Knowledge Nugget | NALSAR row puts Bar Council of India in focus: Key questions to answer about the legal body

Key Takeaways:

1. The Bar Council of India is a statutory body established by the Parliament under the Advocates Act, 1961 to regulate and represent the Indian Bar.

2. The Advocates Act, 1961 creates a two-tier structure: State Bar Councils under Section 3 and the Bar Council of India under Section 4.

3. The BCI consists of members elected from each State Bar Council, the Attorney General of India, and the Solicitor General of India who is an ex-officio member. The members from the State Bar Councils are elected for a period of five years.

4. The Council elects its own Chairman and Vice-Chairman for a period of two years from among its members. Presently, Manan Kumar Mishra is the Chairman of the BCI.

What are the Power and Functions of the BCI?

5. The Section 7 of the Advocates Act, 1961 cover the Bar Council’s regulatory and representative mandate for the legal profession and legal education in India:

— To lay down standards of professional conduct and etiquette for advocates. To deal with and dispose of any matter which may be referred to by a State Bar Council.

— To lay down a procedure to be followed by its disciplinary committee and the disciplinary committees of each State Bar Council.

— To safeguard the rights, privileges and interests of advocates. To promote and support law reform.

— To promote legal education and to lay down standards of legal education, which is done in consultation with the Universities in India imparting legal education and the State Bar Councils.

— To recognise Universities whose degree in law shall be a qualification for enrolment as an advocate. 

— The Bar Council of India visits and inspects Universities or directs the State Bar Councils to visit and inspect Universities for this purpose.

— To conduct seminars and talks on legal topics by eminent jurists and publish journals and papers of legal interest.

— To organise legal aid to the poor. To recognise on a reciprocal basis; the foreign qualifications in law obtained outside India for the purpose of admission as an advocate in India.

— To manage and invest the funds of the Bar Council. To provide for the election of its members who shall run the Bar Councils.

6. The BCI can also constitute funds for the following purposes:

(i) Giving financial assistance to organise welfare schemes for poor, disabled or other advocates

(ii) Giving legal aid

(iii) Establishing law libraries

6. Notably, the BCI can also receive grants, donations and gifts for any of these purposes.

Is BCI responsible for the enrolment of advocates?

7. Section 7 gives BCI regulatory and representative mandate and Section 49 gives it broad rule-making powers. But none of those provisions actually gives the BCI the power to enroll a person as an advocate. That function belongs to State Bar Councils. Notably, Section 6 lists among its functions of a state bar council the power “to admit persons as advocates on its roll”.

8. However, the BCI is not completely absent from the enrolment process. Section 26 of the Advocates Act creates a narrow carve-out.

9. If the enrolment committee of a State Bar Council proposes to reject an application, it must refer the matter to the BCI along with “a statement of the grounds in support of the refusal of the application”. Section 26(3) then requires the State Bar Council to dispose of the application “in conformity with the opinion of the Bar Council of India”.

BEYOND THE NUGGET: Can Foreign lawyers practise in India? 

1. In March 2023, the Bar Council of India allowed foreign lawyers and law firms to practise in India. Although they cannot appear in court, they can advise clients on foreign law and work on corporate transactions.

2. For over a decade, BCI was opposed to allowing foreign law firms in India. Later, BCI allowed it based on the reasoning that it will address concerns about the flow of foreign direct investment in the country and make India a hub of international commercial arbitration.

3. In a lengthy Statement of Objects and Reasons, the BCI said it “resolves to implement these Rules enabling the foreign lawyers and Foreign Law Firms to practise foreign law and diverse international law and international arbitration matters in India on the principle of reciprocity in a well defined, regulated and controlled manner.”

4. It allows foreign lawyers and law firms to register with BCI to practise in India if they are entitled to practise law in their home countries. However, they cannot practise Indian law.

Post Read Questions

 (1) With reference to India, consider the following statements: (UPSC CSE 2022)

1. Government law officers and legal firms are recognised as advocates, but corporate lawyers and patent attorneys are excluded from recognition as advocates.

2. Bar Councils have the power to lay down the rules relating to legal education and recognition of law colleges.

Which of the statements given above is/are correct?

(a) 1 only 

(b) 2 only 

(c) Both 1 and 2 

(d) Neither 1 nor 2

(2) With reference to the Bar Council of India, consider the following statements:

1. It lays down standards of professional conduct and etiquette for advocates.

2. It exercises general supervision and control over State Bar Councils.

3. It directly enrolls advocates in every State.

4. It lays down standards of legal education in consultation with universities and State Bar Councils.

Which of the statements given above are correct?

(a) 1, 2 and 4 only

(b) 1 and 3 only

(c) 2 and 3 only

(d) 1, 2, 3 and 4

Answer Key

1. (b)   2. (a)

(Sources: barcouncilofindia.org, NALSAR row: Can Bar Council of India stop enrolment of law graduates?, Foreign lawyers can practise in India but not appear in court: What exactly changes now)

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