The question came for consideration before the Supreme Court in the case of ‘Bar Council of India v. AK Balaji (2018)’. One of the questions before the court was that whether the 1961 Act applies only to persons practising in litigious matters that is, practising before Court and other authorities?
Application on Non-litigious Matters
In the statements of Objects & Reasons for enacting the Advocates Act, 1961, it is stated that the main object of the Act is to establish All India Bar Council and a common roll of advocates and Advocate on the common roll having a right to practice in any part of the country and in any Court, including the Supreme Court. Thus, from the Statement of Objects and Reasons, it is seen that the 1961 Act is intended to apply to,
- persons practicing the profession of law in any part of the country and
- Persons practicing the profession of law in any Court including the Supreme Court.
Thus, from the statement of objects and reasons it is evident that the 1961 Act is intended to apply not only to the persons practicing before the Courts but it is also intended to apply to persons who are practicing in non-litigious matters outside the Court.[1]
Section 29 of the Act
Apart from the above, Section 29 of the 1961 Act specifically provides is that from the appointed day, there shall be only one class of persons entitled to practice the profession of law, namely Advocates. It is apparent that prior to the 1961 Act there were different classes of persons entitled to practise the profession of law and from the appointed day all these class of persons practising the profession of law, would form one class, namely, advocates.
Thus, Section 29 of the 1961 Act clearly provides that from the appointed day only advocates are entitled to practise the profession of law whether before any Court/authority or outside the Court by way of practise in non-litigious matters.
Section 33
Section 33 of the 1961 Act is a prohibitory section in the sense that it debars any person from appearing before any Court or authority unless he is enrolled as an advocate under the 1961 Act. The bar contained in Section 33 of the 1961 Act has nothing to do with the persons entitled to be enrolled as advocates under Section 29 of the 1961 Act.
A person enrolled as an advocate under Section 29 of the 1961 Act, may or may not be desirous of appearing before the Courts. He may be interested in practising only in non litigious matters. Therefore, the bar under Section 33 from appearing in any Court (except when permitted by Court under Section 32 of the 1961 Act or any other Act) unless enrolled as an advocate does not bar a person from being enrolled as an advocate under Section 29 of the 1961 Act for practising the profession of law in non-litigious matters.
The Apex Court in the case of Ex-Capt. Harish Uppal versus Union of India (1994) has held that the right to practise is the genus of which the right to appear and conduct cases in the Court may be a specie. Therefore, the fact that Section 33 of the 1961 Act provides that advocates alone are entitled to practice before any Court/authority it cannot be inferred that the 1961 Act applies only to persons practising in litigious matters and would not apply to person practising in non-litigious matters.
Persons practicing in non-litigious matters are also liable to penal provisions
Section 35 of the 1961 Act provides punishment to an advocate who is found to be guilty of professional or other misconduct. The fact that Section 45 of the 1961 Act provides imprisonment for persons illegally practicing in Courts and before other authorities, it cannot be said that the 1961 Act does not contain provisions to deal with the persons found guilty of misconduct while practising in non-litigious matters.
Once it is held that the persons entitled to practice the profession of law under the 1961 Act covers the persons practising the profession of law in litigious matters as well as non-litigious matters, then, the penal provisions contained in Section 35 of the 1961 Act would apply not only to persons practising in litigious matter, but would also apply to persons practising the profession of law in non-litigious matters.
The very object of the 1961 Act and the Rules framed by the Bar Council of India are to ensure that the persons practising the profession of law whether in litigious matters or in non-litigious matters, maintain high standards in professional conduct and etiquette and, therefore, it cannot be said that the persons practising in non-litigious matters are not governed by the 1961 Act.
It is not in dispute that once a person is enrolled as an advocate, he is entitled to practise the profession of law in litigious matters as well as non-litigious matters. If the 1961 Act is restricted to the persons practising the profession of law in litigious matters, then an advocate found guilty of misconduct in performing his duties while practising in non-litigious matters cannot be punished under the 1961 Act.
Similarly, where an advocate who is debarred for professional misconduct can merrily carry on the practise in no litigious matters on the ground that the 1961 Act is not applicable to the persons practising the profession of law in non-litigious matters. Such a position cannot be accepted.
Chamber Practice
It may be noted that Rule 6(1) in Chapter III Part VI of the Bar Council of India Rules framed under Section 49(1) (ah) of the 1961 Act provides that an advocate whose name has been removed by an order of the Supreme Court or a High Court or the Bar Council as the case may be, shall not be entitled to practise the profession of law either before the Court and authorities mentioned under Section 30 of the 1961 Act, or in chambers, or otherwise. The above rule clearly shows that the chamber practise, namely, practise in non litigious matters is also within the purview of the 1961 Act.
Does Advocates Act also apply on bureaucrats drafting opinions?
There is a distinction between a bureaucrat drafting or giving opinion, during the course of his employment and a law firm or an advocate drafting or giving opinion to the clients on professional basis.
Moreover, a bureaucrat drafting documents or giving opinion is answerable to his superiors, whereas, a law firm or an individual engaged in non litigious matters, that is, drafting documents / giving opinion or rendering any other legal assistance are answerable to none.
To avoid such anomaly, the 1961 Act has been enacted so as to cover all persons practising the profession of law be it in litigious matters or in non-litigious matters within the purview of the 1961 Act.
Reference
As held in Bar council of India v. AK Balalji (2018)
[1] Bar Council of India v. AK Balaji (2018)