rs.25/- to BCI. He must also the enrolment stamp duty chargeable
under the Indian Stamp Act and
 A law graduate can be appointed as an advocate on state roll if he makes an
application for enrolment in accordance with the provisions of the Act not later
than 2 years from the appointed day and fulfils the above conditions. A vakil or
pleader who is a law graduate may be admitted as an advocate on state roll if he
makes an application for such enrolment as per the provisions of the Act not later
than 2 years from the appointed date and he fulfils all other 4 conditions.
 A person, who
o has been a vakil or pleader or mukhtar for atleast 3 years or
o was entitled to be enrolled under any law as an advocate of High Court or
o Before 1st Dec 1961 was entitled, otherwise than an advocate, to practice the
profession of law by virtue of provisions of any law and not been in public
service as on the said date.
o Before 1st April 1937, has been an advocate of any High Court within the
territory of Burma as per GOI Act, 1935.
o Is entitled to be enrolled as an advocate under any rule made by BCI on this
behalf. He needs to make an application for such enrolment in accordance
with provisions of the Act and fulfil the 4 conditions mentioned above.
 As per the Bar Council Rules any person who held the office as a Judge of any
High Court in India may on retirement be admitted as advocate on the rolls of any
State Council where he is eligible to practice. In C/L Sudheer Vs Bar Council of
India SC held that the rule imposed by Bar Council for pre-enrolment training and
apprenticeship is ultra vires the rule making power of Bar Council.
Enrolment of Supreme Court Advocates:
 If an advocate was not enrolled with any State Bar Council but was entitled to
practice at Supreme Court before the appointed day, within a prescribed time, he
could express to BCI his intention enroll himself with any state bar council. BCI
without payment of any free shall direct that the name of such advocate be
entered in the roll of that state bar council and the state bar council shall comply
with such direction. Such entry is done in accordance with the provisions of
seniority. Seniority shall be done according to the date of enrolment under the
Indian Bar Council Act 1961. Seniority of others shall be determined by the date
of their enrolment. Once an advocate is designated as senior advocate as per
Supreme Court Rules, the Registrar shall communicate to all high courts and
secretary of the concerned bar council. Any advocate not being a senior
advocate on fulfilling the conditions of Supreme Court Rules shall be registered in
the court as an advocate on record.
 No advocate shall qualify to be registered as an advocate on records unless
o His name is enrolled on the rolls of State Bar Council for a period not less
than 3 years in High Court and 2 years in lower courts.
o He has undergone training for one year with an advocate on record approved
by the court and passed the tests held by the court.
o An attorney shall be exempted from such training and test.
o Chief justice may in appropriate cases grant exemption from the requirement
of such training.
o He must have an office within 16 Kms radius of court & give an undertaking to
employ a registered clerk within one month of his registration as advocate on
record.
 An advocate who has been convicted of an offence involving moral turpitude shall
not be eligible for a period of 2 years.
 Restrictions on the duties of senior advocates of supreme court - Senior advocate
shall not file a vakalatnama or act in any court or tribunal in India. He shall not
appeal without an advocate on record in the supreme court or without a junior in
any other court or tribunal of India. He shall not accept any brief from a client
directly or appear or draw pleadings or undertake application work in any court or
tribunal or before any authority. But he can take up such matter in consultation
with a junior.
Disqualification of enrolment:
 According to Sec 24-A no person shall be admitted as on advocate on the state
rolls
o if he is convicted of an offence involving moral turpitude.
o If he is convicted of an offence under the provisions of untouchability offences
Act.
Such disqualification would be effective for 2 years.
o If he is dismissed or removed from employment on any charge involving moral
turpitude.
 State includes government, parliament of India, legislature of state, local or other
authorities within the territory of India as per Art 12. In C/L Kumari Madhuri Patil
Vs Additional Commissioner, Tribal development SC held that conviction for
obtaining false certificate about social status (Backwardness) would be an
offence involving moral turpitude and such person is disqualified for enrolment. In
C/L Hikmat Ali Khan Vs Ishwar Prasad SC held that an advocate if he is
convicted of an offence involving moral turpitude he is entitled for punishment of
removal of name from the rolls of advocates.
Disposal of application
 State bar council will refer the application for admission to its enrolment
committee. Enrolment committee will dispose the application as per the
provisions of the Act & directions of the state bar council. Where enrolment
committee proposes to refuse the application, it shall refer the same for opinion of
BCI. When the enrolment committee of a state bar council refuses any
application for admission, it shall send an intimation to all other state bar councils
about refusal giving all details of the person along with grounds for rejection.
Application once refused shall not be entertained by any other bar councils
except with the consent in writing by the state bar council which refused the
application. BCI, if satisfied, either on reference made to it or otherwise that any
person has got his name entered on the rolls of advocates by misrepresentation
or fraud or undue influence, may remove the name of such person from the rolls
of advocates after giving him an opportunity of being heard. According to the
Advocates Act a State Bar Council may remove, from the state rolls, the name of
any advocate who is dead or if a request had been received to that effect.