Define ‘Advocate’. What are the persons who are entitled to be enrolled as an Advocate on State Roll ? (2015)
Advocate is the person who argues in the Court of Justice professionally. for this an advocate has to enroll in bar council . Every person cannot be enrolled as an advocate in bar council .
Admission and Enrollment of Advocates-
Section 24(1) of advocate Act, 1961
According to Section 24(1) of the Advocate Act, 1961, a person is qualified to be admitted as an advocate on a state roll, if he fulfills the following 5 conditions mentioned in a,b, c ,e , f of section 24 (1)
A) He is a citizen of India .
B) He has completed the age of 21 years .
The person who has not attend the age of 21 years is not eligible to be an advocate. In the advocate act,1961, there is no other age restriction. Hence the bar council of India’s rule whereby all person who had attained the age of 45 years were not qualified to be enrolled as an advocates was considered as ultra vires by the supreme court in Indian Council of Legal Aid and advice vs Bar Council of India ,(AIR1995 Supreme Court 691) .
C ) He has obtained a degree in law –
(I) before the 12th day of March, 1967, from any university in the territory of India ; or
(II) before 15th day of August, 1947 , from any university in area which was comprised before that date within India as defined by the government of India Act,1935 ;or
(III) after the 12th day of March 1967, save as provided in sub-clause (IIIA), after undergoing a three years course of study in law from any university in India which is recognized for the purposes of this act by the bar council of India , ; or
(IIIA) after undergoing a course of study in law, the duration of which is not less than 2 academic years commencing from the academic year 1967-68
, or any earlier academic year from any university in India which is recognised for the purpose of this act by Bar Council of India; or
(IV) in any other case, from any University outside the territory of India if the degree is recognised for the purpose of this act by the bar council of India ; or he is a barrister and is called to the bar bar on or before the 31st day of December, 1976 or has passed the article clerk examination or any other examination specified by the high court at Bombay or Kolkata for enrollment as an attorney of the high court or has obtained search order for in qualification in law as is recognized by Bar Council of India for the purpose of admission as an advocate.
( E ) he fulfills such other conditions as may be specified in the rules made by the state bar council under this chapter;
(F) he had paid, in respect of enrollment stamp duty, if any chargeable under the Indian stamp act,1899 and an enrollment fee payable to the state Bar Council of 600 rupees and to the bar council of India 150 Rupees by way of a bank draft drawn in favour of that council.
Provided that where such a person is a member of the schedule caste or Scheduled Tribes and produces a certificate to that effect from Such authority as may be prescribed enrollment fee payable by him to the state bar council shall be 100 rupees and to the bar council of India 25 rupees .
Explanation –for the purpose of this sub-section, a person shall be Deemed to have obtained a degree in law from a university in India on the date on which the results of examination for the degree are published by the University on it’s notice board. or otherwise declaring him to have passed that examination.
Section 24 (2) –
notwithstanding anything contained in sub-section (1), a Vakil or a leader who is a law graduate may be admitted as an advocate on state roll if he –
A) makes and application for Such enrolment in accordance with the provisions of this Act, not later than 2 years from the appointed day and
B) fulfilled the conditions specified in close (A) (D ) (E) and (F ) of sub-section (1)
Section 24 (3) –
notwithstanding anything contained in sub section (1) a person-
A) has for at least 3 years, been a Vakil or a pleader or Mukhtar or was entitled at any time to be enrolled under any law as an advocate of a High Court( including a high court of a former Part B state ) or of Council of judicial Commissioner in any union territory; or
AA) before the first day of December,1961, was entitled otherwise than as an advocate to practice the
profession of law (whether by the way of pleading or acting or both) by virtue of the provisions of any law or who would have been so entitled he had he not been in public service of the said date; or
C) before the 1st day of April 1937 ,has been an advocate of any High Court in any area which was comprised within Burma as defined in the Government of India Act 1935, or
D) is entitled to be enrolled as an advocate under the new rule made by the bar council of India in this behalf .
maybe admitted as an Advocate on state roll if he –
I) Makes and application for such enrollment in accordance with the provision of the act. and
II) fulfill the conditions specified in clause (A) (D) (E) and (F) of subsection (1).
Chapter VIII of part II of the bar council of India rules gives additional qualification for enrollment as an advocate thus “any person who has held office as a judge of any High Court in India may on retirement be admitted as an advocate on the role of any state Council where he is eligible to practice.
In the case of L.M. Mahurkar vs Bar Council of Maharashtra, the supreme court held that a person who has not acquired the educational qualifications required for enrollment as an advocate is not entitled to be enrolled through the person practicing as sales tax practitioner before enforcement of the Advocate Act 1961, by virtue of the provisions of Bombay sales Tax act 1959. (AIR 1996 SC 1602)
The supreme court held that the rule imposed by bar council pre enrollment training and apprenticeship is ultra vires the rule making power of BAR council in V.Sudhir vs Bar Council of India (AIR 1999 Supreme Court 1167 )
The supreme court held that the rule debaring a person who has completed the age of 45 years is beyond the rule making power of the bar council of India .(Indian Council of Legal Aid and advice vs Bar Council of India(AIR 1995 Supreme Court 691).