INDIAN BAR COUNCILS ACT, 1926

Preamble 1 - INDIAN BAR COUNCILS ACT, 1926

 

INDIAN BAR COUNCILS ACT, 1926

[Act, No. 38 of 1926]

[9th September, 1926]

PREAMBLE

An Act to provide for the constitution of Bar Councils and for other purposes.

WHEREAS it is expedient to provide for the constitution and incorporation of Bar Councils for certain Courts to confer powers and impose duties on such Bar Councils, and to consolidate and amend the law relating to legal practioners entitled to practice in such Courts.

It is hereby enacted as follows: 

Section 1 - Short title, extent and application

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

[1] [(2) It extends to the whole of India except the State of Jammu and Kashmir, and shall apply to the High Court of[2] [every State] other than the State of Jammu and Kashmir and also to such Judicial Commissioners Courts in Union territories as the Central Government may, by notification in the Official Gazette, declare to be High Courts to which this Act applies.]

[STATE AMENDMENTS

[Uttar Pradesh

In Section 1

In sub-section (2) of section I of the principal Act--

[3] [(a) the word "Allahabad" shall be deleted;] and

[4] [(b) after the word "Patna" the words "and the High Court of Judicature at Allahabad constituted by the U.P. High Court (Amalgamation) Order, 1948" shall be inserted.]

Section 2 - Interpretation

(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.

 

(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.

Section 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.

Section 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.

[5] [Explanation.-- For the purpose of election to the Bar Council for the High Court of Gujarat, the period of ten years aforesaid shall be computed after taking into account the period for which the person concerned was entitled as of right to practice in the High Court of Bombay or of Saurashtra or in the Judicial Commissioner's Court of Kutch before the 1st day of May, 1960.]

(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 of West Bengal, Madras Maharashtra and Gujarat shall be Chairmen ex officio, respectively, of the Bar Councils constituted for the High Courts of those States.

[STATE AMENDMENTS

[ANDHRA PRADESH

[6] [In section 4 of the Indian Bar Councils Act, 1926 (hereinafter referred to as the principal Act),--

(a)      to sub-section (2), the following Explanation shall be added, namely:--

"Explanation.--For the purpose of election to the Bar Council for the High Court of Andhra the period of ten years aforesaid shall be computed after taking into account the period for which the person concerned was entitled as of right to practise in the High Court at Madras before the 5th day of July, 1954";

(b)      in the proviso to sub-section (4), after the words "Advocates-General of", the word "Andhra" shall be inserted, and after the word "constituted", the words "for the High Court of Andhra and" shall be inserted.] 

[Uttar Pradesh

[7] [In Section 4

The following shall be substituted:

"4. Composition of the Bar Council for the High Court, Allahabad.--

(1)     The Bar Council for the High Court of Judicature at Allahabad shall consist of?

 

(a)      the Advocate-General who shall be ex officio Chairman of the Bar Council;

 

(b)      Court Advocates not being persons holding a judicial office nominated by the Chief Justice;

 

(c)      seven persons elected from amongst them by the Advocates of the High Court, who are resident in or have their permanent place of business in Allahabad or Lucknow;

 

(d)      nine persons elected from amongst them by the Advocates other than those referred to in clause (c).

 

(2)     There shall be a Vice-Chairman of the Bar Council elected by the Council in such manner as may be prescribed.

 

(3)     The term of office of the nominated and elected members of the Bar Council shall be six years.

 

(4)     A member elected or nominated to fill a causal vacancy shall be elected or nominated to serve for the remainder of his predecessor's term of office.

 

(5)     The quorum for a meeting of the Bar Council shall be six members:

Provided that the validity of any proceedings in the Bar Council shall not be called in question on account of any vacancy in the Bar Council."]

[Tamil Nadu

[8] [After Section 4

The following section shall be inserted, namely-

"4-A. Qualifications for election.--

Notwithstanding anything contained in this Act or in any rule made thereunder, no advocate entered in the roll of advocates of the Madras High Court who, on or after the 5th July 1954, is not ordinarily raiding and practising in Courts in the State of Madras shall be entitled to vote at any election for, or to be elected to, the Madras Bar Council under clause (c) of sub-section (1) of section 4."]]]

 

Section 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.

[STATE AMENDMENTS

[Uttar Pradesh

[9] [In Section 5

The following shall be substituted:

"5. Election of members.--

(1)     The members to be elected under clause (d) of sub-section (1) of section 4 shall be choosen in such territorial constituencies as may be prescribed:

Provided that not more than one member shall be returned from each such constituency.

(2)     There shall, for purposes of elections under clauses (c) and (d) of sub-section (1) of section 4 be prepared in the manner prescribed-

 

(a)      an electoral list of advocates entitled to vote under clause (c) aforesaid;

 

(b)      separately in respect of each territorial constituency referred to in subsection (1), a territorial electoral list of advocates entitled to vote in such constituencies:

Provided that the first electoral lists shall be prepared by the High Court.

(3)     The list prepared under sub-section (2) may, from time to time, be revised in the manner prescribed.

 

(4)     No advocate shall be entitled to have his name included in more than one electoral list.

 

(5)     Where an advocate is otherwise qualified to have his name included in more than one electoral list, he shall be entitled at his option to exercise in the manner prescribed, to have his name entered in any one of the aforesaid electoral lists.

 

(6)     An option exercised under sub-section (5) shall be final and cannot be revised during the continuance of the electoral list except in the manner and for reasons to be prescribed.

 

(7)     A person ceasing to be a member by reasons of the expiry of his term of office shall, if otherwise qualified be eligible for re-election or renomination."]

Section 5A - Ad hoc Bar Council for Gujarat High Court

Notwithstanding anything contained in this Act, the Chief Justice of the High Court of Gujarat shall nominate the members of the first Bar Council under this Act for the High Court of Gujarat and the members so nominated shall remain in office for a period of twelve months

[STATE AMENDMENTS

[ANDHRA PRADESH 

[10] [After section 5 of the principal Act, the following section shall be inserted, namely:--

"5A. Ad hoc Bar Council for Andhra High Court.--

Notwithstanding anything contained in this Act, the Chief Justice of the High Court of Andhra shall nominate the members of the first Bar Council under this Act for the High Court of Andhra, and the members so nominated shall remain in office for a period of six months."]

[Uttar Pradesh

[11] [In Section 5A

The following shall be added as a new section 5-A:

"5-A. Retirement of members.--

(1)     The Bar Council for the High Court of Judicature at Allahabad shall be a permanent body not subject to dissolution, but as nearly as may be one-half of the members nominated or elected under clauses (b) to (d) of sub-section (1) of section 4 shall retire in accordance with the provisions of sub-section (2).

 

(2)     The High Court shall, by order, make such provision as it thinks fit, by curtailing the term of office of some of the members; for securing that, as nearly as may be, one-half of the members nominated or elected under clauses (b) to (d) of subsection (1) of section 4 shall retire in every third year (sic) after."]]]

 

Section 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.

[STATE AMENDMENTS

[Uttar Pradesh

In Section 6

(1)     in sub-section (1)--

[12] [(a) in clause (a) the words "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" shall be deleted;]

[13] [(b) clause (b) shall be deleted;]

[14] [(c) in sub-clause (d) the words "and the quorum necessary for the transaction of business thereat" shall be deleted;]

[15] [(d) in sub-clause (c) for the words "the respective terms of office of the Chairman in cases where the Chairman is to be elected and" the words "the term of office" shall be substituted.]

[16] [(2) sub-section (4) shall be deleted.]

 

Section 7 - Power of Bar Council to make bye-laws

The Bar Council may make bye-laws consistent with this Act and any rules made there under 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.

Section 8 - Enrolment of advocates

(1)     No person shall be entitled as of right to practice in any 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, entitles 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.

 

(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 sub-section (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 a 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 overall other advocates.

(5)     The High Court shall issue a certificate of enrolment to every person enrolled under this section.

 

(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.

 

(7)     The Bar Council shall enter in the copy of the roll all alterations and additions so communicated to it.

Section 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 applications or to prescribe the conditions under which such person shall be entitled to practice or plead.

Section 10 - Punishment of advocate for misconduct [Repealed]

[17] [***]

[STATE AMENDMENT

[ANDHRA PRADESH

[18] [in sections 10

(i)       in sub-section (1), after the words "any advocate of the High Court", the words "or an advocate of any other High Court ordinarily practising in any subordinate Court or Courts in the [19][Andhra area of the State of Andhra Pradesh]" shall be inserted;

 

(ii)      to the same sub-section, the following Explanations shall be added, namely:--

"Explanation 1.-- The holding of any political opinion, or the expression of it in any form or act not involving physical violence or incitement to or abetment of such violence, is not misconduct within the meaning of this sub-section.

Explanation 2.-- Conviction for any political offence, under any general, special or local Law or Ordinance or any rules made thereunder, including conviction under section 124-A of the Indian Penal Code (Central Act 45 of 1860) or the Indian Criminal Law Amendment Act, 1908 (Central Act 14 of 1908), where the person convicted has not been found guilty of physical violence or of incitement to or abetment of such violence is no proof of misconduct within the meaning of this sub-section."]

[Tamil Nadu

In Section 10

[20] [(i) in sub-section (1), after the words "any advocate of the High Court", the words "or an advocate of any other High Court ordinarily practicing in any subordinate Court or Courts in the [21] [State] of Madras" shall be inserted;]

[22] [(ii) to the same Sub-section, the following Explanations shall be added, namely:--

"Explanation 1.--The holding of any political opinion, or the expression of it in any form or act not involving physical violence or incitement to or abetment of such violence, is not misconduct within the meaning of this sub-section.

Explanation 2.--Conviction for any political offence, under any general, special or local Law or Ordinance or any rules made thereunder, including conviction under

( Central Act XLV of 1860)

section 124-A of the Indian Penal Code or the Indian Criminal Law Amendment Act, 1908(Central Act XIV of 1908), where the person convicted has not been found guilty of physical violence or of incitement to or abetment of such violence is no proof of misconduct within the meaning of this sub-section.]]]

Section 11 - Tribunal of Bar Council [Repealed]

[23] [***]

Section 12 - Procedure in inquiries [Repealed]

[24] [***]  

Section 13 - Powers of the Tribunal and Courts in inquires [Repealed]

[25] [***] 

Section 14 - Right of advocates to practise

(1)     An advocate shall been titled as of right to practice?

 

(a)      subject to the provisions of sub-section (4) of section 9, in 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 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 anyway 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.

Section 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.

Section 16 - Power to fix fees payable as costs

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

Section 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 there under.

Section 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.

Section 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 there under, be deemed to have been repealed.

 

(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 there under, 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.

Section 20 - Transitional provision regarding certain Bar Councils affected by States' reorganisation

(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 1stday 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.

 

(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 57.61:27.81:14.58.]

Schedule I -

 

THE SCHEDULE

(See section 19)

AMENDMENT OF ENACTMENTS