Rule Making Power under Advocates Act, 1961

Project submitted in partial fulfilment of the course Professional Ethics &

Professional Accounting, Semester-IX during the Academic Year 2020-2021.

Submitted by
Faisal Ahmad, 1619
BBA.LLB

Submitted to
Dr. Anshuman

October 2020

Chanakya National Law University

Nyaya Nagar, Mithapur

800001, Patna
 ACKNOWLEDGEMENT

I am feeling highly elated to work on under the guidance of my Professional

Ethics faculty. I am very grateful to him for the exemplary guidance. His
assignment of such a relevant topic made me work towards knowing the subject
with a great interest and enthusiasm.
I owe the present accomplishment of my project to my friends, who helped me
immensely with sources of research materials throughout the project and
without whom I couldn’t have completed it in the present way. I would also like
to thank the library staff for working long hours to facilitate us with required
materials going a long way in quenching our thirst for education. I would also
like to extend my gratitude to my parents and all those unseen hands who
helped me out at every stage of my project.
Finally, I would express my gratitude to The Almighty for obvious reasons.

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 Table of Contents

Objective of the Study............................................................................................................4

Research Methodology...........................................................................................................4

Sources of Data......................................................................................................................4

INTRODUCTION......................................................................................................................5
Rule Making Power of the Executive........................................................................................6
DELEGATED LEGISLATION..........................................................................................6

SUB-DELEGATION............................................................................................................7

Rule Making Power under Advocates Act, 1961.......................................................................8

THE BAR COUNCIL OF INDIA.......................................................................................8

THE STATE BAR COUNCILS........................................................................................12

THE CENTRAL GOVERNMENT..................................................................................13

THE HIGH COURT..........................................................................................................14

CONCLUSION........................................................................................................................15
BIBLIOGRAPHY....................................................................................................................16

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 Objective of the Study
1. To understand the concept of delegated legislation.
2. To study the relevant provisions related to rule making power under the
Advocates Act, 1961.

Research Methodology

The researcher has adopted doctrinal method of research. The researcher has made
extensive use of the library at the Chanakya National Law University and also the
internet sources.

Sources of Data

Primary Sources Secondary Sources

Legislative provisions Books
Case laws Journals
Articles
Websites

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 INTRODUCTION

One of the most significant developments of the present century is the growth in the
legislative powers of the executives. The development of the legislative powers of the
administrative authorities in the form of the delegated legislation occupies very
important place in the study of the administrative law. We know that there is no such
general power granted to the executive to make law it only supplements the law under
the authority of legislature. This type of activity namely, the power to supplement
legislation been described as delegated legislation or subordinate legislation.
Legal practice laws in India are governed by the Advocates Act 1961; an act passed
by the Indian Parliament which provides for laws relating to legal practitioners in
India and to provide for the constitution of the Bar Council of India (BCI) and state
bar councils. Under the powers granted in the Act, the BCI, the State Bar Councils,
the Central Government and the High Courts have power to make rules for practice,
legal education and professional ethics.
The Advocates Act provides for rule making power to the Bar Council of India, the
State Bar Council, the Central Government and the High Court under Section 15,
Section 49, Section 28, Section 49A and Section 34 respectively. The rule making
power provided to anybody other than the legislature is a part of delegated legislation.
This project will deal with the concept of delegated legislation and sub-delegation and
finally arrive at the topic of rule making power enshrined in the Advocates Act, 1961
in detail comprehensively.

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 Rule Making Power of the Executive

DELEGATED LEGISLATION
Delegated legislation (also referred to as secondary legislation or subordinate
legislation or subsidiary legislation) is law made by an executive authority under
powers given to them by primary legislation in order to implement and administer the
requirements of that primary legislation. It is law made by a person or body other than
the legislature but with the legislature's authority.1
The legislature provides the broader framework of the law with necessary objectives
and directions and the technical details are left to the executive to fill in. The
executive are strictly subordinate to the parent act/law and the executive only fills in
how to go about achieving the objective, thus it does not have original powers of rule
making but just enclosed and subordinate power. Any technical/detailed rule writing
done by the executive under delegated legislation would be declared ultra vires, null
and void.
Delegated legislation as a practise is also a result of the growing complexities and
technicalities which are seen in modern day rule making and policy implementation
which the political executive is not aware of at the grass root level and so executives
are called in to fill in the gaps due to their practical experience in the field. Also it
provides relative autonomy to the executive while performing its duties as there are
many unplanned situations that come up and the executive will not waste time to
coordinate with the legislature and immediately frame the rules or law needed and
resolve the situation. And last but not the least it provides time to the legislature to
devote and manage their time in dealing with other important issues as well as minute
rule writing will take up a lot of time.2
Therefore, it is competent for the Legislature to delegate to other authorities the power
to frame rules to carry out the purposes of the law made by it within certain limits. 3
The Legislature is quite competent to delegate to other authorities. To frame the rules
to carry out the law made by it. In D. S. Gerewal v. The State of Punjab 4, K.N.
Wanchoo, the then justice of the Hon’ble Supreme Court dealt in detail the powers of
delegated legislation under the Article 312 of Indian Constitution.
In Raj Narain Singh v. Chairman, Patna Administration Committee 5, the delegation
was held to go to the extent of authorising an executive authority to modify the law
1
2
Administrative Law: Meaning, scope and significance; Dicey on Administrative law; Delegated legislation;
AdministrativeTribunals(August8,2012)athttp://publicadministrationtheone.blogspot.in/2012/08/administrati ve-
law-meaning-scope-and.html (accessed on 30-10-2020)
3
Shailaja B, Delegation of Rule-making Power to the Executive by the Indian Legislature at
http://www.shareyouressays.com/111322/delegation-of-rule-making-power-to-the-executive-by-the-indian-
legislature (accessed on 30-10-2020).
4
AIR 1960 SC 512.
5
AIR 1954 SC 569
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made, but not in any essential feature. It was also observed that what constitutes
essential feature cannot be enunciated in general terms.
SUB-DELEGATION
It has been consistently held by the courts that the delegate on whom the power to
make subordinate legislation is conferred cannot further delegate that power. This
principles finds its origin in the Latin maxim ‘delegatus non potest delegare’ meaning
a delegate cannot himself delegate.6
Thus when an Act prescribes a particular body to exercise a power, it must be
exercised by that body and none else unless the Act by express words or necessary
implication permits such delegation. When a sub-delegation is made, it does not divest
the authority making sub-delegation of his statutory authority.7

6
Suyash Verma, Constitutional Law -Doctrine of Delegated Legislation and the Constitution of India, Desi
Kanoon- Law, Economics and Politics (6th June 2014) at http://www.desikanoon.co.in/2014/06/constitutional-
law-doctrine-of-delegated-legislation.html
7
Ibid.
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 Rule Making Power under Advocates Act, 1961

The Advocates Act provides for rule making power to the Bar Council of India, the
State Bar Council, the Central Government and the High Court. These powers are
discussed below.

THE BAR COUNCIL OF INDIA

The Bar Council of India can make rules under Section 15 of the Advocates Act,
1961, like all other Bar Councils.
Sub-section (2) of Section 15 provides that in particular, and without prejudice to the
generality of the foregoing power, such rules may provide for -
(1) the election of members of the Bar Council by secret ballot including the
conditions subject to which persons can exercise the right to vote by postal ballot, the
preparation and revision of electoral roll and the manner in which the results of
election shall be published;
(2) the manner of election of the Chairman and Vice-Chairman of the Bar Council;
(3) the manner in which and the authority by which doubts and disputes as to the
Chairman or validity of an election to the Bar Council or to the office of the Vice-
Chairman shall be finally decided;
(4) the filling of casual vacancies in the Bar Council;
(5) the powers and duties of the Chairman and the Vice-Chairman of the Bar
Council;
(6) the constitution of one or more funds by a Bar Council for the purpose of
giving financial assistance or giving legal aid or advice referred to in sub-section (2)
of Section 6 and sub-section (2) of Section 7;
(7) organisation of legal aid and advice to the poor, constitution and functions of
committees and sub-committees for that purpose and description of proceedings in
connection with which legal aid or advice may be given;
(8) the summoning and holding of meetings of the Bar Council, the conduct of
business thereat, and the number of members necessary to constitute a quorum;
(9) the constitution and function of any committee of the Bar Council and the term
of office of members of any such committee;
(10) the summoning and holding of meetings, the conduct of business of any such
committee and the number of members necessary to constitute a quorum;
(11) the qualifications and the conditions of service of the Secretary, the accountant
and other employees of the Bar Council;

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(12) the maintenance of books of accounts and other books by the Bar Council;
(13) the appointment of auditors and the audit of the accounts of the Bar Council;
(14) the management and investment of funds of the bar Council.
Sub-section (3) of Section 15 lays down that no rules made under this section by a State Bar
Council shall have effect unless they have been approved by the Bar Council of India.
In Bar Council of India v. Surjeet Singh8, it has been held that Section 15(3) of the Advocates
Act, 1961, cannot override the specific provision/made in Section 3(4) and Section 49(1)(a).
State Bar Council can frame rules for the preparation and revision of electoral roll under
Section 15(2)(a) of the Act.9
Section 15 contains "Rule Making Power" of a Bar Council. Rules may be made by the
Council to carry out the purposes of Chapter II of the Advocates Act, 1961.

General Power of the Bar Council of India to make rules

Sub-section (1) of Section 49 provides that the Bar Council of India may make rules for
discharging its functions under this Act and, in particular, such rules may prescribe —
(a) the conditions subject to which an advocate may be entitled to vote at an election to the
State Bar Council including the qualifications or disqualifications of voters, and the
manner in which an electoral roll of voters may be prepared and revised by a State Bar
Council;
(ab) qualifications for membership of a Bar Council and the disqualification for such
membership;
(ac) the time within which and the manner in which, effect may be given to the proviso to
sub-section (2) of Section 3;
(ad) the manner in which the name of any advocate may be prevented from being entered in
more than one State roll;
(ae) the manner in which the seniority among advocates may be determined:
(af) the minimum qualifications required for admission to a course of degree in law in any
recognised university;
(ag) the class or category of persons entitled to be enrolled as advocates;

General Power of the Bar Council of India to make rules

Sub-section (1) of Section 49 provides that the Bar Council of India may make rules for
discharging its functions under this Act and, in particular, such rules may prescribe —
(a) the conditions subject to which an advocate may be entitled to vote at an election to the
State Bar Council including the qualifications or disqualifications of voters, and the

8
AIR 1980 SC 1612.
9
Ibid.
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 manner in which an electoral roll of voters may be prepared and revised by a State Bar
Council;
(ab) qualifications for membership of a Bar Council and the disqualification for such
membership;
(ac) the time within which and the manner in which, effect may be given to the proviso to
sub-section (2) of Section 3;
(ad) the manner in which the name of any advocate may be prevented from being entered in
more than one State roll;
(ae) the manner in which the seniority among advocates may be determined:
(af) the minimum qualifications required for admission to a course of degree in law in any
recognised university;
(ag) the class or category of persons entitled to be enrolled as advocates;
(ah) the conditions subject to which an advocate shall have the right to practise and the
circumstances under which a person shall be deemed to practise as an advocate in a court;
(b) the form in which an application shall be made for the transfer of the name of advocate
from one state roll to another;
(c) the standard of professional conduct and etiquette to be observed by the advocates;
(d) standards of legal education to be observed by the universities in India and the inspection
of universities for that purpose;
(e) foreign qualifications in law obtained by persons other than citizens of India which shall
be recognised for the purpose of admission as an advocate under this Act;
(f) the procedure to be followed by the Disciplinary Committee of a State Bar Council and
by its own disciplinary committee;
(g) the restrictions in the matter of practice to which senior advocates shall be subject;
(gg) the form of dresses or robes to be worn by advocates, having regard to the climatic
conditions, appearing before any court or tribunal;
(h) the fees which may be levied in respect of any matter under this Act;
(i) general principles for guidance of State Bar Councils and the manner in which directions
issued or orders made by the Bar Council of India may be enforced;
(j) any other matter which may be prescribed;
Provided that no rules made with reference to clause (e) or clause (gg) shall have effect unless they
have been approved by the Chief Justice of India:

Provided further that no rules made with reference to clause (e) shall have effect unless they have
been approved by the Central Government.

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It is, therefore, explained that the standards of professional conduct and etiquette to be observed by
the advocates and form of dresses or robes to be worn by the advocates, having regard to climatic
conditions, appearing before any court or tribunal, shall have effect when they have been approved
by the Chief Justice of India. Further, the rules made with reference to the foreign qualifications in
law obtained by persons other than citizens of India, which shall be recognised for the purpose of
admission as an advocate under this Act, shall have effect when they have been approved by the
Central Government.

Sub-section (2) of Section 49 lays down that notwithstanding anything contained in the first proviso
to sub-section (1), any rules made with reference to clause (c) or clause (gg) of the said sub-section,
and in force immediately before the commencement of the Advocates (Amendment) Act, 1973 (60
of 1973), shall continue in force until altered or repealed or amended in accordance with the
provisions of this Act.

In Mukhtiar Singh v. State10, it has been held that the Bar Council of India framed certain rules in
exercise of its powers under Section 49 of the Advocates Act, 1961. The Rule 49 of the rules have
provided that an Advocate shall not be a full time salaried employee of any person, Government,
firm, corporation or concern, so long as he continues to practise. A proviso has been added to this
rule which excluded its applicability to law officers of Central or State Government or Public
Corporation or a Body constituted by a statute who is entitled to be enrolled under the rules of his
State Bar Council made under Section 28(2)(e) read with Section 24(1)(e) of the Act.11

In L.M. Sundaram V. Director of Legal Studies,12 Madras High Court has held that the prescription
made by the Bar Council of India in the rules framed by them regarding attendance in a regular
Course in a college or the prescription regarding a particular percentage of attendance at such
lectures in law relating to professional qualification necessary for practising the profession of an
Advocate are constitutional and they cannot be said to violate Article 14 or Article 19(1)(g) of the
Constitution of India.13

In V. Sudeer v. Bar Council of India14 the Supreme Court has held that rule-making power under
Section 49(1)(ah) deals with a situation which is post-enrolment of an advocate and does not deal
with pre-enrolment situation for a candidate seeking enrolment. The Supreme Court further held that
rules prescribing additional qualification of pre-enrolment, training and examination for being

10
AIR 1991 P&H 20.
11
Ibid.
12
AIR 1981 Madras 198.
13
Ibid.
14
(1999) 3 SCC 176
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qualified to be enrolled as an advocate are ultra vires the rule making power of Bar Council of which
is available under the Advocates Act, 1961.

THE STATE BAR COUNCILS

The State Bar Council has been given rule-making powers. Section 28 provides that a State Bar
Council may make rules to carry out the purposes of Chapter III (Section 16 to Section 27) of this
Act.

Sub-section (2) of Section 28 provides that in particular, and without prejudice to the generality of
the foregoing power, such rules may provide for:

a) the time within which and form in which an advocate shall express his intention for the entry
of his name in the roll of a State Bar Council under Section 20;
b) the form in which an application shall be made to the Bar Council for admission as an
advocate on its roll and the manner in which such application shall be disposed of by the
enrolment committee of the Bar Council;
c) the conditions subject to which a person may be admitted as an advocate-On any such roll;
d) the instalments in which the enrolment fee may be paid.

Sub-section (3) of Section 28 makes it clear that no rules made under this Chapter shall have effect
unless they have been approved by the Bar Council of India.

It may, however, be noted that under Section 28, the State Bar Council is empowered to make rules
prescribing the term within which and the manner in which, an intention to practise within the
jurisdiction of the Bar Council shall be expressed, the form in which an application for enrolment as
an advocate may be made, the conditions subject to which a person may be admitted as an advocate
and the instalments in which the enrolment fee may be made.

Rules made by the State Bar Council, however, are subject to the approval of the Bar Council of
India. In Gummala Purshottam Reddy v. Bar Council of Andhra Pradesh15, it has been held that "rule
making power" of the State Bar Council is not limited to procedural matters only. However, there is
nothing in the language of the Section 28 to justify the limiting of rule making powers to mean
laying of procedure only. The rule making power can take in both substantive and procedural
provisions.

15
(1986) 1 APLJ 30
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In Re Mahabir Prasad16, the Patna High Court has held that Rule 2(1) of Patna Bar Council required
that before a person could be enrolled as an Advocate, he shall have received training in the
Chambers of an Advocate or had read in chamber with a Barrister in England. His experience as a
Librarian did not entitle him to the exemption of training for enrolment as a lawyer.17

THE CENTRAL GOVERNMENT

Under sub-section (1) of Section 49-A of the Advocates Act, 1961, it has provided that the Central
Government may by notification in the Official Gazette, make rules for carrying out the purposes of
this Act including rules with respect to any matter for which the Bar Council of India or a State at
Council has power to make rules.

According to sub-section (4), the provisions of the rule so made by a Bar Council must not be
repugnant to the provisions of the rules made by the Central Government and the rule made by the
Bar Council shall, to the extent of the repugnancy be void.

Sub-section (5) provides that every rule made under this section shall be laid, as soon as may be after
it is made, before each House of Parliament, while it is in session for a total period of thirty days
which may be comprised in one session or in two or more successive sessions, and if before the
expiry of the session immediately following the session or the successive sessions aforesaid, both
Houses agree in making any modification in the rule or both Houses agree that the rule should not be
made, the rule shall thereafter have effect only in such modified form or be of no effect as the case
may be, so, however, that any such modification or annulment shall be without prejudice to the
validity of anything previously done under that rule.

Section 60 of the act says that the power to make rules shall be exercisable by the Central
Government, until rules in respect of any matter under this act are made by State Bar Council and
approved by the Bar Council of India. The Central Government after consultation with the Bar
Council of India can make rules under subsection (1) either for any state or council or generally for
all State Bar Council and the rules so made will be in effect irrespective of anything contained in this
act. Any rules made by the central government under this section for any state bar council and in
respect of the same matter, rules made by the state bar council and approved by the bar council of
India, the central government may direct that the rules it in respect of such matter shall cease to be in
force in relation to that bar council.

16
AIR 1962 Patna 1.
17
Ibid.
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 THE HIGH COURT
The rule making of the High Court is provided under Section 34 of the Act. It says that -

(1) The High Court may make rules laying down the conditions subject to which an advocate
shall be permitted to practise in the High Court and the courts subordinate thereto.

(1A) The High Court shall makes rules for fixing and regulating by taxation or otherwise the fees
payable as costs by any party in respect of the fees of his adversary's advocate upon all
proceedings in the High Court or in any Court subordinate thereto.

(2) Without prejudice to the provisions contained in subsection (1), the High Court at Calcutta
may make rules providing for the holding of the Intermediate and the Final examination for
articled clerks to be passed by the persons referred to in section 58AG for the purpose of
being admitted as advocates on the State roll and any other matter connected therewith.

Thus, the High Court can make rules in the matter subject to which an advocate will be permitted to
practise law in the high court and the subordinate courts. The high courts can make rules in
accordance with the provisions of subsection (1A) and (2) and it shall not cause any change to the
provisions contained in subsection (1).

CONCLUSION

Delegation of powers means those powers, which are given by the higher authorities to the
lower authorities to make certain laws, i.e., powers given by the legislature to administration
to enact laws to perform administration functions. There is a limit beyond which delegation
may not go. The limit is that essential powers of legislation cannot be delegated.
The essential legislative power consists of the determination or choice of the legislative
policy and of formally enacting that policy into a binding rule of conduct. The legislature,
therefore, may not delegate its function of laying down legislative policy to an outside
authority in respect of a measure and its formulation as a rule of conduct. So long as a policy
is laid down and a standard or limit established by statue no unconstitutional delegation of
legislative power is involved in leaving to the executive the making of subordinate rules
within the prescribed limits and the determination of facts to which the legislation is to apply.

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Thus, rule-making power is provided to the Bar Council of India under Section 15 & 49, the
State Bar Councils under Section 28, the Central Government under Section 49-A & 60 and
the High Court under Section 34 of the Advocates Act, 1961.

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 BIBLIOGRAPHY

Statutes

 Advocates Act, 1961

Books

 C.K. Takwani, Lectures on Administrative Law (2007) Eastern Book Company, Lucknow

Articles

 Administrative Law: Meaning, scope and significance; Dicey on Administrative law; Delegated
legislation; Administrative Tribunals (August 8, 2012) at
http://publicadministrationtheone.blogspot.in/2012/08/administrative-law-meaningscope-and.html
 Suyash Verma, Constitutional Law -Doctrine of Delegated Legislation and the Constitution of India,
Desi Kanoon- Law, Economics and Politics (6th June 2014) at
http://www.desikanoon.co.in/2014/06/constitutional-law-doctrine-of-delegatedlegislation.html
 Shailaja B, Delegation of Rule-making Power to the Execu-tive by the Indian Legislature at
http://www.shareyouressays.com/111322/delegation-of-rule-makingpower-to-the-executive-by-the-
indian-legislature

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