Professional Ethics

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Professional Ethics[1]

         QUESTION BANK

1. What do you understand by “Professional Ethics”? Explain its importance to the legal profession.
2. What are the norms of professional ethics? Explain with special reference to-
3. a) Advocate and profession, and
4. b) Advocate and witness.
5. Explain various duties of an advocate to the client.
6. Discuss briefly- “Standards of professional conduct and Etiquettes”.
7. Discuss the duties of an advocate towards court and opponent lawyer.
8. Explain in detail the meaning, nature and need of professional ethics.
9. “Law being fraternity, the profession is entitled to loyal support of its members in the maintenance of certain high traditions”. Elucidate this statement evaluate the role of a lawyers.
10. Can an advocate refuse a brief, if a client comes with proper instructions and is prepared to pay fair and proper fees?
11. What the counsel owes to his client?
12. State duties of lawyers to his opponents and colleagues.
13. What are the counsel owes to the Court.
14. Explain in detail Bar Council of India Rules on standards of professional conduct and Etiquettes.
15. Discuss the duties of Advocate’s towards the court.

Short Notes

1. Nature of legal profession.
2. Lawyers’ duty to public.
3. Need of professional ethics.
4. Duties towards opponent lawyer.
5. Duties towards client.
6. Advocate’s duty to his colleagues.
7. Advocate’s duty to opponent.
8. Advocates right to practice.
9. Refusal to accept brief.
10. Lawyers’ duty towards court.

I. Introduction-

          ‘Professional Ethics’ is the code of conduct for lawyers. It is the code which lawyers have to observe for themselves,  public at large, their clients and towards courts while practising the profession. The code is necessary for maintaining dignity and the development of the legal profession.

          Professional ethics are the professional etiquettes which lawyers have to adopt in their profession. The lawyers not only observe decency, elegance and dignity in their profession, but they must also maintain a cordial relationships with colleagues and judges.

          The Code of conduct or principles of ethics are mentioned in Advocates Act, 1961. They were mentioned in Legal Practitioners Act, 1879 also (the Act is no more in existence after coming into force of the Advocates Act 1961).

II.Standards of Professional Conduct and Etiquette[2]–

1. 49 (1) (c) of the Advocates Act 1961, has empowered the Bar Council of India to frame rules prescribing standards for professional ethics and etiquette. The Bar Council of India, as per the power granted to it, has framed the following standards for professional ethics and etiquettes for Advocates, viz.

(A) Advocate’s duties towards the Court-

          Section I of the Bar Council of India Rules provides for the advocate’s duties towards the Court. There are 10 rules in the section viz.       

1. Act in a dignified manner[3]–

During the presentation of his case and also while acting before a court, an advocate should act in a dignified manner. He should at all times conduct himself with self-respect. However, whenever there is a proper ground for a serious complaint against a judicial officer, the advocate has a right and duty to submit his grievance to the proper authorities.

2. Respect the court[4]–

An advocate should always show respect toward the court. An advocate has to bear in mind that the dignity and respect maintained towards judicial office are essential for the survival of a free community.

3. Not to communicate in private[5]–

An advocate should not communicate in private to a judge concerning any matter pending before the judge or any other judge. An advocate should not influence the decision of a court in any matter using illegal or improper means such as coercion, bribe etc.

4. Refuse to act in an illegal manner towards the opposition[6]–

An advocate should refuse to act illegally or improperly towards the opposing counsel or the opposite parties. He shall also use his best efforts to restrain and prevent his client from acting in any illegal, improper manner or using unfair practices in any matter towards the judiciary, opposite counsel or the opposite parties.

5. Refuse to represent clients who insist on unfair means[7]–

An advocate shall refuse to represent any client who insists on using unfair or improper means. An advocate shall excise his own judgment in such matters. He shall not blindly follow the instructions of the client. He shall be dignified in the use of his language in correspondence and during arguments in court. He shall not scandalously damage the reputation of the parties on false grounds during pleadings. He shall not use imperative language during arguments in court.

6. Appear in proper dress code-

An advocate should appear in court at all times only in the dress prescribed under the Bar Council of India Rules, and his appearance should always be presentable.

7. Refuse to appear in front of relations[8]–

An advocate should not enter an appearance, act, plead or practice in any way before a judicial authority if the sole or any member of the bench is related to the advocate as a father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law etc.

8. Not to wear bands or gowns in public places-

An advocate should not wear bands or gowns in public places other than the court and on such ceremonial occasions and at such places as the Bar Council of India or as the court may prescribe.

9. Not to represent establishments of which he is a member[9]–

An advocate should not appear in or before any judicial authority for or against any establishment, if he is a member of the management of that establishment. This rule does not apply to a member appearing as “amicus curiae” or without a fee on behalf of the Bar Council, Incorporated Law Society or a Bar Association.

10. Not to appear in matters of pecuniary interest[10]–

An advocate should not act or plead in any matter in which he has financial interests. For instance, he should not act in a bankruptcy petition when he is also a creditor of the bankruptcy. He should also not accept a brief from a company of which he is a Director.

11. Not to stand as surety for a client[11]–

An advocate should not stand as a surety or certify the soundness of a surety that his client requires for the purpose of any legal proceedings.

(B) Advocate’s duties towards the Client-

          Section II of the Bar Council of India Rules provides for the advocate’s duties to the Client. There are 33 rules in the section.

1. Bound to accept briefs[12]–

An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practise. He should levy fees which are at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.

2. Not to withdraw from service[13]–

An advocate should not ordinarily withdraw from serving a client once he has agreed to serve him. He can withdraw only if he has a sufficient cause and by giving reasonable and sufficient notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued to the client.

3. Not to appear in matters where he himself is a witness[14]–

An advocate should not accept a brief or appear in a case in which he himself is a witness. If he has a reason to believe that in due course of events, he will be a witness, then he should not continue to appear for the client. He should retire from the case without jeopardising his client’s interest.

4. Full and frank disclosure to client[15]–

An advocate should, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgement in either engaging him or continuing the engagement.

5. Uphold the interest of the client-

It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means. An advocate shall do so without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused. An advocate should always remember that his loyalty should be to the law and his client.

6. Not to suppress material or evidence[16]–

An advocate appearing for the prosecution of a criminal trial should conduct the proceedings in a manner that does not lead to a conviction of an innocent. An advocate shall by no means suppress any material or evidence which shall prove the innocence of the accused.

7. Not to disclose the communications between the client and himself-

An advocate should not by any means, directly or indirectly, disclose the communications made by his client to him. He also shall not disclose the advice given by him in the proceedings. However, he is liable to disclose if it violates Section 126 of the Indian Evidence Act of 1872.

8. An advocate should not be a party to stir up or instigate litigation.

9. An advocate should not act on the instructions of any person other than his client or the client’s authorised agent.

10. Not to charge depending on the success of matters[17]–

An advocate should not charge for his services depending on the success of the matter undertaken. He also shall not charge for his services as a percentage of the amount or property received after the success of the matter.

11. Not to receive interest in actionable claim[18]–

An advocate should not trade or agree to receive any share or interest in any actionable claim. Nothing in this rule shall apply to stock, shares and debentures of government securities or to any instruments, which are, for the time being, by law or custom, negotiable or to any mercantile document of title to goods.

12. Not to bid or purchase property arising out of legal proceedings[19]–

An advocate should not by any means bid for, or purchase, either in his own name or in any other’s name, for his own benefit or for the benefit of any other person, any property sold in any legal proceeding in which he was in any way professionally engaged. However, it does not prevent an advocate from bidding for or purchasing for his client any property on behalf of the client, provided; the Advocate is expressly authorised in writing on this behalf.

13. Not to bid or transfer property arising from legal proceedings-

An advocate should not by any means bid in court auction or acquire by way of sale, gift, exchange or any other mode of transfer (either in his own name or in any other name for his own benefit or the benefit of any other person), any property which is the subject matter of any suit, appeal or other proceedings in which he is in any way professionally engaged.

14. Not to adjust fees against personal liability[20]–

An advocate should not adjust the fee payable to him by his client against his own personal liability to the client, which does not arise in the course of his employment as an advocate.

15. An advocate should not misuse or take advantage of the confidence reposed in him by his client.

16. To keep proper accounts-

An advocate should always keep accounts of the clients’ money entrusted to him. The accounts should show the amounts received from the client or on his behalf. The account should show along with the expenses incurred for him and the deductions made on account of fees with respective dates and all other necessary particulars.

17. Not to divert money from accounts[21]–

An advocate should mention in his accounts whether any monies received by him from the client are on account of fees or expenses during the course of any proceeding or opinion. He shall not divert any part of the amounts received for expenses as fees without written instruction from the client.

18. Intimate the client on amounts-

Where any amount is received or given to him on behalf of his client, the advocate must, without any delay, intimate the client of the fact of such receipt.

19. Balance amount is to be returned to the Client-

An advocate shall, after the termination of proceedings, be at liberty to adjust the fees due to him from the account of the client. The balance in the account can be the amount paid by the client or an amount that has come in that proceeding. Any amount left after the deduction of the fees and expenses from the account shall be returned to the client.

20. Provide a copy of accounts-

An advocate must provide the client with a copy of the client’s account maintained by him on demand, provided that the necessary copying charge is paid.

21. An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.

22. Not to lend money to his client-

An advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client. An advocate cannot be held guilty for a breach of this rule if, in the course of a pending suit or proceeding, and without any arrangement with the client in respect of the same, the advocate feels compelled because of the rule of the Court to make a payment to the Court on account of the client for the progress of the suit or proceeding[22].

23. Not to appear for opposite parties-

An advocate who has advised a party in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party in the same matter.

(C) Advocate’s duties towards the Opponent-

          Section III of the Bar Council of India Rules provides for the advocate’s duties to the Opponent. There are 2 rules in the section.

1. Not to negotiate directly with the opposite party[23]–

An advocate shall not in any way communicate or negotiate or call for settlement upon the subject matter of controversy with any party represented by an advocate except through the advocate representing the parties.

2. To carry out legitimate promises made[24]–

An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court.

(D) Advocate’s duties towards Colleagues-

          Section IV of the Bar Council of India Rules provide for the advocate’s duties to the Colleagues. There are 4 rules in the section.

1. Not to advertise or solicit work-

An advocate shall not solicit work or advertise in any manner. He shall not promote himself by circulars, advertisements, touts, personal communications, and interviews other than through personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.

2. Reasonable size of sign-board and name-plate-

An advocate’s sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or any Association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General.

3. Not to promote the unauthorized practice of law-

An advocate shall not permit his professional services or his name to be used for promoting or starting any unauthorised practice of law.

4. An advocate shall not accept a fee less than the fee, which can be taxed under the rules when the client is able to pay more.

5. Seek consent of fellow advocate to appear-

An advocate should not appear in any matter where another advocate has filed a vakaltnama or memo for the same party. However, the advocate can take the consent of the other advocate to appear.

In case an advocate is not able to present the consent of the advocate who has filed the matter for the same party; then he should apply to the court for an appearance. He shall, in such application, mention the reason as to why he could not obtain such consent. He shall appear only after obtaining the permission of the Court.

          Thus, in conclusion, we may say that by performing the above-mentioned duties, an advocate will not only maintain the dignity of his profession but will put distinguished services for the welfare of society.                   *****

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Professional Misconduct[25]

         QUESTION BANK

1. Explain the term “Professional Ethics’ and ‘Professional Misconduct’ with the help of instances.
2. Discuss the procedure to be followed by State Bar Council in dealing with a complaint against an advocate.
3. What is professional misconduct? Explain the procedure to be followed in disciplinary committee of State Bar Council and Bar Council of India in solving complaint for professional misconduct.
4. What is professional misconduct and other misconduct? Explain the powers of disciplinary committee of State Bar Council and Bar Council of India.
5. Explain the term “Professional and other misconduct”. Who is the authority to punish for it? Explain its powers and procedure?
6. Define “Professional Misconduct”. Explain he constitution, powers and procedure followed by the Disciplinary Committees.

Short Notes

1. Punishment for professional misconduct.

TABLE OF CONTENT

1. ‘‘Professional or other misconduct’’ meaning-………………………………………….. 11
2. Definition of the term “misconduct”-……………………………………………………………………… 11

 Nortanmal Chaurasia v. M.R. Murli…………………………………………………………….. 11

1. “Other misconduct”-……………………………………………………………………………………………………. 11

Hikmat Ali Khan v. Ishwar Prasad Arya………………………………………………………. 11

U.P. Sales Tax Service Association v. Taxation Bar Association………. 12

1. Role of State Bar Council in punishing guilty advocate-…………………………….. 12
2. Power of State Bar Council to Punish for professional or other misconduct-…………………………………………………………………………………………………………………………………………………. 12
3. Composition of Disciplinary Committee-…………………………………………………………….. 12
4. Power to withdraw proceeding and transfer it to another committee (S. 35 (1-A)-……………………………………………………………………………………………………………………………………… 12
5. Procedure to be followed by the Committee (S. 35 (2))-………………………………… 12
6. Disciplinary Committee of State Bar Council can pass final order of following nature (S. 35 (3))-…………………………………………………………………………………………… 12

 Pralhad Saran Gupta v. Bar Council of India…………………………………………….. 12

 P.D. Gupta v. Ram Murty………………………………………………………………………………… 13

 Hikmat Ali Khan v. Ishwar Prasad Arya…………………………………………………….. 13

1. Procedural powers (S. 42 (1))-………………………………………………………………………………….. 13
2. Proceedings are deemed to be judicial proceedings (S. 42 (2))-………………….. 13
3. Service of summons through Court (S. 42 (3)-…………………………………………………… 13
4. Proceeding in absence of Chairman or member (S. 42 (4))-……………………………. 13
5. Opinion of Chairman or Vice-Chairman of Bar Council as to final order (S. 42 (5))-…………………………………………………………………………………………………………………………………… 14
6. Order as to cost of proceeding and Execution of an order (S. 43)-……………… 14
7. Continuous proceeding (S. 36 (A))-………………………………………………………………………… 14
8. Proceeding is to be concluded within one year (S. 36-B)-…………………………….. 14

IMangu Shrihari v. Bar Council of the State of A.P,………………………………… 14

III. Role of Bar Council of India in punishing guilty advocate-………………………… 14

1. Power of State Bar Council to Punish for professional or other misconduct-…………………………………………………………………………………………………………………………………………………. 14
2. Composition of Disciplinary Committee-…………………………………………………………….. 14
3. Procedure to be followed by the Committee (S. 36 (2))-………………………………… 15
4. Disciplinary Committee of State Bar Council can pass final order of following nature (S. 36 (4))-…………………………………………………………………………………………… 15
5. Applicability of S. 36-A and S. 36-B-……………………………………………………………………. 15
6. Procedural powers (S. 42)-………………………………………………………………………………………… 15
7. Order as to cost of proceeding and Execution of an order (S. 43)-……………… 15
8. Complaint against advocates and procedure to be followed by Disciplinary Committee of Bar Council of India-……………………………………………………………………………. 15

The relevant rules are as follows-………………………………………………………………………………… 15

1. Formal complaint (Rule 1)-………………………………………………………………………….. 15
2. Ask for further and better particulars (Rule 2)-…………………………………….. 15
3. Notice to Advocate (Rule 3)-……………………………………………………………………… 15
4. Fixing date, time and place of inquiry (Rule 4)-…………………………………… 16
5. Manner of services of notice (Rule 5)-…………………………………………………….. 16
6. Parties may appear personally or through an advocate (Rule 6)-……. 16
7. Ex parte proceeding (Rule 7)-……………………………………………………………………… 16
8. Right of Attorney General etc. to be heard (Rule 8)-………………………….. 16
9. Evidence is to be recorded in English (Rule 9)-……………………………………. 16
10. Record of day to day hearing (Rule 10)-………………………………………………. 16
11. Majority opinion shall prevail (Rule 14)-……………………………………………… 16
12. Remedies against order of punishment-…………………………………………………. 16
13. Review-……………………………………………………………………………………………………………………………. 16
14. Appeal-…………………………………………………………………………………………………………………………….. 16

Appeal to the Supreme Court (S. 38)-………………………………………………………………………… 16

Chapter V of the Advocates Act 1961deals with the ‘professional or other misconduct’ of Advocate and punishment thereto.

I. ‘‘Professional or other misconduct’’ meaning-

          As per S. 35 (1) of the Advocates Act, 1961,-

where-

(i) on receipt of a complaint or otherwise

(ii) a State Bar Council has reason to believe

(iii) that any advocate on its role has been guilty of professional or other misconduct,

(iv) it shall refer the case for disposal to its disciplinary committee.

          Thus, the section provides for punishing an advocate who commits ‘professional or other misconduct; however, the term ‘professional or other misconduct’ has not been defined under the Advocate’s Act. However, the Supreme Court and various High Courts have defined the term ‘professional or other misconduct’ in a number of cases. We will discuss some of the definitions as follows-

a. Definition of the term “misconduct”-

 In State of Punjab v. Ram Singh[26]

The Supreme Court observed that the term “misconduct” might involve moral turpitude; it must be improper or wrong behaviour, unlawful behaviour, wilful in character forbidden act, a transgression of established and definite rule of action or code of conduct, but not mere error of judgment, carelessness or negligence in the performance of duty.

In Nortanmal Chaurasia v. M.R. Murli[27]

 The Supreme Court, the term ‘Misconduct’ means ‘improper behaviour, intentional wrongdoing or deliberate violation of a rule of the standard of behaviour’.

          Thus, from the above discussion of the court, we may say that an advocate is bound to conduct himself in a manner befitting the high and honourable legal profession. An advocate is expected to uphold the high traditions of a noble profession of advocacy. If the Advocate departs from the high standards of the legal profession, he is liable for professional misconduct.

He must comply with the professional ethics and etiquette as laid down by the Bar Council of India. However, the term “professional and other misconduct” is very wide. It not only covers professional ethics and etiquette framed by the Bar Council of India (as discussed in topic I), but it may cover a much more range of behaviour which is not up to the mark of the high standards of the legal profession. Thus, defrauding or cheating the party, failing to file a case after accepting a brief and fees, taking instructions from any person other than the client, fraudulent or grossly improper conduct in discharging his duties,  engaging in the business of profit-making, threatening language in the court are held to misconduct liable for punishment. However, in V.P. Kumaravelu v. The Bar Council of India[28] Supreme Court held that mere negligence of an Advocate without moral delinquency does not amount to professional misconduct.

b. “Other misconduct”-

          The term used in S. 35 is not just “professional misconduct” but “or other misconduct”. These terms are very wide and cover not only professional misconduct but those conduct that are not up to the mark even outside the legal profession. The discretion is up to the disciplinary committee of the Bar Council.

          Thus, as per S. 24- A of the Advocates Act, a person cannot be admitted as an advocate on a State roll if he is convicted of an offence involving moral turpitude.

Hikmat Ali Khan v. Ishwar Prasad Arya[29]

The Supreme Court held that an advocate who assaults his opponent in the Courtroom with a knife and is convicted for the offence of attempting to murder is unworthy of remaining in the legal profession.

U.P. Sales Tax Service Association v. Taxation Bar Association[30]

 the Supreme Court held that the advocate attending a court hearing with firearms does not conduct himself as per the dignity of the legal profession.

          Thus, the term “professional or other misconduct” used in S. 35 gives large discretionary power to the disciplinary committee of the Bar Council to resort against any behaviour that is not up to the high standards of the legal profession.

II. Role of State Bar Council in punishing guilty advocate-

a. Power of State Bar Council to Punish for professional or other misconduct-

1. 6 (c) of the Advocates Act entrust State Bar Council to entertain and decide cases of misconduct against advocates on its roll. Earlier, this function was being carried on by the High Courts.
2. 35 (1) of the Advocates Act, 1961, provides that-

Where-

(i) on receipt of a complaint or otherwise

(ii) a State Bar Council has reason to believe

(iii) that any advocate in its roll has been guilty of professional or other misconduct,

(iv) it shall refer the case for disposal to its disciplinary committee.

b. Composition of Disciplinary Committee-

As per S. 9 (1) of the Advocates Act, a Bar Council shall constitute one or more disciplinary committees, each of which shall consist of three persons, of whom two shall be persons elected by the Council from amongst its members and the other shall be the person co-opted by the council from amongst advocates who has for at least ten years been advocates on a State roll and who is not a member of the Council, and the senior-most advocate amongst the members of a disciplinary committee shall be the Chairman thereof.

c. Power to withdraw proceeding and transfer it to another committee (S. 35 (1-A)-

          The State Bar Council may, either of its own motion or on an application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.

d. Procedure to be followed by the Committee (S. 35 (2))-

          When a matter is referred to the disciplinary committee for inquiry, the Disciplinary Committee of the State Bar Council shall fix a date for the hearing of the case and shall cause notice thereof to be given to the advocate concerned and the Advocate General of the State.

e. Disciplinary Committee of the State Bar Council can pass final order of the following nature (S. 35 (3))-

          The disciplinary committee, after giving the advocate concerned and the Advocate–General an opportunity of being heard, may make any of the following orders; namely-

(a) Dismiss the complaint or where the proceedings were initiated at the instance of the State Bar Council, direct that the proceeding be filed;

          (b) Reprimand[31] the advocate;

In Pralhad Saran Gupta v. Bar Council of India[32]

          Punishment of reprimand was imposed by Supreme Court on Advocate for professional misconduct committed by keeping Rs. 1500 with himself in connection with settlement in the execution proceeding.

          (c) Suspend the advocate from practice for such period as it may deem fit;

In P.D. Gupta v. Ram Murty[33]

The advocate purchased the property of his client and sold it at a high rate was held to be professional misconduct, and he was suspended from practice for one year.

          (d) Remove the name of the advocate from the state roll of advocates.

In Hikmat Ali Khan v. Ishwar Prasad Arya[34]

Supreme Court ordered to remove Advocate’s name from State Roll for attempting to murder his opponent.

                    Where an advocate is suspended from practice, he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India (S. 35 (3)).

          Where an order of reprimanding or suspending an advocate is made, a record of the punishment shall be entered against his name and the certificate of enrollment be recalled (S. 41).

f. Procedural powers (S. 42 (1))-

          The Disciplinary Committee of a Bar Council shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, in respect of-
(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring discovery and production of any documents;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copies thereof from any court or office;

(e) issuing commissions for the examination of witnesses or documents;

(f) any other matter which may be prescribed.

Provided that no such disciplinary committee shall have the right to require the attendance of—

(a) any presiding officer of a Court except with the previous sanction of the High Court to which such court is subordinate;

(b) any officer of a revenue court except with the previous sanction of the State Government.

g. Proceedings are deemed to be judicial proceedings (S. 42 (2))-

All proceedings before a disciplinary committee of a Bar Council shall be deemed to be judicial proceedings.

h. Service of summons through Court (S. 42 (3)-

 To exercise any of the powers conferred by sub-section (1), a disciplinary committee may send to any civil court in the territories to which this Act extends any summons or other process for the attendance of a witness or the production of a document required by the committee or any commission which it desires to issue, and the civil court shall cause such a process to be served or such commission to be issued, as the case may be, and may enforce any such process as if it were a process for attendance or production before itself.

i. Proceeding in the absence of Chairman or member (S. 42 (4))-

Notwithstanding the absence of the Chairman or any member of a disciplinary committee on the date fixed for the hearing of a case before it, the disciplinary committee may, if it so thinks fit, hold or continue the proceedings on the date so fixed and no such proceedings and no order made by the disciplinary committee in any such proceedings shall be invalid merely by reason of the absence of the Chairman or member thereof on any such date: Provided that no final orders shall be made in any proceeding unless the Chairman and other members of the disciplinary committee are present.

j. Opinion of Chairman or Vice-Chairman of Bar Council as to final order (S. 42 (5))-

Where no final order can be made in any proceedings in accordance with the opinion of the Chairman and the members of a disciplinary committee, either for want of majority opinion amongst themselves or otherwise, the case, with their opinion thereon, shall be laid before the Chairman of the Bar Council concerned or (if the Chairman of the Bar Council is acting as the Chairman or a member of the disciplinary committee), before the Vice-Chairman of the Bar Council, and the said Chairman or the Vice Chairman of the Bar Council, as the case may be, after such hearing as he thinks fit, shall deliver his opinion and the final order of the disciplinary committee shall follow such opinion.

k. Order as to cost of proceeding and Execution of an order (S. 43)-

          The Disciplinary Committee may make such order as to the costs of any proceedings before it as it may deem fit, and any such order shall be executable as if it were an order of the High Court (in case passed by State Bar Council) or the Supreme Court (in case passed by Bar Council of India).

l. Continuous proceeding (S. 36 (A))-

          Whenever a Disciplinary Committee (either State or India) ceases to exercise jurisdiction and is succeeded by another Committee, the succeeding Committee may continue the proceeding from the stage at which the proceeding was left.

m. Proceeding is to be concluded within one year (S. 36-B)-

          The proceeding by State Disciplinary Committee shall be concluded within a period of one year from the date of the receipt of the complaint or the date of intonation of the proceedings at the instance of the State Bar Council, failing which such proceedings shall stand transferred to the Bar Council of India.

Mangu Shrihari v. Bar Council of the State of A.P[35],

 the Andhra Pradesh High Court observed that the allegations of misconduct against an advocate should be disposed of expeditiously within a period of one year so that either the cloud cast on the particular advocate is cleared at the earliest or the noble profession is kept clear of such members.

III. Role of the Bar Council of India in punishing guilty advocates-

a. Power of State Bar Council to Punish for professional or other misconduct-

1. 6 (c) of the Advocates Act entrust State Bar Council to entertain and decide cases of misconduct against advocates on its roll. Earlier, this function was being carried on by the High Courts.
2. 36 (1) of the Advocates Act, 1961, provides that-

Where-

(i) on receipt of a complaint or otherwise

(ii) the Bar Council of India has reason to believe

(iii) that any advocate whose name is not entered on any State roll has been guilty of professional or other misconduct,

(iv) it shall refer the case for disposal to its disciplinary committee.

          Thus, S. 36 (1) and S. 35 (1) read with similar verbatim and with the difference that an advocate against whom action is sought need not be on the roll of any State Bar.

b. Composition of Disciplinary Committee-

Same as discussed under S.9 (1) earlier.

c. Procedure to be followed by the Committee (S. 36 (2))-

          The Disciplinary Committee of the Bar Council of India may, either of its own motion or on a report by any State Bar Council or on an application made to it by any person interested, withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the Disciplinary Committee of any State Bar  Council and dispose of the same.

          The Disciplinary Committee of the Bar Council of India, in disposing of any case, shall observe, so far as may be, the procedure laid down in S. 35, the references to the Advocate-General in that section being construed as references to the Attorney General of India (S. 36 (3).

e. Disciplinary Committee of the State Bar Council can pass final order of the following nature (S. 36 (4))-

          In disposing of any proceedings under this section, the Disciplinary Committee of the Bar Council of India may make any order that the Disciplinary Committee of a State Bar Council can make under S. 35 (3).

Thus, the Disciplinary Committee of the Bar Council of India can pass the same orders as the Disciplinary Committee of the State Bar Council under S. 35 (3).

f. Applicability of S. 36-A and S. 36-B-

          Both sections 36-A and S. 36-B are applicable to the Disciplinary Committee of the Bar Council of India.

g. Procedural powers (S. 42)-

          The provisions of S. 42 are equally applicable to both Disciplinary committees.

h. Order as to cost of proceeding and Execution of an order (S. 43)-

The provisions of S. 43 are equally applicable to both Disciplinary committees.

i. Complaint against advocates and procedure to be followed by Disciplinary Committee of Bar Council of India-

          In addition to the above-discussed sections, the Bar Council of India has framed rules in detail. Chapter I Part VII deals with the rules relating to a complaint against advocates and procedures to be followed by the Disciplinary Committee of the Bar Council of States or of India

The relevant rules are as follows-

1. Formal complaint (Rule 1)-

          A complaint against an advocate shall be in the form of a petition duly signed and verified as required under the Code of Civil Procedure.

          If the complaint is not in English, a translation thereof in English shall be filed along with the same.

          Every complaint shall be accompanied by the fees as prescribed in the rules framed by the Bar Council of India.

          If the complaint is found in the order, it shall be registered and placed before the Bar Council for such order as it may deem fit to pass.

2. Ask for further and better particulars (Rule 2)-

          Before referring a complaint under S. 35 to the disciplinary committee, the Bar Council may require a complainant to furnish within time to be fixed by it, further and better particulars and may also call for the comments from the advocate complained against.

3. Notice to Advocate (Rule 3)-

          After a complaint has been referred to a disciplinary committee by the Bar Council, the Registrar shall expeditiously send a notice to the advocate concerned requiring him to show cause within a specified date on the complaint made against him and to submit the statement of defence, documents and affidavits in support of such defence.

4. Fixing date, time and place of inquiry (Rule 4)-

          The Chairman of the disciplinary committee shall fix the date, hour and place of the enquiry, which shall not ordinarily be later than 30 days from the receipt of the reference. The Registrar is required to give notice of such date, hour and place to concerned persons.

5. Manner of services of notice (Rule 5)-

          The notices referred to above shall, subject to necessary modification, be in the Forms prescribed. Such notices are required to be sent to the advocates appearing for the parties.

6. Parties may appear personally or through an advocate (Rule 6)-

          The parties can appear in person or by an advocate who should file a vakalatnama giving the name of the Bar Council in which he is enrolled, his residential address, telephone number and his address for service of notices.

7. Ex parte proceeding (Rule 7)-

          If an enquiry on a complaint is received, either the complainant or the respondent does not appear before the disciplinary committee despite service of notice; the committee may proceed ex parte or direct fresh notice to be served. Such ex parte order may be set aside on sufficient cause.

8. Right of Attorney General etc., to be heard (Rule 8)-

          The disciplinary committee shall hear the Attorney-General or the Additional Solicitor-General of India or the Advocate-General, as the case may be or their advocate and parties or their advocate if they desire to be heard and determine the matter on documents and affidavit. If necessary, parties may be cross-examined.

9. Evidence is to be recorded in English (Rule 9)-

          Evidence given before the disciplinary committee shall be recorded preferably in English by any member of the committee or any other person authorised by the committee. The evidence so recorded shall be signed by the Chairman or, in his absence, by any member of the committee.

10. Record of day-to-day hearing (Rule 10)-

          Every disciplinary committee is to make a record of its day-to-day proceedings. The registrar of the disciplinary committee shall maintain a case diary.

11. Majority opinion shall prevail (Rule 14)-

          The finding of the majority of the members of the disciplinary committee shall be the finding of the committee.

In L.D. Jaisinghani v. Narinadas[36] , the Supreme Court has held that “proceeding before the disciplinary committee is essentially quasi-criminal nature and therefore the standard of proof for this purpose is the same which is required for convicting an accused in the criminal case.

IV. Remedies against the order of punishment-

          Advocate Act provides the following remedies to the Advocate found guilty by the Disciplinary Committee of misconduct-

1. Review[37]–

          The Disciplinary Committee of a Bar Council may of its own motion or otherwise review any order within 60 days of the date of order passed by it under this chapter ( S. 44). However, no such order of review of the disciplinary committee of the State Bar Council shall have an effect, unless it has been approved by the Bar Council of India.

The Bar Council of India or any of its committees, other than its disciplinary committee, may, on its own motion or otherwise, review any order, within 60 days of the date of that order, passed by it under the Advocates Act (S. 48-AA).

Bar Council of India, in Chapter II of Part VII, has laid down detailed rules to review.

2. Appeal-

          In case of an order of punishment by the disciplinary committee of the State Bar Council, an appeal may be preferred to the Bar Council of India under S. 37 of the Advocates Act.

          The Bar Council of India, in Chapter I of Part VII, has framed detailed rules as to the procedure to be observed in case of appeal to it from the order of the disciplinary committee of the State Bar Council.

Appeal to the Supreme Court (S. 38)-

          Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India may, within 60 days of the date on which the order is communicated to him, prefer an appeal to Supreme Court, and the Supreme court may pass such order, including the order varying the punishment awarded by the Disciplinary Committee of the Bar Council of India.

*****

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Bar Councils[38]

         QUESTION BANK

1. Discuss and explain the constitution and functions of the Bar Council of India.
2. Discuss “Powers and Functions of State Bar Council”.
3. What are the various powers and functions of the State Bar Council?
4. State the provisions relating to constitution, powers and functions of the B.C.I.
5. Explain constitution, powers and functions of State Bar Council.
6. “To promote and support law reforms” is one of the functions of Bar Council. Explain with other functions of Bar Council of India.

Short Notes

1. Appointment of Committees and staff members by State Bar Council.
2. Powers and functions of Bar Council of India.
3. State Bar Council.
4. To promote and support law reforms.

TABLE OF CONTENT

1. Introduction-…………………………………………………………………………………….. 17
2. State Bar Councils-…………………………………………………………………………… 17
3. Establishment of State Bar Councils (S. 3)-……………………………………………………….. 17
4. Composition of State Bar Councils-……………………………………………………………………… 18

(a) Ex-Officio member-………………………………………………………………………………………. 18

(b) Number of other Members-………………………………………………………………………… 18

1. Qualification-………………………………………………………………………………………………………………… 18
2. Chairman and Vice- Chairman-………………………………………………………………………………. 18
3. Disqualification of Members of Bar Council (S. 3 (4))-…………………………………. 19
4. Functions of State Bar Council-………………………………………………………………………………. 19
5. General Functions (S. 6)-……………………………………………………………………………… 19
6. To issue Certificates of Enrolment (S. 22)-……………………………………………. 19
7. To Maintain roll of Advocates (S. 17)-…………………………………………………… 19
8. Powers of the State Bar Council-…………………………………………………………………………… 19
9. Power to make rules (S. 28)-………………………………………………………………………. 20
10. Power to Punish Advocate for misconduct (S. 35)-…………………………….. 20
11. To appoint Committees and staff members-………………………………………….. 20
12. To maintain accounts and conduct audit (S. 12)-…………………………………. 20

III. Bar Council of India-………………………………………………………………………… 20

1. Composition (S. 4 (1))-……………………………………………………………………………………………… 20

(a) Ex-Officio member-………………………………………………………………………………………. 20

(b) Other members-……………………………………………………………………………………………… 20

1. Qualification (S. 4 (1-A))-………………………………………………………………………………………… 20
2. Chairman and Vice-Chairman (S. 4 (2))–……………………………………………………………. 21
3. Venue of Meeting (S. 10-A)-…………………………………………………………………………………… 21
4. Functions of Bar Council of India-…………………………………………………………………………. 21
5. General Functions (S. 7)-……………………………………………………………………………… 21
6. To admit Advocates (S. 24)-………………………………………………………………………. 22
7. To appoint committees and Staff Members-………………………………………….. 22
8. To maintain accounts and conduct audit-……………………………………………….. 22
9. Powers of Bar Council of India-……………………………………………………………………………… 22
10. Power to make rules (S. 15)-……………………………………………………………………………………. 22

In Indian Council of Legal Aid and Advice v. Bar Council of India……………………………………………………………………………………………………….. 22

2. Power to punish Advocates for misconduct (S. 36)-………………………………………… 22
3. Power to hear appeals (S. 37)-…………………………………………………………………………………. 22
4. Other powers and functions of the Bar Council of India-……………………………….. 23

(a) to give financial assistance to State Bar Councils (S. 46-A)-……………………………………………………………………………… 23

(b) Reciprocity (S. 47 (1))-………………………………………….. 23

(c) Power of revision (S. 48 (A))-………………………………….. 23

(d) Power of Review (S. 48 (AA)-…………………………………. 23

(e)Power to give directions (S. 48-B)-…………………………….. 23

(f) Indemnity against legal proceedings (S. 48)-………………… 23

In Ex-Captain Harish Uppal v. Union of India…………………… 23

I. Introduction-

         The Advocates Act of 1961, has made provisions for the establishment of Bar Councils. The Bar Councils are established at two levels, i.e. at the State level “State Bar Councils” and the national level “Bar Council of India”.

II. State Bar Councils-

A. Establishment of State Bar Councils (S. 3)-

         There shall be a Bar Council-

(a) for each of the States of Andhra Pradesh, Bihar, Gujrat, Jammu and Kashmir, Madhya Pradesh, Karnataka, Orissa, Rajasthan and Utter Pradesh- to be known as the Bar Council of that State.

       Thus, the provision shows that the States mentioned above shall have a State Bar Council in each of these States. Each of these States shall have an independent State Bar Council of its own name.

(b) for the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura- to be known as Bar Council of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh;

       Thus, for all North- Eastern States, there is one Bar Council known with the names of all states together.

(c) for the State of Kerala and the Union Territory of Laccadive, Minicoy and Amindivi Islands- to be known as the “Bar Council of Kerala”.

(d) for the States of Tamil Nadu and the Union Territory of Pondicherry- to be known as the Bar Council of Madras.

(e) for the States of Maharashtra and Goa and the Union Territories of Dadra and Nagar Haveli and Daman and Diu to be known as the “Bar Council of Maharashtra and Goa”;

(f) for the State of Punjab and Haryana and the Union Territory of Chandigarh- to be known as the “Bar Council of Punjab and Harayana”;

(g) for the State of Himachal Pradesh- to be known as the “Bar Council of Himachal Pradesh”,

(h) for the State of West Bengal and the Union Territories of Andaman and Nicobar Islands- to be known as the “Bar Council of West Bengal”, and

(i) for the Union Territory of Delhi- to be known as the “Bar Council of Delhi”.

         Thus, it shows that there are independent Bar Councils in each state, and for some states, there are group Bar Councils.

B. Composition of State Bar Councils-

         A State Bar Council shall consist of the following members, namely-

(a) Ex-Officio member[39]–

In the case of-

(i) the State Bar Council of Delhi- the Additional Solicitor-General of India, ex-officio,

(ii) the State Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura- the           Advocate General of each of the States of Assam, Manipur, Meghalaya, Nagaland and Tripura, ex-officio,

(iii) the State Bar Council of Punjab and Haryana- the Advocate-General of each of the States of Punjab and Harayana, ex-officio

(iv) for any other State Bar Council- the Advocate General of the State, ex officio.

(b) Number of other Members-

         In addition to ex-officio members, there are the following members-

(i) In the case of a State Bar Council with an electorate not exceeding five thousand,- fifteen members.

(ii) In the case of a State Bar Council with an electorate exceeding five thousand but not exceeding ten thousand- twenty members, and

         (iii) In case of electorates exceeding ten thousand- twenty-five members,

– such members are elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council.

C. Qualification-

         As nearly as possible, half of such elected members shall be persons who have for at least ten years been advocates on a State Roll.

D. Chairman and Vice-Chairman-

         There shall be a Chairman and Vice-Chairman of each State Bar Council elected amongst the members by the Council in such manner as may be prescribed.

E. Disqualification of Members of Bar Council (S. 3 (4))-

         An Advocate shall be disqualified from voting at an election and from being a member of the Bar Council unless he possesses such qualifications or satisfies such conditions as may be prescribed on this behalf by the Bar Council of India and subject to such rules that may be made by each State Bar Council.

         An elected member of a Bar Council shall be deemed to have vacated his office if he is declared by the Bar Council of which he is a member to have been absent without sufficient excuse from three consecutive meetings of such council or if his name is, for any cause, removed from the roll of advocates or if he is otherwise disqualified under any rule made by the Bar Council of India (S. 10-B)[40].

F. Functions of State Bar Council-

         Every Bar Council shall be a corporate body having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and to contract, and may, by the name by which it is known, sue and be sued (S. 5).

1. General Functions (S. 6)-

         The general functions of the State Bar Council shall be-

(1) to admit a person as advocate on its rolls;

(2) to prepare and maintain the roll of advocates;

(3) to entertain and determine cases of misconduct against advocates on its roll;

(4) to safeguard the rights, privileges and interests of advocates in their roll;

(5) to promote the growth of Bar Associations for the purposes of effective implementation of welfare schemes.

(6) to promote and support law reforms;

(7) to conduct seminars and organize talks on legal topics by eminent jurists and punish journals and papers of legal interests;

(8) to organise legal aid to the poor in a prescribed manner;

(9) to manage and invest the funds of the Bar Council;

(10) to provide for the election of its members.

(11) to visit and inspect universities in accordance with the directions.

(12) to perform all other functions conferred on it by or under this Act.

(13) to do all other things necessary for discharging the aforesaid functions.

(14) to constitute one or more funds for the following purposes-

(a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates;

         (b) giving legal aid or advice in accordance with the rules made on this behalf;

         (c) establishing law libraries.

(15) to receive grants, donations, gifts, and beneficiations for the above purposes.

2. To issue Certificates of Enrolment (S. 22)-

         The State Bar Council shall issue a certificate of enrolment in the prescribed form to every person whose name is entered in the roll of advocates maintained by it under this Act.  (Discussed in End notes for further details).

3. To Maintain the roll of Advocates (S. 17)-

         Every State Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of all advocates registered with it. (Discussed in End notes for further details).

G. Powers of the State Bar Council-

         The Bar Council of States has the following powers.

1. Power to make rules (S. 28)-

         A State Bar Council may make rules as to the admission and enrolment of Advocates.

Without prejudice to the abovementioned general power, the Bar Council may make rules providing for-

(a) the time within which and form in which an advocate shall express his intention for the entry of his name in the roll of a State Bar Council.

(b) the form in which an application shall be made to the Bar Council of admission as an advocate on its roll, and the manner in which such application shall be disposed of by the enrolment committee of the Bar Council.

(c) the conditions subject to which a person may be admitted as an advocate in any such roll;

    (d) the instalments in which the enrolment fee may be paid.

         The rules made by the State Bar Council need approval from the Bar Council of India.

2. Power to Punish Advocate for misconduct (S. 35)-

         Where on receipt of a complaint or otherwise, a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

         The Disciplinary Committee, after giving the advocate concerned and the Advocate General an opportunity of being heard, may make any of the following orders, namely;-

(a) dismiss the complaint or where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit;

(d) remove the name of the advocate from the State roll of advocates.

3. To appoint Committees and staff members-

         Every Bar Council may appoint a disciplinary committee (S. 9), legal aid committee (S. 9 (A)) and its staff, including a secretory, accountant etc. (S. 11). Moreover, A State Bar Council shall constitute standing committees like an executive committee, legal education committee etc. (S. 10).

4. To maintain accounts and conduct an audit (S. 12)-

         Every Bar Council shall cause to be maintained such books of accounts and other books in such form and such manner as may be prescribed.

         The accounts of a Bar Council shall be audited by auditors duly qualified to act as auditors of companies at such times and in such manner as may be prescribed.

III. Bar Council of India-

A. Composition (S. 4 (1))-

         There shall be a Bar Council for the territories to which this Act extends, to be known as the ‘Bar Council of India’.

         The Bar Council of India shall consist of the following members viz.

(a) Ex-Officio member-

(i) the Attorney-General of India, ex officio;

(ii) the Solicitor-General of India, ex officio;

(b) Other members-

In addition to the above ex-officio members, the Bar Council of India consists of one member elected by each State Bar Council from amongst its members.

          Thus, the Bar Council of India consists of ex-officio members plus elected members from each state.

B. Qualification (S. 4 (1-A))-

          A person becoming a member of the Bar Council of India must possess the requisite qualifications. The qualification is the same as discussed above to become a member of the State Bar Council.

C. Chairman and Vice-Chairman (S. 4 (2))–

         The Bar Council of India shall have a Chairman and a Vice-Chairman elected by the Council in such manner as may be prescribed.

The term of office of Chairman and Vice-Chairman (S. 4 (3))-

         The term of office of a member of the Bar Council of India elected by the State Bar Council shall-

(i) in the case of a member of a State Bar Council who holds office ex-officio, be two years from the date of his election or till he ceases to be a member of the State Bar Council, whichever is earlier, and

(ii) in any other case, be for the period for which he holds office as a member of the State Bar Council.

         Provided that every such member shall continue to hold office as a member of the Bar Council of India until his successor is elected.

         An elected member of a Bar Council shall be deemed to have vacated his office if he is declared by the Bar council of which he is a member to have been absent without sufficient exercise from three consecutive meetings of such Council or if his name is, for any cause, removed from the roll of Advocates or if he is otherwise disqualified under any rule made by the Bar Council of India (S. 10 (B)).

D. Venue of Meeting (S. 10-A)-

         The Bar Council of India shall meet at New Delhi or at such other place as it may for a reason to be recorded in writing, determine. The committees other than the disciplinary Committees constituted by the Bar Council shall meet at the headquarters of the respective Bar Council.

 Bar Council and its committee, except the disciplinary committee, shall observe such rules of a procedure regarding the transaction of business at their meeting as may be prescribed.

E. Functions of Bar Council of India-

          Following are the functions of the Bar Council of India viz.

1. General Functions (S. 7)-

         The general functions of the Bar Council of India are as follows-

(1) to lay down standards of professional conduct and etiquette for advocates;

(2) to lay down the procedure to be followed by its disciplinary committee and the Disciplinary Committee of each State Bar Council;

(3) to safeguard the rights, privileges and interests of advocates;

(4) to promote and support law reform;

(5) to deal with and dispose of any matter arising under this Act, which may be referred to it by a State Bar Council.

(6) to exercise general supervision and control over State Bar Councils;

(7) to promote legal education and to lay down standards for such education.

(8) to recognise universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and supervise such Universities.

(9) to conduct seminars and organise talks on legal topics by eminent jurists and punish journals and papers of legal interests;

(10) to organise legal aid to the poor in the prescribed manner.

(11) to organise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate.

(12) to manage and invest the funds of the Bar Council;

(13) to provide for the election of its members;

(14) to perform all other functions conferred on it by or under this Act.

(15) to do all other necessary things for discharging the aforesaid functions.

(16) to constitute funds for the purpose of-

         (a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates;

         (b) giving legal aid or advice in accordance with the rules made on this behalf;

          (c) establishing law libraries.

(17) to receive grants, donations, gifts or benefactions for the above purposes.

(18) become a member of international legal bodies such as the International Bar Association or the International Legal Aid Association and contribute such sums as it thinks fit to such bodies (S. 7-A).

In V. Sudeer v. Union of India[41]

The Supreme Court has held that imparting legal education is entrusted to the universities in India and not the Bar Council of India. The Bar Council of India can suggest ways and means to promote legal education to be imparted by the universities. It may lay down the standards of education and syllabus in consultation with universities in India.

2. To admit Advocates (S. 24)-

         Admitting names of Advocates is also an important function of the Bar Council of India.

3. To appoint committees and Staff Members-

         Like State bar Councils Bar Council of India can also appoint a disciplinary committee (S. 9), legal aid committee (S. 9 (A)) and its staff, including a secretory, accountant etc. (S. 11). Moreover, it can constitute standing committees like an executive committee, legal education committee etc. (S. 10).

4. To maintain accounts and conduct an audit-

         Like State Bar Councils, the Bar Council of India shall maintain such books of accounts and other books in such form and such manner as may be prescribed.

         The accounts of a Bar Council of India shall be audited by auditors duly qualified to act as auditors of companies at such times and in such manner as may be prescribed.

F. Powers of Bar Council of India-

          Bar Council of India exercises the following powers-

1. Power to make rules (S. 15)-

          The Bar Council of India can make rules like State Bar Councils regarding-

(1) election of its members, Chairman and Vice-Chairman, etc.

(2) the filing of casual vacancies in the Bar Council;

(3) the powers and duties of the Chairman and Vice-Chairman of the Bar Council;

(4) the constitution of funds,

(5) organization of legal aid and advice to the poor etc.

          Thus, it shows that the Bar Council of India is empowered with rule-making power with the object of carrying out its functions properly.

In Indian Council of Legal Aid and Advice v. Bar Council of India[42]

The Supreme Court has held that the rule debarring a person who has completed the age of forty-five to be enrolled as an advocate is arbitrary, unreasonable and beyond the power of the Bar Council of India.

2. Power to punish Advocates for misconduct (S. 36)-

          Like the power of Bar Councils of States, the Bar Council of India also has the power to punish the advocates for professional or other misconducts (refer to S. 35 discussed above).

3. Power to hear appeals (S. 37)-

          The Disciplinary Committee of the Bar Council of India hear appeals from the orders of the Disciplinary Committees of State Bar Councils. The Disciplinary Committee of the Bar Council of India may pass such an order, including an order varying the punishment awarded by the Disciplinary Committee of the State Bar Council.

4. Other powers and functions of the Bar Council of India-

          The Bar Council of India has the following powers and functions, viz.

(a) to give financial assistance to State Bar Councils (S. 46-A)-

(b) Reciprocity[43] (S. 47 (1))-

          Where any country specified by the Central Government on this behalf prevents citizens of India from practising the profession of law or subjects them to unfair discrimination in that country, no subject of any such country shall be entitled to practice the profession of law in India.

(c) Power of revision[44] (S. 48 (A))-

          The Bar Council of India may, at any time, call for the record of any proceeding under this Act which has been disposed of by a State Bar Council or a Committee thereof, and from which no appeal lies, to satisfy itself as to the legality or propriety of such disposal, and may pass such orders, in relation thereto as it may think fit.

(d) Power of Review (S. 48 (AA)-

          The Bar Council of India or any of its Committees, other than its disciplinary committee, may, on its own motion or otherwise, review any of its orders within sixty days from the date of that order.

(e)Power to give directions[45] (S. 48-B)-

          For the proper and efficient discharge of the functions of a State Bar Council or any committee thereof, the Bar Council of India may, in the exercise of general supervision and control, give such directions to the State Bar Council or the Committee thereof as may appear to be necessary.

(f) Indemnity against legal proceedings (S. 48)-

          No suit or other proceeding shall lie against any Bar Council or any committee thereof or a member of the Bar Council for any act in good faith done or intended to be done in pursuance of the provisions of this Act or any rule made thereunder.

In Ex-Captain Harish Uppal v. Union of India[46]

The Supreme Court held that a Bar Council could not give a call of ‘strike or boycott’ so to paralyze the functioning of the judiciary.

*****

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Admission and Enrollment of Advocates[47]

         QUESTION BANK

1. Who is eligible to enrol as an advocate on a state roll? What are the disqualifications for enrollment?
2. To provide legal aid to poor person is important provision under Advocates Act. 1961.” Discuss the same in the light of other salient features of Act.
3. Who is an advocate? What are the qualification to enroll as an advocate? Explain the procedure for enrollment.
4. State the provisions relating to constitution, powers and function of the B.C.I.
5. What are the qualifications and disqualifications and explain in detail the procedure to enroll an advocate.
6. Explain the provisions relation to-
7. a) Admission as Senior Advocate and
8. b) Restrictions on Senior Advocates under Advocate Act, 1961 and Bar Council of India Rules.

7.What are the provisions of Advocate Act, 1961, regarding disqualifications from roll?

Short Notes

1. Right of advocate.
2. Qualification for enrolment as an advocate.
3. Right to practice.
4. Senior Advocate

SYNOPSIS

1. Persons who may be admitted as Advocates on a State Roll (S. 24)-……………… 21
2. a) He is a citizen of India-………………………………………………………………………………………………. 21
3. b) He has completed the age of twenty-one years-…………………………………………………. 21
4. c) He has obtained a decree in law-…………………………………………………………………………….. 22
5. e) He fulfills conditions specified in rule-…………………………………………………………………. 22

All India Bar Examination-……………………………………………………………………………………………… 22

1. f) Pays stamp duty and enrollment fees-……………………………………………………………………. 22
2. Disqualification for enrolment (S. 24-A)-……………………………………………….. 22
3. Convicted of an offence involving moral turpitude-…………………………………………. 22
4. Convicted of an offence under Untouchability (Offences) Act, 1955-……….. 22
5. Dismissed from office on any charge involving moral turpitude-………………… 22

In Kumari Madhuri Patil v. Aditional Commissioner, Tribal Development………………………………………………………………………………………………………….. 23

III. Enrolment procedure-……………………………………………………………………….. 23

1. Authority to whom application for enrolment is to be made (S. 25)-………… 23
2. Disposal of application for admission as an advocate (S. 26)-……………………. 23

IV Removal of names from roll of State Bar Council (S. 26-A)-……………………… 23

1. Certificate of enrolment (S. 22)-………………………………………………………….. 23
2. Rights of Advocates-……………………………………………………………………….. 23
3. Only Advocates can practice the profession of law (S. 29)-…………………………. 24
4. Right to practice (S. 30)-……………………………………………………………………………………………. 24
5. Right of fee (Rule 11)-………………………………………………………………………………………………… 24

Senior Advocate-…………………………………………………………………………………. 24

1. Admission as Senior Advocate (S. 16)-………………………………………………….. 25

Position of a Senior Advocate-……………………………………………………………………………………… 25

In E. S. Reddi v. Chief Secretary, Government of A. P………………………….. 25

Restrictions and limitations on Senior Advocates-…………………………………………………. 25

         Chapter III of Advocates Act, 1961 from Ss. 16 to 28 deals with the admission and enrolment of advocates.

I. Persons who may be admitted as Advocates on a State Roll (S. 24)-

         A person is qualified to be admitted as an advocate on a State roll if he applies to that and the following conditions are fulfilled-

a) He is a citizen of India-

         The first qualification required to be enrolled as an advocate is that the person applying must be a citizen of India. However, a national of any other country may be admitted as an advocate on a State Roll if citizens of India, duly qualified, are permitted to practice law in that other country. Thus, there is a reciprocal arrangement to admit other nationals if Indian citizens are allowed to practice advocacy in that country.

 b) He has completed the age of twenty-one years-

         A person who has not attained the age of twenty-one years is not eligible to be an advocate.

         In Supreme Court in India Council of Legal Aid and Advice v. Bar Council of India[48]

Facts- The Bar Council of India had a fixed upper age limit of 45 years for getting enrolled as an advocate. By the rule, a person beyond 45 years was not enrolled as an advocate.

Supreme Court held the rule ultra-vires the Advocates Act and hence void.

c) He has obtained a decree in law-

         To be enrolled as an advocate, the person should have passed a three years course of study in law from any university in India, which is recognised for the purposes of this Act by the Bar Council of India.

         In some cases, the person who has obtained a degree from any University outside the territory of India, if the degree is recognised for the purpose of this Act by the Bar Council of India, may be enrolled as an advocate.

e) He fulfils conditions specified in rule-

         The person to be enrolled as an advocate must fulfil such other conditions as may be specified in the rules made by the State Bar Council.

All India Bar Examination-

         The Bar Council of India inserted Rules 9 to 11 under Chapter III in 2010[49]. According to Rule 9, no advocate enrolled under S. 24 shall be entitled to practice advocacy unless he successfully passes the All India Bar Examination conducted by the Bar Council of India.

         Thus, the All India Bar Examination has been made it compulsory to practice advocacy since 2010 as per rules framed under this Chapter.

         After passing the examination, the Bar Council issues a Certificate of Practice. After getting the certificate, the advocate already enrolled can start practice.

f) Pays stamp duty and enrollment fees-

         The person to be enrolled as an advocate should pay such enrolment fee as may be determined from time to time.

In Sudheer v. Bar Council of India[50]

Supreme Court held that the rules made by the Bar Council of India for compulsory pre-enrolment Training and apprenticeship are ultra vires.

II. Disqualification for enrolment (S. 24-A)-

         A person cannot be admitted as an advocate on a State roll in the following circumstances-

1. Convicted of an offence involving moral turpitude[51]–

         According to the Supreme Court, the term ‘offence against moral turpitude’ means ‘any act done contrary to justice, honesty, modesty or good morals. A number of Acts prohibit offences of moral turpitude.

2. Convicted of an offence under the Untouchability (Offences) Act, 1955-

         Any person who is convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955, cannot also be enrolled as an advocate.

3. Dismissed from office on any charge involving moral turpitude-

         Any person dismissed or removed from employment or office under the State on any charge involving moral turpitude cannot be enrolled as an advocate.

A person convicted of the offence abovementioned could not be enrolled as an advocate unless the period of two years has elapsed from his release, dismissal or removal.

         However, any person convicted of the offence abovementioned can be enrolled as an advocate after a period of two years has elapsed from his release, dismissal or removal.

         Moreover, the above disqualification from enrollment does not apply if a person, after being found guilty, is dealt with under provisions of the Probation of Offenders Act, 1958. In other words, if the person convicted is released on probation for good behaviour, the disqualification does not apply.

1. 24 A was introduced in the Advocates Act of 1961 by the 1973 amendment to disqualify certain persons from entering the legal profession for a limited period.

In Kumari Madhuri Patil v. Aditional Commissioner, Tribal Development[52]

The Supreme Court held that a conviction for obtaining a false certificate about social status, i.e. backwardness etc., would be an offence involving moral turpitude and such a person would be disqualified for enrolment.

III. Enrolment procedure-

A. Authority to whom application for enrolment is to be made (S. 25)-

         An application for admission as an advocate shall be made in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposes to practice.

         Such an application is to be made in the form prescribed by the State Bar Council.

B. Disposal of application for admission as an advocate (S. 26)-

         A State Bar Council shall refer every application for admission as an advocate to its enrolment committee, and such committee shall dispose of the application in the prescribed manner.

         Every State Bar Council shall prepare and maintain a roll of all advocates admitted to Bar (S. 17). The State Bar Councils have to send copies of rolls of advocates to the Bar Council of India (S. 19). Moreover, an advocate whose name is entered into the roll of one State Bar Council may get it transferred to another State Bar Council (S. 18).

         Where the enrolment committee of a State Bar Council proposes to refuse any such application, it shall refer the application for opinion to the Bar Council of India, and every such reference shall be accompanied by a statement of the grounds in support of the refusal of the application.  The decision of the Bar Council of India shall be final in such cases.

         Where the enrolment committee of a State Bar Council has refused any application for admission as an advocate on its roll, the State Bar Council shall, as soon as may be, send intimation to all other State Bar Councils about such refusal stating the name, address and qualifications of the person whose application was refused and grounds for the refusal.

         Where a State Bar Council has refused the application of any person for admission as an advocate on its roll, no other Bar Council shall entertain an application for admission of such person as an advocate on its roll, except with the previous consent in writing of the State Bar Council which has refused the application and of the Bar Council of India (S. 27).

IV Removal of names from roll of State Bar Council (S. 26-A)-

          A State Bar Council may remove from the State roll the name of any advocate who is dead or from whom a request has been received to that effect.

         Moreover, as per proviso to S. 26, the Bar Council of India may, if satisfied, either on a reference made to it on this behalf or otherwise, that any person has got his name entered on the roll of the 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.

V. Certificate of enrolment (S. 22)-

         There shall be issued a certificate of enrolment in the prescribed form by the State Bar Council to every person whose name is entered in the roll of advocates maintained by it under this Act.

         Every person whose name is so entered in the State roll shall notify any change in the place of his permanent residence State Bar Council concerned within ninety days of such change.

VI. Rights of Advocates-

         Advocates have the following rights-

1. Only Advocates can practice the profession of law (S. 29)-

         Advocates are the only recognised class of persons who are entitled to practice law. Before the Advocates Act of 1961, there were Vakils, Mukthars, pleaders, revenue agents, attorneys etc., were practising the legal profession. However, by the Advocates Act, of 1961, all these classes are eliminated from practice, and only Advocates only can practice the legal profession. However, Vakils, Mukhtars etc., who were practising before coming into existence of the Advocates Act of 1961 were permitted to practice. However, new practitioners can only be Advocates (S. 55).

2. Right to practice (S. 30)-

         Every advocate whose name is entered in the State roll shall be entitled to of right to practice thought-out the territory to which Advocates Act applies. The right to practice is available-

(i) in all courts, including the Supreme Court;

(ii) before any Tribunal or person legally authorised to take evidence; and

(iii) 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.

         Thus, the right to practice is twofold firstly; it extends to the whole of India to which the Advocates Act applies; secondly, the right to practice is available before all courts and tribunals or authorities legally authorised to take evidence.

Right to practice is a fundamental right-

         As per Art. 19 (1) (a) of the Indian Construction, the right to freedom of speech and expression is a fundamental right. Advocacy is a manifestation of that right. An advocate has to carry on his duties without fear of police, bureaucrats, legislation or even judges. However, his right is subject to the reasonable restrictions mentioned in Art. 19 (2). Moreover, in N.K. Bajpai v. Union of India[53]

The Supreme Court has held that the right to practice is not only a statutory right under the Advocates Act but is also a Fundamental right under Art. 19 (1) (g) of the Constitution. However, the right is subject to the restrictions provided under Art. 19 (6).

         However, no person is entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under this Act (S. 33). It is further provided that even non-advocate can also be permitted by the Court or the authority to appear before it in a particular case (S. 32). Whoever, the right to appear by non-advocate is very restricted[54].

         The High Court can also make rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and the Courts subordinate thereto (S. 34).

         Under S. 49 (1) of the Advocates Act, the Bar Council of India has made rules subject to which the right of practice is to be exercised. Chapter III of Part VI of the Rules of the Bar Council of India contains several rules dealing with the condition of the right to practice. Those conditions are as follows-

(a) Every advocate is duty bound to see that his name appears on the roll of the State Bar Council within which jurisdiction he ordinarily practices.

(b) an advocate is prohibited from entering into a partnership or any other arrangement for sharing remuneration with any person who is not an advocate.

(c) Every advocate shall keep informed to the Bar Council of every change of his address.

(d) An advocate who voluntarily suspends the practice for any reason is required to intimate to the Bar Council by the registered post of  such suspension together with his certificate of enrolment in the original.

1. e) No advocate shall be entitled to practice if, in the opinion of the Council, he is suffering from such contagious disease as makes the practice of law a hazard to the health of others.

3. Right of a fee (Rule 11)-

     An Advocate has a right to a fee consistent with his standing at the bar and the nature of the case.

***

Short Notes

Senior Advocate-

I. Admission as Senior Advocate (S. 16)-

          There shall be two classes of advocates, namely, (i) senior advocates and (ii) other advocates.

          An advocate may, with his consent, be designated as a senior advocate-

(i) if the Supreme Court or a High Court is of the opinion that

(ii) by virtue of his ability, standing at the Bar or special knowledge or experience in law, (iii) he is deserving of such distinction.

Position of a Senior Advocate-

          Designation as a Senior Advocate’ means recognition by the Supreme Court or High Court advocate’s professional skill, long-standing in the Bar, experience and services rendered by him to society.

In E. S. Reddi v. Chief Secretary, Government of A. P[55].

The Supreme Court held that “by virtue of the pre-eminence which senior counsels enjoy in the profession, they not only carry greater responsibilities, but they also act as a model to the junior members of the profession. A senior counsel occupies a position next to the Attorney-General and the Solicitor-General. It is an honour and privilege conferred on advocates of standing and experience by the Chief Justice and judges of the High Court or the Supreme Court. Senior Councils, thus, become leading counsel and take precedence on all counsels not having that rank.”

         The Senior Advocate has the right of pre-audience over all other advocates after the Attorney-General of India and Solicitor-General of India, and Advocate-General of States (S. 23). ‘Right of pre-audience’ means the right to be heard before another advocate is heard.

Restrictions and limitations on Senior Advocates-

         Under S. 49 (1) (g), the Bar Council of India has made rules subjecting Senior Advocates to the following restrictions.-

1. A senior advocate shall not appear without an advocate on Record in the Supreme Court or without an advocate of the State Roll in any Court, Tribunal, or before any person or other authorities.
2. A Senior Advocate shall not file a Vakalatama or act in any Court or Tribunal or before any person or other authority. He just appears finally to argue or exceptionally to examine or cross-examine witnesses[56].
3. He shall not accept instructions to draft pledging or affidavits, advice on evidence, or to do any drafting work of an analogous kind in any Court of Tribunal or before any person or other authority. He cannot undertake conveyancing work of any kind whatsoever,
4. He shall not accept directly from a client any brief or instructions to appear in any Court or Tribunal or before any person or other authority in India.
5. A senior advocate may, in recognition of the services rendered by an advocate on record[57], pay him a fee which he considers reasonable.
6. A senior advocate, however, is free to make concessions or give undertakings in the course of arguments on behalf of his clients on instruction from the junior advocates.
7. A senior advocate who had acted as an advocate (Junior) in a case shall not, after he has been designated as a senior advocate, advise on the grounds of appeal in a Court of Appeal or in the Supreme Court, except with an advocate as aforesaid.

*****

        (..5..)

Bar Bench Relation and Contempt of Courts[58]

         QUESTION BANK

Q.1  What do you understand by “Accountancy for lawyers” and “Bar-Bench Relations”?

Q.2   What is the punishment for contempt of court?

Q.3 Explain the role of Bar-Bench relation with special reference to administration of justice.

Q.4  Explain defenses available to the contempt under the contempt of court Act, 1971.

Q.5  What is contempt of Court? Explain kinds, essentials and punishments for contempt of court.

Q.6 “Contempt is serious attack on judicial institution”. Explain kinds and defenses available to contempt.

Short Notes

1. Bar Bench relations.
2. Contempt of court.
3. Criminal Contempt.

          TABLE OF CONTENT

1. Bar- Bench Relations-…………………………………………………………………………. 31
2. Advocates duties towards the Court-…………………………………………………………………….. 31
3. Role of judges in maintaining relations-………………………………………………………………… 31
4. Contempt of Court meaning-……………………………………………………………….. 32

Definition of Contempt of Court (S. 2 (a))-………………………………………………………………. 32

(1) Civil Contempt (S. 2 (b))-………………………………………………………………………………………… 32

Vidya Sagar v. Third Additional Distt. Judge, Dehradun…………………………………………………………………….. 32

(2) Criminal Contempt (S. 2 (c))-…………………………………………………………………………………. 32

III. Defenses to Contempt-……………………………………………………………………… 33

1. Defenses for Civil Contempt-…………………………………………………………………………………. 33
2. Disobedience or breach not wilful-………………………………………………………………………… 33

In State of Bihar v. Bihar M.S.E.S…………………….. 33

2. The order has been passed without jurisdiction-……………………………………………….. 33
3. Order disobeyed is vague or ambiguous-…………………………………………………………….. 33
4. Compliance with the order is impossible-……………………………………………………………. 33
5. No knowledge of order-……………………………………………………………………………………………… 33

In Profulla Kumar Sadh v. Murari Hait…………………… 33

6. Order involves more than one reasonable interpretation-……………………………….. 34
7. Defenses for Criminal Contempt-…………………………………………………………. 34
8. Innocent publication and Distribution of matter (S. 3)-……………………………………. 34
9. Fair and accurate report of judicial preceding (S. 4)-………………………………………. 34
10. Fair criticism of judicial act (S. 5)-………………………………………………………………………… 34

In Arundhati Roy v. Union of India……………………. 34

4. Bona fide complaint against the presiding officer of the subordinate court (S. 6)-…………………………………………………………………………………………………………………………………….. 34
5. No substantial interference with due course of justice (S. 13)-……………………. 34
6. Punishment for Contempt-…………………………………………………………………. 35
7. Punishment for contempt (S. 12 (1))-……………………………………………………………………… 35
8. Apology an Exception+-…………………………………………………………………………………………….. 35

In Re Nand Lal Balwani……………………………………… 35

1. Limit on excess punishment (S. 12 (2))-……………………………………………………………….. 35
2. Fine as a general punishment in civil contempt (S. 12 (3))-…………………………… 35
3. Punishment in case of a company (S. 12 (4))-…………………………………………………….. 35
4. Limitation for action for contempt (S. 20)-…………………………………………………………… 35
5. Jurisdiction of the High Court and the Supreme Court-……………………………… 35
6. Supreme Court and High Court are the courts of records-……………………………… 36
7. Supreme Court’s power to punish for contempt-……………………………………………….. 36

In Re V. C. Mishra……………………………………………. 36

1. High Court’s power to punish for contempt-……………………………………………………….. 36
2. Punish for contempt of itself as well as of subordinate courts-……………………. 36

In Bathina Ramakrishna Reddy v. State of Madras……. 36

1. Extra territorial jurisdiction of the High Court (S. 11)-……………………………………. 36
2. Power of Supreme Court and High Court to make rules-………………………………… 36

I. Bar- Bench Relations-

          The term ‘Bar’ is collectively used for the Advocates practising in the Court. The term ‘Bar’ also means ‘a particular part of the Courtroom where lawyers sit’.

          The term ‘Bench’ means all the Judges taken together. The term ‘Bench’ also means the part of the court where judges sit in their official capacity.

          Thus, the term ‘Bar-Bench relations’ means the relations between advocates and judges in the administration of justice. The Bar and Bench are two important components of the administration of justice. Therefore, smoother relations between them play an important role in the administration of justice. The judges administer the law with the assistance of the lawyers. The lawyers are officers of the Court, and therefore, they are expected to assist the Courts in the administration of justice. Advocates collect material relating to the case and thereby assist the court in arriving at a correct judgment. Therefore, Advocates are partners in the administration of justice. Similarly, the role of judges in the administration of justice is pivotal. According to Justice Anand, “there is no office in the State of such powers as that of the Judge”. A citizen’s life, liberty, reputation, property, and personal and domestic happiness are dependent on Judges. If such important machinery of the judiciary becomes corrupt or partial, citizens’ life, liberty etc., comes to an end.  Therefore, a strong, impartial, fearless judiciary is the greatest need of a State.

a. Advocates’ duties towards the Court-

          Section I of the Bar Council of India Rules provides for the advocate’s duties to the Court. There are 10 rules in the section. [Refer to rules already discussed in the topic ‘Professional Ethics’]. These rules are mead to protect the dignity of the judiciary and for the smooth administration of justice. Moreover, the rules are important for the good administration of justice with the help of proper ‘Bar-Bench’ relations.   It shows that the legal profession is not created for private gain but for the public good and by good ‘Bar Bench’ relations, the purpose of public good is well served. Thus, the rules cast a duty on advocates to uphold the dignity and decorum of the Court. He should not do anything which brings the Court into disrepute.

          However, an Advocate is not expected to be servile; he is expected to complain before the proper authority for his rightful grievance since he is also an officer of the Court.

b. Role of judges in maintaining relations-

          The role of judges in maintaining ‘Bar Bench’ relations is also important. To maintain Bar-Bench relations, even judges are also expected to abide by certain duties such as-

(i) A Judge mu

st impart justice without fear, favour, affection or ill will.

(ii) A judge must not be subject to any influence other than the influence of law and justice.

(iii) A judge must be impartial.

(iv) A judge should possess a calm temper and must owe the bar consideration and courtesy.

(v) A judge should have patience and the gravity of hearing. He should allow the advocate the fullest opportunity of presenting his case.

(vi) A judge should respect the privilege of the Bar. He should give a patient hearing so long as he is respectful and relevant in his argument.

(vii) A judge should sit with a receptive mind. He should not form an opinion regarding the merit of the case till he has heard the complete case.

(viii) Avoid interruption-

A judge should avoid interruption to the counsels in their arguments and in the examination of witnesses. However, to prevent repetition or irrelevancy, interruption may be made. The court may also interrupt properly to clear up his doubts about facts and legal points.

(ix) Avoid controversial tone-

          A Judge should avoid a controversial manner or tone in addressing the consul, litigant or witnesses.

          Thus, in maintaining Bar- Bench relations, the responsibility is cast on both Bar and Bench to follow some rules and etiquette for the proper administration of justice for the public good.

II. Contempt of Court meaning-

          Contempt of Courts Act, 1971 has determined all aspects relating to contempt of courts. Therefore, the sections referred to hereunder are sections from the Contempt of Courts Act of 1971.

Definition of Contempt of Court (S. 2 (a))-

          “Contempt of Court” means ‘civil contempt or criminal contempt.

          Thus, the definition of ‘contempt of court’ is not exhaustive; it just mentions that there are two types of contempt, viz. (i) Civil and (ii) Criminal. We will discuss them as follows-

(1) Civil Contempt (S. 2 (b))-

          ‘Civil Contempt’ means “wilful disobedience to any judgment, decree, direction, order, writ or other processes of a Court or wilful breach of an undertaking given to a Court”.

          Thus, as per the definition, civil contempt consists of the following-

(i) willful disobedience,

(ii) of any judgment, decree, direction, order, writ, undertaking or process of the Court.

          In Vidya Sagar v. Third Additional Distt. Judge, Dehradun[59]

Allahabad High Court held that the purpose of punishing civil contemnor is twofold viz.- (1) to punish the contemnor for deterring him from such contempt

         (2) to compel the contemnor to enforce or obey court order.

          Whether the disobedience is wilful or not is an issue to be decided by the Court, taking into consideration the facts and circumstances of each case.

(2) Criminal Contempt (S. 2 (c))-

          “Criminal Contempt” means-

(i) the publication– whether by words spoken or written or by signs, or by visible representations, or otherwise- of any matter, or

(ii) the doing of any other act whatsoever which-

 (a) scandalises or tends to scandalise, or lowers or tends to lower, the authority of any Court; or

(b) prejudices, or interferes or tends to interfere with the due course of any judicial proceeding; or

(c) interferes or tends to interfere with, or obstructs, or tends to obstruct, the administration of justice in any other manner.

          Thus, criminal contempt is conduct directed against the dignity of the Court. The definition is wide enough to include any act of a person which would tend to interfere with the administration of justice or which would lower the authority of the Court.

          The term ‘scandalise’ means the defamatory, derogatory, false, malicious, disgraceful statement regarding the person as a judge. The term ‘scandalise’ simply means any hostile criticism of the judge.

          It depends upon the facts and circumstances of each case to be decided by the court as to whether the publication or act is criminal contempt or not.

          The offence of contempt is complete by mere attempt and does not depend on the actual deflection of justice.

In Re, S.K. Sundaram,[60] the contemnor send a telegraphic message against the then Chief Justice A. S. Anand to step down as Chief Justice of India for holding office even after passing of superannuation age. The contemnor had also threatened to launch a criminal proceeding if Chief Justice did not step down.

The Court held it as a gross criminal contempt of court.

III. Defenses to Contempt-

          The defences for civil contempt and criminal contempt are different; therefore, we will discuss them as follows-

A. Defenses for Civil Contempt-

          Following defences are available to contemnor in civil contempt viz.-

1. Disobedience or breach not wilful-

          “Wilful” disobedience of the order, decree etc., of the Court or breach of an undertaking is an important ingredient of civil contempt. Hence, the disobedience or breach that was not willful is a good defence for civil contempt.

In State of Bihar v. Bihar M.S.E.S[61]

Facts– The court had ordered to pay salaries of employees. The salaries of some of the employees were not paid because their appointments were in serious doubt.

Court held that– In the above circumstance, it could not be held that the contempt was wilful in demanding punitive action.

2. The order has been passed without jurisdiction-

          If the order disobeyed is proved to have been passed by the Court without jurisdiction, the disobedience would not amount to contempt of court. Similarly, if the undertaking disobeyed is proved to have been given in a proceeding which was without jurisdiction, the disobedience would not amount to contempt of court.

3. Order disobeyed is vague or ambiguous[62]–

          Vague or ambiguous order is a defence in civil contempt. The order is vague if it is not specific and complete.

4. Compliance with the order is impossible[63]–

          ‘Compliance with the order of the Court is impossible’ is a good defence in civil contempt in appropriate cases. The defence can only be raised in cases where implementation of the order is not practically possible.

5. No knowledge of order[64]–

          A person cannot be held guilty of contempt in infringing an order of the Court of which he knows nothing.

In Profulla Kumar Sadh v. Murari Hait[65]

Calcutta High Court observed that ‘where an order of status quo is passed by the Court, but the party continues the work before receiving the order and also has no actual knowledge of the order, is not liable for contempt of court’.

6. Order involves more than one reasonable interpretation-

          If the order of the Court involves more than one reasonable and rational interpretation, and the respondent adopts one of them and acts accordingly, he cannot be held liable for contempt of court.

B. Defenses for Criminal Contempt-

          Ss. 3 to 7 of the Contempt of Courts Act, 1971, have provided some defences to Criminal Contempt. Moreover, according to S. 8 of the Act, these defences do not affect other defences available to the accused under Criminal Contempt. It means the defences provided by the Act in Ss. 3 to 7 are in addition to the defences available under any other laws or precedents.  The defences provided in Ss. 3 to 7 are discussed below.

1. Innocent publication and Distribution of matter[66] (S. 3)-

          A person should not be guilty of contempt of court if he did not know of a pending proceeding before the court while distributing material for which he has been indicted for contempt (S. 3 (1)).

          Similarly, it does not amount to contempt if, while publishing or distributing a matter, the proceeding was not pending before the Court (S. 3(2)).

          Moreover, if at the time of publishing or distributing the matter, the person had no reasonable grounds for believing that it contained or was likely to contain any such contempt matter (S. 3 (3)).

          Therese defences are available under civil as well as criminal contempt.

2. Fair and accurate report of judicial preceding[67] (S. 4)-

          A person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding at any stage thereof.

3. Fair criticism of judicial act[68] (S. 5)-

          A person shall not be guilty of contempt of Court for punishing any fair comment on the merits of any case which has been heard and finally decided.

In Arundhati Roy v. Union of India[69]

The Supreme Court held that fair criticism of the conduct of a judge, the institution of the judiciary and its functioning might not amount to contempt if it is made in good faith and public interest.

4. Bona fide complaint against the presiding officer of the subordinate court[70] (S. 6)-

          A Bona fide complaint against the presiding officer of the subordinate Court is a good defence. Thus, a bona fide complaint to the High Court or any other Court to which the presiding officer (about whom the complaint is made) is subordinate is a defence for contempt.

5. No substantial interference with due course of justice[71] (S. 13)-

          The person cannot be held guilty unless it is satisfied that the contempt is of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice.

IV. Punishment for Contempt-

1. 12 of the Contempt of Courts Act, 1971 lays down the following punishment for contempt-

a. Punishment for contempt (S. 12 (1))-

          Contempt of Court may be punished with simple imprisonment for a term which may extend to six months or with a fine which may extend to two thousand rupees or both. This provision does not affect punishment expressly provided in any other sections of this Act or any other law.

b. Apology an Exception+[72]–

          The proviso to the section carves an exception to the punishment and provides that the accused may be discharged or the punishment awarded may be remitted on an apology being made to the satisfaction of the Court.

          It further explains that an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. Thus, the exceptional clause makes it mandatory for courts to accept an apology than punishment if the accused makes it bona fide.

In Re Nand Lal Balwani[73]

Facts- The advocate shouted slogans in open court and hurled his shoe towards the court. His action intimidated the court and caused interference with judicial proceedings. The advocate was found guilty of gross criminal contempt.

Supreme Court rejected the apology on the ground that it was not genuine and advocate not repentant. The Court sentenced the advocate to four months of simple imprisonment and a fine of Rs. 2000.

c. Limit on excess punishment (S. 12 (2))-

          No court shall impose a sentence in excess of that specified above for any contempt either in respect of itself or of a Court subordinate to it. Thus, this clause limits the extent of punishment; the court is not allowed to inflict more punishment than prescribed above in any case, either for contempt of itself or of any other court.

d. Fine as a general punishment in civil contempt (S. 12 (3))-

          Where a person is found guilty of civil contempt, the Court, if it considers a fine will not meet the ends of justice and that a sentence of imprisonment is necessary, shall, instead of sentencing him to simple imprisonment, direct that he be detained in civil prison for such period not exceeding six months as it may think fit.

          The provision mandates awarding a fine as a general punishment in civil contempt; however, if the court thinks that only a fine would not meet the ends of justice, then the court is permitted to impose punishment of civil prison and not imprisonment.

e. Punishment in case of a company (S. 12 (4))-

          Where the person found guilty of contempt of court in respect of any undertaking given to a Court is a company, every person who, at the time of contempt, was responsible for the conduct of the business of the company shall be liable for civil prison. If such contempt is committed with the consent or connivance of any director, manager, secretary or other officers of the company, each is liable for the punishment.

f. Limitation for action for contempt (S. 20)-

          No Court shall initiate any proceedings for contempt after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.

V. Jurisdiction of the High Court and the Supreme Court-

a. Supreme Court and High Court are the courts of records-

          As per Art[74]. 129 the Supreme Court and as per Art. 215 High Courts are the courts of record.

According to Corpus Juris and Halsbury’s Law of England, the ‘Court of Record’ has two powers viz.-

(i) to punish for its own or subordinate court’s contempt.

(ii) a Court whose proceedings (a record) are enrolled (kept) for perpetual memorial or testimony.

      Thus, the court of record implies the above two powers. In fact, these powers are inherited from earlier English Courts.

b. Supreme Court’s power to punish for contempt-

Art. 129 of the Indian Constitution provides that “The Supreme Court shall be a Court of Record and shall have all the powers of such a court including the power to punish for contempt of itself.”

Like High Court (under S. 11), there is no specific provision empowering the Supreme Court to punish contempt.  However, the Supreme Court is the Court of Record and has the inherent power to punish contempt.

In Re V. C. Mishra[75]

The Supreme Court has observed that “the jurisdiction under Art. 129 is independent of the statutory law of contempt. The jurisdiction of this Court under Art. 129 being sui generis it cannot be controlled by any statute”.

c. High Court’s power to punish for contempt-

          As per Art. 215 of the Constitution, “Every High Court shall be a Court of Record and shall have all the powers of such a court including the power to punish for contempt of itself.”

          Thus, on similar lines to the SupremeCourts’ powers, the High Court also holds power as a Court of Record. The High Court’s power is also inherent.

          In addition to the abovementioned power under Art. 215, the Contempt of Courts Act, 1971 in S. 10 also empowers High Court with specific contempt powers.

d. Punish for contempt of itself as well as of subordinate courts-

As per S. 10, every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt of itself.

          Thus, the section only provides that the High Court shall exercise the same powers and shall follow the same procedure and practice in respect of contempt of courts subordinate to it as it exercises in respect of contempt of itself. It shows that the High Court has the power to punish not only for the contempt of itself but also for the contempt of subordinate courts.

          The proviso to S. 10 provides that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.

                  In Bathina Ramakrishna Reddy v. the State of Madras[76]

The Supreme Court has held that- the proviso excludes the jurisdiction of the High Court only in cases where the act is alleged to constitute contempt of a subordinate court is punishable as contempt under specific provisions of the Indian Penal Code but not where these acts merely amount to offences of other description for which punishment has been provided in the I.P.C.

          The object of the proviso seems to prevent parallel proceedings between two jurisdictions on the same facts to avoid double jeopardy.

e. Extraterritorial jurisdiction of the High Court (S. 11)-

High Court shall have jurisdiction to inquire into or try a contempt of itself or any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits.

          Thus, S. 11 confers power on the High Court to inquire into or try a contempt of itself or any court subordinate to it even though the act of contempt has been committed or the offender is found outside the local limits of its jurisdiction.

f. Power of Supreme Court and High Court to make rules-

          The Supreme Court or, as the case may be, any High Court may make rules not inconsistent with the provisions of this Act, providing for any matter relating to its procedure (S. 23).

As per the power conferred by S. 23, the Supreme Court has framed 16 rules with the name “The Rules to Regulate Proceedings for Contempt of the Supreme Court 1975”.

The rules, as the name itself suggest, are made to prescribe proceeding for contempt of court.

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(..6..)

Accountancy for Lawyers[77]

         QUESTION BANK

1. Discuss principles of Bookkeeping and explain the significance of accountancy for lawyers.
2. Explain the meaning of the Single entry and Double entry systems. What are the advantages of the Double entry system?
3. Explain the role of accountancy for a lawyer and discuss the duty of an advocate to maintain the accounts.

Short Notes

1. Double Entry Book Keeping.
2. Bank Reconciliation statement.
3. Assessment of Income and Expenditure and payment of taxes by Advocate.

TABLE OF CONTENT

1. Provisions requiring advocates to maintain accounts-…………………………………. 32
2. To Keep account of client’s money (Rule 25)-………………………………………………….. 32
3. Advocates fees and expenses are to be separately mentioned (Rule 26)-… 32
4. Receipt of amount is to be intimated (Rule 27)-………………………………………………… 32
5. To take settled fee (Rule 28)-………………………………………………………………………………….. 32
6. Return balance (Rule 29)-………………………………………………………………………………………….. 32
7. Copy of account shall be furnished (R. 30)-……………………………………………………….. 32
8. Not to convert funds into loans (R. 31)-……………………………………………………………….. 32
9. Not to fund case (R. 32)-…………………………………………………………………………………………… 32
10. Books of accounts to be maintained by advocates-…………………………………… 33
11. Cash book-……………………………………………………………………………………………………………………… 33
12. Receipt Voucher-………………………………………………………………………………………………………….. 33
13. Payment Vouchers-………………………………………………………………………………………………………. 33
14. Journal-…………………………………………………………………………………………………………………………….. 33
15. Ledger-……………………………………………………………………………………………………………………………… 33

III. Accounting systems-………………………………………………………………………………………………….. 33

1. Single entry system-…………………………………………………………………………………………………….. 33
2. Double entry system-………………………………………………………………………………………………….. 33
3. Advantages of maintaining accounts by Advocates-………………………………… 34
4. To calculate annual income-…………………………………………………………………………………….. 34
5. To know expenses and liabilities-…………………………………………………………………………… 34
6. To pay income tax-………………………………………………………………………………………………………. 34
7. To pay professional tax-…………………………………………………………………………………………….. 34
8. To ascertain the amount due from the client or due to the client-………………… 34
9. Helps in improving income-………………………………………………………………………………………. 34
10. Helps in reducing costs-……………………………………………………………………………………………… 34
11. Getting bank loans becomes easy-………………………………………………………………………….. 34
12. Compliance of legal requirement-…………………………………………………………………………… 34
13. Principles of bookkeeping and accounting-…………………………………………….. 35
14. Assets-……………………………………………………………………………………………………………………………… 35
15. Liabilities-……………………………………………………………………………………………………………………….. 35
16. Capital-…………………………………………………………………………………………………………………………….. 35
17. Income-…………………………………………………………………………………………………………………………….. 35
18. Expenditure-……………………………………………………………………………………………………………………. 35

     Advocates Act 1961 requires Advocates to maintain accounts. Advocates must maintain proper accounts to calculate (i) Annual Income, (ii) Income Tax, (iii) Professional Tax, and (v) the Amount due to or from the client.

I. Provisions requiring advocates to maintain accounts-

          Bar Council of India Rules 25 to 32 of chapter II of part VI provides for the maintenance of accounts of the clients. These rules are as follows-

1. To Keep account of the client’s money (Rule 25)-

          An advocate should keep accounts of the client’s money entrusted to him. The accounts should show the amounts received from the client, the expenses incurred for him and the debits made on account of Advocate fees with the respective dates and all other necessary particulars.

2. Advocates’ fees and expenses are to be separately mentioned (Rule 26)-

          Where money is received from the client, it should be entered whether the amount has been received for the advocate’s fees or expenses. The amount received for the expenses shall not be diverted towards the Advocates fees without the consent of the client in writing.

3. Receipt of the amount is to be intimated (Rule 27)-

          Where any amount is received on behalf of the client, the fact of such receipt must be intimated to the client as early as possible.

4. To take a settled fee (Rule 28)-

          After the completion of the proceeding, the advocate shall be at liberty to take the settled fee[78] due to him from the unspent money in his hand.

5. Return balance (Rule 29)-

          Where the fee has been left unsettled, the advocate shall take the fees to which he is legally entitled from the money of the client remaining in his hands after the completion of the proceeding. The balance shall be returned to the client.

6. Copy of the account shall be furnished (R. 30)-

          A copy of the client’s account shall be furnished to him after getting the necessary copying charges from him.

7. Not to convert funds into loans (R. 31)-

          An advocate shall not make any agreements whereby the client’s funds in his hands are converted into loans to the advocate.

8. Not to fund case (R. 32)-

          An advocate shall not lend money to his client for the purpose of conducting the case.

II. Books of accounts to be maintained by advocates-

As per Income Tax Act, every Advocate is required to maintain the following books of accounts and other documents to enable the Assessing Officer to calculate his total income, viz.-

1. Cashbook-

          Cash Book is the book in which the amount received by the Advocate from the client and others and the amount spent for the clients are written.

2. Receipt Voucher-

          A receipt Voucher is a document prepared for recording the receipt of money by cash or cheque from the clients. When Advocate has received money from the client, the Advocate has to issue a receipt to the client. An advocate shall maintain receipt books with serially numbered receipt forms in duplicate.

3. Payment Vouchers-

          Payment Vouchers are secured to record such payments for which receipts are not obtainable from the person to whom such payments are made, such as auto fare, court fees, stamps, refreshment expenses etc.

4. Journal-

          Journal is the book of the first or original entry. The transactions are recorded in the order of their occurrence in the Journal. It contains the date of the transaction, the account to which the transaction relates, the amount to be debited, the amount to be credited, an explanation of the transaction etc.

5. Ledger-

          The transactions recorded in the journal are to be posted to the separate heads of account in another book called Ledger. Different pages are allotted to the different heads of accounts in the ledger. When the journal entries are posted to the concerned heads of the account of the ledger, the page number of the ledger shall be noted in the journal for easy reference. The ledger account of an advocate shall contain the head of the ‘clients account’. In the client account for each and every client, separate pages shall be allotted, and separate accounts shall be maintained for them.

III. Accounting systems-

          Modern accounting systems are classified as single entry and double-entry systems. A business entity can record its monetary transactions either on a single-entry system or a double-entry system of bookkeeping.

1. Single entry system-

          A single-entry system is a system in which only one aspect of the transaction is recorded. A single-entry system is less laborious as well as less time-consuming. It is economical but unscientific. In it, some transactions are recorded on both the sides like a double entry system, some are recorded on one side only, and some others are not recorded. In other words, it is a mixture of double entry, single entry and no entry. This system of accounting is apt for concerns whose profit, loss, assets, liabilities etc., are undesirable to be published.

          However, according to accounting standards, the single-entry system is faulty, incomplete, inaccurate and unscientific.

2. Double entry system-

          The double-entry system completely records the transactions which need substantial effort and time. The system is based on fundamental principles of accounting, and so it records each and every aspect of the transaction.

          As the name itself suggest, every entry to an account requires a corresponding and opposite entry to a different account, e.g. suppose Mr X has purchased goods of Rs. 1000 for cash from Mr Y, so here, on the one hand, he has received goods, and on the other hand, the cash is given to Mr Y. Thus, it means goods are acquired by paying cash. Therefore, the double entry system records both aspects of a single transaction, i.e. the increase of goods with the simultaneous decrease in cash.

          The double entry system maintains that every financial transaction has two aspects, i.e. giving and receiving aspects. The giving aspect or expenditure is named ‘Credit’, and the receiving aspect or receipt is named ‘Debit’. So in a double-entry account system, as the name itself suggest, there are two sides, i.e. ‘Credit’ and ‘Debit’.

          Due to this two-fold effect, the system possesses completeness and accuracy as well, as it matches the generally accepted accounting principles. This accounting procedure starts with source documents, followed by the journal, ledger, and trial balance, and then at the end, financial statements are prepared. In this system, there are fewer chances of fraud and embezzlement.

IV. Advantages of maintaining accounts by Advocates-

          Advocates have the following advantages of accounting, viz.

1. To calculate annual income-

          Maintaining accounts facilitates advocates in knowing their annual income. Without maintaining an account like other businesses, advocate cannot know their annual income accurately. Since advocacy is a profession, it has a business aspect also. Therefore, for an advocate, it is necessary to know his annual income so as to increase it in future.

2. To know expenses and liabilities-

          Maintaining accounts facilitates advocate knowing expenses and liabilities precisely. In any business concern, it is necessary to know expenses and liabilities.

3. To pay income tax-

          Paying income tax and professional tax is a national and legal duty of the advocate. Proper accounting facilitates advocates to know their exact income. If the income is above the taxable limit advocate has to pay Income Tax.

4. To pay professional tax-

It is incumbent on an advocate to pay professional tax. Professional tax varies per income. Keeping proper accounts facilitate advocate in calculating the exact amount of professional tax. Nowadays, in exceptional circumstances, Advocates have to pay GST (Goods and Services Tax). Maintaining accounts makes tax-paying work easy.

5. To ascertain the amount due from the client or due to the client-

          It is the duty of an advocate to maintain a proper account of each client’s amount received and remaining due. Moreover, it is necessary to maintain an account of the amount received on behalf of the client to be paid to him.

6. Helps in improving income-

          Exact statements of accounts help the advocate to know the areas in which his income can be increased.

7. Helps in reducing costs-

          Maintaining accounts helps advocate to identify excess amount spending so as to reduce it. It helps in avoiding and identifying unnecessary expenses.

8. Getting bank loans becomes easy-

          Proper maintenance of accounts and payment of taxes make advocates eligible to get loans easily. Otherwise, it becomes very difficult to get a loan from the bank.

9. Compliance with legal requirements-

          As discussed earlier, the law requires advocates to maintain accounts. By maintaining accounts, Advocate makes compliance with the law. By maintaining an account advocate discharges his legal duty. It facilitates advocates to assessment income and expenditure and payment of taxes.

V. Principles of bookkeeping and accounting-

          There are the following fundamental elements or principles of accounting, viz.

1. Assets-

          Assets generally mean the accumulation of all objects of real accounts and also include loss formed part of the net result. The increase in the asset is booked as debit, and the decrease in assets is credited.

          An asset account is thus an economic resource which benefits the business. Law Library, Computers, laptops, furniture, Cash, Bank, accounts receivable, inventory, land, building,  machinery, vehicles, trademark, patients etc., are assets.

2. Liabilities-

          Liabilities generally mean the indebtedness of concern in respect of any personal or other accounts. Thus, the increase in liabilities is booked as credit, and the decrease in liabilities is debited.

          Liability accounts record debts or future obligations the business owes to others. Accents payable, salaries and wages payable, income taxes, bank overdrafts, trust accounts, accrued expenses etc., are liabilities.

3. Capital-

          Capital or equity accounts record the claims of the owners of the nosiness to the assets of that business. Capital, retained earnings, drawings, common stock, accumulated funds, etc., are examples of equity capital.

          Capital means the investment of the owners of the concern in the business. Even though equity capital is a liability in nature, they are considered separate from liabilities. Profit or loss affects the capital because the owner has to accept profit or loss as his responsibility.

4. Income-

          Income account record all increases in Equity other than that contributed by the owner of the business. The contribution of the owner in business is called ‘capital’. Services rendered, sales, interest income, membership fees, rental income, interest from investment etc., are income.

5. Expenditure-

          Expenses account for recording all decreases in the owners’ equity which occur from using the assets or increasing liabilities in delivering goods or services to a customer. In other words, it is the cost of doing business. Telephone bills, water charges, electricity charges, repairs, salaries, depreciation, etc., are examples of expenses.

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(..7..)

Advocates Act 1961

         QUESTION BANK

Q.1 What are the salient features of Advocates Act 1961.

Q.2 What is the nature of legal profession? Sate its development in India.

Short Notes

1. Salient features of Advocates Act.

TABLE OF CONTENT

Historical Background-………………………………………………………………………….. 35

1. a) Legal Profession in Ancient India-………………………………………………………………………….. 35
2. b) Legal Profession during British Period-………………………………………………………………… 35
3. Charter of 1726-……………………………………………………………………………………………….. 35
4. Regulation Act 1773 and the Charter of 1774-……………………………………… 35

iii. Indian Pleaders-………………………………………………………………………………………………. 35

1. Establishment of High Courts-…………………………………………………………………… 36
2. Enrolment of Advocates etc.-……………………………………………………………………… 36
3. All Legal Practitioners were brought under control of the High Court-……………………………………………………………………………………………………………………….. 36

vii. Constriction of Bar Council at each High Court-………………………………. 36

1. c) Legal Profession in Independent India-………………………………………………………………….. 36

Advocates Act 1961-……………………………………………………………………………. 36

(1) Introduction-………………………………………………………………………………………………………………….. 36

(2) Composition of the Act-…………………………………………………………………………………………… 36

Historical Background-

a) Legal Profession in Ancient India-

          We hardly find the existence of a legal profession in pre-British India. The legal profession as it exists today was created and developed during the British era.

b) Legal Profession during the British Period-

          The legal profession in today’s state started in British India. Therefore, it is important to see, the development of the legal profession in British India. The legal profession developed with the developing judiciary. Thus, the development of the legal profession took place with the development of the judiciary.

i. Charter[79] of 1726-

          By the Charter of 1726 British Crown established Mayor’s courts in three Presidency towns, i.e. Bombay, Madras and Calcutta. Mayor’s Courts were based on English law.

          There was no faculty of legal education available. Persons having no knowledge of law used to practice before the courts. Mayors Courts were civil courts, and criminal jurisdiction was vested in Governor.

ii. Regulation Act 1773 and the Charter of 1774-

          The Regulation Act 1773, passed by the British Parliament, empowered the Crown to establish Supreme Courts in India by issuing a charter. Accordingly, by the Charter of 1774 Supreme Court was established at Calcutta; by the Charter of 1801, the Supreme Court was established at Madras and by the Charter of 1823, Supreme Court was established in Bombay.

          In a true sense, the legal profession in India started with the Charter of 1774. The Charter empowered the Supreme Court of Calcutta to approve and enrol Advocates and Attorneys to practice before it. The Supreme Court had the power to remove any advocate or attorney on reasonable grounds.

          At that time, Advocates and Attorneys were British, and no Indian was allowed to be Advocate or Attorney.

iii. Indian Pleaders-

The Bengal Regulation Act 1793 permitted qualified Hindu and Muslim persons only to enrol as pleaders.

          The Legal Practitioners Act of 1848 allowed all qualified persons of any nationality or religion to enrol as a pleader of Sadar Diwani Adalats (i.e. Civil Courts of East India Company).

          The Legal Practitioners Act of 1853, authorised Barristers and Attorneys of the Supreme Court to plead in any of the Company’s Courts.

iv. Establishment of High Courts-

          The Indian High Courts Act of 1861 established High Courts in Presidency Towns. Civil Courts were also established in a different town. Similarly, criminal Courts were also established.

v. Enrolment of Advocates etc.-

          The Letter Patent of 1865[80] empowered High Court to enrol legal practitioners.

          The High Court at Calcutta was empowered by the Letter Patent to approve, and admit enrol so many advocates, vakils and attorneys as the High Court may deem fit. These persons were to appear before High Court.

vi. All Legal Practitioners were brought under the control of the High Court-

          The Legal Practitioner’s Act of 1879, defined the term ‘Legal Practitioner’ means an advocate, vakil, attorney of any High Court, a pleader, Mukhtar or revenue agent.

          All these legal practitioners were brought under the control of the High Court. Advocates were the Barristers, who studied in Britain, and Vakils were the persons who had taken law degrees from Indian Universities. Similarly, Pleaders and Mukhtars were Indian lawyers.

          The Act was the first elaborate provision for legal professionals and practitioners. The Act expanded the scope of legal practitioners to practice before all courts. The Act also made provisions for the suspension and dismissal of legal practitioners from practice on specified grounds[81].

vii. Constriction of Bar Council at each High Court-

          An Indian Bar Committee was constituted in 1923 under the Chairmanship of Sir Edward Chamier to consider the issue of whether all Indian Bar could be constituted. However, the committee suggested constituting separate Bar Councils at every High Court level.

          According to the suggestion of the Committee, the Indian Bar Council Act was passed in 1926, whereby Bar Councils were constituted separately at each High Court’s level.

          The Act abolished the distinction between Barristers and Advocates. However, the leaders and Mukthars practising in Mufusil Courts were kept separate and were not brought under the Act.

c) Legal Profession in Independent India-

          In independent India, the All India Bar Committee was constituted in 1951 under the Chairmanship of Justice S. R. Dass. As per the recommendations, the present Advocates Act 1961 was constituted.

Advocates Act 1961-

(1) Introduction-

Advocates Act 1961 repealed the then-existing Indian Bar Council Act 1926. The Advocates Act of 1961 is made applicable to the whole of India. The Act in independent India brought revolutionary changes in the legal profession. The Act, in a true sense, endowed dignity and integrity to the legal profession in India.

          The Act has provided for the establishment of an autonomous Bar Council at each State level and the All India Bar Council at the national level; it consists of representatives of the State Bar Council. According to the Act, a State Bar Council has to enrol Advocates and prepare a roll of all the Advocates practising in that state; thereafter, a common roll of advocates practising in the whole of India is to be prepared by the Bar Council of India.

(2) Composition of the Act[82]–

          Advocates Act 1961 contains sixty sections divided into seven chapters.

Chapter I- consists of preliminary issues, such as short titles, definitions etc.

Chapter II- deals with the Bar Councils.

Chapter III- deals with the admission and enrolment of advocates.

Chapter IV- deals with the rights of advocates to practice.

Chapter V- deals with the conduct of advocates.

Chapter VI- deals with miscellaneous issues, and

Chapter VII- deals with the temporary and transitional provisions.

          We have discussed these chapters in detail at appropriate places.

*****

(..8..)

Noble Profession of Advocacy/ Seven Lamps of Advocacy

         QUESTION BANK

Q.1 “Advocacy is a profession and not a business” comment.

Q.2 “Every successful Advocate should possess certain good qualities” Explain in the light of the seven lamps of Advocacy.

Short Notes

1. Seven lamps of advocacy.
2. Noble profession of advocacy.

TABLE OF CONTENT

1. Legal Profession………………………………………………………………………………. 37

Equipment of a successful Advocate-………………………………………………………………………… 37

1. Honesty, integrity and character-…………………………………………………………………………….. 38
2. Patience and Preservance-…………………………………………………………………………………………. 38
3. Legal learning-……………………………………………………………………………………………………………….. 38
4. Study of case laws-……………………………………………………………………………………………………… 38
5. Use of legal phrases-…………………………………………………………………………………………………… 38
6. Manners in Court-…………………………………………………………………………………………………………. 38
7. General Education-………………………………………………………………………………………………………. 38
8. Sharp memory and intellect-……………………………………………………………………………………… 39
9. Proper presentation of case-……………………………………………………………………………………… 39
10. Citing appropriate authority-………………………………………………………………………………….. 39
11. Maintain independence and dignity-…………………………………………………………………….. 39
12. Seven Lamps of Advocacy-………………………………………………………………… 39
13. Honesty-…………………………………………………………………………………………………………………………… 39
14. Courage-………………………………………………………………………………………………………………………….. 39
15. Witt-………………………………………………………………………………………………………………………………….. 39
16. Eloquence-………………………………………………………………………………………………………………………. 39
17. Judgment-………………………………………………………………………………………………………………………… 40
18. Fellowship-……………………………………………………………………………………………………………………… 40
19. Tact-………………………………………………………………………………………………………………………………….. 40

1. Legal Profession–

          The legal profession is a noble profession. It is not a business or a trade. A person practising law has to practice in the spirit of honesty and not in the spirit of mischief-making or money-getting. An Advocate’s attitude towards and dealings with his client has to be scrupulously honest and fair.

          In V. C. Rangadurai v. D. Gopalan[83] Justice Krishna Iyer state that-

“Law’s nobility as a profession lasts only so long as the members maintain their commitment to integrity and service to the community”.

          A person practising law has an obligation to maintain probity and high standards of professional ethics and morality.

In Dhiraj Singh Chaudhari v. Nathulal Vishwakarma,[84] the Supreme Court set aside a compromise between the party and advocate and punished the advocate by, suspending him from practice for 3 months, who grabbed the client’s property.

          In business, money matters but in professional service to society matters. In present days’ the legal and medical professions are very important for society.

          Professor Palmer has very aptly mentioned that “A ‘trade’ aims primarily at personal gains, whereas a ‘profession’ at the exercise of powers beneficial to mankind”. To be a professional requires a high degree of learning and specialized knowledge, some sort of Code of ethical conduct and a sense of the spirit of service. It is this sense of public service that makes a profession different from other occupations.

Equipment of a successful Advocate-

          To be a successful Advocate, a person needs the following qualities viz.

1. Honesty[85], integrity[86] and character[87]–

          An Advocate must possess honesty, integrity and good character. Honesty is the quality of freedom from deceit, cheating, stealing and telling lies. An advocate needs to be honest with his clients and towards the court.

          Integrity is the quality of completeness and uprightness of character, ‘character’ counts both mental and moral qualities, which makes one person different from the other.

          All the abovementioned virtues are basic requirements of a successful advocate.

2. Patience[88] and Preserving[89]–

          Patience is the power of enduring trouble, suffering, and inconvenience without complaining. An advocate with patience should have the ability to wait for results to deal with problems calmly and without haste. Preserving is a constant effort to achieve something. An Advocate capable of taking labour, with maximum patience, self-confidence and faith, is honoured by success.

3. Legal Learning[90]–

          A comprehensive study of law is necessary for an Advocate. He must digest the law with a spirit of inquiry. He must go not only through sections of the Act but case law developed under these sections. He must become a “running encyclopedia of law”.

4. Study of case laws-

          Case laws of High Courts and Supreme Court are reported by reporters like All India Reporter (AIR), Maharashtra Law Journal etc.

          To be comprehensive in law, an Advocate should not only study Bare Acts and sections but also case laws. The interpretation of sections by case laws gives a complete idea of law. Sometimes, sections or Articles are so thoroughly interpreted that bare reading of a section does not give us a complete idea of their real meaning. Therefore, reading sections in the light of case laws is necessary for an Advocate to achieve perfection.

          An Advocate, must-read case laws in detail and not just go through headnotes of it. An advocate should cite appropriate case laws in support of his case by highlighting relevant portions.

5. Use of legal phrases[91]–

          Law has peculiar phraseology. An advocate is expected to use legal phraseology in his arguments.

6. Manners in Court[92]–

          An Advocate must follow proper manners of behaviour in court. He should be calm and respectable to the court. He should speak politely. He should not lose his temper in court if anything is expressed against his opinion. He should maintain the decorum of the court.

7. General Education[93]–

          An advocate should be good in legal education as well as in general education such as science, social science, anthropology, physics etc. The versatile personality of Advocate and his profound reading makes him successful.

8. Sharp memory and intellect-

          Memory means the power of keeping facts in the conscious mind and of being able to call them back at will. It is an important virtue of an advocate to remember necessary knowledge and reproduce it at an appropriate time. An advocate must be intelligent.

9. Proper presentation of the case[94]–

          An advocate should present his case meaningfully. He must arrange his thoughts in proper sequence and chronological order without any confession. He should not repeat arguments again and again. An advocate should deal with adverse points in a proper manner.

10. Citing appropriate authority[95]–

          An Advocate should quote the applicable citations. He should prefer to cite the latest authorities. The decisions of the Supreme Court and the High Court subordinate to which the court is, are to be cited. However, if citations of the immediate above High Court are not available, then citations of any other High Court may be cited. The number of citations do not matter, but the accuracy of the citation matters. An Advocate blindly should not go through head notes but with the whole citations. An Advocate should cite a few recent cases of the higher judiciary which have a close resemblance to the facts of his case in hand. An Advocate should highlight the portion of citation on which he relies.

11. Maintain independence and dignity[96]–

          An advocate should maintain his dignity, independence and integrity. He should discharge his duties fearlessly and faithfully. He should not be led by the sentiments of his clients.

B. Seven Lamps of Advocacy[97]–

          Advocacy is a noble profession. Therefore, a good advocate should possess some essential qualities and virtues. Judge Abbot Parry, in his book “The Seven Lamps of Advocacy”, called these qualities “Seven Lamps of Advocacy”. These qualities are as follows-

1. Honesty-

          ‘Honesty’ means the quality of straightforwardness, freedom from deceit, cheating or stealing and not telling lies. ‘Honesty’ makes the advocate best. The nobleness of the legal profession lies in honesty.

          An advocate should tell all facts clearly to his client, he should not adopt illegal practices, and he should not commit professional misconduct.

2. Courage-

          ‘Courage’ enables a person to control fear in the face of danger, pain, misfortune etc. An Advocate must be courageous. He should face all sorts of pressures and fear against his client’s interest.

3. Witt[98]–

          ‘Witt’ means cleaver and humorous expression of ideas, the liveliness of spirit. ‘Witt’ flows from intelligence, understanding and quickness of mind. ‘Witt’ lessens the workload and relaxes the advocate’s mental stress and strain.

4. Eloquence[99]–

          Eloquence means fluent speaking and skilful use of language to persuade or appeal to the feelings of others. The success of an advocate depends on his eloquence. An advocate must be fluent and skilful in using appropriate words to impress the court. It is being said that “words are lawyers’ tools of trade”.

5. Judgment[100]–

          Judgment is the capacity of an advocate to judge the merits and demerits of the case on hearing the brief and seeing the documents. It is his duty to inform his client of the legal position of the case after judging the case.

          An advocate should not keep his party in the dark as to the demerits of his case. The party should not be left surprised after listening to the result of the case.

          Thus, judgment is an important quality of an advocate to judge the merits and demerits of the case.

7. Fellowship[101]–

          Fellowship means to be in friendly association or companionship. Advocates, even opponents before the court should not be enemies outside of the court. Their conflict must end as they come out of court. They should not be enemies of each other merely because they are opponents in court.

          Fellowship is thus the spirit of fellowship, which is necessary between advocates.

8. Tact[102]–

          One more lamp, i.e. tact, is added by K. V. Krishnaswami Aiyer. According to him, ‘tact’ means handling people and situations ‘skilfully and without causing problems’.

          An advocate must be in a position to tackle and win his client, opposite party and opposite advocate. However, many advocates of great ability fail due to non-having tact.

          An advocate is not supposed to quarrel with a court or lose his temper over trifling things in the court and outside. Tactful and humble advocates get success more than arrogant advocates, even though they are intelligent.

*****

[1] वकीली व्यवसायाची नितीमुल्य [वकालत की व्यावसायिक नैतिकता]

(येथून पुढे काही महत्त्वाच्या इंग्रजी शब्दांचे मराठीत अर्थ दिलेले आहेत. त्याचा उद्देष विद्याथ्र्यांना विशय चांगल्या प्रकारे समजावा एवढाच आहे. मराठी अर्थ हे विशयाला धरुन केले असल्यामुळे ते शब्दकोषाप्रमाणे अगदी बरोबर असतील असे नाही. विद्याथ्र्यांनी अभ्यास करताना विविध मराठी व इंग्रजी शब्दकोष वापरावेत-)

[2] वकीली व्यवासायातील नितिमुल्यांचे मापदंड

[3] प्रतिष्ठेने रीतीने वागने

[4] न्यायाल्याचा आदर करन

[5] वकीलांनी न्यायाधिंषांसोबत खाजगीत चार्चा करू नये

[6] विरूध्द पक्षाषी बेकायदेषीर वागण्यास नकार देने

[7] गैरमार्गाचा वापर करावयास लावना-या पक्षकारांसाठी प्रकरण चालविनेस नाकारने

[8] नातलग न्यायाधिषांसमोर वकीली न करने

[9] स्वत़ सदस्य असलेलया संस्थेचे वतीने किंवा विरूध्द प्रकरण न चालविने

[10] अर्थिक हितसंबंध असलेलया कोनत्याही प्रकरनात वकीली न करने

[11] पक्षकारांसाठी जामीनदार म्हणुन न राहने

[12] प्रकरण स्विकारण्याचे बंधन

[13] प्रकरणतुन माघार

[14] स्वतःच साक्षीदार असलेलया प्रकरणी वकील म्हणुन काम करू नयs

[15] पक्षकारास हितसंबंध स्पश्ट करणे

[16] पुरावा लपऊ नये

[17] प्रकरणाचे यषस्वितेवरून फी आकारू नयेs

[18] कार्यवाही योग्य दाव्यात स्वार्थ साधुनये

[19] स्वतः वकील असलेल्या प्रकरणातील मिळकतीसाठी बोली न लावने अथवा खरेदी न करणे

[20] स्वतः देय असलेलया रककमेतुन फी ची वजावाट करू नये s

[21] पक्षकारांचे ठेवललया खात्यातील रककम परस्पर इतरत्र वर्ग करू नये

[22] जर संबंधीत वकीलयनी त्यांचे पक्षकारांषी कोनत्याही करारा षिवाय न्यायाल्ययाचे प्रक्रीये दरम्यान काही रक्कम भरने अनिवार्य झाल्यास (उद. दाव्यात अर्जंट काॅस्ट भरावयास लसलयास इ.) व ती भरल्यास या नियमाचा भंग होत नाही

[23] विरूध्द पक्षकारांषी त्यांचे वकीलांषीवाय परस्पर चार्चा अथवा तडजोड करू नये

[24] विराधी पक्षास दिलेलया न्याय अष्वासनांची पुर्तता करने

[25] वकीली व्यवसायातील गैरवर्तण/अपक्रत्य

[26] AIR 1992 SC 2188

[27] 2004 AIR SCW 2894

[28] AIR 1997 Supreme Court 1014

[29] AIR 1997 SC 864

[30] AIR 1996 SC 98

[31] ताशेरे ओढणे/ समाज देणे

[32] AIR 1997 Supreme Court 1338

[33] AIR 1988 Supreme Court 283

[34] AIR 1997 Supreme Court 864

[35] AIR 1983 A.P. 271

[36] AIR 1976 SC 373

[37] पुर्नअवलोकण

[38] वकील संघटणा

[39] पदसिध्द् सदस्य (Officer by virtue of his office).

[40] Of the Advocates Act, 1961.

[41] (1999)3SCC 176

[42] AIR 1995 SC 691

[43] देवाण घेवाण

[44] पुर्नअवलोकनाचा अधिकार

[45] सुचणा करण्याचा अधिकार

[46] AIR 2003 SC 739

[47] वकीली व्यसासय करण्यासाठी सणद व व्यवसायात प्रवेश

[48] AIR 1995 SC 691

[49] The Bar Council of India resolution oat is meeting held on 30 April to amend Part, VI, Chapter III of the Bar Council of India Rules (Conditions for Right to Practice) was published in Gazette of India on June 12, 2010. The Resolution to conduct

[50] AIR 1999 Supreme Court 1167

[51] नैतिक बधःपाता बद्दल गुन्हे

[52] AIR 1995 SC 94

[53] AIR 2002 Supreme Court 1310

[54] In Surender Raj Jaiswal v. Smt. Vijaya Jaiswal AIR 2003 A.P. 317

[55] AIR1987 Supreme Court 1550

[56] Saraswati v. Tulsi Ram Seth AIR 1971 Delhi 110

[57] Each roll of advocates shall consists of two parts, the first part containing the names of senior advocates and the second part, the names of other advocates.

[58] वकील व न्यायाधिष यांचेतील संबंध व न्यायालयाचा अवमाण

[59] (1991) Cr.LJ 2286

[60] AIR 2001 S.C. 2374

[61] AIR 2005 SC 1605

[62] जी अज्ञा भंग केली ती अस्पश्ट व संध्दीग्द होती

[63] अज्ञेचे पालण अषकय होते

[64] अज्ञा झालेलयाची माहीती नाही

[65] 1989 Cr LJ (NOC) 39 (Cal)

[66] निश्पाप भावनेने प्रकाषन व विरतन

[67] न्यायालयाचे कामकाजाचा न्याय व योग्य अहवाल

[68] न्यायालयाचे कृतीबद्दल योग्य टिकात्मक परीक्षण

[69] AIR 2002 SC 1375

[70] खलील न्यायाधिषांचे विरूध्द वरील न्यायाधिषांपुढे तक्रार

[71]  न्यायालयाचे कामकाजात कोनताही ठोस प्रकारे हस्तक्षेप नाही

[72] न्यायालयाचे समाधानाप्रमाणे माफीनामा हा अपवाद

[73] AIR 1999 SC 1300

[74] “Article” mentioned in Constitution.

[75] AIR 1995 SC 2348

[76] AIR 1952 SC 149

[77] वकीलांचे हिषोब ठेवने

[78] ठरलेली फी

[79] सनद- राजाने दिलेले अधिकार

[80] अधिकारपत्र

[81] नमुद कारणांसाठी

[82] कायदयाची रचना

[83] AIR 1979 Supreme Court 281

[84] Civil Appeal No. 2293-2005

[85] प्रामाणिकपणा

[86] सचोटी

[87] चारित्र्य

[88] धीर /सबुरी

[89] चिकाटी

[90] सर्वकश कायदयाचे षिक्षण

[91] कायदयाचे षब्दांचा प्रयोग

[92] न्यायाल्ययातील षिश्टाचार

[93] ईतर शिक्षण

[94] केसची योग्य प्रकारे मांडणी

[95] वरील न्यायाल्ययांचे निकालाचे समर्पक दाखले देणे

[96] स्वतंत्रता व सार्वभौमत्व

[97] वकीली व्यवसायस प्रकाशमाण करणारे वकीलातील सात गुण

[98] विनोदबुध्दी

[99] चांगले वक्तृत्व

[100] प्रकरणातील मजबुत व कच्चे दुवे जाणन्याची क्षमता

[101] विरेाधी वकीलांषी मैत्राीपुर्ण संबंध

[102] लोकांशी, विराधकांषी चांगले संबंध ठेवनची युक्ती