Page 1 DRAFT AMENDMENTS TO THE ADVOCATES ACT, 1961 PROPOSED BY THE BAR COUNCIL OF INDIA Notes on objects and reasons: 1. Law reforms in the legal profession have long been due. A strong and fearless Bar is the bedrock on which the lofty edifice of Judiciary stands. 2. Bar has long been ignored in the sense that Court-work linked Bar Associations have not been taken care of under a comprehensive national policy. The Advocates Act, 1961 takes note of individual advocates and not of the Bar Associations. It does not provide for the recognition and regulation of CourtWork linked Bar Associations in the Country. It has not augured well for the healthy growth of the Bar and of its members. These Bar Associations play a very crucial role in dispensation of justice in the Country. They are part and parcel of the Court. This may be one reason that has lead to deterioration in the legal profession. 3. If an objective look is taken at these Bar Associations in the Country at district and taluk levels with respect to infra- structure, library facilities, access to legal data on the internet and continuing legal education for the advocates (especially the new entrants), the picture that emerges is disappointing, to say the least. In a welfare democratic country like India where rule of law is supposed to reign supreme, the Bar cannot be left to fend Page 2 for itself for raising funds and to organize itself at Taluk, District, State and National levels. 4. The need of the hour is to have a well-integrated and organized Bar. The proposed amendments in the Advocates Act, 1961 take 5. a crucial step in this direction. Under the proposed Amended Act, the Bar Associations in the Country have been legally recognized with the object of achieving their healthy growth and for improving the standard of the legal profession in the Country. 6. To achieve additionally these objectives, the Bar Councils have been saddled with the function of promoting and regulating Bar Associations in the Country. Care has been taken that this role and function is kept within the legal fraternity as outside interference and influence of any kind whatsoever has to be avoided. In order to streamline the legal profession, it is necessary that the amending Act provides that every advocate/LLP/firm will have to get himself/itself registered as a member of the Bar Council where he /it ordinarily practices or intends to practice law. This apart if any Association claims to have representatives from more than 75% of the Bar Associations of concerned State, it shall get registered with the State Bar Council. Similarly, if any Association or Society, if has the members from atleast 20 States of the country, it shall be registered with the Bar Council of India. Such registration shall require the renewal after every six years. Page 3 7. ‘In-House disciplinary’ mechanism has been put in place so that minor disciplinary matters are taken care of at the local level of the concerned Bar Association. However, the Bar Councils have been given the power to make rules in this regard. Further, to meet the menace of strike by advocates, the Bar Council of India has been given power to make rules in this regard in conformity with the Supreme Court judgment in this regard. 8. The tenor and texture of the Advocates Act, 1961 suggests that the term ‘advocate’ as given in the Act refers to an individual and not to a legal person i.e. a company, partnership and limited liability partnerships etc. The scope of this ‘term’ has been clarified and expanded so as to leave no manner of doubt that it includes companies, partnerships, LLP etc. The prevailing ambiguity in this respect that has been removed so that law practice in any form by the companies, partnerships, LLP are covered by the Act and their activities are also well regulated and controlled. 9. Part of the law practice in India has already fallen into the hands of various partnerships, law firms, LLP etc. and the present Act does not expressly regulate activities of such law firms even though they are delivering legal services as a legal entity independent of its partners. People who are engaging law firms for legal work may not be having any inkling of the advocate who ultimately ends up doing the work. Page 4 10. The issue of law practice by foreign lawyers is another grey area. International trade and commerce is advancing at a great pace and India needs to keep pace with it. The country has to rise to the occasion to meet the international challenges posed by globalization of business. 11. The demand for an open, responsive and receptive ‘legal services dispensation mechanism’ in India from the consumers of legal services who operate in international business and cross-country international trade and services is mounting day by day. Growth in international legal services, globalization of legal practice and internationalization of the law is increasingly becoming relevant to the growth of the legal services and practices in India. The Government has been in contact with the Bar Council of India and other stakeholders in this regard. The proposed amendments in the Act seek to open up law practice in India by foreign lawyers in a well-defined area in restricted field on reciprocal basis. It would go a long way in improving legal services in India. The proficiency of Indian lawyers is at par with their counterparts in other parts of the world. Legal fraternity in India is not likely to suffer any disadvantage in case law practice in India is opened up to foreign lawyers in non-litigious and international arbitration matters in a well controlled and regulated manner on the principle of reciprocity as it would be mutually Page 5 beneficial. Opportunity for creating a hub for such legal services in India should not be lost. Many countries have already allowed foreign lawyers to practice law on diverse international legal issues, foreign law and arbitration matters in their countries in restricted fields under specific conditions. 12. The Bar Council of India feels that under the Legal Services Authorities Act, 1986, the role of advocates has not been adequately utilized. Services of the Bar Councils/Associations have not been used to contribute to the legal literacy and rendering of legal services to the poor and needy persons. The Bar Council of India and the State Bar Councils have not been given any meaningful and significant role. The whole burden has been put on the judiciary. There is no doubt that the judiciary has done a commendable work in providing legal services to the poor and needy and in spreading legal literacy. However, it is equally true that this Act has put additional burden on the judiciary. The judiciary is already endeavoring hard to deal with the malaise of huge arrears of cases that await decision. The precious time of the judicial officers in managing and administering the legal literacy and rendering of legal services to the poor and needy is nothing but mismanagement of the legal talent of the judicial officers. We need to have a legal system that is geared to use this talent in dealing with serious matters involving larger and important issues of law and Constitution. Legal literacy and Page 6 rendering of legal services can also be additionally taken care of by the Bar. Otherwise also, rendering of legal services is the domain of the lawyers. Rendering of legal services to the litigant public by sitting judges does not augur well for the prestige of the judicial officers. Exposure of judicial officers to the public, especially the litigant public in legal literacy camps and also in providing legal services to the deserving persons needs to be avoided in the larger interest of the judiciary and rule of law. The proposed amendments take care of this aspect and gives larger role to the Bar in the matters of rendering of legal services and in spreading legal literacy so that part of the burden on Judiciary in these matters is shared by the Bar. The Bar Council of India is being given Rule making powers for floating schemes and in making appropriate rules for rendering legal services to the poor and needy and also for spreading legal literacy for which part of the appropriate funds can be made available to it. 13. The menace of baseless, unreasonable frequent strikes, boycotts and abstentions from court work, entry of non-practicing advocates as members of the State Councils and leaders of the Bar as Presidents/Secretaries of different Bar Associations in the Country in a big way is another area of concern. This trend can legitimately be attributed to the fact that a good number of persons have secured entry into the legal profession even though they have no real and legitimate interest in the profession; Page 7 because they have either vocations/professions/business left or legal are practice with fake for other academic degrees. The role of senior and experienced advocates is being marginalized. This problem reached its flash point when strike by lawyers in Tamil Naidu paralyzed the court work for months and scandalized the whole legal fraternity and it could only be controlled by extra-ordinary stern measures taken by Bar Council of India. Verification of certificates and place of practice of advocates is already being done to check this menace and to weed out non-practicing and fake advocates. The presence of experienced, seasoned and senior advocates in the State Bar Councils and Bar Council of India is also one of the urgent needs of the times. Absence of senior, experienced and practicing advocates is adversely affecting the efficiency and performance of the Bar Councils. These issues have also been addressed to in the proposed amendments. Even in last about 50 years of the Establishment of Bar Councils, the number of women in the Bar Council is negligible, so their representation appear to be necessary. 14. The proposed amended Act takes care of the urgent need that an advocate gains first hand experience in lower and trial courts before he is allowed to practice law before higher judiciary. It will certainty improve the standards of the legal profession and standard of legal services being provided to the litigant public at large. The quality of legal services being given to the public at large is one of the area that needs to be taken care of. At present Page 8 a new entrant to the Bar can start practice directly in the Supreme Court of India or in the High Courts. It compromises on the quality of the legal services available to the public. Perhaps it is also leading to wastage of court time. The Honorable Chief Justice, Supreme Court of India has also expressed his anguish on this facet of the Advocates Act. To say the least, it compromises on the efficiency of the justice dispensation system. The proposed amendment seeks to provide that each and every entrant to the profession has to gain experience from the level of trial courts before he can start his practice in higher courts. This amendment would help in checking ever-growing trend of kith and kin joining the office of their relative-advocate straight after completing law graduation and start practice in the Supreme Court of India or any High Court in the Country. This trend promotes monopoly points (houses) and is not healthy for the comprehensive growth of the legal profession. To achieve these objectives, a minimum experience at different levels has been envisaged. Fresh entrants to the profession may join Law Offices of their Choice but they will have to start practice in law from the lowest level of the field of their choice, be it civil law, criminal law, income tax, corporate or insolvency law etc. Practice in writ jurisdiction can come later after been some experience has gained in non-writ litigation. 15. With the objective of improving the efficiency of Disciplinary Committees in disposing of disciplinary matters, the proposed amendment stipulates for co-option of such advocates on the Page 9 Committees who had been Chief Justice or Judge of a High Court or of district Court in 75% of the Disciplinary Committees to be constituted and formed under the Act and the remaining 25% Committees provides for co-option of other senior and experienced lawyers only. 16. State Bar Councils with an electorate of 4,000 or less shall not be eligible for electing one of its members to the Bar Council of India. The interests of such small Bar Councils shall be taken care of by a member of the Bar Council of India who shall be co- opted by the State Bar Council. This amendment has been necessitated by the fact that small number of advocates from such State Bar Councils would not justify a BCI member from it to the Bar Council of India. 17. The minimum qualification required for being admitted as an advocate are also being made more stringent so that the litigant public in India is provided with a fairly good legal service under the “legal services dispensation system” provided for by the Act. A law graduate needs to successfully appear in the All India Examination; undergo minimum training and apprenticeship before being enrolled as an advocate by the State Bar Council. 18. Disqualifications for enrollment are also being made more rigorous. The disabling period under section 24 A of the Act for joining the legal profession after serving a sentence is being increased from 2 years to 3 years. On the other hand, a person who is covered by clause (c) of sub-section (1) of section Page 10 24 of the Act would be permanently barred from entering the legal profession. 19. Resumption of practice under section 26 of the Act is also being made more comprehensive and it expressly takes care of the convictions and other disabilities suffered by a advocate during the period of suspension, voluntary or otherwise. 20. Section 30 of the Act has also been amended without diluting the rights of the advocates enrolled with various State Bar Councils to practice law throughout the territories to which this Act extends. Under the proposed amended Act, the following three sub-categories of advocates have been envisaged: (i) Advocates enrolled by the State Bar Councils under sections 17 and 22 of the Act; (ii) Indian Law Firms; The power of Bar Council of India to frame rules with respect to registration of law firms and foreign lawyers are not being disputed but on the other hand the proposed amending Act has further defined such powers and has put limits on it. The nature and extent of law practice by the Indian law firms independent of their individual member-advocates shall be regulated by such Rules as may be framed by Bar Council of India. All categories of lawyers would be governed by the Act and Rules made thereunder. Page 11 21. Welfare of Advocates:Though the Act of 1961 has provided that the Bar Councils are to take care of welfare of Advocates, but nothing substantive have been done uptill now in this regard due to lack of proper financial support to the Advocates from the Union Government or the State Governments. While in some of the States of the country, the State Governments provide for some support for the Advocates, but that is quite insufficient. The amending Act aims at ensuring and binding the Union and the State Governments to make provisions for insurance coverage of at least 20 lakhs for the Advocates and their dependents in case of death of Advocates and to provide the unlimited medi-claim scheme for Advocates and their families(dependents like old father, mother, dependent sons, daughters wife etc.), so that the Advocates could undertake fair practice and serve the poor litigants in an efficient manners. Similarly due to some sudden disability or due to old age, some Advocates are compelled to retire from practice and after their retirement the Advocates and their dependents are compelled to live very measurable and difficult life. They are unable to meet their livelihood bare necessities, medical treatments and studies of their children. Such Advocates and their families need support of the society and the Government Advocates other citizen of the country are entitled to all the protections guaranteed by our constitution in Part-III and Part-IV. Therefore, it is the duty of the Union Government as well as State Government to make suitable provisions for extending proper and sufficient monetary and other Page 12 support to ailing, disabled and dependents throughout their lives. old Advocates and their The scheme for pension for old or disabled Advocates is also the necessity for maintenance of standard of this profession. The Union and State Governments are also supposed to provide proper facilities of sitting spaces for Advocates in the court premises, workable and sufficient libraries as well as e-libraries in all the Asociations fo the Advocates in the country, all other amenities like chambers, drinking water, electricity, fans, chairs etc in all the working places of the Lawyers. This is the high time when like other similarly situated class of society, the Advocates should also be made entitled to adequate social security and to have a congenial and suitable atmosphere for performing their duties towards the society. A separate chapter VA is being added to the Act for the purpose of welfare of Advocates. 22. The scope of the powers of the High Courts to frame rules laying down the conditions subject to which an advocate can practice law in the concerned High Court and Courts subordinate thereto have been expounded and simplified so as to avoid conflict between the Disciplinary powers of the Bar Councils and of the High Courts in relation to the professional ethics and duties of an advocate. Advocates do always remain under the disciplinary powers of the Court under the Contempt laws. In order to maintain the independence of Bar and in order to Page 13 promote the rule of law; it is necessary that the advocates are not subjected to the disciplinary control of the High Courts in relation to their professional ethics and duties. Subjecting advocates to the disciplinary control of the Courts in such matters may be counter-productive and it may lead to disastrous consequences. It would be militating against the broad principles of double jeopardy also. 23. The scope of professional misconduct under section 35 of the Act has further been expounded and powers of the disciplinary committees have also been enlarged so as to expressly include the power to impose costs and award compensation to the aggrieved persons. 24. The period of one year allotted to the DC of the State Bar Council under section 36 of the Act has been enlarged to 2 years. 25. In order to ensure that the members of the legal profession fearlessly discharge their professional obligations, certain safeguards and privileges are necessary to be given to them. A separate Chapter VI-A has been added in this respect. These privileges shall go a long way in improving the scope and nature of legal services being given by members of the legal profession in India. It shall provide much needed statutory protection to the members of the legal profession in discharge of their professional duties. Once a member of the Bar has been engaged as a counsel in any given legal matter, he needs statutory protection in his professional duties. He is considered to be an officer of the Court. Page 14 26. The Bar Council of India earnestly believes that the above proposed amendments to the Advocates Act, 1961 would adequately address to the concerns raised by the Honorable Supreme Court of India in Criminal Appeal No. 63 of 2006 titled Mahipal Singh Rana advocate v/s State of Uttar Pradesh. ……………………………………………………….. ………………………………………………… The Bar Council of India proposes the following amendments to the Advocates Act, 1961: Section 2 1. In clause (a) of sub-section (1) the following words shall be added: “and it shall include a law firm and a foreign lawyer registered by the Bar Council of India under this Act.” After amendment clause (a) shall read as follows: “(a)“Advocate” means an advocate entered in any roll under the provisions of this Act and it shall include a law firm and a foreign lawyer registered by the Bar Council of India under this Act.” 2. The following clause (aa) shall be added after existing clause (a) in sub-section (1) of section 2: - Page 15 “(aa) “Law Firm” means a legal entity formed and registered under the partnership Act, 1932 or under the Limited Liability Partnership Act, 2008 or a private or public limited company incorporated under the Companies Act, 2013/Companies Act, 1956 for carrying out practice in law with limited or unlimited liability and it includes such other partnerships which are formed for carrying out practice in law but are not registered under the aforesaid Acts;” 3. The following clauses (o) to (t) shall be added after existing clause (n) in sub-section (1) of section 2: “(o) ‘Roll of Law Firms’ means a roll of such law firms as are registered by Bar Council of India;” (p) “Legal Services” includes the rendering of any service in the conduct of any case or other legal proceedings before any court, tribunal or any other authority and giving advice on any legal matter; (q) “Bar Association” of a given area/town/city means an area/territory and court-work based association of advocates, weather registered under the Societies Registration Act (Act No. XXI of 1860) or not having its area/territory defined in terms of the whole or part of the territorial Courts/Tribunals/Persons or any other jurisdiction Authorities of legally competent to take evidence before which its members ordinarily practice law and it includes a Bar Association exclusively dealing in specific fields of law vis. Income Tax, Corporate Law, Page 16 Central/State Excise Law, etc., in relation to the authorities/tribunals/boards etc. and such other legal service based Associations of advocates who are engaged in legal services which are not directly linked to court work. Bar Association of the State means and Association of Advocates duly registered by the State Bar Council, which has elected representatives from atleast 75% local recognized Bar Associations of that State. Bar Associations of the country means any Association (by whatsoever name it may be called) which is duly registered and recognized by the Bar Council of India and has elected representatives of recognized Bar Associations or Bar Councils from atleast 20 States of India. (q) “In-house disciplinary matters” includes such acts as amount to breach of the material terms and conditions subject to which a Bar Association is recognized and registered under the Act and Rules and Bye-laws made thereunder; (t) “Scheme” means any scheme framed by the Bar Council of India or by the State Bar Council for the purpose of giving effect to any of the provisions of this Act.” Section 3 4. Clause (b) of sub-section (2) of section 3 of the Act shall be omitted and substituted by the following clause: - Page 17 “(b) in the case of a State Bar Council with an electorate not exceeding ten thousand, fifteen members; in the case of State Bar Council with an electorate exceeding ten thousand but not exceeding one hundred thousand, twenty members; and in the case of the State Bar Council with an electorate exceeding one hundred thousand, twenty five members, elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council.” 6. Proviso to clause (b) of sub-section (2) of section 3 shall be omitted and substituted by the following proviso: “Provided that as nearly as possible 70% of such elected members, shall subject to any rules that may be made in this behalf by the Bar Council of India, be persons who have for at least twenty (20) years been advocates on a State Roll; Provided further that 10% of the total seats of any State Bar Council shall be subject to any rule made in this behalf, be for women advocates and subject to the further condition that he/she gets more than 80% of the single transferable votes secured by the candidate who is to be excluded when this reservation is to be given effect to during the course of the counting. Page 18 Explanation: In the aforesaid 1 st and 2nd proviso, in computing the percentage, the fraction of 1 (one) shall be ignored. Explanation 2: No Advocate shall be entitled to be a member of any State Bar Council if he has not appeared in any Court, Tribunal or any other forum for at least 30 times every year for a continuous period of three years preceding the years of elections. The Advocates shall have to produce and attach the proof of appearances alongwith their nomination forms. Section 4. 7. Clause (c) of sub-section (1) of section 4 and sub-section 1 A of Section 4 shall be omitted and substituted by the following clause “(c)” to sub-section (1) of section 4: “(c) one member elected by each State Bar Council with an electorate not less than five thousand, from amongst its members provided such a member possesses the qualifications specified in the first proviso to sub-section (2) of section 3. Provided that the State Bar Council with an electorate of five thousand or less shall have one member of the Bar Council of India to represent, discharge and perform the functions and duties of the member of such a State Bar Council as if he had been elected by it and the members of such a State Bar Council shall co-opt one of the members of the Bar Council of India for the aforesaid purpose.” Page 19 Section 6 8. The following clause (h) shall be added after the present clause (h) and the existing clauses (h) and (i) which shall be renumbered as (j) and (k) respectively: “(h) to provide for the recognition, registration and regulation of Bar Associations, barring the Supreme Court Bar Association, Association of law firms, foreign lawyers, situated within its territorial limits and to make appropriate Rules or float appropriate schemes in concurrence with Bar Council of India so as to secure their uniform and orderly growth in tune with the typical local compulsions and national aspirations. Section 7 9. The following clause (hh) shall be added after the present clause (h) of sub-section (1): ‘(hh) to provide for constitution and establishment of a Directorate of legal Education to look after the ‘Continuing Legal Education for advocates’ in the Country;’ 10. In sub-section (1) of section 7 the following clauses (m) to (y) shall be added in place of the present clauses (l) and (m) after the proposed amendment, the present clauses (l) and (m) shall be renumbered as (z) and (za) respectively: “(m) to provide for “legal services” to the persons belonging to Scheduled Caste and Scheduled Tribes, Other Backward Page 20 Classes, weaker sections of the society like women, differently abled persons, victims of riots, natural calamities, victims of incurable deceases impacting the social acceptability, like AIDs, leprosy etc. , and other poor and needy persons and for spreading legal literacy and legal awareness amongst the people and to frame schemes achieving the aforesaid objects and further to generate funds for the same by way of securing grants-in-aid from the Government or from other voluntary non-government organization engaged in social works of the like nature; (n) to provide for pre-enrolment training and apprenticeship of a person who has obtained degree in a law course, which is recognized as a qualification for enrolment as an advocate under the Act, for a period not exceeding one year;” (o) to provide for continuing legal education for advocates; (p) to provide for recognition and registration of law firms and conditions subject to which they can practice law and also to provide for recognition and registration of court work-based Supreme Court Bar Association attached to the Supreme Court and other legal services based Bar Associations or law firms and foreign lawyers; (q) to provide for recognition and registration of foreign lawyers for the purpose of law practice by them in India on the principle of reciprocity and also to provide for the extent and nature of such law practice by them and the conditions Page 21 subject to which they can practice law and circumstances under which they shall be deemed to practice law. (s) To provide for Rules for verification of certificates of Advocates and also to make rules for periodical verification of antecedents, conduct, place of practice of Advocates and to make a data based web-portal of all the advocates and further to make rules for identifying the “non-practicing advocates” and to provide for barring non-practicing advocates from voting rights in the elections to the State Bar Councils and to the Bar Associations and to impose such other conditions as it may deem fit; (t) To provide for supervision over the election of the members of the State Bar Councils; for issuance of directions in relation to the conduct of such elections and for resolution of all elections disputes relating thereto. (u) To provide for Rules for controlling and checking the strikes, boycotts or abstentions from courts by the Advocates, and to provide for suitable measures in this regard and also to provide for suitable punishments including the punishment of disqualification from contesting any election of Bar Councils or of Bar association for a period which may extend to 6 years; (v) to provide for a Common Entrance Test for admission in the Institutions imparting Legal Education in the Country, and also to provide for measures for improvement of Legal Education and to make provision for on-line teachings for all Page 22 the Law Students of the Country either directly or through some charitable Institution on no-profit no-loss basis; and to make such education compulsory for every students desiring to join legal Profession; (x) To provide for Lawyers Academies and other similar institutions in each State through State Bar Councils, or some other organizations, Institutions or Agencies for imparting continuous Legal Education for Advocates on “Noprofit No-loss Basis” (y) To provide for recognition, registration and regulation of law firms, foreign lawyers. Section 9 11. Sub-section (1) of section 9 of the Act shall be omitted and substituted by the following sub-section (1): “(1)._ Bar Council shall constitute one or more disciplinary committees, each of which shall consist of three persons of whom two shall be persons elected by the Council from amongst its members and the 3rd member shall be a person co-opted by the Council, in the following manner:(i) in case of the Bar Council of India, three forth of such Disciplinary Committees shall have a person from amongst advocates who had been a Chief Justice or a Judge of a High Court as its co-opted member; (ii) in case of a State Bar Council, three fourth of such Disciplinary Committees shall have a person from amongst Page 23 advocates who had been a judge of a district Court as its coopted member; (iii) the remaining one fourth of such Disciplinary Committees of the Bar Council of India and of the State Bar Councils shall have a person from amongst advocates who possesses the qualifications specified in the proviso to subsection (2) of section 3 as its co-opted member. The co-opted member/s shall not be a member of the Council and the senior most advocate amongst the members of the Disciplinary Committee shall be the Chairman thereof. Provided that more members may be co-opted to these disciplinary committees from amongst advocates who possess the qualifications specified in the proviso to sub-section (2) of section 3 but the total number of members shall not exceed 5 in any case.” Section 10 12. In sub-section (1) of section 10 of the Act, the following clause (c) shall be added after the existing cause (b): “(c) a ‘Bar Associations Affairs Committee’ consisting of seven members, of whom three shall be persons elected by the Council from amongst its members and two persons co-opted by the Council from amongst the advocates who are not members of the Council against each of the following two categories: - Page 24 (i) Former Chief Justice or a Judge of a High Court (ii) or of a district Court; Advocates who possesses the qualifications specified in the first proviso to sub-section (2) of section 3; and the senior most advocate amongst them shall be the Chairman thereof unless Chairman of the Council is also is also a member, in which event, the Chairman of the Council shall be chairman of the Committee also.” 13. Clause (b) of sub-section (2) of section 10 of the Act the number of co-opted members shall be increased from the present ‘5’ to ‘10’ and words “who are not members thereof” shall be substituted by the following words and figures: “from amongst the following persons:-” (i) A former Judge of the Supreme Court who shall be the Chairman; (ii) Sitting Chief Justice of High Courts; (iii) Sitting Judges of different High Courts; (iv) Chairman, Law Commission of India; (v) Attorney General for India; (vi) Solicitor General of India; (vii) Chairman University Grants Commission; (viii) Union Law Secretary; (ix) 3 Vice-Chancellors of National Law Universities; Page 25 (x) 2 Vice-Chancellors/Law Universities/Centres than National Law Deans of of Legal Education other Universities; (xi) Senior Advocates of National repute; (xii) Two members of the State Bar Councils to be coopted by the Bar Council of India is such a way that each State Bar Council is given representation by rotation. However, in addition to the above members, the Council may invite any other persons of eminence, as a Special Invitee to the Legal Education Committee. 14. In sub-section (2) of section 10 of the Act, the following clause (c) shall be added after the existing cause (b): “(c) a ‘legal services committee’ consisting of nine members, of whom five shall be persons elected by the Council from amongst its members and two persons co-opted by the Council from amongst the advocates who are not members of the Council against each of the following two categories:i. Former Chief Justice or a former Judge of a High Court having atleast 7 years of service as a Judge; ii. Advocates who possesses the qualifications specified in the first proviso to sub-section (2) of section 3; and the senior most advocate amongst them shall be the Chairman thereof unless Chairman of the Council is also a Page 26 member, in which event, the Chairman of the Council shall be chairman of the Committee also;” Special Public Grievance Redressal Committee of Bar Council of India:There shall be a Special Public Grievance Redressal Committee consisting of following members:(i) one former Judge of Supreme Court or a former Chief Justice of any High Court as its Chairman. (ii) Two sitting Judges of different High Courts to be the members of this Committee. (iii) One Senior Advocate (iv) one member of Bar Council of India The Special Public Grievance Redressal Committee shall hold enquiry into any serious allegation or complaint about corrupt practices or misconduct against any office bearer or member of the Bar Council of India in discharge of his duties as a member of the Council, which is referred to it by the Council in its meeting. The report of the Committee shall be placed before the General Body meeting of the Council and the Council after considering the report may(i) accept the report and lodge an Fir or (ii) accept the report and may refer the matter to initiate a disciplinary proceedings against the office-bearer or member OR Page 27 (iii) may reject the recommendation, for the reasons to be recorded in writing. Section 10 B 15. The following proviso shall be added to section 10B: “Provided that the concerned Bar Council shall not declare a member thereof consecutive to have meetings absented without from sufficient attending cause, three unless an opportunity of being heard is afforded to such a member. Section 18: 16. In sub-section (1) of section 18 of Act the following words: “without the payment of any fee” shall be substituted by the following words: “on payment of such fee as may be prescribed by the Bar Council of India.” and after amendment section 18 shall read as follows:“Transfer of name from one State roll to another.—(1) Notwithstanding anything contained in section 17, any person whose name is entered as an advocate on the roll of any State Bar Council may make an application in the prescribed form to the Bar Council of India for the transfer of his name from the roll of that State Bar Council to the roll of any other State Bar Council Page 28 and, on receipt of any such application the Bar Council of India shall direct that the name of such person on payment of such fee as may be prescribed by the Bar Council of India, be removed from the roll of the first mentioned State Bar Council and entered in the roll of the other State Bar Council and the State Bar Councils concerned shall comply with such direction” Section 19 17. In section 19 of Act the following shall be added at the end: “but not later than six months of such addition/alteration and such communication may be made electronically.” and after amendment section 19 shall read as follows:“Every State Bar Council shall send to the Bar Council ofIndia an authenticated copy of the roll of advocates prepared by it for the first time under this Act and shall thereafter communicate to the Bar Council of India all alterations in, the additions to, any such roll, as soon as the same have been made but not later than six months of such addition/alteration and such communication may be made electronically. Section 22 Each State Bar Council and Bar Council of India shall prepare the database of every Advocate after completion of process of Verification as provided under Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015. Page 29 18. The following sub-section (3) shall be added to section 22 of the Act after the existing sub-section (2): “(3) The State Bar Council shall maintain an “electronic data base” of all the advocates on its roll and it shall keep updating it as and when any change takes place and such Data should be accessible to the public at large on the web-site of the State Bar Council, which it would have to maintain. This electronic data base should have the particulars such as the name and father’s name of the advocate, enrolment number, place of practice etc.” Section 24 19. In sub-section (1) of section 24 of the Act, clause (d) shall be added after the existing clause (c): _ “(d) he has successfully completed the following programmes: i. has undergone a course of training in law for a minimum period of three months from a Training Centre which is duly recognized by the State Bar Council with the prior approval of the Bar Council ii. of India; has passed All India Bar Examination under All India Bar Examination Rules, 2010 of Bar Council iii. of India; has been an apprentice for a period of 9 months with an advocate, who had been on the Roll of advocates for a period of not less than ten (10) years. Page 30 Minimum qualification for joining such a training course, appearing in Bar Examination and apprenticeship shall be a degree in law which is recognized under the Act as a qualification for enrolment as an advocate.” 20. In clause (e) of sub-section (1) of Section 24 of Act after words “under this Chapter” shall be omitted and substituted by the following words: “ the Bar Council of India.” and after proposed amendment, (e) shall read as follows:“ he fulfills such other conditions as may be specified in the rules made by the State Bar Council and the Bar Council of India.” 21. Clause (f) of sub-section (1) of section 24 of Act shall be substituted by the following clause (f): “he has paid, in respect of the enrolment, stamp duty, if any, chargeable under the Indian Stamp Act, 1899 (2 of 1899), and an enrolment fee payable to the State Bar Council and to the Bar Council of India by way of a bank draft drawn in favour of that Council. The amount of such fee shall be fixed by the State Bar Council and 30% thereof shall be payable to the Bar Council of India. Provided that where such person is a member of Scheduled Castes and Scheduled Tribes and produces a certificate to that Page 31 effect from such authority as may be prescribed, the enrolment fee shall be 50% of the amount fixed here to before.” 22. Section 24 A of the Act shall be omitted and substituted by the following section 24 A: “23 A. Disqualification for enrolment._ (1) No person shall be admitted as an advocate on a state roll(a) if he is convicted of an offence involving moral turpitude and sentenced to undergo Rigorous (b) Imprisonment for any term; if he is dismissed, retrenched, compulsorily retired, removed or otherwise relieved from employment or office under the State or under the control of the Supreme Court of India or a High Court on the charges of corruption or dishonesty unbecoming of an employee or any other charges involving moral turpitude or if he, being an employee of the State/High Court/non-State enterprise/private body, is convicted of offences of the aforesaid description and sentenced to imprisonment for (c) any term. . Explanation._ In this clause, the expression ‘state’ shall have the same meaning assigned to it under article 12 of the Constitution. Provided that the disqualification for enrolment as contained in clauses (a) shall cease to have effect since the conviction is set aside by a Court of competent Page 32 jurisdiction or after a period of three years has elapsed since his release, whichever is earlier.” Section 26 24. In section 26 of the Act, the following sub-section (5) shall be added: “(5) Whenever an advocate applies for resumption of practice after having remained under suspension, voluntary or otherwise, to the State Bar Council, his application for resumption shall be referred to its Enrolment Committee, which may allow the application in case it is satisfied that the concerned advocate has not suffered dismissal, removal, etc. from his employment/office or conviction as envisaged under clause (c) of sub-section (1) of section 24 A of Act and is not suffering from any disqualification as covered by clauses (a) and (b) of section 24 A. But in case the Enrolment Committee proposes to refuse the application for resumption of practice, it shall refer the application for opinion to the Bar Council of India and every such reference shall be accompanied by a statement of the grounds in support of the refusal of the application and thereafter it shall dispose of such an application in conformity with the opinion of the Bar Council of India. Section 30 25. Section 30 of Act shall be omitted and substituted by the following section 30: - Page 33 “30. Right of advocates to practice._ Subject to provisions of this Act and any rules made thereunder, an advocate: (a) whose name is entered in any state roll as a practicing Advocate shall be entitled as of right to practise 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; (b) who/which is registered by the Bar Council of India as a law firm or as a foreign lawyer shall be entitled as of right to practice law throughout the territories to which this Act extents to the extent and in case of foreign Lawyer provided for in such registration and subject to the terms and conditions of his/its registration” Section 33 26. Section 33 of the Act shall be omitted and substituted by the following section 33: ‘33. Advocates alone entitled to practice_ Except as otherwise provided in this Act and any rules made thereunder or in any other law for the time being in force, no Page 34 person shall be entitled to practice in any Court or before any Authority or Tribunal or person legally authorized to take evidence on oath unless he is an advocate enrolled with a State Bar Council under this Act. However, practice by law firms and foreign lawyers recognized and registered by the Bar Council of India shall remain confined to the extent provided for in such registration and subject to the terms and conditions of his/its registration. 27. After section 33 of the Act the following the following Section 33A shall be added: “33A. Recognition and registration of Bar Associations._ 1. Advocates to form Bar Associations to protect and promote their professional interests in conformity with the Act and Rules made thereunder. 2. Subject to the provisions of this Act and any rules made thereunder, all Bar Associations except Supreme Court Bar Association, Associations of law firms and Associations of foreign lawyers are required to be recognized and registered under this Act by the State Bar Council within whose territorial jurisdiction they are located and the Supreme Court Bar Association, Association of law firms and Association of foreign lawyers are required to be registered with Bar Council of India. 28. After the proposed section 33A of the Act, the following sections 33B and 33C shall be added: “33B. Compulsory registration of an advocate with a Bar Association._ Page 35 (1) An advocate enrolled with State Bar Council engaged in or intended to start practice before a Court of law, tribunal etc. shall be required to get himself registered as a member of the Bar Association within whose territorial jurisdiction he ordinarily practices law or intends to practice law. However, other advocates not engaged in court work related practice, may also form and become members of the Bar associations relating to their kind of practice i.e. transactional advocates, advocates engaged in advisory nature of practice etc.. (2) In case advocate leaves one Bar Association and joins another by reason of change of practice or by reason of change of field of law, he shall intimate such change with all relevant particulars as to the new Bar association to the State Bar Council, of which he is a member within a period of six months since the time he joins the new Bar. Requirement of Experience:33C. Minimum experience required to appear before different Courts of law and authorities._ (1) An advocate entitled to practice law before any court or before any authority under this Act, shall be so entitled to practice law only before such Courts of Law as are equivalent to Sessions Judge or District Judge and such other Courts in specific field/s of law that are exercising original jurisdiction in the matters Page 36 covered by such fields of law and all other Courts which are subordinate to them. (2) An advocate entitled to practice law before any court or before any authority under this Act, after having practiced law before Courts, Tribunals etc. as mentioned in subsection (1) of section 33C for a period of not less than two (2) years, shall be entitled to practice law before a High Court and such other Courts, Tribunals, Boards or such other Authorities in specific fields of law that are exercising appellate and/or revisional jurisdiction in the matters covered by such fields of law and all other Courts, Tribunals etc. which are subordinate to them. (3) An advocate entitled to practice law before any court or before any authority under this Act, after having practiced law before Courts, Tribunals etc. as mentioned in subsection (2) for a period of not less than three (3) years shall be entitled to practice law before the Supreme Court of India subject to such other terms and conditions as may be provided for by the Supreme Court of India. Provided that the conditions as to experience contained in subsections (1) to (3) of this section shall apply only to advocates who are enrolled after the commencement of the Advocates ‘(Amendment) Act, 20…… (….. of 20…….).’ Section 34 Page 37 Following proviso shall be added to the present sub-section (1) of section 34: Provided that such conditions shall not relate to any matter over which State Bar Council or the Bar Council of India have jurisdiction under the Act. Section 35 29. In sub-section (1) of section 35 of Act the following lines shall be added at the end: “If an advocate suffers conviction as mentioned in subsection (a) and (b) of sub-section (1) of section 24 A, he shall be deemed to have been guilty of professional misconduct unless execution and operation of such conviction is stayed by a court of competent jurisdiction.” and after amendment sub-section (1) of section 35 shall read as follows:“Punishment of advocates for misconduct.— (1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. If an advocate suffers conviction as mentioned in sub-section (a) and (b) of subsection (1) of section 24 A, he shall be deemed to have been guilty of professional misconduct unless execution and Page 38 operation of such conviction is stayed by a court of competent jurisdiction.” 30. In sub-section (3) of section 35 of the Act, the following clauses (e) and (f) shall be added after the existing clause (d): “(e) impose a fine which may extend of rupees one lac and costs of the proceedings; (f) award a fair and reasonable compensation for such an amount, as it may deem fit, payable to the person aggrieved by the misconduct of the concerned advocate. (g) impose special and exemplary costs on the complainant in case the complaint is found to be vexatious and frivolous or on the respondent-advocate in case he is found to have been uncooperative in the disciplinary proceedings under the Act.” Section 36 31. In Sub section (1) of Section 36 of Act, after words “has reason to believe that any advocate”, the words “whose name is not entered on any State Roll” shall be omitted and the following words shall be added in its place. “which has the potential and tendency of lowering the credibility and dignity of the legal profession having inter-state or national ramifications or which promotes unfair practice or practices in legal profession on a scale beyond the territorial jurisdiction of one or more State Bar Councils. and after amendment section 36 (1) shall read as follows:- Page 39 “Disciplinary powers of Bar Council of India.—(1) Where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that any advocate has been guilty of professional or other misconduct which has the potential and tendency of lowering the credibility and dignity of the legal profession having inter-state or national ramifications or which promotes unfair practice or practices s in legal profession on a scale beyond the territorial jurisdiction of one or more State Bar Councils.”, the Bar Council of India may take suitable action against such Advocate after giving him opportunity of hearing. Section 36B 32. In sub-section (1) of section 36 B of Act the words “one year” shall be substituted by words “two years” and after proposed amendment the Sub section (1) of Section 36 B of Act shall read as follows: “36B. Disposal of disciplinary committee of a disciplinary proceedings.—(1) The State Bar Council shall dispose of the complaint received by it under section 35 expeditiously and in each case the proceedings shall be concluded within a period of two years from the date of the receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council, as the case may be, failing which such proceedings shall stand transferred to the Bar Council of India Page 40 which may dispose of the same as if it were a proceeding withdrawn for inquiry under sub-section (2) of section 36.” Section 45 33. In section 45 of the Act words “with imprisonment for term which may extent to six months” shall be substituted by words “with imprisonment which may extend to five years or with fine which may extend to rupees hundred thousand or with both” and after amendment section 45 shall read as follows: “45. Penalty for persons illegally practising in Courts and before other Authorities._ Any person who practises in any court or before any authority or person, in or before whom he is entitled to practise under the provisions of not this Act, shall be punishable with imprisonment which may extend to five years or with fine which may extend to rupees hundred thousands or with both.” Section 49 34. In clause (i) of sub-section (1) of section 49 of Act after words “general principles for guidance of State Bar Councils” the following words shall be added: “and Supreme Court Bar Association” and after amendment clause (i) sub section (1) of section 49 of Act shall read as follows:“(i) general principles for guidance of State Bar Councils and Supreme Court Bar Association and the manner in which Page 41 directions issued or orders made by the Bar Council of India may be enforced;” 35. After existing clause (i) of sub-section (1) of Section 49 the following clause (ia) shall be added: “ (ia) the manner in which the State Bar Council may exercise supervision and control over Bar Associations, barring the Supreme Court Bar Association, Association of law firms and foreign lawyers, situated within its territorial jurisdiction and the manner in which the directions issued or orders passed by the State Bar Council may be enforced. 36. After proposed clause (ia) of sub-section (1) of Section 49 the following clause (ib) shall be added: “(ib) for rendering of legal services and spreading legal literacy;” 37. After proposed clause (ib) of sub-section (1) of Section 49 the following clause (ic) shall be added: “(ic) regulation of the Supreme Court Bar Association in consultation with the President of the Supreme Court Bar Association and for regulation of Associations of law firms and foreign lawyers in consultation with their respective Presidents/Office-Bearers. 38. After the existing clause (h), the following clauses (i) shall be added and the existing clauses (i) and (j) shall be re-numbered as (j) and (k): Page 42 “ (i) to provide for qualifications and conditions subject to which a member on the roll of the State Bar Council may be a candidate in the elections to the State Bar Council and Bar Councils of India;” 39. The present clause (j) shall be omitted and substituted by the following clause (j): “(j) any other matter which the Bar Council of India may deem fit are necessary for the effective implementation of its statutory functions under the Act in general and under section 7 of the Act in particular.” 40. The following Chapter V-A shall be added after the present Chapter V. CHAPTER V-A Welfare:The Union Government and the State Governments will make budgetary provisions in their annual budget for the welfare schemes for the practicing Advocates of the country. The welfare schemes shall include medi-claim facilities, pension schemes and insurance schemes for the Advocates and their families(dependents). Advocate:- Advocate means as an advocate whose name is entered in the roll of Advocates being maintained by the State Bar Councils under section 17 of the Advocates Act, 1961 and who is in the list of practicing Advocates under Bar Council of India Certificate and Place of Practice(Verification) Rules, 2015. Page 43 Family:- In relation to the Advocate means the Advocate, the wife or husband, as the case may be, of the Advocate, his/her dependent parents, sons/daughters The State Government shall make provision for sufficient building and sitting spaces with all infrastructure, chairs, tables, electricity, toilets(separate for ladies and Gents), chambers and all required infrastructure, canteens, sufficient library(including e-library) for the Advocates at their respective working places i.e. Bar Associations. The said buildings and sitting spaces, chambers, libraries shall be in the premises of respective courts, Tribunals or other forums, where judicial or quasi judicial functions are discharged as the Advocate is to appear. Medi-claim:Every State Bar Council shall make provisions for the media claim schemes and benefits for every Advocate, his wife, children and dependent parents, who are in the list of practicing Advocates in Bar Council of India Certificate and Place of Practice(Verification) Rules, 2015. The subscription for such medi-claim benefits will be paid in following manner: 25% of total amount shall be paid by the concerned Advocate, 25% shall be paid by the State Bar Council and rest of 50% shall be paid by the State Government. The State Bar Council may make provisions for collecting a lumpsum amount from new entrants to Bar and from all other Advocates for payment of their contribution towards this scheme for whole life. The Union Government and State Government shall make all endevours to provide the suitable companies for providing mediclaim benefits to the Advocates through each State Bar Councils at reasonable rates covering all essential beneficial coverage for the illness and diseases of Advocates and their families. Page 44 Insurance-scheme:Under the welfare schemes, the Union Government shall make endevours to provide and cover up all the practicing Advocates under suitable schemes for the Insurance of the Advocates and their families. In case of sudden, unnatural, unti,ely death(before 80 years of age). The Union Government shall provide the Insurance company to undertake the Insurance coverage of every Lawyer after taking a consolidated amount of life time subscription, the maximum amount shall not exceed Rs. 3 lakhs. The rest of subscription shall be paid by Union Government 50% and the respective State Government 50%. The Union Government under the Family and Welfare Department shall make the scheme and the State Governments will be bound to pay their contribution. Pension Schemes:- Any Advocate desirous to retire from the Legal profession after the age of 65 years shall get a sum of Rs. 40000 every month as a pensionary amount throughout his life time. After his death his widow and minor an dependent children and parents shall get the family pension of Rs. 50,000/- every month till their death or attaining majority. For this scheme, at the time of enrolment an Advocate shall be required to pay a sum of Rs. 12 lakhs (if he is below 30 years of age and Rs. 10 lakhs if he is between 30 to 40 years of age, Rs. 7.5 lakhs if he is between 40 to 50 years of age and Rs. 4 lakhs if he is between 50 to 60 years of age, Rs. 3 lakhs if he is above 60 years of age. The said amount shall be paid to Union of India under a suitable account to be created by the Ministry of Finance Page 45 for this purpose: And the amount of pension shall be paid directly to the Advocate or his family member by the Union Government every month through a bank cheque of any nationalized Bank. This is a contributory scheme in which Union Government shall have to pay the pension amount to the Advocates and their families. In case an Advocate become disabled due to some illness/accident of any reason and is unable to attend his professional work in courts for whole of his life before the age of 65 years, the same pensionary benefits shall be extended to him and his family. The State Bar Council shall make schemes in this regard and the same shall be approved by the Bar Council of India and the Union Ministry of Finance.