With the express object of achieving "better and effective administrative and disciplinary control of local Bar Associations, State Bar Councils and the Bar Council of India over advocates entered on the Rolls of advocates being maintained by different State Bar Councils under section 22 of the Advocates Act and further in order to weed out advocates who have left practice", the Bar Council of India, in the exercise of powers conferred on it by section 49(1) (ag), 49 (ah) 49(i) of the Advocates Act, 1961 and by all other enabling and residuary powers vested in it, has notified, in the Gazette, the “Bar Council of India Certificate of Practice and Renewal Rules, 2014” on 29.10.2014. Except for Rule 7 which prescribes the minimum experience required for practice before High Courts and Supreme Court, all the other provisions of the Rules would come into effect from the date of publication of the notification.
The Statement of Objects and Reasons of the Rules refers to concerns expressed in a Joint meeting of the representatives of all State Bar Councils and Bar Council of India that the trend of Advocates switching over to other professions/services/business without any information to the State Bar Council has reached alarming proportions and that this trend is endangering the legal profession as a whole. Referring to this trend, it says, "It has also made a dent in its sanctity and standards. Names of such advocates continue to be included in the “Roll of advocates” being maintained by the State Bar Councils, notwithstanding the fact that they have left the legal profession or have since died. Though under section 19 of the Advocates Act, the State bar Councils are under legal obligation to send a copy of the Roll of advocates prepared by it under section 17 of the Act and subsequent alterations/additions thereto but practically no state bar Council has observed this mandatory provision of the Act up till now". The Bar Council of India has also candidly admitted that the All India Bar Examination introduced to improve the standard of legal profession has also failed to fully achieve its objective.
The Statement of Objects and Reasons of the Rules refers to concerns expressed in a Joint meeting of the representatives of all State Bar Councils and Bar Council of India that the trend of Advocates switching over to other professions/services/business without any information to the State Bar Council has reached alarming proportions and that this trend is endangering the legal profession as a whole. Referring to this trend, it says, "It has also made a dent in its sanctity and standards. Names of such advocates continue to be included in the “Roll of advocates” being maintained by the State Bar Councils, notwithstanding the fact that they have left the legal profession or have since died. Though under section 19 of the Advocates Act, the State bar Councils are under legal obligation to send a copy of the Roll of advocates prepared by it under section 17 of the Act and subsequent alterations/additions thereto but practically no state bar Council has observed this mandatory provision of the Act up till now". The Bar Council of India has also candidly admitted that the All India Bar Examination introduced to improve the standard of legal profession has also failed to fully achieve its objective.
Salient Features of the Rules
1. Commencement:
Except for Rule 7 of Chapter III which would come into force on such date as the Bar Council of India notifies in the Gazette of India, all the other provisions of the Rules take effect at once.
2. Certificate of Practice:
Rule 5 lays down that "An advocate shall not be entitled to practice law unless he holds a valid certificate of practice issued either under All India Bar Examination Rules or under these Rules"
3. Registration in local Bar Association:
The Rules require an advocate, after having obtained a Certificate of Enrollment to get himself registered as a member of the Bar Association where he ordinarily practices law or intends to practice law. In case an advocate leaves one Bar Association and joins another by reason of change of place of practice or by reason of change of field of law, he/she shall have to intimate such change with all the relevant particulars to the State Bar Council, of which he is a member. The Rules also mandate that such fact of leaving as well as of joining should be independently intimated to the said Bar Council within a period of one month. The Rules also lay down criteria for recognition of Bar Associations.
4. Minimum experience required for practice in High Courts and Supreme Court
For the purposes of Rule 7 and prescribing the minimum experience required to pratice in Courts of law, the Bar Council has classified the Courts of law into three tiers: District & Sessions Courts and courts subordinate to it, High Courts and Supreme Court.
Rule 7 (not notified yet) by the Bar Council of India lays down that an advocate enrolled after the commencement of the Rules and after having obtained certificate/renewal of practice can practice law only before such Courts of Law as are equivalent to Sessions Judge or District
Judge and such other Courts in specific field/s of law that are exercising original jurisdiction in the
matters covered by such fields of law and all other Courts which are subordinate to them.
Only after completing two years of practice in such Courts/Tribunals equivalent to District/Sessions Court or Courts subordinate to them or Courts exercising original jurisdiction, can an advocate enrolled after the commencement of the Rules and after having obtained certificate/renewal of practice, "be entitled to practice law before a High
Court and such other Courts in specific fields of law that are exercising appellate or revisional
jurisdiction in the matters covered by such fields of law and all other Courts which are subordinate to them." Therefore, should Rule 7 be notified by the Bar Council of India, 2 years of experience in trial Courts/Tribunals would be a mandatory prerequisite for being eligible to practice in High Courts.
Further more, the Rules lay down that an advocate enrolled on the roll of advocates after the enforcement of the Rules would be entitled to practice before the Supreme Court only after gaining 3 years of experience in the High Court.
5. Application for grant of “Certificate of Practice"
Rule 8 lays down the conditions to be fulfilled for grant of a Certificate of Practice. An advocate who has obtained graduate degree in law before the academic year 2010 enrolled on the “Roll of Advocates”, is required by the Rules to apply for issuance of “Certificate of Practice” from the State Bar Council in which he/she is enrolled as an advocate under this rule within a period of 6 months of the enforcement of these Rules/date of enrolment. An advocate who graduated in the academic year 2009-2010 and thereafter enrolled on the "Roll of Advocates" on or after 12th June, 2010 is required by the Rules to apply for issuance of Certificate of Practice under the All India Bar Examination Rules, 2010 from the respective State Bar Council in which he/she is enrolled.
6. Validity of Certificate of Practice
Rule 9 lays down that Certificate of Practice issued under the Rules, and the renewal thereof, shall be valid only for a period of 5 years., and is therefore, liable to be renewed every 5 years by filing an application for renewal in advance within a period of 6 months before the validity period expires. Applications for grant/ renewal of “Certificate of
Practice” of Advocates,would be scrutinised by the Office of the Bar Council and placed along with personal file of applicant before the Administrative Committee for passing appropriate order, either allowing or dismissing the application. Such an application would be dismissed by the Committee if the applicant has left practice and it is found that he/she has no bona fide intent and interest in continuing in future also. Such an applicant would be treated as a non-practicing advocate under the Rules. Adverse orders would however not be passed without affording an opportunity of being heard to the applicant concerned.
7. Consequence of failure to make application for grant of Certificate of practice/renewal
The Rules lay down that were an advocate fail to make an application for grant of Certificate of practice/renewal within the period prescribed, it would be presumed that such an advocate has left law practice and has no bona fide intent and interest in continuing in future also. The Office of the State Bar Council has been charged under these Rules with the obligation of preparing a list of such defaulting advocates who have failed to make an application for grant of Certificate of practice/renewal within the period prescribed, and to intimate such advocates of the fact of their inclusion in such a list. Applications for grant of Certificate of Practice/renewal received from such advocates whose names have been included in the 'List of defaulting Advocates' would have to be accompanied by late fee and thereafter processed.
8. Consequence of failure to respond to intimation issued by State Bar Council
Failure to respond to the intimation sent by the State Bar Council of the inclusion in the 'List of defaulting Advocates', can entail the name of the advocate concerned to be included in the 'list of Non-Practicing Advocates'. Non-practicing advocates are barred under the Rules from practicing law before any Court of law/Tribunal.
9. Appeal and Revision
The Rules provide for the constitution of an Appellate Tribunal for each State Bar Council comprising three members headed by the member of the Bar Council of India from the State Bar Council concerned, for consideration and disposal of appeals under the Rules. The Bar Council of India has been vested with revisional powers under the Rules.
The Rules notified by the Bar Council of India has evoked a mixed response from members of the legal fraternity, and at least one writ petition challenging Rule 7 laying down minimum experience needed for practice in High Court and Supreme Court has already been filed (in the Madras High Court).
