The following research paper aims at explaining the various provisions
mentioned under chapter 5 of the Advocates Act, 1961 which are related to misconduct
. the research paper elucidates the punishment stated law for
lawyers who engage in misconduct and other provisions like appeal in the supreme
court, bar council of India and state bar council.
The states the relevance
between the limitations act 193 and the Advocates act 1961. In conclusion, the
famous landmark case of NG Dastane v Srikant S. Shivde
AIR 2001 SC 2018 is
elaborated in detail.
Every country of the world requires certain systems that exclusively and solely
work for the purpose of that country's development on every front. Certain
examples of these systems can be
political, social, or administrative, moreover, legal system also forms
an integral part of the list. A political system includes a structure of
legislature that has the core purpose of formulating laws, rules, and
regulations for the smooth functioning of a country and for maintaining equality
and harmony among the people of the nation.
However, it is also obvious that in
a geographical area occupied with so many people, there are bound to be
disputes, differences and the worst, crimes. Therefore, along with structures
like legislature, there is also a need of a properly laid down legal
system. The legal system, also known as the third pillar of a democracy, the
judiciary, does not only have the work of punishing people in case of crimes and
disputes but it also plays a pivotal role in keeping the whole system up to date
necessary amendments in the already existing laws and formulating such laws
which are competent with the current societal conditions and needs.
The court of
law is the first place that is approached by people of a country in case of any
type of dispute. Now, on an average, in a country like India, where hundreds and
thousands of cases are recorded on a daily or weekly basis, it is impossible for
these many people to come to court and represent themselves one by one.
Therefore, for this purpose, people have the option of hiring a lawyer. Lawyers
are one of the most important part of a legal
system performing the most important duties and responsibilities.
such important roles to play, they are also given their fair share of
rights enlisted under the advocates act, 1961 like the right to pre-audience
(section 23), right to practice (section 30) etc. However, rights are never
exclusive, discretionary, or limitless and it is in the best interest of the
whole system for them to be like this.
A lawyer must conduct himself in such a
way that his behavior does not deviate from a set code of conduct of
lawyers under the statutes. This is given in detail under chapter 5, section 35-
44 of the advocates act, 1961.
Right To Practice
Right to practice- the fist and the most basic right of a lawyer is laid under
section 29 and 30 of the advocates Act, 1961. the section speaks volumes about
the basic criteria and eligibility to become a lawyer as well as the exclusive
right given to them. It states that only those people who are enrolled as
lawyers in a state roll shall be allowed to practice. Once a lawyer is enrolled
under the state roll then he/she shall have all the rights to practice in any
part of the country including all the courts, tribunals, or any other
authority as far as the advocates act, 1961 applies to that area.
An Advocate's Obligations Towards The Court
In the most layman scenario, under an employee-employer relationship, the
employer being the highest authority requires respect, profits, new
ideas etc. Such requirements can also be considered as
obligations, duties, or responsibilities of an employee towards the employer.
Similarly, in the legal field, lawyers have certain responsibilities towards the
court of law, which is their highest authority.
Some of these obligations are as
- The first and the most important duty of advocates towards the court is
maintaining the dignity and respect of the court and not conduct themselves
in such a manner that it jeopardizes its proper functioning. If the
functioning of the court is jeopardized, then it would cause a threat to the
free and fair functioning of the democratic legal framework of the country.
- All advocates in India are prescribed a proper uniform exclusively for
them. It is their duty to always enter the court in that uniform and to wear
the band and gown only in the premises of the court and not outside it.
- Justice and equality form the soul of not just the legal system but also
the preamble of the country. Therefore, in its best interest, an advocate
who acts as a representative of his/her client has the duty towards the
whole legal system of not intentionally convict an innocent person. It is
one of the most important duties of an advocate towards the court because if
any innocent person is convicted and punished then it would lift the faith
of common people of the country from the judicial system and create fear
which would in turn stop them from voicing their opinions against the wrong.
Punishment For Misconduct- Section 35 Of Advocates Act,1961
Professional misconduct can be defined as such behavior by an employee which is
unacceptable and practically against the code of conduct of the organization
that he is working with. In the legal profession, the advocates act 1961
contains in chapter 5 under section 35, the punishment to the lawyers for
misconduct. Moreover, the section makes it clear that it not only deals with
professional misconduct but also other types of misconduct.
misconducts include those that may not be related to the legal profession. A
lawyer should conduct himself professionally so that the functioning of the
court is smooth and, the court's decorum and dignity is maintained. Section 49
of the Advocates act, 1961 gives the Bar Council of India the power to formulate
such standard of professional conduct as it may deem fit.
Section 35 of the Advocates Act, 1961 explicates the punishment that an advocate
shall be given in case of professional or other type of misconduct. If an
advocate is accused of misconduct, then such information must be either provided
to the State Bar Council (SBC) in the form of a complaint by a person holding an
interest or the SBC can also take up a matter of such sort on its own i.e., Suo motu. However,
even after the complaint is received by the council, action shall be taken on it
only if the state bar council has the reasons to believe that the accused
advocate is guilty for professional or any other type of misconduct.
bar council however, only because of presence of reasons to believe, cannot take
any action against the advocate. The state Bar council shall refer the case to a
disciplinary committee that will in turn dispose it off and bring a conclusion.
An advocate accused of professional or other misconduct has all the
rights to defend himself before the committee, in this way, the supremacy of
justice and equality is maintained, and his basic rights are also protected.
The disciplinary committee, to proceed with the case of misconduct filed or
taken up Suo Motu must first finalize a date of hearing, after which, a
formalized notice is sent to the advocate accused of misconduct and the advocate
general of the state or the additional solicitor general of India in case of a
Union Territory. The advocate general is given the option of appearing before
the court either by himself or through a representative who shall also be an
advocate. This is an important step because it uplifts the core nature of Indian
legal system that provides all the people the right to be heard.
After hearing the part of the accused, the disciplinary committee can make the
following orders under sub section 3:
- Reprimanding the advocate- which means reproving someone officially
- Suspending the advocate- once an advocate is suspended by the order of
the disciplinary committee, he/she shall not practice legal profession
anywhere in the country, not in the court, for a person or any other
- Removing the name of the advocate from the state roll. This type of
order from the disciplinary committee is however rare and mostly not used.
Section 41 can be read along with section 35 as it provides for the alterations
which shall take place in the roll of advocates. It states that the following
alterations should take place:
- If an advocate is reprimanded or suspended as a punishment for
misconduct, then it should be specifically mentioned in the record in front
of his name.
- If, as a punishment for misconduct, an advocate is barred from
practicing then his name shall altogether be removed from the roll of
advocates. Moreover, the certificate of practice delivered to him under
section 22 of the act shall also be recalled.
Illustration- 'x' and 'y' are two advocates, plaintiff and defendant
respectively handling a civil case. 'y' after the hearing of the court was seen
taking money outside the premises of the court. The people giving money were x's
clients. 'x', being an honest lawyer rendering his services for the upliftment of
the banner of justice, decided to complain to the state bar council. The
compliant could be filed because advocate 'y' held a clear interest in the
case. Therefore, only that person who holds an interest can complain formisconduct,
otherwise the court can take up a matter Suo- Motu.
The Disciplinary Committee Of The Bar Council Of India And Its Powers- Section 36
Section 35 exclusively deals with cases of misconduct taken up by the state bar
council. However, under section 36, another category of cases is stated. This
section elucidates such cases in which the advocate accused does not have his
name enrolled in any state roll. The procedure mentioned under section 35 shall
apply to section 36 as well.
The only difference is that in section 35, the
state bar council must have reasons to believe that an advocate is guilty of
misconduct and then refer the case to a disciplinary committee and under section
36, the bar council of India must have reasons to believe the same. In both the
cases, compliant can be made Suo Motu. Another difference between the two is
that under section 35, the state bar council has the power to withdraw the
enquiry of a pending case from one disciplinary committee and prescribe it to
However, under section 36, the bar council of India has the power to
withdraw any disciplinary enquiry that is still pending before the state bar
council's disciplinary committee and dispose it off on its own. In section
35(2) talks about notifying the advocate general of India and under 36, the same
provision shall apply to Attorney General of India.
Even the orders that can be
made by the state bar shall remain the same for bar council as
well. Furthermore, under section 44 of the act, the disciplinary committee of
the bar council of India has the right to review any order on its own or after
receiving an application for the same. However, for the committee to be able to
exercise this power, has to have the permission of the Bar council of India
Just after the procedure to be followed by the state bar council
and the bar council of India is stated under sections 35 and 36 of the
advocates acts 1961, section 36A states that when both the bars exercise their
powers of either withdrawing and assigning another disciplinary committee or
when a committee is succeeded by a new committee then such a committee does not
have to begin the proceeding from the start and can carry it forward from the
point where it was left.
Section 36B (1) lays down that as soon as a compliant is received by the state
bar council against an advocate for misconduct, the disciplinary committee has
the task of disposing off the case and passing an order within one year from the
date of receipt of the case or the beginning of the proceedings. If the
disciplinary committee fails to dispose off the case in the stipulated amount
of time, then the proceedings as per the provisions of this section shall pass
to the bar council of India and such proceedings shall be treated as the
transferred proceedings under clause 2 of section 36 of the advocates act, 1961.
Similarly, 36B (2) states that if there are any cases already existing and
pending on the commencement of the advocates amendment act of 1973 then such
cases have to be disposed off withing 6 months of commencement or 1 year from
the date of receipt otherwise they shall be transferred to the bar council of
India for final disposal.
Suresh Shiva Rao
v.N.D. Upadhyaya through secretary, bar council of
In this case, the disciplinary committee of the Bar Council of India passed an
order against Suresh Shiva Rao for misconduct on 27th June 1998. After the
proceedings began, the disciplinary committee began with its examination and
investigation on the matter through documents and witnesses. After the
examination ended, all the evidence were against Suresh and the committee held
him guilty and as a part of punishment for misconduct, his license was withdrawn
for a period of 2 years. However, Suresh was unsatisfied by the order of the
court and by exercising the rights given to him under the Indian statutes,
preferred an appeal against the same. Thereafter, an order of stay was issued on
this order of the committee.
On the other hand, while the case was still going on and according to the
previous order on which the stay had been put, Suresh's license was withdrawn,
he continued to practice legal profession by working with a company named m/s
Vulcan level ltd. The type of employment he was under was full time. Besides
being employed with the company, he was also practicing in the court of
Maharashtra and Goa. As per the norms, the accused for misconduct should
have told about the company and the employment offered to the court of law but
he failed to do so.
Consequently, Shri N.D. Upadhyaya made a complained to the Bar council of the
state that he was practicing in i.e., Bar council of Maharashtra but
interpreting the text of section 36-B, the bar council of India was unable to
take any step because the proceedings has exceeded the period prescribed which
is 1 year. After the expiration period is over, the matter was transferred to
the Bar council of India.
Relation Between The Advocates Act, 1961and The Limitations Act, 1963
Section 37 and 38 of the Advocates act, 1961
The Indian judicial system under all its statutes analyses every situation
and form such laws which accelerate the process of justice and takes away the
slightest chance of injustice. One such way in which the judiciary uplifts
justice is by the system of appeals. This provision is laid down under
section 37 of the advocates act also. Appeal is one of the biggest rights
provided to people of a country because it increases the accountability of the
justice system towards the people.
Moreover, it also keeps an open window for
amends if the person punished is not convinced with the decision of the court
and wants the higher court to interfere and give the decision again after
considering all the facts of the case. Section 37 of the advocates act, 1961
lays down the same thing and states that if an advocate is not satisfied by an
order passed by the state bar council's disciplinary committee or the Advocate
General of the state, then he/she can appeal the same to the bar council of
However, to exercise this right it is important to prefer an appeal withing 60 days from the pass of the order by the disciplinary committee of the
state bar council. After the appeal has been made to the bar council of India,
it shall be obliged to hear the appeal and pass such order which is the most
appropriate according to them and the order of the state bar council can also be
The most important question that arises after interpreting section
37 is, what provisions shall apply if an advocate is not convinced with order
passed by the Bar council of India's disciplinary committee? To make the whole
system more accountable and just for the people section 37 of the advocates act,
1961 provides for the provision of appeal to the supreme court of India if an
advocate believes that he is aggrieved by the order passed by the bar council of
India's disciplinary council under section 36 and 37. The time limit to prefer
an appeal is the same as mentioned under section 37, i.e., withing 6 months from
the date on which the order of the Bar council of India was communicated to the
Section 5 and 12 of the limitations Act, 1963
It is evident by various sections mentioned under various statutes of the Indian
legal system that the judiciary is not very rigid and provides correct amount of
flexibility exactly where it is needed. One such example is the 5th section of
the limitations act, 1963. The court of law never rules out the possibility
of genuine causes that might lead to a delay in the filing or initiation of
Therefore, in this section it is provided that if any of the
parties to the case had actual reasons for not preferring an appeal or filing an
application in the stipulated period and those reasons can satisfy the court
then there can be an extension to the limitation period prescribed in the
acts. However, it is also stated that if the cases belong the category of
execution of a decree after it has attained it's final judgement without any
pending stay orders(order 21, CPC, 1908) , this section shall not apply.
Similarly, section 12 of the limitations act lays down such provisions which
helps in the interpretation f various statues. For example, it computes
the limitation period for an appeal and elucidates that such time that shall
take place between the pronouncement of the judgement and the court receiving
the official decree against which the appeal has been raised and the time taken
by the court to interpret it shall be excluded from the limitation time.
Relevance between the two acts of 1961 and 1962- section 39 of the advocates act
states that for cases of appeal under section 37 and 38, the provisions given
under section 5 and 12 of the limitations act shall apply.
Order Of Stay
A stay order means a temporary stay on the judicial proceedings. Such a stay can
only be put by an official order of the court. However, if read along with the
provisions of appeal mentioned under section 37 and 38 of the
advocatesact1961, it is stated under section 40 of the act that even if an
appeal has been preferred, it does not mean that the a stay has been put on the
previous order issued by the bar council of India or the Supreme court.
the Supreme court or the Bar council of India's disciplinary committee should by
themselves order a stay on their previous order even if theapplication for stay
is made before the expiration of the time allowed, till the time a new order is
passed or the last one is uplifted.
Powers Of The Disciplinary Committee
The disciplinary committee is the only way by which an advocate can be punished
for misconduct. Apart from the provisions of appeal mentioned in various
sections of chapter 5, there are some powers exclusive to the disciplinary
Section 42 of the act states that a disciplinary committee shall have the
same rights as those given to a civil court under the Code of Civil
procedure and such rights, under section 42A also apply to the Bar council of
These powers are as follows:
- The committee can summon any person it sees as directly or indirectly
connected to the case or for any such reasons as it deems fit for
examination and it can also issue commissions for the purpose of such
examinations of documents or witnesses.
- The committee has the power to command for production of relevant
documents before it.
- It has the power to receive evidence on affidavits
- It has the power to demand for any public record from any court to
dispose of the case.
However, there are two cases in which a disciplinary committee does not have
discretionary power of demanding presence of a person before it. first, if the
committee wants the presence of any presiding officer of a court, then it musttake permission
from the high court in advance. That officer shall not appear at the comfort of
the committee. Second, if the committee wants the presence of a revenue officer
for any case of misconduct, then it shall summon him/her only if the committee
has a valid sanction or permission of the state government.
NG Dastane v/s Srikant
Air 2001 SC 2018
This court is a landmark case because the court analyzed section 35 of the
advocates act, 1961 and stated that the phrase used, 'reason to believe' is
unnecessary and can act as a barrier against the initiation of the proceedings
because it is one of the procedural requirements. Moreover, this phrase also
violates rule 11 of the Bar council of India chapter-II.
The bench of judges included Honorable justice KT Thomas, honorable justice R.P.
Sethi and honorable justiceS.N. Phukan
Appellant- Advocate P.H. Parekh and advocate Amit Dhingra
Respondents- Advocate Shakil Ahmed Syed and senior advocate Vijay S. Kotwal
The case is related to the defendants knowingly, for the purpose of cross
examining a witness, repeatedly demanding adjournments. This repeated act of
adjournments caused inconvenience to the witness as most of his time got wasted
in the court and he had to commute whenever he must be examined on his own
expense. It was further found out that the two advocates continuously postponed
the cross examination just to delay the process.
After suffering, the aggrieved
witness decided to complain against the advocates for misconduct and
consequently moved to the state bar council which shut off his complaint on the
pretext that there was no strong case of misconduct against the lawyers.
Similarly, thing happened when he put a review mechanism to the bar council of
India. Thereafter, seeking justice, he filled a case in the apex court.
The appellant was an agricultural scientist working in the United Nations
organizations and while the case was going on, he had retired. He had filed a
case against a person for the crime of theft of electricity. The two advocates, Shri Shivdeand
Kulkarni were from the side of the accused and were jointly arguing in the court
of law in his favor. Thereafter, the case had officially begun in 1993 and the
appellant was examined in chief.
The real problem of the appellant began when he
started facing inconvenience because of the advocates. He was called all the way
from New York for cross examination on 30.07.1993 but upon his coming, the two
advocates decided to postpone the cross examination stating that all the
witnesses in the list were not present in the court and examination can only be
dome once all the witness are together in the court room. The date of cross
examination was shifted to 23.08.1993.
However, on 23.08.1993 also the two advocates decided to postpone the cross
examination stating another reason that one of them had work outside the court
which could not be postponed and the other has to leave as his friend's father
has died. The magistrate again decided to postpone the date for cross
examination. The new date set was 13.09.1993 but following the previous pattern,
the advocates again postponed the cross-examination date.
This time however, the
other party raised an objection against the postponement, but the magistrate
again decided to assign a new date which was 16.10.1993 but again on the pretext
that one of the advocates were out of station, the date was postponed
to 20.11.1993after which yet again another date was given by the magistrate
which was 4.12.1993.
On the prescribed date, the two advocates submitted a
written statement to the court that one of the advocates was severely affected
by throat infection and could not carry forward the cross examination as the
doctor had advised him complete rest for at least 2 weeks. However, the
aggrieved witness decided to complain against the advocates when on the same
date he found the same advocate who according to the written statement was
suffering from throat infection arguing in another court room.
The aggrieved appellant filed a complaint to the state bar council and after
that to the Bar council of India but both of them did not take up the case
stating that there is no misconduct, but the appellant did not put down his arms
and preferred an appeal to the Supreme Court of India.
The court held that the two advocates were guilty of misconduct under section 35
of the Advocates Act, 1961 and stated that if and whenever a witness is present
in the court of law for cross examination then such examination shall be
conducted on that very day and cannot be postponed without appropriate reasons
because otherwise it can be misused and can cause unnecessary plight for the
witness and just a phrase used in the statue of advocates act 1961 (section 35),
'reason to believe' cannot act as a roadblock or barrier against notorious
or frivolous activities.
Written By: Ashna Sharma,
BA LLB (H)