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Scope And Extent Of Disciplinary Committee

The Law Commission, presided over by Mr. M.C. Setalvad, then Attorney-General of India, in its fourteenth report on the Reform of Judicial Administration endorsed the recommendations of the All India Bar Committee, as regards the creation of a unified all India Bar as well as the establishment, composition and functions of the state and All India Bar Councils.

The Law Commission further recommended, inter alia, that the requirement of a certain number of years' practice in the High Court for enrolment as a Supreme Court advocate should be dispensed with, the advocates on the common roll should have the right to practise in all the courts in India, the dual system should continue on the original side of the Calcutta and Bombay High Courts and the Bar should be divided into senior advocates and advocates.[2]

The Advocates Act, 1961, which received the assent of the President of India on the 19th of May, 1961, extends to the whole of India, except the State of Jammu and Kashmir. Under section 1, the Act is to come into force on such date as the central government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act.

Broadly speaking, the main features of the Act are:

  1. to have, in course of time only one class of legal practitioners viz, advocates, with the right given to them to practice in all courts and tribunals in India,
  2. to take away the powers till then vested in the courts, in the matter of admission of advocates and the maintenance of the rolls, and their disciplinary conduct (subject to an ultimate appeal to the Supreme Court), and
  3. the constitution of a central Bar Council for purposes of control and supervision with powers, inter alia, to the central Bar Council to recognise the degree in law for admission as advocates. Every Bar Council constituted under the Act is a body corporate having a common seal, and may, by the name by which it is known sue and be sued.

History Of Disciplinary Committees In India

The High Court was empowered under section 10 of the Legal Practitioners Act to reprimand, suspend or remove from practice any advocate of the High Court for professional or other misconduct after following the procedure described below.

Complaints against advocates for professional or other misconduct had to be made to the High Court. If on receipt of a complaint, the High Court did not summarily reject it, it had to refer the case for enquiry to the Bar Council, or after consultation with the Bar Council, to a district judge. The High Court had power to make such a reference suo motu even if there was no complaint. Cases referred to a Bar Council had to be enquired into by a committee of the Bar Council (called tribunal) comprising not less than three and not more than five members appointed by the Chief Justice of the High Court.[3]

The High Court was required to make rules for the conduct of disciplinary enquiries. The finding of the tribunal after enquiry was to be forwarded to the High Court through the Bar Council and the finding of a district court was to be forwarded direct to the High Court which was required to send a copy to the Bar Council. Notice was to be given of the date fixed for hearing to the advocate concerned and to the Bar Council and to the Advocate-General and after affording them an opportunity of being heard, final orders were passed by the High Court.

A record of the punishment of suspension or reprimand was made in the rolls of the High Court. If the advocate was to be removed from practice, his name was removed from the roll and the certificate of any advocate so suspended or removed was to be recalled.[4] The tribunals and the district judge conducting the enquiries were vested with powers of a court under the Code of Civil Procedure examining him on oath, compelling the production of documents and issuing commissions for the examination of witnesses.[5]

It may be pointed out that under the Act, the power of enrolment of advocates virtually continued to remain in the High Court and the function of the Bar Council was advisory in nature. The Act did not affect the original side of the Calcutta and Bombay High Courts.

Further, the attorneys of Calcutta and Bombay were not affected by the Act and the enrolment of and the disciplinary jurisdiction over the attorneys continued to be in the hands of the High Courts under their respective Letters Patents.

The right of the advocates of one High Court to practice in another High Court was made subject to the rules made by the High Court. The rules made by the Bar Councils had stipulated that advocates of other High Courts would be permitted to appear and plead in the respective High Courts only with the permission of the Chief Justice provided an advocate enrolled in that High Court appeared with him. The provisions in the Bar Council's Act were regarded as unsatisfactory.

After Advocates Act, 1961: Right To Practise

Chapter IV of the Advocates Act regulates the right of advocates to practise. One of the objects of the Act is to have in course of time only one class of legal practitioners. Different provisions of this chapter have been brought into force at different times. For instance, section 32 which empowers the courts to allow persons who are not enrolled as advocates to appear before them in particular cases was brought into force from 4-1-1963.

Sections 29, 31, 33 and 34 were brought into force from 1-6-1969. Section 30 has not yet been brought into force. Section 29 provides that subject to the provisions of the Act as from the appointed day (1-6-1969), there shall be only one class of persons entitled to practice the profession of law, namely, advocates. Under section 30 all advocates are entitled as of right to practice throughout the territories to which the Act extends in all courts including the Supreme Court, before any tribunal or person legally authorized to take evidence or before any other authority or person before whom such advocate is entitled to practice. Further under section 33 advocates alone are entitled to practice in any court.

However, sections 29, 30 and 33 have to be read along with section 50(2) and sections 55 and 58 of the Act. Section 50(2) provides that on the date on which chapter III (Admission and Enrolment of Advocates) comes into force (it came into force on 1-12-1961) certain sections of the Legal Practitioners Act, 1879, Bombay Pleaders Act, 1920, Indian Bar Councils Act, 1926, and Letters Patent of High Courts which relate to the admission and enrolment of legal practitioners stand repealed. Under sections 55 and 58 rights of certain existing legal practitioners are protected.

The net effect of the above provisions is that there can be no fresh admission of any other class of legal practitioners such as pleaders, mukhtars or revenue agents under any of the other enactments till then in force as these provisions stand repealed, and the other classes of legal practitioners so far admitted can get their sanads renewed, and exercise the same rights as they had under these enactments as before.

Reference may in this connection be made to two decided cases. The High Court of Mysore in its judgment dated 26th March, 1964 in writ petition No. 2497/1963—E.C. Agrawala v. Mysore State Bar Council[6], held that section 58(4) only empowers the renewal of sanads of pleaders who had been admitted before 1-12-1961, and does not permit fresh admission of pleaders after that date by way of issue of fresh sanads.

The other decision is that of the Calcutta High Court in Sunil Kumar v. State of West Bengal[7], holding that section 58(4) cannot apply to persons who had not acquired the necessary rights under section 6 of the Legal Practitioners Act before 1-12-1961.

In In re Lilly Isabel Thomas[8], “the proper construction of article 145(i)(a) of the Constitution in the context of a declaration that rule 16 of order IV of the Supreme Court Rules is invalid,” was the principal point raised by an advocate entitled under the Advocates Act, 1961, to practise in the Supreme Court having been originally enrolled in the Madras High Court under the Bar Councils Act, 1926. Rule 16 which now corresponds to rule 5 provided for the qualifications requisite for an advacate to be registered as an advocate on record.

It was held that section 58(3) of the Advocates Act which confers on the advocates the right of practice in the Supreme Court is itself subject to section 52 which specifically sayes the right of the Supreme Court to make rules under article 145 of the Constitution. The court held that on the express terms of article 145(1), the impugned rules 16 and 17 are valid and within the rule-making power.

The Act makes some special provisions which it is necessary to note in this connection. The power of the High Court at Calcutta and at Bombay to provide for and make rules for the admission of attorney, and for their removal or suspension is not affected by the Act.[9] The power of any court, authority, or psrson to permit any person not enrolled as an advocate under the Act to appear before it or him is specifically preserved.[10]

The High Court is empowered to make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto.[11] The exact scope and implication of this provision may, when it becomes necessary, have to be construed, in the light of the other provisions of the Act, and so as not to affect the rights conferred thereunder, on the Bar Councils.

Scope And Extent Disciplinary Committee

  1. Proceedings before state Bar Councils and the disciplinary committees

    The state Bar Council on the roll of which an advocate is enrolled has the jurisdiction and the power to act on receipt of a complaint or otherwise. A fee of Rs. 25 is prescribed by the Bar Council of India as payable on a complaint, which shall be in the form of a petition duly signed and verified as required under the Civil Procedure Code. If the state Bar Council has reason to believe that the advocate concerned has been guilty of professional or other misconduct, it has to refer the case for disposal to its disciplinary committee.

    The disciplinary committee to which the case has been referred may summarily reject the complaint. If it does not do so, it should fix a date for the hearing of the case and cause notice thereof to be given to the advocate concerned and to the Advocate-General of the state (the Solicitor-General in the case of the Delhi Bar Council). After giving him an opportunity of being heard it should make its order.
     
  2. Powers of the disciplinary committees

    Section 42 provides that 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 summoning and enforcing the attendance of any person and examining him on oath, requiring discovery and production of any documents; receiving evidence on affidavits; requisitioning any public record or copies thereof; issuing commissions for the examination of witnesses or documents and any other matter which may be prescribed.

    An advocate who is suspended from practise is debarred from practising in any court or before any authority or persons in India. The disciplinary committee of a state Bar Council may of its own motion or otherwise review any order passed by it, but no such order shall have effect unless it has been approved by the Bar Council of India.
     
  3. The disciplinary committee of the Bar Council of India

    The Act has conferred powers on the disciplinary committee of the Bar Council of India to make inquiry in some cases on complaints of misconduct referred to it, to withdraw cases for enquiry before itself, to hear appeals and order stay and to review its own orders. It has the power to make such order as to costs of any proceedings before it as it may deem fit. Any such order shall be executable as if it were an order of the Supreme Court.

Power to enquire and to withdraw

If on receipt of a complaint or otherwise, the Bar Council of India has reason to believe that any advocate on the common roll whose name is not entered on any state roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committees, The committee may also of its own motion, withdraw for enquiry 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.

Power to hear appeals and order stay

Any person aggrieved by an order of the disciplinary committee of a state Bar Council made under section 35 may within sixty days of the date of the communication of the order to him, prefer an appeal to the Bar Council of India. Every such appeal is to be heard by the disciplinary committee of the Bar Council of India which may pass such order thereon as it deems fit. Under the rules made by the Bar Council of India a fee of R.s. 50 has been prescribed for an appeal to be filed before the Bar Council of India.

The case of Adi Phirozshah Gandhi v. H.M. Seervai[12], before the Supreme Court was one in which suo motu action was taken against the advocate by the Bar Council of Maharashtra. Notice was given to the Advocate-General as required under the Act. The Advocate-General appeared before the committee. The disciplinary committee was satisfied that there was no reason to hold that the advocate was guilty of professional or other misconduct.

The Advocate-General filed an appeal against the said order under section 37 of the Act. The disciplinary committee of the Bar Council of India in its order allowed the appeal and suspended the advocate for a year over-ruling, inter-alia, the objection that the Advocate-General was not competent to file the appeal. The advocate appealed to the Supreme Court of India. In its judgment by the majority Their Lordships Hidayat-ullah, CJ., Shelat, J., Mitter, J[13], it was held that the appeal by the Advocate-General was incompetent.

Power of Review

Section 44 confers powers of review on the disciplinary committee of a Bar Council by its own motion or otherwise. However, no order or review of the disciplinary committee of state Bar Council shall have effect unless it has been approved by the Bar Council of India. In O.N. Mahindroo v. Dist. Judge, Delhi[14], the Supreme Court upheld the view of the Bar Council of India that the Bar Council of India has no power to review an order made by its disciplinary committee on appeal. But the Bar Council can refer to the disciplinary committee matters for its reconsideration.

As already stated the power of revision is expressly granted to the disciplinary committee of the Bar Council which may on its own motion or otherwise review any order passed by it. The word otherwise is wide enough to include a case referred by the Bar Council for review. The court was of the view that since disciplinary proceedings against a lawyer will not only involve the particular lawyer but the prestige of the legal profession as such, the powers of review of the disciplinary committees should be interpreted widely so as to enable them to exercise such powers in a suitable case for or against a lawyer even after the matter had been examined by them. The analogy of the powers of review by the courts under the Civil Procedure Code or that of the autrefois convict or outrefo is acquit under the Code of Criminal Procedure should not be made applicable.

(d) Appeal to the Supreme Court

Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under section 36 or section 37 may, 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 thereon as it deems fit. Order V of the Supreme Court of India Rules deals with appeals made to the Supreme Court against an order of the disciplinary committee of the Bar Council of India made under section 36 or section 37 of Advocates Act.

The Rules, inter alia, provide for a preliminary hearing on the registration of the petition for appeal. If upon such hearing the court is satisfied that no prima facie case has been made out for its interference it may dismiss the appeal, but if it is not so satisfied it may direct that notice of appeal be issued to the Advocate-General of the State concerned or to the Attorney-General of India or to both and to the respondent. The costs of all proceedings of an appeal shall be in the discretion of the court.[15]

Conclusion
A few matters have to be set right by legislation. Of these may be mentioned the existing provision under section 49A vesting power in the central government to make rules in certain cases. The government has not been in favor of dropping this provision. Agitations there have been for putting an end to the dual system permitted in a sense to continue on the original side of the West Bengal and the Bombay High Courts but with no result. It is satisfactory to note that legal aid is to be included as a function of the Bar Councils.

In the last ten years, the Bar Councils have had an onerous task to perform. The foundation having been laid, the members of the legal profession and the public are indeed entitled to look forward to the Bar Councils for the discharge of their functions and obligations.

End-Notes:
  1. Law Commission of India: Report on the Reform of Judicial Administration, 556-586 (1958).
  2. S. 11, The Indian Bar Council Act, 1926.
  3. S. 12, The Indian Bar Council Act, 1926.
  4. S. 13, The Indian Bar Council Act, 1926.
  5. Unreported.
  6. A.I.R. 1965 Cal. 614.
  7. AIR 1964 SC 855.
  8. Ss. 31 & 34(2), The Advocates Act. 196).
  9. S. 33.
  10. S. 34(1).
  11. (1970) 2 SCC 484 : AIR 1971 SC 385.
  12. Their Lordships Vaidyalingam, J, and Ray, J, dissenting
  13. (1971) 3 SCC 5 : AIR 1971 SC 107.
  14. The validity of s. 38 of the Act and order V, rule 7 of the Supreme Court Rules was upheld by the Supreme Court in O.N. Mohindroo v. Bar Council, AIR 1968 SC 888.
Award Winning Article Is Written By: Pradyum Chaudhary - Student, Amity Law School, Noida

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