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MAYOR’S COURT In the Charter of 1726, which established the Mayor’s Courts at the three Presidency Towns, no specific provision was made laying down any particular qualifications for the persons who would be entitled to act or plead as legal practitioners in these courts. Presumably, it was left to these courts to regulate this matter by rules of practice which these courts were authorized to frame.[xlvii] No change was effected in this position when a fresh Charter was issued in 1753.[xlviii] No organized legal profession came into being in the Presidency Towns during the period of the mayor’s Courts.[xlix] They who practiced law were devoid of any legal training or any knowledge of the law. They had adopted the profession in the absence of anything better to do. Quite a few of these so-called lawyers were the dismissed servants of the Company.[l]

3.3.

SUPREME COURTS

3.3.1. Regulation Act, 1773.

The first concrete step in the direction of organizing a legal profession in India was taken in 1774 when the Supreme Court was established at Calcutta. The Regulating Act, 1773, empowered the Supreme Court to frame rules of procedure as it thought necessary for the administration of justice and due execution of its powers. Under CI.11 of its Charter, the Supreme Court was empowered to approve, admit and enroll such and so many Advocates and Attorneys-at-law, as to the Court shall deem fit. Attorneys of record were to be authorized to appear and plead and act for the suitors in the Supreme Court. The court was to have the power to remove any Advocate or Attorney on a reasonable cause. No other person whatever, but Advocates or Attorneys so admitted and enrolled, were to be allowed to appear and plead, or act in the Court for or on behalf of such suitors.

Thus the persons entitled to practice before the Supreme Court could be Advocates and Attorneys. The term Advocate at the time extended only to the English and the Irish barristers and the members of the faculty of Advocates in Scotland. The expression “Attorneys” then meant only British Attorneys or Solicitors. As CI.11 of the Charter prohibited any other person whatsoever to appear and plead or act, it would appear that the Calcutta Supreme Court was, from its very inception, a completely exclusive preserve for members of the British legal profession, namely, the British Barristers, Advocates, and Attorneys. The indigenous Indian legal practitioner had no entry in this Court. The Charter of 1774 introduced the British system of legal practice in Calcutta.[li]

The similar position obtained in the two other Supreme Courts at Bombay and Madras. Thus, in the three Supreme Courts, the only persons who were entitled to practice were the British Barristers,

Advocates, and Attorneys. The Indians had no right to appear before these Courts. This continued to be the position all through the existence of these Courts.

Under CI.11 of the Charter, the Supreme Court at Calcutta could admit Advocates and Attorneys who could “appear, plead and act for the suitors of the Court.” But, the Supreme Court provided for the Advocates and Attorneys to exercise the ordinary powers of their respective professions-Advocates having power to appear and plead and Attorneys to appear and act, for the suitors. Similar was the position in other Supreme Courts as well. Thus, the two grades of the legal practice became distinct and separate as they were in England. Commenting on the position prevailing at this time, the Supreme Court of India observed in Aswini Kumar Ghosh v Arbind Bose:[lii]

“Though the Supreme Court was given by the Charter Acts and the Letters Patent establishing them, power to enroll advocates who could be authorized by the rules to act as well as to plead in the Supreme Courts, Rules were made empowering advocates only to appear and plead and not to act, while attorneys were enrolled and authorised to act and not to plead. In the Sudder courts and the courts subordinate thereto, pleaders who obtained a certificate from those courts were allowed both to act and plead.”

3.4.

COMPANY’S ADALATS

3.4.1. Regulation VII of 1793.[liii]

In the Company’s adalats, the deplorable state of affairs concerning the legal profession has been graphically narrated in the preamble to Bengal Regulation VII of 1793. The Vakils were and largely ignorant of the law and were subject to harassment and extortion from the ministerial officers of the courts. The professional Vakils charged exorbitant fees. Regulation VII called itself on “for the appointment of Vakils or native pleaders in the courts of civil judicature in the Provinces of Bengal, Bihar, and Orissa.” The regulation stated in its preamble the objects of its enactment as follows:

Object of Enactment: “It is therefore indispensably necessary for enabling the courts duly to administer and the suitors to obtain justice, that the pleading of causes should be made a distinct profession and that no persons should be admitted to plead in the Courts but men of passed by the British Government, and that they should be subjected to rules and restrictions calculate to secure to their clients a diligent and faithful discharge of trusts. The pleaders therefore on either side whilst they will bring the merits of every case to light and collect into one point of view of the information necessary to enable the courts to

form their opinion upon it, will be a check upon them by exposing every deviation from the law in their judgments.”

Provisions: The regulation thus laid emphasis on the useful role which a sound legal profession can play in the administration of justice. The Regulations were enacted with a view to strengthening the legal profession in the best interests of the litigant public, the members of the bar serving trustees of their clients and thus helping in the sound administration of justice. The Regulation created for the first time a regular legal profession for the Company’s adults. The Regulation brought some order and measure of quality to pleading and sought to establish practice of law as a pleaders and also a scale of professional fee based on a percentage of the value of the property. He could not demand or accept any fee, goods, effects or valuable consideration from his clients over and above the sanctioned fees. The ultimate punishment for such a violation was dismissal of the lawyer. Thus, the theory of freedom of contact between the Vakil and his client was not recognized. The fees of the pleaders were payable only after decision, and not before, the Court being practically the paymaster.

An interesting provision made was that after a party retained a pleader, he was to execute a vakalatnama constituting him pleader in the clause and authorizing him to prosecute or defend the matter and binding himself to abide by and confirm all facts which such pleader might do or undertake in his behalf in the cause, in the same manner as if he has been personally present and consenting. This provision is the genesis of the modern vakalatnama.

An extraordinary feature of this Regulation was that only Hindus and Muslims could be enrolled as pleaders. Persons for the purpose were to be selected from amongst the students of the Muhammadan College at Calcutta and the Hindu College at benaras. The Sadar Diwani Adalat could appoint other proper persons of good character and liberal education if sufficient number of persons qualified from the said college were not available. Vakeels attached to one court were not permitted to plead in any other court without the sanction of the Sadar Diwani Adalat.

Every pleader was required to attend the court to which he was attached punctually and regularly. If he was unable to attend the court due to any reason he had to notify it in writing to the Registrar of the court. Failure to do so made him liable to a fine. The courts exercised several disciplinary powers over the Vakils. A pleader showing disrespect to the court in open court could be fined up to one hundred rupees by the court. The court could suspend a pleader if convicted of encouraging litigious suits, frauds, or gross misbehavior. Further action against the lawyers could be taken by the Sadar Adalat. A Vakil found to charge more fee than authorized by the Regulation could be dismissed by the Sadar Adalat.

Taking note of the drastic control which was imposed on the legal profession in 1793 by Regulation VII, a commentator has observed:[liv]

“What was intended to be the first chatter of the profession turned out to virtually its death warrant. The legal profession which had retained its independent existence down to 1793 was broken up and the members of the bar were made, in a sense, subordinate to the Courts and they were still left an appearance of freedom within narrowly circumscribed limits.”

The provisions in the Regulation were not fully consistent with the objects stated in the Preamble thereto. In effect, the Vakils were converted into servants of the court. It was doubtful if Vakils being under tight control and supervision of the courts could effectively discharge another function envisaged of them in the Preamble, viz., to point out any deviations from the law made by the courts. 3.6.

THE LEGAL PRACTITIONERS ACT.1879

The Act, XVIII of 1879, was enacted to consolidate and amend the law relating to legal practitioners in the mofussils.[lxxix] The Act repealed the Pleaders, Mukhtars and Revenue Agents Act 1865. At this time, there were six grades of practitioners functioning in India. Advocates, Solicitors (Attorneys), and Vakils of the High Court: Pleaders, Mukhtars and revenue agents in the lower courts. The High Court laid down standards for admission of Vakils to practice in the High Court; for Zila Courts, standards were laid down in the Regulations which were lower for pleaders than the High Court vakils. Thus, Vakils became a distinct grade above the Pleader. 3.6.1. Six grades of Legal Practitioners The Legal Practitioners Act, 1879, brought all the six grades of legal practitioners into one system under the jurisdiction of the High Courts. The Act empowered an Advocate or a Vakil on the roll of any High Court to practice in his own High Court, in all the courts subordinate thereto, in any court in British India other than a High Court on whose roll he was not entered or with the permission of the court in any High Court on whose roll he was not entered. There was a provision, however, to this section to the effect that this power would not extend to the Original jurisdiction of the High Court in a Presidency Town. An Attorney on the roll of any High Court was enabled to practice in all the courts subordinate to such High Court and also in any court in British India other than a High Court established by Royal Charter on the roll of which he was not entered. The right to practice thus conferred by these provisions included the rights to plead as well as to act in the courts.[lxxx]

The Act conferred power on the High Court not established under a Royal Charter to make rules, with the previous sanction of the Provincial Government, to prescribe the qualifications, admission and certificates of proper persons to be Pleaders and Mukhtars of the High Court as well as the subordinate

courts, and for suspension and dismissal of these persons. But a Chartered High Court could make such rules for Pleaders and Mukhters of subordinate courts without the approval of the Provincial Government concerned.

Under the rules framed by the High Courts under the Legal Practitioners Act, law graduates who not possesses the additional qualification to enabled to them to be enrolled as the High Court Vakils, and non-law graduates after passing the pleaders examination conducted by the high Court, were enrolled as Pleaders to practice before subordinate courts. These pleaders could not practice before the High Court, unless after a certain numbers of years practice they enrolled themselves as High Court Vakils. In course of time, the High Courts framed rules under S.6 of the Act permitting only those who had taken an L.L.B. degree from an Indian University to enroll as Vakils.

Besides the Pleaders, there were Mukhtarship who after passing the Matriculation or equivalent examination passed the Mukhtarship examination held by the High Court. The Mukhtars pleaded mainly before the criminal courts. The Revenue Agents were to be regulated by rules made by the Chief Controlling revenue Authority. The legal profession in India thus presented a very confused picture The Pleaders and Mukhtars of the High Courts (except the Attorneys), and of those of the subordinate courts, were subject to the disciplinary jurisdiction of the High Court under the Act....