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BAR COUNCIL
QUESTION BANK
1. Discuss and explain the constitution and functions of the Bar Council of India.
2. Discuss “Powers and Functions of State Bar Council”.
3. What are the various powers and functions of the State Bar Council?
4. State the provisions relating to constitution, powers and functions of the B.C.I.
5. Explain constitution, powers and functions of State Bar Council.
6. “To promote and support law reforms” is one of the functions of Bar Council. Explain with other functions of Bar Council of India.
Short Notes
1. Appointment of Committees and staff members by State Bar Council.
2. Powers and functions of Bar Council of India.
3. State Bar Council.
4. To promote and support law reforms.
SYNOPSIS
I. Introduction
II. State Bar Councils
A. Establishment of State Bar Councils (Section 3)
1. Independent State Bar Councils:
2. Shared or Composite Bar Councils:
3. Specific Territories:
B. Composition of State Bar Councils
1. Ex-Officio Members:
2. Elected Members:
C. Qualification of Members
D. Chairman and Vice-Chairman
E. Disqualification and Vacation of Office (Section 3(4) and Section 10-B)
F. Functions of the State Bar Council
1. General Functions (Section 6)
2. Issuance of Certificates of Enrolment (Section 22)
3. Maintenance of the Roll of Advocates (Section 17).
G. Powers of the State Bar Council
1. Power to Make Rules (Section 28)
2. Power to Punish for Misconduct (Section 35)
3. Appointment of Committees and Staff
4. Maintenance and Audit of Accounts (Section 12)
III. Bar Council of India
A. Composition (Section 4(1))
1. Ex-Officio Members:
2. Elected Members:
B. Qualification (Section 4(1-A))
C. Chairman, Vice-Chairman, and Term of Office (Section 4(2) & 4(3))
D. Venue of Meetings (Section 10-A)
E. Functions of the Bar Council of India
1. General Functions (Section 7)
2. Admission of Advocates (Section 24)
3. Committees, Staff, and Audit Functions
F. Powers of the Bar Council of India
1. Power to Make Rules (Section 15 & Section 49)
2. Power to Punish for Misconduct (Section 36)
3. Power to Hear Appeals (Section 37)
4. Auxiliary and Supervisory Powers
a. Financial Assistance (Section 46-A):
b. Power of Reciprocity (Section 47(1)):
c. Power of Revision (Section 48-A):
d. Power of Review (Section 48-AA):
e. Power to Give Directions (Section 48-B):
f. Indemnity Against Legal Proceedings (Section 48):
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I. Introduction
The Advocates Act, 1961, contains specific statutory provisions for establishing autonomous, self-regulating corporate bodies known as Bar Councils. To ensure a cohesive framework for the legal profession across the nation, these councils are established at two distinct tiers: the state level via individual "State Bar Councils" and the national level through the "Bar Council of India." These institutions act as the custodians of professional standards, legal education, and the rolls of legal practitioners throughout the country.
II. State Bar Councils
A. Establishment of State Bar Councils (Section 3)
Section 3 of the Advocates Act, 1961, mandates the creation of Bar Councils for various states and territories. The statutory mapping is structured as follows:
1. Independent State Bar Councils: Distinct Bar Councils are established for each of the States of Andhra Pradesh, Bihar, Gujarat, Madhya Pradesh, Karnataka, Odisha, Rajasthan, and Uttar Pradesh, known respectively as the Bar Council of that specific State.
2. Shared or Composite Bar Councils: A single, unified Bar Council exists for the North-Eastern States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura, officially functioning as the Bar Council of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram, and Arunachal Pradesh.
a. For the State of Kerala and the Union Territory of Lakshadweep, the body is known as the Bar Council of Kerala.
b. For the State of Tamil Nadu and the Union Territory of Puducherry, it functions under the historic nomenclature of the Bar Council of Madras.
c. For the States of Maharashtra and Goa, along with the Union Territories of Dadra and Nagar Haveli and Daman and Diu, it is established as the Bar Council of Maharashtra and Goa.
d. For the States of Punjab and Haryana, along with the Union Territory of Chandigarh, it operates as the Bar Council of Punjab and Haryana.
e. For the State of West Bengal and the Union Territory of the Andaman and Nicobar Islands, it is known as the Bar Council of West Bengal.
3. Specific Territories: Dedicated Bar Councils are provided for the State of Himachal Pradesh (Bar Council of Himachal Pradesh), the Union Territory of Delhi (Bar Council of Delhi), and following structural reorganizations, the Union Territory of Jammu and Kashmir alongside the Union Territory of Ladakh.
B. Composition of State Bar Councils
A State Bar Council is a multi-member body comprising both ex-officio and democratically elected members:
1. Ex-Officio Members: In the case of the Bar Council of Delhi, the Additional Solicitor-General of India serves as the ex-officio member.
a. For the joint Bar Council of the North-Eastern states, the Advocates-General of Assam, Manipur, Meghalaya, Nagaland, and Tripura serve as ex-officio members.
b. For the Bar Council of Punjab and Haryana, the Advocates-General of both Punjab and Haryana serve ex-officio.
c. For any other individual State Bar Council, the respective State’s Advocate-General holds the ex-officio seat.
2. Elected Members: The number of elected members is directly proportional to the size of the legal electorate on the state roll:
a. For a State Bar Council with an electorate not exceeding five thousand advocates, there are fifteen elected members.
b. For an electorate exceeding five thousand but not exceeding ten thousand advocates, there are twenty elected members.
c. For an electorate exceeding ten thousand advocates, there are twenty-five elected members.
These members are democratically elected from amongst the advocates on the State Bar Council's electoral roll in accordance with the system of proportional representation by means of a single transferable vote.
C. Qualification of Members
To ensure a balanced blend of experience and representation, Section 3 mandates that, as nearly as possible, one-half (50%) of the elected members of every State Bar Council must be persons who have been registered as advocates on a State Roll for at least ten years.
D. Chairman and Vice-Chairman
Every State Bar Council must democratically elect a Chairman and a Vice-Chairman from amongst its own members, in such a manner as prescribed by the respective council's internal election rules.
E. Disqualification and Vacation of Office (Section 3(4) and Section 10-B)
An advocate is disqualified from voting in the elections or from continuing as a member of the Bar Council unless they satisfy the strict qualifications and conditions prescribed by the Bar Council of India, alongside the local rules framed by the respective State Bar Council.
Under Section 10-B of the Advocates Act, 1961, an elected member is deemed to have automatically vacated their office under three conditions:
1. If they are formally declared by the Bar Council to have been absent without a sufficient, verified excuse from three consecutive meetings of the council.
2. If their name is, for any disciplinary or statutory cause, entirely removed from the roll of advocates.
3. If they otherwise incur any disqualification under any specific rule framed by the Bar Council of India.
F. Functions of the State Bar Council
Under Section 5 of the Act, every Bar Council is a body corporate with perpetual succession and a common seal. It possesses the legal capacity to acquire, hold, and manage both movable and immovable property, enter into contracts, and can sue or be sued in its own name.
1. General Functions (Section 6)
The statutory mandate of a State Bar Council includes the following general duties:
a. Admitting qualified applicants as advocates onto its regulatory rolls.
b. Preparing, updating, and maintaining the official roll of advocates.
c. Entertaining, investigating, and determining cases of professional or other misconduct against advocates on its roll through its Disciplinary Committee.
d. Safeguarding the statutory rights, privileges, and professional interests of the advocates registered with it.
e. Promoting the growth and strengthening of local Bar Associations to ensure the effective implementation of welfare schemes.
f. Promoting, recommending, and supporting systemic law reforms.
g. Conducting legal seminars, symposia, and organizing talks on complex legal developments by eminent jurists, as well as publishing journals and research papers of legal interest.
h. Organizing and administering institutionalized legal aid to the poor and marginalized in the prescribed manner.
i. Prudently managing, investing, and safeguarding the financial funds of the Bar Council.
j. Providing for and supervising the democratic election of its own members.
k. Visiting and inspecting universities offering legal education in accordance with specific directions.
l. Constituting distinct dedicated funds for giving financial assistance to organize welfare schemes for indigent, disabled, or deceased advocates; providing legal aid or advice; and establishing law libraries.
m. Receiving grants, donations, gifts, and financial benefactions for the realization of these welfare objectives.
2. Issuance of Certificates of Enrolment (Section 22)
The State Bar Council is statutorily bound to issue a formal Certificate of Enrolment in the prescribed form to every individual whose name is successfully entered on the state roll of advocates.
3. Maintenance of the Roll of Advocates (Section 17)
Every State Bar Council must meticulously maintain a comprehensive roll of advocates, containing the names, addresses, and entry details of all senior advocates and advocates registered within its territorial jurisdiction.
G. Powers of the State Bar Council
1. Power to Make Rules (Section 28)
A State Bar Council is empowered to make independent rules to carry out the provisions of the Act regarding the admission and enrolment of advocates. This includes prescribing the forms for application, the conditions for enrolment, the timeline for expressing intentions to practice, and the instalments in which the enrolment fee may be paid. Crucially, all rules formulated by a State Bar Council must receive formal approval and ratification from the Bar Council of India to take legal effect.
2. Power to Punish for Misconduct (Section 35)
When a State Bar Council, upon receiving a formal complaint or via suo motu cognisance, has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it must refer the case to its Disciplinary Committee. The committee, after affording a fair hearing to the advocate and the state's Advocate-General, can issue orders to dismiss the complaint, formally reprimand the advocate, suspend them from practice for a specific duration, or permanently remove their name from the state roll.
3. Appointment of Committees and Staff
The State Bar Council has the administrative power to appoint its regulatory staff—including a Secretary and an Accountant under Section 11—and constitute specialized statutory committees. These include the Disciplinary Committee (Section 9), the Legal Aid Committee (Section 9-A), the Executive Committee, and the Legal Education Committee (Section 10).
4. Maintenance and Audit of Accounts (Section 12)
The Council is mandated to maintain regular, detailed books of accounts. These financial accounts must be audited annually by auditors who are fully qualified to act as auditors of companies under the contemporary corporate laws of India.
III. Bar Council of India
A. Composition (Section 4(1))
Section 4(1) mandates the establishment of a supreme apex body for the territories to which the Act extends, known as the "Bar Council of India" (BCI). Its composition comprises:
1. Ex-Officio Members:
a. The Attorney-General of India, serving ex-officio.
b. The Solicitor-General of India, serving ex-officio.
2. Elected Members: One member elected by each individual State Bar Council from amongst its own elected members. This ensures that every State Bar Council has direct representation in the national apex body.
B. Qualification (Section 4(1-A))
An advocate seeking election to the Bar Council of India must possess the primary qualifications required for a State Bar Council member, ensuring a baseline of professional standing and seniority.
C. Chairman, Vice-Chairman, and Term of Office (Section 4(2) & 4(3))
The BCI must elect its own Chairman and Vice-Chairman from amongst its members in the prescribed manner.
The term of office for an elected member of the BCI is governed by specific timelines:
1. If the member represents a State Bar Council as an ex-officio member, their term in the BCI is two years from the date of election, or until they cease to hold office in their State Bar Council, whichever is earlier.
2. In all other cases, their term corresponds directly to the duration for which they hold office as a member of their respective State Bar Council.
3. A mandatory proviso ensures that every member continues to hold office in the BCI until their successor is formally elected. The vacation of office due to continuous absence or removal matches the standards under Section 10-B.
D. Venue of Meetings (Section 10-A)
The Bar Council of India is statutorily mandated to meet in New Delhi or at such other location as it may determine for reasons recorded in writing. All other non-disciplinary committees of the BCI generally meet at the headquarters of the council. The transactions of business during these meetings are strictly governed by codified rules of procedure.
E. Functions of the Bar Council of India
1. General Functions (Section 7)
The BCI performs nationwide regulatory and supervisory functions, including:
a. Laying down the baseline standards of professional conduct and etiquette for all advocates across India.
b. Prescribing the uniform procedure to be followed by its own Disciplinary Committee and the Disciplinary Committees of all State Bar Councils.
c. Safeguarding the fundamental rights, privileges, and professional interests of advocates nationwide.
d. Promoting, researching, and supporting systemic law reforms.
e. Entertaining, dealing with, and disposing of any complex statutory matters referred to it by any State Bar Council.
f. Exercising general supervision, regulatory control, and administrative revision over all State Bar Councils.
g. Promoting legal education and prescribing uniform standards for such education across the country.
h. Formally recognizing Indian and foreign universities whose degrees in law qualify a graduate for enrolment as an advocate, and conducting regular site visits and supervision of such universities.
i. Organizing national seminars, publishing legal journals, managing legal aid for the poor, and regulating foreign legal qualifications on a reciprocal basis.
j. Under Section 7-A, the BCI can formally become a member of international legal bodies, such as the International Bar Association, and contribute requisite funds to them.
In the landmark judgment of V. Sudeer v. Union of India [AIR 1999 SC 1167], the Supreme Court clarified the boundaries of the BCI’s educational powers. The Court held that while the core task of imparting legal education is entrusted to the universities, the BCI acts as the apex regulatory body authorized to lay down the benchmark standards of education, prescribe the syllabus in consultation with the universities, and inspect institutional infrastructure to ensure compliance before recognizing their degrees for enrolment.
2. Admission of Advocates (Section 24)
The BCI regulates the overarching criteria, age limits, and qualifications governing the entry and admission of advocates onto the national rolls.
3. Committees, Staff, and Audit Functions
Mirroring the state-level powers, the BCI is empowered to establish its own national Disciplinary, Legal Aid, Executive, and Legal Education Committees, employ administrative staff, maintain distinct financial books, and undergo mandatory corporate audits under Sections 9, 10, 11, and 12 of the Act.
F. Powers of the Bar Council of India
1. Power to Make Rules (Section 15 & Section 49)
The BCI possesses wide rule-making powers to regulate the entire legal ecosystem. It can frame rules governing the election of its office-bearers, the filling of casual vacancies, the management of its welfare funds, the minimum attendance requirements for law students, and the code of conduct for practitioners.
In Indian Council of Legal Aid and Advice v. Bar Council of India [AIR 1995 SC 691],
The Supreme Court examined the limits of this rule-making power. The BCI had introduced a rule barring any person who had completed 45 years of age from enrolling as an advocate. The Supreme Court struck down the rule, holding it to be discriminatory, arbitrary, unreasonable, and violative of Article 14 of the Constitution, clarifying that the BCI cannot exceed its statutory mandate under the guise of framing rules.
2. Power to Punish for Misconduct (Section 36)
The BCI possesses original jurisdiction to try and punish advocates whose names are not entered on any specific State roll but who are found guilty of professional or other misconduct, exercising the same powers detailed under the disciplinary framework.
3. Power to Hear Appeals (Section 37)
The Disciplinary Committee of the BCI sits as a statutory appellate authority to hear, review, and decide appeals filed against the final disciplinary orders passed by the Disciplinary Committees of the various State Bar Councils. The BCI has the power to confirm, vary, or completely reverse the punishment awarded below.
4. Auxiliary and Supervisory Powers
a. Financial Assistance (Section 46-A): The BCI has the power to give direct financial assistance and grants to sub-ordinate State Bar Councils to implement welfare schemes or establish libraries.
b. Power of Reciprocity (Section 47(1)): Where a foreign country prevents citizens of India from practicing the profession of law or subjects them to unfair discrimination, the BCI enforces statutory reciprocity, ensuring that no subject of that foreign country is entitled to practice law in India.
c. Power of Revision (Section 48-A): The BCI may, at any time, call for the record of any proceeding disposed of by a State Bar Council from which no appeal lies, to satisfy itself as to the legality or propriety of the order, and pass appropriate revisional directions.
d. Power of Review (Section 48-AA): The BCI or any of its non-disciplinary committees may, suo motu or on an application, review any order passed by it within sixty days of its issuance.
e. Power to Give Directions (Section 48-B): The BCI exercises general administrative supervision and control by issuing binding, mandatory directions to any State Bar Council or committee to ensure the efficient discharge of their duties.
f. Indemnity Against Legal Proceedings (Section 48): Absolute statutory protection and indemnity are given to the Bar Councils, their committees, and members, ensuring that no suit, prosecution, or legal proceeding lies against them for any act done in good faith in pursuance of the Act.
In the case of Ex-Captain Harish Uppal v. Union of India [AIR 2003 SC 739],
The Supreme Court underscored the systemic duties of these bodies, ruling that Bar Councils cannot call for, condone, or encourage court strikes or boycotts that paralyze the functioning of the judiciary. The Court held that the councils must instead work as stabilizing forces to ensure the uninterrupted administration of justice.
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