Section 5 of the Advocates Act, 1961 - Bar Council to be Body Corporate

Section 5 of the Advocates Act, 1961 gives every Bar Council a separate and continuing legal personality. In practical terms, a Bar Council does not cease to exist merely because its members change. It may hold property, enter into contracts, and sue or be sued in its own name.

Text of Section 5 - Bar Council to be Body Corporate

What Does Section 5 of the Advocates Act Mean?

Section 5 establishes the legal status of the Bar Councils constituted under the Advocates Act, 1961. The provision enables each Bar Council to function as an institution in its own name rather than merely as a collection of individual members.

This corporate status supports continuity in administration, ownership of assets, contractual arrangements, and legal proceedings. The membership or office-bearers of a Bar Council may change from time to time, but the Bar Council itself continues as the same legal body.

Definitions and Key Expressions in Section 5

1. Bar Council

In the context of Section 5, the expression refers to a Bar Council constituted under the Advocates Act, 1961, including the State Bar Councils constituted under Section 3 and the Bar Council of India constituted under Section 4.

2. Body corporate

A body corporate is an entity recognised by law as having a legal identity of its own. Section 5 expressly gives every Bar Council corporate status so that it can hold rights, undertake obligations, own property, contract, and participate in legal proceedings in its own name.

3. Perpetual succession

Perpetual succession means that the legal existence of the Bar Council continues despite changes in its members, Chairman, Vice-Chairman, elected representatives, or other office-bearers.

4. Common seal

The expression "common seal" refers to the formal seal of the corporate body. Section 5 includes a common seal among the attributes of every Bar Council.

5. Power to acquire and hold property

A Bar Council may acquire and hold both movable property and immovable property in its own institutional name. This enables it to own and administer assets required for carrying out its statutory functions.

6. Power to contract

Section 5 authorises a Bar Council to enter into contracts as a legal entity. Contractual rights and liabilities therefore attach to the Bar Council as an institution, subject to the Advocates Act, applicable rules, and general law.

7. Sue and be sued

A Bar Council may bring legal proceedings in the name by which it is known and may also be proceeded against in that name. The corporate identity created by Section 5 therefore provides procedural continuity in litigation.

Legal Effect of Section 5

The principal effect of Section 5 is to ensure that a Bar Council has an institutional legal identity distinct from the changing individuals who compose it. The provision is important for the stable administration of the statutory functions assigned to State Bar Councils and the Bar Council of India.

• The Bar Council continues to exist even when its membership changes.
• Property can be held in the name of the Bar Council.
• The Bar Council can enter into legally enforceable contracts.
• Legal proceedings may be instituted by or against the Bar Council in its own name.
• Institutional rights and liabilities are not dependent on the tenure of any particular member or office-bearer.

How Section 5 Relates to Sections 3, 4, 6 and 7

Section 5 should be read with the surrounding provisions in Chapter II of the Advocates Act, 1961. Section 3 provides for State Bar Councils, while Section 4 provides for the Bar Council of India. Section 5 gives these Bar Councils corporate legal status.

The statutory functions of State Bar Councils are dealt with in Section 6, and the functions of the Bar Council of India are dealt with in Section 7. Section 5 supplies the legal personality through which those statutory bodies can own assets, contract, and litigate while performing their functions.

Official Reference

The official text and current structure of the Advocates Act, 1961 can be checked on India Code, the Government of India legislative database.

India Code - The Advocates Act, 1961