Advocates Amendment Bill 2023 – Study Notes for UPSC

The Advocates Amendment Bill, 2023 was introduced in the Rajya Sabha on 1 August 2023. It amends the Advocates Act, 1961. The Bill repeals certain sections relating to promotion under the Legal Practice Act, 1879. The Act, 1961 consolidates the law relating to with lawyers and form the Bar Councils and the All India Bar Association.

During the debate on the Advocates (Amendment) Bill, 2023 in the Lok Sabha, Law Minister Arjun Ram Meghwal said that the central government is open to the policy of transferring high court judges. The Act was passed by the Lok Sabha.

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About Advocates Amendment Bill 2023

• The Advocates (Amendment) Bill, 2023 was introduced in the Rajya Sabha in August 2023.
• It supplements the Advocates Act 1961. The Bill repeals certain sections relating to advertising under the Legal Practice Act 1879.
• The 1961 Act unifies the law relating to lawyers and establishes the Bar Councils and the All India Bar Association.
• The bill, which has already been passed in the Rajya Sabha during the monsoon session, aims to regulate the legal profession in a single act and seeks to target touts.

Key features of the Advocates Amendment Bill 2023

Key features of the Bill include:

• Touts: The Bill provides that every High Court, District Judge, Sessions Judge, District Magistrate and officer (not below the level of District Collector) may compile and publish lists of touts. A tout applies to a person who: (i) either proposes to procure or procures the employment of a lawyer in a legal firm for any payment, or (iii) visits places such as precincts of civil or criminal courts, revenue offices or railway stations to obtain such secured employment. The Court or Judge may exclude from the Court premises any person whose name appears on the list of touts.

• Preparation of lists: Authorities empowered to compile and publish a list of promoters may direct subordinate courts to investigate the conduct of persons suspected or suspected of promoting. As soon as such a person is proven to be a tout, the authority can include his name in the list of touts. No person shall be included in these lists without being given an opportunity to show cause against his inclusion.

• Penalty: Any person who acts as a tout while his name appears in the list of touts shall be punished with imprisonment for a term which may extend to three months, with fine which may extend to Rs.500 or with both.

Aims of the Advocates Amendment Bill 2023

The new Bill now amends the 1961 Act by inserting a new provision right after Section 45, which prescribes six months of imprisonment for persons illegally practicing in courts and before other authorities.

The new provision, Section 45A, states that the Bill enables every HC and district judge to frame and publish lists of touts. However, no person’s name will be included in any such list until they have had an opportunity to show cause against such inclusion.

Further, any authority empowered to make lists of alleged or suspected touts can send them to any subordinate court, which, after holding an inquiry into the conduct of such persons, will allow them an opportunity to show cause. After this, the lower court will report back to the authority ordering the inquiry.

If proven to be a tout, the person’s name will be included in the list of touts that will be published by the authority and hung in every court. The court or judge may exclude any person whose name is included in any such list from the court’s vicinity.

Additionally, this provision punishes anyone acting as a tout “while his name is included in any such list” with imprisonment up to three months, a fine that may extend to five hundred rupees, or both.

Section 45A of the new Bill is analogous to Section 36 of the 1879 Act. However, the 1961 Act did not include the provision. This is exactly what the new Bill sought to remedy.

Doing so would “reduce the number of superfluous enactments in the statute book,” says the Bill’s accompanying Statement of Objects and Reasons. Keeping in line with the government’s policy of repealing all obsolete laws or pre-independence Acts that have lost their utility, and in consultation with the Bar Council of India, the government decided to repeal the Legal Practitioners Act and amend the Advocates Act.

What is Legal Practitioners Act 1879?

• Aim- To consolidate and amend the law relating to Legal Practitioners in certain provinces.
• Application- The Act initially extended to areas in West Bengal, Uttar Pradesh, Punjab, Bihar, Madhya Pradesh, Assam, Orissa, and Delhi.
• Any state government could, by notification in the Official Gazette, extend it to their States.
• Legal practitioner– Section 2 of the 1879 Act defined the term “legal practitioner” to include advocates, vakils, or attorneys of any High Court.
• Tout- It also introduced a new definition of the term “tout”.

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What is Advocates Act 1961?

• Aim- To create a single class of legal practitioners known as “advocates.”
• All India Bar Council- It established the council consisting of the Attorney General of India, the Solicitor General of India, and one representative from each State Bar Council, elected by its members.
• Bar Council of India- It empowers the body to make rules on matters such as legal education, professional conduct, legal aid, and recognition of foreign qualifications.
• Advocates- It defines an advocate as a person who is enrolled in any State Bar Council and who is entitled to practice law before any court or authority in India.
• Tout provisions-The Act repealed a majority of the 1879 Act but left behind provisions relating to its extent, definitions, and powers to frame and publish lists of touts.

Why there is a need to amend the bill?

• Aim-
  • To amend the Advocates Act, 1961 and
  • To repeal obsolete provisions of the Legal Practitioners Act, 1879.
• Tout as offence- The bill seeks to make the offence of touting as punishable and empowers judges to publish a list of offenders.
• Efficiency- It is amended to reduce the number of superfluous enactments in the statute book and repeal all obsolete laws.
• Productiveness- To keep in line with the government’s policy of repealing all obsolete laws or pre-independence Acts that have lost their utility,
• Ethical regulation- The bill aims to ensure the regulation of legal profession and protect the interests of advocates and public.
• Consultation-The bill provides provision to consult with the Bar Council of India on the reguilation of legal profession.

What are the key provisions of the bill?

• Touts- The Bill provides that every High Court, district judge, sessions judge, district magistrate, and revenue officer (not below the rank of a district collector) may frame and publish lists of touts.
• Conduct inquiry– The authorities empowered to frame and publish the list of touts may order subordinate courts to hold an inquiry into the conduct of persons alleged or suspected to be touts.
• Publish the list- If proven to be a tout, such person’s name will be included in the list of touts that will be published by the authority and hung in every court.
• Exclusion- The court or judge may exclude from the premises of the Court any person whose name is included in the list of touts.
• No person will be included in such lists without getting an opportunity of showing cause against his inclusion.
• Penalty- Any person who acts as a tout while his name is included in the list of touts will be punished with
  • Imprisonment up to 3 months,
  • Fine up to Rs 500, or both.

• Illegal practise– The bill inserts a new provision in Section 45 of the Advocates Act, 1961,

•  which prescribes 6 months of imprisonment for persons illegally practising in courts and before other authorities.

What is the Process of Appointment of High Court Judges?

• Under Article 217 of the Constitution of India, the President appoints High Court judges.
• The Chief Justice of a High Court is appointed by the President after consultation with the Chief Justice of India (CJI) and the Governor of the state concerned.
• For appointment of other judges, the Chief Justice of the concerned High Court is also consulted.
• This consultation process has been interpreted by the Supreme Court in the Third Judges case (1998) in the following manner:
  • The CJI has to consult a collegium of two senior-most judges of the Supreme Court.
  • After consultation, the CJI recommends names to the President for appointment.
  • The President, in case of objection, can send the recommended names back to the collegium, to reconsider, with reasons in writing.
  • After reconsideration, if the collegium reiterates its recommendations, the President has to appoint the recommended names as Judges.
• Transfer of Judges:
  • Currently, the President can transfer a judge from one High Court to another, after consulting the Chief Justice of India.

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