Table of Contents
The term misconduct and professional misconduct are not defined in the Advocates Act. However, in the State Of Punjab v. Ram Singh, the Supreme Court observe that the term misconduct may involve moral turpitude, it must be improper or wrong behavior, unlawful behavior, willful in character, forbidden act, a transgression (उल्लंघन) of established and defined rule of action or code of conduct, but not mere error of judgment, carelessness or negligence in performance of duty.
The Court has opined that its ambit has to be construed with reference to the subject matter and the context wherein the term occurs regarding the scope of the statute and the public purpose it seeks to serve.
The term misconduct has been defined as a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behavior, willful in character, improper or wrong behavior but not negligence or carelessness.
Punishment For Professional Or Other Misconduct
Section 35 of the Advocates Act provides for punishment for professional or other misconduct. It provides that where on the receipt of a complaint or otherwise a State Bar Council has reasons to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
Section 9 of the Act requires the State Bar Council to constitute one or more disciplinary committees. Each of such committee is required to consists of 3 persons of whom 2 shall be persons elected by the council from amongst its member and the other shall be a person co-opted by the council from amongst who possess specific qualification specified under section 3 and who are not the members of the council and the senior most advocate amongst the members of a disciplinary committee shall be the chairman thereof.
Initiation And Procedure
The disciplinary committee is required to make inquiries in the cases referred to it by the State Bar Council. According to Section 35 it becomes clear that the Bar Council can register cases suo motu (on its own).
Where a case is referred to the disciplinary committee for inquiry and disposal, the committee is required to fix a date for the hearing of the case and cause a notice thereof to be given to the advocate concerned and the Advocate-General of the State. Where such notice is issued to the Advocate-General, the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.
Powers of the Disciplinary Committee of State Bar Councils
Section 35 provides that after giving the advocate concerned and the Advocate-General an opportunity of being heard, the disciplinary committee of a State Bar Council may make any of the following orders:
a. dismiss the complaint or where the proceedings were initiated at the instance of the State Bar Council, direct that proceedings be filed.
b. reprimand the advocate
c. suspend the advocate from practice for such period as it may deemed fit
d. remove the name of the advocate from the State roll of the advocates.
Section 42 of the Advocates Act is an important section which deals with the power of a disciplinary committee.
The section states that the disciplinary committee shall have the same powers as vested in a civil court as per the Code of Civil Procedure, 1908 which are as follows:
- Summoning and enforcing the attendance of any person and examining him on oath.
- Requiring discovery and production of any documents.
- Receiving evidence on affidavits.
- Requisitioning any public record or copies thereof from any court or office.
- Issuing commission for the examination of witnesses or documents.
- Any other matter which may be prescribed.
Note: The disciplinary committee can exercise these powers only with a prior approval of certain authorities. These are as follows:
- Attendance of any presiding officer of a court shall be allowed only with a prior approval of the High Court to which such court is subordinate.
- Attendance of any officer of revenue court shall be allowed only with prior approval of the State Government.
Where the final orders cannot be made because of a want of majority among the disciplinary committee or is not in accordance with the opinion of the Chairman or the members of the disciplinary committee then such matters or cases shall be placed before the Chairman of the Bar Council.
If the Chairman of the Bar Council is acting as the chairman of the disciplinary committee, then the case shall be placed before the Vice Chairman of the Bar Council. After hearing the case, the Vice Chairman shall deliver his opinion and the disciplinary committee shall follow such a final order.
The disciplinary committee also has the power to review its own orders under section 44 of the Advocates Act, 1961.
Bar Council Of India And Its Disciplinary Powers
Section 36 of the Advocates Act empowers the Bar Council of India (BCI) to refer, in certain circumstances, the case for disposal to its disciplinary committee.
Section 36(1) provides that where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that any advocate whose name is not entered on any State roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
Section 36(2) provides that the disciplinary committee of the Bar Council of India may, either of its own motion or on a report by a State Bar Council or on an application made to it by any person interested, withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same.
Section 36(3) provides that in disposing of any case the disciplinary committee of the BCI shall observe, so far as may be, the procedure laid down in section 35, the references to the Advocate-General in that section being construed as references to the Attorney-General of India.
Section 36(4) provides that where any proceedings have been withdrawn for inquiry before the disciplinary committee of the Bar Council of India, the State Bar Council concerned shall give effect to any such order.
Section 36A is also notable. It provides that whenever in respect of any proceedings under Section 36, a disciplinary committee of the BCI ceases to exercise jurisdiction and is succeeded by another committee which has and exercises jurisdiction, the disciplinary committee so succeeding may continue the proceeding from the stage at which the proceedings were so left by its predecessor committee.
Disposal Of Disciplinary Proceedings
Section 36B is important as it deals with the disposal of disciplinary proceedings.
It provides that the Disciplinary Committee of a State Bar Council shall dispose of the complaint received by it under Section 35 expeditiously and in such case and is such case the proceedings shall be concluded within a period of one (1) year from the date of the receipt of the complaint or from the date of initiation of proceedings at the instance of the State Bar Council, failing which such proceeding shall stand transferred to the Bar Council of India, which shall dispose of the same as if it were proceeding withdrawal for enquiry under section 36(2).
Note: Section 42A makes it clear that the provisions of section 42 shall so far as may apply in relation to the disciplinary committee of the BCI.
Section 43 provides that the disciplinary committee also has the power to impose costs of proceedings as it may deem fit and such orders shall be executable as if it were the orders of the Supreme Court.
The disciplinary committee also has the power to review its own orders under section 44 of the Advocates Act, 1961.
Appeal To The Bar Council Of India
In case the order of punishment has been passed by the disciplinary committee of the State Bar Council, an appeal may be made to the BCI. Section 37 of the Advocated Act provides that any person aggrieved by an order of the disciplinary committee of a State Bar Council made under Section 35 or the Advocate General of the State may within 60 days from the date of communication of the order to him prefer an appeal to the BCI.
Section 37(2) provides that every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such an order including an order varying the punishment awarded by the disciplinary committee of the State Bar Council thereon as it deems fit.
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 so as to prejudicially affect the person aggrieved without giving him a reasonable chance of being heard.
The BCI has framed rules as to the procedure to be observed in the case of appeal to it under Section 37 of the Act. Chapter 1 of part VII of the Rules of BCI deals with the rules relating to such procedure.
It provides that an appeal to the Council provided for under Section 37 of the Act shall be in the form of a memorandum in writing as per rules. If the appeal is in a language other than English it must be translated in English.
An appeal must be presented by the appellant or his advocate or by his recognized agent in the office of the BCI or sent by registered post with acknowledgement due so as to reach the Secretary of the BCI on or before the last day of limitation.
If the appellant satisfies the disciplinary committee that he had sufficient cause for not preferring the appeal within time. Any such application for a condition of delay shall be supported with an affidavit.
Along with the memorandum of appeal, the appellant shall file:
1. either the authenticated or certified copy of the order appeal against, signed by the Registrar of the disciplinary committee.
2. 5 additional copies of the memorandum of appeal and of the order passed against, if there is only one respondent and such no. of copies as may be necessary if there are more respondents. All such copies shall be certified as true copies by the appellant.
Every memorandum of appeal shall be accompanied by the prescribed fee. If the papers filed in the appeal are not in order, the Registrar shall require the appellant to remove such defects within a specified time.
Further the appellant shall require to file 6 type sets of the following papers paged and index, 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:
a. the complaint, statement in the defense of the advocate.
b. the evidence, oral and documentary and such other copies on which the parties intend to rely.
c. any part of the record as may be directed by the committee.
The Registrar shall give notice to the parties or their advocates or recognized agents informing them of the date, time and place of the hearing of the appeal.
Appeal To The Supreme Court
Section 38 of the Advocates Act deals with appeal to the Supreme Court of India which states that any person aggrieved by an order passed by the disciplinary committee of the BCI under section 36 or 37 or the Attorney General of India or the Advocate General of the State concerned shall within 60 days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass such order including an order varying the punishment awarded by the disciplinary committee of the BCI thereon as it deems fit. No order shall be varied so as to prejudicially affect the person aggrieved without giving him an opportunity of being heard.
Shambhu Ram Yadav vs Hanum Das Khatry
The respondent wrote a letter to his client and asked him to bribe the judge so that he could help the client win the case. The respondent was held guilty here of misconduct under Section 35 of the Advocates Act, for bribing a Judge and the State Bar Council suspended him from practice for a period of two years.
The respondent challenged the aforesaid order before the Disciplinary Committee of the Bar Council of India, by order dated 31st July 1999, the Disciplinary Committee of the Bar Council of India comprising of three members enhanced the punishment and directed that the name of the respondent be struck off from the roll of advocates, thus debarring him permanently from the practice. The respondent further moved to the Honorable Supreme Court of India.
The Honorable Supreme Court here upheld the decision of the Disciplinary Committee of the Bar Council of India, and also mentioned that “Legal profession is not a trade or business. It is a noble profession”.
Suo Motto Enquiry V/s Nand Lal Balwani
In this case, the defendant advocate threw the shoes and shouted slogans in the Supreme Court of India. Both the disrespect and proceedings for professional misconduct were charged against him. The Supreme Court found him guilty of contempt of court and gave him an imprisonment for 4 months and fine of 2000 Rupees.
Later the Disciplinary committee as well as the Bar Council of India found him guilty of professional misconduct and ordered to remove his name from Bar Council of Maharashtra and Goa.
–This article has been edited by Juhi Dhekial phukan.