Sec 30 Advocates Act 1961 and Transfer of Enrollment.
Dear Fraternity,
I am an Advocate presently enrolled under the Bar Council of Maharashtra and Goa. I plan to avail an opportunity which has presented itself and practise as an articled clerk under an Advocate on Record in Delhi for about two years to gain better understanding of the Supreme Court procedures. Now I’m in a dilemma whether I should transfer my enrollment to Delhi for these two years or is it no longer necessary in the light of the the Government of India of June 15 2011 of Section 30 of the Advocates Act which provides: “Right of advocates to practice: Subject to the provisions of this Act, every advocate shall be entitled as of right to practise throughout the territories to which this Act extends; in all courts including the Supreme Court; before any tribunal or person legally authorised to take evidence; and before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice”.
However under the Bar Council of India Rules 1975,
CHAPTER - III
1. Every advocate shall be under an obligation to see that his name appears on the roll of the State Council within whose jurisdiction he ordinarily practices.
PROVIDED that if an advocate does not apply for transfer of his name to the roll of the State Bar Council within whose jurisdiction he is ordinarily practising within six months of the start of such practice, it shall be deemed that he is guilty of professional misconduct within the meaning of Section 35 of the Advocates Act.
2. An advocate shall not enter into a partnership or any other arrangement for sharing remuneration with any person or legal practitioner who is not an advocate.
3. Every advocate shall keep informed the Bar Council on the roll of which his name stands, of every change of his address.
4. The Council or a State Council can call upon an advocate to furnish the name of the State Council on the roll of which his name is entered, and call for other particulars.
My question is
Does Section 30 Advocates Act override the BCI Rules?
3 Replies
I am of the personal view that with the enforcement of Sec.30 of the Act, the impugned rule in question relating to transfer of enrolment has now become redundant. However, let us await further views from other experts.
When a Principal Act is supplemented with subordinate Rules or Regulations, the Rules nad Regulations govern the issues dealt with therein.
The provisions in the Principal Act remain enabling provisions only.
The subordiante legislations can reduce the ambit of certain areas of the Principal Act.
the Parlimament has empowered the Bar Councils under Sec. 49 (1) (ad) of the Advocates Act, 1961 in this regard.
Sec. 30 of the Act cannot override the Rules.
the word ‘nad’ in my reply may please be read as ‘and’.
Incovenience regretted.
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