Legal History- Development of Legal Profession in India

Introduction

Jolly LLB of today is not evolved in year or decades. It's result of centuries old legal profession.From ancient to modern day lawyer and other court official, we will track down the journey of legal profession briefly.

Ancient India

Earlier societies were patriarchal in nature. Decision were mostly were taken by men. Is situation changed today much ? There used to Panchayats at lower level. Local noble then would decide matters in finality. Meaning local king was highest authority and his decisions would be binding on parties. 

"Principle of Dharma" was followed. "Dharma Guru" were there to guide the king in administration of justice.

Religion had a large play in legal system. People with religious knowledge used to carry on legal duties as well.

Mughal Rule

It was organized at proper hierarchy was there. At town level there was Qazi-e-parganah. Appeal from this court lay in Qazi at district level. District level is also know as sarkar. This district level court had appellate jurisdiction as well as original jurisdiction, and it used to look after civil as well as criminal matter.

Above the district level, there was "Adalat Nazim-e-parganah", and above it there was Adala nazim-e-subah

This system was also strongly influenced by religion. And religious preacher were legal professional in wider sense.

In short, in ancient and middle period, religious folks used to carry out legal function. Neither the legal profession was professionally organized during those times.  There was disparity as woman's testimony was not given equal importance.

Legal Profession in Mayor courts-1726

Forget about the lawyers, judges during those times didn't have proper legal knowledge. Mostly company's servant used to dispense the justice.

There was not prerequisite for qualification to plead or act. Generally mayor court used to regulate these matter. Though mayor court needed to follow proper legal system of England, no attention was paid to legal practitioners.

 Regulating Act and Supreme Court-1774

Regulating act was passed in 1773, which empowered Crown to establish a supreme court in presidency town. In 1774, first supreme court was established.

This was the beginning of modern legal practitioner. Clause 11 of the charter of 1774 empowered the Supreme Court to approve and enroll advocates and attorney at law.

Charter itself empowered Court to regulate it's procedure.It could remove any advocate or attorney for misbehavior or any other reasonable cause

Attorney of records, the Britain educated folks largely, were authorized to appear and plea and act for suitors.

These courts were to follow English procedures. Barristers from England and Scotland were allowed to practice in these courts. Indians or natives were barred from practicing in these courts. Other two courts were established in Mumbai and Madras, but position of Native practitioner didn't change much. :(

Legal practitioner in Company's court

For expansion of commerce and trade, Company (East India Company and not a D Company), established various company court. Warrent Hastings introduced reforms in 1772 as to structure of courts. There were mofussil courts at town and district level. In these courts natives were allowed. Local customs were allowed and kazi or pandit used to decide the cases. There were munsif and other court officials who used to dispense the justice.

Lord Cornwallis introduced comprehensive reforms in late 18th Century. He brought in Bengal Regulation 1793 which had provision for sound development of legal profession. It empowered Sadar Diwani Adalat to enroll from time to time as many pleaders as it thought necessary for all Company's adalats. It also provided for fixing of fees of pleaders.  Pleader could not demand any fees, goods, effects or valuable consideration from his client. Punishment for violation of such rule was dismissal of a lawyer.

Legal Practitioner Act of 1846 provided that people from other nationality also who are qualified can practice in Crown's court as well as Company's sadar Adalats. (Sadar Adalats are higher courts of company).

Legal Practitioner Act,1853 authorized the barrister of Supreme Court to plead in any of the Company's Court subordinate to Sadar Courts.

At lower level, there were local pleaders also know as Mukthar. There were also revenue agent. All this was recognized and organized. Now High Courts were authorized to make rules for the qualifications, admission and enrolment of proper person to be pleaders and Mukhtars, for the fees to be paid for the examination, admission and enrollment of such person.

Legal Practitioner in High Courts (After 1861)

There was dual system of courts before 1861. There were crown's court such as Supreme Courts in presidency town and there were Company's courts such as Sadar Adalats. There were lot of problems in this system and hence these two courts were merged into one and High Courts were established.

By the 1860s, there were three kinds of practitioners. Attorney, Barrister and Vakils. The first two were graduates from Britain, Ireland or Scotland.

There are two jurisdiction. Original jurisdiction, meaning in some matters you can directly go to these high courts, other is appellate jurisdiction meaning appeals from lower court can be heard in these courts.

British were allowed to practice on original side as well as on appellate side. Whereas Indians were allowed only to practice on appellate side. Madras high courts ended this discriminatory practice as early as 1866, whereas Calcutta High Court continued this till 1932.

Legal Practitioner Act, 1879

There were six kind of practitioner existed during that time. Advocates, Solicitors (Attorneys) and Vakils of High Court. At lower level there were pleaders, mukhtars and revenue agent. This act brought all the practitioner under High Courts.

Now roll will be prepared by an High Court. Practitioner enrolled under this will be able to practice in any court under under that high court.

Rules and powers regarding admission on roll were all to be made High Court. Under this act only LLB degree came into picture. To enroll as a Vakil in High Courts, you needed a LLB degree from Indian University.

High court was conferred the power to regulate affair related to discipline.

Legal Practitioners (Woman) Act, 1923 

This act was passed that there should be no discrimination based on sex against woman participation in legal profession.

Indian Bar Committee, 1923

This committee was also known as Chamier Committee. The object of it was to remove distinction between Barristers and Vakils.

It suggested some changes. First, the High Court should have only one grade of advocates. Vakils, Barristers etc should be removed. Second, it said Vakils after fulfilling certain criteria should be allowed to plead on original side of High court. Third, that 1/3 judges need not be necessarily be barristers.Fourth, the advocates of one high court should be allowed to practice in other high courts also.

This committee also suggested for first time, separation of power of high court about rules, admission, disciplinary action to other institution, namely Bar Council. So modern day Bar Council has it's origin under this committee.

Indian Bar Council Act, 1926

It was another step in development of legal profession. Earlier High Court used to exercise most of the power related to admission, education, discipline and control of professionals. These powers were now devolve to Bar Council as suggested by Bar Committed, 1923. Though Bar Council conferred with some power, final say was remained with High Court. On many matters Bar Council was advisory in nature.

All Indian Bar Committee

This committee was constituted under chairmanship of justice S R Das. This committee helped in establishment of All India Bar Council. It also provided for unification of various grades of pleaders into one. They also prescribed minimum education qualification of enrollment of advocates on roll.

With all this historical developments, today we have Advocates Act, 1961!

Legalfundaa