Under the Advocates Act 1961, only advocates enrolled in India are entitled
to practice the profession of law - which includes not only appearing before
Courts and giving legal advice as an attorney, but also drafting legal
documents, advising clients on international standards and carrying out
customary practices and transactions.
The Advocates Act, 1961 distinguishes between two types of advocates -- Senior
Advocates and Advocates. A Senior Advocate is designated by the Supreme Court or
any High Court based on his ability or special knowledge. However, in order to
file an appearance before the Supreme Court of India, one must be an
advocate-on-record or be instructed by an advocate-on-record. To be eligible to
qualify as an advocate-on-record, one year training contract with an
advocate-on-record needs to be completed, besides passing prescribed tests.
In order to discuss, Advocates are the only recognized class of persons entitled
to Practice the profession of Law, it will be imperative to go through the
Advocates Act, 1961; The Indian Power of Attorney Act, 1882 and The Constitution
of India. The relevant provisions of The Advocates Act, 1961 are as follows;
Section 29 - Advocates to be the only recognized class of persons
entitled to practice law-
Subject to the provisions of this Act and rules made
there under, there shall, as from the appointed day, be only one class of
persona entitled to practice the professions of law, namely, advocates.
Section 30, Right of Advocates to Practice -
Subject to the provisions
of this Act, every advocate whose name is entered in the (State Roll) shall be
entitled as of right to practice throughout the territories to which this Act
In all Courts including the Supreme Court;
Before any Tribunal or person legally authorized to take evidence: and
Before any other Authority or person before whom such advocate is by or under
any law for the time being in force entitled to practice.
Section 33 - Advocates alone entitled to practice-
Except as otherwise
provided in this Act or in any other law for the time being in force, no person
shall, on or after the appointed day, be entitled to practice in any Court or
before any authority or person unless he is enrolled as an advocate under this
Section 45 - Penalty for persons illegally practicing in Courts and
before the authorities.
Any person who practices in any Court or before any
authority or person, in or before whom he is not entitled to practice under the
provisions of this Act, shall be punishable with imprisonment for a term which
may extend to six months.
Famous Latin maxim of natural justice is-absolute sententia expositore non
indigent: plain language does not need and interpreter.
It is evident from the bare reading of above provisions of the Advocates Act,
1961 that only and only Advocates enjoy the privilege to practice the law.
The relevant provision of The Indian Power of Attorney Act, 1882 is as
Section 2 - Execution under power- of- attorney.- The donee of a power- of-
attorney may, if he thinks fit, execute or do any instrument or thing in and
with his own name and signature and his own seal, where sealing is required, by
the authority of the donor of the power; and every instrument and thing so
executed and done, shall be as effectual in law as if it had been executed or
done by the donee of the power in the name, and with the signature and seal, of
the donor thereof. This section applies to powers-of-attorney created by
instruments executed either before or after this Act comes into force.
Another famous Legal maxim of natural justice is expression unius est exclusion
alterius; when there is express mention of certain things, then anything not
mentioned is excluded.
Another famous Legal maxim of natural justice is Dura lex sed led; the law is
hard but it is the law.
The Full Bench of Honble Madras High Court in M. Krishnammal v/s T.
Balasubramania, reported in AIR 1937 Madras, Page No. 937 held as under:
In connection, we would add the following general observations with regard to
what the claim put forward by the respondent really amount to. It is that he
should be accorded all the rights and privileges which are enjoyed by members of
the legal profession whose qualifications for admission to its rank are laid
down in the rules made by the Bar Council with the sanction of the High Court,
and whose professional conduct thereafter is regulated by rules of practice and
professional etiquette and who are subject to the disciplinary control of the
High Court, whereas the respondent need possess no qualifications, whatsoever,
as regards education and character and is not bound by any rules of professional
conduct or etiquette and is not subject to the disciplinary control of the High
Court or of any one; and there can be no better example than this case itself
affords of the highly objectionable result such a claim may lead to, and
actually has led to here, because the respondent claims to be remunerated by his
principal for his services in question and before us stated that the condition
regulating his payment is that he is to receive it only if the result of the
proceedings is successful but not otherwise. On his own admission, this is a
transaction which, if entered upon by a legal practitioner, would at once render
him liable to strong disciplinary action, for to engage in speculative
litigation is a grave breach of professional conduct. Yet his claim is that he
is free to undertake such business and this is only to undertake such business
and this is only one example of probable resultant evils.
The aforesaid Judgment of the Madras High Court has been considered in the case
of T. C. Mathai v/s Distt. & Session Judge; 1999 (3) S.C.C 614 by the
Honorable Supreme Court and approved as under;
Section 2 of the power of attorney Act cannot override the specific provision of
a statue which requires that a particular act should be done by a party in
person. When the code requires the appearance of an accused in a Court it is no
compliance with if a power of attorney holder appears for him. It is a different
thing that a party can be permitted to appear through counsel. Chapter XVI of
the Code empowers the Magistrate to issue summons or warrant for the appearance
of the accused. Section 205 of the Code empowers the magistrate to dispense with
the personal attendance of the accused, and permit him to appear by his pleader
if he sees reasons to do so. Section 273 of the Code speaks of the powers of the
Court to record evidence in the presence of the pleader of the accused, in cases
when personal attendance of the accused is dispended with. But in no case can
the appearance of the accused be made through a power of attorney holder. So the
contention of the appellant based on the instrument of power of attorney is of
no avail in this case.
The Gujarat High Court has also considered the judgment of Madras High Court as
above during the course of hearing in the matter of Jaymal Thakore Vs Gujrat
State Charity Commissioner, Ahmedabad & Ors.; reported in AIR 2001 Guj. 279.
D.M. Dharmadhikari, C. J.: The Petitioner is a Chartered Accountant and in his
professional capacity claims a right to represent his clients both as recognised
agent and a Pleader under a duly executed power of attorney in his favour in
proceedings before the Charity Commissioner under Section 50A of the Bombay
Public Trust Act, 1950 (hereinafter referred to as the Act) which admittedly is
applicable to the State of Gujarat.
14. The provisions of Order III Rule 1 and 2 repeatedly came for construction
and application before law Courts in civil proceedings. For the purpose of this
case reference to one of the earlier decisions of Chhagla C. J in Aswin
Shambhuprasad Patel V. National Rayon Corporation Ltd., AIR 1955 Bombay 262
would be profitable. Construing the provisions of Order III Rule 1, it was held
that the expression appearance, application or act in or to any Court in Order
III Rule of C.P.C. does not include pleadings. The recognised agent under power
of attorney from the party in his favour may appear, file an application or act
on behalf of the party in the proceedings as recognised agent of the party. Such
power or Authority to appear, file application and act is also available to a
pleader, but to plead in the case, that is to do something for the party in the
case other than what the recognised agent can do, that is to practice law or
plead for the client, is the monopoly right only of a pleader or a registered
advocate, A recognised agent appointed by a party may be holding a duly executed
power of attorney cannot be said to be a pleader and can have no right to plead,
The provisions of Advocates Act, 1961 confers a monopoly right of pleading and
practicing law only on enrolled or registered advocates. Section 30 of the
Advocates Act confers such a right to practice on a pleader and/or advocate
after he gets himself enrolled as such.
Section 30 reads:
Section 30. Right of advocates to practice-
Subject to the provisions of the Act,
every advocate whose name is entered in the State roll shall be entitled as of
right to practice throughout the Territories to which this Act extends,
(i) in all Courts including the Supreme Court;
(ii) before any Tribunal or person legally authorized to take evidence; and
(iii) before any other authority or person before whom such advocate is by or
under any law for the time being in force entitled to practice.
15. Section 33 of the Advocates Act confers an exclusive and monopoly right on
the enrolled advocate or pleader to plead and practice in Court of law.
The said provision contained in Section 33 reads:
Section 33. Advocates alone entitled to practice-
Except as otherwise provided in
this Act or in any other law for the time being in force, no person shall, on or
after the appointed day, be entitled to practice in any Court or before any
authority or person unless he is enrolled as an advocate under this Act.
16. The provisions of Section 32 of the Advocates Act are also required to be
noticed in this context which reserves a discretion and power to the Court only
to permit appearances to any non-advocate for a party. It may be noted that
Section 32 also does not confer any power and discretion on the Court to permit
any non-advocate to plead or practice law in a Court. Section 32 restricts the
powers of the Court to permit any non-advocate only to appear on behalf of a
party. See the language of Section 32 restricts the powers of the Court to
permit any non-advocate only to appear on behalf of a party.
See the language of Section 32 quoted here above:
17. When the Petitioner as a Chartered Accountant and a holder of power of
attorney conferring on him all rights to act, appear and plead on behalf of his
client sought such permission, the Charity Commissioner allowed him to act as a
recognized agent, but refused to allow him to plead and practise as a pleader or
The relevant part of his order which is under challenge at the instance of
Petitioner in this case needs reproduction (as rendered in English):
For the reasons recorded as above. It is consequently ordered in the matter of
enquiry application No. 1/92 filed in this Office under Section 50 A of the
Bombay Public Trusts Act, wherein, the Chartered Accountant Shri Jaimal Thakore
has appeared with the Authority letter and authority executed on stamp paper on
behalf of six trustees of Nawawas Rajpur Hirpur Timba Education Trust which has
been registered as a public trust under registration No. E/244/ Mehsana, that
the authority to act as an advocate, besides appearing, which has been given
under the document, there is no provision for any party to give authority to any
individual other than an advocate to act as an advocate and since there is a
provision under Rule 7 of the Rules framed under the Public Trusts Act for an
authorized agent and pleader to appear, he can appear on behalf of the six
trustees for whom he has appeared, in this matter of enquiry but it is held that
he does not thereby acquire a right to plead therein and therefore, Shri Jaimal
Thakore himself can only appear on behalf of the said trustees and he, as the
authorized agent acquires an authority to sign on behalf of the original
parties; to submit reply and documents and to do the act of adducing evidence
and he cannot do the act of taking examination in chief or cross-examination.
Also he cannot address the authority i.e. the Charity Commissioner, before whom
this proceeding is pending. It is held that he does not acquire the right of
examining witnesses in Court and of addressing the Court as is being done by a
pleader in a Court. This application is accordingly granted.
Further, for the reasons stated above, since this case does not become a special
case wherein an individual can be granted permission to plead and address the
Court in the manner in which a pleader can do by appearing, even though Shri
Thakore has been authorized to act as a pleader in the authority letter executed
in his favour, he is not permitted to appear for the purpose of conducting the
Considering the facts, no orders as to costs. It is directed that this
Application shall now proceed further.
Apart from the above, the word to practice the profession of law has been
considered by The Honble Mumbai High Court in Lawyers Collective V/s Bar
Council of India & Others Writ Petition No. 1526 of 1995, Order dated 16th
December, 2009, reported in 2010 (112) Bom. L. R. 32. the relevant abstracts of
the judgment are reproduced here under:
58. It may be noted that Rule 6 (1) in Chapter III Part VI of the Bar Council of
India Rules framed under Section 49 (1) (ah) of the 1961 Act provides that an
advocate whose name has been removed by an order of the Supreme Court or a High
Court or the Bar Council as the case may be, shall not be entitled to practise
the profession of law either before the Court and authorities mentioned under
Section 30 of the 1961 Act, or in chambers, or otherwise. The above rule clearly
shows that the chamber practise, namely, practise in non litigious matters is
also within the purview of the 1961 Act.
59. Counsel for the Union of India had argued that the Central Government is
actively considering the issue relating to the foreign law firms practising the
profession of law in India. Since the said issue is pending before the Central
Government for more than 15 years, we direct the Central Government to take
appropriate decision in the matter as expeditiously as possible. Till then, the
1961 Act as enacted would prevail, that is, the persons practising the
profession of law whether in litigious matters or non litigious matters would be
governed by the 1961 Act and the Bar Councils framed there under, apart from the
powers of the Court to take appropriate action against advocates who are found
guilty of professional misconduct.
60. For all the aforesaid reasons, we hold that in the facts of the present
case, the RBI was not justified in granting permission to the foreign law firms
to open liaison Offices in India under Section 29 of the 1973 Act. We further
hold that the expressions to practise the profession of law in Section 29
of the 1961 Act is wide enough to cover the persons practising in litigious
matters as well as persons practising in non litigious matters and, therefore,
to practise in non litigious matters in India, the respondent Nos.12 to 14 were
bound to follow the provisions contained in the 1961 Act. The petition is
disposed of accordingly with no order as to costs.
This matter has been also considered by the Madras High court also in A. K.
Balaji v/s Government of India & Ors., W.P. No. 5614 of 2010, Vide Order
dated February 21, 2012, the relevant abstracts of the judgment are reproduced
44. As noticed above, the fact of the case before the Bombay High Court were
that the respondents which were foreign law firms practising the profession of
law in US/UK sought permission to open their liaison office in India and render
legal assistance to another person in all litigious and non-litigious matters.
The Bombay High Court, therefore, rightly held that establishing liaison Office
in India by the foreign law firm and rendering liaisoning activities in all
forms cannot be permitted since such activities are opposed to the provisions of
the Advocates Act and the Bar Council of India Rules. We do not differ from the
view taken by the Bombay High Court on this aspect.
62. At this juncture, it is necessary to note yet another submission made by the
Government of India in their counter. It has been stated that law firms as such
or not required to register themselves or require permission to engage in
non-litigation practice and that Indian law firms elsewhere are operating in a
free environment without any curbs or regulations. It is further submitted that
the oversight of the Bar Council on non-litigation activities of such law firms
was virtually nil till now, and exploiting this loop hole, many accountancy and
management firms are employing law graduates, who are rendering legal services,
which is contrary to the Advocates Act. Therefore, the concern of the Government
of India as expressed in the counter affidavit requires to be addressed by the
Bar Council of India. Further, it is seen that the Government in consultation
with the Bar Council of India proposes to commission a study as to the nature of
activities of LPOs, and an appropriate decision would be taken in consultation
with the Bar Council of India.
63. After giving our anxious consideration to the matter, both on facts and on
law, we come to the following conclusion:
(i) Foreign law firms or foreign lawyers cannot practice the profession of law
in India either on the litigation or non-litigation side, unless they fulfil the
requirement of the Advocates Act, 1961 and the Bar Council of India Rules.
(ii) However, there is no bar either in the Act or the Rules for the foreign law
firms or foreign lawyers to visit India for a temporary period on a fly in and
fly out basis, for the purpose of giving legal advise to their clients in India
regarding foreign law or their own system of law and on diverse international
Moreover, having regard to the aim and object of the International Commercial
Arbitration introduced in the Arbitration and Conciliation Act, 1996, foreign
lawyers cannot be debarred to come to India and conduct arbitration proceedings
in respect of disputes arising out of a contract relating to international
The B.P.O. Companies providing wide range of customised and integrated services
and functions to its customers like word-processing, secretarial support,
transcription services, proof-reading services, travel desk support services,
etc. do not come within the purview of the Advocates Act, 1961 or the Bar
Council of India Rules. However, in the event of any complaint made against
these B.P.O. Companies violating the provisions of the Act, the Bar Council of
India may take appropriate action against such erring companies.
The Judgment of the Honble Bombay High Court has got its finality as no appeal
has been moved before the Honble Supreme Court of India against this order. The
Madras High Court has also taken the same view as of Bombay High Court on the to
practise profession of law in litigious as well a non litigious matters, and has
been held that without having enrolled with any State Bar Council under the
provisions of the Advocates Act 1961, as mentioned finally at 63 (1) of its
The Honble Supreme Court of India has also clarified in its interim order dated
04/07/2012 against the judgment of the Honble Madras High Court, where, the
Point Number 63 (ii) is only in dispute, which permits the foreign lawyers for
advise to their clients on certain conditions, but not for practice, which is
reproduced here under: (ii) However, there is no bar either in the Act or the
Rules for the foreign law firms or foreign lawyers to visit India for a
temporary period on a fly in and fly out 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.
Thus, it is clear that that when an advocate of other country, who has not been
got enrolled with State Bar Council of any State in India under the Advocates
Act,1961, has not been permitted for practice the profession of law in India,
then, why those persons who have not been enrolled as an advocate with Bar
Council of any State in India are being permitted to practise the profession of
The relevant provision The Constitution of India is as follows-
Article 141 - Law declared by Supreme Court to be binding on all Courts - The
law declared by Supreme court to be binding on all courts within the territory
It is impermissible for the High Court to overrule the decision of the Apex
Court on the ground that Supreme Court laid down the legal position without
considering any other point. It is not only a matter of discipline for the High
Courts in India, it is mandate of the Constitution as provided in article 141
that the law declared by the Supreme Court shall be binding on all Courts within
the territory of India, Suganthi Suresh Kumar V. Jagdeeshan; (2002) 2 SCC
420 ; AIR 2002 Cri. LJ 1003; 2002 SCC (Cri.) 344.
The judicial discipline to abide by Supreme Court decision cannot be forsaken
under any pretext by any authority or Court, be it even High Court, State of
Himachal Predesh V. Paras Ram, AIR 2008 SC 930.
Supreme Court of India in Harish Uppal v/s Union of India, (2003) 2 SCC
45 observed that The right of the advocate to practise envelopes a lot of acts
to be performed by him in discharge of his professional duties. Apart from
appearing in the Courts he can be consulted by his clients, he can give his
legal opinion whenever sought for, he can draft instruments, pleadings,
affidavits or any other documents, he can participate in any conference
involving legal discussions, he can work in any Office or firm as a legal
officer, he can appear for clients before an arbitrator or arbitrators etc. The
right to practice, no doubt, is the genus of which the right to appear and
conduct cases in the court may be a specie. A similar view has been expressed in
Pravin Shah v/s K. A. Md. Ali, (2001) 8 SCC 650. Accordingly, it was
contended that the right to practice must include non-litigious practice too.
In view of the above legal position, it is crystal clear that no body, except an
advocate who is enrolled with the State Bar Council, can argue a case before the
Honble Supreme Court, High Court, Tribunal, Appellate Authority, Assessing
Authority, or person, and cannot practice the profession of law either in
litigious as well as non litigious matters.
Written By: Dinesh Singh Chauhan, Advocate,
J&K High Court of Judicature, Jammu.