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Professional Ethics Notes BY SDFS

Company Law (BMS College of Law )

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PROFESSIONAL ETHICS AND PROFESSIONAL ACCOUNTABILITY

MODULE 1:
Legal Profession in India- Evolution, Historical Development and Regulations, Necessity for a
Code of Professional Ethics; Bench and Bar Relationship; Bar Council of India Rules Part VI-
Restrictions of Senior Advocates, Duties of Advocates to the Court and to the Client and to
the Opponent and to the Colleagues, Duty in Imparting Training, Duty to render Legal Aid,
Restrictions on Other Employment.

MODULE 2:
Advocates Act, 1961- Composition and Powers and Functions of State Bar Councils,
Composition and Powers and Functions of Bar Council of India, Right to Practice, Punishment
for Professional and Other Misconduct; Bar Council of India Rules Part VII.

MODULE 3:
Contempt of Courts Act, 1971- Definitions, Defence available in Contempt Proceedings,
Punishment and Apology and Appeals; Constitutional provisions regarding powers of the
Supreme Court and High Courts to Punish for Contempt of Court; Powers of Parliament and
State Legislatures to Punish for Contempt of House.

MODULE 4:
Analysis of the following judgments of the Supreme Court:
Delhi Judicial Service Association, Tis Hazari Court Delhi v. State of Gujarat and Others, AIR
1991 SC 2176; Supreme Court Bar Association v. Union of India and Ors., AIR 1998 SC 1895;
D.C Saxena v. CJI, 1996 (5) SCC 216; Dr. L P Mishra v. State of UP, AIR 1998 SC 3337; Mohd.
Aslam v. Union of India, AIR 1995 SC 548; Prithauri Nath Ram v. State of Jharkhand and Ors.,
(2004) 7 SCC 261; P D Gupta v. Ram Murti & Anr., AIR 1998 SC 283; Bar Council of
Maharashtra v. M V Dhabolkar & Ors, AIR 1976 SC 242; R D Saxena v. Balram Prasad Sharma,
(2000) 7 SCC 264; Bar Council of Andhra Pradesh v. Kurapati Satyanarayana, AIR 2003 SC 175.

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MODULE 1

HISTORICAL EVOLUTION OF LEGAL PROFESSION IN INDIA:

1. Introduction:
• From the onset of civilization, administration of justice has remained most important
function of the State so that the efficacy of any government is tested by its ability to
effectively impart justice to its people.
• The term administration of justice is a very wide term and it includes within its ambit
the lawyers, the litigants and the judges. Lawyers are the centers of administration of
justice and it is no denying the fact that the enacted laws are always very complicated
and beyond the comprehension of layman and it is the lawyer who helps the court in
administration of justice and the litigant in redressal of his grievances.
2. Legal Profession in Ancient India:
• In ancient India, King was considered as foundation head of justice and was reservoir
of judicial powers. The structure of judicial system rested upon the Principle of
Dharma. The King’s Court was the highest court of appeal as well as an original court in
cases of vital importance to the State.
• In King’s Court, the King was advised by learned people and there was hierarchy of
courts. In villages, the village councils dealt with the simple civil and criminal cases and
at higher towns and districts, the Courts were presided over by government officers
under the authority of the King to administer justice.
• Family courts were also established and puja assemblies made up a group of families in
the same village decided civil disputes amongst the family members and minor
criminal cases were dealt with judicial assemblies in villages whereas serious crimes
were presented before the central court usually under the King or the royal authority.
• The appeal system was practiced and the King was the highest body of appeal. The
system did not have any established legal profession and the aggrieved parties used to
present their view before the King themselves.
3. Legal Profession in Medieval India:
• After the disintegration of the Harsha Empire, a veil of obscurity descends on the
history of India and the country was divided into one or more small kingdoms. The
standards and ideals of justice were maintained in each kingdom.
• The establishment of the Muslim rule in India opened a new chapter in the judicial
history. The Muslim conquerors brought with them a new religion, a new civilization
and a new social system which could not have a professional effect on the judicial
system.
• The Muslim kings regarded administration of justice as a religious duty and afte the
conquest of Britishers, the Mughal system of justice was gradually replaced by the
hierarchy of courts set up by the East India Company.
4. Legal Profession During British Period:
• The present system of administration of justice owes its origin to the advent of British
rule in India and the Britishers came to India as traders and realized that importance to
evolve a judicial system in India.
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• The form and organization in which the institution of legal profession exists today has
no relevance or connection with the period of Indian history prior to the advent of
British Rule in India.
A. Legal Profession in Presidency Towns:
a. Mayor’s Court (Charter of 1726):
* The establishment of Mayor’s Court in the three presidency towns of Bombay,
Calcutta and Madras is embedded deep into the legal history of India as the
credit goes to the Charter for instituting Royal Courts on uniform basis
reserving ultimate power in the crown in council.
* This Charter ensured that the three Presidency towns were to have
corporations constituted by Mayor with a right to appeal to the Governor and
the Council then to the King in Council.
* These courts derived their authority from the British Crown and these courts
were required to follow the well defied procedure followed by the British
Courts and were declared as the court of record and were authorized to try,
hear and determine the civil actions.
b. Charter of 1753:
* It was issued by the King on 8th January 1753 and was applicable for the three
presidency towns and changed the method of appointment of the Mayor and
Aldermen.
* The Mayor became a puppet in the hands of the Governor and Council. The
Mayor’s Court lost its autonomy and independence. The Court was now
allowed to hear the Indian cases only if both native parties agreed and
submitted the case before the Mayor’s Court.
c. Regulating Act 1773 and Charter of 1774:
* The Regulating Act was passed in the British Parliament in June 1773 ad it was
the first parliamentary ratification and authorization defining the powers and
authority of the East India Company with respect to the Indian possession.
* The Charter of 1774 passed in pursuance of Regulating Act was the first
concrete step in the direction of organizing a legal profession in India when the
Supreme Court was established at Fort Williams, Calcutta in 1774.
* The Supreme Court was empowered to frame rules of procedure as it thought
necessary for the administration of justice and due execution of its powers.
The Supreme Court was presided by the first Chief Justice Sir Elijah Impey and
four other judges who were Barristers from England.
* The Supreme Court was authorized to approve, admit and enroll such and so
many advocates and attorneys as the Court shall deem fit and was authorized
to remove on account of misconduct.
B. Legal Profession in Company’s Courts:
a. Bengal Regulation VII of 1793:
* In the Company’s adalats, the deplorable state of affairs concerning the legal
profession is well mentioned the Vakils were by and large ignorant of the law
and were subjected to harassment and extortion from the ministerial officers
of the courts.

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* The Regulation called itself for the appointment of vakils or native pleaders in
the courts of civil judicature in the Province of Bengal, Bihar and Orissa. The
vakils attached to one court were not permitted to plead in any other court
without the sanction of the Sadar Diwani Adalat.
b. Bengal Regulation XXVI of 1814:
* This was passed for the purpose of reducing into one Regulation with
amendments and modifications the several rules which were in force regarding
the office of Vakil or Native Pleader in the Courts of Civil Judicature.
* The Sadar Diwani Adalat and the several Provincial Courts were empowered to
appoint to the office of vakil in their respective Courts the number of persons
being natives of India and duly qualified for the position as may from time to
time appear to them necessary.
* Preference for enrolment as vakils was to be given to candidates educated in
any of the Muhammadan or Hindu Colleges established or supported by the
Government provided that such candidates were in other respects qualified for
the position.
c. Bengal Regulation XII of 1833:
* This regulation modified the provisions of the earlier regulations regarding
selection, appointment and remuneration of the pleaders and permitted any
qualified person of whatever nationality or religion to be enrolled as a pleader
in the Sadar Diwani Adalat.
d. The Legal Practitioners Act, 1846:
* This was the first all India law concerning the pleaders in the mofussil made
several important provisions and abolishing the religious test for enrollment as
pleader which was mandatory.
e. The Legal Practitioners Act, 1853:
* This Act declared that every attorney on the roll of Her Majesty’s Supreme
Court to be entitled to be plead in any of the Company’s Sadar Adalat and the
barrister or attorneys of the Supreme Court were permitted to plead in the
Company’s Adalat as well.
* The Act also did way with the system of compulsory attendance of the
pleaders in the Court to which they were attached and the indigenous legal
practitioners were deliberately kept out of the three Supreme Court.
C. Legal Profession after High Courts:
a. Indian High Courts Act, 1861:
* The first war of Indian independence in the year 1857 brought the rules of East
India Company to an end and the Government of India was placed under direct
control of the Crown in 1858.
* The Act was passed in the year 1861 with main object to abolish the Supreme
Courts and Sadar Adalats in the three presidency towns and to establish High
Courts in their place.
b. Pleaders, Mukhtars and Revenue Agents Act, 1865:
* At the time when the High Courts were established, there were six grades of
legal practitioners in India. All were under the direct disciplinary control of the
High Court.
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c. The Legal Practitioners Act, 1879:

* This Act was enacted to consolidate and amend the law relating to legal
practitioners in the mofussils and the Act repealed the earlier Act of 1865
bringing all pleaders under the systematic jurisdiction of High Court.
* The High Court was empowered to make rules regarding the qualification,
admissions and certification of proper person to be pleaders of the
subordinate courts and of the revenue officers and for suspension and
dismissal of such pleaders and mukhtars.
d. The Legal Practitioners (Women) Act, 1923:
* Some doubts were raised as to the right of the women to be enrolled and to
practice as legal practitioners. To remove the doubts about the eligibility of
women to be enrolled and to practice as legal practitioners, this act was
enacted to expressly provide that no woman would by reason of her sex be
disqualified from being admitted or enrolled as a legal practitioner or from
practicing as such.
e. Indian Bar Committee, 1923:
* The demand for an all India Bar and removing the distinction between
different grades of legal practitioners were raised from several quarters and to
meet the demands, the Indian Bar Committee was set up which was asked to
examine and report on the proposal to constitute an Indian Bar.
f. The Indian Bar Councils Act, 1926:
* The object of the Act was to provide for the constitution and incorporation of
Bar Councils for certain Courts in British India to confer powers and impose
duties on such Bar Councils and to consolidate and the law relating to legal
practitioners entitled to practice in such courts.
* The purpose of the act thus was to unify the various grades of legal
practitioners and to provide some measure of self government to the Bars
attached to the various Courts.
5. Legal Profession After Independence:
A. All India Bar Committee, 1951:
• After the establishment of Supreme Court in the year 195 under the Constitution of
India, a new impetus was provided to the demand of a unified Bar and the
Government of India constituted a committee to report mainly on the desirability
as well as feasibility of a completely unified Bar for the whole of India and the
continuance or abolition of different classes of legal practitioners and the
establishment of the bar Council for the whole of India as well as the respective
individual States and the establishment of a separate Bar Council for the Supreme
Court and consolidation of the various provisions related to the legal practitioners.
B. 14th Report of Law Commission of India:
• The recommendations of the All India Bar Committee were not acted upon for long.
The Law Commission of India in its fourteenth report endorsed all the
recommendations made by All India Bar Committee.

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C. Advocates Act, 1961:

• The Advocates Act, 1961 culminated the years long quest for regulations and
reformations of the legal profession. The Act was enacted as stated in the Preamble
of the Act, to implement the recommendations of the All India bar Committee
made in 1953.
• The Act takes into account the recommendations made by the Law Commission in
its 14th Report in so far as these recommendations pertain to legal profession and
legal education. The Act repeals the Indian Bar Councils Act, 1926 and the Legal
Practitioners Act, 1879 and other laws on the subject.

CODE OF PROFESSIOAL ETHICS:

1. Professional Ethics:
• Ethics means morals or values. In ever society apart from the law created by the
legislature, there are certain values and morals which are expected from the members
of the society so that a slight deviation may result into censure. The moral and values
regulating the conduct of the members of legal profession are called professional
ethics.
• Professional ethics refers to the code of conduct which regulates the behavior and
conduct of practicing lawyers towards himself, towards his client, towards opposite
party and his counsel and towards the court.
• The objective of professional ethics is to maintain the dignity of legal profession, to
secure a spirit of friendly co-operation between the bench and bar, to establish fair
and honorable dealings of the counsel with his client, opponent and witnesses and to
establish a spirit of brotherhood in the bar itself.
2. Need for Code of Professional Ethics:
• The quality of justice depends to a large extent upon the moral qualities of a lawyer
because it is through the lawyer that a litigant has access to the courts. A lawyer
sometimes may have divided loyalties. Fairness and integrity on the part of advocate
towards the sanctity of the administration of justice is essential. Since the conduct of
the advocate is likely to affect others, code of conduct or code for professional ethics is
an essential component.
• A code of professional ethics for lawyers is further justified on the ground that lawyers
are integral to working out of law and rule of law itself is founded on the principles of
justice, fairness and equity. If lawyers don’t adhere to these principles, the profession
will fall into disrepute with the people losing their faith in the judicial system.
• In V C Rangadurai v. D Gopalan & Ors, 1979 (1) SCC 308, it was held that law’s mobility
as profession lasts only so long as the members maintain their commitment to
integrity and service to the community and the monopoly conferred on the legal
profession by Parliament is coupled with a responsibility and every delinquent who
deceives his client deserved to be frowned upon.
• Legal profession is a noble profession and it is not a business or trade and a person
practicing law has to practice in the spirit of honesty and not in the spirit of mischief

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making or money making or money getting and an advocate’s attitude towards and
dealings with his client have to be honest and fair.
• In all professional functions, an advocate should be diligent and his conduct should
also be diligent and should conform to the requirements of the law by which an
advocate plays a vital role in the preservation of society and justice system. An
advocate is under an obligation to uphold the rule of law and ensure that the public
justice system is enabled to function at its full potential.
• A code of ethics for the advocates is justified not only for the sake of the profession
itself, but also in the interest of the society at large. It is also essential for the purpose
of maintain the nobility and integrity of the profession and infuse a confidence as well
as trust among the people in the justice delivery system.
3. Development of the Code of Professional Ethics:
• Early development of the rule of ethics was based mainly on tradition. In England,
traditions of bars were entrenched that for a long time there was no parliamentary
interference in the working of the bar. Reward given to a legal professional was not for
the discharge of his legal obligations, but for the honorary services rendered by him.
• With the course of time, legal services ceased to be gratitutous. Main reason for the
same was multiplicity of proceedings and increase in litigation. In such circumstances,
legal services could not be a mere social obligation because a great deal of time was
required by the lawyers to equip themselves with laws which prevented him from
earning his livelihood from other sources hence the legal profession was provided with
the concept of regulation.
• In India, the Britishers introduced the system of courts as these exists in modern times.
In the initial years, lawyers were not considered legal professionals and they were
considered as officers of the court with the result that they were under the direct
control of the court and were required to mark their presence everyday in the court
failing which they could be subjected to fine.
• The Bar Councils Act, 1926 empowered the High Court to reprimand or suspend or
remove from practice any advocate of the High Court who was found guilty of
professional or other misconduct.
• In pursuance of the recommendations of the All India Bar Committee, 1951 and the
14th report of the Law Commission of India, a consolidating Act repealing all the
previous legislations was enacted called the Advocates Act, 1961 removing all
distinctions and allowed the dealing of the complaints of professional or other
misconduct.
• Section 49(1)(c) empowers the Bar Council of India to make rules to prescribe the
standards of professional conduct and etiquette to be observed by the advocates and
on exercise of this power, rules have been framed by the Bar Council of India which lay
down various duties of an advocate.

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BAR BENCH RELATIONSHIP:

1. Introduction:
• The edifice of the administration of justice stands upon two independent pillars i.e.,
Bar and Bench. Successful administration of justice depends upon amicable
relationship between the both as they are the two arms of the same machinery and
unless they work harmoniously, justice cannot be properly administered through the
Court of Law.
• The Bench denotes the seat of the Judges in the Court or a body of Judges comprising a
Court. The Bar comprises the body of lawyers. The Supreme Court of India vide virtue
of Article 141 of the Constitution does not only decides the rights and obligations of
the parties, but also lays down future laws because judges do not interpret the law as
it is, but it ought to be and in this great task, judges are assisted by the members of the
legal profession.
2. Duties of the Bar Towards the Bench:
A. Respectful Attitude:
• A lawyer should always exhibit respectful attitude towards the Bench so that he can
set an example for the litigants, witnesses and the general public to follow the same
standards. He is under the obligation not to resort to any conduct which could
offend the dignity of the Court.
• Attitude of a lawyer towards the Court should be respectful no matter it is a
superior court or subordinate court. Even when the lawyer does not hold a good
opinion about the stability and standing of presiding officer of the court, it should
not be exposed or expressed from his behavior since he is bound to uphold the
dignity of the judicial system as an institution.
• A lapse on part of the Bar to show respectful attitude towards the Bench would not
only amount to professional misconduct but also to the contempt of the Court. In
Re: Vinay Chandra Mishra, AIR 1995 SC 2348, it was held that use of intemperate
language is not assertion of right and is a threat as argument and a lawyer has to be
a gentleman first.
• Every counsel has a duty to his client fearlessly to raise every issue, advance every
argument and ask every question, however distasteful which he thinks will help his
client’s case but should hold his proper professional conduct.
B. Rendering Constructive Assistance:
• This duty has to be discharged with utmost responsibility and care because judges
rely upon what is presented to them by the advocates, So while drafting his
pleading, an advocate must be doubly sure that is not doing a grave misconduct.
• In Chandrika Prasad v. State of MP, AIR 1985 MP 254, it was held that if an
advocate knowingly cites any overruled decision or a repealed statute, it amounts
to professional misconduct because courts generally relies upon the case laws and
statutes presented by the advocates and if the advocates try to mislead the court,
that amount to playing a fraud upon the court.
C. No Private Communication With The Judge:
• An advocate must not attempt to influence the presiding officer of the Court in any
manner whatsoever. A lawyer is not supposed to be mouthpiece of his client even if
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the client insists upon private meeting with the judicial officer the lawyer must not
succumb to it.
• The lawyer must persuade the client not to resort to such tactics and private
communication with the judge is also prohibited by the rules framed by the Bar
Council of India.
D. Assist in Smooth Functioning of the Court:
• A lawyer holds a relationship of trust and confidence with his client. Therefore it is
presumed that he would mark his appearance in the Court on the date fixed for
hearing a case and should also ensure that the proceedings of the Court are carried
on smoothly without any interruption.
E. Fairness:
• An advocate should not appear in the Court whose sole or any member is related to
him. He should not appear in a case in which he has pecuniary interest and should
not appear for or against the executive committee of any society, organization or
institution of which he is a member.
F. Bench Hunting and Bench Shopping Not Permissible:
• No advocate can insist to be heard by a Bench of his choice. Deliberately avoiding a
Bench and coercing others to do the same amounts to professional misconduct by
the advocate.
• In Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470, it was held that even in
the face of calculated offensives and mind games played by a counsel, the oath of
office of the judge decides every case without fear or favor requires the judge
concerned to proceed with the hearing and the attempts of Bench hunting or bench
Avoiding should be seriously repulsed.
3. Duties of the Bench Towards the Bar:
A. No Interruption During Proceedings:
• The Judge should not interrupt the counsel until he is arguing relevantly and
purposefully. Till the lawyer is presenting his case in an orderly way, there should be
patient hearing and cooperation from the side of the judge, as otherwise it would
lead to miscarriage of justice.
• A judge who intervenes too much could drain the case of all joy from the point of the
view of the advocate who whether he had won or lost comes out of the Court as
exhausted person.
B. A Judge Must Sit On The Dias With an Open Mind:
• Any preconceived motions may deviate him from performing his task to administer
the justice. He should not form any opinion on the merits of the case unless both
the parties are heard. He must not interrupt the counsel while examining or cross
examining the witness.
• Though some intervention in order to appreciate counsel’s argument is desirable,
but a volley of questions repeatedly asked may ruin the arguments and take the
counsel off the track. Hence a balance has to be maintained.

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C. Impartiality:
• A judge has to be impartial in dealing with advocates. The judge should not only be
free from his bias or interest in any case rather he should not be guided by the
obstinacy and snobbery in his conduct with advocates.
• The decisions of the judge should be in accordance with the law ad not to please his
fried, relative or superior authorities and must firmly refuse to succumb to pressure
tactics which require him to deviate from justice.
D. Helpful Attitude Towards New Entrants and Beginners at Law:
• The judges should be sensitive towards the problems faced by the new entrants in
the Bar and must always extend their helping hand to help them settle down. They
should be appreciative of the efforts made by the junior advocates especially when
the opposite party is a senior advocate. Equal attention for all irrespective of their
position is expected from an incumbent of the Bench.
E. Not to be Over Sensitive:
• A judge should not be over sensitive to the criticism keeping in mind that to err is
human being and being humans, advocates are also susceptible to committing some
faults. The judge has to play a very temperate and sober role in the dispensation of
justice to the society which he can fulfill by observing sober, cordial and impartial
behavior towards the lawyer at large.
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BAR COUNCIL OF INDIA RULES PART VI:

1. Senior Advocates:
A. Introduction:
• The profession of advocacy was firmly in existence in the Greek and Roman
systems. Emperor Justinian had put lawyers in a high pedestal comparing them with
regular soldiers engaged in the defence of the empire.
• The legal profession in India owes its origin to the British Period when a centralized
system of courts was established and it was largely modeled on the same lines as it
prevailed in England.
• By the end of 13th Century, a distinguished class of senior advocates with
considerable status emerged and they came to be known as Serjeants-at-law. They
enjoyed many special privileges especially the exclusive audience rights.
• The legacy of senior advocates was carried in India when the Supreme Court was
set up in three Presidency towns and later vide the Advocates Act, 1961 the task of
designating senior advocate was for the first time statutorily entrusted to the
Supreme Court or the High Courts.
B. Statutory Provisions:
• Section 16 of the Advocates Act provides for two classes of advocates i.e., senior
advocates and advocates. Accordingly, an advocate may with his consent, be
designated as senior advocates of the Supreme Court or High Court is of the opinion
that by virtue of his ability, standing at the Bar or special knowledge or experience
in law he is deserving of such distinction.

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• Senior advocate shall in the matter of their practice be subject to such restrictions
as the Bar Council of India may in the interest of the legal profession prescribe and
an advocate of the Supreme Court who was a senior advocate of that Court
immediately before the appointed day shall for the purpose of Section 16 of the Act
be deemed to be a senior advocate.
C. Privileges of Senior Advocates:
• Senior advocates, in the perception of common people and in reality also stand as a
class apart from the other advocates. Senior advocates have right of pre-audience
over the other advocates.
• The senior advocates wear a different type of gown distinguishable from the one
worn by other advocates. This is inspite of the fact that the Bar Council of India
Rules have not prescribed different dress or gowns for the senior advocates.
D. Restrictions on Senior Advocates:
• In pursuance of the powers given under Section 16(3), the Bar Council of India Rules
provides that senior advocates shall in the matter of their practice of the profession
of law be subjected to the following restrictions:
* a senior advocate shall not file a vakalatnama or act in any Court, or Tribunal or
before any person or other authority mentioned in the Section 30 of the
Advocates Act, 1961.
* a senior advocate shall not appear without an Advocate on Record in the Supreme
Court or without an Advocate in Part II of the State Roll in any Court or Tribunal or
before any person or other authority mentioned in the Section 30 of the
Advocates Act, 1961.
* a senior advocate shall not accept instructions to draft pleadings or affidavits,
advice on evidence or to do any drafting work of an analogous kind in any Court or
Tribunal or before any person or other authority mentioned in the Section 30 of
the Advocates Act, 1961.
* a senior advocate shall be free to make concessions or give undertaking in the
course of arguments on behalf of his clients on instructions from the junior
advocate and 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.
* a senior advocate who has acted as an Advocate (Junior) in a case, shall not after
he has been designated as a senior advocate advise on grounds of appeal in a
Court of Appeal or in the Supreme Court except with an advocate.
• In Brij Lal Patel v. UP State Agro Industrial Corporation, AIR 2004 All 178, it was held
that it is not necessary to file restoration application by his own signature after the
designation as senior advocate and he is not supposed to file vakaltnama of any
client and is not supposed to file any application is his own handwriting.
E. Guidelines by Supreme Court:
• The Supreme Court has laid the following guidelines with respect to senior
advocates:
* all matters relating to designation of senior advocates in the Supreme Court or
High Court shall be dealt with by a Permanent Committee to be known as
Committee for Designation of Senior Advocates.

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* the committee shall have permanent secretariat which would scrutinize all
applications or proposals from the Hon’ble Judges and all applications including
written proposals by the Hon’ble Judges will be submitted to the secretariat.
* the secretariat shall publish the proposal of designation of a particular advocate in
the official website of the concerned court inviting the suggestions or views of
other stakeholders on the proposed designation.
* after the database in terms of the above is compiled and all such information as
may be specifically directed by the committee to be obtained in respect of any
particular candidate is collected, the secretariat shall put up the case before the
permanent committee.
* all the names that are listed before or cleared by the committee shall go to the
full court and voting by secret ballot will not normally be resorted to by the full
court except when unavoidable.
* all cases that have not been favorably considered by the full court may be reviews
or reconsidered after the expire of a period of two years following the manner
indicated of the proposal is being considered afresh.
* in the event of a senior advocate is guilty of conduct which according to the full
court disentitles the senior advocate concerned continue to be worthy of the
designation, the full court may review its decision to designate the concerned
person and recall the same.
2. Standards of Professional Conduct and Etiquette:
A. Preamble:
• An advocate shall at all times, comport himself in a manner befitting his status as an
officer of the Court, a privileged member of the community and a gentleman
bearing in mind that what be lawful and moral for person who is not a member of
the Bar or for a member of the Bar in his non professional capacity may still be
improper for an advocate.
• An advocate shall fearlessly uphold the interest of his client and in his conduct
conform to the rules hereinafter mentioned both in letter and in spirit. The rules
contain canons of conduct and etiquette adopted as general guides yet the specific
mention thereof shall not be construed as a denial of the existence of others
equally imperative though not specifically mentioned
B. Duty to the Court:
• An advocate shall during the presentation of his case ad while otherwise acting
before a court, conduct himself with dignity and self respect and shall not be servile
and whenever there is a proper ground for serious complaint against a judicial
officer, it shall be his right and duty to submit his grievance to proper authorities.
• An advocate shall maintain towards the courts a respectful attitude, bearing in
mind that the dignity of the judicial office s essential for the survival of a free
community and shall not influence the decision of a court by any illegal or improper
means.
• An advocate shall use his best efforts to retrain and prevent his client from
resorting to sharp or unfair practices or from doing anything is relation to the court,
opposing counsel of parties which the advocate himself ought not to do.

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• An advocate shall appear in court at all times only in the prescribed dress, and his
appearance shall always be presentable. An advocate shall not enter appearance or
act or plead or practice in any way before a court or tribunal or authority as
mentioned in the section 30 of the Act.
• An advocate shall not wear bands or gowns in public places other than in courts
except on such ceremonial occasions and at such places as the Bar Council of India
or the court may prescribe.
• An advocate shall not appear in or before any court or tribunal or any other
authority for or against an organisation or an institution or society or corporation, if
he is a member of the executive committee of such organization or institution or
society or corporation.
• An advocate should not act or plead in any matter in which he is himself pecuniarily
interested and he should not accept a brief from a company of which he is a
director and shall not stand as surety or certify the soundness of a surety for his
client for any legal proceedings.
C. Duty to the Client:
• An advocate is bound to accept any brief in the Courts or Tribunals or before any
other authorities in or before which he proposes to practice at a fee consistent with
his standing at the Bar and the nature of the case and special circumstances may
justify his refusal to accept a particular brief.
• An advocate shall not ordinarily withdraw from engagements once accepted
without sufficient cause and unless reasonable ad sufficient notices is given to the
client and upon his withdrawal from a case, he shall refund such part of the fee as
has not been earned.
• An advocate shall not accept a brief or appear in a case which he has reason t
believe that he will be a witness and if being engaged in a case, it becomes
apparent that he is a witness on a material question of fact, he should not continue
to appear as an advocate if he can retire without jeopardizing his client’s interest.
• An advocate shall a 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 clients judgment in either engaging him or continuing the
engagement.
• It shall be the duty of the advocate fearless to uphold the interest of his client by all
fair and honorable means without regard to any unpleasant consequences to
himself or any other and shall defend a person accused of a crime regardless of his
personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to
the law which requires that no man should be convicted without adequate
evidence.
• An advocate appearing for the prosecution of a criminal trial shall so conduct the
prosecutor that it does not lead to the conviction of the innocent and the
suppression of material capable of establishment of the innocence of the accused
shall be scrupulously avoided.

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• An advocate shall not at any time be a party to fomenting of litigation and shall not
act on the instructions of any person other than his client or his authorized agent
and shall not stipulate for a fee contingent on the result of litigation or agree to
share the proceeds.
• An advocate shall not buy or traffic or stipulate for or agree to receive any share or
interest in any actionable claim and nothing in this rule shall apply to stock, shares
and debentures of the government securities or to any instruments which are title
to goods.
• An advocate shall not directly r indirectly bid for or purchase either in his own name
or in any other name for his own benefit or for the benefit of any other person, any
property sold in the execution of a decree or order in any suit or appeal or other
proceedings in which he was in any way professionally engaged.
• An advocate shall not do anything whereby he abuses or takes advantage of the
confidence reposed in him by his client and should keep accounts of his client’s
money entrusted to him.
• After the termination of the proceedings, the advocate shall be at liberty to
appropriate towards the settled fee due to him any sum remaining unexpended out
of the amount paid or sent to him for expenses or any amount that has come into
his hands in that proceedings.
• A copy of the clients accounts shall be furnished to him on demand provided the
necessary copying charge is paid and an advocate shall not enter into arrangement
whereby funds in his hands are converted into loans.
• An advocate shall not lend money to his client for any legal proceedings or any
other purpose.
D. Duty to the Opponent:
• An advocate shall not in any way communicate or negotiate upon the subject
matter of controversy with any party represented by an advocate except through
that advocate.
• An advocate shall do his best to carry out all legitimate promises made to the
opposite party even though not reduces to writing or enforceable under the rules
of the Court.
E. Duty to Colleagues:
• An advocate hall not solicit work or advertise, either directly or indirectly and his
sign board or name plate should be of a reasonable size and shall not disclose his
any association with any organization.
• An advocate shall not permit his professional services or his name to be used in aid
of or to make possible the unauthorized practice of law by any law agency and an
advocate shall not accept a fee less than the fee taxable under the rules when the
client is able to pay the same.
• An advocate shall not enter appearance in any case in which there is already a
vakalatnama or memo or appearance filed by an advocate engaged for a party
except with his consent.

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F. Duty in Imparting Training:

• It is improper for an advocate to demand o accept fees or any premium from any
person as a consideration for imparting training in law under the rules prescribed
by the State Bar Council to enable such person for enrolment under the Advocates
Act, 1961.
G. Restrictions on other Employments:
• An advocate shall not personally engage in any business but he may be a sleeping
partner in a firm doing business provided that in the opinion of the appropriate
State Bar Council, the nature of the business is not inconsistent with the dignity of
the profession.
• An advocate may be a director or chairman of the board of directors of a company
with or without any ordinarily sitting fee provided none of his duties are of an
executive character and an advocate shall not be a managing director or a secretary
of a company.
• An advocate shall not be a full time salaried employee of any person, government,
firm or corporation so long as he continues to practice and shall on taking up any
such employment, intimate the fact to the Bar Council on whose roll his name
appears and shall thereupon cease to practice as an advocate as long as he
continues in such employment.
• An advocate who has inherited or succeeded by survivorship to a family business
may continue it but may not personally participate in the management thereof and
he may continue to hold a share with others in any business which has descended
to him by survivorship or inheritance or by will provided he does not personally
participate in the management thereof.
• An advocate may review Parliamentary Bills for remuneration, edit legal text books
at a salary do press vetting for newspaper, coach pupils for legal examination and
set or examine the question papers and may also practice teaching.

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MODULE 2

ADVOCATES ACT, 1961:

• The Law Commission under the Chairmanship of Mr M C Setalvad submitted its
fourteenth report in 1958. The All India Bar Committee Report 1953 supported by the
fourteenth report of the Law Commission led to the enactment of the Advocates Act
1961. The Advocates Act 1961 provided for the first time for a unified bar.
• The main features of the Bill preceding the Act, as stated in the objects and reasons were:
* The establishment of an All India Bar Council, a common roll of advocates with the
advocates to have a right to practice in any court including the Supreme Court.
* The integration of the bar into a single class of legal practitioners known as advocates.
* Uniform qualification for admission as advocates.
* The division of advocates into senior advocates and other advocates based on merit.
* The creation of an autonomous Bar Council for the whole of India.
* Repeal of the Indian Bar Councils Act 1926 and all other laws on the subject.
• A person who has a law degree recognised by the Bar Council of India and who is enrolled
with any state bar council is an advocate. An advocate having his name on the roll of
advocates for ten years has a right to practise in all courts including the Supreme Court.
The
• Bar Council of India Rules may prescribe for a class or category of person entitled to be
enrolled as advocate, also the conditions subject to which an advocate must have the
right to practise and the circumstances under which a person must be deemed to practise
as an advocate in a court.
• A legal practitioner, who becomes a member of the senate or the executive council of a
university, can be banned from appearing in any court or tribunal in cases against the
university. The Bar Council of India cannot lay down conditions, governing an advocate’s
right to practise, that would operate at the pre-enrolment stage.
• Advocates are divided, broadly, into two groups: senior advocates and other advocates.
After the coming into force of the Advocates Act 1961 , therefore, no separate meaning
can be attributed to the word ‘advocate’ as used in article 233(2) of the Constitution on
the one hand and article 124(3)(b) and article 217(2)(b) on the other.
• The status of a senior advocate may be conferred on any advocate, if the Supreme Court
or high court is of the opinion that he or she deserves such distinction by virtue of the
advocate’s ability, standing at the Bar, or special knowledge or experience in law.
• A person designated as a senior advocate of the Supreme Court before 1961 will continue
to be designated as senior advocate after the passing of the Advocates Act 1961 .
However if a senior advocate made an application before December 1961 to the Bar
Council, stating that he does not wish to continue as senior advocate, the Bar Council may
alter the roll accordingly.
• In Bar Council of Maharashtra v M V Dabholkar, AIR 1975 SC 2092, it was held that When
a state bar council receives a complaint it is required to apply its mind to find out whether
there is any reason to believe that an advocate has been guilty of professional or other
misconduct.
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COMPOSITION AND POWERS AND FUNCTIONS OF STATE BAR COUNCIL:

1. Establishment of State Bar Council:
• The Advocates Act, 1961 provides for independent and autonomous State Bar
Councils. Chapter II of the Act deals with the State Bar Councils and Bar Council of
India. The provisions make it copiously clear that the while for States there are
independent State Bar Councils while for some States especially which are adjacent to
any Union Territory provisions has been made for a joint State Bar Council.
2. Composition of the State Bar Council:
• According to Section 3, every State Bar Council shall be headed by a Chairman who is
assisted by a Vice Chairman and both of them shall be elected by the Council in such
manner as may be prescribed.
• The ex-officio members of the State Bar Council are the Additional Solicitor General of
India in case of the State Bar Council of Delhi and for all other States, the Advocate
General of the State.
• In case of a State Bar Council with an electorate not exceeding five thousand,
exceeding five thousand upto ten thousand, more than ten thousand shall be fifteen,
twenty and twenty five members each respectively shall be 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.
• It is essential that one half members shall be persons who have for atleast ten years
been on the State Roll and in computing the said period of ten years in relation to any
such person, there shall be included any period during which the person has been an
advocate enrolled under the Indian Bar Council Act, 1926.
• Every person holding the office as Chairman or as Vice-Chairman of any State Bar
Council immediately before the commencement of the Advocates(Amendment) Act,
1977 shall on such commencement cease to hold office as Chairman or Vice-Chairman
as the case may be subject to the condition that such person shall continue to carry on
the duties of his office until the Chairman or the Vice-Chairman of each State Bar
Council elected after the commencement of the Advocates (Amendment) Act, 1977
assume charge of the office.
• According to Section 4, an advocate shall be disqualified from voting at an election or
being chosen as a member of the State Bar Council unless he possess such qualification
or satisfies such conditions as may be prescribed in this behalf by the Bar Council of
India and subject to any such rules that may be made, an electoral roll shall be
prepared and revised from time to time by each State Bar Council.
A. Elections to First State bar Council:
* Section 53 of the Advocates Act contains provisions for the constitution of first
State Bar Council under this Act. It says that the elected members of the State Bar
Council, elected for the first time, shall be elected by and from amongst the
advocates, vakils, pleaders and attorneys who, on the date of the election are
entitled as of right to practice in the High Court and are ordinarily practicing
within the territory for which the Bar Council is to be constituted.

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B. Disqualification of members of State Bar Council:

* Section 3(2) of the Advocates Act, 1961 makes provisions that an advocate shall
be disqualified from voting at an election under Section 3(2) or for being chosen
as a member of the State Bar Council unless he posses such qualifications or
satisfies the conditions as may be prescribed in this behalf by the Bar Council of
India and subject to such rules that may be made, an electoral roll shall be
prepared and revised from time to time by each State Bar Council.
C. Dissolution of Existing Bar Council:
* On the constitution of new State bar Council under the Advocates Act, other than
Bar Council of Delhi, all properties as well as assets vesting in the corresponding
Bar Council shall vest in the new Bar Council and all rights or liabilities or
obligations of the corresponding Bar Council whether arising out of any contract
or otherwise shall be the rights or liabilities or obligations of the new Bar Council
and all proceedings pending before the corresponding Bar Council in respect of
any disciplinary matter or otherwise shall stand transferred to the new Bar
Council.
3. Powers and Functions of State bar Council:
• The general functions of the State Bar Council has been specified in the Section 6 of
the Advocates Act as follows:
* to admit persons as advocates on its roll;
* to prepare and maintain its roll;
* to entertain and determine cases of misconduct against advocates on its roll;
* to safeguard the rights, privileges and interests of advocates on its roll;
* to promote and support the law reform;
* to manage and invest the funds of the Bar Council;
* to perform all other functions conferred on it by or under this Act.
• The State Bar Council may constitute one or more funds n the prescribed manner for
the purposes of giving financial assistance to organize welfare schemes for the
indigent, disables or other advocates and giving legal aid or advice in accordance with
the law and to establishing law libraries.
• A State bar Council may receive any grants, donations, gifts or beneficiaries for all or
any of the purposes which shall be credited to the appropriate fund(s) constituted for
same.
• In Praveen Pandey v. State of Madhya Pradesh, WP 8078/2018, it was held that a State
Bar Council cannot impose penalty upon the advocate for non compliance with a call of
strike.
A. Maintenance of the Roll of Advocates:
* Maintenance of roll of advocates is the most prominent functions of the State Bar
Council. A ‘roll’ means a roll of advocates prepared and maintained under the
Advocates Act.
* Section 17(1) of the Advocates Act provides that every State Bar Council shall
prepare and maintain a roll of advocates in which shall be entered the names and
addresses of all persons who were entered as advocates on the roll of any High
Court under the Indian Bar Council Act, 1926 immediately before the

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independence were enrolled as advocates and all other persons who are admitted
to be advocates on the roll of the State Bar Council under the Advocates Act,
1961.
a. Determination of Seniority of Advocates in the State Roll:
The roll prepared by every State Bar Council consists of two parts, the first
part containing the names of senior advocates and the second part, the
names of other advocates.
Entries of names and addresses of the advocates in the State roll is in the
order of their seniority and such seniority shall be determined on the basis
of date of enrolment with the Bar Council.
Where there is a dispute regarding the date of seniority of two or more
persons, the one senior is age shall be reckoned as senior to the other and
still if the dispute is not resolved, it shall be referred to the State Bar
Council concerned for decision.
b. Special provisions for Enrolment of Certain Supreme Court Advocates:
Section 20 of Advocates Act contains special provisions for enrolment of
certain Supreme Court advocates subject to condition that every advocate
with right to practice in Supreme Court before appointed day makes
request for enrolment of his name in the roll then Bar Council of India shall
direct the State Bar Council to enroll his name in the roll without any fees.
Any entry in the State roll made in compliance with the direction of the BCI
shall be made in the order of seniority determined in accordance with the
provisions of Section 17(3).
Where the advocate omits or fails to express his intention within the
prescribed time, his name shall be entered in the roll of the State bar
Council of Delhi.
c. Transfer of Name from one State Roll to Another:
Where the name of any advocate is entered on the roll of a State Bar
Council and he intends to get it transferred to the roll of any other State Bar
Council, he may make an application in the prescribed format to the Bar
Council of India for transfer of his name.
On receipt of the application, the Bar Council of India shall direct that the
name of such person be removed from the roll of first mentioned Bar
Council and entered in the roll of other State Bar Council without payment
of any fee and concerned State Bar Council Shall comply with such
directions.
The application may be rejected by the Bar Council of India if such
application is made by any person against whom disciplinary proceedings
are pending and where for any reason it appears to the Bar Council of India
that the application is not bonafide.
d. Certificate of Enrolment:
After the name of a person is entered on the State Roll, a certificate of
enrolment shall be issued to him in the prescribed form by the State Bar
Council. Every person whose name is so entered in the State roll shall notify

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any change in the place of his permanent residence to the State Bar Council
concerned within ninety days of such change.
Once the roll of advocates is prepared by the State Bar Council, an
authenticated copy of such roll shall be sent to the Bar Council of India by
every State Bar Council and thereafter, whenever there are any alterations
in or additions to any such roll, such changes shall be communicated to the
Bar Council of India as soon as the same have been made.
B. Admission and Enrolment of Advocates:
* The function of admission and enrolment of advocates has been conferred
exclusively upon the State Bar Council by the Advocates Act. In Indian Council of
Legal Aid and Advice v. Bar Council of India, 1995 SCC (1) 732, it was held that the
Parliament while enacting the Act created agencies at the State level as well as at
Central Level in the form of State Bar Councils and Bar Council of India and
invested them with rule making powers on diverse matters touching the legal
profession.
* By virtue of Section 50 of Advocates Act, with effect from the date when a State
Bar Council is constituted under the Act, the provisions of the Letters patent of
any High Court and of any other law practitioner or confer on the legal
practitioner the right to practice in any court or before any authority or a person
as also the provisions relating to the suspension or removal of legal practitioners.
a. Qualifications for Admission on a State Roll:
Section 24 of the Advocates Act prescribes qualifications required for
admission as an advocate on a State Roll. A person shall be qualified to be
admitted as an Advocate on a State Roll of he is a citizen of India and has
completed the age of twenty one years and has obtained a degree in law
and has paid the enrolment fees payable to the State Bar Council.
b. Admission of a Vakil or a Pleader on a State Roll:
Section 24(2) provides that a vakil or a pleader who is a law graduate may
be admitted as an advocate on a State Roll, if he makes an application for
such enrolment and has atleast three years of practice.
In Parameshwar Prasad v. Union of India, AIR 1971 Pat 316, it was held that
the right to practice is not an absolute right and has been always controlled
by laws and characters.
c. Disqualification for Enrolment:
Section 24A of the Advocates Act, which was inserted in the Act by an
amendment in the year 1973 prescribes disqualification for enrolment as an
advocate if he is convicted of an offence involving moral turpitude or if he
has been dismissed or removed from employment or office under the State
or any change involving moral turpitude.
d. Application for Enrolment and its Disposal:
According to Section 25, an application for admission as an advocate shall
be made in the prescribed format to the State Bar Council within whose
jurisdiction the applicant proposes to practice and upon receipt of such
application, the State Bar Council shall refer it to the enrolment committee

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and shall be disposed of in prescribed manner in accordance with directions

given in writing by the State Bar Council.
Where the enrolment committee of a State Bar Council proposes to refuse
any such application, such application shall be referred 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.
When any application is referred for the opinion of the Bar Council of India,
such application shall be disposed of by the State Bar Council in conformity
with the opinion of Bar Council of India.
e. Removal of Name of an Advocate from the Roll:
A State Bar Council may remove the name of any advocate from the State
Roll who is dead or from whom a request has been received to that effect
or Bar Council of India is satisfied that the name has been enrolled by
misrepresentation or undue influence after proper opportunity of being
heard.
f. Effect of Refusal to Enrolment:
Where the enrolment committee of the State Bar Council has refused any
application for admission as an advocate on its roll, the State Bar Council
shall send intimation to all other State Bar Councils about the refusal giving
details including the grounds for refusal.
Where the application of an individual for admission as an advocate has
been refused by a State Bar Council, no other State Bar Council shall
entertain the application for admission of such person as an advocate on
its roll except with the previous consent of the State Bar Council which
refused the initial application as well as the Bar Council of India.
C. Constitution of Committees and Appointment of Staff:
* A State Bar Council may constitute the following committees for the purpose of
the effectively carrying of its functions:
a. Disciplinary Committee: A State Bar Council shall constitute one or more
disciplinary committee each of which shall consist of three person of whom
two shall be persons elected by the council from amongst its members and the
other shall be a person co-opted by the council from amongst the advocates
who possess the experience of 10 years as an advocate and who are not
members of the council and the senior most advocate amongst them shall be
the Chairman.
b. Legal Aid Committee: A Bar Council may constitute one or more legal air
committees each of which shall consist of such number of members not
exceeding nine but not less than five.
c. Executive Committee: A State Bar Council shall constitute an executive
committee consisting of five members elected by the council from amongst its
members.
d. Enrolment Committee: A State Bar Council shall constitute an enrolment
committee consisting of three members elected by the council from its
members.

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D. Maintenance of Accounts and Conduction of Audit:

* Section 12 of the Act enjoins a duty on ever State Bar Council to maintain books of
accounts and other books in such form and in such manner as may be prescribed.
The accounts of the State Bar Council shall be audited by the auditors of the
companies.
* The State Bar Council shall send a copy of its accounts together with a copy of the
report of the auditors thereon to the Bar Council of India and shall cause the same
to be published in the Official Gazette.
E. Powers to make Rules:
* Section 28 confers the power upon the State Bar Council to make rules for the time
within which an advocate shall express his intention for the entry of his name in the
roll of the State Bar Council under Section 20
* The State Bar Council can make rules with respect to the form in which an
application shall be made to the State Bar Council for admission as an advocate on
its roll and the manner in which such application shall be disposed of by the
enrolment committee.
* The State Bar Council is duly authorized to make rules for the conditions subject to
which a person may be admitted as an advocate on any such roll and the
installment in which the enrolment fee may be paid.
* Section 15 of the Act also confers upon the State Bar Council to make rules for
election of the member of State Bar Council by secret ballot and conditions subject
to which persons can exercise the right to vote by postal ballot and for the
preparations well as revision of the electoral rolls and the manner of publication of
the election results along with the election of the Chairman and Vice-Chairman of
the State Bar Council.
* The State Bar Council is also authorized to make rules for the maintenance of books
of accounts and other books and the appointment of auditors and audit of accounts
and the management and investment of funds of the State Bar Council.
F. Indemnity against Legal Proceedings:
* Section 48 of the Advocates Act indemnified the Bar Council and its committees and
members against legal proceedings. It provides that no suit or other legal
proceedings shall lie against any Bar Council or its committees for any act done in
good faith and in pursuance of the provisions of the Act.
G. Entertain and Determine cases of Misconduct against its Members:
* The State Bar Council on receipt of a complaint or has reason to believe that any
advocate on its roll has been guilty of professional or other misconduct shall refer
the case for disposal to its disciplinary committee.
* The disciplinary committee of the State Bar Council shall fix a date for the hearing
of the case and shall cause a notice thereof upon the advocate concerned and to
the Advocate-General of the State and after proper hearing shall dispose of the
complaint.
H. Power to Review:
* The disciplinary committee of a State Bar Council may review any of the orders suo
motu or otherwise and the limitation period for the review is sixty days from the
date of the order and the order should be approved by the Bar Council of India.
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COMPOSITION, POWERS AND FUNCTIONS OF BAR COUNCIL OF INDIA:

• Bar Council of India or BCI is the apex body which regulates the legal profession and legal
education in India, It was first set up by the Advocates Act, 1961 on the recommendations
of All India Bar Committee, 1951.
• The Bar Council of India prescribes standards of professional conduct and etiquette and
exercises disciplinary jurisdiction over the Bar throughout India and also sets standards for
legal education and grants recognition to universities whose degree in law will serve as a
qualification for students to enroll themselves as advocates.
1. Establishment of Bar Council of India:
* Section 4(1) of the Advocates Act provides for the establishment of the Bar Council of
India and says that there shall be a Bar Council for the territories to which this Act
extends to be known as the Bar Council of India.
2. Composition of Bar Council of India:
* The Bar Council of India shall consist of the following members:
A. Ex-Officio Member: The Attorney general of India and the Solicitor General of
India are the ex officio members of the Bar Council of India.
B. Elected Members: Each State Bar Council shall elect one person amongst its
members to be a member of the Bar Council of India but the term of office shall
be the term of office he holds as a member of the State Bar Council and shall be
deemed to have vacated the office if he is absent from the meetings for three
consecutive terms without prior permission.
C. Chairman and Vice Chairman: The Bar Council of India elects its Chairman and
Vice Chairman from amongst the members of the Council in such manner as may
be prescribed.
3. Powers and Functions of the Bar Council of India:
A. General Powers and Functions:
* The general functions of the Bar Council of India in terms of Section 7 of the
Advocates Act are as follows:
to lay down standards of professional conduct and etiquette for advocates;
to lay down the procedure to be followed by the disciplinary committee;
to safeguard the rights, privileges and interest of the advocates;
to promote and support law reform;
to deal with and dispose of any matter arising under the Act which may be
referred to it by the State Bar Council;
to exercise general supervision and control over the State Bar Councils;
to promote legal education and to lay down the standards for such education
in consultation with the Universities in India imparting such education;
to recognise Universities whose degree in law shall be a qualification for
enrolment as an advocate;
to conduct seminars and organize talks on legal topics;
to provide for the election of the members.
* The Bar Council of India may constitute one or more funds in the prescribed
manner for the purpose of giving financial assistance to organise welfare

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schemes for the disabled, indigent advocates or for giving legal advice in
accordance with the rules or for establishing law libraries.
* In Bar Council of Maharashtra v. M V Dabholkar & Ors., 1975 (2) SCC 702, it was
held that the constitution of the Bar Council of India is for one of the principal
purposes to see that the standards of professional conduct and etiquette laid
down by the Bar Council of India are observed and preserved.
* The rules framed by the Bar Council of India especially relating to standards of
professional conduct and etiquette clearly aim at securing high standards of
competence in legal services and seek to strengthen professional relationships
among its members and promote the welfare of the society as a whole.
B. Specific Powers and Functions:
a. Membership in International Bodies:
* As per Section 7A of the Act, the Bar Council of India may become a member
of international legal bodies and contribute such sums as it thinks fit to such
bodies by way of subscription or otherwise and authorize expenditure on the
participation of its representative in any international legal conference or
seminar.
b. Constitution of Committee:
* The Bar Council of India vide Section 9 of the Act constitute a Special
Committee which shall function as the State Bar Council until a new Bar
Council for the State is formed and this committee shall hold elections to the
State Bar Council within a period of six months from the date of its
constitution as per the directions given by the Bar Council of India.
* As per Section 9 of the Act, there shall be one or more disciplinary committee
which shall deal with all cases of disciplinary proceedings against the
delinquent advocate registered under the Act.
* The Bar Council of India may constitute one or more legal air committees
each of which shall of consist of such number of members, not exceeding
nine but not less than five.
* Section 10(2)(a) of the Act provides for the constitution of an Executive
Committee by the Bar Council of India consisting of nine members elected by
the Council from amongst its members.
* The Bar Council of India shall constitute a legal education committee
consisting of ten members, of whom five shall be elected by the Council from
amongst its members and five shall be persons co-opted by the Council who
are not members of the Council.
c. Maintenance of Accounts and Conduct Audit:
* Section 12 of the Act enjoins a duty on every Bar Council to maintain books of
accounts and other books in such form and in such manner as may be
prescribed and the same shall be audited by the auditors and a copy of the
report should be sent to the Central Government and another shall be
published in the official Gazette.
d. Admission of Advocates:
* Section 20 of the Advocates Act confers an important power upon the Bar
Council of India with respect to the admission of ay advocate who was
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entitled as a right to practice in the Supreme Court immediately before the

appointed day.
e. Rule Making Powers:
* According to Section 15(2), the Bar Council of India can make rules with
respect to the following matters:
the election of members of the Bar Council by secret Ballot;
conditions subject to which persons can exercise the right to vote by
postal ballot;
preparation and revision of electoral rolls;
manner in which the result f election shall be published;
manner of election of Chairman and Vice-Chairman of the Bar Council of
India;
management and investment of funds of the Bar Council.
* Section 49 of the Act confers vast powers upon the Bar Council of India and
being the apex body of legal profession in the Country, it has always used
these powers for the purpose of making the legal profession an honorable
profession.
* Section 49(1)(c) empowers the Bar Council of India to make rules to prescribe
the standards of professional conduct and etiquette to be observed by the
advocates and in exercise of this power, rules have been framed by the Bar
Council of India which lay down various duties of an advocate.
f. Indemnity Against Legal Proceedings:
* Section 48 of the Advocates Act indemnifies the Bar Council of India and its
committees and members against legal proceedings and provides that no suit
or other legal proceedings shall lie against any Bar Council or any committee
thereof or any member of the Bar Council for any act done in good faith or
intended to be done in pursuance of the provisions of the Act.
g. Disciplinary Powers:
* The Bar Council of India may exercise its disciplinary powers upon receipt of a
complaint or otherwise on its own opinion to believe that there is
professional or other misconduct, it shall refer the case for disposal to the
disciplinary committee.
* The disciplinary committee has the power to withdraw the inquiry initiated
by it either on its own motion or on the recommendation by the State Bar
Council or upon withdrawal of the complaint by the complainant.
h. Appellate Powers:
* The Bar Council of India enjoys appellate jurisdiction over the orders passed
by State Bar Council under Section 35 of the Act and as such any person
aggrieved by order of the State Bar Council shall have the right to make an
appeal before the Bar Council of India within sixty days from the date of
communication of the order.
* Every such appeal shall be heard by the disciplinary committee of the Bar
Council of India which may pass such order thereon as it deems fir provided
that no order of the disciplinary committee of the State Bar Council shall be
varied by the disciplinary committee of the Bar Council of India.
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i. Power of Revision:
* The Bar Council of India has power of revision over any proceedings of a State
Bar Council or any committee thereof. The Bar Council of India in view of
Section 48, may at any time call for the record of any proceedings under the
Act which has been disposed off by the State Bar Council and from which no
appeal lies for the purpose of satisfying the legality of such disposal and may
pass such order as it may think so.
* No order which prejudicially affects any person shall be passed under Section
48 without reasonable opportunity of being heard and these powers may be
exercised by the Bar Council of India only with respect to those cases where
no appeal lies.
j. Power to Review:
* The Bar Council of India or any of its committees, other than its disciplinary
committee, may of its own motion or otherwise review any order, within
sixty days of the date of that order passed by it under the Act.
k. Power to Give Directions:
* Section 48B of the Advocates Act confers powers upon the Bar Council of
India to give direction to the State Bar Councils or any of the committee of
the State Bar Council.
l. Recognition of Foreign Qualification in Law:
* The Advocates Act provides that foreign nationals may be permitted to
practice law in India if Indian nationals duly qualified are permitted to
practice law in his or her country and thus satisfying the principle of
Reciprocity.

RIGHT TO PRACTICE:
• The administration of justice is a sacrosanct function of the judicial institutions and
principle of judicial review has been declared as a part of the basic structure of the
Constitution. Legal professionals have a great role to play in the administration of justice.
• Section 29 of the Advocates act recognizes the advocates to be only class of persons
entitled to practice law whereas section 30 of the act provides a right to practice. Every
advocate whose name is entered in the State roll shall be entitled to a right to practice
throughout the territories to which the Act extends.
• The right to practice is available not only with respect to the courts, but also for the
appearance before any tribunal or person which is legally authorized to take evidence and
these provisions make the right to practice an exclusive right of the advocates debarring
all persons other than advocates to practice law.
• In N Ram Reddy v. Bar Council of the State of AP, AIR 2002 AP 484, it was held that no one
can claim the right to practice as an advocate since it cannot be considered to be a natural
avocation available to every citizen.
• Right to practice can be regulated and is not an absolute right which is free from
restrictions or without any limitation and this is a statutory right given to an advocate to

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practice and an advocate alone is the person who can practice before the courts,
tribunals, authorities and persons.
• The High Court may 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.
Refusal by a court to permit an advocate to appear before it does not amount to
extinction of the advocate’s legal entity as an advocate.
• Section 29, 30 and 33 read together give the impression that only advocates are entitled
as of right to appear and practice in the courts but in some exceptional cases, although
not as a matter of routine, court can even allow a person not enrolled as an advocate to
appear before it any particular case.
• In Harishankar Rastogi v. Girdhari Sharma, AIR 1978 SC 1019, it was held that a private
person not being advocate has no right to barge into the court and claim to argue for a
party and must get prior permission of the court and for such permission motion must
come from the party itself.
• Foreign law firms or foreign lawyers cannot practice the profession of law in India either
on the litigation or non-litigation side unless they fulfill the requirement of the Advocates
Act, 1961 and the Bar Council of India Rules however there is no bar either in the Act or
the Rules for the foreign law firms or lawyers to visit India for a temporary period on a fly
in and fly out basis for the purpose of giving legal advice to their clients in India regarding
foreign law or their own system of law and on diverse international legal issues.
• In Bar Council of India v. A K Balaji & Ors, AIR 2018 SC 1382, it was held that practice of
law covers not only appearance in courts but also giving opinions and consultations and
the practice of law includes litigation as well as non litigation side and the regulatory
mechanism for conduct of advocates applies to non litigation work also.
• Every advocate shall be under an obligation to see that his name appears on the State Roll
and shall not enter into a partnership or any other arrangement of sharing remuneration
with any person or legal practitioner who is not an advocate.
• Every advocate shall keep informed the State Bar Council on the roll of which his name
stands of every change in his address. Any advocate who voluntarily suspends practice for
any reason whatsoever shall intimate such suspension to the State Bar Council and a
similar intimation shall also be served by the advocate on the resumption of work.
• An officer after his retirement or otherwise ceasing to be in the service for any reason, if
enrolled as an advocate shall not practice in any of the judicial or administrative courts or
tribunal or authorities which are presided by an officer equivalent or lower to the post to
which such judicial officer held.
• Section 45 of Act prescribes penalty for persons illegally practicising in Courts and before
other authorities and shall be liable for a imprisonment for a terms which may extend to
six months.

PUNISHMENT FOR PROFESSIONAL AND OTHER MISCONDUCT:

• Under the Indian Bar Councils Act 1926, disciplinary control was vested in the high court.
A tribunal of the Bar Council existed for the purpose of conducting inquiries into
misbehavior by advocates. However, the high court had an option to refer the matter
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either to the tribunal or to a district judge for the purpose of inquiry. The tribunal was
only a fact-finding body and did not have any power to impose punishment. After the
enactment of the Advocates Act 1961, the disciplinary control over advocates is vested in
the state bar councils, which are the only bodies authorised to take disciplinary action
against advocates.
• Professional misconduct may consist in betraying the confidence of a client in attempting,
by any means, to perpetrate fraud, or deceiving the court or the adverse party or his
counsel. In fact, any conduct which tends to bring reproach to the legal profession or to
alienate any favourable opinion which the public should entertain concerning the legal
profession, is professional misconduct. Any conduct which contravenes the orderly and
pure administration of justice is within the disciplinary jurisdiction of a bar council.
• The Advocates Act 1961 and the Bar Council of India Rules 1975 are silent regarding the
nature of evidence and degree of proof required in disciplinary proceedings. But the
decisions rendered by the court lay down certain guiding principles.
• Disciplinary proceeding before the state bar council are sui generis and are neither civil
nor criminal in character. They are not subject to ordinary criminal procedure safeguards
and the purpose of disciplinary proceedings is not punitive. The findings in these
proceedings must be sustained by a higher degree of proof than that required in civil
suits, yet falling short of proof required to sustain a conviction in a criminal prosecution.
There should be a
convincing preponderance of evidence.
• A charge of professional misconduct is quasi criminal in nature and requires proof beyond
reasonable doubt. In cases involving the possible disbarring of advocates, the evidence
should be of a character which should leave no reasonable doubt about guilt. In a
disciplinary proceeding of this nature, the charging party has the burden of proving the
charge of misconduct of respondent.
• 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 must
refer the case for disposal to its disciplinary committee.
• The jurisdiction to act otherwise than on a formal complaint has been confirmed, keeping
in view the pre-eminent position that the legal profession enjoys in our society, the
general indifference of a large section of society to complain against professional
misconduct, the prevalent degree of illiteracy and backwardness of society, all of which
tend to point in the direction that if too formal a way of taking cognizance of professional
misconduct or malpractice is prescribed, it would be counter-productive.
• A state bar council may, either on its own motion or on an application made to it by a
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.
• The state bar council may fix a date for hearing the case and must give notice of the same
to the concerned advocate and to the Advocate-General of the state. The disciplinary
committee of the state bar council must give the concerned advocate and the Advocate-
General an opportunity of being heard, after which it may pass any of the following
orders:
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* either dismiss the complaint or, where the proceedings were introduced at the instance
of the state bar council, direct that the proceeding be filed;
* reprimand the advocate;
* suspend the advocate from practice for such period as the committee may deem fit; or
* remove the name of the advocate from the state roll of advocates.
• When the advocate is suspended from practice, he is debarred from practicing in any
court or before any authority or person in India. On receiving the notice under the
Advocates Act 1961, the Advocate-General may appear before the state bar council,
either in person or through an advocate.
• An advocate may be punished for professional or any other misconduct. The Advocates
Act 1961 vests the disciplinary committees of state bar councils with the powers of a civil
court in the following matters:
* 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 of such record, from any court or office;
* issuing commissions for the examination of witnesses or documents;
* any other matter which may be prescribed.
• An inquiry by the disciplinary committee of a bar council should not be stayed merely
because civil or criminal proceedings involving some common issue are pending before a
court or authority. Such an inquiry seeks to maintain professional discipline among
members of the bar, and is not intended to grant any relief to the complainant as such.
Consequently the two proceedings should not be treated as parallel proceedings.
• Before a complaint is filed for invoking the powers of the disciplinary committee of the
state bar council to punish the delinquent advocate, the ‘professional’ or other
‘misconduct’ alleged to have been committed by him must have been committed at the
time when he is in active practice, and while his name is on the roll of the state bar
council concerned even though the misconduct alleged may not have strictly been
committed by him in his professional capacity.
• Decisions in disciplinary proceedings under the Advocates Act 1961 termed as quasi-
criminal can operate as res judicata in subsequent proceedings. A dismissal order of the
state bar council passed in limine in a case of complaint against an advocate can operate
as res judicata, if the order is reasoned and passed on merits. The question whether such
decision will operate as res judicata, however, depends on the actual tenor of the order
passed by the state bar council while rejecting the complaint in limine.
• In Maghraj Calla v Kajodi Mal AIR 1994 Raj 11, it was held that a decision of dismissal by
the Bar Council of India in a speaking order on merits, in a complaint case filed by a client
against an advocate alleging negligence, will operate as res judicata in a subsequent suit
for damages based on negligence of the advocate.
• When the Bar Council of India receives a complaint or otherwise has reason to believe
that an advocate whose name does not appear on any state roll is guilty of professional or
other misconduct, the Bar Council must refer the case for disposal to its disciplinary
committee. The procedure followed by state bar councils must also be followed in such

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an inquiry, with the difference that the reference to the Advocate-General is construed as
a reference to the Attorney General of India.
• The disciplinary committee may, either of its own motion, or on a report by any state bar
council, or on an application made by any interested person, withdraw any proceeding for
disciplinary action pending before the disciplinary committee of a state bar council, for
inquiry before itself, and dispose of the same. In disposing of the proceedings under this
provision, the disciplinary committee of the Bar Council of India may make any order
which the state bar council could make under the appropriate provisions of the Advocates
Act 1961.
• If for any reason a disciplinary committee, either of the state bar council or the Bar
Council of India, ceases to function or exercise jurisdiction and is succeeded by another
committee, the new committee may continue the proceedings from the stage at which
the proceedings were left by its predecessor committee.
• A disciplinary committee of a state bar council must dispose of the complaint received by
it under the provisions of the Advocates Act 1961 expeditiously, and in each case, within
one year from the date of receipt of the complaint or the date of initiation of proceedings
at the instance of the state bar council. If this is not done, the proceedings will be
transferred to the Bar Council of India.
• In cases where a complaint is made, limitation is computed from the date of reference of
the matter to the disciplinary committee and not from the date when the complaint was
lodged with the Bar Council.
• At the commencement of the Advocates Act 1961, if there were any disciplinary
proceedings against an advocate pending before the disciplinary committee of a state bar
council, the committee was to have disposed of the same within a period of six months
from the date of such commencement or one year from the date of receipt of the
complaint or the date the proceedings were initiated at the instance of the state bar
council, whichever was later. However, if the state bar council failed to dispose of it
within the prescribed time, the proceeding was to be transferred to the Bar Council of
India for disposal.

BAR COUNCIL OF INDIA RULES PART VII:

1. Complaint and Enquiry under Sections 35, 36 and 36B of the Act:
• 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, 1908. The complaint could be
filed in English or in Hindi or in regional language where the language has been
declared to be a State language and in case the complaint is in Hindi or in any regional
language, the State Bar Council shall translate the complaint in English whenever a
disciplinary matter is sent to the Bar Council of India under the Advocates Act. Every
complaint shall be accompanied by the fees as prescribed in the rules framed under
Section 49(h) of the Act.
• The Secretary of the Bar Council may require the complainant to pay the prescribed
fees if not paid, to remove any defects and call for such particulars or copies of the
complaint or other documents as may be considered necessary.
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• On a complaint being found to be in order, it shall be registered and placed before the
Bar Council for such order as it may deem fit to pass. No matter taken up by a State
Bar Council suo motu or arising on a complaint made under Section 35 of the Act shall
be dropped solely by reason of its having been withdrawn, settled or otherwise
compromised, or that the complainant does not want to proceed with the enquiry.
• Before referring a complaint under section 35(1) of the Act to one of its Disciplinary
Committees to be specified by it, the Bar Council may require a complainant to furnish
within a time to be fixed by it, further and better particulars and may also call for
comments from the Advocates complained against.
• 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, and further informing him that in case of his non-appearance on the date of
hearing fixed, the matter shall be heard and determined in his absence.
• Appearance includes, unless otherwise directed, appearance by an Advocate or
through duly authorised representative. If the Disciplinary Committee requires or
permits, a complainant may file a replication within such time as may be fixed by the
Committee.
• The Chairman of the Disciplinary Committee shall fix the date, hour and place of the
enquiry which shall not ordinarily be later than thirty days from the receipt of the
reference. The Registrar shall give notice of such date, hour and place to the
complainant or other person aggrieved, the advocate concerned and the Attorney
General or the Additional Solicitor General of India, or the Advocate General as the
case may be, and shall also serve on them copies of the complaint and such other
documents mentioned in Rule 24 of this Chapter as the Chairman of the Committee
may direct at least ten days before the date fixed for the enquiry.
• 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 if any, and his address for service of notice if any Senior Advocate is
entitled to appear with another Advocate who has filed a vakalatnama. The Bar
Council or its Disciplinary Committee may at any stage of a proceeding appoint an
Advocate to appear as Amicus Curiae. Such Advocate may be paid such fee as the
council or the Committee may decide.
• Excepting when the Committee has otherwise directed, service on the Advocate shall
be deemed to be sufficient service on the parties concerned, even if copies of the
notices are in addition sent to the parties, whether the parties have or have not been
served. Unless otherwise indicated, where more than one Advocate appears for the
same party, it is sufficient to serve the notice on any of them.
• If in an enquiry on a complaint received, either the complainant or the respondent
does not appear before the Disciplinary Committee in spite of service of notice, the
Committee may proceed ex-parte or direct fresh notice to be served. Any such order
for proceeding ex-parte may be set aside on sufficient cause being shown, when an

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application is made supported by an affidavit, within 60 days of the passing of the ex-
parte order.
• The Disciplinary Committee shall hear the Attorney General of the Additional Solicitor
General of India or the Advocate General as the case may be or their Advocate, and
parties or their Advocates, if they desire to be heard, and determine the matter on
documents and affidavits unless it is of the opinion that it should be in the interest of
justice to permit cross examination of the deponents of to take oral evidence, in which
case the procedure for the trial of civil suits shall as far as possible be followed.
• The finding of the majority of the members of the Disciplinary Committee shall be the
finding of the Committee. The reason given in support of the finding may be given in
the form of a judgement, and in the case of a difference of opinion, any member
dissenting shall be entitled to record his dissent giving his own reason. It shall be
competent for the Disciplinary Committee to award such costs as it thinks fit.
• The date of an Order made by the Disciplinary Committee shall be the date on which
the said Order is first received in the office of the Bar Council after it has been signed
by all the members thereof. For the purpose of limitation the date of the Order shall
be the date on which the contents of the Order duly signed as aforesaid are
communicated to the parties affected thereby.
2. Withdrawal of Proceedings under Section 36 of the Act:
• Where a State Bar Council makes a report referred to in Section 36(2) of the Act, the
Secretary of the State Bar Council shall send to the Secretary of the Bar Council of
India all the records of the proceedings along with the report. An application by a
person interested in the withdrawal of a proceeding referred to in Section 36 (2) of the
Act, shall be signed by him and it shall set out the necessary facts supported by an
affidavit and accompanied by the fee prescribed.
3. Appeal to the Bar Council of India under Section 37 of the Act:
• An appeal to the Council provided for under Section 37 of the Act, shall be in the form
of a memorandum in writing as set out in Rule 21 in this Chapter. If the appeal is in a
language other than English, it shall be accompanied by a translation thereof in
English. In every appeal filed under Section 37(l) of the Act, all persons who were
parties to the original proceedings shall alone be impleaded as parties. Save as
otherwise directed by the Disciplinary Committee of the Council, in an appeal by the
Advocate against an order under Section 35, in case of death of the complainant the
legal representatives of the complainant shall be made parties.
• An appeal may be presented by the appellant or his Advocate or by his recognised
agent in the office of the Bar Council of India, or sent by registered post with
acknowledgement due so as to reach the Secretary, Bar Council of India on or before
the last day of limitation. Any appeal may be admitted after the period of limitation if
the appellant satisfies the Disciplinary Committee that he has sufficient cause for not
preferring the appeal within such period. Any such application for condonation of
delay shall be supported by an affidavit.
• Subject to any resolution of the Bar Council of India, in this behalf relating to the place
of hearing, the Chairman of the Disciplinary Committee concerned shall fix the date,
hour and place for the hearing of the appeal.
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• The appellant shall be required to file six typed sets of all papers properly paged and
indexed if there is only one respondent, and as many more sets as there may be
additional respondents for the use of the Disciplinary Committee and by the other
parties and for the record. The Respondent shall, if he so desires, or if so called upon,
file six sets of typed papers of any part of the record on which he intends to rely. He
shall also file English translations of such papers as are not in English.
4. Application for Stay, and Other Matters:
• An application for stay made under Section 40, sub-section (1) or (2) of the Act shall be
accompanied by an affidavit and the fees, if any prescribed by the rules of the Council
made under section 19(h) of the Act.
• Where the affidavit is not in English, a translation thereof in English shall be filed. The
applicant shall file with his application at least five copies of the application, and the
affidavit and as many additional copies thereof as there are respondents. Where the
application is not in English five copies with translation thereof in English shall also be
filed.
• In every application for stay made to the Council, the applicant shall state if any
application has been made to the State Council, and the orders thereon. Before a
matter is allotted to a Disciplinary Committee under Rule 22 above, the Registrar may
obtain orders on applications for interim stay or other urgent applications from the
Chairman of any of the Disciplinary Committees. The orders passed under this sub-rule
shall be communicated to the parties and to the Secretary of the Bar Council
concerned.
• After allotment of a case under Rule 22 in this Chapter to a Disciplinary Committee, the
Registrar may obtain its orders on any matter of an emergent nature arising therein, by
circulation. The Disciplinary Committee of the Bar Council of India shall exercise all the
powers exercised by the Civil Court or Court of Appeal under C.P.C. The order of the
Disciplinary Committee disposing of an appeal shall be communicated to the parties.
The date on which the said order is first received in the office of the Council after it has
been signed by all the members thereof.
5. Rules Applicable to Proceedings Before Disciplinary Committee of Bar Council:
• The Rules in this Chapter so far as may be shall apply to all proceedings of the
Disciplinary Committee of State Bar Councils or of the Bar Council of India. All the
proceedings before the Disciplinary Committee shall be held in camera inspection of
records and copies.
• Save as otherwise directed by the Disciplinary Committee of the Chairman thereof,
inspection of any of the records in any proceeding before the Disciplinary Committee
may be permitted to the parties or their Advocates on presentation of an application
duly signed by the applicant or his Advocate and on payment of the prescribed fee on
any working day except during the summer or other vacations of the Supreme Court.
• All orders where costs are awarded in disciplinary proceedings shall specify the
amount of costs awarded and also state the party against whom the order is made,
and the time within which the amount is payable. The Decretal Order aforesaid shall
be furnished to any party to the proceeding on application made therefore, and on
payment of the charges prescribed under the rules.
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MODULE 3

CONTEMPT OF COURTS ACT, 1971:

• The rule of law is a foundational feature of our Constitution and the right to obtain judicial
redress is a feature of its basic structure. It is through the courts that the rule of law
reveals its meaningful content. Protection of the administration of justice is, therefore, as
imperative as its existence for the civilised functioning of any free and egalitarian social
order. The law of contempt secures public respect and confidence in the judicial process
and provides the sanction for any act or conduct which is likely to destroy or impair such
respect and confidence.
• The rule of law is the basic scheme of the Constitution and that maintenance of dignity of
Court is one of the cardinal principles of the rule of law.20 It also pointed out that the
object of the law of contempt is to uphold the majesty of law and administration of justice
and not vindicate the dignity and honour of the individual Judge who is personally
attacked or scandalized.

DEFINITIONS:
• According to Section 2,
“contempt of court” means civil contempt or criminal contempt.
“civil contempt” means wilful disobedience to any judgment, decree, direction, order,
writ or other process of a court or wilful breach of an undertaking given to a court.
“criminal contempt” means the publication (whether by words, spoken or written or by
signs, or by visible representations, or otherwise) of any matter or the doing of any other
act whatsoever which scandalizes or tends to scandalize, or lowers or tends to lower the
authority of, any court; or prejudices, or interferes or tends to interfere with, the due
course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or
tends to obstruct, the administration of justice in any other manner;
“High Court” means the High Court for a State or a Union territory, and includes the court
of the Judicial Commissioner in any Union territory.
• Contempt proceedings do not partake the character of a traditional lis. In the legalistic
sense a contempt proceeding is not a dispute between two parties but is “primarily
between the court and the person who is alleged to have committed the contempt of
court and The person who informs the court or brings to the notice of the court that
anyone has committed contempt of such court is not in the position of a prosecutor—he
is simply assisting the court so that the dignity and the majesty of the court is maintained
and upheld.
• The Court should not generally adjourn the contempt proceedings until any pending
criminal proceedings arising out of the same circumstances have been completed. In
particular contempt proceedings for breach of a non molestation order should be dealt
with swiftly and decisively and should not be adjourned pending the outcome of the
criminal proceedings where no real risk of prejudice has been established.
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• The need to deal promptly with contempt proceedings does not remove a Judge's
discretion to decide whether serious prejudice would be caused by proceeding with the
hearing of contempt proceedings before the conclusion of criminal proceedings arising
out of the same incident.
• Contempt of Court is not a single offence. The expression describes several very different
types of offences: misbehaving in court (throwing an egg at a judge), obstructing justice
(bribing a witness), disobeying a court order (an injunction), breaching the subjudice rule
(a newspaper publishing articles that try to influence the outcome of a case), scandalizing
the court(unfounded criticisms or accusations of bias against a court).
• Civil contempt is basically a wrong to the person who is entitled to the benefit of a court
order. “Civil, distinguished from criminal contempt is a wrong for which the law awards
reparation to the injured party; though nominally a contempt of court, it is in fact a wrong
of a private nature as between subject and subject and the King is not a party to the
proceedings to furnish it. The punishment is a form of execution for enforcing the right of
a suitor.
• The Supreme Court under Article 32 and the High Courts under Article 226 of the
Constitution have power to issue writs of or in the nature of mandamus (commanding a
public authority to do or not to do a certain thing) or certiorari (calling upon a public
authority to produce records for quashing the same) or prohibition (prohibiting an
authority from exercising jurisdiction) or quo warranto (questioning a public officer under
what authority he is holding the office) or habeas corpus (directing a detaining authority
to produce the detained). Contempt proceedings are the only effective means for
execution of the writs or orders made in the writ jurisdiction. Non-compliance with a writ
or order issued under Article 226 constitutes contempt.
• When the Court makes an order relying on categorical statement made in counter
affidavit by respondent that they would not alienate the suit property during the
pendency of proceedings such averments in counter affidavit were held to be an
undertaking to court and breach of it contumacious.
• When a court accepts an undertaking given by one of the parties and passes orders based
on such undertaking, the order amounts in substance to an injunction restraining that
party from acting in breach thereof.
• The breach of an undertaking given to the court by or on behalf of a party to a civil
proceeding is, therefore, regarded as tantamount to a breach of injunction although the
remedies were not always identical.
• Where consent terms are filed in a winding up proceeding but no order of the court had
been passed in terms of such consent terms, no contempt is committed merely because
an undertaking was filed in the court supporting he consent term and by non-payment of
the money which had been agreed to be paid under the consent terms.
• A company will be guilty of contempt if the terms of its undertaking have been violated
and even though the individual officers did not know that the undertaking was being
violated.
• A company may be liable for the undertaking given by the company it has taken over.
Company Directors or other Officers may also be personally liable for the company's

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breach of undertaking. The Director could be liable even if he had taken a purely passive
role.
• In N. Rathinasabapathy v. K.S. Palaniappa Kandar, l996 (7) SCC 205, it was held If an
injunction is issued limited for a particular period (e.g. 3 weeks) and is not extended
thereafter, the order ceases to be in existence after the expiry of the specified period and
there could be no question of any violation of that order after such expiry.

DEFENCE AVAILABLE:
1. Innocent Publication and Distribution of Matter Not Contempt:
• A person shall not be guilty of contempt of court on the ground that he has published
(whether by words spoken or written or by signs or by visible representation or
otherwise) any matter which interferes or tends to interfere with, or obstructs or
tends to obstruct, the course of justice in connection with any civil or criminal
proceeding pending at the time of publication, if at that time he had no reasonable
grounds for believing that the proceeding was pending.
• Notwithstanding anything to the contrary contained in this Act or any other law for the
time being in force, the publication of any such matter as is mentioned in sub-section
(1) in connection with any civil or criminal proceedings which is not pending at the
time of publication shall not be deemed to constitute contempt of court.
• A person shall not be guilty of contempt of court on the ground that he has distributed
a publication containing any such matter as is mentioned in sub-section (1), if at the
time of distribution he had no reasonable grounds for believing that it contained or
was likely to contain any such matter as aforesaid: provided that this sub-section shall
not apply in respect of the distribution of— (i) any publication which is a book or paper
printed or published otherwise than in conformity with the rules contained in section 3
or the Press and Registration of Books Act, 1867 (25 of 1867); (ii) any publication which
is a newspaper published otherwise than in conformity with the rules contained in
section 5 of the said Act.
• This section provides that although there has been publication or distribution of
publication which interferes or tends to interfere with, or obstructs the course of
justice in connection with any civil or criminal proceeding (whether pending or not at
the time of publication), such publication or distribution would not constitute
contempt of court in the circumstances and subject to the conditions specified in the
section being fulfilled. In short, this section engrafts some of the exceptions to criminal
contempt as defined in section 2(c)(ii) of the Act.
• Section 3 is in the nature of an exception to those categories of ‘criminal contempt’
which fall under sub-clause (ii) and to certain categories of ‘criminal contempt’ which
come under sub-clause (iii) of section 2(c), but not to that category of contempt which
falls under sub-clause (i) of section 2(c).
• The publication and distribution which are considered to be innocent under the
section and its three subsections can be classified as- the person charged had, at the
time of publication, no reasonable grounds for believing that the proceeding was
pending [sub-section (1)] and if the proceedings are not pending at the time of
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publication [sub-section (2)] and A person charged with distribution of publication, did
not have at the time of distribution reasonable grounds for believing that the
publication contained or was likely to contain such contumacious matter referred to in
sub-section (1) [sub-section (3)].
2. Fair and Accurate Report of Judicial Proceeding Not Contempt:
• A person shall not be guilty of contempt of court for publishing a fair and accurate
report of a judicial proceeding or any stage thereof. The fundamental right of freedom
of speech and expression contained in Article 19(1)(a) is subject to the reasonable
restriction or the limitations on the scope of reporting of a judicial proceeding as
contained in section 4 of the Act.
• It is well-settled that in general, all cases brought before the courts, whether civil,
criminal, or others, must be heard in open court. Public trial in open court is
undoubtedly essential for the healthy, objective and fair administration of justice.
• Trial held subject to the public scrutiny and gaze naturally acts as a check against
judicial caprice or vagaries, and serves as a powerful instrument for creating
confidence of the public in the fairness, objectivity and impartiality of the
administration of justice.
• Public confidence in the administration of justice is of such great significance that
there can be no two opinions on the broad proposition that in discharging their
functions as judicial tribunals, courts must generally hear causes in open and must
permit the public admission to the court-room.
• The basis of the right to publish fair and accurate reports of judicial proceedings being
the fact that judicial proceedings are conducted publicly, it goes without saying that
this right does not extend to publication of proceedings not held publicly.
• Nothing is more incumbent upon courts of justice than to preserve their proceedings
from being misrepresented nor is there anything of more pernicious consequence,
than to prejudice the minds of the public against persons concerned as parties in
causes, before the cause is finally heard. There cannot be anything of greater
consequence, than to keep thestream of justice clear and pure, that parties may
proceed with safety both to themselves and their character.
• According to Borrie & Lowe, to gain immunity from contempt, reports of proceedings
must be ‘fair and accurate’. This does not mean that the report must be word perfect,
it is sufficient that it is a fair representation of what has taken place in court......Undue
selectivity or emphasis might not be considered ‘fair’. ‘A report may be accurate as far
as it goes but unfair either in its mode of presentation or in stressing unfavourable
aspects of the proceedings or is accurately reporting some parts but omitting other
parts of the proceedings.
• In Shiv Sankar Bansal v. Hakim Singh, 2003 (2) Crimes 380, it was held the necessity of
utmost caution to be exercised in newspaper reporting of court proceedings and
orders. The persons responsible for such reporting must first get acquainted with the
correct facts of judicial proceedings.
3. Fair Criticism of Judicial Act Not Contempt:
• A person shall not be guilty of contempt of court for publishing any fair comment on
the merits of any case which has been heard and finally decided. This section delimits
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the scope of criticism of the merits of a case which has been heard and finally decided
and provided a person operates within those limits, he will be immune.
• According to Bentham, while comments on judicial proceedings which are pending
may have an adverse influence on such proceedings, the same cannot be said with
regard to comments or reflections on a judicial proceeding after it has been finally
disposed of and once this stage is reached, the Judge is given over to criticism and
public interest demands that no undue fetters should be placed upon the right of
individuals to reflect on the conduct of the Judge or the parties in the proceeding or to
comment upon the decisions in the proceedings.
• The right to criticise judicial conduct and judicial decision in relation to proceedings
which are no longer pending cannot, however, be of an absolute character. Without
any limitations, it may result in encouragement of scandalous attacks but when kept
within proper bounds, it is bound to serve a very useful purpose.
• In Kallol Guha Thakurata v. Biman Basu, Chairman, Left Front, West Bengal, (2005) 2
CHN 330, it was held that comments which are outspoken, frank and candid may be
fair but good faith must be writ large all over them and the reasons behind such
comments will show whether they were in good faith or not.
4. Complaint Against Presiding Officers of Subordinate Courts when Not Contempt:
• A person shall not be guilty of contempt of court in respect of any statement made by
him in good faith concerning the presiding officer of any subordinate court to any
other subordinate court, or the High Court, to which it is subordinate.
• This section enables a person to make bona fide and legitimate complaint concerning a
Judge of any subordinate court to the High Court or to any other subordinate court to
which the former subordinate court is subordinate.
• The object of the law of contempt is not to provide a cloak for judicial authorities to
cover up their inefficiency or to stifle criticism made in good faith against such officers.
The ordinary right of making or publishing fair comments on merits of any case which
is no longer pending or on the conduct of any Judge in relation to any such case may
not be adequate protection for a person who desires in good faith to expose a judicial
officer with a view to enabling a superior authority to take necessary action.
• In the case of the subordinate judiciary, the law of contempt ought not to stand in the
way of a complaint against them being made in good faith to the appropriate superior
authorities. If the position were otherwise, it would be tantamount to putting a
premium on corrupt or inefficient Judges.
• In State v. S N Dixit, 1973 Cri LJ 1211 (All), it was held that the only tangible test which
can be applied for judging the good faith of a person in doing a certain act is as to
whether he acted with due care and attention. It is surely not open to a person to take
precipitate action only on vague information received by him from irresponsible
sources and without verifying the same diligently.
5. Publication of Information Relating to Proceedings in Chamber or Camera Not
Contempt:
• Notwithstanding anything contained in this Act, a person shall not be guilty of
contempt of court for publishing a fair and accurate report of a judicial proceeding

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before any court sitting in chambers or in camera except in the following cases, that is
to say,—
* where the publication is contrary to the provisions of any enactment for the time
being in force;
* where the court, on grounds of public policy or in exercise of any power vested in it,
expressly prohibits the publication of all information relating to the proceeding or of
information of the description which is published;
* where the court sits in chambers or in camera for reasons connected with public
order or the security of the State, the publication of information relating to those
proceedings;
* where the information relates to a secret process, discovery or invention which is an
issue in the proceedings.
• A person shall not be guilty of contempt of court for publishing the text or a fair and
accurate summary of the whole, or any part, of an order made by a court sitting in
chambers or in camera, unless the court has expressly prohibited the publication
thereof on grounds of public policy, or for reasons connected with public order or the
security of the State, or on the ground that it contains information relating to a secret
process, discovery or invention, or in exercise of any power vested in it.
• A type of contempt which does not neatly fit into the traditional classification of
contempt by way of scandalising the court and contempt in relation to pending
proceedings is contempt by publication of information relating to judicial proceedings
in violation of secrecy. The general principle in regard to publication of information
relating to judicial proceedings is well settled, namely, that all judicial proceedings
must be open to the public and the administration of justice must take place in open
court. The reason is that the public have a general interest in the administration of
justice. The concomitant result is that the publication of judicial proceedings and
information relating thereto cannot be forbidden.
• The protection under the main enacting part of this section will not be available in the
following four cases:
* where the publication is contrary to the provisions of any enactment for the time
being in force;
* where the court, on grounds of public policy or in exercise of any power vested in it,
expressly prohibits the publication of all information relating to the proceeding or of
information of the description which is published;
* where the court sits in chambers or in camera for reasons connected with public
order or the security of the State, the publication of information relating to those
proceedings;
* where the information relates to a secret process, discovery or invention which is an
issue in the proceedings.
6. Other Defences not Affected:
• Nothing contained in this Act shall be construed as implying that any other defence
which would have been a valid defence in any proceedings for contempt of court has
ceased to be available merely by reason of the provisions of this Act.

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• Besides the defences expressly referred to in sections 3 to 7 of the Act, the court can
in appropriate cases consider any other defence pleaded by the contemnor which is
not incompatible with the dignity of court and law of contempt.
• It is a fundamental and well-established principle that a decree passed by a court
without jurisdiction is a nullity and that its invalidity could be set up whenever and
wherever it is sought to be enforced or relied upon, even at the stage of execution and
even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or
territorial, or whether it is in respect of the subject-matter of the action, strikes at the
very authority of the court to pass any decree, and such a defect cannot be cured even
by consent of parties.
• In Union of India v. Prakash P. Hinduja, AIR 2003 SC 2612, it was held that under the
constitution the Parliament exercises the sovereign power to enact laws and no
outside power or authority can issue a direction to enact a particular piece of law
hence an executive authority is empowered to legislate in terms of power conferred
upon him as a delegated legislative authority and non-compliance of direction issued
regarding conferment of statutory status on Central Vigilance Commission does not
amount to contempt.
• An erroneous order has to be distinguished from an order without jurisdiction. Such an
order cannot be ignored and disobedience of such order would constitute contempt.
The remedy of party aggrieved is to apply to the court for relief from compliance with
the order and If people are free to ignore court orders because they believe that their
foundation is unconstitutional, anarchy cannot be far behind. The citizen's safeguard is
in seeking to have illegal orders set aside through the legal process, not in disobeying
them.
• A person charged with contempt can successfully take the plea that the terms of the
order of injunction are not clear and unambiguous. If the terms of the injunction are
ambiguous either as to precisely what is to be done or by whom it is to be done, no
committal order will be made for an alleged violation of such an order. Moreover,
violation of an order which is of an ambiguous and contingent character the directions
in it being dependent on certain other facts which are left undefined by the order,
cannot amount to contempt but mere generality of the order or decree would not
make it unenforceable and furnish a ground of defence.
• A person against whom a prohibitory order has been passed and who has actual
knowledge of such order cannot plead in defence that he has not been formally served
with an official copy of the order by the court which passed the order.
• Casual or accidental and unintentional acts of disobedience under circumstances
which negative any suggestion of contumacy while it might visit the offending party
with costs or invite an enquiry into damages, would not amount to contempt.
• In Mariyappa v. V. R. Ramakrishna Rao, 1999 Cri LJ 1378, it was held that if the
respondents have no actual knowledge of the order but commits an act which results
in a breach of the order, they cannot be held guilty of contempt as in such a case there
is no wilful and deliberate disobedience of the order and there is no contempt if the
order that is alleged to be violated was not served and if there was knowledge, then
official communication is not necessary.
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• In the case of disobedience of positive orders it is the duty of the party concerned to
find out the proper means of obeying the order, but it would be a valid defence to say
that compliance with the order was impossible, the burden of proving such
impossibility being on the person charged, or that in carrying out the order the person
charged would have to act contrary to law.
• A fear of reprisal may constitute a defence or at least a factor for imposing a lesser
sentence in proceedings for contempt where the contemptuous act alleged is a refusal
on the part of a witness to give evidence against a party who, according to the alleged
contemner, had instilled that fear.
• The contemner may successfully plead that the order for the violation of which he is
being charged for contempt was obtained by suppression of relevant facts particularly
when those facts were not within the knowledge of the respondent at the time when
that order was made.

PUNISHMENT, APOLOGY AND APPEALS:

1. Punishment:
• Save as otherwise expressly provided in this Act or in any other law, a contempt of
court may be punished with simple imprisonment for a term which may extend to six
months, or with fine which may extend to two thousand rupees, or with both provided
that the accused may be discharged or the punishment awarded may be remitted on
apology being made to the satisfaction of the Court.
• Where a person is found guilty of a civil contempt, the court, if it considers that 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
a civil prison for such period not exceeding six months as it may think fit.
• 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 the contempt was
committed, was in charge of, and was responsible to the company as well as the
company, shall be deemed to be guilty of the contempt and the punishment may be
enforced, with the leave of the court, by the detention in civil prison of each such
person provided that nothing contained in this sub-section shall render any such
person liable to such punishment if he proves that the contempt was committed
without his knowledge or that he exercised all due diligence to prevent its commission.
• Where the contempt of court referred to therein has been committed by a company
and it is proved that the contempt has been committed with the consent or
connivance of, or is attributable to any neglect on the part of, any director, manager,
secretary or other officer of the company, such director, manager, secretary or other
officer shall also be deemed to be guilty of the contempt and the punishment may be
enforced, with the leave of the court, by the detention in civil prison of such director,
manager, secretary or other officer.
• The jurisdiction conferred on the High Court under Article 215 of the Constitution to
punish for contempt of itself is a special one not arising or derived from the Contempt
of Courts Act and therefore not within the purview of the Penal Code.
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• The provision for punishment in section 12 of the Act do not denude the High Court or
the Supreme Court of their power to issue directions to remedy the wrong done by the
contemner, including such directions so as to ensure that the contemner does not
retain any benefit derived by his contumacious conduct.
• Apart from imprisonment or fine, the court has jurisdiction to take security for good
behaviour, and instead of imprisoning or fining, the court may adopt a more lenient
course of granting an injunction against repetition of the act of contempt and such a
lenient course may be adopted also in cases where persons are found guilty as aiders
and abettors, who are strangers and had aided and abetted breach of an injunction or
an undertaking.
• In State of Madhya Pradesh Thr. The District Judge, Ujjaini v. Shivmohan Singh & Anr.,
JT 2000 (10) SC 491, without reference to any authority and without advancing any
reason, it was observed that an Advocate who had been convicted and sentenced
could not practise in the court in respect of which he committed contempt until he
purged himself.
• The principle of concurrent sentencing has been applied in relation to contempt. If the
acts constituting a contempt also amount to an offence under any other law, then the
Court can, apart from sentencing the respondent under the Act and, subject to
jurisdictional qualification, also convict and impose a sentence for the offence
committed under that law.
• Where there are several persons arraigned as contemnors and all or some of them are
found guilty of contempt, it does not follow that the Court should impose an uniform
punishment on each of them. The Court can impose differential punishment on an
assessment of the degree of the culpable role of the contemnors.
2. Apology:
• It is also not a matter of course that a Judge can be expected to accept any apology.
Apology cannot be a weapon of defence forged always to purge the guilty. It is
intended to be evidence of real contrition, the manly consciousness of a wrong done,
of an injury inflicted and the earnest desire to make such reparation as lies in the
wrongdoer's power. Only then is it of any avail in a court of justice. But before it can
have that effect, it should be tendered at the earliest possible stage, not the latest.
• Unconditional apology tendered only at the Supreme Court level will not completely
exonerate the contemner even if such apology is accepted although the sentence may
be reduced.
• An apology is not a weapon of defence to purge the guilty of their offence; nor is it
intended to operate as a universal panacea but it is intended to be evidence of real
contriteness.
• In M.C. Mehta v. Union of India, AIR 2003 SC 3469, the precise reasons for not
accepting the apology do not appear to be sound in principle. The court suggests that
because the apology tendered was preceded and followed by statements in the
affidavit of the contemner denying that any contempt had been committed was
evidence of the fact that the apology was not a product of remorse or contrition.
• Apology can never be used as a weapon of defence to purge the guilt or offence. An
apology coupled with a justification for the statements made in the affidavits or the
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denial of the intention to mislead the Court by making false statement, cannot be said
to be an unconditional apology. Such an apology can only be termed as a mere
realization of the contemner that his adventure has turned into a misadventure
inasmuch as that he failed in misleading the Court to get the petition dismissed on the
basis of the statement which was false to the knowledge of the contemner.
• Since the acceptance of the apology is a matter of discretion, the courts can while
accepting the apology, impose conditions on the contemner e.g., subject to his
executing the bond for maintaining good conduct and for not indulging in any
repetition of his contemptuous conduct in future.
3. Appeal:
• A conviction may be set aside on appeal where the Appellate Court is satisfied that the
person convicted, for bona fide reasons, misunderstood the court's directions and had
on realisation taken steps to implement the same and when he gives an undertaking to
the Appeal Court to follow the directions and in such a case the Appeal Court might
remand the matter back to the trial Judge with a direction to afford the convicted
person an opportunity to prove his bona fide where the Appeal Court is unable to
decide on the facts.
• The appeal is the continuation of the original proceedings and it is nothing but carrying
the cause to a superior court and as the contempt of court jurisdiction stands on a
different footing than ordinary criminal appeal under the Code of Criminal Procedure
against an order of conviction and sentence, where no appeal is preferred by the State,
the court cannot alter the sentence, the Appellate Court in the contempt jurisdiction
can, after affording an opportunity to explain as to why the sentence should not be
enhanced, consider the same in the appeal.
• An appeal shall lie as of right from any order or decision of High Court in the exercise
of its jurisdiction to punish for contempt where the order or decision is that of a Single
Judge, to a Bench of not less than two Judges of the Court or where the order or
decision is that of a Bench, to the Supreme Court provided that where the order or
decision is that of the Court of the Judicial Commissioner in any Union territory, such
appeal shall lie to the Supreme Court.
• Pending any appeal, the Appellate Court may order that the execution of the
punishment or order appealed against be suspended or if the appellant is in
confinement, he be released on bail or the appeal be heard notwithstanding that the
appellant has not purged his contempt.
• This section confers a right of appeal from any order or decision of the High Court in
the exercise of its jurisdiction to punish for contempt and lays down the ambit of the
powers of the appellate court pending the hearing of the appeal as well as the period
of limitation in relation to such appeals.
• An undertaking given by a party in a contempt proceeding which affects the rights of
the parties is not an interlocutory order because breach of the undertaking can be
punished for contempt and hence the order recording the undertaking is appealable
under section 19 of the Act.

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• In an appeal under section 19, the court will not go into the question of validity of
certain related or consequential orders made consequent to the order the violation of
which had been complained of.
• Although no appeal lies under section 19(1) as of right against an order of a Division
Bench of the High Court initiating a proceeding or rejecting a motion of reference as
indicated above, the Advocate General or any other person who has, with the consent
in writing of the Advocate General, moved the High Court can always approach the
Supreme Court (in case of criminal contempt) by petition of special leave to appeal
under Article 136 of the Constitution. Similarly, any person aggrieved by an order of a
Division Bench of the High Court made in exercise of its appellate power under section
19 of the Act should, in principle, be entitled to apply for special leave to appeal to the
Supreme Court under Article 136 of the Constitution.
• The appellate court will ordinarily confine its attention to the material which has
received consideration by the trial court while adjudging the contemner guilty, but
there would be no lack of jurisdiction in taking into consideration material which
formed the subject-matter of the notice but which was not taken into consideration by
the trial court in finding the person charged guilty of contempt.
• An order holding a person guilty of contempt of court cannot be reviewed by the court.
It is amenable to correction only in an appeal under section 19 of the Act. The inherent
powers of the High Court under section 482 of Cr. P. C. cannot be utilised for altering
or reviewing a judgment convicting a person for contempt of court.
• The High Court in its contempt jurisdiction, unlike its jurisdiction under Article 226,
cannot judicially review the decision making power of the state. Order passed by
authorities in compliance with the direction of the court even if vitiated by an error,
cannot be judicially reviewed by the court in exercise of contempt jurisdiction.

CONSTITUTIONAL POWER OF SUPREME COURT AND HIGH COURT:

• Independently and apart from the Contempt of Courts Act, 1971 or other statutory law
relating to contempt (e.g. IPC or Cr.PC), the Supreme Court (by reason of Article 129) and
the High Courts (by reason of Article 215) have inherent power to punish for contempt of
the Supreme Court and the High Courts respectively.
• Inherent power or jurisdiction was not derived from the statutory law relating to
contempt nor did such statutory law affect such inherent power nor confer a new power
or jurisdiction. Since such power of the Supreme Court and the High Courts are recognised
in the Constitution, they partake the character of constitutional power and
consequentially no law made by legislature could take away the jurisdiction conferred on
the Supreme Court and the High Courts nor could such law confer it afresh by virtue of its
own authority.
• The rule of law is a foundational feature of our Constitution and the right to obtain judicial
redress is a feature of its basic structure. It is through the courts that the rule of law
reveals its meaningful content. Protection of the administration of justice is, therefore, as
imperative as its existence for the civilised functioning of any free and egalitarian social
order. The law of contempt secures public respect and confidence in the judicial process
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and provides the sanction for any act or conduct which is likely to destroy or impair such
respect and confidence.
• Having regard to the constitutional scheme of conferring wide power of superintendence
in the Supreme Court over all courts and tribunals in the country and of the High Courts
over all courts subordinate to them as well as the normal interpretative connotation of an
inclusionary provision, the Supreme Court has held that the powers conferred by Articles
129 and 215 are not only confined to protecting the operation of the justice delivery
system in the Supreme Court and High Courts only but also extends to ensuring that the
stream of justice flowing throughout the country through the channels of the subordinate
judiciary remains unpolluted. It follows that under Article 129, the Supreme Court has
power to deal with contempts (at least criminal contempts) committed vis-a-vis the High
Courts.
• Articles 129 and 215 are intended to ensure to the Supreme Court and the High Courts
the power to punish for contempt which English courts of record possess. The elaborate
wording of the Articles was necessitated by reason of the absence of any such thing as
Common Law in our country at any rate in those parts of India outside the old presidency
towns. Constituent Assembly or legislative debates may not be relied on as an aid for
construction but it is quite legitimate to use them as evidence of the circumstances
prevailing at the time of the passing of a statute. So viewed, the elaborate phraseology of
Articles 129 and 215 would reveal itself more as the consequence of a practical difficulty
in using more concise and less misleading language to describe the powers of the courts
rather than as an attempt to freeze for all times to come the substantive law of contempt.
1. Constitutional Validity of the Contempt of Courts Act:
* The Contempt of Courts Act imposes restrictions on various fundamental rights
including the right to freedom of speech and expression. It is argued that restrictions
contained in the Act are unreasonable in the light of the individual’s fundamental
rights.
* When the Sanyal Committee was setup by the Government of India, it considered
some of the legal aspects in the areas of contempt and came to the conclusion that
the legislature is competent to enact a law on contempt of Court subject to the
condition that the powers of the Supreme Court and High Court to punish for the
contempt cannot be taken away by it.
* In S. Sher Singh v. Raghu Pati Kapir, AIR 1968 P&H 217, it was held that the contempt
of the Court is a peculiar type of offence which is a class by itself and therefore, it has
a procedure for itself.
* Freedom of speech and expression cannot be permitted to go to the length of
bringing Courts of Law into contempt and disregard or undermine public confidence
in then and it is difficult to see how this necessary restriction on the freedom of
speech and expression can be said to be unreasonable.
* Constitutionality of the Contempt of Courts Act is also challenged on the ground of
violation of Article 14, 19 and 21 of the Constitution of India however the act is
constitutionally valid.
* In Dr L P Mishra v. State of UP, 1998 (4) Scale 662, it was held that the High Court can
invoke powers and jurisdiction vested in it under Article 215 of the Constitution of

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India but such a jurisdiction has to be exercised in accordance with procedure

prescribed by law.
* The power of the Supreme Court and the High Court being the Courts of Record as
embodied under Articles 129 and 215 respectively cannot be restricted and
trammeled by any ordinary legislation including the provisions of the Contempt of
Courts Act and their inherent power is elastic, unfettered and not subjected to any
limit.
2. Constitutional Provision vis-à-vis Contempt of Courts Act:
* Another important issue in the context is how far the provisions of Contempt of
Courts Act regulate or restrict the powers of the Supreme Court and High Courts
enjoyed by these Courts by virtue of Article 129 and 215 of the Constitution.
* The inherent power or jurisdiction of the Court to punish for contempt of Court was
not derived from any statutory law relating to contempt and such power partakes
the character of constitutional power and hence no law made by a legislature could
take away such jurisdiction conferred on the Supreme Court and the High Courts.
* In Re: Vinay Chandra Mishra, AIR 1995 SC 2348, it was held that the Supreme Court
by its power under Article 129 is independent of the statutory law of contempt
enacted by the Parliament and it cannot be abridged or abrogated or cut down by
any legislation as the object of vesting such a power in the Court was to uphold the
majesty of law and the rule of law which is foundation of a democratic society.
* The power of the Supreme Court to punish for the contempt of the Court through
quite wide was yet limited and could not be expanded to include the power to
determine whether an advocate is also guilty of professional misconduct for which
power has been conferred on Disciplinary Committee under the Advocates Act.
* When the contempt is committed on the face of the Court, the Court may adopt a
summary proceedings for punishing the contemnor but even in such a case, section
14 of the Act required the Court to grant minimal opportunity of hearing and defence
to the accused.
* In High Court of Karnataka v. Jai Chaitanya Das, 2015 ILR (Karnataka) 2435, it was
held that the power to punish for contempt of court is inherent in the Court of record
and described as a necessary incident to every Court of justice and this power of the
High Court though inherent is given a Constitutional status by Article 215 of the
Constitution for securing public respect and confidence in the judicial process.

POWERS OF PARLIAMENT & STATE LEGISLATURE TO PUNISH FOR CONTEMPT:

• The Constitution does not expressly refer to any contempt jurisdiction of the Legislatures
in India (Parliament or the State Legislatures). Article 105 and Article 194, however,
provide for the powers, privileges and immunities of Parliament and its members and the
State Legislatures and their members respectively. Since there is complete textual identity
between these two Articles, it would suffice to extract the provisions of Article 105.
• The Constitution (Forty-second Amendment) Act, 1976 amended clause 3 of Article 105
and Article 194. These amendments omitted the reference to legislation at any point of
time or any reliance on the privileges of the British House of Commons perhaps because

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of a growing feeling that it was anamolous for the Constitution of a sovereign country to
contain exclusive references to a foreign country. The Forty-second Amendment also
provided that the privileges of each House of the Legislatures “shall be such as may from
time to time be evolved by such House”. Since, however, section 21 and section 34 of the
Constitution (Forty-second Amendment) Act, 1976 were not brought into force by
issuance of appropriate notification under section 1(2) of that Act, the amended
provisions found expression only in the text of the Constitution.
• Prof. M.P. Jain has summed up the effect of the amendment with these observations
“athough a direct reference to the House of Commons has been dropped from the second
part of Article 105(3), indirectly it may still be relevant to refer to its privileges, whenever
a question arises about parliamentary privilege in India. For to find out what was the
privilege of the House at the date of enforcement of the 44th Amendment, it would be
necessary to find out what was the privilege of the House of Commons on January 26,
1950. This position can change only when Parliament enacts a law defining its present
privileges.”
• The privileges attach to both the Parliament (Article 105) and the State Legislatures
(Article 194). It follows, therefore, that the power to punish for contempt is possessed
both by the Parliament as well as the State Legislatures.
• Parliamentary privileges and power of the Houses to punish for contempt of the House
conceivable that in some instances persons holding executive office could potentially
cause obstruction to legislators.
• In Re: Constitution of India, AIR 1965 SC 745, it was held that the right of the House to
have absolute control of its internal proceedings may be considered as its privilege, its
right to punish one for contempt may be more properly described as its power, while the
right that no member shall be liable for anything said in the House may be really an
immunity.
• Parliamentary privileges are those fundamental rights which the House and its Members
possess so as to enable them to carry out their functions effectively and efficiently. Some
of the parliamentary privileges thus preceded Parliament itself.
• According to Sir Erskine May, Parliamentary privilege is the sum of the peculiar rights
enjoyed by each House collectively as a constituent part of the High Court of Parliament
and by members of each House individually, without which they could not discharge their
powers and which exceed those possessed by other bodies or individuals.
• Subject to the provisions of the Constitution and the rules and standing orders regulating
the procedure of Parliament, there shall be freedom of speech in Parliament. No member
of Parliament shall be liable to any proceedings in any court in respect of anything said or
any vote given by him in Parliament or any committee thereof and no person shall be so
liable in respect of the publication by or under the authority of either House of Parliament
of any report or paper or votes or proceedings.
• In Gunupati Keshavram Reddy v. Nafisul Hasan, AIR 1954 SC 636, it was held that in case
of inconsistency between fundamental rights and Parliamentary privileges, the
fundamental rights will prevail over Parliamentary privileges.
• The Constitution vested only legislative power in Parliament and in the State Legislatures.
A House of Parliament or State Legislature could not try anyone or any case directly as a
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court of justice could and it could proceed quasi-judicially in cases of contempt of its
authority and take up motions concerning its privileges and immunities as it sought
removal of obstruction to the due performance of its legislative functions and if any
question of jurisdiction arose, it had to be decided by the courts in appropriate
proceedings.
• In P V Narsimha Rao v. State,1997 Cri LJ 961, it was held that if a Member of the
Parliament has, by his speech or vote in Parliament committed an offence, he enjoys by
reason of Article 105(2) immunity from prosecution and those who have conspired with
the Member of Parliament in the commission of the offence have no such immunity.

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MODULE 4

DELHI JUDICIAL SERVICE ASSOCIATION, TIS HAZARI COURT V. STATE FO

GURJRAT & ORS., 1991 SC 2176:
1. Facts:
• On 25th September 1989, an incident took place in the town of Nadiad, Kheda District
in the state of Gujarat which exhibited the berserk behavior of Police undermining the
dignity and independence of judiciary.
• One Police Inspector S R Sharma posted at the Nadiad PS arrested, assaulted and
handcuffed N L Patel, CJM, Nadiad and tied him with a thick rope and made public
exhibition of it by sending him in the same condition to the hospital for medical
examination on an alleged charge of having consumed liquor in breach of the
prohibition law enforced in the State of Gujarat.
• Inspector S R Sharma got the CJM photographed in handcuffs with rope tied around his
body alongwith the constables which were published in the newspaper all over the
country and it lead to tremors in the Bench and Bar throughout the whole country.
• N L Patel was posted as CJM at Nadiad and found that local police was not cooperating
with the courts in effecting service of the summons, warrants and notices on accused
persons as a result of which the trials of the cases were delayed.
• N L Patel made complaint against the local police to the District SP and forwarded a
copy of the same to the DGP but nothing concrete happened and on account of these
complaint, S R Sharma, Police Inspector Nandiad was annoyed with the CJM and acted
coercively.
• CJM directed police to file criminal case against 14 persons including S R Sharma for
delaying the Court proceedings. Subsequently S R Sharma met CJM in his Chamber and
asked invited CJM to visit the PS to see the papers of a case and improve the
sentiments of the Police Officials.
• S R Sharma sent a police jeep to the residence of the CJM who went in that vehicle to
the PS and subsequently S R Sharma not only misbehaved with the CJM but also
arrested him in violation of the Law and also humiliated him.
• Subsequently the Supreme Court took cognizance of the matter after the it was made
aware of the facts by various Bar and Benches and it issued notice to the State of
Gujarat and the other Police Officers and a number of petitions were filed under
Article 32 of the Constitution for action against the Police Officers.
2. Appointment of Committee:
• Due to various disputes between the parties with regard to the entire incident, the
Supreme Court appointed Justice R M Sahai of the Allahabad High Court to inquire into
the incident and submit a report to the Court.
• The various stakeholders in the incident were allowed to file affidavits and statements
into the matter and full opportunity was given to the concerned for leading the
evidence and cross examination of the witnesses.

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• A detailed report was submitted to the Supreme Court and on the basis of the same,
contempt notices were sent to Additional Chief Secretary, DGP, District SP and Police
personnel involved in the incident.
• Subsequently the contentions of the contemnors were rejected by the Supreme Court
and it was held that the inquiry was carried out by the Inquiry Commissioner in a
proper and appropriate manner in a record of time and the police personnel involved
were held guilty.
3. Issues:
• The findings recorded by the Commission cannot be taken into account as those
findings are hit by Article 20(3) of the Constitution of India.
• Supreme Court has no jurisdiction or power to indict the Police Officers even if they
are found to be guilty as their conduct does not amount to contempt of the Supreme
Court. Articles 129 and 215 demarcate the jurisdiction of the Supreme Court and the
High Court respectively.
4. Findings:
• With regard to the first issue, the Court held that Article 20(3) of the Constitution
declares that no person accused of any offence shall be compelled to be a witness
against himself and as such mere issue of notice of pendency of contempt proceedings
do not attract Article 20(3) of the Constitution as the contemnors against whom
notices were issued were not accused of any offence.
• Regarding the jurisdiction of the Supreme Court in the matter, it was held that Article
129 declares Supreme Court to be a court of record having all powers of such a court
including the power to punish for contempt of itself and further held that it has powers
to deal with the contempt proceedings of the instant matter.
5. Decision:
• Holding the contemnors guilty of the Contempt of Court, the Supreme Court awarded
maximum punishment of 6 moths simple imprisonment with a fine of Rs.20000 to
Inspector Sharma as he was the main actor in the entire incident and others were
punished as per the role played by them in the entire incident.
6. Guidelines Laid Down by the Court:
• A Magistrate, Judge or any other Judicial Officer is liable for prosecution for any
offence committed but the following guidelines should be followed:
* If a Judicial Officer is to be arrested for some offence, it should be done under
intimation to the District Judge or the High Court as the case may be.
* If facts and circumstances necessitate the immediate arrest of a judicial officer of the
subordinate judiciary then a technical or formal arrest may be effected.
* The facts of such arrest should be immediately communicated to the District and
Session Judge of the concerned district and the Chief Justice of the High Court.
* The Judicial Officer so arrested shall not be taken to a police station without the prior
order or directions of the District and Session Judge of the concerned district.
* Immediate facilities shall be provided to the Judicial Officer to communicate with his
family and legal advisors and others.
* No statement of Judicial Officer who is under arrest be recorded nor any panchnama
be drawn up nor any medical test be conducted except in the presence of the Legal
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Advisor of the Judicial Officer concerned or another Judicial Officer of similar or

higher rank.
* There should be handcuffing of a Judicial Officer and if however violent resistance to
arrest is offered or there is imminent need to affect physical arrest in order to avert
the danger to life and limb then the person resisting arrest may be over-powered and
handcuffed and a report should be sent to the District and Session Judge as well as
the Chief Justice of the High Court.
7. Principles Laid Down in the Case:
• Under Articles 129 and 215, Supreme Court and High Courts respectively have power
not only to punish for their own contempt as well as for the contempt of the
subordinate courts.
• Under the constitutional scheme, Supreme Court has a special role in the
administration of justice and the powers conferred on it under Articles 32, 136, 141
and 142 form part of the basic structure of the Constitution and the amplitude of the
power of the Supreme Court under these Articles cannot be curtailed by law made by
Legislature.

SUPREME COURT BAR ASSOCIATION V. UNION OF INDIA & ORS., AIR 1998 SC
1895:
1. Facts:
• The Supreme Court, in the case of Re: Vinay Chandra Mishra found an advocate, Vinay
Chandra Mishra guilty of committing criminal contempt of the Court for abusing and
intimidating Justice Kishote of Allahabad High Court and awarded him a suspended
sentence of imprisonment together with suspension of his practice as an advocate in
the manner directed therein.
• Aggrieved by the decision of the Supreme Court, the Supreme Court Bar Association
filed a petition under Article 32 of the Constitution of India, which was directed by the
Division Bench to be placed before the Constitutional Bench.
2. Relief Sought:
• Relief sought in the petition was to issue appropriate writ, direction or declaration
declaring that the disciplinary committee of the Bar Councils set up under the
Advocates Act, 1961 alone have exclusive jurisdiction to inquire into and suspend or
debar an advocate from practicing law for professional or other misconduct .
• Further declare that the Supreme Court or High Court in exercise of its inherent power
has no original jurisdiction, power or authority in that regard to the contrary held by
the Supreme Court in the Re: Vinay Chandra Mishra case.
3. Issue:
• Whether punishment established contempt of Court committed by advocate can
include punishment to debar concerned advocate from practicing by suspending his
license for specified period in exercise of power under Article 129 read with Article 142
of the Constitution of India?

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4. When the Advocate is Guilty of both Contempt of Court and Professional Misconduct:
• In Vinay Chandra Mishra’s case, the sentence was pronounced upon the contemnor by
the Court relying upon Articles 129 and 142 of the Constitution of India. Article 129 of
the Constitution vests the Supreme Court with all powers of a court of record including
the power to punish for the contempt of itself. The power to punish for contempt is
also vested in the Supreme Court by the virtue of Article 142(2) subject to the
provision of any law made in this behalf by the Parliament.
• The contempt of court is a special jurisdiction to be exercised sparingly and with
caution whenever an act adversely affects the administration of justice or which tends
to impede its course or tends to shake public confidence in the judicial institutions.
• The power of the Supreme Court to punish for the contempt of court though quite
wide, is yet limited and cannot be expanded to include the power to determine
whether an advocate is also guilty of professional misconduct in a summary manner
giving a go bye to the procedure prescribed under the Advocates Act.
• The constitutional powers cannot be controlled by any statutory provisions but at the
same time these powers are not meant to be exercised when their exercise may come
directly in conflict with what has been expressly provided for in statute dealing
expressly with the subject.
• An advocate found guilty of committing contempt of court may also be guilty of
committing professional misconduct depending upon the gravity or nature of his
contumacious conduct but the two jurisdictions are separate and distinct and
exercisable by different forums by following separate and distinct procedures.
• The power to punish an advocate by suspending his license or by removal of his name
from the roll of the State Bar Council, for prove professional misconduct vests
exclusively in the statutory authorities created under the Advocates Act, 1961 while
the jurisdiction to punish him for committing contempt of court vests exclusively in the
courts.
5. Decision of the Court:
• The Supreme Court cannot in exercise of its jurisdiction under Article 142 read with
Article 129 of the Constitution of India while punishing a contemnor for committing
contempt of court also impose a punishment of suspending his license to practice
where the contemnor happens to be an Advocate.
• The punishment cannot be imposed by taking recourse to the appellate power under
Section 38 of the Act while dealing with a case of contempt of court and as such to that
extent, the law laid down in Re: Vinay Chandra Mishra is not good law and court
hereby overrule it.
6. Principles Laid Down in the Case:
• The contempt of Court is a special jurisdiction to be exercised sparingly and with
caution whenever an act adversely affects the administration of justice or which tends
to impede its course or tends to shake public confidence in the judicial institutions.
• The powers conferred on the Court by Article 142 being curative in nature cannot be
construed as powers which authorize the Court to ignore the substantive rights of a
litigant while dealing with a cause pending before it.

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• The powers of the Supreme Court to punish for contempt of Court though quite wide
is yet limited and cannot be expanded to include the power to determine whether an
advocate is also guilty of professional misconduct in a summary manner giving a go bye
to the procedure prescribed under the Advocates Act.
• The power to punish an advocate, by suspending his license or by removal of his name
from the roll of the State Bar Council for proven professional misconduct vests
exclusively in the statutory authorities created under the Advocates Act, 1961 while
the jurisdiction to punish him for committing contempt of court vests exclusively in the
courts.

D.C SAXENA V. CJI, 1996 (5) SCC 216:

1. Facts:
• The petitioner initiated a Public Interest Litigation under Article 32 to direct Shri P.V.
Narsimha Rao, the President of Indian National Congress and the Prime Minister of
India to pay a sum of Rs. 8.29 lakh and odd said to be due to the Union of India for the
use of Indian Air Force aircraft or helicopters from October 1, 1993 to November, 30,
1993.
• The petition was dismissed by the Bench consisting of the Chief Justice of India Mr.
A.M. Ahmedi, Justice S.C. Sen and Justice K.S. panipoornan. Another petition was filed
by the petitioner against the Chief Justice of India, Mr. A.M. Ahmadi. In the petition he
several averments against the learned Chief Justice of India Mr. A.M. Ahmadi and
sought for declaration that Justice A.M. Ahmadi is unfit to hold the office as the Chief
Justice of India and he should be stripped off his citizenship.
2. Relief Sought:
• The petitioner wanted a direction for registration of an F.I.R. against him under various
provisions of the Indian Penal Code for committing forgery and fraud and under the
Prevention of Corruption Act.
• The petitioner wanted a direction for prosecution of Justice A.M. Ahmadi under the
Prevention of Corruption Act and a direction to Justice Ahmadi to reimburse from his
pocket to the public exchequer the entire loss caused to the State as a consequence of
non-payment of the dues by Shri P.V. Narsimha Rao with interest at 18% per annum.
3. Decision:
• The contemner, thus, was convicted for contempt and sentenced to undergo simple
imprisonment for a period of three months and to pay a fine in the sum of Rs. 2000. In
default of such payment within three month he has to undergo further simple
imprisonment for a period of one month.
4. Principles Laid Down:
• The Supreme Court has made it clear that the freedom of speech and expression is
subject to Articles 19(2), 129 and 215. Under Article 19(2) the restriction may be
imposed on the freedom of speech and expression if it amounts to contempt of Court.
• In the exercise of the right of the freedom of speech and expression a person cannot
be allowed lower the prestige of the court in the eyes of the people. Freedom of
speech and expression brings within its ambit the corresponding duty and
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responsibility and puts limitation on the exercise of that liberty. It does not give license
to make unfounded allegations against any institution, much less the judiciary.
• The Court has made it clear that fair criticism of judicial proceedings outside the
pleadings of the court is a democratic feature so as to enable the court to look inward
into the correctness of proceedings and the legality of the orders of the court by the
court itself for introspective.
• A party has a duty and responsibility to plead as the part of the averment or prayer in
the relevant portion with language befitting with the dignity of the Court and the
judicial process and not in self-abuse of the freedom of expression given under Article
19(1)(a).
• Article 19(2) creates an embargo on the freedom of expression and excludes from its
operation the power of Contempt of Court under the Act. The Supreme Court being
Court of record, its power under Article 129 is independent and is not subject to Article
19(1)(a). Article 19(2) excludes the operation of Article 19(1) when speech or
expression is trapped in contempt of Court or tends to trench into it.
• When the contempt of Court is committed by a litigant, the freedom of expression
being contemptuous becomes punishable under Article 129 of the Constitution de hors
the power under Section 12 of the Act.
• The Court has also made it clear that counsel or party appearing before the Court
should maintain dignity and decorum of the court and should not indulge in writing in
pleadings, the scurrilous allegations or scandalisation against the Judge or Court.
• The scandalous statements in the pleading cannot be taken as a valid method of
initiating the action for the removal of a Judge on the ground of misconduct or
incompetency. An important issue is whether the modification of the contemptuous
statements in the plaint will affect the contempt liability.
• The Supreme Court has held that the modification of the statement would not affect
his contempt liability. Even if the contemnor withdraws or files statement in the
modified form what the Court required to do is whether his statements made in the
writ petition originally filed constitute contempt of Court or not and modification of
the above statements would not be of material. Thus, if the statement made in the
petition are contemptuous the contempt liability cannot be avoided by modifying the
statements subsequently.

DR. L P MISHRA V. STATE OF UP, AIR 1998 SC 3337:

1. Facts:
• This batch of criminal appeals arise out of an order dated July 15, 1994 in Criminal
Misc. Case No. 2058 (C) of 1994 passed by the Division Bench of the Allahabad High
Court, Lucknow Bench at Lucknow.
• On 15th July, 1994, the Division Bench comprising of Mr. Justice B.M. Lal and Mr.
Justice A P Singh commenced its proceeding and in fact some of the cases listed before
it were heard. While hearing Writ Petition No. of 1994 Deoki Nandan Agarwal v.
Commissioner, Faizabad Division and others, Dr. L.P. Misra„ Advocate-appellant in Crl.

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Appeal No. 483 of 1994 along with his associates entered in the court room raising
slogans and asking the Court to rise and stop Functioning.
• The Court, however, continued to Function whereupon Dr. Misra along with Shri A.K.
Bajpaie, Shri Anand Mohan Srivastava, Shri y,C. Pandey and Shri Shamim Ahmed
(appellants in connected appeals) came on the dais and tried to manhandle and in that
process Dr. L.P. Misra caught hold of justice A.P. Singh Forcing the court to rise and
then used abusive language against Justice B.M. Lal in the following words :-
"TUM SALE UTTHA JAO NAHIEN TO JAAN SE MAAR DAALENGE. TUMNE CHIEF JUSTICE
SE KAHA HAI KI LUCKNOW KE JUDGES 5000/- RUPYA LEKAR STAY GRANT KARTE HAI
AUR STAY EXTEND KARTE HAIN AAJ 2 BAJE TAK AGAR TUM APNA BORIYA BISTAR LEKA
YAHAN SE NAHIEN BHAAG JATE HO TO TUMHE JAAN SE MAAR DALENGE."
• In view of an alarming and threatening situation, the Court was forced to retire and
consequently both the Hon’ble Judges retired to the chamber of Justice B.M. Lal. Dr.
L.P. Misra then entered the chamber and repeated the same uncivilised language and
extended the same threat.
• It was because of intervention of Shri J.N. Bhalla, Addl. Chief Standing Counsel, State of
U.P. and some members of the staff of the Court who persuaded Dr. L.P. Mishra and
others to leave the chamber.
• After some time, the court reassembled and took a serious note of contemptuous
conduct on the part of the appellants and in exercise of its power under Article 215 of
the Constitution of India and held the following:
"This clearly amounts to grossest contempt of the Court, interference in the
administration of justice and insult to the court as it scandalises the court and lowers
the authority of the Court. Therefore, in our considered opinion, Dr. L.P. Misra, Sri A.K.
Bajpaie, Sri Anand Mohan Srivastava, Sri Y.C. Pandey and Sri Shamim Ahmad,
Advocates, are exfacie guilty of contempt of court and accordingly in exercise or
powers conferred by Article 215 of the Constitution of India, this Court hereby
sentences aforesaid advocates, namely (I) Dr. L.P. Misra, Advocate, (2) Sri A.K. Bajpaie,
Advocate, (3) Sri Anand Mohan Srivastava, Advocate and (4) Sri Shamim Ahmed,
Advocate with imprisonment for one month and line of Rs. 1,000/- (Rupees one
thousand) each and in default of payment of fine they shall undergo further
imprisonment for 15 days."
• The court further directed the Addl. Registrar or the said Court to take steps forthwith
for execution of this order. It is against this order dated 15th July, 1994 passed by the
High Court, that the appellants have filed these Criminal Appeals under Section 19 of
the Contempt of Courts Act, 1971.
2. Issues:
• Is it mandatory for the Court to issue a show cause notice to the contemnor when the
contempt is committed on the face of the Court?

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3. Arguments:
• Mr. Dwivedi, learned Senior Counsel appearing for the appellant in Cr. Appeal No. 483
of 1994 assailed the impugned order principally on the ground that the court while
passing the said order did not follow the procedure prescribed by law.
• Counsel urged that the court had failed to give a reasonable opportunity to the
appellants of being heard. Assuming that the incident as recited in the impugned order
had taken place, the court could not have passed the impugned order on the same day
after it reassembled without issuing a show cause notice or giving an opportunity to
the appellants to explain the alleged contemptuous conduct, the minimal requirement
of following the procedure prescribed by law had been overlooked by the court.
• In support of his submission, Counsel drew attention of the Court to Section 14 of the
Contempt of Courts Act, 1971 as also to the provisions contained in Chapter XXXV-E of
the Allahabad High Court Rules, 1952.
• Emphasis was laid on Rules 7 which read as under :-
"7. When it is alleged or appears to the Court upon its own view that a person has
been guilty of contempt committed in its presence or hearing, the court may cause
such person to be detained in custody, and at any time before the rising of the Court,
on the same day or as early as possible thereafter, shall –
(a) cause him to be informed in writing of the contempt with which he is charged, and
if such person pleads guilty to the charge, his plea shall be recorded and the Court may
in its discretion, convict him thereon,
(b) if such person refuses to plead, or does not plead, or claims to be tried or the Court
does not convict him, on his plea of guilt, afford him an opportunity to make his
defence to the charge, in support of which he may file an affidavit on the date fixed for
his appearance or on such other date as may be fixed by the court in that behalf,
(c) after taking such evidence as may be necessary or as may be offered by such
person and after hearing him, proceed either forthwith or after the 44 adjournment,
to determine the matter of the charge, and
(d) make such order for punishment or discharge of such person as may be just.
Notwithstanding anything contained in Rule 7, where a person charged with contempt
under rule applies, whether orally or in writing to have the charge against him tried by
some Judge other than the Judge or Judges in whose presence or hearing the offence
is alleged to have been committed, and the court is of opinion that it is practicable to
do so and that in the interests of proper administration of justice the application
should be allowed, it shall cause the matter to be placed, together with a statement of
the facts of the case, before the of Justice for such directions as he may think fit to
issue as respects the thereof."
• Counsel urged that the impugned order is totally opposed to the principles of natural
justice and, therefore, unsustainable on this score alone. He, therefore, urged that the
impugned order be quashed and set aside.

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4. Decision:
• After hearing learned counsel for the parties and after going through the materials
placed on record, SC held that the Court while passing the impugned under had not
followed the procedure prescribed by law. It is true that the High Court can invoice
powers and jurisdiction vested in it under Article 215 of the Constitution of India but
such a jurisdiction has to be exercised in accordance with the procedure prescribed by
law. It is in these circumstances, the impugned order cannot be sustained.
• The next question that needs to be considered was as to what proper order could be
passed in the circumstances of this case. The incident in question had taken place at
Lucknow Bench of the Allahabad High Court. With a view to avoid embarrassment to the
parties contempt proceedings were remitted to the principal seat of the High Court at
Allahabad.
• The Chief Justice of the Allahabad High Court was requested to nominate the Bench to
hear and dispose of the above contempt proceedings in accordance with Chapter XXXV-
E of the Allahabad High Court Rules, 1952.
• High Court was requested to dispose of the case as early as possible and preferably
within six months from the date of receipt of the copy of this order. Therefore, partly
allowing the appeal the Court set aside the order dated 15th July, 1994 passed by the
High Court in Criminal Misc. Case No. 2058 (C) of 1994 and remitted the proceedings to
the principal seat of the Allahabad High Court, Allahabad. The Registry was directed to
send the copy of this order to the learned Chief Justice of Allahabad High Court for
appropriate action.
5. Principles Laid Down:
• Although High Court enjoy vast powers under Article 215 of the Constitution, still it is
bound to follow the minimum procedure prescribed by law even if the contempt is
committed on the face of it.

MOHD. ASLAM V. UNION OF INDIA, AIR 1995 SC 548:

1. Facts:
• Chief Minister had given a solemn assurance to the National Integration Council and
permitted the terms of that assurance to be incorporated as his own undertaking to
the Court and allowed an order to be passed in those terms, but the order was not
obeyed.
• The Court observed that he could not absolve himself of the responsibility for the
disobedience of the order, unless he placed before the Court sufficient materials which
would justify that he had taken all reasonable steps and precautions to prevent the
occurrence.
• The Court made it clear that if such reasonable steps had been taken, he could not be
faulted merely because he did not do the best by the standards of others but apart
from a glib suggestion that any attempt to prevent the working would have created a
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violent situation endangering the safety of the "Ram Janam Bhoomi—Babri Masjid
structure" itself, nothing was indicated as to what was sought to be done at all to
prevent constructional material coming in.
• There was also no mention in any of the affidavits of any of the officers as to what
reasonable measures the Government took to prevent the inflow of constructional
material such as large quantities of cement, sand, constructional equipment, water-
tanker, etc. that were necessary for the work. The report of the Expert Committee had
indicated that was indispensable having regard to the nature constructional machinery
and magnitude of the work carried out.
• In the facts and circumstances of the case, the Court did not accept the view that the
Government was helpless and the situation that had developed was in spite of all
reasonable steps taken by the Government. The Court has rightly observed that it is
not merely positive acts of violation but also surreptitious and indirect aids to
circumvention and violation of the orders that are equally impermissible.
• On the basis of the facts and circumstances of the case, the judgment appears to be
correct. The facts and circumstances of the case show that reasonable steps were not
taken to prevent the violation of the order.
• Impossibility of the compliance with the order is allowed as a defence only when the
implementation of the order is not practically possible and it is for the person charged
for contempt to prove that the compliance with the order was impossible. In this case
the contemnor failed to prove that he had taken reasonable steps to prevent the
violation of the order and that the compliance with the order was practically
impossible.
• In this case the Chief Minister had given solemn assurance to the National Integration
Council and permitted the terms of that assurance to be incorporated as his own
undertaking to this Court and allowed an order to be passed in those terms cannot
absolve himself of the responsibility unless he placed before the court sufficient
material which would justify that he had taken all reasonable steps and precautions to
prevent the occurrence.
• Indeed, if such reasonable steps had been taken he could not be faulted merely
because he did not do the best by the standards of others. In this case, there was no
explanation at all apart from the fact that the Sadhus had congregated in that place in
large number, as to what steps the Government took to prevent the constructional
equipment from getting into site.
• If any reasonable effort had been made and evidence of that placed before Court, it
might have been possible for the Court to assess the situation in the light of that
explanation to find out whether such steps had been taken.
2. Issue:
• Whether the undertaking furnished by the Chief Minister was a personal undertaking
or was "one behalf of the State of U.P.

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3. Findings:
• There is no immunity for any authority of Government, if a personal element is shown
in the act of disobedience of the order of the court from the consequence of order of
the Court. Even in England where the maxim "Crown can do no wrong" has had its
influence, a distinction is made between the Crown as such and the execute.
• The report of the Expert Committee had indicated that constructional machinery was
indispensable having regard to the nature and magnitude of the work carried out.
While it is understandable that the prevention of the gathering of Sadhus might have
created some resentment, it is understandable why large quantities of building
materials were allowed to be brought on the land unless it be—and that must be the
reasonable presumption—that the Government itself was not too anxious to prevent
it.
• The presumption is that the Government intended not to take such preventive steps.
In the facts and circumstances of the case, the court did not agree with the view that
the Government was helpless and the situation that had developed was in spite of all
reasonable steps taken by the Government.
• Ultimately it was concluded that the undertaking given by Sri Kalyan Singh was both in
his personal capacity and on behalf of his Government, was found to be a flagrant
breach and wilful disobedience of the order.
• Therefore, the leader of the political party and the Chief Minister was convicted for
the offence of contempt of court. Since the contempt raised larger issues effecting the
very foundation of the secular fabric of the nation, the Chief Minister was sentenced
to a token imprisonment of one day and to a fine of rupees two thousand only.

PRITHAURI NATH RAM V. STATE OF JHARKHAND & ORS., (2004) 7 SCC 261:
1. Facts:
• Appellant filed an application under Sections 11 and 15 of the Contempt of Courts Act,
1971 read with Article 215 of the Constitution. The foundation of such application was
alleged non-compliance of the directions given by a learned Single Judge of the Patna
High Court by order dated 30.3.1999, another learned Single Judge of the said High
Court while dealing with the said application held that it would not be proper to take
any action for contempt and called upon the parties to satisfy him that the direction
contained in the Order dates 30.3.1999 for the non compliance of which present
application has been filed, could have been issued.
• After in depth analysis, the teamed judge came to the conclusion that the directions
could not have given and therefore, there was no scope for taking any action for
contempt. It is against this order that the present appeal has been filed by the
appellant.

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2. Issues:
• The only issue that arises for the consideration of the Court is whether it is open in the
contempt proceedings to examine whether the order, the non implementation of
which has been urged, is valid or not.
3. Findings of the Court:
• It was contended by the appellant that the learned Judge has not kept the (correct
parameters of law in view while dealing with the contempt application. In, essence, he
sat over the judgment of another Single Judge which is not) permissible in the
proceedings for contempt of Court. On the other hand, it was contended on behalf of
the State that if the order was not capable of being implemented, certainly it was open
to the learned Single Judge dealing with the application for initiation of contempt
proceedings to consider whether the order was legal or not.
• After analysing, the rival contentions, Supreme Court came to the conclusion that
while dealing with an application for contempt, the Court is really concerned with the
question whether the earlier decision which has received its finality has been complied
with or not. It is not permissible for the Court to examine the correctness of the earlier
decision and to take a different view from what was taken in the earlier decision. The
Court referred to its own decision in the case Mohd. Iqbal Khandey v. Abdul Majid
Rather (AIR 1994 SC 2252) wherein it was held that if a party is aggrieved by the order,
he should take prompt steps to invoke appellate proceedings and cannot ignore the
order and plead about the difficulties of implementation at the time contempt
proceedings me initiated.
4. Decision of the Court:
• Allowing the appeal, the Supreme Court set aside the order of the High Court and
remitted the matter for fresh consideration. If any party concerned is aggrieved by the
order which in its opinion is wrong or against rules or its implementation is neither
practicable nor feasible, it should always either approach to the Court that passed the
order or invoke jurisdiction of the Appellate Court. Rightness or wrongness of the
order cannot be urged in contempt proceedings. Right or wrong the order has to be
obeyed. Flouting an order of the Court would render the party liable for contempt.
• While dealing with an application for contempt, the Court cannot traverse beyond the
order, non-compliance of which is alleged. In other words, it cannot say what should
not have been done or what should have been done. It cannot test correctness or
otherwise of the order or give additional direction or delete any direction. That would
be exercising review jurisdiction while dealing with an application for initiation of
contempt proceedings.
5. Principles Laid:
• This case is remarkable for setting out the limits within which a Court, dealing with an
application for contempt has to work. While dealing with such application, the said
Court cannot traverse beyond the order, non compliance of which is alleged. It cannot

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test correctness or otherwise of the order or give additional direction or delete any
direction.

P D GUPTA V. RAM MURTI & ANR., AIR 1998 SC 283:

1. Facts:
• The appellant was an advocate practising in Delhi. He was held guilty of professional
misconduct and was suspended from practice for one year. He filed appeal in the
Supreme Court under Section 38 of the Advocates Act against the order of the Bar
Council of India suspending him from practice for one year.
• The Disciplinary Committee of the Bar Council of India stated several grounds in
support of its order. Some of them have been stated below—"
A. P.D. Gupta claims to know Vidya Wati since 1980 when Srikishan Dass was alive. He
knew Vidya Wati closely and yet contradictory stands were taken by Vidya Wati
when she varyingly described herself as half-blood sister, real sister or step-sister of
Srikishan Dass. These contradictory stands in fact casts doubt on the very existence
of Vidya Wati herself. This also created doubt about bona fides of P.D. Gupta who
deemed to be a family lawyer of Vidya Wati.
B. P.D. Gupta knew that the property purchased by him from Vidya Wati was subject-
matter of litigation and title of Vidyawati to that property was in doubt.
C. The property situated in Daryaganj was purchased by P D Gupta for a mere sum of
Rs. 1,80,000/- in 1982.
D. The agreement for sale of property was entered into as far back on September 3,
1980 and P.D. Gupta had advancing money to Vidya Wati from time to time which
event to show that as per version of P.D. Gupta he knew Vidya Wati quite well.
When P.D. Gupta knew Vidya Wati so closely how Vidya Wati could take
contradictory stands vis-a-vis her relationship with Srikishan Dass.'
2. Observation by Bar Council:
• It is an acknowledged fact that a lawyer conducting the case of the client has a
commanding status and can ever influence of the client. As a member of the Bar, it is
in our common knowledge that the lawyer have started contracting with the client and
enter into bargains that in a case of success he will share the result.
• Number of instances have been found in the case of Motor Accident claims. No doubt,
there is no bar for a lawyer to purchase property but on account of corm on prudence
specially law knowing person will never prefer to purchase the property, the title of
which is under doubt.'
3. Findings:
• The Bar Council of India, through its Disciplinary Committee, came to the conclusion
that P.D. Gupta, advocate, was guilty of misconduct and suspended him from practice
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for a period of one year. The Supreme Court found the order genuine and valid and did
not interfere with the punishment awarded to P.D. Gupta.

BAR COUNCIL OF MAHARASHTRA V. M V DHABOLKAR & ORS., AIR 1976 SC 242:

1. Facts:
• This is an appeal filed by the State bar Council of Maharashtra against the decision of
Disciplinary Committee of Bar council of India absolving the respondent from the
charge of professional misconduct.
• The respondents, who were practicing lawyers, positioned themselves at the entrance
to the Magistrates Courts, watchful of the arrival of potential litigants. At sight, they
rushed towards the clients ill an ugly scrimmage to snatch the briefs, to lay claim to the
engagements even by physical fight, to undercut fees, and by this unedifying
exhibition, sometimes carried even into the Bar Library, solicited and secured work for
themselves.
• The Bar council of Maharashtra considered the complaint received from the High Court
against these advocates and referred the matter to its Disciplinary committee.
Disciplinary committee found the respondents guilty of professional misconduct and
suspended them from practicing as advocates for a period of three years.
• On appeal, the Disciplinary committee of the Bar Council of India absolved the
respondents of charges levelled against them on the ground that under Rule 36 of the
rules framed by the Bar council of India, in order to be amenable to disciplinary
jurisdiction, the Advocates must have (1) solicited work, (2) from a particular person,
(3) with respect to a case. Unless all the three elements are satisfied, one cannot be
said that an Advocate has acted beyond the standard of professional conduct and
etiquette.
2. Issues:
• While referring a complaint to its Disciplinary Committee under Section 350) of the
Advocates Act, is it mandatory for a Bar Council to state that it has 'Reason to Believe'
that misconduct has been commuted
• Whether the conduct of the respondents amounts to professional misconduct?
3. Findings of the Court:
• When the Bar council of Maharashtra received complaint against the respondents, it
passed a resolution presumably having reason to believe that the professional
misconduct alleged required a further probe and referred the case to its disciplinary
committee.
• It was contended by the respondents that the resolution of the Bar Council does not ex
facie disclose that it had reason to believe that the advocates involved were guilty of
professional misconduct.
• Refuting the contention, Hon'ble court held that the requirement of 'reason to believe'
cannot be converted into a formalised procedural road block, it being essentially a
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barrier against frivolous enquiries. It is implicit in the resolution of the Bar Council,
when it says that it has considered the complaint and decided to refer the matter to
the disciplinary committee that it had reason to believe.
• Disciplinary Committee of the Bar Council of India on account of its interpretation of
Rule 36 of Bar Council of India Rules did not find the conduct of the respondents as
unethical and violative of canons of professional ethics.
• Terming it as unfortunate, Justice Krishna Iyer ruled that provisions of any act or
enactment regulating the conduct of legal practitioners have not turned on the
splitting up of the text of any rule but on the broad canons of ethics and high tone of
behavior well established by the case law and long accepted by the soul of the bar. The
exercise of rediscovering three elements of Rule 36 was as unserviceable as it was
supererogatory.
4. Decision of the Court:
• The Court disposed of the appeal by ordering identification of delinquents and they be
suitably dealt with as per their individual act. Court disposed of the appeal in the trust
that standards and sanctions befitting the national Bar will be maintained in such
dignified and deterrent a manner that public confidence in this arm of the justice
system is neither shaken nor shocked.
5. Principles Laid:
• Professional misconduct prescribed by Section 35 of the Act has to be understood in
the setting of a calling to which Lincoln, Gandhi, Lenin and a galaxy of great men
belonged. The high moral tone and the considerable public service the Bar is
associated with and its key role in the developmental and Spate processing activities
and, above all, in the building up of a just society constitutional order has earned for it
a monopoly to practise. law and as an autonomy to regulate its own internal discipline.
This heavy public interest should not be forfeited by legalising or licensing fights for
briefs.

R D SAXENA V. BALRAM PRASAD SHARMA, (2000) 7 SCC 264:

1. Facts:
• In this case the Bar Council of India, without deciding the above crucial issue, has
chosen to impose punishment on a delinquent advocate debarring him from practising
for a period of 18 months and a fine of Rs 1000. The advocate concerned was further
directed to return all the case bundles which he got from his respondent client without
any delay. This appeal is filed by the said advocate under Section 38 of the Advocates
Act, 1961.
• The appellant, now a septuagenarian, has been practising as an advocate mostly in the
courts at Bhopal, after enrolling himself as a legal practitioner with the State Bar
Council of Madhya Pradesh.

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• According to him, he was appointed as legal advisor to Madhya Pradesh State

Cooperative Bank Ltd. (“the Bank” for short) in 1990 and the Bank continued to retain
him in that capacity during the succeeding years. He was also engaged by the said Bank
to conduct cases in which the Bank was a party. However, the said retainership did not
last long.
• On 17-7-1993 the Bank terminated the retainership of the appellant and requested
him to return all the case files relating to the Bank. Instead of returning the files the
appellant forwarded a consolidated bill to the Bank showing an amount of Rs 97,100 as
the balance payable by the Bank towards the legal remuneration to which he is
entitled. He informed the Bank that the files would be returned only after settling his
dues.
2. Decision:
• The court decided to alter the punishment to one of reprimanding the appellant.
However, we make it clear that if any advocate commits this type of professional
misconduct in future he would be liable to such quantum of punishment as the Bar
Council will determine and the lesser punishment imposed now need not be counted
as a precedent.
3. Principles Laid:
• Even after providing a right for an advocate to deduct the fees out of any money of the
client remaining in his hand at the termination of the proceeding for which the
advocate was engaged, it is important to notice that no lien is provided on the
litigation files kept with him.
• In the conditions prevailing in India with lots of illiterate people among the litigant
public it may not be advisable also to permit the counsel to retain the case bundle for
the fees claimed by him. Any such lien if permitted would become susceptible to great
abuses and exploitation.
• Nobody would dispute the proposition that the cause in a court/tribunal is far more
important for all concerned than the right of the legal practitioner for his remuneration
in respect of the services rendered for espousing the cause on behalf of the litigant. If a
need arises for the litigant to change his counsel pendente lite, that which is more
important should have its even course flow unimpeded. Retention of records for the
unpaid remuneration of the advocate would impede such course and the cause
pending judicial disposal would be badly impaired.
• A litigant must have the freedom to change his advocate when he feels that the
advocate engaged by him is not capable of espousing his cause efficiently or that his
conduct is prejudicial to the interest involved in the lis, or for any other reason. For
whatever reason, if a client does not want to continue the engagement of a particular
advocate it would be a professional requirement consistent with the dignity of the
profession that he should return the brief to the client. It is time to hold that such
obligation is not only a legal duty but a moral imperative.

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• If a party terminates the engagement of an advocate before the culmination of the

proceedings that party must have the entire file with him to engage another advocate.
But if the advocate who is changed midway adopts the stand that he would not return
the file until the fees claimed by him are paid, the situation perhaps may turn to
dangerous proportions.
• Even if there is no lien on the litigation papers of his client an advocate is not without
remedies to realise the fee which he is legitimately entitled to. But if he has a duty to
return the files to his client on being discharged the litigant too has a right to have the
files returned to him, more so when the remaining part of the lis has to be fought in
the court. This right of the litigant is to be read as the corresponding counterpart of
the professional duty of the advocate.
• Misconduct envisaged in Section 35 of the Advocates Act is not defined. The section
uses the expression “misconduct, professional or otherwise”. The word “misconduct”
is a relative term. It has to be considered with reference to the subject-matter and the
context wherein such term occurs. It literally means wrong conduct or improper
conduct.

BAR COUNCIL OF ANDHRA PRADESH V. KURAPATI SATYANARAYANA, AIR 2003

SC 175:
1. Facts:
• Bar Council of Andhra Pradesh filed this appeal against the order of the Disciplinary
Committee of the Bar Council of India dated 28th March, 1999 by which the Bar
Council of India had set aside the order passed by the State Council removing the
name of Kurapati Satyanarayana, the respondent, from the roll of the State Bar Council
as he was found guilty of grave professional misconduct in the discharge or his duties
as an advocate.
• The respondent was engaged by one Sri Gutta Nagabhushanarn (hereinafter called de
facto complainant), for filing execution proceedings for realization of decretal amount.
The respondent received a total sum of Rs. 14,600/- on various dates in the execution
proceedings but did not make payment of the same to the de-facto complainant.
• On 18th October 1996 the de-facto complainant filed a complaint with the Additional
District Munsif, Eluru. The complaint filed by the de-facto complainant along with the
reply filed by the Delinquent and the connected documents were forwarded to the Bar
Council of the Andhra Pradesh for taking appropriate action.
• The State Bar Council referred the matter to its Disciplinary Committee. The State
Disciplinary Committee after examining the witnesses produced by the complainant
came to the conclusion that the respondent had received a total sum of Rs. 14,600/-
belonging and payable to the de-facto complainant on different dates and retained the
same with him.
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• Assertion of the respondent that he had informed the complainant through a post card
about the receipt of the decretal amount was not accepted. That in spite am
undertaking dated 24th April, 1996 given in writing by the respondent to pay a sum Rs.
11,000/- to the complainant, the same was not paid.
• The stow put-forth that he paid a sum of Rs. 11,000/- on 4th September, 1996 was not
accepted because the respondent failed to produce any receipt given by the
complainant evidencing the payment of the said amount to the complainant. Finding
him guilty of grave professional misconduct, State Bar Council ordered the removal of
his name from the rolls of State Bar Council.
• The respondent preferred an appeal before the Disciplinary Committee of the Bar
Council of India which agreed with the finding of fact recorded by the Disciplinary
Committee of the State Bar Council, but came to the conclusion that the he had not
committed any professional misconduct though there might have been some
negligence on his part which did not involve any moral turpitude.
• Bar Council of India gave the reasoning that the respondent never wanted to
misappropriate the decretal amount of the de-facto complainant and the lapse on his
part to return the same was because of his domestic circumstances. And thus, Bar
Council of India set aside the order passed by the State Bar Council.
2. Issues:
• Standing of the State Bar Council to file an appeal under Section 38 of the Advocates
Act, 1961.
• Is the respondent guilty of committing professorial misconduct?
3. Findings of the Court:
• It was contended of the behalf of the respondent that the appeal filled of Bar Council
of the Andhra Pradesh would not be maintainable as not being the "person aggrieved".
Refuting the contention, the Court relied upon Seven -Judge Constitution Bench
judgment of Supreme Court in Bar Council of Maharashtra v. M. Dabholkar and others,
1975(2) SCC 702. It has been held in the said case that the role of the Bar Council is of
dual capacity, one as the prosecutor through its Executive Committee and the other
quasi-judicial performed through its Disciplinary Committee.
• 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
maintainable on its behalf.
• With respect to the second issue, the Court found the order of the Disciplinary
Committee of the Bar Council of India as unsustainable. The Court expressed its
displeasure at the way the case was handled by the BCI and observed that the
Disciplinary Committee of the Bar Council of India, which is the highest body, to
monitor the probity of the legal profession in the country chose to trivialize and treat a
very grave professional misconduct on the part of the respondent lightly by saying that
the he did not make the payment to the de-facto complainant as he had utilized the

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money for his personal need for treatment and that such like instances do take place
when a person is in trouble.
• Finding him guilty of committing grave professional misconduct, the Hon'ble Court
relied upon its own decision in the case Harish Chandra Tivari v. Baiju, 2002(2) SCC 67,
wherein the Hon'ble Court held that amongst the various types of misconduct
envisaged for a legal practitioner the misappropriation of the client's money must be
regarded as one of the gravest.
• Decision of the Court Allowing the appeal, the Court set aside the order passed by the
Disciplinary Committee of the Bar Council of India and restored that of the Disciplinary
Committee of the State Bar Council.
4. Principles Laid:
• Adherence to the correct professional conduct in the discharge of one's duties as an
advocate is the backbone of legal system. Any laxity while judging the misconduct
which is not bonafide and dishonest would undermine the confidence of the litigant
public resulting in the collapse of legal system.

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