Composition, power of BCI n SBC PDF

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Composition, Power and functions of Bar Council of India: 

Introduction:

The legal profession plays an important role in

the administration of justice. The lawyer collects legal materials relating to the case and helps the court to arrive at the correct judgment. The citizens of the country require the advice of the advocates to understand the exact meaning of provisions mentioned in the act and regulations. THE ADVOCATES ACT, 1961: This act has been enacted for i) the purpose of amending and consolidating the law reating to legal practitioners and providing the constitution of bar council and an All India Bar. ii) Make provisions for establishment of state Bar of council and Bar Council of India. iii) Act contains exhaustive provisions relating to enrolment and admission of advocates, rights of advocates, and punishment for professional and other misconduct. BAR COUNCIL OF INDIA: Bar council of India is the apex body which regulates the legal profession and legal education in India. It was first set up by the Advocates Act,1961 on the recommendation of All India Bar Committee, 1951. Bar Council of India prescribes standards of professional conduct and etiquette and exercise disciplinary jurisdiction over the bar throughout India. It also sets standards for legal education and grants recognition to universities whose degree

in law will serve as a qualification for students to enrol themselves as advocates. ESTABLISHMENT: Section 4(1) of the act provides for the establishment of the Bar Council of India. It says “There shall be a Bar council for the territories of which the act extends to be known as bar council of India” 

COMPOSITION: Bar council of India shall consist of the following members namely: a) EX OFFICIO MEMBERS: the following are the ex officio members of BCIThe Attorney General of India The Solicitor General of India b) ELECTED MEMBERS: One member elected by each state bar council from amongst its members. Section 4(1-A) of the act makes it clear that no person shall be eligible for being elected as a member of the BCI unless he possesses the qualifications specified in the proviso to sub section (2) of Section 3 of the Advocates Act. c) CHAIRMAN AND VICE CHAIRMAN: BCI elects its chairman and vice chairman from amongst the members of the Council in such a manner as they may prescribe.

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TERM OF OFFICE: Term of office of a member of the Bar Council, elected by the State Bar Council shall be according to sub section 3 of section 4. i) in the case of a member of State Bar Council who holds office ex officio, be two years from the date of his election or till he ceases to be member of state bar Council, whichever earlier.

ii) in any other case, be for the period for which he holds office as a member of State Bar Council. Provided that every such member shall continue to hold office as a member of the Bar Council of India, until the successor is elected. 

FUNCTIONS OF BAR COUNCIL OF INDIA: 1) GENERAL FUNCTIONS: The general functions of Bar council of India have been specified under section 7 of the Advocates Act, as follows: S.7 (1) (b): To lay down standards of professional conduct and etiquette for advocates. S.7 (1) (c): To lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State bar Council. S.7(1) (d): To safeguard the rights, privileges and interest of the advocates. S.7 (1) (e): To promote and support law reforms. S.7 (1) (f):To deal with the disposal of any matter arising under this act, this may be referred to it by a State Bar Council. S.7(1) (g):To exercise general supervision ad control over the State Bar Council. S.7(1) (h): To promote legal education and to lay down standards of such education in consultation with the universities in India imparting such education and the State Bar Council. S.7 (1) (i): To recognise universities whose degree in law shall be a qualification for enrolment for an advocate for that purpose visit and inspect universities or cause the State Bar Council to visit and inspect. S.7 (1) (ia): To conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of

legal interest. S. 7 (1) (ib): To organise legal aid to the poor in the prescribed manner. S.7 (1) (ic): To organise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advantage under this act. S.7 (1) (j): To manage and invest the funds of the Bar Council. S.7 (1) (k): To provide for the elections of its members. S.7(1) (l): To perform all other functions conferred on it or under this act. S. 7(1) (m): To do all other things necessary for discharging the aforesaid functions. 2) The Bar council of India may constitute one or more funds in the prescribed manner. 2(a): Giving financial assistance to organise welfare schemes for indigents, disabled and other advocates 2(b): Giving legal aid and advice in accordance with the rules made in this behalf. establishing law libraries. 3) Bar council of India may receive any grant, donation, gifts or benefaction for all or any purposes specified. According to Section7(a) of the act, the BCI may become a member of international legal bodies such as an International Bar Association or International Legal Aid Association, contributes such sums as it thinks fit to such bodies by way of subscription or authorise expenditure on the participation of its representatives in any international legal conference seminars.

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POWERS OF BAR COUNCIL OF INDIA: The powers of The Bar council of India are prescribed under various sections of the Advocates Act,1961 which are as follows:

RULE MAKING POWERS: Subsection 2 of Section 15 of the Advocates Act confers rule making powers upon the Bar Council of India with respect to the following matters: - The election of members of the Bar Council by secret ballot. - Conditions subject to which persons can exercise the right to vote by postal ballot. - Preparation and revision of electoral rolls. - Manner in which the result of election shall be published. - Manner of election of chairman and vice chairman of the Bar Council. - The manner in which and the authority by which doubts and disputes as to the validity of an election to the Bar council or to the office of the chairman and the vice chairman shall be finally decided. - The filing of casual vacancies in the Bar Council. - The powers and duties of chairman and vice chairman of the bar council. - The constitution on one or more funds for the purpose of giving financial assistance or giving legal aid or advice. - Organisation of legal aid and advice to the poor, constitution and functions of committee for that purpose and description of proceedings in connection with which legal aid or advice may be given. - Summoning and holding of meetings of the Bar Council, that conduct of the business at such meetings and the members necessary to constitute a quorum. - Qualifications and conditions of service of the secretary, accountant and other employees of the Bar Council.

- The maintenance of books of accounts and other books. - The appointment of auditors and audits of accounts. - Management and investment of funds of the Bar Council. DISCIPLINARY POWERS: Chapter 5 of the Advocates Act,1961 titled as ‘Conduct of Advocates’ confers powers upon a Bar council of India to entertain and determine cases of misconduct against the advocates on its roll. BCI may exercise its disciplinary powers in the following circumstances. Where on receipt of a complaint or otherwise the BCI has reason to believe that any advocate whose name is not entered on any state roll has been guilty of professional or other misconduct it shall refer the case for disposal to its disciplinary committee. The disciplinary committee of the Bar Council of India may, either of its own motion or on a report by a State Bar council or on application made to it by any person interested, withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same. Where the disciplinary committee of the State Bar Council fails to dispose of a complaint received by it u/s 35 expeditiously and as mandated by section 36B of the Advocates Act,1961, within a period of one year from the date of the receipt of the complaint or the date of initiation of proceedings at the instance of the State Bar Council, the proceedings shall stand transferred to the BCI. As per sub section 2 of section 36-B of the Act, any proceedings in the respect of any disciplinary matter against an advocate is pending before the disciplinary committee of a State Bar Council, and the disciplinary committee fails to dispose of the same within a period of six months from the date of such commencement or within a period of one period from the date of the receipt of the complaint or, as the case may be the date of initiation of the

proceedings at the instances of the State Bar Council, whichever is later, such proceedings shall stand transferred to BCI for disposal under sub section 1. APPEALATE POWERS: BCI enjoys appellate jurisdiction over the orders passed by State Bar Council under Section 35 of the Advocates Act,1961. In this regard, Section 37 of the act makes the following provision: Any person aggrieved by an order of the disciplinary committee of the State Bar Council made under section 35 or the Advocate General of the State may, within 60 days of the date of the communication of the order to him, prefer an appeal to the BCI. Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order thereon as it deems fit. Provided that no order of the disciplinary committee of the State Bar Council shall be varied by the disciplinary committee of the Bar Council of India so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard. POWER OF REVISION: In addition to the appellate powers, the BCI also has power of revision over any proceedings of a State Bar Council or any committee thereof. Section 48A of the Advocates Act,1961 which confers power of revision upon the BCI is being reproduced under: The BCI may at any time, call for the record of any proceeding under this act which has been disposed of by a State Bar Council or a Committee thereof, and from which no appeal lies. No order which prejudicially affects any person shall be passed under this section without giving him a reasonable opportunity of being heard. It is clear that power of revision may be exercised by the BCI only with respect to those cases from which no

appeal lies to the BCI. ADMISSION AS ADVOCATE: 1) Section 20 of the Advocate Act provides that every advocate who was entitled as of right to practice in State Council immediately before the appointed day and whose name was entered in the state roll may, within prescribed time, express his intention in a prescribed form to the Bar Council and on receipt thereof, BCI shall direct that the name of each Advocate shall without payment of any fee, be entered in State Bar Council and Concerned State Bar Council shall comply with the directions. 2) Section 19 provides that every State Bar Council shall send to the BCI an authenticated copy of the roll of Advocates prepare by it for the first time under this act and thereafter, communicate to BCI all alterations and addition to, such roll as soon as the same have been made. 3) Section 18 provides that any person whose name is entered as an advocate on the role of any State Bar Council for transfer of his name from the roll of State Bar Council to the roll of any other State Bar Council and on receipt of such application, the BCI shall direct that the name of such person shall, without the payment of any few, be removed from the roll of the first mentioned State Bar Council and entered in roll of the other state Bar council and concerned State Bar Council shall comply with such directions. APPOINTMENT OF COMMITTEES AND STAFF MEMBERS: Section 9 of the Advocate Act empowers the BCI to appoint one or more disciplinary committees, Legal Aid Committee under section 9-A, executive committee under section 10(2), Legal Education committee, etc. Section 11 of the Advocates act empowered the Bar Council to

appoint a secretary and accountant and such member of other persons as may deem necessary the secretary and accountant if any shall possesses such qualification. It is mandatory that the Bar Council shall have a secretary. MAINTENANCE OF ADVOCATES etc: Section 12 requires the BCI to maintain such book of accounts and other books in such form and in such a manner may be described. The account shall be audited by the auditor’s duly qualified to act as auditors of the companies at such as times and manner maybe prescribed. BCI shall send a copy of its accountants together with the copy of the report of the auditors to the Central Government and shall cause same to be published in Gazette of India. POWER TO GIVE DIRECTIONS: Section 42B of the act confers powers upon the BCI to give directions to the State Bar Council any of the committee of the State Bar Council, for the proper and efficient discharge of the functions of a State Bar Council or any committee thereof, the BCI may, in exercise of its powers of general supervision and control, give such direction to the State Bar Council or any committee thereof as may appear to it be necessary and State Bar Council or committee has to comply with such direction.. POWER TO GET INDEMINITY AGAINST LEGAL PROCEEDING: Section 48 indemnifies the BCI, its committees and its members against legal proceedings. It provides that no suit or other legal proceedings shall lie against BCI, its committee and its members or any act done in good faith or done in pursuance of provisions of the Advocates Acts and its rules.

Composition, Powers and Functions of State Bar Council: 

Establishment of State Bar Council: Advocates Act,1961 provides for independent and autonomous State Bar Council. Chapter2 of the act deals with the State Bar council and Bar Council of India. Section 3 of the act provides for establishment of the State Bar Council.

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Composition: Sub section 2 and 3 of Section 3 provide for composition of State Bar Council. It consists of: a) CHAIRMAN AND VICE CHAIRMAN: Every bar council is headed by Chairman who is assisted by a Vice Chairman. Both Chairman and Vice Chairman are to be elected by the council in such manner as may prescribe. b) EX OFFICIO MEMBER: The ex-officio members of State Bar Council are as follows: - In case of the State Bar Council of Delhi – the Additional Solicitor General in India. - In case of the State Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura- The Advocate General of each state. - In case of the State Bar Council of Punjab and Haryana- The Advocate General of each state of Punjab and Haryana. - In case of any of other Bar Council- The Advocate General of the State. c) ELECTED MEMBER: In case of a State Bar Council with an Electorate not exceeding 5000- 15 members.

- In case of State Bar Council with an electorate exceeding 5000 but less than 10,000- 20 members. - In case of State Bar Council with an electorate exceeding 10,00025 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. 

Disqualification of the members of the Bar council: According to Section 4 of the Act, an advocate shall be disqualified from voting at an election under sub section 2 or being chosen as, and for being a member of the State Bar Council, unless he posses such qualifications or satisfies and such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State Bar Council.

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Dissolution of Existing Bar Council:

On the constitution of New State Bar Council under the Advocates Act, other than Bar Council of Delhi, - All properties and assets vesting in the corresponding Bar Council shall vest in the New Bar Council. - All rights, liabilities and obligations of the corresponding Bar Council shall be of the new Bar council. - All proceedings pending before the corresponding Bar Council in respect of any disciplinary matter or otherwise shall stand transferred to the new Bar Council.

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Powers and Functions of State Bar Council:

The general functions of the State Bar Council have been specified under section 6 of the Advocates Acts as follows: Section 6(1): The functions of a State Bar Council shall be: s. 6(1)(a) -To admit persons as advocates on its roll. S.6 (1)(b) -To prepare and maintain such roll. S.6 (1)(c)-To entertain and determine cases of misconduct against advocates on its roll. S.6 (1) (d) -To safeguard the rights, privileges and interests of advocates on its roll. S.6 (1) (dd) – To promote growth of the Bar Association for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub section (2) of this section (a) of sub section (2) of section 7. S.6 (1) (e)- To promote and support law reforms. S.6 (1) (ee)- To conduct seminars and organise talks on legal topics by eminent jurists and publish journals and paper of legal interest. s. 6 (1) (eee)- To organise legal aid to the poor in the prescribed manner. S.6 (1) (f)- To manage and invest the funds of Bar Council. S.6 (1) (g)- To provide for the election of its members. S.6 (1) (gg)- To visit and inspect universities in accordance with the directions given under section 7(1) (i). S.6 (1) (h)- To perform all other functions conferred in it by or under this act. Section 6 (2): A State Bar Council may constitute one or more funds in the prescribed manner for the purpose of: S.6 (2) (a)- giving financial assistance to organise welfare scheme for the indigent, disabled or other advocates. S.6 (2) (b)- giving legal aid or advice in accordance with the rules

made in this behalf. S.6(2)(c)- establishing law libraries. Section 6(3): A State Bar Council may receive any grants, donations, gifts or beneficiations for all or any of the purposes specified in sub section 2, which shall be credited to the appropriate fund or funds constituted under that sub section.

Specific Powers and Functions: - Maintenance of roll of advocates. - Transfer of name from one state roll to another. - Certificate of enrolment. - Determination of seniority of advocates in the state roll. - Comply with the qualification for admission on a state roll. - Disqualification for enrolment. - Deal with the application of its enrolment and its disposal. - Removal of name of an advocate from the roll. - To constitute committees and appoint staff members: Disciplinary committee Legal Aid committee Executive committee Enrolment committee etc. - To maintain accounts and conduct audit (section 12) - Powers to make rule (section 28) etc.

Power to make rules: State Bar Council may make rules regarding: - The conditions subject to which a person may be admitted as an advocate on any such roll. - The instalment in which the enrolment fee may be paid. - The election of members of the Bar Council by secret ballot. - Conditions subject to which persons can exercise the right to vote.

- Preparation and revision of electoral roles. - Manner of publishing election result. - The filling of casual vacancies in the bar council. - The power and duties of Chairman and Vice Chairman of Bar Council. - Organisation of legal aid. - Summoning and holding meetings of Bar Council. - The qualification and conditions of service of the secretary, accountant and the other employees of the bar council. - The maintenance of Books of Accounts and other books. - The appointment of auditor and audit of accounts. - The management and investment of funds of the ba...