A noble profession that has developed over time and become more rigorous due to
traditions is advocacy. This is a summary of the case of Bar Council of Maharashtra v. Dabholkar and others
, which established the standard for
determining professional misconduct in the future and helped to define precise
lines of distinction to maintain the integrity of the legal profession. It
talked about how soliciting work amounted to misconduct in terms of professional behaviour.
An advocate is not allowed to promote their services or the
profession in any way, which includes them. The Maharashtra Bar Council"s
Disciplinary Committee received the complaint. After reviewing the situation and
realizing how extensive it was, the Bar Council of India"s Disciplinary
Committee heard all 8 instances in one trial and handed down a single ruling.
Primary Details Of The Case
Case No.: Civil Appeal Nos. 1461 to 1468 of 1974
Jurisdiction: Supreme Court of India
Case Decided On: October 3, 1975
Judges: Justice V. R. Krishna Iyer, Justice Ranjit Singh Sarkaria, Justice A.C.
Gupta, Justice Syed Murtaza Fazalali
Legal Provisions Involved: The Advocates Act, 1961, Section 35, 38. The Bar
Council of India, Rule 36
Brief Facts Of The Case
This case involves the Bar Council of Maharashtra as the Petitioner v M.V.
Dabholkar and others
as the respondent. The respondents, who were lawyers
practicing in criminal courts, were charged with professional misconduct under
section 35(1) of the Advocates Act, 1961. The Bar Council of Maharashtra
considered the complaint received from the High Court of Maharashtra against the
lawyers and referred the matter to its Disciplinary Committee for further probe.
According to the testimony; recorded by the State Disciplinary Committee, these
lawyers were sited at the entrance to the Magistrates" Courts, waiting for the
arrival of potential litigants.
They raced towards the clients in an unpleasant
tussle to snatch the briefs, to lay claim to the engagements even by physical
fight, to undercut fees, and to obtain work for themselves through such
unedifying behavior. The State Disciplinary Committee held the respondents
guilty of professional misconduct and suspended them from practicing as
advocates for three years. Aggrieved by the order the respondents preferred an
appeal to the Bar Council of India under Section 37 of the Advocates Act, 1961.
Issues Involved In The Case
Arguments Of The Parties
- Whether the prosecuted practitioners are guilty of professional
- Whether the State Bar Council is considered an aggrieved party since it
has suffered any legal grieving and since the Bar Council of India has not
deprived the State Bar Council of anything?
The State Bar Council referred to as the Appellant herein has filed the present
appeal seeking to reverse the order passed by the Bar Council of India stating
that the acts committed by the practitioners were only to solicit work and does
not cross the borderline of professional misconduct. Aggrieved by the verdict of
the Disciplinary Committee, the State Bar Council approached the Supreme Court
for an appeal.
The Supreme Court argued that it was only fair to the respondents that each of
the eight cases is heard separately rather than all of them being heard
Legal Aspects Involved In The Case
- C.A. 1461/74 (Dhabolkar) Respondent Mr. Dabholkar was a Senior Prosecutor and the only witness that appeared for him testified that "I have not seen him snatching away the papers." Considering all the facts and the weak evidence against him, the Supreme Court did not state any specific order against him as he assured that being 68 years old, he would not pursue the path of professional impropriety as he had decided virtually to step out of the Bar except for four cases left with him which he desired to complete.
- C.A. 1462/74 (Bhagtani) Respondent Shri Bhagthani had not appointed a counsel, nor appeared in person, but upon examination, the Court found very little to hold him liable for.
- C.A.1463/74 (Talati) Respondent Mr. Talati was found guilty of some misconduct on his part but pleaded to show some consideration as he was in poor circumstances and had suffered because of it. Further, he expressed an unqualified regret for his deviant behavior and has prayed for the clemency of the Court, promising to practice proper professional conduct if given the chance to practice again. The court upon consideration of the said facts found him guilty but reduced his suspension, as ordered by the State Bar Council.
- C.A. 1464/74 (Kelawala) Respondent Mr. Kelawala, represented by Mr. Zaki, pleaded that he was purblind and was ready to give an undertaking to the Court that he would no longer practice his profession. Also, there was considerably little evidence against him. Given these, the court held that Mr. Kelawala will not practice the profession of law any longer.
- C.A.1465/74 (Dixit) Respondent Mr. Dixit represented by Shri Gannule was also absolved from professional misconduct due to inadequate evidence to prove him guilty of misconduct.
- C.A.1466/74 (Mandalia) Respondent Mr. Mandalia did not appear either through counsel or in person due to lack of evidence against him to prove him guilty of any particular "soliciting" act. Hence there was no proof of professional misconduct.
- C.A. 1467/74 (Doshi) Respondent Mr. Doshi contested his guilt and pursued his plea with righteous persistence and challenged the evidence and its credibility projecting his grievance about procession improprieties. Upon examining the witness and the background of Mr. Doshi, the Court ruled that he wasn"t guilty of professional misconduct but reprimanded him for the same and cautioned him to refine himself in advocacy.
- C.A.1468/74 (Raisinghani) Respondent Shri Raisinghani being 65 years old was
found guilty as the evidence showed that he had physically fought two rival
advocates in the course of snatching the briefs from clients, entering the
criminal courts. One of these fights resulted in his trousers being torn and the
other assault by him was on Mr. Mandalia, one of the respondents in these
appeals. The court also found that Shri Raisinghani was a refugee from Pakistan
and appeared at the Magistrate"s Courts to make a living. He showed remorse for
his actions and prayed that he would go nowhere close to professional misconduct
in the last years of his career. The court upon hearing this did not absolve
him, but rather reduced his suspension.
Section 35 (3) Punishment of Advocates for misconduct, Advocates Act, 1961
The disciplinary committee of a State Bar Council after giving the advocate
concerned and the Advocate-General an opportunity of being heard may make any of
the following orders, namely:
Section 38: Appeal to the Supreme Court
- dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
- reprimand the advocate;
- suspend the advocate from practice for such period as it may deem fit;
- remove the name of the advocate from the State roll of advocates.
Any person aggrieved by an order made by the disciplinary committee of the
Bar Council of India under Section 36 or Section 37 or the Attorney-General of
India or the Advocate-General of the State concerned, as the case may be, within
sixty days of the date on which the order is communicated to him, prefer an
appeal to the Supreme Court and the Supreme Court may pass such order including
an order varying the punishment awarded by the disciplinary committee of the Bar
Council of India thereon as it deems fit provided that no order of the
disciplinary committee of the State Bar Council of India shall be varied by the
Supreme Court to prejudicially affect the person aggrieved without giving him a
reasonable opportunity of being heard.
Rule 36 of the Bar Council of India Rules
An advocate shall not solicit work or advertise either directly or indirectly,
whether by circular, advertisement, personal communication, interviews not
warranted by personal relations furnishing newspaper comments or providing his
photograph to be published in connection with cases in which he has engaged or
concern. The three elements in Rule 36 are to be satisfied in order to be
amenable to the disciplinary jurisdiction the advocates must have:
Judgement In Brief
- Solicited work
- From a particular person
- With respect to a case
- It held that the Appellate Tribunal has erred in the application of Rule 36 of the Bar Council Rules, as it was only promulgated in 1965, post the Amendment and the said act took place way before that.
- When the question arose for consideration of the Bar Council of India as an "aggrieved person", the Court referred to the findings in Adi Pherozshah Gandhi v. H. M. Seervai, 1970, where an appeal filed by the Advocate General of Maharashtra to the Bar Council of India was questioned, the Court held that the right of appeal is a statutory right and is invariably confined to an aggrieved person or a person that claims to be aggrieved. And that the interests of the Bar Council are to uphold professional conduct and etiquette of the advocates enrolled under it.
- The Court also held that "the Bar Council functions in a dual capacity,
one as the prosecutor through its Executive Committee and the other
quasi-judicial performed through its Disciplinary Committee. Hence, being
the prosecutor, the State Bar Council would be an "aggrieved person" and
therefore, the appeal under section 38 of the Advocates Act, 1961 would be
- Addressing the issue of "professional misconduct", Justice Krishna Iyer stated that "Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice-social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation."
- The Bar Council acts as a sentinel of professional code of conduct and is vitally interested in the rights of the advocates as well as the purity and dignity of the profession, giving it all the more reason to be considered an "aggrieved party".
- It lit up the path to notice the nobility the legal profession holds and how advertising of the legal profession shall amount to professional misconduct. It is evident to note that the Legal profession is not a trade, and no commercial practice or merchandising must vulgarize the legal profession.
- Justice Krishna Iyer observed the idea of advertising of legal services in the following words, "The canons of ethics and property for the legal profession taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsy, for the betterment of the legal business. Law is not a trade, briefs no merchandise and to the leaven of commercial competition or procurement should not vulgarize the legal profession."
- An advocate must fulfill the above-mentioned duties to his
colleagues. The object of framing this rule is to safeguard the interest of
the profession itself. Advocacy is and profession and not a business. The
restriction put on this profession under the said rule is Constitutional and
not violative to
Article 19(1) (g) and Article 21 of the Constitution. Moreover, such
restrictions are just, fair, and reasonable, and not arbitrary, fanciful, and
- It satisfies the twin test given in Article 14 of the Constitution i.e.
the classification is just, fair and reasonable and there is Nexus between the
object and classification. The object is to achieve the efficiency of advocates
to the legal profession, to safeguard the interest of both advocates as well as
the public at large, and the better administration of Justice for which the
legal profession is a partner with the judiciary.
This case gives one of the landmark judgments making it a watershed moment in
laws related to professional misconduct in India. The Court discussed important
issues such as legal ads and the obligations of advocates to one another,
issuing a promising decision that remains in effect until this date. According
to my views, this case opens the discussion for determining if the legal
profession is suitable for a trade, and therefore whether it should be marketed
Advertising in the legal profession is frowned upon, and sufficient laws are
there which prohibit it, as well as those that recommend a dose of punishment
when an attorney advertises his profession. With lawyers strewn around the
world, it"s strangely refreshing to note that active promotion of the profession
is strictly prohibited. Since the legal profession is not a trade, it does not
require advertisements because there is no need to brag about it.
It creates an unwelcome sense of dismay among the advocates, and they cannot
afford such palpable stress. The aim is to prevent one advocate from having an
unfair advantage over the other, and advertisement suppression is undoubtedly
one explanation for this. Advocacy must live up to its reputation as a noble
career. Unfortunately, several law firms, despite their claims that they do not
advertise, use websites or other sources to lay out facts about the firm and
assert monopolistic market power, forcing smaller firms and independent
practitioners out of business.