Legal Profession means to present the favor of the client (party) in court of law and presenting from his side. It is his duty towards the profession for which he gets fees from his party. Legal profession is a learned and a very attractive profession. Legal profession plays a very important role in the execution of justice. For which there has to be-
(i) A proper organized system of courts
(ii) Properly developed system of law.
These two for an effective administration of justice can be achieved through well-organized system of law.
In the absence of such system the courts will not be in a place to give justice as evidence can’t be properly arranged for the party or against it.
An advocate by presenting the legal material related to the case helps the court to give a proper judgment.
Therefore the members of legal profession play an important role in the society and occupy a high status in it.
A legal profession has some qualities like
‘ it is an independent profession,
‘ area of function is very wide
‘ group of persons who does this profession is called ‘Bar’
‘ Legal professionals are considered officers of cour
According to Section 2 in THE ADVOCATES ACT, 1961
‘Advocate’ means an advocate entered in any roll under the provisions of the Act
SECTION 24 of ADVOCATES ACT,1961
Persons who may be admitted as advocates on a State roll.’
(1) According to this a person is qualified to be admitted as an advocate on a state roll if he fulfills certain conditions-
(a) He is a citizen of India:
Provided a person of other country can be allowed to practice in India only when the that other country allows Indians to practice in their country
(b) He has attained the age of twenty one years;
(c) He has obtained a degree in law-
(i) Before the 12th March, 1967 from any University in India or
(ii)Before the 15th August, 1947, from any University within India according to Government of India Act, 1935 or,
(iii)After the 12th March, 1967, save as given in sub-clause (iiia) After completing three year law degree from any University in India which is recognized for the working of Advocates Act by the Bar Council of India or
(iiia) After completing a course of law of minimum two years starting from1967-68 or any earlier academic year from any University in India which is recognized for the working of this Act by the Bar Council of India
[He is a barrister and is called to the Bar on or before the 31st day of December, 1976 or has passed the articled clerks’ examination or any other examination specified by the High Court at Bombay or Calcutta for enrolment as an attorney of that High Court or has obtained any other foreign qualification in law which is recognized by the Bar Council of India for the purpose of enrolment as an advocate according to this Act]
(iv)In any other case, from any University of other country except India, if the degree is recognized by the Bar Council of India
(e) He fulfills other conditions given under the rules made the State bar Council
(f) The person has paid for this enrolment the Stamp Duty according to Stamp Act 1889 and also the enrolment fees of Rs.600 to the State Bar Council and Rs.150 to Bar Council of India(both of them to be paid by way of Demand Draft drawn in favour of that Council)
If a person is a member of Scheduled Caste or Scheduled Tribe and provides the required certificate for enrolment then for him the fees is Rs.100 to the State Bar Council and Rs.25 to the Bar Council of India.
[For the objectives of this sub-section, a person should have obtained a law degree from a University in India on the date on which University has published the results on its notice-board or declaring by any other way that he has cleared the examination].
(2) Vakil or a pleader who has a law degree may be entered as an advocate on a State roll, if he
(a) Makes an application for the enrolment according to this Act, not later than two years from the appointed day, and
(b) Fulfills the conditions given under clauses (a), (b) and (f) of subsection (1)
(3) A person who-
(a) has been a vakil/pleader/mukhtar or was entitled at any time to be enrolled under any law for minimum three years has as an advocate of a High Court (including a High Court of a former State of Part B) or of a Court of Judicial Commissioner in any Union territory; or
(aa) Before the 1st December, 1961, person was entitled to practice the profession of law other than as an advocate (whether by way of acting/pleading or both) by virtue of the provisions of
any law, or who is entitled was not in public service on the said date; or]
(c) Before the 1st April, 1937,the person has been an advocate of any High Court in any region which falls within Burma as given under the Government of India Act, 1935-, or
(d)the person is entitled to be enrolled as an advocate according to any rule made by the Bar Council of India in this behalf, may be admitted as an advocate on a State roll if he-
(i) Makes an application for the enrolment with respect to the provisions of this Act; and
(ii) Fulfills the conditions given under clauses (a), (b), (e) and (f) of sub-section (1)
KINDS OF ADVOCATES
Broadly advocate is divided under 4 categories according to Advocates Act 1961 and Supreme Court Rues 2013.they are as follows:
2. Senior Advocate
3. Advocate on Record
4. Any Other Person
According to Section 16 of Advocates Act 1961advocates is divided under 2 categories i.e. senior advocates and other advocates. But this list is not a complete list because Supreme Court Rules 2013 have also defined an another class of advocate i.e. advocate on record (Order 4).
It is essential to define the term advocate firstly so that further categories can be understood easily.
An advocate is a person who is having a law degree, passed All India Bar Examination and enrolled in a state roll as an advocate.
He is an advocate under this Act as per section 16 but designated by High Court/Supreme Court by virtue of his standing in a court, experience, knowledge in law, high quality arguments and contribution in ascertaining a court to do justice.
The parameters to become a senior advocate are generally not fixed. It is the discretion of Supreme Court and High Court though some state High Courts have fixed some qualifications to be fulfilled by an advocate to become a senior advocate. Once an advocate becomes a senior advocate it attracts some rules made by Supreme Court in relation to Senior Advocate (Supreme Court Rules 2013 Order 4 Rule 2)
Order 4 Rule 2
It says that a senior advocates shall not take a briefing directly from a client, shall not sign a Vakalatnama or other documents, shall not appear without advocate on record.Senior Advocate have to take a briefing from a junior advocate.
Like Delhi High Court formulated some rules related to the advocate to be designated as senior advocate. Guidelines were issue by Delhi High Court in 2012.Some of the rule are-
‘ Minimum 10 years of experience at BAR
‘ Enrolled in BAR Council of Delhi
‘ Mainly practicing in Delhi High Court its Subordinate Courts
‘ Furnished 15 judgments in preceding 3 years where he has contributed to the growth of law
ADVOCATE ON RECORD
As per Supreme Court Rules 2013 an advocate on record are also the advocates enrolled in the Bar Council but special privileges to act and plead in Supreme Court (Authority given by Supreme Court itself)
There are some prescribed rules and regulations to become an advocate on record like minimum 4 years of practice (before amendment it was 5 years) plus 1 year of practice under advocate on record. There are some other essentials to be followed by advocate on record like they should have a clerk who shall be registered by the Registrar Office of Supreme Court.
Another privilege Advocate on Record is having that senior advocate can only plead in Supreme Court with the help of Advocate on Record.
On the other side Advocate on Record can act and plead in Supreme Court after passing an examination of Advocate on Record.
AS per Section 32 of ADVOCATES ACT 1961 persons other than advocates have the right to plead in the court in their case.
It is a special right given under the Act but it is the discretion of the court to permit/allow to any person to plead in a court whether he/she is a law graduate or not.
OTHER PROVISIONS RELATED TO SENIOR ADVOCATE
RESTRICTIONS ON SENIOR ADVOCATES
Under Sec.49 (1)(g),the Bar Council made rules restraining in the matter of practice to which senior advocates shall be subject in Chapter 1 of Part IV of The Bar Council of India Rules: Senior Advocates shall in the matter of the practice of the profession of law mentioned in Sec.30 of the Act, be subject to the following restrictions
Sec.30 of the Act says ‘Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as right to practice throughout the territories to which the act extends-
(i) In all courts including Supreme Court
(ii) Before any tribunal or person legally authorized to take evidence
(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.
SECTION 23-RIGHT TO PRE-AUDIENCE
(1) The Attorney General of India shall have pre-audience over all other advocates.
(2) The Solicitor-General of India shall have pre-audience over all other advocates (Subject to the provisions of sub-section (1),
(3) The Additional Solicitor-General of India shall have pre-audience over all other advocates. (Subject to the provisions of sub-sections (1) and (2))
1[(The second Additional Solicitor-General of India shall have pre-audience over all other advocates (Subject to the provisions of sub clause (1),(2),(3))]
(4) The Advocate General of any State shall have pre-audience over all other advocates, and, the right of pre-audience among them will be decided on the basis of their seniority( Subject to the provisions of sub-section (1), (2), (3) and (3A)).
(5) Subject as aforesaid-
(i) Senior advocates shall have pre-audience over other advocates; and
(ii) The right of pre-audience over senior advocates and other advocates will be decided on the basis of seniority.
DISPUTES REGARDING SENIORITY (Sec.21 of The Advocates Act)
(1)Where the date of seniority of two or more persons is the same, the one who is senior in age shall be considered to the other.
(2)If any dispute arises regarding the seniority of any person, it shall be decided by the State Bar Council.
ARTICLES RELATED TO SENIOR ADVOCATE
CONTEMPT OF COURT BY SENIOR ADVOCATE
Five days after senior advocate Virender Kumar Jain appeared in the Punjab and Haryana high court in kurta-pyjama and entered into a spat with a judge, the court on Friday issued him a notice for criminal contempt of court for misbehaviour and not following the dress code in the court. The notice was issued by the court headed by justice Rajive Bhalla, on which senior advocate has to file his reply by November 6.
On October 5, Jain was to appear before justice Rakesh Kumar Garg’s court for arguing a case, but his junior advocate had made a request for adjournment, citing the senior advocate’s personal difficulty to appear. Thereafter, the court called advocate JL Malhotra, on whose name the affidavit was submitted in the case. After some time, Malhotra appeared along with Jain, who was in kurta-pyjama. On this, justice Garg pointed out that the senior advocate was not in proper dress.
It was then that the spat broke between the two. Finally, justice Garg retired to his chamber.Later, when the judge came back to the court, the senior advocate allegedly started heated arguments in the presence of the high court bar association’s president, Anmol Rattan Singh Sidhu.
On this, justice Garg had referred the matter to the chief justice for his intervention and appropriate directions. After considering justice Garg’s report, the chief justice referred the matter to be heard by justice Bhalla, who in turn issued a notice to Jain on Friday, seeking his response.When contacted, Jain refused to comment on the matter.
Senior advocate Virender Kumar Jain, who was issued notice for criminal contempt of court by the high court for appearing in a kurta-pyjama in the court and entering into a verbal spat with a judge, has moved the Supreme Court seeking transfer of his case to the high court of some other state.
Appearing before the division bench headed by justice Rajive Bhalla on Wednesday, Jain said, “I had filed a petition for transfer of the contempt case from the Punjab and Haryana high court to the Himachal Pradesh high court. But it was returned to me with some observations. I am soon going to file the petition again.”
Jain said, “It (petition) may come up for hearing in December. I just want to bring the facts on record. So I want adjournment here.”On this, the court adjourned the case for next hearing saying, “It is for the Supreme Court to decide whether it would go to the Himachal Pradesh high court or some other high court.”
On October 5 2013, Jain was to appear before justice Rakesh Kumar Garg’s court for arguing a case but his junior advocate had made a request for adjournment citing the senior advocate’s difficulty to appear. Thereafter the court called advocate JL Malhotra, on whose name the affidavit was submitted in the case.After some time, advocate Malhotra appeared along with senior advocate Jain who was in a kurta pyjama. On this, justice Garg pointed out that the senior advocate was not in a proper dress. It was then that the verbal spat ensued between the two and finally justice Garg retired to his chamber. But after some time when the judge came back to the court, the senior advocate allegedly started a heated argument in the presence of high court bar association president Anmol Rattan Singh Sidhu.
On this, justice Garg had referred the matter to the chief justice for his intervention and appropriate directions. The chief justice referred the matter to be heard by justice Bhalla, who issued notice to Jain on October 11 2013 seeking his response.Jain was also issued a show cause notice by the high court on the administrative side as to why the status of the senior advocate given to him in 1989 should not be withdrawn for his misconduct.
TRANSPARENCY IN APPOINTMENT OF SENIOR ADVOCATE
The Supreme Court on 24th July 2015 issued notice to the Supreme Court Bar Association, the Bar Council of India, apex court registry, the law ministry, attorney general Mukul Rohatgi, and the Supreme Courts Advocates on Record Association on a plea challenging the designation of senior advocates.
A bench that comprised justices T.S. Thakur, V. Gopala Gowda and R. Banumathi asked them to act on the plea filed by Indira Jaising- former additional solicitor general.
Jaising had, on 7 July 2015, challenged the ‘lack of a definite criteria and lack of transparency’ in the appointment of senior advocates by the Supreme Court by way of a PIL.
In her petition, Jaising said that there were no criteria for determining excellence in advocacy and those lawyers who are expertise in human rights issues; family law and other law subjects did not often get designation of Senior Advocate.
The law prescribes that the high courts will give the designation of senior advocate to a practicing advocate on the basis of his ability, special knowledge and experience in law, and then he would deserve the post of Senior Advocate.
Further, senior advocates have the right of pre-audience as given under Section 23 of the Advocates Act, 1961.Indira Jaising was designated as a senior advocate by the Bombay high court in 1986.
SOME FAMOUR SENIOR ADVOCATES
He obtained a law degree at an early age of 17 and started practicing law in his hometown (now in Pakistan) before the partition of India He has been India’s Union Law Minister and also served as Chairman of Bar Council of India. He has represented many cases including the high-profile cases for which he has faced criticism also. He is the highest paid lawyer in India. He was elected as member of Bharatiya Janata Party (BJP) and got a ticket from Mumbai. He has served as Law Minister of India and also as Minister of Urban Development when Atal Bihari Vajpayee was the Prime Minister against whom he later on contested election in General Elections of 2004 from Lucknow constituency. Now he has been expelled from the party. He has appeared in many high-profile cases like
‘ Defence of Manu Sharma in Jessica murder case
‘ Defence of Rajiv Gandhi’s killers in Madras High Court in year 2011.
‘ Defence of killers of Indira Gandhi
‘ Defence of Harshad Mehta in stock market scam
‘ Defence of Ketan Parekh in stock market scam
He is one of India’s leading lawyers, in the areas of constitutional, commercial and taxation laws. He primarily practices at the Supreme Court of India He served as the Solicitor General of India from 1 November 1999 to 3 November 2002. Salve qualified as a Chartered Accountant and practiced as a CA specializing in taxation before heading to practice as an advocate He was inspired by Nani Palkhivala, a reputed tax lawyer from Mumbai.
The first Anti-Dumping case was argued by Harish Salve in the Supreme Court of India. He frequently represents large corporations like Reliance Industries Limited of Mukesh Ambani in famous cases like the Krishna Godavari Basin gas dispute case against the Anil Ambani’s Reliance Natural Resources Limited. Salve represented Vodafone in its $2.5 billion tax dispute with the Indian government. He initially lost the case in the Bombay High Court, but later won it at the Supreme Court after moving to London residing in a temporary residence and also shifting his office there to solely focus on the case.
In 2015, He took up the famous hit-and-run case of Actor Salman Khan. The actor was earlier sentenced to five years in jail by TADA Court for a 2002 hit-and-run accident that left one man dead and four others injured. Ever since Mr. Salve has taken up the case there has been speculation that for how much time will the actor be in jail. As a result High Court suspended the TADA Court decision and actor didn’t go to jail for even one day.
He has served as the Solicitor General of India from 2009-2011.
He commenced his career with Shardul S. Shroff, who established Amarchand & Mangaldas & Suresh A Shroff & Co in Delhi in 1980. In 1993, Mr. Subramaniam was designated a Senior Advocate by the Supreme Court.This man is youngest to be given the post of Senior Advocate by Supreme Court.
His experience includes:
‘ Acted as counsel to inquire into lapses of security leading to the assassination of former Prime Minister of India Mr.Rajiv Gandhi
‘ In 1993 acted as the prosecuting counsel for the Central Bureau of Investigation (CBI) in the trial of persons accused of in 1993 bomb blasts. He acted as CBI’s counsel in this matter till 2012 when appeals in this trial were heard by the Supreme Court.
‘ Acted as a special commissioner appointed by the Supreme Court in 1994-1995 for investigating the allegations on wrongful detention of persons in mental hospitals of Assam.
‘ He was appointed as counsel to a judicial commission headed by Justice K. Venkataswamy (a former Supreme Court judge) in 2001 to inquire into sting operations carried out by a news publication to expose corruption in defence procurement transactions.
As a senior law officer to the Government of India, Mr. Gopal represented as lead counsel of the Government in many matters involving complex questions of constitutional and criminal law such as:
‘ In the prosecution of terrorist Ajmal Kasab Mr.Subramaniam acted as the Special Public Prosecutor,Ajmal Kasab was the only surviving terrorist who was invoved in the attacks on Mumbai on 26th November 2008.
‘ Acted as lead counsel for the Union of India in the matter of Ashoka Kumar Thakur v. Union of India, where he defended state-sponsored reservations for OBC’s of persons in India.
‘ Acted as lead counsel for the Government of India in 2010-2011 in litigation concerning 2G scam.
‘ Advocates Act 1961
‘ Bar Council of India Rules 2013