What is the Law on fake advocates? What are the safeguards, the legal redressal that the Law and its attendant Rules offer the lay person when confronted with fake advocates?
(k) Fake Person is a person who is involved in practicing in Courts of Law/Tribunals or other Legal forums without having a valid Degree in Law (without any enrolment in any State Bar Council) and use to appear in such Courts, Tribunals or Forums illegally posing him as an Advocate.
Chapter 1 4(k) Bar Council of India Certificate and Place of practice (Verification) Rules 2015
Sections 29 and 33 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.
33. Advocates alone entitled to practise.—Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act.
Proviso to Section 26(1) of the Advocates Act, 1961
Provided that the Bar Council of India may, if satisfied, either on a reference made to it in this behalf or otherwise, that any person has got his name entered on the roll of advocates by misrepresentation as to an essential fact or by fraud or undue influence, remove the name of such person from the roll of advocates after giving him an opportunity of being heard.
Section 45 of the Advocates Act, 1961
45. Penalty for persons illegally practising in courts and before other authorities.—Any person who practises in any court or before any authority or person, in or before whom he is not entitled to practise under the provisions of this Act, shall be punishable with imprisonment for a term which may extend to six months.
Removal Proceedings of Fake Advocates: Rules 1 & 2 Chapter VII Part II the Bar Council of India Rules
Proceedings for removal of name from roll under proviso to Section 26(1) of the Act
- Whenever a State Council, or any Committee duly authorised by the State Council has credible information from any source whatever that an advocate on the roll of the State Council has obtained his enrolment under circumstances which, if established, will render his name liable to be removed by the Council under the proviso to Section 26 (1) of the Act, it shall be the duty of the State Council or the said Committee to enquire into the matter and report its findings to the Council.
In holding such enquiry the Council or the Committee shall hear the advocate concerned and otherwise follow the principles of natural justice.
- In disposing of any proceedings under the said proviso, whether instituted on a report under Rule 1 or otherwise, the Council may, if it considers it just and expedient, cause an enquiry into disputed questions of fact to be made by any State Council or Committee thereof or any other Committee consisting of one or more persons as it may deem fit. The State Council or the Committee, as the case may be, shall follow the procedure mentioned in Rule 1.
Powers of the Courts: Ss.34 & 52 of the Advocates Act, 1961
High Court
34. Power of High Courts to make rules.—(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.
Supreme Court
52. Saving.—Nothing in this Act shall be deemed to affect the power of the Supreme Court to make rules under article 145 of the Constitution—
(a) for laying down the conditions subject to which a senior advocate shall be entitled to practise in that Court;
(b) for determining the persons who shall be entitled to act or plead in that Court.
Power to demand ID Card: Chapter VII Rule 22.3 of Bar Council of India Certificate and Place of practice (Verification) Rules 2015
5. Necessity of “Certificate of Practice”
An advocate shall not be entitled to practice law unless he holds a valid and verified certificate of practice issued either under All India Bar Examination Rules or under these Rules.
22.3 All the Advocates whose certificate of Practice are duly verified shall be issued a certificate of Practice affixing his photograph and mentioning the period of its validity FORM ‘B’ ; And the State Bar Council shall also issue an Identity card to such Advocates containing a Xerox copy of his photograph and the period of its validity FORM ‘D’. The Advocates would be supposed to carry it while practicing in Courts/ Tribunals or other Forums, so that in case of demand by any Law Court/Authority or any Advocate or any Litigant or citizen one can easily establish that he is an Advocate.
Article 19(1)(g) read with 19(6) of the Constitution of India
Article 19. Right to Freedom
19.(1) All citizens shall have the right—
(g) to practise any profession, or to carry on any occupation, trade or business.
19. (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business,
Article 21. Protection of life and personal liberty.
21. No person shall be deprived of his life or personal liberty except according to procedure established by law.