Report No. 14

41. Sufficient response likely.-

The questions whether a scheme such as we have suggested will evoke a sufficient response from the Bar, and whether advocates at various centres who are now in the position of senior advocates will be willing to be put on the roll of senior advocates if so invited, notwithstanding the proposed obligations and disabilities, have much exercised our minds and formed the subject of close enquiry during our visits to the principal centres of the High Courts. We have seen that in many places the leaders of the Bar do in practice voluntarily impose upon themselves similar obligations and disabilities.

The exigencies of their practice leads them to do so. It is normally not possible for a busy senior lawyer to do drafting work or other miscellaneous work of a small nature. There is, therefore, no reason why these seniors and leaders of the Bar should not come forward voluntarily to put themselves on the roll of senior advocates. The status of a senior advocate will naturally have an attraction for men who have made their mark in the profession. They will be looked upon by the litigant public, by their brother lawyers and by the judiciary with respect.

These factors should, in our view, act as an inducement to advocates to put themselves on the senior roll, notwithstanding the sacrifice of some kinds of work which it may involve. It may well be that by reason of being put on the senior roll, the advocate would be able to raise the standard of fees charged by him. These considerations were put by us to a number of lawyer witnesses, including some leading members of the District Bar and they were of the view that even at District centres men of standing and ability would come forward to put themselves on the senior roll.

42. Effect of division on the public.-

A very important aspect of the question is the effect of the introduction of this change on the litigating public. Will it impose a heavier burden of costs on the losing side? The proposed scheme, however, does not oblige any litigant to engage a senior advocate or even two advocates in any particular matter. It only results in the litigant having to employ an advocate who is not a senior advocate, if he elects to have his case conducted by a senior advocate. Notwithstanding the institution of the roll of senior advocates, a fair number of competent advocates who are not on the senior roll will continue in practice and the litigant who does not desire to incur the costs of employing two advocates could well be content with the services of the experienced advocate who is not yet a senior.

It will be remembered that in certain High Courts the cost of two advocates is allowed on taxation against the losing side if two advocates are in fact engaged, the fees of the junior being assessed at one-third or one-half of those allowed to the senior advocate. The litigant is thus accustomed to employ more than one advocate in a number of matters and the losing side is being made to pay the costs of more than one advocate in these cases.

No increased cost to the public.- We are, therefore, of the view that the proposed division of the Bar in the manner indicated above will not be a burden on the litigating public. It is not the costs incurred by the litigant who chooses to indulge in the luxury of engaging a senior advocate even when not needed or who chooses to employ several advocates that have to be considered. The incurring of such costs is entirely a matter for the party concerned. What matters is the cost to the ordinary litigant who is concerned only with the efficient conduct of his case, and does not want the luxury of briefing fashionable counsel. His costs will not be increased by the acceptance of our recommendations.

43. Relative fees and taxation rules.-

The question of the relative fees of the senior advocate and the advocate is a matter to be provided for by the rules of the Bar Associations or the Bar Council. The rules of the Court will also have to fix these relative fees, that is, the fees of the two advocates-a senior advocate, and an advocate-which are allowable on taxation against the losing side.

44. Entrance fees to the professions heavy.-

Entrance to the profession of law is heavily taxed. A Court-fee of Rs. 500 is prescribed by Article 30 of the Indian Stamp Act for an entry as an advocate or vakil of a High Court. In the case of an attorney the prescribed fee is Rs. 250. In Bombay by a local amendment it has been raised to Rs. 750. The States have, however, pounced upon the entrants into this profession as a fruitful source of revenue, and have by local amendments of the Stamp Act largely enhanced this fee. The Table set out below shows the enrolment fees chargeable under the Stamp Act in various States. They range from Rs. 625 in Madras, Orissa and Uttar Pradesh to Rs. 1,031.25 in the State of Bihar.

Table

Name of the State	Enrolment Fees	Authority
1	2	3
Assam	Rs. 750	Section 7 of the Assam Stamp (Amendment) Act, 1950 which was to expire on.-4- 57.
Bihar	Rs 1031.25 under the Indian Stamp Act as amended by the State and Rs. 100 to the Bar Council.
Bombay	(i) Rs. 750 for the Bombay	C.P.& Berar Indian Stamp Amendment Act, 1933.
	(ii) Rs. 500 for the Nagpur Advocates.
	(iii) Rs. 500 for the Hyderabad Advocates.
	(iv) Rs. 250 for the Saurashtra Advocates.
	(v) Rs. 100 for the Advocates of the J.C. Courts, Kurch.
	(vi) Rs. 750 for Attorneys.
Kerala	Rs. 400 under the Travancore-Cochin Stamp Act.
Madhya Pradesh	Rs. 50 to the Bar Council.
	Rs. 625 under the Stamp Act (M.P. Gazette Notification No. 110-VSR dated 16th July, 1957).
	Rs. 100 to the Bar Council.
	Rs. 500 for Advocates of Madhya Bharat and Bhopal.
	Rs. 400 for advocates of Vindhya Pradesh.
Madras	Rs. 625 under the Stamp Act.	Madras Stamp (Amendment) Act, 1922.
	Rs. 50 to the Bar Council.
	Rs. 20 for Court Motion under the Court Act.
Mysore	Rs. 300
Orissa	Rs. 625 under the Stamp Act.	The Indian Stamp (Orissa Amendment) Act, 1956 Orissa Act (8 of 1956) The Indian Stamp (East Punjab Amendment) Act, 1949.
Punjab	Rs. 500 under the Stamp Act.Under the Bar Council Act, Rs. 10 if enrolled on or before 28-9-1948.
	Rs. 50, if enrolled after 28-9-48 but before 16-3-1956.
	Rs. 100, if enrolled after 16-3-1956
Rajasthan	Rs.500 under the Stamp Act.
	Rs. 100 to the Bar Council.
Uttar Pradesh	Rs. 625 under the Stamp Act.	Uttar Pradesh Stamp (Amendment Act) 1948.
	Rs. 100 to the bar Council
West Bengal	Rs. 750 under the Stamp Act.	Section 13 of Bengal Act, III of 1922.
	Rs. 100 to Bar Council.
	Rs. 500 for Attorneys.
Tripura	Rs. 50 annually.
Manipur	Rs. 500.
Himachal Pradesh	Rs. 300.

Bar Council fee.- It will be noticed, however, that in some of the States which used to be Part B States and to which the Indian Stamp Act was not applicable, like the States of Mysore and Kerala the fees payable under the local Stamp Acts are lower. As the Table shows, in addition to the fees on enrolment payable under the Stamp Act, the entrants to the profession have to pay certain amounts to the Bar Council of the State pursuant to rules made by the Bar Councils under the Bar Councils Act. These fees range from Rs. 50 to Rs. 100. The total burden thus imposed on those entering the profession may truly be described as oppressive.

Abolition of Stamp Duty recommended.- We have been at some pains to find out how and on what principle entrance to this profession came to be taxed when no similar impost is ivied on entry into other professions like the engineering and medical professions. We have not been able to discover any sound reason or principle for this levy. So far as we know, though payments have to be made to professional bodies like the Inns of Court or the Law Society, no fees are levied in England by the State for the issue of a licence to practise the profession. Nor are we aware of any such fees being levied in the United States. In our view, this imposition is totally unjust and should be abolished.

Recommendation of the All-India Bar Committee.- The matter was considered by the All-India Bar Committee who, after pointing out that no such fees were charged in the case of entrants to other professions, stated that "there is no reason why there should be a taxation by the State at the time of enrolment of Advocates only."1

1. Report, p. 40, para. 931.

45. Payments to Bar Council necessary.-

It would be reasonable, however, to provide that the entrant to the profession should pay an enrolment fee to the Bar Council of his State, it being the professional body which will admit him to the profession, put him on the roll and protect his rights, and enforce his obligations while he remains on the roll of advocates. This enrolment fee will have to be proportioned to the expenditure incurred by the Bar Council in performing its various functions, including the function of conducting courses of professional training and holding examinations for entrance to the profession.

The All-India Bar Committee suggested that an advocate at the time of his admission should pay a sum of Rs. 500 to the State Bar Council and that the amount may be paid in one sum or in annual instalments of Rs. 50 with an option to pay Rs. 500 at any time, amounts already paid not being deducted. The Committee recommended that each State Bar Council should for the first five years contribute forty per cent. of the enrolment fees received by it to the All-India Bar Council. The proportion of the contribution may be reconsidered at the end of the first five years.

46. It appears to us that the amount of Rs. 500 proposed by the Committee is excessive. At present various State Bar Councils are receiving payments which range from Rs. 50 to Rs. 100 from each entrant to the profession and so far as we have been able to ascertain, not only are the amounts received sufficient to finance their activities but some of these Councils have accumulated out of these and other receipts substantial amounts which have been invested by them. The creation of the All-India Bar Council envisaged by the Bar Committee will no doubt involve substantial additional expenditure.

Considering all aspects of the matter, we suggest that an enrolment fee of Rs. 125 may be charged by the State Bar Council from each entrant out of which Rs. 25 may be paid by the State Bar Council to the All-India Bar Council. It may be, that having regard to the suggestions made by us, that the Bar Councils should provide for a practical training in law to persons entering the profession, considerable increased expenditure may have to be incurred by the State Bar Councils. Such expenditure can be met by them by a levy of tuition fees on those taking the professional courses of teaching conducted by the Bar Councils.

47. Constitution of Bar Councils (Recommendations of the All-India Bar Committee).-

The All-India Bar Committee considered exhaustively the questions of the constitution and powers of the State Bar Councils and the All-India Bar Council and made detailed recommendations. In framing its recommendations the Committee accepted the principle that the Bar should be autonomous in matters relating to the profession. Its recommendations in regard to the constitution of the Bar Councils are based on the acceptance of this principle.

While recommending that the State Bar Council and the All-India Bar Council shall inter alma consist of two Judges of the High Court or two Judges of the Supreme Court nominated by the Chief Justice of the High Court or the Chief Justice of India respectively, care was taken to ensure that the two Judges so nominated would be person who had been advocates, so that, notwithstanding Judges being members, the Councils still retained their domestic character and were composed exclusively of advocates.

48. Autonomy of the Bar (Non-Advocate Judges not be members of Council).-

We wish to emphasize the principle of autonomy thus sought to be given effect to by the Committee. Our considered opinion is definitely against Judges who have never been advocates being brought into these autonomous bodies that should consist wholly of members of the profession. In this connection it may be noticed, that section 4 of the Bar Councils Act, which prescribes the composition of the Bar Council provides for four persons to be nominated by the High Court, of whom not more than two may be Judges of that Court.

The recommendation of the Committee that the Judges nominated should have been persons who had been advocates was, it appears, made deliberately with a view to prevent Judges who had not been advocates from becoming members of the Council. It may be pointed out that, notwithstanding the provision in section 4(1)(b) of the Bar Councils Act, in some of the States, the High Court has not chosen to nominate Judges as members of the Bar Council. In spite of the absence of Judges on these Councils, so far as we are aware, there has been no complaint about the satisfactory functioning of these Bar Councils.

It would, therefore, appear that the time has arrived, for making these professional bodies entirely autonomous. If, however, Judges have to form part of the composition of these bodies, they should be Advocate-Judges.

49. No ex-officio Chairman.-

As to the Chairman of these Bar Councils, the Committee has recommended that in the case of State Bar Councils they should elect their own Chairmen. On the question of the Chairman, of the All-India Bar Council the report of the Committee contains no recommendation. In our view, the State Bar Councils as well as the All-India Bar Council, should be left to elect their own Chairmen and a provision that the Advocate General should be the ex-officio Chairman or that a Judge should be an ex-officio Chairman would be inappropriate.

50. Separate Supreme Court Bar Council unnecessary.-

The All-India Bar Committee reached the conclusion that the establishment of a separate Bar Council for the Supreme Court was unnecessary. We agree with that view. Having regard to the scheme of a common roll of advocates for the whole country there will no longer exist the class of advocates now known as Supreme Court Advocates. The advocates ordinarily practising before the Supreme Court will have the opportunity of exercising their franchise as members of the profession in regard to the Bar Council of the State to which they belong. In addition to this, representation has been provided for them in the All-India Bar Council in the scheme proposed by the Committee for the constitution of the All-India Bar Council.