Advocates Act, 1961 - Chapter VII

Section 58AF of the Advocates Act, 1961 - Special Provisions in Relation to Jammu and Kashmir

Section 58AF contains transitional provisions concerning advocates and other legal practitioners in the former State of Jammu and Kashmir when the Advocates Act, 1961 was extended to that State. It dealt with admission to the State roll, preservation of existing practice rights and repeal of corresponding local law.

Current legal context: Section 58AF is a historical transitional provision. The Jammu and Kashmir Reorganisation Act, 2019 reorganised the former State into the Union territory of Jammu and Kashmir and the Union territory of Ladakh. Adaptation orders issued after reorganisation omitted Section 58AF for the reorganised Union territories. The statutory wording reproduced below is retained for historical and interpretive reference.

What is Section 58AF of the Advocates Act?

Section 58AF was enacted to ensure continuity when the Advocates Act framework was extended to Jammu and Kashmir. It addressed advocates already entitled to practise in the High Court, other legal practitioners practising under local law, persons in public service who would otherwise have been entitled to practise, and the repeal of corresponding local legislation.

Section 58AF - Statutory Text

58AF. Special provisions in relation to Jammu and Kashmir.

(1) Notwithstanding anything contained in this Act, all advocates who, immediately before the date on which the provisions of Chapter III are brought into force in the State of Jammu and Kashmir, were entitled to practise in the High Court of that State, or who would have been so entitled had they not been in public service on the said date, shall, for the purpose of clause (a) of sub-section (1) of section 17, be deemed to be persons who were entered as advocates on the roll of a High Court under the Indian Bar Councils Act, 1926 (38 of 1926), and every such person may, on an application made in this behalf within such time as may be specified by the Bar Council of India, be admitted as an advocate on the State roll maintained in respect of the said State.

(2) Notwithstanding anything contained in this Act, every person who, immediately before the date on which the provisions of Chapter III are brought into force in the State of Jammu and Kashmir, was entitled otherwise than as an advocate to practise the profession of law (whether by way of pleading or acting or both) by virtue of the provisions of any law in force in the said State, or who would have been so entitled had he not been in public service on the said date, may be admitted as an advocate on the State roll maintained in respect of the said State, if he:

(i) makes an application for such enrolment in accordance with the provisions of this Act; and

(ii) fulfils the conditions specified in clauses (a), (b), (c) and (f) of sub-section (1) of section 24.

(3) Notwithstanding anything contained in this Act, every person who, immediately before the date on which the provisions of Chapter IV are brought into force in the State of Jammu and Kashmir, was practising the profession of law (whether by way of pleading or acting or both or in any other way) by virtue of the provisions of any law in force therein, or who does not elect to be or is not qualified to be enrolled as an advocate under sub-section (1) or sub-section (2), shall, notwithstanding the repeal by this Act of the relevant provisions of such law, continue to enjoy the same rights as respects practice in any court or revenue office or before any other authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed, or, as the case may be, to which he was subject, immediately before the said date and accordingly the relevant provisions of the law aforesaid shall have effect in relation to such persons as if they had not been repealed.

(4) On the date on which this Act or any part thereof comes into force in the State of Jammu and Kashmir, the law in force in that State which corresponds to this Act or such part thereof and which does not stand repealed by virtue of the provisions of section 50 of this Act shall also stand repealed.

Clause-wise Explanation of Section 58AF

Section 58AF(1): Existing High Court advocates

Sub-section (1) applied to advocates who were entitled to practise in the High Court of Jammu and Kashmir immediately before Chapter III of the Advocates Act came into force there. It also covered persons who would have been entitled to practise but for being in public service on that date.

For the purpose of Section 17(1)(a), such persons were deemed to have been advocates entered on a High Court roll under the Indian Bar Councils Act, 1926. They could apply within the time specified by the Bar Council of India for admission to the State roll.

Section 58AF(2): Other legal practitioners

Sub-section (2) dealt with persons who were entitled to practise the profession of law otherwise than as advocates under the local law then in force. They could be admitted as advocates if they applied in accordance with the Advocates Act and satisfied the specified conditions in Section 24(1).

Section 58AF(3): Continuing practice rights

Sub-section (3) protected persons who were practising law immediately before Chapter IV became operative but who did not elect to enrol, or were not qualified for enrolment, under sub-sections (1) or (2). Their existing rights of practice and disciplinary arrangements continued notwithstanding repeal of the earlier law.

Section 58AF(4): Repeal of corresponding local law

Sub-section (4) provided that when the Advocates Act, or any part of it, came into force in Jammu and Kashmir, any corresponding local law that had not already been repealed under Section 50 also stood repealed.

Meaning of Related Provisions

Section 17 - State roll of advocates

Section 17 requires a State Bar Council to prepare and maintain a State roll. Section 58AF(1) used a deeming provision so that qualifying Jammu and Kashmir advocates could enter the Advocates Act enrolment framework.

Section 24 - Persons who may be admitted as advocates

Section 24 specifies qualifications for admission as an advocate on a State roll. Section 58AF(2) incorporated only the conditions identified in clauses (a), (b), (c) and (f) of Section 24(1) for the transitional category described there.

Chapter III - Admission and enrolment

Chapter III governs State rolls, qualifications and disqualifications for enrolment, applications for admission and related enrolment matters. Section 58AF(1) and (2) were transitional gateways into that statutory system.

Chapter IV - Right to practise

Chapter IV contains provisions governing the right of advocates to practise. Section 58AF(3) preserved specified pre-existing practice rights during the transition.

Section 50 - Repeal of earlier enactments

Section 50 repealed specified enactments and provisions relating to legal practitioners. Section 58AF(4) supplemented that repeal mechanism for corresponding Jammu and Kashmir law.

Current Position After the Jammu and Kashmir Reorganisation Act, 2019

The Jammu and Kashmir Reorganisation Act, 2019 reorganised the former State of Jammu and Kashmir into two Union territories with effect from October 31, 2019: the Union territory of Jammu and Kashmir and the Union territory of Ladakh. The Act also contains special provisions concerning the common High Court, the Bar Council and advocates.

Subsequent adaptation orders modified the application of Central laws to the reorganised territories. In those adaptation schedules, Section 58AF of the Advocates Act was omitted for the reorganised Union territories. Accordingly, Section 58AF should now be understood primarily as a historical and transitional provision concerning the earlier extension of the Advocates Act to the former State.

Key Points About Section 58AF

Official Sources

For the Advocates Act, 1961, refer to India Code - Advocates Act, 1961. For the post-2019 territorial and institutional framework, refer to India Code - Jammu and Kashmir Reorganisation Act, 2019.