Module 1

DEVELOPMENT OF LEGAL PROFESSION IN INDIA

SYNOPSIS
1. Importance of Legal Profession.
2. Legal Profession in Pre-British India.
3. Legal Profession during British Period.
4. Legal Profession after Independence
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1. Importance of Legal Profession:

The concept of law and justice is as old as human civilization. Law, as is understood must have
the element of enforceability. There must be a machinery to enforce the law, which we call
administration of justice,
The term 'legal profession' if construed in its comprehensive form would include within itself all
those categories of persons who use technical legal knowledge and skills in the course of
performing their occupational roles and duties. These categories are many, such as - jurists (law
academics and scholars), judges, magistrates, prosecutors, law officers and legal advisors
attached to the government departments, legal technicians and legal practitioners. But for the
purpose of present study it is proposed to confine our attention to the narrow sense of the term
that is practicing lawyers - the advocates.

The legal profession plays an important role in the administration of justice. The lawyer assists
the Court in arriving at a correct judgment.

Actually the law is very complicated. The language of Acts and Regulations is often found to be
very complicated and confusing and not easy to be understood. The citizens of the country
require the advice of the advocate to understand the exact meaning of the provisions of the Act
and Regulations.

The lawyers play important role in the maintenance of peace and order in the society. They do
not promote disputes but settle them. They stand for legal order which is one of the noblest
functions in the society. Advocates are every day defending rights and liberties of citizens
against all violators of the law. The lawyers play important role in the law reform also. Thus, the
legal profession is a profession of great honour. It has been created not for private gain but for
public good.

2. Legal Profession in Pre-British India:

Regarding the existence of legal profession in ancient India there are two contradictory
approaches on the issue." The first denies the existence of legal profession in India whereas other
view supports the idea of existence of legal profession. Those who deny

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the existence of any such institution are headed by P. Vardachariar, U. C. Sarkar and Ludo
Rocher. The supporters are K. P. Jayaswal, P. V. Kane, Julius Jolly and Sir Ashutosh Mukherjee.
K. P. Jayaswal thinks that professional lawyers ought to have existed from the days of Manu or
at least from the first century A. D. Manu, VIII. 169 show that professional lawyers were already
in existence in the time of Manava Code.5 Parties to suit in ancient Hindu law in some
circumstances did have a right to be represented by other persons learned in law as per the
ancient Hindu texts by Narada, Brihaspati, Katayana, Manu, Shukra and other eminent
authorities on Hindu law.^ But because of the fact that the earlier texts on Dharmashastra are not
very explicit with regard to law in general and legal procedure in particular, we are unable to
conclude one way or the other, as to whether those representative did constitute an institution
like we have in the established legal systems of the day.
In Kautilya's Arthasastra there are elaborate discussions about administration of justice; but
according to R. P. Kangle a commentator on Arthashastra there is no mention in the Arthashastra
about the existence of legal profession. He said "there is no reference in the text to
In Pre-British India, law profession was not as organised as today. Actually, the legal profession
as it exists today was created and developed during the British Period. During the Hindu Period,
the Courts derived their authority from the King who was considered the fountain head of justice.
The King's Court was superior to all other courts. The King was advised by his Councillor in
hearing and deciding the case but he was not bound by their advice. The institution of lawyer as
it exists today was not in existence during this period. The plaintiff was required to present plaint
before the Court and thereafter the Court could direct the defendant to submit his reply.
Thereafter the Court was required to investigate the matter and deliver its judgment. The Courts
delivered judgment on the basis of evidence gathered from various sources, e.g., witnesses,
documents, etc. Ordeal was also recognised as means of proof.

During the 'Muslim period the litigants were represented by a body of persons known as wild's.'
The vakil was paid a percentage of the amount in the suit.' The Court of the native
administrations concerned determined who should be allowed to appear as Vakil in a Zilla
Court.' Even during this period, the legal profession was not organised. The Vakils acted more as
agents for principals than as lawyer.

3. Legal Profession during British Period:

In early days of the British Period the legal profession was not paid due attention and it was not
well organised. Actually the East India Company was not interested in organising the legal
profession. There was no uniform judicial system in the settlements of the East India Company.

• Charter of 1726:

In 1726 by a Charter known as Charter of 1726 in each Presidency Town a Mayor's Court was
established and, thus, by the Charter a uniform judicial system was introduced in all the three
Presidency Towns—Bombay, Calcutta and Madras. There was no provision for the legal
training. The legal profession was not organised. Any persons having no knowledge of law were
practising.

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 • Charter of 1753:

In 1753 a new Charter known as the Charter of 1753 was issued to modify the Charter of 1726
but even this Charter did not contain significant provisions for legal training and legal education
of legal practitioner and thus, even after this Charter the legal profession was not organised.

• Charter of 1774:

The Regulating Act, 1773, empowered the British Crown to issue The Charter of 1774 to
establish a Supreme Court at Calcutta. It resulted in the abolition of the Mayor's Court at
Calcutta. In 1801 the Supreme Court was established at Madras and in 1823 the Supreme Court
was established at Bombay by the British Crown by issuing Charters.

The Charter 1774 empowered the Supreme Court to approve and enrol advocates and attorneys-
at-law. The Supreme Court had power to remove any advocates or attorney on reasonable cause.
They were to be Attorneys of Record. The term "Advocate" then extended only to English and
Irish Barristers and members of the Faculty of Advocates in Scotland and the term "Attorneys"
then meant only the British attorneys or solicitor. Thus, the Indian Legal Practitioners were not
authorised to appear before the Supreme Court. Similar provision was made in respect of
Bombay and Madras when the Supreme Court was established there.

• Company Courts, Sadar Adalat and law profession:

• Only for Reference as Company’s Courts:- ESTABLISHMENT OF COURTS: • The High Court of
Judicature • The Admiralty Court • The Court of Bombay • The Mayor‟s court • The Choultry
Court • The Diwani Adalat • A Fajudari Adalat • The Sadar Nizamat Adalat • The Sadar Fajudari
Adalat • The Court of Circuit • The Privy Council • The High Court • The Supreme Court

The Bengal Regulation VII of 1793 created for the first time a regular legal profession for the
Company's Courts. The Regulation authorised the Sadar Diwani Adalat to enroll pleaders for the
Company's Courts. Under this regulation only Hindus and Muslims could be enrolled as
pleaders.

The Bengal Regulation. XII of 1833 modified the provisions of the earlier Regulations regarding
the appointment of the pleaders. It permitted any qualified person of whatever nationality or
religion to be enrolled as a pleader of the Sadar Diwani Adalat.

The Legal Practitioners Act, 1846 made provisions that the people of any nationality or religion
would be eligible to be Pleaders and Attorneys and Barristers enrolled in any of Her Majesty's
Courts in India and would be eligible to plead in the Company's Sadar Adalats.

The Legal Practitioners Act, 1853 authorised the Barristers and attorneys of the Supreme Court
to plead in any of the Company's Courts subordinate to the Sadar Courts subject to rules in force
in the said subordinate Courts as regard language or otherwise.

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 • The Indian High Courts Act, 1861:

This Act empowered the British Crown to establish one High Court in each Presidency Town.
After the establishment of the High Courts, the Civil Courts and Criminal Courts were organised
in Bengal, Assam and North-Western Provinces and in other Provinces also. The High Courts
were empowered to exercise the power of superintendence over the Criminal and Civil Courts in
Mufussil.

The Letter Patent of 1865 made provision in respect of the enrolment of the legal practitioners.
The High Court of Judicature at Fort William in Bengal was empowered to approve, admit and
enroll such advocates and so many advocates, vakils and attorneys as to the said High Court shall
deem fit.

• Legal Practitioners Act, 1879:

- In 1879, the Legal Practitioners Act was passed to empower an advocate or vakil on the roll of
any High Court or a pleader of the Chief Court of the Punjab, to practise in all the Courts
subordinate to the Court on the roll of which he was entered.

-The Legal Practitioners Act, 1879, authorised the High Court not established under a Royal
Charter to make rules with the previous sanction of the Provincial Government as to the
qualification and admission of proper persons to be pleaders and Mukhtars of the High Court.

–The Chartered High Courts framed rules. According to the rules framed by such High Courts
apart from attorneys, there were advocates and vakils. Advocates were to be the barristers of
England or Ireland or Members of the Faculty of Advocates of Scotland.

-The High Courts other than the High Court of Calcutta allowed even non-Barristers to be
enrolled as Advocates under certain circumstances, e.g., in Bombay law graduates of the
Bombay University could be enrolled as advocates.

-As regards the non-Chartered High Courts there were advocates, pleaders and mukhtars. The
Pleaders and Mukhtars were the Indian Lawyers but Advocates were to be the Barristers. Under
the Legal Practitioners Act, 1879 the term "legal practitioner" has been taken to mean advocate,
vakil or attorney of a High Court and pleader, Mukhtar or revenue agent. All these were brought
under the jurisdiction of the High Court.

-The Act empowered the High Court to suspend or dismiss pleader or mukhtar guilty of
unprofessional conduct.

• Indian Bar Committee, 1923:

In 1923 a Committee called the Indian Bar Committee was constituted to consider the issue as to
the organisation of the Bar on all India basis and establishment of an all-India Bar Council for
the High Court. The Committee suggested that in all High Courts a single grade of practitioners
should be established and they should be called advocates. On the fulfilment of certain

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conditions vakils should be allowed to plead on the original side of the three High Courts. A Bar
Council should be constituted for each High Court.

• Indian Bar Councils Act, 1926:

In 1926 the Indian Bar Councils Act was enacted to give effect to the some of the
recommendations of the Indian Bar Committee, 1923 (stated above). The main object of the Act
was to provide for the constitution and incorporation of Bar Council for certain courts, to confer
powers and impose duties on such Councils and also to consolidate and amend the law relating to
the legal practitioners of such courts.

4. Legal Profession after Independence:

• All India Bar Committee, 1951:

In 1951 a committee known as the All India Bar Committee was appointed under the
Chairmanship of Justice S. R. Das. The Committee recommended the establishment of an All
India Bar Council and State Bar Councils. Subject to certain safeguards, the Committee
suggested that the powers of enrollment and suspension and removal of advocates should be
vested in the Bar Council. It recommended that, there should be no further recruitment non-
graduate ,pleaders or mukhtars, It also recommended that there should be a common role of
Advocates who should be authorized to practise in all Courts in the country. The Fifth Law
Commission in its Fourteenth re pod submitted in 1958, recommended for establishment of a
United all India Bar. The Commission favoured the recommendation of the All India Bar
Committee, 1951, that there should be no further recruitment of non-graduates pleaders or
mukhtars. It also recommended for the division of Bar in to senior advocates and advocates.

• Advocates Act, 1961:

In 1961 the existing Advocates Act was enacted. It has been enacted for the purpose of
amending and consolidating the law relating to legal practitioners and also for providing the
constitution of Bar Council and an All India Bar. Section 1 of the Advocates Act, 1961 provides
that this Act may be called the Advocates Act, 1961 and it extends to the whole of India. The
Advocates Act, 1961 provides for regulation of legal profession in India and empowers the Bar
Council of India to frame the rule for professional conduct of lawyers in India. The Bar Council
of India and State Bar Councils are empowered to take legal action against an advocate for the
professional and other misconduct under the Advocates Act, 1961

Reference Book:

Legal Ethics, Accountability for Lawyers and Bench-Bar Relations by Kailash Rai

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India: Globalisation Of Legal Services And Indian Perspective

by Harsimran Singh

After centuries of technological progress and advances in international cooperation, the world is
more connected than ever.

Globalization is the word used to describe the growing interdependence of the world’s
economies, cultures, and populations, brought about by cross-border trade in goods and services,
technology, and flows of investment, people, and information. Countries have built economic
partnerships to facilitate these movements over many centuries. But the term gained popularity
after the Cold War in the early 1990s, as these cooperative arrangements shaped modern
everyday life.

The wide-ranging effects of globalization are complex and politically charged. As with major
technological advances, globalization benefits society as a whole, while harming certain groups.
Understanding the relative costs and benefits can pave the way for alleviating problems while
sustaining the wider payoffs.

Globalization, is the process of interaction and integration among people, companies, and
governments worldwide. Globalization has accelerated since the 19th century due to advances in
transportation and communication technology.
Globalization, be it technological or political or economic, has brought about a revolution in
international trade with increasing participation and involvement of countries & greater access to
domestic economies.

The last decade has been a mini-revolution in legal service sector with the best legal impact on
corporate legal arena. Activities in project financing, intellectual property protection,
environmental protection, competition law, corporate taxation, infrastructure contract, corporate
governance and investment law were practically difficult to understand before the 90's. The
number of law firms capable of managing such work was also very limited. Even though
globalization is not new, but in the purview of legal services, it is now gaining momentum due to
the growth of the Internet, automation of legal processes, developments in data security and
emerging technology tools. It is clear that need of professional service has been tremendous in
the legal service sector.
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Foundation of Globalized Legal Services

The GATT and the WTO have helped to create a strong and prosperous trading system
contributing to unprecedented growth.

World Trade Organization (WTO) is the successor of

the General Agreement of Tariffs and Trade (GATT),
which ruled the world between 1960 and 1993. both Co- World Trade Organization
(WTO) is the only international
existed between 1994 and 1995, when WTO
organization dealing with the
came into existence. Services are brought for the first global rules of trade. Its main
time under multilateral trading system under the function is to ensure that trade
flows as smoothly, predictably
Uruguay Round Agreements launching WTO. Earlier and freely as possible.
the GATT System confined only to goods trade. The
inclusion of services under the WTO in 1995 is a
reflection of growing share of services in national
economics world over. It is on indication that trade in The General Agreement on
Tariffs and Trade (GATT) is
services is set to play on all important role in the
a legal agreement between
economic development of countries in future . many countries, whose overall
In recent years the number of law firms, in-house firms purpose was to promote
international trade by reducing
and individual lawyers with expertise in providing legal or eliminating trade barriers
services in corporate field has increased exponentially. such as tariffs or quotas.

These are defining times in the disposition of emerging

legal sectors towards settling disputes through ADR
(Alternate Dispute Resolution). Globalization has extended the inward and outward demand for
legal services. Domestic law firms are expanding their services beyond local jurisdiction; joining
forces with foreign counterparts and forming intercontinental mergers, obliterating traditional
boundaries on the geographical scope of the practice of law. As law firms continue to expand
their presence globally, globalization will continue to reshape the landscape of the legal industry
in the coming years.
India has been putting efforts to liberalize its legal services sector, to allow foreign law firms and
lawyers, the right to operate in India. Global integration in the legal profession would help India
in increasing her share in the global services trade.

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Few Indian firms have set up their branches across other jurisdictions like UK and US. Likewise,
post- liberalization, the foreign firms and lawyers will be allowed to set up their branches in
India and employ Indian lawyers or enter into partnerships with Indian firms, provide legal
advice on foreign law, etc.

MAJOR ISSUES DETERRING THE OPENING-UP OF INDIAN LEGAL SERVICE

SECTOR

The legislator and the Bar Council of India's approach is not been clear on the opening-up of the
legal service sector in India. The over-riding view is still against foreign law firms setting up
offices in the country as apprehension abounds about probable stiff competition from foreign
firms, owing to their better infrastructure, better knowledge and developed skills of legal drafting
and documentation. Hence, the Indian government did not enter the successive rounds of
negotiation as mandated by the WTO rules.

The provisions of the Advocates Act, 1961 and BCI regulations are too stringent, Section 24 of
the former being a key deterrent. The section states that only advocates recognized under the act
can practice law and a person shall be qualified as an advocate on a state roll, if the person is a
citizen of India and has obtained a law degree from a BCI recognized college/ university. Subject
to other provisions of this Act, a national of another country may be permitted to practice law, if
citizens of that country, duly qualified, are allowed to practice law in that country. Similarly, as
per Section 33 of the Act or any other law for the time being in force, no person shall, on or after
the appointed date, be entitled to practice law unless he is enrolled as an advocate under the Act.

Foreign law firms in the country have been subject to controversy since 1995, when firms
like Ashurst of UK and White and Case and Chadbourne and Parke of the US, set up liaison
offices in India and were granted permission under the Foreign Exchange Regulation Act, 1973,
to start liaison activities only and not active legal practices. In 1955, the Lawyers Collective, a
public interest trust set up by the advocates to engage in the free legal aid, moved the Bombay
high court challenging the right of foreign law firms to practice law in India. Their main
contention was that practicing law should include not only appearance before the court as
pleaders, but also drafting legal documents and advising clients. The Central Government, on the
other hand, contended that the Advocates Act prevented foreign lawyers from practicing law in
court, and from giving advice to clients.
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Nevertheless, the government had the intention of opening-up the legal service sector in India.
Attempts had been made where foreign lawyers and foreign law firms had been allowed to
establish their offices in India. In the year 2009, the Bombay High Court held that foreign
lawyers and law firms could establish their offices in India only after being enrolled as advocates
under the Advocates Act, 1961. Later, in February 2012, the Madras High Court held that
foreign lawyers and law firms cannot practice law in India, neither on the litigation nor on the
non- litigation side, unless they fulfilled the requirements of the Advocates Act and the Bar
Council of India Rules. It had, however, held that they might visit India on a 'fly in and fly out'
basis for advising clients on foreign law. It had further held that there is no restriction against
them coming to India for conducting arbitration proceedings in disputes involving international
commercial arbitration.

Recently, the Hon'ble Supreme Court held that foreign law firms cannot 'practice' or open offices
in the country, but allowed foreign lawyers to visit India on a 'fly in and fly out' basis for
rendering legal advice to their clients on foreign law. Some of the notable excerpts from the
judgment of the Hon'ble Apex Court are as under:

"Ethics of the legal profession apply not only when an advocate appears before the Court. The
same also apply to regulate practice outside the Court. Adhering to such Ethics is integral to the
administration of justice... The professional standards laid down from time to time are required
to be followed. Thus, we uphold the view that practice of law includes litigation as well as non-
litigation." (the Hon'ble Supreme Court relied on the judgment in the case of Pravin C. Shah
versus K.A. Mohd. Ali to hold this) "We have already held that practicing of law includes not
only appearance in courts but also giving of opinion, drafting of instruments, participation in
conferences involving legal discussion. These are parts of non-litigation practice which is part of
practice of law. The scheme in Chapter-IV of the Advocates Act makes it clear that advocates
enrolled with the Bar Council alone are entitled to practice law, except as otherwise provided in
any other law. All others can appear only with the permission of the court, authority or person
before whom the proceedings are pending. Regulatory mechanism for conduct of advocates
applies to non-litigation work also."

"Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on
regular basis. A casual visit forgiving advice may not be covered by the expression 'practice'.
Whether a particular visit is casual or frequent so as to amount to practice is a question of fact to
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be determined from situation to situation. Bar Council of India or Union of India are at liberty to
make appropriate rules in this regard."

"We may, however, make it clear that the contention that the Advocates Act applies only if a
person is practicing Indian law cannot be accepted. Conversely, plea that a foreign lawyer is
entitled to practice foreign law in India without subjecting himself to the regulatory mechanism
of the Bar Council of India Rules can also be not accepted. We do not find any merit in the
contention that the Advocates Act does not deal with companies or firms and only individuals. If
prohibition applies to an individual, it equally applies to group of individuals or juridical
persons."

"If the matter governed by particular rules of an institution or if the matter otherwise falls under
Section 32 or 33, there is no bar to conduct such proceedings in prescribed manner. If the matter
is governed by an international commercial arbitration agreement, conduct of proceedings may
fall."

"The BPO companies providing range of customized and integrated services and functions to its
customers may not violate the provisions of the Advocates Act, only if the activities in pitch and
substance do not amount to practice of law. The manner in which they are styled may not be
conclusive. As already explained, if their services do not directly or indirectly amount to practice
of law, the Advocates Act may not apply. This is a matter which may have to be dealt with on
case to case basis having regard to a fact situation."

"In case of a dispute whether a foreign lawyer was limiting himself to "fly in and fly out" on
casual basis for the purpose of giving legal advice to their clients in India regarding foreign law
or their own system of law and on diverse international legal issues or whether in substance he
was doing practice which is prohibited can be determined by the Bar Council of India. However,
the Bar Council of India or Union of India will be at liberty to make appropriate Rules in this
regard including extending Code of Ethics being applicable even to such cases." (the Hon'ble
Court modified the Madras High Court's observation on the bar against foreign lawyers visiting
India on a fly in and fly out basis to hold that the expression "fly in and fly out" will only cover a
casual visit not amounting to practice)

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"If the Rules of Institutional Arbitration apply or the matter is covered by the provisions of the
Arbitration Act, foreign lawyers may not be debarred from conducting arbitration proceedings
arising out of international commercial arbitration in view of Sections 32 and 33 of the
Advocates Act. However, they will be governed by code of conduct applicable to the legal
profession in India. Bar Council of India or the Union of India are at liberty to frame rules in this
regard."

In a nutshell, visit of any foreign lawyer on fly in and fly out basis may amount to practice of law
if it is on a regular basis. A casual visit for giving advice may not be covered by the expression
'practice'. Whether a particular visit is casual or frequent to amount to practice, is a question of
fact to be determined from situation to situation. Bar Council of India or Union of India are at
liberty to make appropriate rules in this regard. The Hon'ble Apex Court, however, permitted
foreign lawyers to conduct arbitration proceedings in disputes involving international
commercial arbitration, after following the code of conduct applicable to the legal profession in
India. Rules of institutional arbitration will apply to them, the court said. It also modified
provisions of the Advocates Act, 1961, debarring foreign lawyers completely for conducting
international commercial arbitration in the country. The Hon'ble Bench clarified that such visits
must not amount to advocacy (which also comes under the definition of 'practice of law') under
the Advocates Act, 1961. The SC held that the prohibition (on practicing law) applicable to any
person in India other than an advocate enrolled under the Advocates Act certainly applies to any
foreigner also. So foreign lawyers or law firms cannot practice in India without fulfilling the
requirements of Advocates Act and the BCI rules. Upholding the Madras and Bombay High
Courts' judgments with certain modifications, the SC bench defined 'practice of law' to include
litigation as well as non-litigation; not only appearance in courts but also giving of opinion,
drafting of instruments, participation in conferences involving legal discussion amount to
practice, the top court clarified. The top court rejected the plea that a foreign lawyer is entitled to
practice foreign law in India without subjecting himself to the regulatory mechanism of the BCI
rules. The Advocates Act applies equally to firms and individuals, the judgment stated. Justice
Goel, writing for the bench, said "BPOs, LPOs, etc. providing range of customized and
integrated services and functions to its customers would not be allowed to provide services,
which, in pitch and substance, amount to advocacy, but they can render all other services".

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The SC judgment came on a batch of appeals and cross appeals led by BCI challenging the
conflicting judgments by the Madras High Court and the Bombay High Court on entry of foreign
law firms. The BCI had opposed any move to allow foreign firms in India. It argued that foreign
lawyers could not be allowed even to chip in for seminars and conferences.

Many countries including Singapore and China have opened-up their legal service sectors. Hence
fly in and fly out is not a complete solution. It is a personal opinion, that the Supreme Court
could have taken a more pragmatic approach on the issue. Several analysts also feel that the
decision of the Hon'ble Apex Court could dampen India's prospects of foreign investments, as
availability of quality legal service is what large and sophisticated investors would expect. While
the ruling does not permit globalization of the legal sector for now, it shifts the onus on the
government to do so!

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