Professional Monopoly over the Practise of Law

 Under Section 29 of the Advocates Act, 1961,

“29. Advocates to be the only recognised class of persons entitled to practise law — Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.”

 

Similar provisions in Chapter IV of the Act have entitled advocates alone to practice the profession of law. This includes practicing before all courts, tribunals, and arbitration panels including the Supreme Court. Further, Section 45 of the Act contemplates imprisonment of up to 6 months for a person who practices in a Court where he is not entitled to practice. The Act was promulgated with an intention to consolidate the different classes of professionals practising law in the country such as advocates, vakils, barrister etc. into a single roll of officers of the court. However, it remains to be seen if such distinction has resulted in new problems in the modern world.

 

Over time with the emergence of specialized services over time requiring particular knowledge, other forums like ITAT, NCLT, NCLAT, SEBI etc. began to allow other professionals like CA, CS, & CMAs to represent their clients. This offered three benefits

1. A professional with specialized knowledge in the domain could better represent clients;
2. It brought down the cost of the client from having to engage multiple professionals for the same matter;
3. A professional was able to offer comprehensive services to clients

However, this idea has not been extended to all courts of law. Once a case has to be appealed at higher levels, at some point, an advocate is required to be engaged. Especially in cases when parties are so aggrieved that they are required to knock at the doors of the Supreme Court. Even for an advocate to be eligible to qualify as an advocate-on-record in the apex court, one year training contract with an advocate-on-record needs to be completed, besides passing prescribed tests. There is no provision for other professionals to act as officers of the Supreme Court whatsoever. This has given the legal profession a stronghold in the courts of law, regardless of the requirement of the case.

 

Often in any commercial transaction or insolvency proceeding, one requires comprehensive knowledge of local laws, business acumen, market research, and liaison support, which may tantamount to the practice of law. One may even require filing and appearances before courts of law. In this new emerging world, there is a need to allow other professionals to represent before Courts of Law. This achieves the following objectives

1. In a world of emerging white-collar crimes with complex transactions, we need transaction auditors, engineers, Insolvency Professionals etc. to present the facts of the case in their entirety;
2. The Government of India aims to make India a hub of International Arbitration which is not possible till a diverse group of professionals are allowed to represent before Indian arbitrators;
3. It assists foreign investors looking for commercial transaction knowledge and business structuring which is usually a domain of financial consultants and company secretaries, but have to engage advocates for vetting legal documents;

This need has already been adopted into the more modern laws such as the Companies Act, 1991 wherein the Adjudicating Authority and the Appellate Tribunal allow for CA, CS, & CMAs, three pillars of professional services in the field of Corporate Governance, to represent before them. A majority of cases before the Income Tax Appellate Tribunal are represented by CAs. Insolvency Professionals have been authorized to represent the needs of their clients during Corporate Insolvency Resolution Process. Civil Engineers and Architects are required to interpret and apply municipal and building laws.

 

However, the Advocates Act, 1961, remains unchanged assuming advocates alone to have the specialization to pursue the same matters before higher courts including the Supreme Court. In fact, the Act prohibits any other professional to offer even non-litigious services to its clients if it falls in the domain of legal opinion.

 

Over the last 60 years, the Indian economy has transitioned into a new cycle of macroeconomic growth which fuelled by liberalization which was not anticipated in 1961. However, we continue to be governed by the provisions of an archaic law which was aimed to solve the problems of a different era. Maybe it’s time to review the 1961 Act so that it is in tune with the current times.