When the whole world is grappling with the novel coronavirus pandemic, India has not left untouched with a plethora of cases reported every day. The justice system can’t face stagnation as the courts have started hearing of urgent matters through video-conferencing and other digital platforms. In these trying times, the question of pan-India practice by advocates becomes more relevant. Moreover, in November 2019, the Bar Council of India has also introduced mandatory experience provisions required for practicing law in higher courts[1]. Therefore, this paper will provide insights upon whether advocates possess the right of practicing law all over India or not and would delve upon the viability of BCI’s decision in expanding legal profession of India.
Historical Significance:
The term ‘advocate’ has been legally defined under the Advocates Act, 1961 as “a person who is enrolled in any roll under the provisions of Act”. Generally, the person needs to be enrolled in the list of any State Bar Council for becoming an advocate. Only advocates have the exclusive right to practice law under the concerned Act[2]. In re Lily Isabel Thomas v. Unknown[3] and “Bar Council of Uttar Pradesh v State of UP[4]” it was decided that right to practice law as a profession is provided only to advocates practicing before various courts and tribunals.
When the act was enacted, the advocates could only practice in their respective states which posed severe hindrances to efficient and timely justice mechanism of India. The advocates could only appear before upon the discretion of the concerned presiding officer. But in 2011, the law minister Veerappa Molly decided to notify Section 30 of the Advocates Act, 1961 which was hailed by many people as ‘step-forward’ in advancing the legal system of India.
Under the Act, Section 30 has been defined as – “Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout the territories to which this Act extends,-
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorized to take evidence; and
(iii) before any other authority or person before whom, such advocate is by or under any law for the time being in force entitled to practice”.
This amendment has provided the advocates with the right to practice across the whole of India before any court or tribunals. It was introduced with the main objective to eliminate the increasing number of pending cases across different courts of India. But the BCI has laid down certain rules and regulations which need to comply with to practice legal profession in India.
Related Constitutional Provisions:
The Constitution forms the foundation of every nation by providing six fundamental rights for protecting the interests of the general public. The rights hold significant importance and it also covers the advancing legal system of India. Article 19(1)g of the Indian Constitution protects the right of individuals to practice their professions based on their choice. Advocates also partake in this right as a part of the growing legal profession in India but the right to practice is regarded as fundamental right provided to all citizens. The Supreme Court in a plea for quashing BCI notification regarding All India Bar Examination (AIBE) had decided that right to practice law as the fundamental right[5].
Article 220 of the Indian Constitution also prevents a retired judge to practice in a court where he himself was a judge. But the concerned judge is entitled to practice under different High Courts and the Supreme Court. The Bar Council Rules and Advocates Act, 1961 requires the judge to re-enrol himself for continuing the practice of law. So retired judges can also practice all over India without any imposed restrictions.
Cancellation of BCI Certificate of Practice and Renewal Rules, 2014:
The Bar Council of India (BCI) functions as central administrative legal authority for governing the legal profession in India. In recent years, it had introduced “BCI Certificate of Practice and Renewal Rules, 2014” which governs the right to practice law in India. These rules were enacted with the objective to lay down conditions for practicing the legal profession to give due weightage and credence to experience. According to the rules mentioned, an advocate was required to hold a “certificate of practice” and valid registration under Bar Association recognized by the law.
The rules also stated that before practicing law before the Supreme Court of India, an advocate has to acquire experience of working before lower courts for 2 years and before High court or equivalent authority for 3 years. But considering various pitfalls attached to it, these controversial rules were repealed in 2015 and stand no longer in force in India[6]. The new BCI Certificate of Practice and Renewal Rules (Verification), 2015 were introduced which provided back the right to choice and place of law practice have been provided to lawyers[7]. The recent announcements by the BCI stand in a similar position and require deep analysis to reach a constructive conclusion regarding their viability for the legal profession in India.
Recent Developments by the BCI:
In November 2019, on the advice of Hon’ble Chief Justice of India S.A. Bobde, the BCI has proposed to make changes in its rules and regulations for exercising its power under the Section 7 and 49 of the Advocates Act, 1961. It has introduced “mandatory experience” provision for practicing in the higher courts for efficient functioning in the Indian courts. According to the proposed amendments, if a lawyer wants to practice law before the High court, the person would have to show the certificate of practice in district or taluka court for two years signed by an older advocate having 15 years of experience at the bar.
Similarly, minimum working experience of two years before the High court will be required to practice law in the Supreme Court of India and this certificate should be issued by the concerned High Court Bar Association and signed by the Registrar General of High Court. The BCI has also proposed that advocates having 10 years of practice have to compulsory register for “continuous legal education” and they will have to undertake 40 days of training over the course of five years. It has been introduced so that the legal knowledge of judges needs to stand the test of time with expanding advancements in the legal profession.
Way forward:
The above-mentioned recent rules have not been enforced yet but they are envisioned as a greater step for introducing efficient legal reforms for the efficient functioning of the legal system in India. But BCI’s Certificate and Practice rules, 2014 were also repealed due to various shortcoming attached with it, there are chances that a similar situation may arise. So it is the need of the hour that BCI should enact comprehensive rule and regulations keeping in mind the concerns raised by the legal fraternity of India.
References:
[1] “BCI to introduce mandatory ‘experience clause’ for every new entrant to bar before joining HC and SC”, The SCC Online Blog. <https://www.scconline.com/blog/post/2019/11/25/bci-to-introduce-mandatory-experience-clause-for-every-new-entrant-to-bar-before-joining-hc-or-sc/>
[2] Section 29, Advocates Act, 1961.
[3](1964) AIR SC 855.
[4](1973) 1 SCC 261.
[5] “Right to practice law is a fundamental right: Supreme Court to Bar Body”, Indian National Bar Association, < https://www.indianbarassociation.org/right-to-practice-law-is-fundamental-right-supreme-court-to-bar-body/>
[6]Apporva Mandhani, “BCI repeals Certificate of Practice and Renewal Rules, 2014”, Live Law, January, 20thJanuary2015.
[7] “BCI certificate of Practice and Renewal Rules (Verification), 2015”, Bar Council of India.
This article is authored by Prince Chandak, First-Year, B.A. LL.B student at National Law School of India University, Bangalore.
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