THE INDIAN BAR COUNCILS ACT, 1926

 

ACT NO.38 OF 1926

[AS ON 1957]

     {This Act has been amended in its application to—

(1)  the High Court of Judicature at Nagpur by the C.P.and Berar Act 24 of 1939;

(2)  the Province of Madras by Mad.Act 9 of 1947.}

 

 An Act to provide for the constitution of Bar Councils {The words in the Provinces of India omitted by the A.O.1950.} and for other purposes.

 

[9th September, 1926.]

Contents

PRELIMINARY

1.Short title, extent and application

2.Interpretation

CONSTITUTION OF BAR COUNCILS

3.Constitution and incorporation of Bar Councils

4.Composition of Bar Councils

5.Special provisions regarding constitution of first Bar Councils

6.Power to make rules regarding constitution and procedure of Bar Councils

7.Power of Bar Councils to make bye-laws

ADMISSION AND ENROLMENT OF ADVOCATES

8.Enrolment of advocates

9.Qualifications and admission of advocates

MISCONDUCT

10.Punishment of advocate for misconduct

11.Tribunal of Bar Council

12.Procedure in inquiries

13.Powers of the Tribunal and Courts in inquiries

MISCELLANEOUS

14.Right of advocates to practise

15.General power of Bar Councils to make rules

16.Power to fix fees payable as costs

17.Indemnity against legal proceedings

18.Publication of rules

19.Amendment of enactments, etc

20.Transitional provision regarding certain Bar Councils affected by States re-organisation

THE SCHEDULE

 

     WHEREAS it is expedient to provide for the constitution and incorporation of Bar Councils for certain Courts {The words "in the Provinces of India" omitted by the A.O.1950}, to confer powers and impose duties on such Bar Councils, and to consolidate and amend the law relating to legal practitioners entitled to practice in such Courts; It is hereby enacted as follows:—

 

PRELIMINARY

 

    

1.Short title, extent and application

.-  (1) This Act may be called the Indian Bar Councils Act, 1926.

 

     {Subs.by Act 3 of 1951, s.3 and Sch., for sub-section (2).} [(2) It extends to the whole of India except the State of Jammu and Kashmir, and shall apply to the High Court of {Subs.by the Adaptation of Laws (No.2) Order, 1956, for "every Part A State and of every Part B State".} [every State] other than the State of Jammu and Kashmir and also to such Judicial Commissioners' Courts in {Subs., ibid., for "Part C States".} [Union territories] as the Central Government may, by notification in the Official Gazette, declare to be High Courts to which this Act applies.].

 

     {Sub-section (3) omitted, ibid.

     Ss.1, 2, 17, 18 and 19 came into force at once.The rest of the Act came into force in respect of—

(i)           The Calcutta High Court, ss.3 to 7 from 1st March 1928 (see Gazette of India, 1928, Pt.I, p.325) and ss.8 to 16 from 1st July 1928 (see ibid., p.382);

(ii)          the Madras High Court, from 16th July, 1928 (see ibid., p.382);

(iii)         the Bombay High Court from 1st January, 1929 (see ibid., p.714);

(iv)         the Allahabad High Court from 1st June, 1928 (see ibid., p.400);

(v)           the Patna High Court from 1st January, 1929 (see ibid., p.703);

(vi)         the Oudh Chief Court from 1st March, 1928 (see ibid., p.325);

(vii)        the Nagpur High Court, ss.3 to 7 from 1st January, 1937 and ss.8 to 16 from 1st April, 1937, see Gazette of India, 1936, Pt.I, p.1170.}

 

    

2.Interpretation

.- {S.2 may be deemed to have been renumbered as sub-section (1) of that section by the A.O.1937.} [(1)] In this Act, unless there is anything repugnant in the subject or context,—

 

(a)  "advocate" means an advocate entered in the roll of advocates of a High Court under the provisions of this Act;

 

(b) "Advocate-General" includes, where there is no Advocate General, the Government Advocate and, where there is no Advocate-General or Government Advocate, such officer as the State Government may declare to be the Advocate General for the purposes of this Act;

 

(c) "High Court" means a High Court to which this Act applies; and

 

(d) "prescribed" means prescribed by rules made under this  Act.

 

     {Ins., ibid.} [(2) In this Act "the State Government" means, in relation to any High Court, the State Government of the State in which the High Court has its principal seat.]

 

CONSTITUTION OF BAR COUNCILS

 

    

3.Constitution and incorporation of Bar Councils

.-  (1) For every High Court a Bar Council shall be constituted in the manner hereinafter provided.

 

     (2) Every Bar Council so constituted shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property, both movable and immovable, and to contract, and shall by the name of the Bar Council of the High Court for which it has been constituted sue and be sued.

 

     

4.Composition of Bar Councils

.-  (1) Every Bar Council shall consist of fifteen members, of  whom—

 

(a) one shall be the Advocate-General;

 

(b) four shall be persons nominated by the High Court, of whom not more than two may be Judges of that Court; and

 

(c) ten shall be elected by the advocates of the High Court from amongst their number.

 

     (2) Of the elected members of every Bar Council not less than five shall be persons who have for not less than ten years been entitled as of right to practice in the High Court for which the Bar Council has been constituted.

 

     (3) Of the elected members of the Bar Councils to be constituted for the High Courts of Judicature at Fort William in Bengal and at Bombay such proportion as the High Court may direct in each case shall be persons who have, for such minimum period as the High Court may determine, been entitled to practice in the High Court in the exercise of its original jurisdiction, and such number as may be fixed by the High Court out of the said proportion shall be barristers of England or Ireland or members of the Faculty of Advocates in Scotland.

 

     (4) There shall be a Chairman and Vice-Chairman of each Bar Council elected by the Council in such manner as may be prescribed:

 

     Provided that the Advocates-General {Subs.by the A.O.1948 for "of Bengal"} [of West Bengal], Madras and Bombay shall be Chairmen ex officio, respectively, of the Bar Councils constituted for the High Courts of Judicature at Fort William in Bengal, at Madras and at Bombay.

 

    

5.Special provisions regarding constitution of first Bar Councils

.-  (1) Notwithstanding anything contained in clause (c) of sub-section (1) of section 4, the elected members of the first Bar Council constituted under this Act for any High Court shall be elected by and from amongst the advocates, vakils and pleaders who are on the date of the election entitled as of right to practice in the High Court.

 

     (2) The terms of office of the nominated and elected members of any such first Bar Council shall be three years from the date of the first meeting of the Council.

 

    

6.Power to make rules regarding constitution and procedure of Bar Councils

.-  (1) Rules, consistent with this Act, may be made to provide  for the following matters, namely:—

 

(a) the manner in which elections of members of the Bar Council shall be held; the method of determining, in  accordance with the provisions of sub-sections (2) and  (3) of section 4, the candidates who shall be declared to have been elected; the manner in which the result of elections shall be published; and the manner in which and the authority by which doubts and disputes as to the validity of an election shall be finally decided;

 

(b) the terms of office of nominated and elected members of the Council;

 

(c) the filling of casual vacancies in the Council;

 

(d) the convening of meetings of the Council, and the quorum necessary for the transaction of business thereat;

 

(e) the manner of election and the respective terms of office of the Chairman, in cases where the Chairman is to be elected, and of the Vice-Chairman; and

 

(f) any matter incidental or ancillary to any of the foregoing matters.

 

     (2) The first rules under this section shall be made by the High Court, but the Bar Council may thereafter, with the previous sanction of the High Court, add to, amend or rescind any rules so made.

 

     (3) No election of a member or members to the Council shall be called in question on the ground that due notice thereof has not been given to any person entitled to vote thereat, if notice of the date fixed for the election has, not less than thirty days before that date, been published in the Official Gazette of the State, or of each State, as the case may be, in which the High Court exercises jurisdiction.

 

     (4) Rules made under clause (b) of sub-section (1) may provide for the retirement of members from office by rotation and for the manner in which the order of such retirement shall be determined.

 

    

7.Power of Bar Councils to make bye-laws

.-  The Bar Council may make bye-laws consistent with this Act and any rules made thereunder to provide for any of the following matters, namely:—

 

(a) the appointment of such ministerial officers and servants as the Bar Council may deem necessary, and the pay and allowances and other conditions of service of such officers and servants; and

 

(b) the appointment and constitution of Committees of the Council, the procedure of such Committees, and the determination of the powers or duties of the Council which may be delegated to such Committees.

 

ADMISSION AND ENROLMENT OF ADVOCATES

 

    

8.Enrolment of advocates

.-  (1) No person shall be entitled as of right to practice in a High Court, unless his name is entered in the roll of the advocates of the High Court maintained under this Act:

 

     Provided that nothing in this sub-section shall apply to any attorney of the High Court.

 

     (2) The High Court shall prepare and maintain a roll of advocates of the High Court in which shall be entered the names of—

 

(a) all persons who were, as advocates, vakils or pleaders entitled as of right to practice in the High Court immediately before the date on which this section comes into force in respect thereof; and

 

(b) all other persons who have been admitted to be advocates of the High Court under this Act:

 

Provided that such persons shall have paid in respect of enrolment the stamp-duty, if any,   chargeable under the Indian Stamp Act, 1899 (2 of 1899), and a fee, payable to the Bar Council, which shall be ten rupees in the case of the persons referred to in clause (a), and in other cases such amount as may be prescribed.

 

     {Sub-sections (3) and (4) ins.by Act 13 of 1927, s.2.} [(3) Entries in the roll shall be made in the order of seniority and such seniority shall be determined as follows, namely:—

 

(a) all such persons as are referred to in clause (a) of subsection (2) shall be entered first in the order in which they were respectively entitled to seniority inter se immediately before the date on which this section comes into force in respect of the High Court; and

 

(b) the seniority of any other person admitted to be an advocate of the High Court under this Act after that date shall be determined by the date of his admission or, if he is  barrister, by the date of his admission or the date on which he was called to the Bar, whichever date is earlier:

 

Provided that, for the purposes of clause (b), the seniority of a person who before his admission to be an advocate was entitled as of right to practice in another High Court shall be determined by the date on which he became so entitled.

 

     (4) The respective rights of pre-audience of advocates of the High Court shall be determined by seniority:

 

     Provided that the Advocate-General shall have pre-audience over all other advocates {The words "and King's Counsel shall have pre-audience over all advocates except the Advocate-General" omitted by Act 3 of 1951, s.3 and Sch.}.]

 

     {Sub-sections (3), (4) and (5) renumbered as sub-sections (5), (6) and ( 7) respectively by Act 13 of 1927, s.2.} [(5)] The High Court shall issue a certificate of enrolment to every person enrolled under this section.

 

     {Sub-sections (3), (4) and (5) renumbered as sub-sections (5), (6) and (7) respectively by Act 13 of 1927, s.2.} [(6)] The High Court shall send to the Bar Council a copy of the roll as prepared under this section! and shall thereafter communicate to the Bar Council all alterations in, and additions to, the roll as soon as the same have been made.

 

     {Sub-sections (3), (4) and (5) renumbered as sub-sections (5), (6) and (7) respectively by act 13 of 1927, s.2.} [(7)] The Bar Council shall enter in the copy of the roll all alterations and additions so communicated to it.

 

    

9.Qualifications and admission of advocates

.-  (1) The Bar Council may, with the previous sanction of the High Court, make rules to regulate the admission of persons to be advocates of the High Court:

 

     Provided that such rules shall not limit or in any way affect the power of the High Court to refuse admission to any person at its discretion.

 

     (2) In particular and without prejudice to the generality of the foregoing power, such rules shall provide for the following matters, namely:—

 

(a) the qualifications to be possessed by persons applying for admission as advocates;

 

(b) the form and manner in which applications shall be made to the High Court for admission;

 

(c) the giving of notice by the High Court to the Bar Council, of all such applications;

 

(d) the hearing by the High Court of any objection preferred on behalf of the Bar Council to the admission of any applicant; and

 

(e) the charging of fees payable to the Bar Council in respect  of enrolment.          

 

     (3) Rules made under this section shall provide that no woman shall be disqualified for admission to be an advocate by reason only of her sex.

 

     (4) Nothing in this section or in any other provision of this Act shall be deemed to limit or in any way affect the powers of the High  Courts of Judicature at Fort William in Bengal and at Bombay to prescribe the qualifications to be possessed by persons applying to practice in those High Courts respectively in the exercise of their original jurisdiction or the powers of those High Courts to grant or refuse, as they think fit, any such application {Ins.by Act 13 of 1927, s.3.} [or to prescribe the conditions under which such persons shall be entitled to practice or plead].

 

MISCONDUCT

 

     {For this section as applicable to the High Court of Judicature at Nagpur, see C.P.and Berar Act 24 of 1939.This section has also been amended in its application to the State of Madras by Mad.Act 9 of 1947.}

10.Punishment of advocate for misconduct

.-  (1) The High Court may, in the manner hereinafter provided,  reprimand, suspend or remove from practice any advocate of the for High Court whom it finds guilty of professional or other misconduct.

 

     (2) Upon receipt of a complaint made to it by any Court or by the Bar Council or by any other person that any such advocate has been guilty of misconduct, the High Court shall, if it does not summarily reject the complaint, refer the case for inquiry either to the Bar Council or, after consultation with the Bar Council, to the Court of a District Judge (hereinafter referred to as a District Court) and may of its own motion so refer any case in which it has otherwise reason to believe that any such advocate has been so guilty.

 

    

11.Tribunal of Bar Council

.-  (1) Where any case is referred for inquiry to the Bar Council under section 10, the case shall be inquired into by a Committee of Bar the Bar Council (hereinafter referred to as the Tribunal).

 

     (2) The Tribunal shall consist of not less than three and not more than five members of the Bar Council appointed for the purpose of the inquiry by the Chief Justice or Chief Judge of the High Court, and one of the members so appointed shall be appointed to be the President of the Tribunal.

 

    

12.Procedure in inquiries

.-  (1) The High Court shall make rules to prescribe the procedure to be followed by Tribunals and by District Courts, respectively, in the conduct of inquiries referred under section 10.

 

     (2) The finding of a Tribunal on an inquiry referred to the Bar Council under section 10 shall be forwarded to the High Court through the Bar Council, and the finding of a District Court on such an inquiry shall be forwarded direct to the High Court which shall cause a copy thereof to be sent to the Bar Council.

 

     (3) On receipt of the finding, the High Court shall fix a date for the hearing of the case and shall cause notice of the day so fixed to be given to the advocate concerned and to the Bar Council and to the Advocate-General, and shall afford the advocate concerned and the Bar Council and the Advocate-General an opportunity of being heard before orders are passed in the case.

 

     (4) The High Court may thereafter either pass such final orders in the case as it thinks fit or refer it back for further inquiry to the Tribunal through the Bar Council or to the District Court, as the case may be, and, upon receipt of the finding after such further inquiry, deal with the case in the manner provided in sub-section (3) and pass final orders thereon.

 

     (5) In passing final orders the High Court may pass such order as regards the payment of the costs of the inquiry and of the hearing in the High Court as it thinks fit.

 

     (6) The High Court may, of its own motion or on application made to it in this behalf, review any order passed under sub-section (4) or sub-section (5) and maintain, vary or rescind the same as it thinks fit.

     (7) When any advocate is reprimanded or suspended under this Act, a record of the punishment shall be entered against his name in the roll of advocates of the High Court, and when an advocate is removed from practice his name shall forthwith be struck off the roll; and the certificate of any advocate so suspended or removed shall be recalled.

 

    

13.Powers of the Tribunal and Courts in inquiries

.-  (1) For the purposes of any such inquiry as aforesaid, a Tribunal or a District Court shall have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:—

 

(a) enforcing the attendance of any person and examining him upon oath,

 

(b) compelling the production of documents, and

 

(c) issuing commissions for the examination of witnesses:

 

     Provided that the Tribunal shall not have power to require the attendance of the presiding officer of any Court save with the previous sanction of the High Court or, in the case of an officer of a Criminal or Revenue Court, of the State Government.

 

     (2) Every such inquiry shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860); and a Tribunal shall be deemed to be a Civil Court for the purposes of sections 480, 482 and 485 of the Code of Criminal Procedure, 1898 (5 of 1898).

 

     (3) For the purpose of enforcing the attendance of any person and examining him upon oath or of compelling the production of documents or of issuing commissions—

 

(a) the local limits of the jurisdiction of a Tribunal shall be those of the jurisdiction of the High Court by which the Tribunal has been constituted; and

 

(b) a Tribunal may send to any Civil Court having jurisdiction in the place where the Tribunal is sitting any summons or other process for the attendance of a witness or the production of a document required by the Tribunal, or any commission which it desires to issue, and the Civil Court shall serve such process or issue such commission, as the case may be, and may enforce any such process as if it were a process for attendance or production before itself.

 

     (4) Proceedings before a Tribunal or a District Court in any such inquiry shall be deemed to be civil proceedings for the purposes of section 132 of the Indian Evidence Act, 1872 (1 of 1872), and the provisions of that section shall apply accordingly.

 

MISCELLANEOUS

 

    

14.Right of advocates to practise

.-  (1) An advocate shall be entitled as of right to practice— 

 

(a) subject to the provisions of sub-section (4) of section 9, in to the High Court of which he is an advocate, and

 

(b) save as otherwise provided by sub-section (2) or by or under any other law for the time being in force in any other Court {The words "in the Provinces" omitted by the A.O.1950.} and before any other Tribunal or person legally authorized to take evidence, and

 

(c) before any other authority or person before whom such advocate is by or under the law for the time being in force entitled to practice.

 

     (2) Where rules have been made by any High Court within the meaning of clause (24) of section 3 of the General Clauses Act, 1897 (10 of 1897), or in the case of a High Court for which a Bar Council has been Constituted under this Act, by such Bar Council under section 15, regulating the conditions subject to which advocates of other High Courts may be permitted to practice in the High Court, such advocates shall not be entitled to practice therein otherwise than subject to such conditions.

 

     (3) Nothing in this section shall be deemed to limit or in any way affect the power of the High Court of Judicature at Fort William in Bengal or of the High Court of Judicature at Bombay to make rules determining the persons who shall be entitled respectively to plead and to act in the High Court in the exercise of its original jurisdiction.

 

    

15.General power of Bar Councils to make rules

.-  A Bar Council may, with the previous sanction of the High Court for which it is constituted, make rules consistent with this Act to provide for and regulate any of the following matters, namely :-

 

(a) the rights and duties of the advocates of the High Court and their discipline and professional conduct;

 

(b) the conditions subject to which advocates of other High Courts may be permitted to practice in the High Court;

 

(c) the giving of facilities for legal education and training and the holding and conduct of examinations by the Bar Council;

 

(d) the charging of fees payable to the Bar Council in respect of the enjoyment of educational facilities provided, or of the right to appear at examinations held, by the Bar Council;

 

(e) the investment and management of the funds of the Bar Council; and

 

(f) any other matter in respect of which the High Court may require rules to be made under this section.

 

    

16.Power to fix fees payable as costs

.-  The High Court shall make rules for fixing and regulating table by taxation or otherwise the fees payable as costs by any party respect of the fees of his adversary's advocate upon all proceeding in the High Court or in any Court subordinate thereto.

 

    

17.Indemnity against legal proceedings

.-  No suit or other legal proceeding shall lie against a Bar Council or any Committee, Tribunal or member of a Bar Council for any act in good faith done or intended to be done in pursuance of the, provisions of this act or of any rule made thereunder.

 

    

18.Publication of rules

.-  All rules made under this Act shall be published in the Official Gazette of the State, or of each State, as the case may be in which the High Court by which or with whose sanction the rules are made exercises jurisdiction.

 

    

19.Amendment of enactments, etc

.-  (1) When sections 8 to 16 come into force in respect of any High Court, any enactment mentioned in the first column of the Schedule which is in force in any State in which the High Court exercises jurisdiction shall, for the purpose of its application to that State, be amended to the extent and in the manner specified in the second column of the Schedule.

 

     (2) When sections 8 to 16 come into force in respect of any High Court of Judicature established by Letters Patent.this Act shall have effect in respect of such Court notwithstanding anything contained in such Letters Patent, and such Letters Patent shall in so far as they are inconsistent with this Act or any rules made thereunder, be deemed to have been repeaIed.

 

     (3) When sections 8 to 16 come into force in respect of the High Court of Judicature at Bombay, the Bombay Pleaders' Act, 1920 (Bom.Act 17 of 1920), except section 7 thereof, shall cease to apply to or in respect of any person enrolled as an advocate of the High Court under this Act, and nothing in that Act shall be deemed to authorize the admission or enrolment of any person as a vakil or pleader of the High Court.

 

     (4) When this Act has come into force in respect of any High Court, any provision of any other enactment or any order, scheme rule, form or bye-law made thereunder, which-was before that date applicable to advocates, vakils or pleaders entitled to practice in such High Court shall, unless such a construction is repugnant to the context or to any provision made by or under this Act, be construed as applying to advocates of the High Court enrolled under this Act.

 

     {Ins.by the Adaptation of Laws (No.2) Order, 1956.}

20.Transitional provision regarding certain Bar Councils affected by States re-organisation

.-  (1) The Bar Councils for the High Courts of the States of Bombay, Madhya Pradesh, Mysore, Punjab, Rajasthan and Travancore, Cochin functioning immediately before the 1st day of November, 1956,  shall be deemed to be the Bar Councils for the High Courts of the corresponding new States of Bombay, Madhya Pradesh, Mysore, Punjab, Rajasthan and Kerala, respectively or

 

     (2) As from the said day,—

 

(a) the Bar Councils for the High Courts of Hyderabad and Saurashtra shall stand dissolved, and

 

(b) the assets and liabilities of the Bar Council for the High Court of Hyderabad shall stand transferred to, the Bar Councils for the High Courts of Andhra Pradesh, Bombay and Mysore and be divided among them in such proportion as may be agreed upon, and in default of such agreement, in the proportion of 57.16:27.81 :14.58.]

 

THE SCHEDULE

 

(See section 19)

 

AMENDMENT OF ENACTMENTS

 

Enactments amended                                                          Extent and manner of amendment

 

The Legal Practitioners Act 1879.                                     (1) In section 4, after the words "with the permission of the Court" the words and figures "or, in the case of a High Court in respect of which the Indian Bar Councils Act, 1926, is in force, subject to rules made under that Act" shall be inserted.

 

(2) In section 6, clauses (a) and (b), after the words "Royal Charter" the words and figures "in respect of which the Indian Bar Councils Act, 1926, is not in force" shall be inserted.

 

The Legal Practitioners Act, 1879.                                    (3) To section 38 the following words and figures shall be added, namely:—

 

"and, except as provided by section 36, nothing in this Act   applies to persons enrolled as advocates of any High Court under the Indian Bar Councils Act, 1926".

 

(4) In section 41, sub-section (1), after the words "Royal Charter" the words and figures "in respect of which the Indian Bar Councils Act, 1926, is not in force" shall be inserted.

 

The Indian Stamp Act, 1899.                                              In Article 30 of the First Schedule after the words "High Court,"   where they first occur, the words and figures "under the Indian Bar Councils Act, 1926, or" shall be inserted

 

The Madras Stamp (Amendment) Act, 1922.                  In Article 25 of Schedule 1A, after the words "High Court," where they first occur, the words and figures "under the Indian Bar Councils Act, 1926, or" shall be inserted.

 

The Bengal Stamp  (Amendment) Act, 1922.                   In Article 30 of Schedule 1A, after the words "High Court," where they first occur, the words and figures "under the Indian Bar Councils Act, 1926, or"  shall be inserted.

 

The Indian Stamp  (Punjab Amendment ) Act, 1922.     In Article 30 of Schedule 1A, after the words "High Court," where they first occur, the words and figures "under the Indian Bar Councils Act, 1926, or" shall be inserted.

 

The Assam Stamp (Amendment) Act, 1922.                    In Article 30 of Schedule 1A, after the words "High Court,"   where they first occur, the words and figures "under the Indian Bar Councils Act, 1926, or" shall be inserted.