JAMIA MILLIA ISLAMIA

CLINICAL COURSE –III

DISSERTATION

Advocacy, Professional Ethics and Accountancy for Lawyers

SUBMITTED BY : SUBMITTED TO:

FARHEEN HAIDER SIR SUKESH MISHRA

SEC B. SEM 9 FOL. JMI. NEW DELHI
 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals and organisation. I would like to extend my sincere thanks
to all of them.

I am highly indebted to Sir Sukesh Mishra for their guidance and constant supervision as well as
for providing necessary information regarding the project and also their support in completing
the project.

I would like to express my gratitude towards my parents and members of Jamia Millia Islamia
for their kind cooperation and encouragement which help in the completion of the project.

My thanks and appreciations also go to my colleague in developing the project and people who
have willingly helped me out their abilities.
 TABLE OF CONTENTS

ACKNOWLEDGEMENT

1.CHAPTER………….ADVOCACY

 Legal Profession in India.

 Establishment of the High courts.
 Original and appellate jurisdiction of the High Court.
 Indian Bar Councils Act, 1926
 Excerpts: The Seven Lamps of Advocacy by EDWARD ABBOTT PARRY.
1. The Lamp of Honesty.
2. The Lamp of Industry.
3. The Lamp of Wit.
4. The lamp of Eloquence.
5. The Lamp of Judgement.
6. The Lamp of Fellowship.

2. CHAPTER……………..PROFESSIONAL ETHICS

 Origin and Development of Legal Profession.

 Advocates Act.
 State Bar Council.
 Bar Council of India.
 Qualification for Enrolment.
 Disqualification for Enrolment.
 Senior Advocate.
 Advocate on Record.
 Advocates on Roll.
 Amicus curiae.
 Lawyers Privilege.
 Panchasheel of the Bar.
 Ten commandments of Advocates.
 Darwin”s Therory in Legal Profession.
 Meaning of Professional Ethics.
 Meaning of the term Etiquette.
 Duty to Court.
 Duty to Clients.
 Duty to Opponent.
 Duty to Profession.
 Duty to Render Legal Aid.
 Restriction on other Employment.
 Duty to Self.
 Duty to Colleagues.
 Restriction on Advertisement.
  Refusing to Accept a Case.
 Professional Misconduct.
 Punishment for Misconduct.
 Remedies Against the Order of Punishment.
 Review of its Own Order.
 Disciplinary Committee of the State Bar Council.
 Disciplinary Committee of the Bar Council of India.
 Transfer of Proceedings.
 Advocates Welfare fund .
 Tamil Nadu Advocates Welfare Fund.

3. CHAPTER………. BAR BENCH RERLATIONS CONTEMPT OF COURT

 Civil Contempt.
 Criminal Contempt.
 Punishment for Contempt.
 Defences in the Civil Contempt or Civil Contempt not Punishable.
 Contempt against Subordinate Court.
 Contempt Procedure in the Supreme court or the High Court.
 Contempt by Judicial officers.
 Bar Bench Relations.
 Role of the Bar to strengthen Bar Bench Relation.

4. CHAPTER……………… SELECTED OPINION OF DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF

INDIA ON PROFESSIONAL MISCONDUCT

 Jagadish Singh & Other v. T.C. Sharma

 Bablal v. Subash Jain
 Baswaroopsoni v. Babulalsoni
 Indure Ltd v. Deo Raj Guptha
 Comissioner of Civil Supplies & Consumer Protection Dept. v. Balakrishnan
 Banumurthy v. Bar council of Andhra Pradesh
 Dr. D.V.P Raja v. D. Jayabalan
 G.M. Hirmani v. Iswarrapa
 N.S. (Appellant) v. K.V. (Respondent)
 P.R (Complainant) v. V.I (Respondent)

5. CHAPTER…………….. SELECTED CASES RELATING TO PROFFESSIONAL MISCONDUCT AND CONTEMPT

OF COURT
 Powen Kumar Sharma v. Gurdial Singh
 Mahabir Prasad Singh v. M/S Jack Aviation
 Supreme Court Bar Association v. Union of India
 P.D. Gupta v. Rammurthi
 Robtas Singh v. Commissioner, Agra Division
 Harish Chandra Singh v. S.N. Tripathi
  Hikmat Alikhan v. Ishwar Prasad Arya
 Prahalad Saran Gupta v. Bar Council of India
 Dr. Haniraj Chulani v. Bar Council of Maharashtra
 Dr. D.C. Saxena v. Hon”ble Chief Justice of India
 An Advocate v. Bar Council of India

6. CHAPTER……………… ACCOUNTANCY FOR LAWYERS PURPOSE OF MAINTAINING ACCOUNTS BY

LAWYERS

 Place of Keeping the Accounts Books

 Bar Council Rules Relating to Accounting
 Rules Relating to Accounting under Income Tax Act

7. CHAPTER………..CONCLUSION

8. CHAPTER………….BIBLIOGRAPHY
 CHAPTER 1 – ADVOCACY

Legal Profession in india

The history of the legal profession in India can be traced back to the establishment of the
First British Court in Bombay in 1672 by Governor Aungier. The admission of attorneys
was placed in the hands of the Governor-in-Council and not with the Court. Prior to the
establishment of the Mayor’s Courts in 1726 in Madras and Calcutta, there were no legal
practitioners.

The Mayor’s Courts, established in the three presidency towns, were Crown Courts with
right of appeal first to the Governor-in-Council and a right of second appeal to the Privy
Council. In 1791, Judges felt the need of experience, and thus the role of an attorney to
protect the rights of his client was upheld in each of the Mayor’s Courts. This was done in
spite of opposition from Council members or the Governor. A second principle was also
established during the period of the Mayor’s Courts. This was the right to dismiss an
attorney guilty of misconduct. The first example of dismissal was recorded by the
Mayor’s Court at Madras which dismissed attorney Jones.

The Supreme Court of Judicature was established by a Royal Charter in 1774. The
Supreme Court was established as there was dissatisfaction with the weaknesses of the
Court of the Mayor. Similar Supreme Courts were established in Madras in 1801 and
Bombay in 1823. The first barristers appeared in India after the opening of the Supreme
Court in Calcutta in 1774. As barristers began to come into the Courts on work as
advocates, the attorneys gave up pleading and worked as solicitors. The two grades of legal
practice gradually became distinct and separate as they were in England. Madras gained its
first barrister in 1778 with Mr. Benjamin Sullivan.

Thus, the establishment of the Supreme Court brought recognition, wealth and prestige to
the legal profession. The charters of the Court stipulated that the Chief Justice and three
puisne Judges be English barristers of at least 5 years standing.

The charters empowered the Court to approve, admit and enroll advocates and attorneys to
plead and act on behalf of suitors. They also gave the Court the authority to remove
lawyers from the roll of the Court on reasonable cause and to prohibit practitioners not
properly admitted and enrolled from practising in the Court. The Court maintained the
right to admit, discipline and dismiss attorneys and barristers. Attorneys were not
admitted without recommendation from a high official in England or a Judge in India.
Permission to practice in Court could be refused even to a barrister.

In contrast to the Courts in the presidency towns, the legal profession in the mofussil towns
was established, guided and controlled by legislation. In the Diwani Courts, legal
practice was neither recognized nor controlled, and practice was carried on by vakils and
agents. Vakils had even been appearing in the Courts of the Nawabs and there were no
laws concerning their qualification, relationship to the Court, mode of procedure of ethics
or practice. There were two kinds of agents – a. untrained relatives or servants of the
parties in Court and b. professional pleaders who had training in either Hindu or Muslim
law. Bengal Regulation VII of 1793 was enacted as it was felt that in order to administer
justice, Courts, must have pleading of causes administered by a distinct profession only
men of character and education, well versed in the Mohamedan or Hindu law and in the
Regulations passed by the British Government, would be admitted to plead in the Courts.
They should be subjected to rules and restrictions in order to discharge their work
d i l i g e n t l y and f a i t h f u l l y by upholding the client’s t r u s t .

Establishment of the High Courts

In 1862, the High Courts started by the Crown were established at Calcutta, Bombay
and Madras. The High Court Bench was designed to combine Supreme Court and
Sudder Court traditions. This was done to unite the legal learning and judicial
experience of the English barristers with the intimate experience of civil servants in
matters of Indian customs, usages and laws possessed by the civil servants. Each of the High
Courts was given the power to make rules for the qualifications of proper persons, advocates,
vakils and attorneys at Bar. The admission of vakils to practice before the High Courts
ended the monopoly that the barristers had enjoyed in the Supreme Courts. It greatly
extended the practice and prestige of the Indian laws by giving them opportunities and
privileges equal to those enjoyed for many years by the English lawyers. The learning of
the best British traditions of Indian vakils began in a guru-shishya tradition:
“Men like Sir V. Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and Sir S. Subramania
Ayyar were quick to learn and absorb the traditions of the English Bar from their English
friends and colleagues in the Madras Bar and they in turn as the originators of a long line of
disciples in the Bar passed on those traditions to the disciples who continued to do the
good work.” Additional High Courts were established in Allahabad (1886), Patna (1916), and
Lahore (1919).

There were six grades of legal practice in India after the founding of the High Courts –
a) Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e)
Mukhtars, f) Revenue Agents. The Legal Practitioners Act of 1879 in fact brought all the
six grades of the profession into one system under the jurisdiction of the High Courts.
The Legal Practitioners Act and the Letters Patent of the High Courts formed the chief
legislative governance of legal practitioners in the subordinate Courts in the country until
the Advocates Act, 1961 was enacted. In order to be a vakil, the candidate had to study at
a college or university, master the use of English and pass a vakil’s examination. By 1940,
a vakil was required to be a graduate with an LL.B. from a university in India in addition to
three other certified requirements. The certificate should be proof that he had passed in
the examination and read in the chamber of a qualified lawyer and was of a good
character. In fact, Sir Sunder Lal, Jogendra Nath Chaudhary, Ram Prasad and Moti Lal
Nehru were all vakils who were raised to the rank of an Advocate.

Original and appellate jurisdiction of the High Court

The High Courts of the three presidency towns had an original side. The original side
included major civil and criminal matters which had been earlier heard by predecessor
Supreme Courts. On the original side in the High Courts, the solicitor and barrister
remained distinct i.e. attorney and advocate. On the appellate side every lawyer practiced as
his own attorney.However, in Madras the vakils started practice since 1866. In 1874, the
barristers challenged their right to do original side work. However, in 1916, this right was
firmly established in favour of the vakils. Similarly, vakils in Bombay and Calcutta could
be promoted as advocates and become qualified to work on the original side.
Indian Bar Councils Act, 1926

The Indian Bar Councils Act, 1926 was passed to unify the various grades of legal practice
and to provide self-government to the Bars attached to various Courts. The Act required
that each High Court must constitute a Bar Council made up of the Advocate General, four
men nominated by the High Court of whom two should be Judges and ten elected from
among the advocates of the Bar. The duties of the Bar Council were to decide all matters
concerning legal education, qualification for enrolment, discipline and control of the
profession. It was favourable to the advocates as it gave them authority previously held
by the judiciary to regulate the membership and discipline of their profession.
 Excerpts: THE SEVEN LAMPS OF ADVOCACY BY EDWARD ABBOTT PARRY

There are seven lamps of advocacy: The lamp of honesty, the lamp of courage, lamp of
industry, the lamp of wit, the lamp of eloquence, the lamp of judgment, and the lamp of
fellowship.

I. THE LAMP OF HONESTY

The great advocate is like the great actor: he fills the stage for his span of life, succeeds,
gains our applause, makes his last bow, and the curtain falls. Nothing is so elusive as the art
of acting, unless indeed it be the sister art of advocacy.

The young student of acting or advocacy is eager to believe that there are no methods and
no technique to learn, and no school in which to graduate. Youth is at all times prone to act
on the principle that there are no principles, that there is no one from whom it can learn, and
nothing to teach. Any one, it seems, can do a wig and gown, and thereby become an
advocate. Yet there are principles of advocacy; and if a few generations were to forget to
practice these, it would indeed be a lost art. The student of advocacy can draw inspiration
and hope from the stored-up experience of his elders. He can trace in the plans and life-
charts of the ancients the paths along which they strode, journeyed. They can be seen
pacing the ancient halls with their clients, proud of the traditions of their great profession —
advocates — advocates all.

Without a free and honourable race of advocates the world will hear little of the message
of justice. Advocacy is the outward and visible appeal for the spiritual gift of justice. The
advocate is the priest in the temple of justice, trained in the mysteries of the creed, active in
its exercises. Advocacy connotes justice. Upon the altars of justice the advocate must keep
his seven lamps clean and burning rightly. In the centre of these must ever be the lamp of
honesty.

The order of advocates is, in D'Aguesseau's famous phrase, “as noble as virtue." Far back in
the Capitularies of Charlemagne it was ordained of the profession of advocates “that nobody
should be admitted therein but men mild, pacific, fearing God, and loving justice, upon pain
of elimination." So may it continue, world without end.

From the earliest, Englishmen have understood that advocacy is necessary to justice, and
honesty is essential to advocacy. Every pleader who acts in the business of another should
have regard to four things : — First, that he be a person receivable in court, that he be no
heretic, nor excommunicate, nor criminal, nor man of religion, nor woman, nor ordained
clerk above the order of sub- deacon, nor beneficed clerk with the cure of souls, nor
infant under twenty-one years of age, nor judge in the same cause, nor open leper, nor
man attainted of falsification against the law of his office.

Secondly, that every pleader is bound by oath that he will not knowingly maintain or
defend wrong or falsehood, but will abandon his client immediately that he perceives his
wrong-doing. Thirdly, that he will never have recourse to false delays or false witnesses,
 proffer, or consent to any corruption, deceit, lie, or falsified law, but loyally will maintain
the right of his client, so that he may not fail through his folly or negligence, nor by default
of him, nor by default of any argument that he could urge; and that he will not by blow,
contumely, brawl, threat, noise, or villain conduct disturb any judge, party, serjeant, or
other in court, nor impede the hearing or the course of justice. Fourthly, there is the salary,
concerning which four points must be regarded — the amount of the matter in dispute, the
labour of the serjeant, his value as a pleader in respect of his (learning), eloquence, and
repute, and lastly the usage of the court."

Nevertheless, although an advocate is bound by obligations of honour and probity not to

overstate the truth of his client's case, and is forbidden to have recourse to any artifice
or subterfuge which may beguile the judge, he is not the judge of the case, and within these
limits must use all the knowledge and gifts he possesses to advance his client's claims
to justice. Boswell asked Doctor Johnson whether he did not think “that the practice of
the law in some degree hurt the nice feeling of honesty?” To whom the doctor replied: "
Why no, Sir, if you act properly. You are not to deceive your clients with false
representations of your opinion: you are not to tell lies to a judge." Boswell: “But what do
you think of supporting a cause which you know to be bad?” Johnson: “Sir, you do not
know it to be good or bad till the judge determines it. I have said that you are to state facts
fairly; so that your thinking, or what you call knowing, a cause to be bad must be from
reasoning, must be from your supposing your arguments to be weak and inconclusive.
Lord Chief Justice Cockburn, set forth his views of an advocate's duty, concluding with
these memorable words: “The arms which an advocate wields he ought to use as a warrior,
not as an assassin. He ought to uphold the interests of his client per fas, and not per nefas.
He ought to know how to reconcile the interests of his clients with the eternal interests of
truth and justice." If an advocate knows the law to be x, it is not honest to lead the court
to believe that it is y. Whether the advocate does this by directly mis-stating the law,
or by deliberately omitting to state it fully within the means of his knowledge, it is
equally without excuse, and dims the lamp of honesty.

For the advocate must remember that he is not only the servant of the client, but the friend of
the court, and honesty is as essential to true friendship as it is to sound advocacy.

II. THE LAMP OF COURAGE

Advocacy needs the " king-becoming graces: devotion, patience, courage, f o r titude."
Advocacy is a form of combat where courage in danger is half the battle. Courage is as
good a weapon in the forum as in the camp. The advocate, like Csesar, must stand upon
his mound facing the enemy, worthy to be feared, and fearing no man. Unless a man
has the spirit to encounter difficulties with firmness and pluck, he had best leave advocacy
alone.
A modern advocate kindly reproving a junior for his timidity of manner wisely said
“R e m e m b e r it is better to be strong and wrong than weak and right." The belief that
success in advocacy can be attained by influence, apart from personal qualifications, is ill-
founded.

It is very true that learning begets courage, and wise self-confidence can only be founded
on knowledge. The long years of apprenticeship, the studious attention to "preperatives,"
are, to the advocate, like the manly exercises of the young squire that enabled the knight of
old to earn his spurs on the field of battle. In no profession is it more certain that knowledge
is power," and when the opportunity arrives, knowledge, and the courage to use it
effectively, proclaim the presence of the advocate.

There have been many advocates whose courage was founded on humor rather than
knowledge, and who have successfully asserted their independence in the face of an
impatient or overbearing Bench through the medium of wit, where mere wisdom might have
failed in effect.

Independence without moderation becomes licentiousness, but true independence is an

essential attribute of advocacy, and the English Bar has never wanted men endowed with
this form of true courage. The sacrifice of the highest professional honors to the
maintenance of principle has been a commonplace in the history of English advocates,
and the names of the living could be added if need be to those who have passed away,
leaving us this clean heritage as example.

The true position of the independence of the English Bar, the right and the duty of the
advocate to appear in every case, however poor, degraded, or wicked the party may be, is
laid down once and for all in a celebrated speech of Erskine's in his defence of Thomas
Paine, who was indicted in 1792 for publishing the Rights of Man. Great public
indignation was expressed against Erskine for daring to defend Paine. As he said in his
speech, " In every place where business or pleasure collects the public together, day after
day, my name and character have been the topics of injurious reflection. And for what?
Only for not having shrunk from the discharge of a duty which no personal advantage
recommended, and which a thousand difficulties repelled." He then continued, in words
which the learned editor of Howell's State Trials emphasizes by printing in capital letters,
to enunciate one of the basic principles of English advocacy: " Little, indeed, did they know
me, who thought that such alumnies would influence my conduct: I will forever, at ALL
HAZARDS, ASSERT THE DIGNITY, INDEPENDENCE, AND INTEGRITY OF THE
ENGLISH Bar; without which, impartial justice, the most valuable part of the English
Constitution, can have no existence. From the moment that any advocate can be permitted to
say that he will or will not stand between the Crown and the subject arraigned in the court
where he daily sits to practice — from that moment the liberties of England are at an end.
If the advocate refuses to defend, from what he may think of the charge or of the
defense, he assumes the character of the judge; nay, he assumes it before the hour of
judgment; and, in proportion to his rank and reputation, puts the heavy influence of perhaps a
mistaken opinion into the scale against the accused.
 William Henry Seward was acting in the defence of the negro Freeman in 1846,who
killed a farmer and several of his family. His advocacy was of no avail to the negro, but
his eloquent speech remains a noble statement of the duty of the advocate, and a fine
example of devotion and courage in the exercise of that duty.

The whole speech is worthy of study, as it contains a glowing and reasoned appeal for the
right of the most degraded human being in a civilised state to a real hearing of his case in
a judicial court, which can only be obtained through honest and competent advocacy.

"In due time, gentlemen of the jury, when I shall have paid the debt of nature, my remains
will rest here in your midst with those of my kindred and neighbours.

It is very possible they may be unhonoured, neglected, spurned ! But perhaps years hence,
when the passion and excitement which now agitate this community shall have passed
away, some wandering stranger, some lone exile, some Indian, some negro, may erect over
them an humble stone, and thereon this epitaph : ‘He was faithful.' “These words, as he
desired, are engraved on the marble over him, and he is remembered at the American Bar
as an advocate who upheld its best traditions, and feared not to hold aloft the Lamp of
Courage.

III. THE LAMP OF INDUSTRY

The first task of the advocate is to learn to labour and to wait. There never was a
successful advocate who did not owe some of his prowess to industry. From the biographies
of our ancestors we may learn that the eminent successful ones of each generation
practised at least enough industry in their day to preach its virtues to aspiring juniors. Work
soon becomes a habit. It may not be altogether a good habit, but it is better to wear out than
to rust out. Nothing, we are told, is impossible to industry. Certainly without industry the
armoury of the advocate will lack weapons on the day of battle.

There must be years of what Charles Lamb described with graceful alliteration as " the
dry drudgery of the desk's dead wood " before the young advocate can hope to dazzle
juries with eloquent perorations, confound dishonest witnesses by skilful cross-
examination, and lead the steps of erring judges into the paths of precedent.

All great advocates tell us that they have had either steady habits of industry or grand
outbursts of work. Charles Russell had a continuous spate of energy." Do something !
"Abraham Lincoln owed his sound knowledge of law to grim, zealous industry. In after-
life to every student who came near him his advice was, " Work ! work !work ! "Advocacy
is indeed a life of industry. Each new success brings greater toil. Campbell, writing home
from the Oxford Circuit, describes the weary round of his daily task. Some advocates
suffer thus every day the court sits, whilst others sit round and suffer envy. I ought to got
so far to-night on my way to Hereford, but we have a long day's work before us, and I shall
be obliged to travel all to-morrow night. You can hardly form a notion of the life of labour,
anxiety, and privation which I lead upon the circuit. I get up every morning by six. I
never get out of court till seven, eight, or nine in the evening, and, having swallowed any
indifferent fare that my clerk provides for me at my lodgings, I have consultations and read
briefs till I fall asleep. This arises very much from the incompetence of the judge. It is from
the incompetency of judges that the chief annoyances I have in life arise. I could myself
have disposed of the causes here in half the time the judge employed. He has tried two
causes in four days. Poor fellow, he is completely knocked up." An advocate must study
his brief in the same way that an actor studies his part. Success in advocacy is not arrived
at by intuition.

You have to work hard and to think hard. I get some good help, as I tell you. My mode of
work is this: One of these young men reads the brief and makes a note a full one. I go
through the note with him ' (smiling), ' cross-examining him, if you like. Sometimes, I
admit, it may not be necessary for me to read the brief; the note may be so complete, and
the man's knowledge of the case so exact, that I get everything from him. But it often is in
fact, generally is necessary to go to the brief. You have seen me reading briefs here. I admit
that I am quick in getting at the kernel of a case, and that saves me some trouble; but I must
read the brief with my own eyes, or somebody else's." I said, ' Sir John Kars Lake went
blind because he could only read his brief with his own eyes. It is a great point to be able
to read your brief with somebody else's eyes!' “Russell— Well, well, well, that's so! But
it is not intuition.' “I said, ' It has been said that O'Connell never read his brief when he
appeared for the defendant. He made his case out of the plaintiff's case.' “Russell — ‘I don't
think that is likely; I think O'Connell knew his case — the vital points in his case — before
he went into court. There is often a great deal in a brief which is not vital, which is not even
pertinent. I can read a brief quickly; I can take in a page at a glance, if you like; I can throw
the rubbish over easily, and come right on the marrow of the case. But I can only do that
by reading the brief, or by the help of my friends. I learn a great deal at consultations;
I am not above taking hints from everybody, and I think carefully over everything that is
said to me ' (holding his hand up with open palm); ' I shut out no view. If I have a good
point, it is that I can see quickly the hinge on which the whole case turns, and I never lose
sight of it. But that is not intuition, my friend; it is work.' “Industry in reading and book-
learning may make a man a good jurist, but the advocate must exercise his industry in
the double art of speaking and arranging his thoughts in ordered speech. He must be
ready to leave his books awhile and practice the athletics of eloquence with equal
industry. The silver-tongued Heneage Finch advises students “to study all the morning and
talk all the afternoon."

For “bare reading without practice makes a student, but never makes him a clever lawyer."
Our fathers understood this better perhaps than we do, and made provision of halls and
cloisters and gardens, where students could take exercise and discuss the mysteries of their
profession when the hours of reading were over.
 The days of wandering in cloisters and gardens, putting cases to one's fellow- students,
and listening to the wisdom of elders by the margin of the fountain are, alas !not for us. But
even to- day a wise youngster should recognise that sitting in court to listen to the
conduct of cases, attendance at circuit mess and dining in Hall, where the law-talk of
seniors may still on occasion be of value — these things are all forms of industry, for the
advocate can only learn the true creed of his faith from oral tradition.

If a man is endowed with health and industry, the profession of an advocate is not “a rash
and hazardous speculation." He may even without blame give hostages to fortune,
remembering that when Erskine made his first appearance at the Bar his agitation nearly
overcame him, and he was just about to sit down a failure when, he says, “ I thought I felt
my little children tugging at my gown, and the idea roused me to an exertion of which I
did not think myself capable." He succeeded, indeed, far beyond his expectations, and he
found, when he had overcome that first modest inertia which benumbs even the greatest
genius, that he was fully equipped to fight the battles of his clients against all comers. And
the reason of it was that he had not failed to read and learn and digest beneath the Lamp of
Industry.

IV. THE LAMP OF WIT

At the back of this little word "wit” lays the idea of knowledge, understanding, sense. In
its manifestation we look for a keen perception of some incongruity of the moment. The
murky atmosphere of the court is illuminated by a flash of thought, quick, happy, and
even amusing. Wit, wisely used, bridges over a difficulty, smooths away annoyance, or
perhaps turns aside anger, dissolving embarrassment in a second's laughter." Laughter may
be derisive, unkind, even cruel, or it may be rightly used as a just weapon of ridicule
wherewith to smite pretension and humbug. It may be gracious and full of kindliness,
putting a timid man at his ease, or instinct with good-humour, softening wrath or
mitigating tedious irrelevancy. It may be the due recognition of a witty text preaching a
useful truth, that could otherwise be expressed only in a treatise :" From the earliest times
wit has been a light to lighten the darkness of advocacy.Pedants and bores resent all forms of
wit, but a real humorist rejoices in nothing so much as a good story against himself.

Often the wit of an advocate will turn a judge from an unwise course where argument or
rhetoric would certainly fail. Lord Mansfield paid little attention to religious holidays. He
would sit on Ash- Wednesday, to the scandal of some members of the Bar, whose protests
made no impression upon him. At the end of Lent he suggested that the court might sit on
Good Friday. The members of the Bar were horrified. Serjeant Davy, who was in the case,
bowed in acceptance of the proposition." If your lordship pleases ; but your lordship will be
the first judge that has done so since Pontius Pilate."
"Wit is often the fittest instrument with which to destroy the bubble of bombast. ”Wit may
fairly be used to strip the cloak of pretension from the shoulders of impudence. Holker was
cross-examining a big vulgar Jew jeweller in a money- lending case and began by looking
him up and down in a sleepy dismal way and drawled out : " Well, Mr. Moselwein, and what
are you ?

" Agenschelman," replied the jeweller with emphasis. “Just so, just so," ejaculated Holker
with a dreary yawn, “but what were you before you were a gentleman? ” Wit, skillfully
used, is the kindliest and most effective method of exhibiting the futility of judicial
interruptions. “Where do you draw the line, Mr. Bram well?” asked a learned judge in the
Court of Common Pleas. "I don't know, and I don't care, my lord. It is enough for me that
my client is on the right side of it."

Wit and courtesy need never be divorced. They are, indeed, complementary. Wit, deftly
used, refreshes the spirit of the weary judge. Lord Chief Justice Coleridge, writing from the
Northern Circuit, says: “Gully was excellent. His phrase, when he asked for a stay of
execution ' in order to consider more at leisure some of your lordship's observations,' tickled
my fancy very much. Misdirection was never more courteously described."

Satire or irony is often in danger of being misunderstood by the simple- minded jury.
Ridicule, to be effective, must be pointed, even extravagant. In combating the defense of
Act of God set up by an American advocate defending a client on the charge of arson,
Governor Wisher, for the prosecution, disposed of the theory of spontaneous combustion,
and succeeded in satisfying the jury of its absurdity : " It is said, gentlemen, that this was
Act of God. It may be, gentlemen. I believe in the Almighty's power to do it, but I never
knew of His walking twice round a straw stack to find a dry place to fire it, with double-
nailed boots on so exactly fitting the ones worn by the defendant."

Bowen, on the Western Circuit, was less fortunate. Prosecuting a burglar caught red-handed
on the roof of a house, he left the case to the jury in the following terms: " If you
consider, gentlemen, that the accused was on the roof of the house for the purpose of
enjoying the midnight breeze, and, by pure accident, happened to have about him the
necessary tools of a housebreaker, with no dishonest intention of employing them, you
will, of course, acquit him." The simple sons of Wessex nodded complacently at
counsel, and, accepting his invitation, acquitted the prisoner." brevity is the soul of
wit."Good advocacy displays the highest form of wit in an instinct for brevity. The healthy
appetite of judge and advocate alike is shown in a keenness to “get through the rind of the
orange and reach the pulp as soon as possible."
V. THE LAMP OF ELOQUENCE

The eloquence of advocates of the past must largely be taken on trust. There is no evidence
of it that is not hearsay. For, though we have the accounts of ear witnesses of the
eloquence of Erskine, Scarlett, Choate, or Lincoln, and can ourselves read their speeches,
the effect of their eloquence does not remain. We are told about it by those who
experienced it, and can believe or not as we choose. It is the same with actors. It requires
genius to describe acting, so that the reader captures some of the experience of the
witness. The most eloquent advocacy that is reported in print is to be found not in law
reports, but in fiction — in the speeches of Portia and Serjeant Buzfuz, for instance, where
for all time the world continues hanging on the lips of the advocate in excited sympathy
with the client. There are some who think that rhetoric at the Bar has fallen in esteem.
The modern world has certainly lost its taste for sweet and honeyed sentences, and
sets a truer value on fine phrases and the fopperies of the tongue; but there will always be
a high place in the profession for the man who speaks good English with smooth
elocution, and whose speeches fall within Pope's description: Fit words attended on his
weighty sense, And mild persuasion flowed in eloquence. The test of eloquence in advocacy
is necessarily its effect upon those to whom it is addressed. The aim of eloquence is
persuasion. The one absolute essential is sincerity, or, perhaps one should say, the
appearance of sincerity.

It would appear from the history of advocacy that the flame of the lamp of eloquence may
vary from time to time in heat and colour. One cannot say that the style of one advocate is
correct and another incorrect, since the style is the attribute of the man and the generation
he is trying to persuade. Yet, however different the style may be, the essential power of
persuasion must be present. He must, as Hamlet says, be able to play upon his jury,
knowing the stops, and sounding them from the lowest note to the top of the compass.
Brougham's tribute to Erskine's eloquence is perhaps the best pen-picture of an English
advocate we possess, and it is noticeable how he emphasizes this power of persuasion and
endeavours to solve the psychology of it. He places in the foreground the physical
appearance of the man, a great factor in each style of advocacy.

"Nor let it be deemed trivial," he says, " or beneath the historian's province, to mark that
noble figure, every look of whose countenance is expressive, every motion of whose form
graceful, an eye that sparkles and pierces, and almost assures victory, while it 6 speaks
audience ere the tongue.' Juries have declared that they felt it impossible to remove their
looks from him when he had riveted and, as it were, fascinated them by his first glance;
and it used to be a common remark among men who observed his motions that they
resembled those of a blood-horse, as light, as limber, as much betokening strength and
speed, as free from all gross superfluity or encumbrance. Then hear his voice of
surpassing sweetness, clear, flexible, strong, exquisitely fitted to strains of serious
earnestness, deficient in compass indeed, and much less fitted to express indignation, or
even scorn, than pathos, but wholly free from harshness or monotony. All these, however,
and even his chaste, dignified, and appropriate action, were very small parts of this
wonderful advocate's excellence.
 Eloquence of manner is real eloquence, and is a gift not to be despised. There is a
physical as well as a psychological side to advocacy, documentary evidence of which may
be found in the old prints and portraits. Mr. Montagu Williams has pointed out that the best
English eloquence of his time was founded on what he calls a solid style of advocacy.
Nearly every great advocate has found it necessary to make use of the eloquence of
persuasion. Charles Russell is the one exception. He did not seek to persuade, he directed
the court and jury. Whether or not he was, as Lord Coleridge said, "the biggest advocate
of the century," he was undoubtedly a very great advocate. Clearness, force, and
earnestness were the basic qualities of his eloquence. It was said of him that "ordinarily the
judge dominates the jury, the counsel, the public, he is the central figure of the piece. But
when Russell is there the judge isn't in it. Russell dominates everyone.”

The moral of the lives of the advocates seems to be that in the house of eloquence there are
many mansions, and any style natural to the man who uses it is his right style, and may
succeed. One besetting sin of many would-be eloquent speakers is fatal, and that is
bombast. And though eloquence at its highest is a gift, the art of speaking can be
learned and personal difficulties overcome. De- mosthenes, with his pebbles in his mouth or
running up a hill spouting an oration, has been an example to us from the school- room.

There is no golden rule of method, but there is this golden principle to remember that
the message of eloquence is addressed to the heart rather than the brain." Gain the heart, or
you gain nothing; the eyes and the ears are the only road to the heart. Merit and knowledge
will not gain hearts, though they will secure them when gained. Pray have that truth
ever in your mind. Engage the eyes by your address, air, and motions ; soothe the ears by
the elegancy and harmony of your diction ; the heart will certainly follow ; and the whole
man and woman will as certainly follow the heart."

VI. THE LAMP OF JUDGMENT

Judgment inspires a man to translate good sense into right action. I would not quarrel with
the philosopher who describes judgment as an instinct, but I would bid him remember that
even an instinct is acquired by "cunning " rather than luck. Let no one think that he can
attain to sound judgment without hard work. The judgment of the advocate must be based
on the maxim, “He that judges without informing himself to the utmost that he is capable
cannot acquit himself of judging amiss."A client is entitled to the independent judgment of
the advocate. Whether his judgment is right or wrong, it is the duty of the advocate to place it
at the disposal of his client. In the business of advocacy judgment is the goods that the
advocate is bound to deliver. Yet he is under constant temptation to please his client by
giving him an inferior article. The duty of the advocate to give only his best.
The above question frequently arises, and some counsel has considered themselves bound
to obey the wishes of the solicitor. There is no doubt that this is the safest course for the
advocate, for, if he does otherwise and the result is adverse, he is likely to be much
blamed, and the solicitor also is exposed to disagreeable comments ; but I hold, and have
always acted upon the opinion, that the client retains counsel's judgment, which he has no
right to yield to the wishes or opinions of anyone else. He is bound, if required, to return
his brief, but if he acts against his own convictions he sacrifices, I think, his duty as an
advocate."

An advocate of judgment has the power of gathering up the scattered threads of facts
and weaving them into a pattern surrounding and emphasizing the central point of the case.
In every case there is one commanding theory, to the proof of which all the facts must
be skillfully marshalled. An advocate with one point has infinitely greater chances than
an advocate with twenty points. Rufus Choate was an advocate of great judgment, and
not only was he enthusiastic and diligent in searching for the central theory, or hub of his
case, as he called it, but having made up his mind what it was, he rightly put it forward
without delay, believing that it was the "first strike" that conquered the jury. Parker, his
biographer, tells us that he often said to me that the first moments were the great
moments for the advocate. Then, said he, the attention is all on the alert, the ears are
quicker, the mind receptive. People think they ought to go on gently, till, somewhere about
the middle of their talk, they will put forth all their power. But this is a sad mistake. At the
beginning the jury is all eager to know what you are going to say, what the strength of your
case is. They don't go into details and follow you critically all along: they try to get hold of
your leading notion, and lump it all up. At the outset, then, you want to strike into their
minds what they want — a good, solid, general view of your case; and let them think over
that for a good while. If,' said he emphatically, you haven't got hold of them, got their
convictions at least open, in your first half-hour or hour, you will never get at them at all.' "

Abraham Lincoln had a genius for seeing the real point of his case and putting it straight to
the Court. A contemporary who was asked in later life what was Lincoln's trick with the jury
replied, "He saw the kernel of every case at the outset, never lost sight of it, and never let it
escape the jury. That was the only trick I ever saw him play.”

In nothing does the advocate more openly exhibit want of judgment than in prolixity.
Modern courts of justice are blamed by the public, not wholly without cause, for the length
and consequent expense of trials. To poor people this may mean a denial of justice. No
one desires that the judge should constantly interfere with counsel in the discharge of
their duties, but it seems to be his duty on occasion to blow his whistle and point out to the
combatants that they are offside. If everyone connected with the trial of an action were to train
and use his judgment and co- operate with the judgments of his fellow-workers in a policy of
anti-waste, a great reproach would be lifted from our courts of justice. Prolixity is no new
disease.
 " In his lordship's conduct of trials he was very careful of three matters : 1. To adjust what
was properly the question, and to hold the counsel to that ; for he that has the worst end of
the staff, is very apt to fling off from the point and go out of the right way of the cause.
2. To keep the counsel in order; for in trials they have their parts and their times. His
lordship used frequently to inculcate to counsel the decorum of evidencing practice. 3. To
keep down repetition, to which the counsel, one after another, are very propense.

The judgment of an advocate may be called upon at any moment for a sudden decision that
may mean the victory or defeat of his client. For this reason it is necessary that he should
be always alert. The contents of his brief must be already in his mind, and his attention
must be fixed on what is happening in court, which has rarely been foreseen in the
best-prepared brief ever delivered to counsel. "Watch the case!" It is a golden rule.

An advocate who is always fumbling with his brief when he is examining a witness
cannot follow the game that is on the table before him. Sound judgment is essential to the
examination of witness.Two golden rules handed down from the eighteenth century, and
maybe from beyond, are still unlearned lessons to each succeeding generation of
advocates: 1. Never ask a question without having a good reason to assign for asking it. 2.
Never hazard a critical question without having good ground to believe that the answer will
be in your favour.

Most re-examination intending to rehabilitate the character of a witness is apt to make

matters worse. These stories of actual happenings, trivial in themselves, teach us the
necessity of judgment in advocacy. And I pray the young advocate not to rejoice too
merrily over the errors of judgment of his seniors or lament too grievously about his own.
Bear in mind that by acknowledged error we may learn wisdom, and that the only
illuminant for the lamp of judgment is the oil of experience.

VII. THE LAMP OF FELLOWSHIP

An advocate lacking in fellowship, careless of the sacred traditions of brotherhood which

have kept the lamp of fellowship burning brightly for the English Bar through many
centuries, a man who joins the Bar merely as a trade or business, and does not
understand that it is also a professional community with public ideals, misses the heart of
the thing, and he and his clients will suffer accordingly.Fitzjames Stephen wisely said of the
English Bar that it is " exactly like a great public school, the boys of which have grown older,
and have exchanged boyish for manly objects. There is just the same rough familiarity, the
general ardour of character, the same kind of unwritten code of morals and manners, the same
kind of public opinion expressed in exactly the same blunt, unmistakable manner.”It was for
this reason that the judges always addressed a serjeant as " Brother." It seems a pity that this
fraternal greeting, this courteous link of fellowship between Bench and Bar, necessarily
disappeared with the abolition of Serjeant's Inn. Yet, though the talisman is no longer spoken,
the spirit of brotherhood will always be with us.
In the old days education in the law was undertaken very seriously, but in a fraternal spirit.
The reader would propound a case, the utter barristers would declare their opinion, the
reader would confute the objections laid against him, and the students would eagerly note
the learned points of the seniors. These readings took four or five hours daily, and were
held in the halls. The moots and the boltings took place after supper, and at other times
among the students under the leadership of a barrister. But the whole term was not
taken up with the dry study of the law. There were feastings, grand nights.

For though some of this ancientry is better honoured in the breach than the observance, yet
even the buffoonery, as Stephen called it, of Grand Court has its value as a link with the
past. It is an excellent thing for the profession that in the same way as the lessons of
advocacy in the past were learned by the young students from their elders, who sat at meat
with them and shared their lives in intimate and homely fashion, so to-day we enter a
common Inn, dine at a common table, join a common mess upon circuit, all of which is
evidence of the continuance of that right spirit of fellowship which, to my mind, is an
essential of advocacy. The fellowship of the Temple springs from its long traditions of
brotherhood among the Templars. To turn out of the Strand into its quiet courts brings over
your brooding spirit something of that sacred melancholy pleasure which one feels on
entering the old school or dining once again in the college hall. But you are no longer actor,
art and part, in the school and college life. Here in the Temple, though others are judges
and benchers and fashionable leaders, you can still wander in shabby honesty in the gardens,
pull down some of the old volumes in the library, and dine below the salt with your fellow-
ancients.

The Temple is full of ghosts — honest ghosts with whom it is a privilege to claim
fellowship. There are some who speak of the Bar sneeringly as a Trade Union — which it
certainly is, and to my thinking one of the oldest and best unions. And if advocacy could be
honestly described as a trade, then the phrase trade union might be accepted without
demurrer. For the basic quality of a trade union, that which has made these institutions
thrive against opposition, is the spirit of fellowship and un- selfishness which is the ideal
of its members.

We have seen how of old the senior members of the Bar trained up the juniors in the mystery
of their craft, and throughout the practice of the profession it has always been a point of
honour for the elders to assist the beginners in those difficult days of apprenticeship. What
could be more delightful and encouraging to a youngster than to be received by his genial,
handsome leader in the presence of an admiring attorney.No man ever attains a position at the
Bar in which he can afford to despise the opinion of his fellow-men. The eulogies of public
journals, even the praise and patronage of attorneys, are of no worth compared with the
respect of the Bar.
Charles Russell, during the course of a trial, cross-examined a lady with great
severity, and afterwards received an anonymous letter of a very abusive character, in
which he was charged with having been guilty of conduct in his cross-examination
"which no gentleman should pursue towards any woman." He thereupon sat down and
wrote a letter to the counsel on the other side, in which he said, " I should be sorry to
think this was true, but I am not the best judge of my own conduct,"

Russell's learned friend cleverly evaded responsibility by telling him that the character
of a gentleman was one " we all know you eminently possess," with which certificate of
character the great man was soothed and satisfied. But we must remember that even the
good old days were not without evidence of professional malice and charitableness. As
far back as the reign of Francois I. it was a rule of the French Bar that "advocates must not
use contentious words or exclamations the one toward the other ; or talk several at the
same time, or interrupt each other." These words might still be engraved in letters of gold
on the walls of our own law-courts, for on occasion the lamp of fellowship burns so low
that such things occur. Still, at the English Bar we may claim that we set a good example to
other bodies of learned men by our real attachment to the precepts and practice of
fellowship, and may, without hypocrisy, commend the rest of mankind to follow in our
footsteps, And do as adversaries do in law, Strive mightily, but eat and drink as friends.
 CHAPTER – II

PROFESSIONAL ETHICS

Origin and Development of Legal Profession

In India, the Legal profession originated during the British Rule. There is no evidence of the
existence of legal Profession before that is During the Hindu Rule and Mughal Dynasty
period. During that period, the administration of justice was in the hands of the King and the
Kings court was treated as the highest court of the country.

There is no appeal against the order of the King. Persons disobeyed the King’s order was
charged with sedition. During that period the King was respected as the representative of God
who was sent by the God to render justice to the people.

In the King’s court the plaintiff has to represent his case personally and thereafter the King
will hear the other side. To assist and advice and the King in the administration of justice
there was a council of ministers and a group of educationalists.

During British’s Period The East India Company which started its business in India, during
16th century slowly started capturing important cities in India and they started administering
those areas under their control. They have created company courts and those courts were
headed by persons having no legal knowledge. And persons having no legal knowledge were
allowed to practice in the court.

The first time in India, the legal profession was recognized and regulated by the Charter Act
of 1774.This Act has permitted the English lawyers to practice in the Supreme Court of
Calcutta.

Later on in 1801, the English lawyers were allowed to practice in the Madras Supreme Court
and in the year 1823 they were allowed to practice in the Bombay Supreme Court, but Indian
Lawyers were not allowed to Practice in those courts. (In 1826 these 3 Supreme Courts were
abolished and in that place High Courts were Created).

In 1865, the Special Rights Act has conferred the right to the Madras, Bombay and Calcutta
High Courts to frame rules for the recognition of Advocates and for preparing the Advocates
roll.

In 1879, the legal practioner’s Act has conferred the similar power to the other High court
were allowed to practice in that high court. As per this Act Persons studied Law in England
Were called as Advocates and persons studied Law in India were called as “Vakils”.The
“Vakils” were not allowed to practice before the High Courts.

In 1923,an Advocates Committee was constituted under the leadership of Sir. Edward to
study the legal profession and to make suitable recommendations to improve the legal
profession. This committee has recommended for the creation of Bar Councils in each High
Court and allowing the “Vakils” to practice before the High Court.
Accepting the recommendation Bar Council Act was passed in 1926. This Act was paved the
way for the creation of Bar Councils in each High Court. But the Bar Council was not
empowered to enroll Advocates, that power was retained with the High Courts. The function
of the Bar Council was only adversary and the rules and regulations made by the Bar Council
shall be brought into force only after the concurrence from the High Court.After
Independence: After Independence in the year 1951 an Advocates Committee was constituted
under the chairmanship of Justice C.R.Das to study the problems in the legal profession and
make suitable suggestions to remedy such problems. This committee has made the following
recommendations.

 All India level, one Bar Council namely Bar Council of India and in each state, State
Bar Council should be created.

 Power to enroll Advocates and disciplinary power against the Advocates should be
entrusted with the Bar Council.

 Advocates should be allowed to practice throughout India without any

discrimination.

The fifth Law Commission also scrutinized these recommendations and recommended for the
implementation of these recommendations. Accepting these recommendations, the Central
Govt. passed the Advocates Act in the year 1961 giving suitable provision for creation of Bar
Councils and the Bar Councils are entrusted with the power of regulating the legal profession.

SALIENT FEATURES OF ADVOCATE ACT

The Advocates Act was passed by the Parliament in the year 1961. Following are some of the
important salient features.

 The Act has consolidated all the existing law on legal profession.
 The Act has made provision for the creation of Bar Council of India at the Central
level and State bar Councils in each state.
 The Act has made the provision for the preparation of common roll of Advocates
throughout India.
 It empowers Advocates whose name is in the common roll to practice in all the courts
in India.
 The difference between the Advocates and Vakil is abolished and all those who
practice law is called as Advocates.
 Provisions are made to confer the status as Senior Advocate for those Advocates who
possess extraordinary knowledge in the field of law.
 It has conferred autonomous status to the Bar Councils.
STATE BAR COUNCIL

Section-3 of the Advocates Act empowers for the creation of State bar councils for every
state. Number of members of the Bar Council varies from state to state, depending upon the
number of Advocates on the State roll.
 If the number of Advocates in the state roll is less than 5000 then the number of Bar
Council members is 15.
 If the number of Advocates is 5000 to 10000 then the number of Bar Council
members is 20.
 If the number of Advocates is more than 10000 then the number of bar Council
members is 25.

Members are elected by the Advocates whose names are there in the state roll by a single
transferrable vote. The members hold office for a period of 5 years. The Advocate General of
the Concerned State is an ex-officio member of the State Bar Council. So long as he is
holding the office as Advocate General he can act as the member of the Bar Council.

The State Bar Council is empowered with the following powers.

 It is body corporate.
 It is a legal body having the autonomous status.
 It has a common seal and perpetual succession.
 It can do the following things in its own name. Buying and selling properties, entering
into agreements, Filing cases.
 It can constitute executive committee etc.
 It can frame rules and regulations relating to day to day administration.

Advocates Act empowers the State Bar Council to do the following functions.

 Enroll the qualified persons as Advocates.

 Prepare the Advocates roll.
 Take disciplinary action for professional misconduct.
 Protect the rights and privileges of the Advocates.
 Encourage law reforms. For this purpose it organize seminars, talks and publish
journals.
 Constitute executive committee, enrolment committee, disciplinary committee, legal
aid committee etc.
 Manage the funds of the Bar Council.
 Conduct the election for electing the members of the State Bar Council.

 Prepare legal aid programmers and allot separate funds for the implementation of such
schemes.
 Prepare Schemes for helping the poor Advocates and allot separate funds for the
implementation of such schemes.
 Grant recognition to the law colleges.
 Do all other acts which are necessary for the effective implementation of the
above said functions.
BAR COUNCIL OF INDIA

The following persons are the members of the Bar Council of India.
 One member from each State Bar Councils. He will be elected by the members of the
respective State Bar Councils.
 Attorney General of India-Ex Officio member.
 Solicitor General of India-Ex officio member.
Ex-officio members will continue as members so long as they hold the offices of Attorney
General and Solicitor General posts. The other members will continue as members so long
they are continuing as members of the State Bar Council.

Bar Council of India is empowered with the following powers.

 It is a body corporate.
 It is legal persons having the autonomous status.
 It has a common seal and perpetual succession.
 It can do the following things in its own name. Buying and selling properties, entering
into agreements, Filing cases etc.
 Transfer the name of the Advocate from one state roll to another state roll on his
application.
 It can constitute executive committee, disciplinary committee, legal aid committee
etc.
 To hear and decide appeal, review and revision against the orders of the
disciplinary committee of the State Bar Council.
 Frame rules relating to day to day administration.

Section 7 of the Advocates Act empowers the Bar Council of India to perform the following
functions.

 Frame the rules relating to the professional ethics.

 Frame the rules of procedure to be followed by the disciplinary committee of the State
Bar Councils and the Bar Council of India.
 Protect the rights and the privileges of the Advocates.
 Encourage legal reforms.
 Decide the repute relating to professional misconduct which is transferred from the
disciplinary committee of the State Bar Council to the Bar Council of India.
 Decide the appeal against the disciplinary committee of the State Bar Council.
 Supervise the functions of the State Bar Council.
 Prescribe the syllabus of the law course in consultation with the State Bar Councils
and the universities.
 Inspect the universities for the purpose of giving recognition to the law degrees of the
universities.
 Spend the Funds of the Bar Council of India for the proper purposes.
 Conduct elections for the purpose of electing its members.
 Allow the persons studied abroad to practice in India.
QUALIFICATION PRESCRIBED FOR ENROLMENT

Section 24 of the Advocates Act prescribes the following qualifications for a person to enroll
as an Advocate.

 He must be a citizen of India.

 He must have completed 21 years of age.
 He must have passed 3 years law course (regular study from the university after
graduation) or 5 years integrated Law course after 10 +2. If the law degree is from
any Foreign University then it must be a recognized degree, for the Advocates Act by
the Bar Council of India.
 He should pay an enrolment fee as may be prescribed by the State Bar Council.
 He must fulfill such other conditions as may be prescribed by the State Bar Council.

Disqualification of Enrolment

The following persons are disqualified to enroll as an Advocate (S.24A).

 A person convicted for an offence involving moral turpitude.

 A person convicted for an offence under untouchability (offences) Act, 1955.
 A person dismissed or removed from government service on any charge involving
moral turpitude.

The disqualification ceases to have effect after the period of two years of his release from jail
or dismissal from service. There is no disqualification for a person found guilty in the above
said cases and who has been given benefit under the provisions of the Probation of Offenders
Act, 1958.If an application for the enrolment is refused on any one of the above grounds of
disqualification, the State bar Council has intimate that fact stating the name, address, reasons
for refusal to all other State Bar Councils, thereby he shall be prevented from applying to the
other State Bar Councils for Enrolment. A person cannot be permitted to carry on other
profession along with legal profession. So, a person with a law degree is carrying on the other
profession is disqualified to enroll as an Advocate.1 A full time salaried law officer is not
entitled to enroll as an Advocate. 2

SENIOR ADVOCATE

S.16 of the Advocates Act classifies the Advocates into two types namely, Senior Advocates
and other Advocates. The Supreme Court or a High Court shall designate an Advocate with
his consent, as Senior Advocate, if the court is of the opinion that by virtue of his ability,
standing at the Bar or special knowledge or experience in the law, he deserves such
distinction. It is a honour and privilege conferred on an Advocate. By virtue of the pre-
eminence which a senior Advocate enjoys in the profession, they carry the greatest
responsibilities and they should act as a model to the junior members of the profession. A
senior Advocate more or less occupies a position like a Queen’s Counsel in England next
after the Attorney General, the Solicitor General and the State Advocate General.

1
Hani Raj L.Chulani V. Bar council of Maharashtra at P 66
2
Sathish Kumar Sharma V. Bar Council of Himachal Pradesh (AIR 2001 SC 509).
Order-iv Rule-2 regarding the 1966 deals with the rules regarding the designating an
Advocate as an Senior Advocate in the Supreme Court and their conditions of practice. Each
High court has framed their own rules of procedures for designating an Advocate as Senior
Advocate.

The Bar Council of India has prescribed the following restrictions in the matter of practice of
a Senior Advocate.
 A senior Advocate shall not file a vakalatnama or a memo of appearance or pleading
or application in any court or tribunal or before any person or authority mentioned in
S.30 of the Act.
 A Senior Advocate in the Supreme Court shall not appear without an Advocate on
record in the Supreme Court.
 A Senior Advocate in the High Court shall not appear Without an Advocate of the
state roll.
 He shall not accept instructions to draft pleading or affidavits, or to do any drafting
work of an analogous nature.
 He shall not undertake conveyancing work of any kind what so ever.
 He shall not directly accept a case from a client or instructions from his client to
appear in any court or tribunal.
 He is free to make concessions or give undertakings in course of arguments on behalf
of his client on instructions from the junior Advocate.

When an Advocate is designated as a Senior Advocate, the registrar of the Supreme court or
the High court, as the case may be, shall communicate it to all the High courts and the
secretary to the State Bar Council and the Bar Council of India. In the communication, the
Name of the Advocate and the date on which he was designated as the Senior Advocate
should be mentioned.

ADVOCATE ON RECORD

The Supreme Court rules of practice classifies the Advocates into three categories. They are
(i)Ordinary Advocates (ii) Senior Advocates (iii) Advocates on Record.

An Advocate should have the following qualifications to become as an Advocate on Record.

 He must have completed 4 years of service as Advocate.
 In addition to the four years of Service as Advocate he should work for one year with
an Advocate on Record, who has more than 10 years of service.
 He should pass the Advocate on Record test conducted by the Supreme Court.

The test will be conducted on the following four subjects for hundred marks each namely
(i)Supreme Court Rules of practice and procedures, (ii) Drafting and Pleading (iii)
Accountancy for the lawyers and (iv) Leading cases. To pass this test one should get
minimum 50% in each subjects and in aggregate minimum 60%. ie. Totally 240 marks.
The Successful Advocates will be recognized as Advocate on Record by the Supreme Court
and their name will be entered in a separate register maintained for this purpose. Only
Advocates on Record alone is entitled to file cases in the Supreme Court. Every year they
should submit their annual income and expenditure account to the Supreme Court.If an
Advocate on Record is selected as the Senior Advocate then his name will be removed from
the register of the Advocate on Record and will be put in the register of the Senior Advocate.
ADVOCATES ROLL

According to S.17 of the Advocates Act, every State Bar Council shall prepare and maintain
a roll of Advocates. It shall contain two parts. First part containing the list of Senior
Advocates and the second part containing the other Advocates. When more than one
Advocate is enrolled in a single day, based on their seniority in age their name will be entered
in order.In the Advocates roll the following details should be mentioned.The name, Date of
Birth, Permanent address, details about his education, The place where he is interested to
practice etc.

A person cannot enroll himself as an Advocate in more than one Bar Council. A person
whose name is registered in one state Roll can transfer his name in other State Roll on
genuine grounds by an application to the Bar Council of India. If there is no genuine reason
for transfer or any disciplinary proceedings are pendings against him then transfer application
will be rejected. The State Bar Council should send an authenticated copy of the Advocates
Roll whenever the new Advocates are included or names are removed from the roll.

AMICUS CURIAE

Amicus Curiae means ‘friend of the court’. He is the person who is voluntarily or on an
invitation of the court gives his opinion to the Court on a question of law in which the court is
doubtful. Amicus Curiae is not an Advocate retained by any of the parties to the dispute. He
is altogether a stranger to the case. By virtue of his standing in the profession and the
Experience in the particular field of law the court may request to give his opinion on a
particular issue .His views are only an information or a suggestion to the court. An amicus
curiae can express his views only with the leave of the court. Normally he is not entitled to
any remuneration of such work.

Privilege means special kind of right. An Advocate being the officer of the court and
belonging to the noble profession enjoys certain privileges inside and outside the court. The
practice of law itself is a privilege conferred on lawyers. It is not open to anyone who wishes
to practice law, only lawyers alone can practice law. Following are some of the privileges.
 A Lawyer has the privilege to represent his clients in the court and tribunals.
 A lawyer while going to the court to attend the case or while returning from the court
is exempted from arrest under civil process.
 A lawyer has a privilege of becoming judge, Attorney general, Solicitor General,
Advocate General and government councils.
 Since he is fighting for the justice, he is respected next to God.
PANCHSHEEL OF THE BAR

Panchsheel refers to the following five qualities. They are (i) Honesty (ii) industry (iii) justice
(iv) Service and (v) Philosophy.
 Honesty.
 Industry.

 Justice: An Advocate is as an Officer of the High Court. He should help the Judge in
finding out the truth in the dispute, and help him to arrive the right decision. For this
purpose he shall submit the proper position of the law, facts and evidence related to
the case. An Advocate has to protect the interest of the client, but at the same time he
must Realize that he is not the mere mouth piece of the client. Therefore, he shall
never resort to unfair the practices. His efforts should be always to advance the cause
of the justice.

 Service: Legal profession mainly concerned with the promotion of administration of

justice and the establishment of the welfare society. Therefore, Lawyers shall be
willing to protect the right of the oppressed and the poor. They shall render their
service to the general public without any discrimination.

 Philosophy: Lawyers should have some Philosophical outlook. An Advocate has to

deal with the variety of disputes both favourable and unfavourable to his client. So, he
should have the required mental fitness to adjust and accommodate with the changes.
It is therefore necessary that lawyers should be guided by some philosophical
principles suitable to the profession.

Ten Commandments Advocates

The various duties of an Advocate like duties to the client, duties to the court, duties to the
colleagues and duties to the public shall be put into the following ten rules popularly known
as the ten Commandments of Advocates.

 Protection of the interest of the client: An Advocate must be loyal to the interests of
the client and fight for his cause without the fear of any unpleasant consequence to
him or any other person (see duty to the client).
 Proper Estimation of the value of the Legal Advise: An Advocate shall not over
estimate or under estimate the value of his advice. He must always give proper legal
advice to the client.
 Honest and Respect: He must be always honest and respectful to the court.
 Preparation of the case: He must prepare the case thoroughly before presenting it to
the court.
 Service: Lawyers shall be willing to protect the rights of the oppressed and the poor.
 Loyalty to Law and Justice: He must always give advise to enhance loyalty to law and
justice.
 Fellowship: He must be always friendly with the fellow- members of the Bar and
more friendly with the young lawyers and encourage them.

 Fairness: He must be fair in his dealings with the client, with the court and with the
 public.
 Systematic Study: He must develop the habit of systematic study of the law and
acquainted with the latest developments in Law.

 Prudence and Diligence: He must always vigilant and active. He must avoid the easy
come and easy-go method.

Darwin’s Theory in Legal Profession

Darwin’s theory is that ‘Survival of the Fittest’. It means that only fit person will survive and
others cannot survive in this world. This theory very much implies to the legal person also. It
is true that only professionally fit person alone can survive in the legal profession and others
cannot survive. Though every lawyer is entering the profession, only very few of them
continue in the legal profession, and others leave the profession in the middle.

One can survive in the legal profession, only he acquires the good qualities of Advocacy,
immediately after joining the profession. If he fails to do so, he will compelled to leave the
profession when others lawyers who possess the qualities of Advocacy are leading in the
profession. So one should keep it in mind and act accordingly to get the good qualities of
Advocacy.

Meaning of Professional Ethics

The word ‘ethics’ derived from the Greek word ‘ethos’. It means the habitual mode of
conduct Professional ethics means a conduct written or unwritten which prescribes the duties
of a profession (legal Profession).

The legal Profession and the judiciary as a whole in all countries have been honoured as the
‘pure fountain of justice’ and enjoy high esteem of respect. In order to maintain the respect,
lawyers have to follow certain ethical regulations.

S.49 (I) (C) of the Advocates Act, 1961 empowers the bar council of India to make rules
prescribing the standards of professional conduct and etiquette to be observed by the
advocates. The rules made by the Bar council shall come into effect only when it is approved
by the Chief justice of India.

In exercise of this rule making power the Bar Council of India has made several rules
prescribing the standards of professional conduct and etiquette for the advocates. These rules
specify the duties of an Advocate to the court, client, opponent and colleagues etc. These
rules are broadly called as professional ethics.

Meaning of Term Etiquette

The term etiquette is slightly different from the term ethics. It refers to the pattern of behavior
and the mode in which the person is required to conduct himself. It springs from the long
habit and custom. Etiquette consists of the following elements namely, elegance, dignity and
decency. The legal profession observes these things as etiquette. In order to protect the
dignity of the profession the members must observe the etiquette very strictly. The etiquette
requires that an Advocate should behave himself as an officer of the court, a privileged
member of the community and a gentleman.
Duty to the Court

In the administration of the justice, the role of the advocate is to help the court to take a right
decision in the dispute. While performing this job, an Advocate is duty bound to perform
certain duties to the court. Following are duties prescribed by the Bar Council rules as duty to
the court, which should be observed by the Advocates.

 An Advocate shall show the due respect to the court and shall never act in any manner
to undermine the confidence in the judiciary.
 He shall not exert or attempt to exert any personal influence on the decision of the
court, nor shall give any impression that he possesses personal influence with the
judge before whom he normally practices.
 He shall be always punctual in attending courts in the prescribed dress.
 He shall be fair and frank in the court proceedings.
 He shall not include any fact which he knows to be false in the pleadings, petitions or
affidavits.
 He shall not ask for any adjournment of a case without genuine reasons.

 He shall not communicate privately with the judges to influence them relating to any
pending case.
 He shall not speak ill of judges or use abusive remarks about them. But, if the judge
behaves improperly, it is not only the right but also his duty to report it to the proper
authorities.
 He shall not interrupt when the counsel for the otherside or the judge is speaking.
 He shall appear in the court in the prescribed dress and his appearances shall always
be presentable. He shall not wear bands or gown in the public places.
 He shall not practice before a judge if he is related to him.
 He shall not act or plead in any matter in which he is pecuniarily (monetary)
interested.
 He shall not appear for any organization, institution, society or corporation if he is the
member of the executive committee of such organization, institution, society or
corporation.

Duty to Clients (Rule 11-33)

A client is entrusting a case with an Advocate because of his trust and confidence on him. In
order to honour this trust and confidence the Bar Council of India rules 11-33 prescribes the
following duties as duty to the client.
 An Advocate is bound to accept a case in the courts or tribunals where he is normally
practicing.
 He shall not withdraw from a case which he has already accepted without sufficient
reasons. He shall not withdraw from the case merely because his fees have not been
paid in full. He shall withdraw from the case only after giving a reasonable notice to
his client. After his withdrawal he must refund such part of the fees which is in excess
in his hand.
 He shall not accept a case in which he has reason to believe that he will be called as
witness. If he already engaged in a case in which he is called as a witness then he
should return the case. But, if his retirement will cause irreparable loss to the client
 then he can continue to appear as a lawyer.

 He must make full and frank disclosures to his client relating to his connection with
the parties and his interest in the controversy which may likely to affect his client’s
interest.
 He should fearlessly uphold the interest of his client by fair and honorable means
without the fear of any pleasant consequences to himself or to any other person. He
shall not refuse to appear for an accused person merely because in his personal
opinion the accused has committed the offence.
 An Advocate appearing as a prosecution counsel shall be fair and shall not conduct
the prosecution with hostility to the accused to secure conviction. He should not
obstruct the defence counsel in placing the relevant material evidence to prove the
innocence of the accused.
 He shall not disclose any matter communicated to him in his professional capacity to
any other person without the consent of his client.

 He shall not be a party to fomenting of litigation.

 He should act at the instructions of his client and not at the instruction of any other
person.
 He shall not stipulate a fee depending on the success of the case or agree to share the
proceeds of the litigation.
 He shall not buy or agree to share the interest of the litigation.
 He shall not directly or indirectly bid or purchase in his own name or in any other
name any property sold in execution of a decree in which he was engaged as a lawyer.
 He shall not adjust fees payable to him by his client against his own personal liability
to the client.
 He shall not do anything whereby he abuses or takes advantage of the confidence
reposed in him by the client.
 He should keep regular accounts of the clients money entrusted to him. The account
should show the particulars of the amount received from the client and the expenses
incurred for him.
 He should maintain separate accounts for the amount received for the fees and for the
expenses. The amount received for the expenses shall not be converted for fees
without the consent of the client.
 Where any amount received on behalf of the client (either from the court or from any
other person) it should be intimated to the client as early as possible.
 After the proceedings are over, he shall take the settled fee from the client’s money in
his hand and the balance, if any should be returned to the client.
 If the Advocates fee is left unsettled, he shall take a reasonable fee from the client’s
money in his hand, after the proceedings are over.
 A copy of the clients account shall be furnished to him on demand.

 He shall not convert the client’s money in his hand as loan given to him by the client.
 He shall not lend money to his client for the purpose of any legal proceeding in which
he is engaged as the lawyer. But, any amount given to his client in an unanticipated
emergency shall not be treated as beach of this duty.
 An Advocate who has advised or prepared the pleadings or appeared for a party in
any suit or appeal shall not act, appear or plead for the opposite party.
In addition to the above duties prescribed by the Bar Council of India an Advocate is
expected to perform the following duties also to the client.
 He shall give advice to his client honestly and in good faith.
 He shall prepare the case with due care and skill.
 He shall submit all relevant documents before the court in support of the claim of his
client.
 He should attend the court on every day fixed for hearing of his client’s case.
 He should return the whole fees received from his client, if he is not in a position to
conduct the case.

Lawyers Duty To Opponent Party(Rule 34-35)

Rule 34 &35 deals with the duties of an Advocate to the opponent party. They are as
follows.

 Rule 34 provides that an Advocate shall not in any way communicate or negotiate
upon the subject matter of dispute with the opposite party directly. For any reasons, If
we want to communicate anything then it should be done through his Advocate.
 Rule 35 provides that an Advocate shall do his best to carry out all legitimate
promises made to the opposite party. Even if such promises are not in writing or not
enforceable under the rules of the court, he must try his level best to perform his
promises.
 He shall not use unfair and malicious tactics against the opponents.
 He shall not abuse the rules of evidence and the process of the court in order to injure
the opponent.
 He shall not make baseless attacks on the reputation of the opponent or his
witness or unduly harass them.
 He may make concessions to the convenience of the opponent and his lawyer in fixing
the date of trial.

Duty to profession (rule 36-40)

Every Advocate owes an obligation to uplift the profession to which he belongs. He must
avoid, any conduct that may lead to lower the standards of the profession. He shall never
forget that he belongs to the noble profession. Following are some of his important duties to
the profession. These duties are incorporated with the intention of raising the standards of the
profession.

 An Advocate shall not speak ill of the profession. He should conduct himself in such a
way to enhance respect, sympathy and good feeling between the members of the
profession and strive to maintain the honour and dignity of the profession.
 He shall not discuss in the newspapers any pending case or appeal.
 He shall not in any way solicit cases by advertisement or otherwise.
 He shall not act or plead in his professional capacity before any officer of the state not
exercising judicial or quasi-judicial powers.
 He shall not appoint intermediaries for procuring cases and divide the fees between
them or pay commission to them for such work.
  He shall not entertain or show any undue hospitality to any particular judge.
 He shall not place himself in the situation which may be unbecoming of a member of
the bar.
 He shall not oppose the desire of his client for additional professional help or
assistance from other lawyers also.
 He must appear in robes in the court proceedings. He shall not wear robes or gown in
public places except on ceremonial occasion.
 He shall not act as a managing Director or a secretary of a company without the leave
of the Bar Council.
 He shall not work as a full time salaried employee.
 He shall not do any other business. An advocate who inherits any family business
may continue it, but he should not personally participate in the management of the
business.

Duty to Render Legal Aid

Justice is a great interest of man on earth and the lawyer is the high priest in the shrine of
justice. The quality of justice, to a great extent, depends on the moral quality, integrity and
fairness of the lawyers. To develop their moral qualities, the lawyers must actively participate
in the legal and aid programs and give free legal services to the poor and the needy people.
This is one of the important duty an Advocate owes to the society. If a lawyer personally
knows that his client is unable to pay because of poverty then he must represent the case
without demanding any fees from him.

Similarly, when the court appoints a lawyer to defend an accused, it is his moral obligation to
accept such order and discharge his duties towards the court and the accused by the best use
of his knowledge and ability. Lawyers shall co-operate and actively participate in joining
hands with the local area legal services Authorities in organizing Lok Adalats and Legal Aid
programs and conciliation proceedings.

Restriction on other Employments

Bar council of India Rule-40 restricts the Advocates not to personally engage in any other
business other than the legal profession. The reason for this restriction is that he should fully
concentrate in the legal profession and elevate it to the high stand . If he is allowed to do
other business then that may lower down the standard of this profession.

If he join as a full time salaried employee either in the Government or in the private sector he
must request the Bar Council to remove his name from the Advocates Roll. Though there is
general restriction on other employment, there is no restriction for engaging himself in the
following works. He can be a Sleeping partner in a business, if in the opinion of the State Bar
Council that business is not inconsistent with the profession.

 An Advocate who has inherited a family business shall continue it, but he shall not
personally participate in the management of the business.
 He shall engage himself in writing Law Books.
 He shall join as a part-time Law Teacher or any other part –time job which may not
be inconsistent with the legal profession. The part-time job should not exceed more
 than 3 hours in a day.
 He shall prepare question papers for the Exams.
 He shall review parliamentary Bill for a remuneration.
 He shall act as a member of the parliament or Member of the State Assembly.
 He shall study Post Graduate course in Law without suspending his practice.
 An Advocate who is engaged in other business shall be punished for professional
misconduct

Duty to Self

Legal profession is the noble profession. The degree of standard expected from the lawyer
with respect to his knowledge, skill and ability is so high. So, an Advocate should follow the
following duties as duty to self.

 An Advocate must develop the habit of systematic study of law and acquire up-to-
date knowledge in law.
 He shall exercise prudence, diligence and judiciousness in all his activities.
 He shall never be a party to anything which he known to be wrong.
 He shall not stir up litigations.
 He should discourage vexations (groundless) litigation.
 He shall encourage compromise between the parties.
 He shall not indulge in any act which amounts to professional misconduct.
 He should not do any act which amounts to contempt of the court.
 He must be fair and honest in his dealings.

In order to maintain good relation among the members of the Bar, an Advocate has to
perform the following duties to colleagues.

 An Advocate shall not enter appearance in any case in which there is already an
Advocate.
 He shall not in any way solicit cases by advertisement or otherwise.
 He shall not allow his name to be used by some other person for unauthorized practice
of law.
 He shall not accept a fee less than the fee chargeable under law.

Restriction on Advertisement

Rule 36 of Bar Council of India restricts the Advocates not to advertise about the profession.
This restriction is imposed because Advocate profession is the noble profession. Due to this
restriction Advocates are banned to do the following things.
 Directly or indirectly advertise about their profession.
 Publishing his photo along the news regarding his appearance in a case.
 Circulation of pamphlets or giving advertisement with a view of soliciting case.
 His name board should be small and in prescribed size. In the name board the
following matters should not be mentioned.
 Information relating to his membership in Bar Council or post in the Bar Association.
 Information about the specialization in a particular branch of law.
  Information about Ex-Judicial Officer or Ex-Government Advocate.
 Information about his membership in other associations.

Making advertisement against the above said restrictions will be treated as professional
misconduct.

Refusing to Accept a Case

An Advocate shall not refuse to accept a case, if the client asks to file or defend a case in a
court or a tribunal where he normally practices. This is one of the important duties to the
client. But in the following situations he can refuse to accept a case.

 If he has reasons to believe that he may be called as witness in the case.

 If he has already given the advice or prepared the pleadings for the opposite party.
 If he is physically disabled from appearing.
 When he may not be available to present the case in the court.
 Where he confines his practice in some courts only.

Professional Misconduct

Misconduct means dereliction of duty. Professional misconduct means dereliction of duty

relating to Legal profession. Under S.35 of the Advocates Act, An Advocate is punishable
not only for professional misconduct but also for other misconduct. Other misconduct means
misconduct not directly connected with the legal profession. Professional misconduct arises
as a result of serious dereliction of duties to the court, to the client, to the opponent, to the
colleagues, to the profession, to the public etc. Following are some of the instances of
professional misconduct.

 Making false allegation against judicial officers.

 Deliberately lodging groundless criminal complaint.
 Making groundless and insulting charges against witness.
 Refusing to accept a case without justification.
 Attending court proceedings in drunken state.
 Attempting to influence judicial officers for favour.
 Carrying on other trade or business.
 Committing crimes.
 Financing litigation.
 Obtaining client’s signature on blank papers.
 Shouting slogans or holding demonstration in front of the court.
 Approaching investigative officers for favour during investigation of a case.
 Writing letter to the presiding officer in connection with the pending case.
 Tampering with the witness.
 Suggesting the client to bribe the presiding officer.
 Moving application before any court or authority before informing that a similar
application has been presented before any authority or rejected by any authority.
 An exclusively retained pleader accepting a case against the client from the opposite
party.
 Failure to appear in the proceedings of a case without any sufficient reason.
  Retaining the judgment of the trial court with the intention of getting himself getting
himself engaged in appeal.

 Presenting the plaint with in sufficient court fee stamp, when the client has given
money for the court fee.
 Alleging partiality against presiding officer in open court.
 Tampering with records and documents.
 Writing letters to persons for soliciting cases.
 Reporting no instructions from his client and subsequently appearing for the opposite
party in the same suit.
 Advertising about his profession.
 Taking advantage of the ignorance and illiteracy of the clients, demanding money
from them on false representations that is required for court purposes and
misappropriating the same.
 Misappropriation of decreed amount payable to the client.
 Giving wrong advice to the client.
 Taking money from the client for the purpose of giving bribe.
 Suppression of truth.
 Changing sides.
 Indecent cross examination.
 Committing contempt of court.
 False identifications of deponents.
 Gross negligence involving moral turpitude.
 Appearing without authority ie. On forged vakalat.
 Failure to attend the trial.
 Attesting forged affidavit.
 Abstaining from appearing in court on the ground of strike called by the Bar
association.
 Misleading the court resulting in erroneous order.

Punishment for Misconduct

The Disciplinary committee of the State Bar Council after hearing the Advocate concerned
and the Advocate general comes to the conclusion that the misconduct is proved that it may
pass any of the following orders, namely
(i) Reprimand the Advocate.
(ii) Suspend the Advocate from the practice for such period as it thinks fit.
(iii) Remove the name of the Advocate from the Advocates Roll.

Punishment may be awarded depending on the gravity of misconduct established against

him. The punishment to remove from the Advocates Roll is awarded only in the cases where
the misconduct is of such nature that the Advocate is unworthy of remaining in the
profession.

Where an Advocate is suspended from the practice he shall not practice in any court or
tribunal or any authority or person during the suspended period. Where notice is issued to the
Advocate general, he may appear before the disciplinary committee in person or through any
Advocate appearing on his behalf. If the misconduct is not proved beyond reasonable doubt
then the disciplinary committee shall dismiss the petition.
Remedies against the order of punishment

Appeal to the Bar council of India (s 37): Any person aggrieved by the order of the
disciplinary committee of the State Bar Council, or the Advocate general of the State may
within 60 days from the date of the order may prefer an appeal to the Bar Council of India.

The appeal shall be filed in person or through by Advocate or by registered post. He must
submit 5 copies of appeal memorandum along with the attested copy of the order of the State
Bar Council. Such appeal shall be heard by the disciplinary committee of the Bar Council of
India and after hearing it may pass any order it deems fit ie., it can confirm. The order of the
State Bar Council, or increase or reduce the punishment, or totally remove the punishment.

Appeal to the Supreme Court : Any person aggrieved by an order made by the Disciplinary
committee of the Bar Council of India, or the Attorney General of India may within 60 days
from the date of order prefer an appeal to the Supreme court. The Supreme Court after
hearing the parties concerned shall pass any order as it thinks fit. Normally, the Supreme
court will not interfere with the concurrent findings of fact by the disciplinary committee of
the Bar Council of India and the State Bar Council. If the finding is based on no evidence
then the court will examine it.

Stay of the order: For the convenience of filing an appeal against the order of the State Bar
Council or the Bar Council of India, the aggrieved party can file an application before the
concerned Bar Council which has passed the order to stay the order still appeal is filed. If
genuine grounds are there then the concerned Bar Council can stay the order. Similarly, after
filing the appeal before the Bar council of India or before the Supreme Court the aggrieved
party can ask for the stay of the order still the disposal of the appeal. If the genuine grounds
are there then the Bar Council or Supreme Court shall stay the order still the disposal of the
appeal.

Review of its own order by the State Bar Council

According to S.44, the Disciplinary committee of a State Bar council is empowered to review
its own order either on its own motion or an application by the aggrieved party within 60
days from the date of order. In the review proceedings also the State Bar council will hear the
concerned parties before making any order.

Any order passed in review by the disciplinary committee of the state Bar Council shall have
effect only when it is approved by the Bar Council of India. The Disciplinary committee of
the Bar Council of India has no power to review its own order (S.48 AA).
Disciplinary Committee of the State Bar Council

Organisation: S.9 of the Advocates Act empowers the state Bar Councils to constitute one or
more Disciplinary Committees. Each Disciplinary Committee shall consists of 3
members.Two shall be selected from the members of the Bar Council and one shall be
selected from the Advocates who are having more than 10 years of standing in profession.
Among the three members the senior most in the profession shall act as the chairman of the
committee.

Powers : S.42 of the Advocates Act deals with the power of Disciplinary committee. It
provides that the Disciplinary Committee of the State Bar Council shall have the same
powers same like the civil court under the C.P.C. in respect of the following matters.
 Summoning and enforcing the attendence of any person and examining
him on oath.
 Requiring discovery and production of any documents.
 Receiving evidence on affidavit.
 Requiring any public record or copies of any record from any court or office.
 Issuing commissions for the examinations of witness or documents.

The disciplinary committee has no right to require the attendance of the following persons.
(i) Any presiding officer of the court.
(ii) Any officer of the revenue court.

A presiding officer of a court shall be summoned to attend the proceedings of the

Disciplinary Committee with permission of the High Court and an officer of the revenue
court shall be summoned with the permission of the State Govt.

All the proceedings before the Disciplinary Committee of a Bar Council shall be deemed to a
judicial proceedings within the meaning of S.193 & 228 of I.P.C and every such disciplinary
Committee shall be deemed to be a civil court.

Enquiry Procedure: The main function of the Disciplinary Committee of the Bar Council is to
enquire the complaints of professional misconduct against the Advocates award
suitable punishments. In the enquiry the following procedures prescribe under S.35 of the
Advocates Act should be followed.

 On perusal of the complaint, if the Bar council is satisfied that it is a fit case for
enquiry then the complaint shall be referred for enquiry to the Disciplinary
Committee.
 The Disciplinary Committee shall fix a date for enquiry and shall send notice to the
concerned Advocate and the Advocate General of the State.
 The Advocate charged with the professional misconduct shall appear in person or
through the Lawyer. Similarly, the Advocate general also appear in person or through
a lawyer.
 The Disciplinary Committee should complete the enquiry proceedings within one year
from the date of receipt of the complaint. Due to any reason, if the enquiry was not
completed within one year then the complaint should be referred to the Bar Council of
 India for its disposal.

 During the pendency of the enquiry if the term of the Disciplinary Committee comes
to an end then the successor committee shall continue the enquiry.
 After the enquiry due to the lack of majority opinion or otherwise if the Disciplinary
Committee was unable to take a final decision then they shall seek the opinion of the
chairman of the bar council and shall pass the final order following his opinion.

Organisation: Same as the Disciplinary committee of the State Bar Council .The Disciplinary
Committee of the Bar Council of India shall having the following powers.
 It shall enquire the charges of the professional misconduct against Advocates whose
name is there in the roll of any of the State Bar Council.
 Enquire the complaints in which the Disciplinary Committee of the State Bar Council
has not completed the enquiry within one year from the date of receipt of the
complaint.
 Hear the appeal against the order of the State Bar Council.
 Allowing the State Bar Council to review its own order.

Just like the Disciplinary Committee of the State Bar Council, the Bar Council of India
Disciplinary committee is also having powers like a civil court.Transfer of proceedings from
the State Bar Council to the Bar Council of India.If the State Bar Council after verification is
satisfied that the charges of professional misconduct is a fit case for enquiry then it shall refer
it to the Disciplinary Committee for the enquiry.

The Disciplinary Committee must complete the enquiry proceedings within one year from the
date of receipt. The main object of putting a time bound enquiry is speedy disposal of the
cases. Due to any reason, if the enquiry was not completed within a year then the complaint
should be transferred to the Bar Council of India for enquiry. The transfer should be made by
the suo-moto by the State Bar Council (S.36 B).The complaints so transferred shall be
enquired by the Disciplinary Committee of the Bar Council of India and pass suitable orders
as it thinks fit. There is no time limit for the Bar Council of India to complete the enquiry.

Advocates Welfare Fund

Rule 44-A provides for the creation of Advocates Welfare Committee both in the Bar Council
of India and in the State Bar Councils. The Bar Council of India Advocates Welfare
committee shall consist of 5 members, elected from among the members of the Bar Council
of India. The State Bar Council Advocates Welfare committee shall consist of 2 members
elected from the State bar Council and the Bar Council of India member from the State shall
act as ex-officio secretary. These committee shall implement the welfare schemes approved
by the Bar Council of India to the Advocates.Every Advocate shall pay a sum of rupees
decided by the Bar Council as subscription. All the amount so collected by the State Bar
Council shall be remitted in a separate account known as “Advocates Welfare Fund”
maintained in a nationalized Bank. The amount shall be utilized for the welfare of the
Advocates.If any Advocate fails of pay his subscription within the prescribed time, the
secretary of the State Bar Council shall issue a notice to him to show cause, within a month
why his name may not be suspended from the Advocates roll. If the Advocate pay the amount
together with a late fee of Rs. 5 per month subject to a maximum of Rs.30/- within the period
specified in the notice, the proceedings against him shall be dropped.

If the Advocate does not pay the amount or fails to show sufficient cause, a committee of 3
members constituted by the State Bar Council in this behalf, shall decide the matter and pass
suitable orders.

Tamilnadu Advocates Welfare Fund

Tamilnadu Advocates Welfare fund Act,1987 empowers the state Bar Council to create a
fund called Tamilnadu Advocates Welfare Fund. This fund is different from the fund which
every state Bar Council creates under S.44(A) of the Advocates Act.

Membership : Persons enrolled as an Advocate in the Tamil Nadu Bar Council and a member
in any one of the recognized Bar Association in Tamil Nadu shall become as a member in
this fund.

Subscription: For getting the benefits from this fund one has to pay the following
subscription.
 Entry fee of Rs.200/- (one time payment) at the time of Joining.
 The annual subscription for those who are having less than 10 years of standing is Rs.
200/-
 The Annual Subscription for those who are having less than 20 years of standing is
Rs. 100/-
 Life membership fee for senior Advocates is Rs. 10,000/- for others Rs. 2000/-
 In the vakalat and other documents filed in the court 5 rupees Advocates Welfare
Fund Stamp should be pasted. The amount so collected will be remitted in this fund.

Benefits: For the members of this fund following benefits will be given.

 Those who are members in this fund for minimum 5 years, if retires from the
profession, will be paid pension as per the Schedule attached in this Act.

 If the member dies his nominee is entitled for Rs. One lakh. If the diseased member is
receiving pension either from Government or from other Organisation then this
benefit will not be given.
 CHAPTER- 3

BAR BENCH RERLATIONS CONTEMPT OF COURT

Object of the Act: The main object of the contempt of court Act is to protect the dignity
and decorum of the court and to uphold the majesty of law. The object is not to protect
the judges from criticism. By providing punishment for contempt of the court the
ability to deliver fearless and impartial justice is strengthened.
Definition: The definition given in the Act for the term contempt of court is not
exhaustive. it is difficult to define it by words, because the scope of contempt of court is
very wide. Contempt means
(i)Any disrespect to the authority of law.
(ii) Disobedience of the order of the court.
(iii) Disturbance to the proceedings of the court.
Types: Following are the types of contempt (i) Civil contempt and(ii)Criminal contempt.

Civil contempt
S.2(b)defines the term civil contempt. It means (i)Willful disobedience to any
judgement, decree, direction,order,writ or other process of a court;or(ii)Willful breach of
an undertaking given to a court.For taking action for civil contempt on the ground of
willful disobedience of court order, it should established that the court which has passed
the order has jurisdiction to pass such order. Disobedience of an order passed without
jurisdiction is not a Contempt must prove that the court has no jurisdiction.

A willful breach of an unconditional undertaking given orally or in writing either in

person or through his Advocate will be treated as civil contempt. When undertakings are
given orally , the court shall record it in the proceedings.
Breach of a compromise entered in the court cannot be treated as civil contempt. The
remedy in such cases is only a civil suit for specific performance of the promise.

Punishment: S.12 prescribes the punishment for contempt. court may award any one of
the following punishments.
(i) Simple imprisonment for a term which may extend to 6 months.
 Any disrespect to the authority of law.
 Disobedience of the order of the court.
 Disturbance to the proceedings of the court.
Types: Following are the types of contempt (i) Civil contempt and(ii)Criminal
contempt.
Civil contempt

S.2(b)defines the term `civil contempt ’.It means (i)Willful disobedience to any
judgement, decree, direction, order, writ or other process of a court;or(ii)Willful breach of
an undertaking given to a court.
For taking action for civil contempt on the ground of willful disobedience of court order, it
should be established that the court which has passed the order has jurisdiction to pass such
order. Disobedience of an order passed without jurisdiction is not a Contempt must prove
that the court has no jurisdiction.
A willful breach of an unconditional undertaking given orally or in writing either in person
or through his Advocate will be treated as civil contempt. When undertakings are given
orally , the court shall record it in the proceedings.
Breach of a compromise entered in the court cannot be treated as civil contempt. The
remedy in such cases is only a civil suit for specific performance of the promise.
Punishment: S.12 prescribes the punishment for contempt. court may award any one of the
following punishments.
(i) Simple imprisonment for a term which may extend to 6 months.
(ii) Fine which may extend to Rs.2000/-.
(iii) Both the punishment i.e., Imprisonment and fine together.

Criminal contempt

S.2C defines the term `criminal contempt’. It means

(i) Publication of any matter (by words, spoken or written, or by signs or by visible
representation or otherwise.)
(ii) Doing of any other act 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 judicial
proceeding; or
 Interferes or tends to interfere with, or obstructs or tends to obstruct the
Administration of justice.

Publication means publishing something orally or in writing through newspaper, pamphlets,

radio, television or cinema. Conversation between two persons cannot be treated as
publication.
To decide criminal contempt, the absence of criminal intention on the part of the person who
has published the matter containing criminal contempt or done the act of contempt will not
be taken into account.
In E.M.S.Nambothribad v.T.N.Mambiar3 the then Chief Minister of Kerala,
Mr.Nambothribad in a press meet expressed the following about judiciary. Judiciary is
responsible for the suppression of people. Judges are favouring some class of people and
working against the other classes. Judiciary is acting against the interest of working class and
the agriculturist. judiciary is helping the oppressor group. The Supreme Court held that the
act of Mr. Nambothribad amounts to criminal contempt.
Making complaint against a Judge about his misconduct with sufficient evidence to the
higher authorities is not a contempt. But, the same complaint is published in any manner then
it amounts to contempt.
Preventing the court Amin from executing the court order, Threatening an Advocate not to
appear in a particular case, Threatening the witness, Preventing the witnesses from attending
the courts, Preventing the Commissioner from performing his duties are treated as criminal
contempt.
Punishment: Punishment for the criminal contempt is same like civil contempt.

Punishment for contempt

S.12 Prescribes the punishment for contempt of court. punishment is same for the civil as
well as the criminal contempt. If the charge of contempt of court is proved, the Court shall
award any one of the following punishment.
 Simple imprisonment for a term which may extend to 6 months.
 Fine which may extend to Rs.2000/-.
 Both the punishments ie., imprisonment and fine together.

According to S.12(2),For contempt of court any one of the above mentioned punishment
alone can be given and not any other punishment alone can be given and not any other
punishment. But, in Delhi Judicial Services Association v. State of Gujarat 4the Supreme
Court held punishment not mentioned in S.12 can also be given for contempt of court.
In Re Vinay Chandra Mishra5 the supreme court held that for contempt of court committed by
an Advocate, he shall be suspended from practice for a fixed period or he shall be
permanently restrained from practice.
The Supreme Court Bar Association has filed a review petition against this order. In which
the supreme court held that for contempt of court the court cannot cancel the Advocates right
to practice. But, he shall be suspended from practice for a fixed period.
For the civil contempt, normally fine alone will be imposed. If the court thinks that fine alone
is not a sufficient punishment then he shall be put in the civil prison instead of ordinary
imprisonment.
If the contempt of court is committed by a company in collusion of the Directors, Secretary
and other Managerial staff then shall be detained in the civil prison. If the contempt is
committed by a firm then the punishment shall be enforced against the partners of the firm.
Defences in Criminal Contempt OrCriminal Contempt not Punishable. S.3 to 7 deals with the
3
(AIR 1970 SC 2015)
4
(AIR 1991 SC 2176)
5
(AIR 1995 SC2348)
defences avilable in Criminal Contempt. They are as follows:

 Innocent Publication(S.3): A person shall not be guilty of contempt of court if he

had made any innocent publication of any matter pending before a court without
knowing that the matter is pending a court. The person charge with contempt must
prove that publication is made without knowing that the Matter is pending in the
court.
 Publication Relating to a Decided Case (S.3(2)):Publication about the decided case
is not a contempt since the case is already decided by the court, the publication is not
going to interfere with the disposal of the case. that is why it is not treated as
contempt.
 Distribution of publication without knowing that it contains contempt of court
Matter (S.3(3)): If a person distributes and publication without knowing that it
contains contempt of court matter then it cannot be treated as contempt. If the
publication does not contain the name and address of the Author, publisher and
printer then this defence cannot be used by the person distributing such publications.
 Fair and Accurate Reporting of Judicial Proceedings (S.4): Fair and accurate
reporting of judicial proceedings is not a contempt. This is because we are following
the principle of openness in the matter of administration of justice.
The following reporting of judicial proceedings though it is fair and accurate it will be treated
as contempt of court.
 Reporting of the proceedings against any law which is in force.
 Reporting of the proceedings when the court has prohibited the reporting in the
interest of the general public.
 Reporting of the proceedings conducted in the judges chamber in the interest of
defence of public order.
 Reporting of information relating to secret process, discovery or invention which is
an issue in the case.
 Fair Criticism of Judicial Act(S.5): A proper and fair comment on a decision is not a
contempt of court. Criticism is permitted to the extent where it does not interfere with
the administration of justice. So, it is open to anyone to express fair, reasonable and
legitimate criticism of a judicial decision.

Bonafide Complaint against the Presiding Officers of a subordinate court(S.6): A bonafide

complaint made in good faith against the presiding officer of a subordinate court to the higher
authorities, who have control over such subordinate court, is not a contempt.
No Substantial Interference with the Administration of Justice: It means an act which is
technically a contempt but such act does snot substantially interfere with the administration
of justice. For such acts no punishment is awarded.

Defences in the Civil Contempt or Civil Contempt not Punishable

Following are some of the important defences available to a person charged with civil
contempt.
 Disobedience of the Order is Not Willful: If the disobedience of the order is
accidental or which is not willful then it’s a good defence in a civil contempt
proceedings.
 The Order Passed Without Jurisdiction: If the order passed by the court is without
jurisdiction then the disobedience or violation of such order cannot be treated as
contempt of court.
 An order passed without jurisdiction is void, hence it won’t bind any person. The
person charged with contempt must prove that the court has no jurisdiction to pass
such order.
 Order Disobeyed is Vague or Ambiguous: An order is treated as vague if it is not
clear, specific and complete. For violation of such order contempt proceedings cannot
be taken.
 Order Involves More than One Reasonable Interpretation: If the order of the court
involves more than reasonable interpretation and one interpretation is adopted by the
party and acted in accordance with such interpretation then he cannot be held liable
for contempt of court for not following the order interpretation.
 Compliance with the Order is Impossible: Impossibility means that the
implementation of the order is practically not possible. Impossible is different from
mere difficulty. Mere difficulty is not a defence. The person charged with contempt
must prove the impossibility of compliance with the order. In Amar Singh v.K.P
Geatha Krishnan6the court has passed on order to give some benefits to the retired
employees. This order was not implemented. In the contempt proceeding it was
argued that the implementation of the order involves huge expenditure hence
compliance with the order is impossible.
 No Knowledge of the Order: A person cannot be held liable for civil contempt, if he
has no knowledge about the order. If he has knowledge about the order, through it is
not officially communicated to him, then he cannot put this defence for violation of
the order.

Contempt against Subordinate Court

The Contempt of court Act, 1971 confers power only to the Supreme Court and High Courts
to try the contempt of court and award suitable punishment.
Contempt of court against the subordinate courts shall be tried by the High court. The
concerned subordinate court or the Advocate General of the state shall file the petition before
the High court. In the Union Territories, the officer authorized in this behalf shall file the
petition.
A contempt which comes within the definition of S.228 of I.P.C. shall be tried and punished
by the subordinate courts.
S.228: When judicial proceedings are going on, a person causing disturbance to the
6
(1993,I SCR 465)
proceedings and thereby shows disrespect to the court shall be punished with simple
imprisonment for a term which may extend to 6 months or with a fine which may extend to
Rs.1000/-or with both.
In the trial of such cases the court shall follow the procedure laid down in S.345 & 346 of
Criminal procedure Code. This section deals with summary procedure. So the court shall
follow summary procedure and no detailed enquiry is needed.
Contempt Procedure in the Supreme Court or the High Court

The Contempt of the court Act confers the following two types of powers to the supreme
court and the High courts with regard to contempt of court.

 Power to punish a person who has committed contempt of court inside the court
(S.14).
 Power to punish a person who has committed contempt of court outside the court
(S.15).
1. Contempt of Court Inside the Court: When judicial proceedings are going on, if it appears
to the court that a person is guilty of contempt of court in their presence then the court shall
take the following actions.
 Pass an order to arrest the person.
 Give a notice in writing immediately regarding the charges against him.
 Offered him opportunity to make his defence to the charge.
 Take such evidence as may be necessary or as may be offered by such person and
hear him.
During the trial, if the person charged with contempt applies either orally or in writing, for a
trial by some other judge other than the judge in whose presence the alleged contempt is
committed then the request along with the statement of facts of the alleged contempt shall be
placed before the Chief Justice shall be taken as evidence.
If the case is transferred to some other Judge then the judge in whose presence the alleged
contempt was committed need not appear as witness. The facts submitted by him to the Chief
Justice shall be taken as evidence.
During the pendency of the proceedings, the person charged with contempt shall be detained
in such custody as the court may specify. He may be released on bail with or without sureties
or on a self bond as the court thinks fit.
In Sugdev Singh v. Deeja Singh 7the supreme court has advised that to the extent possible, the
judge in whose presence the alleged contempt was committed, must avoid to conduct the trial
by himself.

7
(AIR 1954 SC 186)
 2. Contempt of Court Outside the Court: The supreme court or the High Court shall take
action for contempt of court committed outside the court in the following situations.
 On its own motion.
 On a petition made by the Advocate General(in relation to the High Court)( or
the Attorney General or the solicitor General(in relation to the Supreme
Court).
 On a petition by any other person(if consent is given in writing to file such
petition by the Advocate General or Attorney General or Solicitor General as
the case may be).

A person cannot file a contempt of court petition without the consent of the Advocate
General or the Attorney General or the Solicitor General. After Admitting a petition the court
shall follow the following procedure.

 Notice shall be sent to the person charged with contempt.

 Person charged with contempt shall be allowed to submit his defence in
an affidavit.
 The trial shall be conducted by persuing the defences submitted by him or
taking such other evidences as may be necessary.
 The trial shall be conducted by a bench consisting of two judges.
 If the court feels that the person charged with contempt may abscond then his
properties shall be attached.

Limitation: The limitation period for filing a petition for contempt of court is one year. After
one year even the court cannot take action on its own motion(s.20).

Contempt by Judicial Officers

S.16 of the Act deals with contempt by judges, Magistrates and other persons acting
Judicially. According to this section these persons are also liable for contempt of his own
court or any other court just like an ordinary individual. If they are not made liable for
contempt then people may lose faith on judiciary by the contempt act of judges.Observation
or remark made by a Judge regarding a subordinate court in an appeal or revision pending
before him shall not be treated as contempt of court.
In State of Rajasthan v.Prakash Chand 8the Supreme Court held that S.16 has no application
against the judges of the High Court and the Supreme Court. So they cannot be punished for
contempt of court.
In B.K.Mishra v.Bhemsen Dixit9 the Supreme Court held that refusal to follow the decision
of the High Court or the Supreme Court by a subordinate court amounts to contempt of court.
8
(AIR 1988 SC 1344)
9
(1973, 1 SCC 446)
No Special Privilege for Advocates: In the contempt of court Act, there is no special privilege
for Advocates. A contempt of court Act, A contempt of court committed by an Advocate will
be dealt with just like a contempt committed by any other person.

Bar Bench Relations

The court hall where cases are conducted consists of two parts namely:
(i) The place where the judges sit is called as Bench
(ii) The place where the Advocate sit is called as Bar.

So the term `Bench’ refers to the judges and the `Bar’ refers to the Advocates. Bar-Bench
relation means the cardial relation between the judges and the Advocates.
The faith on the judiciary to the general public and the speedy justice mainly depends on the
cardial relation between the judges and the Advocates. In the Administration of justice the
role of Advocates are also equally important just like the judges. Rendering justice is their
joint responsibility. Without the help of Advocates, it is very difficult for the judges to
arrive a correct decision in a dispute.
If good relation exists between exists between the judges and Advocates then delay in
rendering justice and high expenses for getting justice can be very much reduced. To
strengthen the good relation both should have some good qualities and mutual
responsibilities.

Role of the Bar to Strengthen Bar-Bench Relation

To strengthen the Bar-Bench relation, the Advocates must take the following steps.
 They should give the due respect to the judges and they must avoid speaking ill of the
judges and the judiciary.
 They should help the judges in the trial of the cases by presenting the relevant law in
the correct and clear manner. They should never act in such away to irritate the
judges.
 If the judges pronounces a wrong order, they should not criticize the judges. They
should try to set right the wrong order through appeal.
 For getting favourable order they should not give pressure or influence the judges.
 If the judges behavior is irritating and disrespect to the Advocates should not enter in
to a direct confrontation with the judge. Through the Bar Association the matter
should be discussed with the judge in his chamber and shall request to avoid such
misbehavior.

Role of the Bench to Strengthen Bar –Bench Relation

Only when Bar-Bench relations are strengthened, people will get confidence and fair on the
Judiciary. To strengthen Bar-Bench relation the Judges should follow and practice the
following.

 Judicial Respect: Just like the Advocates are giving respect to the Judges the Judges
should also give to the Advocates and the brethren Judges.
 Patient Hearing: Judges should hear the case with open and respective mind without
any prejudice or bias. They should act only to the interest of justice. They should give
sufficient opportunity for the Advocates to present the case in full.
 Impartiality: Judges should act impartialy. They should not act in favour of any
Advocate or a party to the dispute.
 Avoidance of Interruptions: As far as possible, Judges must avoid interruptions while
the Advocate is examining witnesses and arguing the case. Unwarranted interference
and adverse comments by the Judges may upset the Advocates and thereby he may
not be able to present the case properly. This may cause the failure of justice.
Interference may be limited to the following circumstances (i) to prevent repetition
and waste of time (ii) to check the relevancy (iii) to get clarifications (iv) to express
courts view on a point and (v) to promote speedy disposal of the case.
 Proper Interpretation: During the process of administration of justice, often the courts
have to interpret the Act, Rules, Orders and Notifications in order to ascertain the
actual meaning of the provisions or to remove the ambiguity or inconsistency. In such
cases proper interpretation should be given with the object of rendering complete
justice to the parties.
 Avoidance of Unreasonable Adjournments: Adjournments are given to afford
reasonable opportunity to the parties to present the case. As far as possible cases shall
not be adjourned without reasonable and sufficient grounds. Unreasonable
adjournment is the main reason for the mounting arrears of cases and it causes
hardship to the parties.
 Speedy Disposal: `Justice delayed is justice denied’, hence cases should be disposed
off as quickly as possible. When preference is given for disposal of old cases, care
should be given to see that new cases should not get into arrears.
 Avoiding unwarranted comments: Judges should not make any unwarranted
comments in the open court about the Advocates lack of knowledge in the law. They
should not ask any Advocate to leave the court, without sufficient reasons. Similarly,
they should not ask any Advocate not to come to his court hereafter.
 Knowing in Law: Judges should possess deep knowledge in law. They should have
the ability to apply the proper law to the disputed facts and to take the right decision.
 Independence: Judges have the primary responsibility to protect and preserve the
independence of judiciary; hence they should not yield to the pressure of the
Government.
 Integrity: A Judge should be honest and morally upright. He should have personal and
intellectual integrity. His character and conduct should be praise worthy. Then only
the Advocates and the general public will have confidence on him.
 Industriousness: It means regular and systematic hard work and study. A Judge should
get acquainted with the latest developments and changes in the law by regular
 updating of the knowledge.
 Meeting of Judges and Lawyers: To strengthen Bar-Bench relation, at regular
intervals meeting of judges and the Advocates shall be arranged. In such meetings the
respective sides difficulties can be discussed and the differences can be sorted out.

CHAPTER- 4

SELECTED OPINION OF DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF

INDIA ON PROFESSIONAL MISCONDUCT
 1Jagadish singh&other v.T.C.Sharma 10

Jagadish singh and others were employees of the Central Board of Education,New
Delhi.They were arbitrarily dismissed from service by the Board. They approached T.C.
Sharma an Advocate to file a case against the arbitrary dismissal. They paid Rs.1400 as fees
for the case.
Sharma gave a fake case number starting that he has field the case before the central
Administrative Tribunal, New Delhi. On verification it was found that no such case has been
field. Later they engaged another Advocate Mr. Bhati to file the case and got a favourable
order of reinstatement.
Therefore, they asked the return of Rs.1400 from T.C. Sharma. He refused to pay the same.
So, the complainant filed a petition against him before the Delhi Bar Council alleging
professional misconduct. Since Sharma failed to appear during the enquiry, the state Bar
Council could not able to dispose off the case within one year. Hence, the case was
transferred to the Bar Council of India.
The Bar Council of India examined the petitioners, but the respondent was absent. Finally
the Bar council of India passed an order holding the respondent guilty of professional
misconduct and awarded the following punishments.
1. Suspended him from practice for a period of 5 years.
2. Directed him to return the Rs.1400/-with 12%interest per annum.
3. Directed to give Rs.500 as cost to the complainant.

2. Bablal v.Subash Jain 11

The complainant and the Respondent are Advocates. The complainant filed a petition before
the Madhya Pradesh Bar Council stating that the respondent to guilty of professional
misconduct under s.35. The allegation of the complainant is that the respondent a practicing
lawyer, is working as an Editor , Printer and Publisher of a weekly called``Aaj Ki Janta’’ He
is the owner of the press which prints the weekly. It is also alleged that the respondent did
not disclose these facts while applying for enrolment to the State Bar Council.
The respondent denied all the allegations. He contended that before enrolment, the job of
printing and publishing was transferred to his wife and thereafter he was working only as an
editor of the said weekly.

Since the enquiry was not completed within one year, the case was transferred to the Bar
Council of India.In the enquiry it was found that he enrolled in 1973 and continued as the
printer, publisher and editor of the weekly till 1983. Only in 1983 printing and publishing
was transferred in the name of his wife. But, by a general power of attorney from his wife the
respondent was looking after the entire work of the weekly. Based on this findings the Bar
Council of India held that the respondent is guilty of professional misconduct punishable
10
BCI TR Case No.47/1990
11
BCI TR Case No.115/1986
under S.35 of the Advocates Act and passed the following orders.

 He was suspended from practice for a period of one year.

 Suppression of the fact that he is the owner of the weekly in the enrolment application
cannot be treated as professional misconduct punishable under S.35.

3.Baswaroopsoni v.Babulalsoni 12

Babulalsoni is the father of Balswaroopsoni. He filed a complaint against his son alleging
professional misconduct before the Madhya Pradesh Bar Council. The allegations are as
follows:
 A criminal case under S.307 I.P.C. is pending against him.
 while appearing as a defence counsel for one munna in a criminal case No.125/89
hehas introduced his own brother as Dwarkha Prasad and arranged him to stand as
surety for munna.
 He has withdrawn a sum of Rs.1500 deposited in the court in the name of
Babulalsoni in a civil case without his consent.

Before the State Bar Council, Babulalsoni personally appeared and produced certain
documentary evidence in support of his case but the present appellant did not appear though
many chances are given to him. Finally the Bar Council held that Balswaroopsoni is guilty of
professional misconduct and passed an order removing his name from the Advocates Roll.
Against this order Balswaroopsoni filed an appeal the Bar Council of India. In the appeal he
denied all the allegations against him but, failed to produce any documentary evidence in his
support.Regarding the second allegation he took a defence that munna brought one person
and introduced him as Dwarakha Prasad. Believing Manna’s words only he also introduced
him to the court as Dwarakha Prasad. This defence was not accepted by the Bar Council of
India because Balswaroopsoni knows that the person brought by Munna Dwarakha Prasad.
Regarding the third allegation he took the defence that he is also one of the plaintiff in the
said case and his father has given power to withdraw that amount of Rs .1500/.But no
documentary evidence in support of this difference was produced by him. After hearing the
parties the Bar Council of India reduced the punishment and suspended him from practice for
a period of 5 years.

4. Indure Ltd.v.Deo Raj Gupta13

The complainant company is one of the highest producer of ash handling system in the
world, having large manufacturing and engineering factories. The respondent was the

12
BCI DC Appeal No.25/1992
13
BCI TR Case No.58/1993
 Advocate of the company and various cases related to the company was entrusted with him.
In April 1986 NELCO precisions, a company located at Faridabad gave a false
advertisement in the papers that Indure Ltd. is using the parts manufactured by NELCO
precisions.
To stop this false advertisement Indure Ltd. instructed the respondent to serve a legal notice
to NELCO. Notice was sent, but the notice has not given the desired result. Therefore, the
respondent was instructed to file a case against NELCO. A plaint was prepared and it was
approved by the petitioner company and necessary court fees were also paid to him.
The respondent informed the complainant that he has filed the suit in the Delhi High Court
and got a stay order. Infect no suit had been filed. The complainant filed a complaint in the
Bar Council of U.P.alleging professional misconduct against the respondent. They alleged
that the respondent had made a similar type of misrepresentation earlier also when he was
instructed to file a case against Anoel Industries Ltd. A criminal complaint was also filed
against Gupta in this regard.
The respondent filed a very brief counter and failed to give any explanation about the
serious allegation of professional misconduct. He simply prayed that for the same matter
there is already a criminal case pending against him, so the Bar Council should not proceed
with the complaint. When the petition was pending before the Bar Council, the criminal case
was disposed off and he was convicted.
Since the U.P Bar Council could not able to complete the enquiry within one year the
petition was transferred to the Bar Council of India.The Bar Council of India examined the
complainant and the respondent and finally came to the conclusion that the allegations
against the respondent the complainant has been proved beyond reasonable doubt and
directed the removal of his name from the roll of Advocates and prohibited him from
practicing as an Advocate.

5.Commissioner of Civil Supplies & Consumer Protection Dept. v. Balakrishnan14

Mr.Chandrakanth of Villupuram has filed a writ petition No.10589/90 in the Madras High
14
DC Appeal No.15/1995
 Court praying for the release of a Van TAH 4777 which was ceased by the Special
Thasildar, Dindivanam on 5- 7-1990. The writ petition was dismissed on 11-7-1990.The
respondent Mr.V.Balakrishnan was the Advocate for Mr.Chandrakanth in the writ petition.
After the dismissal of the writ petition the respondent sent the following telegram to the
District Revenue Officer, South Arcot.

High Court of Madras in writ petition No.10589/1990 filed by Chandrakanth directed the
District Revenue Officer to release the van TAH 4777 with 100 bags of paddy within one
week. Do not sell the paddy. Detailed order follows.In another writ petition No.6184/1990
the respondent sent the following telegram to the Collector, South Arcot.In writ petition
No.6184/1990 filed by cuberan of villupuram for release of 117 bags of paddy the High
Court has ordered notice of motion returnable on 11-6-90. Not to dispose the paddy till the
final order in the writ petition’.
A petition was filed against Mr.Balkrishnan before the State Bar Council alleging
professional misconduct. It is alleged that the contents of both these telegrams were false
and is not in consonance with the High Court order.
The State Bar Council gave benefit of doubt to the respondent by observing that he acted
with all enthuacism to protect the interest of his client. The State Bar Council observed that
though his conduct is not praise worthy, it did not amount to professional misconduct and
thereby no punishment is awarded to him.
Against this order an appeal was filed before the Bar Council of India. After hearing both
the parties, the Bar Council of India passed the followings orders.
 The order of the State bar Council was set aside.
 He was found guilty of professional misconduct under S.35 of the Act.
 The act sending wrong telegram misquoting the content of the court order is not an act
fit for an Advocate and he was reprimanded with strong words.
6.Banumurthy v.Bar Council of Andhra Pradesh15
The appellant was a member of the Andhra Pradesh Judicial service. When he was working
as Metropolitan Magistrate at Hyderabad there were certain allegations of corruption against
him. A departmental enquiry was conducted and e was served with an order of compulsory
retirement and retired on 30-7-1991.
After compulsory retirement he applied for resumption of practice. The State Bar Council
referred the matter to the Bar Council of India because he had been found guilty by the
departmental enquiry. The Bar Council of India returned the matter to the Disciplinary
Committee of the State Bar Council found him guilty of professional misconduct and
suspended him from practice for a period of 2 years. Against this order the present appeal
has been filed.
When the appeal was pending, he was allowed to resume his practice from 6-4-1994 by
some court order. Bar Council of India continued the enquiry and finally held that since 2
years has already lapsed since his punishment for corruption charges, he shall resume his
practice.

15
DC Appeal No.3/1994
 7.Dr.D.V.P.Raja v.D.Jayabalan16

The appellant lodged a complaint with the Bar Council of Tamil Nadu alleging that the
respondent’s application in the form of complaints addressed to various authorities amounts
to professional to misconduct. The State Bar Council passed a resolution that there is a
prima facie case of professional misconduct and it was placed before the Disciplinary
committee of the State Bar Council for its adjudication.
Before the Disciplinary Committee the respondent raised a preliminary issue that the
Disciplinary Committee has no jurisdiction in this matter because there is no connection
between his standing as lawyer and his representation to various authorities. The
Disciplinary Committee of the State Bar Council also accepted this argument and dismissed
complaint without going in to the merits of the complaint. The Disciplinary Committee held
that there was no nexus or proximity in his standing as a lawyer and his to various
authorities.
Against this order an appeal was filed before Bar Council of India. In the Bar Council of
India it was argued that the Bar Council of Tamil Nadu having passed a resolution that there
is a prima facie case against the respondent, the Disciplinary Committee could not have
dismissed the complaint without hearing it on merits.
After hearing both the sides the Bar Council of Tamil Nadu has passed a resolution that
there is a prima facie case to be enquired in to by the Disciplinary Committee has no power
to consider the question of its jurisdiction on the matter.
The decision of the Bar Council of Tamilnadu is good and valid.
8. G. M. Hermana v.Iswarappa 17
The petitioner filed a complaint against the respondent. Mr.Iswarapa (a practicing lawyer) in
the Bar Council of Karnataka alleging professional misconduct on the following grounds.
 The petitioner filed a partition suit against Grija Devi and Premadevi
(O.S.No.293/87). The respondent Mr.Iswarappa was the general power of attorney
holder of Smt. Girija Devi and Prema devi and also acted as Advocate for them in
the said case. He misused his position as an Advocate and dominated the will of
Girija Devi and Prema devi and purchased one portion of the suit property on 30-3-
93 from them.
 On 4-6092 Mr.Iswarappa took the signature of kirmani in a ten rupee bank bond
paper promising to compromise the partition suit and thereafter committed theft of
the same bond paper.
 During the pendency of the partion suit Mr.Iswarappa often visited the house of the
complainant in a drunken stage, through the complainant had asked him not to visit
his house during the pendency of the suit.
 Iswarappa has falsely filed a criminal case against the complainant (C.C.No.12/93)
Which was dismissed after enquiry.
During the enquiry Iswarappa admitted that he was the general power of attorney of Girija
Devi and Premadevi and has purchased their property for valuable consideration and paid the
full amount and denied all other allegations.The State Bar Council, after conducting a proper
16
BCI DC Appeal No.43/1996
17
BCI DC Appeal No. 30/1995
enquiry dismissed the complaint. Thereafter, the complainant filed an appeal before the Bar
Council of India.
The Bar Council of India also dismissed the appeal on the following grounds.
 The complainant had failed to prove that Mr.Iswarappa took signature of the
complainant on a blank bond paper.
 He has failed to prove that Iswarappa has purchased the property by misusing his
power of attorney.
 He failed to prove that Iswarappa acted as an Advocate for Girija Devi Premadevi in
the partition suit. Iswarappa produced evidence that he never acted as council of
pemadevi and Girijadevi in the partition suit and one Mr.AtchuthaGiri was the
Advocate for them in that partition suit. Thus the complainant had failed to establish a
case of professional misconduct against the respondent.

9. N.S.(Appellant) v. K.V.(Respondent)18
The appellant was a Govt. Pleader and the respondent was a Senior Advocate of 33 years
experience in the Madras High Court. On 12-11-1986 when he was going to the Bar
Association, the appellant informed him that he made a mention of a case before a Judge in
which respondent was appearing for the opposite party. The respondent told the appellant that
he had not been previously informed about it and that he has no notice that the appellant is
going to make a mention in the case; so``I will see to it’’. Immediately the appellant without
any justification abused the respondent in a very bad manner using vulgar words.
K.V. filed a complaint before the Bar Council of Tamilnadu. N.S.denied all the allegations,
but admitted that heated exchange of words took place between them. After examining both
the parties, the Disciplinary Committee found him guilty of professional misconduct and
suspended him from practice for a period of 6 months.
N.S. challenged this order before the Bar Council of India. The main question in the appeal is
whether the abusive language used by the appellant against the respondent would amount to
professional misconduct. The Bar Council of India held that it amounts to professional
misconduct but it held that the suspension of N.S. from practice for a period of 6 months is
not necessary and reprimanded with strong words.

10.P.R(Complainant)v.V.I(Respondent) 19

The complainant was the District Munsif Magistrate at Anakapalle from 19-11-84 to 8-4-85.
The respondent was a practicing Lawyer there. The respondent was the Advocate for a
respondent in a maintenance case. On 29-10-1985 when the case was called the Advocate as

18
BCI DC Appeal No.14/198
19
BCI TR Case No.101/1998
well as his client was absent, so ex-party order was passed. Therefore, the present
respondent filed a contempt petition against the complainant(P.R) in his court alleging the
following things.
 The High Court has passed transfer order to P.R. on 20-10- 1985 but,instead of
handing over the charge and obey the order he continued there up to 8-11-1985 on
certain pretest(arranged by him).
 The complainant was wasting valuable time of the court and also the revenue of the
Govt.

P.R. referred this contempt petition to the District Judge. District Judge referred it to High
Court. The court advised P.R. to logde a complaint against V.I. before the State Bar Council
for professional misconduct. Hence P.R. filed a complaint against the respondent alleging
professional misconduct because he has filed contempt petition on false grounds under his
signature against the presiding officer by name and bringing down the reputation of he
presiding officer. The respondent also acted on his own and not under the instruction of his
client.

The Bar Council of Andhra Pradesh after enquiry held that by filing the said contempt
petition against the presiding officer with serious allegation, the respondent has committed
professional misconduct. In the mean time the respondent was also selected and appointed
as District Munsif Magistrate and he ceased to be an Advocate. So, the Bar Council
expressed its inability to pass any order of punishment against him for professional
misconduct. So, they forward this order and other records to the High Court of Andhra
Pradesh for necessary action.

CHAPTER – 5
SELECTED CASES RELATING TO PROFFESSIONAL MISCONDUCT AND
CONTEMPT OF COURT
1.Powen Kumar Sharma v.Gurdial Singh20

Sharma enrolled as an Advocate in the Punjab& Haryana Bar council in January 1990. At the
time of his enrolment his family was doing taxi business and he himself having 4 taxies in his
name. A complaint was filed against him alleging professional misconduct that he is running
taxi business.
Since the State Bar Council could not able to dispose off the complaint within one year, it
was transferred to the Bar Council of India. Sharma denied this allegation and showed
documents proving that he has sold the Taxies after the enrolment. But the Bar Council of
India did not accept this documents and finally passed an order suspending him from practice
for one year for professional misconduct on the ground that he was running a taxi business
after enrolment.
He challenged the order before the Supreme Court contending that though he had 4 taxies in
his name before his enrolment he had sold the taxies after the enrolment and discontinued the
taxi business. The Supreme accepted the argument and passed the following orders.
 Simply because a person is the owner of the taxies, he cannot be treated as directly
doing the business.
 Rule 47 of the bar Council permits an Advocate to act as a sleeping partner in any
business which is not inconsistent with any profession.
 The charge of professional misconduct is a quasi-criminal charge, so it should be
proved beyond reasonable doubt. In this case the person filed the complaint has failed
to prove the charge beyond reasonable doubt.
 The appellant has produced documents showing the sale of the taxies after enrolment.
The respondant has failed to prove that it is untrue.
 The order of the Bar Council of India is set aside because professional misconduct is
not approved.

2.Mahabir Prasad Singh v. M/S Jack Aviation 21

The plaintiff filed a suit against the defendant for recovery of possession of the building.
During the pendency of the suit on 15-5-1998 the Delhi Bar Association passed a resolution
boycotting that court due to his improper behavior towards the lawyers. Taking advantage of
20
(AIR 1999 SC 98)
21
(AIR 1999 SC 287)
this boycott resolution the defendant filed a petition asking the judge to transfer the case,suo
motu, to another court because his advocate will not appear in the court In the future. The
transfer petition was dismissed.

This order was challenged before the High court. The High Court stayed the proceedings and
the case was adjourned for long period. Aggrieved by the stay of proceedings and the long
adjournment the plaintiffs filed an appeal before the Supreme Court.
In the appeal the Supreme Court gave the following orders.

 If any counsel does not want to appear in the court, that too for justifiable reasons, the
case should be returned to the party so that the party can engage in another counsel.
 Retaining the case without returning it to the client and abstaining from conducting
the case in the court amounts to professional misconduct.
 The court should not adjourn the case on the ground of Advocates strike or Advocates
decision of boycott the court.
 During the court hours even if the Advocates are not appearing the court should
proceed with the trial of the case.
 Court should not yield to the pressure tactics of boycott or any kind of brow beating.
 Judicial officers should behave cordially towards the Advocates.

3.Supreme court Bar Association v. union of India22

V.C.Mishra, then the Chair Man of the Bar Council of India was punished by the Supreme
court for contempt of court and he was suspended from the practice for a period of 3 years.
The charges against him was that in the court by using insulting, disrespectful and threatening
language he has threatened the judges. His act has hurt the judges and he has acted in such
way to obstruct the course of justice.
The Supreme Court Bar association challenged this order and raised the following issues.
 The Supreme Court while dealing with the contempt proceedings cannot suspend
Advocate from the practice.
 Bar Council alone can pass the order suspending an Advocate from practice.
 For professional misconduct original jurisdiction is vested with the Bar Council.
 Supreme court vested with only appellate jurisdiction to hear the appeal against the
order of the Bar Council of India.
 Art. 129 of the constitution does not confer any original Jurisdiction to the Supreme
court in the matters of professional misconduct.

22
(AIR 1998 SC 1995)
The main question before the court was whether for contempt of court committed by an
Advocate the Supreme Court can pass an order suspending his practice for a specified period.
The Constitution bench of the Supreme Court allowed the petition and issued the following
orders.
 Supreme Court’s power to punish for contempt is quite wide, yet it is limited.
 In the contempt of the court proceedings, the court cannot simultaneously enquire
into the professional misconduct also by adopting summery procedure.
 Professional misconduct should be enquired only by following the prescribed
procedure mentioned in the Advocates Act.
 Supreme court can award punishment only for contempt of court and not for
professional misconduct.
 For the contempt of the court, simple imprisonment of 6 weeks is given.
 This punishment is suspended for 4 years.
 The punishment shall be activated, if V.C. Misra again indulges in any other act of
contempt of court within the said period of 4 years.

4 P.D. Gupta v.Rammurthi23

One Mr. Krishnan died on 5-6-1980. His sister Vidyawati filed a suit for declaration of title in
her favour for certain properties of Mr. Krishnan, Rama murthi and others resisted the suit
claiming title in their favour. P.D.Gupta was the Advocate of Vidyawati. When the suit was
pending P.D. Gupta purchased part of the disputed property for Rs.18000 and sold it for
34000 immediately.
Mr. rama murthi filed a complaint against P.D.Gupta before the Delhi Bar Council alleging
professional misconduct. The main allegation is that he has purchased the part of the disputed
property from his client during the pendency of the suit.
Since the enquiry was not completed within one year the matter is transferred to the Bar
Council of India. After hearing both the parties, the Bar Council of India passed an order
suspending him from the practice for a period of one year. The court held that a shadow of
undue influence is present when an Advocate buys property of his own client.
Against this order P.D. Gupta filed an appeal before the Supreme court. In the appeal his
main contention was that his client or her legal heirs has not filed any complaint regarding
professional misconduct, and the enquiry conducted based on the complaint by some other
person is wrong.

The Supreme Court did not accept this argument and passed the following orders.

 Any person shall file a complaint regarding professional misconduct against

an Advocate.
 Bar council shall enquire into the allegation of professional misconduct,
though the complaint is filed by a stranger, because, the Bar council is
23
(AIR 1998 SC 283)
 concerned with the conduct of Advocates.
 The order passed by the Bar Council of India is confirmed.

5.Robtas Singh v.Commissioner, Agra Division24

The commissioner of Agra Division, and certain other officials have violated the order of
Allahabad High Court dated 6-9-93. Consequently the Allahabad High court issued notice to
show cause why action cannot be taken against them for contempt of court. In this matter
the additional standing counsel of the State Mr. Kazim appeared for the officials.
An objection was raised by the State law Officer and some criminal Advocates, regarding
the appearance of the govt. Standing counsel for the accused in the contempt of court
proceedings.
In support of their claim they submitted the Legal Remuneration Manual of U.P which deals
with the duties of a Govt. Advocate. It says that the Government Advocate shall not appear
for the defense or any criminal or quasi-criminal case; nor shall he advise any party against
the prosecution in any criminal case. After hearing the objection the Allahabad high Court
passed the following orders.

 Contempt proceedings are quasi-criminal in nature so it is the duty of the state to

prosecute the contemnor even if they are govt. officials.
 Govt. Advocates should not appear for the persons charged with the contempt of
court.
 Govt. officials should engage other Advocates in the contempt proceedings and they
should pay for them from their pocket.
 If the Govt. officials are acquitted then they shall claim the amount spent by them for
spending the case from the Govt.

6.Harish Chandra Singh v.S.N.Tripathi 25

Mr.Daya Ram engaged Mr. Harish Chandra as a lawyer in a consolidation proceeding

pending before the consolidation officer. Since Daya Ram could not attend the case regularly,
harish Chandra asked him to appoint a mukhtar. Daya Ram appointed one Mr. Syed Husain, a
junior Advocate of Harish Chandra as the mukhtar (power agent).
Syed Hussain in the capacity as mukhtar sold certain properties of Daya Ram to the father of

24
(AIR 1997 All 278)
25
(AIR 1997 SC 879)
Harish Chandra (This he did under the pressure of his senior Harish Chandra).
Daya Ram filed a complaint against both Harish Chandra and his junior Syed Hussain before
the Local Bar Association. The president of the Bar Association forwarded the complaint to
the U.P.State Bar Council. Since the matter was not disposed off within one year it was
transferred to the Bar Council of India. During the enquiry Daya Ram submitted the
following.
 The mukhtar was obtained fraudulently.
 Therefore, the sale deed executed by using the mukhtar should be treated as void.
 The act of Harish Chandra and Syed Hussain amounts to professional
misconduct, So they should be punished for that.

Syed Hussain confessed the guilt stating that being a junior, by obeying his senior, he did
these things and asked for pardon.Harish Chandra contented that his father was living
separately and he did not have any contact with him. He also contented that Syed Hussain is
not his junior.
The Bar Council of India held that Harish Chandra is Guilty of professional misconduct and
he was suspended from the practice for two years. His junior Syed Hussain was
pardoned.Against this order Harish Chandra filed an appeal before the Supreme court. The
Supreme court dismissed the appeal and affirmed the decision of the Bar Council of India.

7.Hikmat Alikhan v.Ishwar Prasad Arya26

Ishwar Prasad Arya was an Advocate practicing in Badann, U.P. He stabed his opponent
with the knife for that he has convicted 3 years rigorous imprisonment. On appeal the High
court also confirmed the punishment.
Thereafter, by using a forged letter of the Governor asking the court to suspend his sentence
under art. 161 of the constitution he got his conviction suspended and he was released. Later
the sessions Judge found the letter as forged one and he lodged a complaint with the Bar
Council of U.P for necessary action against him. The State Bar Council debarred him from
practice for 2 years. On appeal the Bar Council of India set aside this order on the ground
that there is no clear evidence to show that the Advocate himself has prepared that forged
letter.

Subsequently by taking into account of the bad conduct of the Advocate ie. Conviction for
the offence under S.307 of I.P.C and his name being entered by the police in a register which
contains the list of persons with bad character he was debarred for the practice for a period of
3 years by the State Bar Council. On appeal this order was also set aside by the Bar Council
of India because it is interconnected with the earlier matter. Hikmit Ali Khan preferred an
appeal before Supreme Court against this order.
The Supreme court held that the second order of the State Bar Council was based on totally a
different ground not connected with the grounds of the first order and the Bar Council of
India was erroneous in setting aside the second order of the U.P. Bar Council. Further
26
(AIR 1977 SC 864)
Supreme Court held that the gravity of the misconduct committed by him is so serious and
the punishment of suspending him from practice for 3 years is not sufficient and ordered the
removal of his name from the roll of Advocates.

8.Prahalad Saran Gupta v. Bar Council of India27.

Gupta was practicing Advocate at Ghaziabad. He was appearing for the decree-hold in an
execution case between Atma Ram manak Chand v.Shriram in the Ghaziabad court.
The degree holder has filed a complaint in the State Bar Council against his Advocate
(Gupta) alleging the following professional misconduct.
 He has colluded with the judgement debtor and accepted Rs. 1500 out of the total
decreed amount and allowed time for the payment of the remaining balance.
 The amount so received is not given to the degree holder.
 He has helped the judgment Debtor to get the execution stayed by the High Court.
 When he was Acting as a standing counsel for the railways ,he drafted the notice
under S.80.C.P.C to be served to the railways on behalf of M/s. Agerwal traders who
was the compliment against the Railways. This is a serious professional misconduct.
The draft prepared by his own handwriting was produced before the disciplinary
committee.
Gupta denied all the allegations and informed that he was holding the amount of Rs.1500 as
trustee on behalf of his client. Since the enquiry was not completed within one year the
matter was transferred to the Bar Council of India.
The Bar council of India has found the appellant guilty of serious professional misconduct
and passed an order suspending him from the practice for a period of one year.Gupta
challenged this order before the Supreme court. The Supreme court passed the following
orders.
 It is not advisable for the Disciplinary Committee to base its conclusion purely on the
basis of its own comparison of the hand writing of Gupta with the alleged draft
prepared by him. The court held that the charge of professional misconduct is quasi-
criminal in nature requires proof beyond reasonable doubt.
 Addressing a letter to the counsel of the opposite party (judgement debtor) in the
execution proceedings amounts to professional misconduct.
 Holding the money with him which he has received in the execution proceedings
without any sufficient reason amounts to professional misconduct.
 For this misconduct suspending him from practice for 1 year is too much , So the Bar
Council of India’s order is set aside and he was reprimanded with strong words.

9.Dr.Haniraj Chulani v. Bar Council of Maharashtra28

27
(AIR 1997 Sc 1338)
28
(AIR 1996 SC 1708)
Dr. Haniraj was a medical practitioner studied law and wanted to enroll as an Advocate and
to continue the medical profession also. He applied to the Bar Council of Maharashtra to
enroll himself as an advocate. The State Bar Council rejected his application because the Bar
Council rules prohibits a person to enroll as an Advocate if he is already carrying on some
other profession.
He challenged this rule before the High Court and prayed for an order to declare that the said
rule as arbitrary, unreasonable and violative of Art 21. The High Court summarily dismissed
the petition. Thereafter he filed a special leave petition before the Supreme Court.

In the Supreme Court he submitted the following arguments

 Advocates act has delegated excessive and unlimited power of rule making power to
the Bar Council. This is against the principles of rules of law.
 Rules made by the Bar Council by using this delegation should be declared as void.
 He should be treated equally along with the other law graduates.
 The protection of equality before law should be given to him (Art 14).

The Supreme court has not accepted these arguments and dismissed the petition and passed
the following orders. Bar Council is justified in framing rules prohibiting persons carrying on
the other business to enroll as an Advocate.
 Legal profession requires full time attention hence, An Advocate cannot be allowed to
do any other business or profession.
 Bar Council rules is intervires to the constitution and it is not violative of Art. 14,19
(1) (g) and 21.

10. Dr.D.C.Saxena v. Hon’ble chief justice of India29

Dr.D.C.Saxena was a professor of English University. He filed a writ petition in the Supreme
Court by way of public interest litigation seeking to recover from the Prime Minister
Mr.P.V.Narasima Rao the expenditure incurred for his private use of Indian Air Force
AirCraft and Helicopters. The wirt petition was dismissed summarily without going into the
merits by the bench consisting of Honable chief Justice Mr.A.M.Ahmedi and others.

29
(AIR 1996 SC 2481)
Thereafter,Dr.D.C. Saxena filed a second writ petition against the chief justice of India. In
this petition he contented that his first writ petition was dismissed by Chief Justice by
receiving brief and he prayed for the following.

 The respondent be declared as unfit to hold the office of chief justice of India.
 His citizenship should be withdrawn and a case be registered against him for forgery
and fraud.
 Direction to prosecute the Respondent under the prevention of Corruption Act.
 Direction to the Chief Justice of India to give from his pocket the expenses incurred
for filling this writ petition.
The Supreme court issued a show cause notice against him for contempt of court because
several averments in the writ petition are scandalous, and the allegation made are reckless
attack on the chief justice of India.
Sexena denied all the allegations. He pleaded that he had filed this petition only on public
interest and there is no bad intention in filing this petition. He even pleaded that if the court
wants, he is ready to withdraw the petition or ready to make the necessary changes in the
petition.
The court did not accept this argument and held that withdrawal or making changes in the
petition cannot cure the contempt already committed by the scandalous remarks made in the
petition. The court passed an order of three months simple imprisonment and a fine of
Rs.2000 for contempt of court and the writ petition was also dismissed.

11.An Advocate v. Bar Council of India30

M.P. THAKKAR, J. - A host of questions of seminal significance, not only for the
advocate who has been suspended from practising his profession for 3 years on the charge of
having withdrawn a suit (as settled) without the instructions from his client, but also for the
members of the legal profession in general have arisen in this appeal:
(1)Whether a charge apprising him specifically of the precise nature and character of the
professional misconduct ascribed to him needs to be framed?
(2)Whether in the absence of an allegation or finding of dishonesty or mens rea a finding of
guilt and a punishment of this nature can be inflicted on him?
(3)Whether the allegations and the finding of guilt require to be proved beyond reasonable
doubt?
(4)Whether the doctrine of benefit of doubt applies?
(5)Whether an advocate acting bona fide and in good faith on the basis of oral instructions
given by someone purporting to act on behalf of his client, would be guilty of professional
misconduct or of an unwise or imprudent act, or negligence simpliciter, or culpable
negligence punishable as professional misconduct?

30
(1989 Supp (2) SCC 25)
2.The suit was a suit for recovery of Rs 30,098 (Suit No. 65 of 1981 on the file of Additional
City Civil Judge, Bangalore). It appears that the complainant had entrusted the brief of the
appellant which he in his turn had entrusted to his junior colleague (Respondent 2 herein)
who was attached to his office and was practising along with him at his office at the material
time. At the point of time when the suit was withdrawn, Respondent 2 was practising on his
own having set up his separate office. On the docket of the brief pertaining to the suit, the
appellant made an endorsement giving instructions to withdraw the suit as settled. A sketch
was drawn on the back of the cover to enable the person carrying the brief to the junior
colleague to locate his office in order to convey the instructions as per the endorsement made
by the appellant. The allegations made by the complainant against the appellant are embodied
in paras 1 and 2 of his complaint:
(1)The petitioner submits that he entrusted a matter to Respondent 2 to file a case against Shri
A. Anantaraju for recovery of a sum of Rs 30,098 with court costs and current interest in
Case No. OS 1965 of 1981 on the file of the City Civil Judge at Bangalore. The petitioner
submits that the said suit was filed by the first respondent who was then a junior of
Respondent 2. The petitioner submits that the matter in dispute in the suit was not settled at
all and the first respondent without the knowledge and without the instructions of the
petitioner has filed a memo stating that the matter is settled out of court and got the suit
dismissed and he has also received half of the institution court fee within 10 days since the
date of the disposal of the suit. The petitioner submits that he has not received either the suit
amount or the refund of court fee and he is not aware of the dismissal of the suit as settled out
of court.
(2)The petitioner submits that when the case was posted for filing of written statement itself
the first respondent has filed such a memo stating that the suit was settled out of court. The
petitioner submits that in fact, the respondents did not even inform the petitioner about the
dates of hearing and when the petitioner asked the dates of hearing the respondents informed
the petitioner stating that his presence is not required in the court since the case was posted
for filing of written statement and therefore, the petitioner did not attend the court on that
day. The petitioner submits that when he enquired about the further date of hearing the
respondents did not give the date and said that they would verify the next date of hearing
since they have not attended the case since the case was posted for filing written statement by
the defendant. The petitioner submits that when he himself went to the court and verified he
found to his great surprise that the suit is dismissed as settled out of court and later learnt that
even the half of the institution court fee is also taken by the first respondent within 10 days.

3.The version of the appellant may now be unfolded:

(1)One Gautam Chand (RW 3) has been a longstanding client of the appellant. Gautam
Chand had business dealings with the plaintiff Haradara and the defendant Anantaraju.
Besides, Anantaraju executed an agreement dated 9-8-1980 to sell his house property to
Gautam Chand. He received earnest money in the sum of Rs 35,000 from Gautam Chand.
Anantaraju, however, did not execute the sale deed within the stipulated period and during
the extended period. It was in these circumstances that Gautam Chand (RW 3) approached
the appellant for legal advice.
(2)It is the common case of parties that Gautam Chand introduced the complainant Haradara
to the appellant and his colleague advocate Respondent 2.
(3)The appellant caused the issue of notice dated 1-6-1981 (Ex. R/15) on behalf of Gautam
Chand addressed to the seller Anantaraju calling upon him to execute the sale deed. On the
same date, a notice was separately issued on behalf of the complainant Haradara addressed
to Anantaraju demanding certain amounts due on the three ‘self’ bearer cheques aggregating
Rs 30,098 issued by Anantaraju in course of their mutual transactions. This notice was
issued by the advocate Respondent 2 acting on behalf of the complainant Haradara.
(4)Gautam Chand (RW 3) and Haradara (PW 1) were friends. Anantaraju was their common
adversary. There was no conflict of interests as between Gautam Chand and
Haradara. Gautam Chand instructed the appellant and his colleague Respondent 2 Ashok,
that he was in possession of the said cheques issued by Anantaraju and that no amount was
actually due from Anantaraju to the complainant Haradara. Gautam Chand was desirous of
steps to induce Anantaraju to execute the sale deed in his favour.
(5)A suit being OS No. 1965 of 1981 was instituted on behalf of the complainant Haradara
claiming an amount of Rs 30,000 and odd, from the defendant Anantaraju on the basis of the
aforesaid cheques. It was instituted on 30-6-1981. An interlocutory application was moved
on behalf of Haradara by Respondent 2 as his advocate seeking the attachment before
judgment of the immovable property belonging to the defendant Anantaraju. The property
was in fact the subject of an agreement to sell between Anantaraju and Gautam Chand (RW
3). The court initially declined to grant an order of attachment. In order to persuade the
court, certain steps were taken through the said Gautam Chand. He caused the publication of
a notice stating that the property in question was the subject-matter of an agreement between
Anantaraju and himself and it should not be dealt with by anyone. The publication of this
notice was relied upon subsequently on behalf of the complainant Haradara by his advocate
(Respondent 2), Ashok in seeking an order of attachment. The court accepted his
submissions and passed the order of attachment.
(6)Subsequently the defendant Anantaraju executed the sale deed dated 27-11-1981 in
favour of Gautam Chand. The object of the suit was achieved. The sale deed was in fact
executed during the subsistance of the order of attachment concerning the same property.
The plaintiff Haradara has not objected to it at any time. Consistently, the appellant had
reasons to believe the information of settlement of dispute, conveyed by the three parties
together on 9-12-1981.

(7)Gautam Chand (RW 3) and the complainant Haradara acted in mutual interest and
secured the attachment of property which was the subject-matter of an agreement to sell in
favour of Gautam Chand. The suit instituted in the name of the complainant Haradara was
only for the benefit of Gautam Chand by reference to this interest in the property.

(8)The appellant conveyed information of the settlement of dispute by his note made on the
docket. He drew a diagram of the location of residence of the Respondent 2 Ashok advocate
(Ex. R-l-A at p. 14 Additional Documents). The papers were delivered to Respondent 2
Ashok advocate by Gautam Chand (RW 3).
(9)After satisfying himself, Respondent 2 Ashok advocate appeared in court on 10-12- 1981
and filed a memo prepared in his handwriting recording the fact of settlement of dispute and
seeking withdrawal of the suit. The court passed order dated 10-12-1981 dismissing the suit,
OS No. 1965 of 1981.
(10)Even though the plaintiff Haradara gained knowledge of the disposal of suit, he did not
 meet the appellant nor did he address him for over 1½ years until May 1983. He did not also
immediately apply for the restoration of suit. An application for restoration was filed on the
last date of limitation on 11-1-1982. The application Misc. 16 of 1982 was later allowed to
be dismissed for default on 30-7-1982. It was later sought to be revived by application Misc.
No. 581 of 1982. Necessary orders were obtained on 16-7-1982. Thus Misc. 16 of 1982
(Application for restoration of suit) is pending in civil court.
On a survey of the legal landscape in the area of disciplinary proceedings this scenario
emerges:
(1) In exercise of powers under Section 35 on receipt of a complaint against an advocate
(or suo motu) if the State Bar Council has ‘reason to believe’ that any advocate on its roll
has been guilty of “professional or other misconduct”, disciplinary proceeding may be
initiated against him.
(2) Neither Section 35 nor any other provision of the Act defines the expression ‘legal
misconduct’ or the expression ‘misconduct’.
(3) The Disciplinary Committee of the State Bar Council is authorised to inflict
punishment, including removal of his name from the rolls of the Bar Council and
suspending him from practice for a period deemed fit by it, after giving the advocate
concerned and the ‘Advocate General’ of the State an opportunity of hearing.
(4) While under Section 42(1) of the Act the Disciplinary Committee has been conferred
powers vested in a civil court in respect of certain matters including summoning and
enforcing attendance of any person and examining him on oath, the Act which enjoins the
Disciplinary Committee to ‘afford an opportunity of hearing’ (vide Section 35) to the
advocate does not prescribe the procedure to be followed at the hearing.
(5) The procedure to be followed in an enquiry under Section 35 is outlined in Part VII of
the Bar Council of India Rules2 made under the authority of Section 60 of the Act.
(6) Rule 8(1) of the said Rules enjoins the Disciplinary Committee to hear the concerned
parties that is to say the complainant and the concerned advocate as also the Attorney General
or the Solicitor General or the Advocate General. It also enjoins that if it is considered
appropriate to take oral evidence the procedure of the trial of civil suits shall as far as
possible be followed.
4.At this juncture it is appropriate to articulate some basic principles which must inform the
disciplinary proceedings against members of the legal profession in proceedings under
Section 35 of the Advocates Act, read with the relevant Rules:

(i) Essentially the proceedings are quasi-criminal in character inasmuch as a member of the
profession can be visited with penal consequences which affect his right to practise the
profession as also his honour; under Section 35(3)(d) of the Act, the name of the advocate
found guilty of professional or other misconduct can be removed from the State Roll of
Advocates. This extreme penalty is equivalent of death penalty which is in vogue in
criminal jurisprudence. The advocate on whom the penalty of his name being removed from
the roll of advocates is imposed would be deprived of practising the profession of his
choice, would be robbed of his means of livelihood, would be stripped of the name and
honour earned by him in the past and is liable to become a social apartheid. A disciplinary
proceeding by a statutory body of the members of the profession which is statutorily
empowered to impose a punishment including a punishment of such immense proportions is
quasi-criminal in character;
 (ii) As a logical corollary it follows that the Disciplinary Committee empowered to
conduct the enquiry and to inflict the punishment on behalf of the body, in forming an
opinion must be guided by the doctrine of benefit of doubt and is under an obligation to
record a finding of guilt only upon being satisfied beyond reasonable doubt. It would be
impermissible to reach a conclusion on the basis of preponderance of evidence or on the
basis of surmise, conjecture or suspicion. It will also be essential to consider the dimension
regarding mens rea.
This proposition is hardly open to doubt or debate particularly having regard to the view
taken by this Court in L.D. Jaisinghani v. Naraindas N. Punjabi 31 wherein Ray, C.J.,
speaking for the Court has observed:
“In any case, we are left in doubt whether the complainant’s version, with which he had come
forward with considerable delay was really truthful. We think that in a case of this nature,
involving possible disbarring of the advocate concerned, the evidence should be of a
character which should leave no reasonable doubt about guilt. The Disciplinary Committee
had not only found the appellant guilty but had disbarred him permanently.”(emphasis added)
(iii) in the event of a charge of negligence being levelled against an advocate, the question
will have to be decided whether negligence simpliciter would constitute misconduct. It
would also have to be considered whether the standard expected from an advocate would
have to answer the test of a reasonably equipped prudent practitioner carrying reasonable
workload. A line will have to be drawn between tolerable negligence and culpable
negligence in the sense of negligence which can be treated as professional misconduct
exposing a member of the profession to punishment in the course of disciplinary
proceedings. In forming the opinion on this question the standards of professional conduct
and etiquette spelt out in Chapter 2 of Part VI of the Rules governing advocates, framed
under Section 60(3) and Section 49(1)(g) of the Act, which form a part of the Bar Council of
India Rules may be consulted. As indicated, in the preamble of the Rules, an advocate shall,
at all times compose 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 what may be lawful
and moral for one who is not a member of the Bar may still be improper for an advocate and
that his conduct is required to conform to the rules relating to the duty to the court, the duty
to the client, to the opponent, and the duty to the colleagues, not only in letter but also in
spirit.
It is in the light of these principles the Disciplinary Committee would be required to approach
the question as regards the guilt or otherwise of an advocate in the context of professional
misconduct levelled against him. In doing so apart from conforming to such procedure as
may have been outlined in the Act or the Rules, the Disciplinary Authority would be expected
to exercise the power with full consciousness and awareness of the paramount consideration
regarding principles of natural justice and fair play.
5. The State Bar Council, after calling for the comments of the appellant in the context
of the complaint, straightway proceeded to record the evidence of the parties. No charge was
framed specifying the nature and content of the professional misconduct attributed to the
appellant. Nor were any issues framed or points for determination formulated. The
Disciplinary Committee straightway proceeded to record evidence. As the case could not be
concluded within the prescribed time limit the matter came to be transferred to the Bar
Council of India which has heard arguments and rendered the order under appeal.
6. The questions which have surfaced are:
31
[(1976) 1 SCC 354],
 (1) Whether a specific charge should have been framed apprising the appellant of the true
nature and content of the professional misconduct ascribed to him?
(2) Whether the doctrine of benefit of doubt and the need for establishing the basic
allegations were present in the mind of the Disciplinary Authority in recording the finding
of guilt or in determining the nature and extent of the punishment inflicted on him?
(3) Whether in the absence of the charge and finding of dishonesty against him the
appellant could be held guilty of professional misconduct even on the assumption that he
had acted on the instructions of a person not authorised to act on behalf of his client if he
was acting in good faith and in a bona fide manner. Would it amount to lack of prudence or
non- culpable negligence or would it constitute professional misconduct?
Now so far as the procedure followed by the State Bar Council at the enquiry against the
appellant, is concerned it appears that in order to enable the concerned advocate to defend
himself properly, an appropriate specific charge was required to be framed. No doubt the
Act does not outline the procedure and the Rules do not prescribe the framing of a charge.
But then even in a departmental proceeding in an enquiry against an employee, a charge is
always framed. Surely an advocate whose honour and right to earn his livelihood are at
stake can expect from his own professional brethren, what an employee expects from his
employer? Even if the rules are silent, the paramount and overshadowing considerations of
fairness would demand the framing of a charge. In a disciplinary proceeding initiated at the
level of this Court even though the Supreme Court Rules did not so prescribe, in Re Shri
‘M’ an Advocate of the Supreme Court of India [AIR 1957 SC 149], this Court framed a
charge making these observations:
We treated the enquiry in chambers as a preliminary enquiry and heard arguments on both
sides with reference to the matter of that enquiry. We came to the conclusion that this was
not a case for discharge at that stage. We accordingly reframed the charges framed by our
learned brother, Bhagwati, J. and added a fresh charge. No objection has been taken to this
course. But it is as well to mention that, in our opinion, the terms of Order IV, Rule 30 of
the Supreme Court Rules do not preclude us from adopting this course, including the
reframing of, or adding to, the charges specified in the original summons, where the material
at the preliminary enquiry justifies the same. The fresh enquiry before us in court has
proceeded with reference to the following charges as reframed and added to by us.
It would be extremely difficult for an advocate facing a disciplinary proceeding to effectively
defend himself in the absence of a charge framed as a result of application of mind to the
allegations and to the question as regards what particular elements constituted a specified
head of professional misconduct.
7. The point arising in the context of the non-framing of issues has also significance. As
discussed earlier Rule 8(1) enjoins that “the procedure for the trial of civil suits, shall as far
as possible be followed”. Framing of the issues based on the pleadings as in a civil suit
would be of immense utility. The controversial matters and substantial questions would be
identified and the attention focused on the real and substantial factual and legal matters in
context. The parties would then become aware of the real nature and content of the matters
in issue and would come to know (1) on whom the burden rests (2) what evidence should be
adduced to prove or disprove any matter (3) to what end cross-examination and evidence in
rebuttal should be directed. When such a procedure is not adopted there exists inherent
danger of miscarriage of justice on account of virtual denial of a fair opportunity to meet the
case of the other side. We wish the State Bar Council had initially framed a charge and later
on framed issues arising out of the pleadings for the sake of fairness and for the sake of
bringing into forefront the real controversy.
8. In the light of the foregoing discussion the questions arising in the present appeal may
now be examined. In substance the charge against the appellant was that he had withdrawn a
suit as settled without the instructions from the complainant. It was not the case of the
complainant that the appellant had any dishonest motive or that he had acted in the matter
by reason of lack of probity or by reason of having been won over by the other side for
monetary considerations or otherwise. The version of the appellant was that the suit which
had been withdrawn had been instituted in a particular set of circumstances and that the
complainant had been introduced to the appellant for purposes of the institution of the suit
by an old client of his viz. RW 3 Gautam Chand. The appellant was already handling a case
on behalf of RW 3 Gautam Chand against RW 4 Anantaraju. The decision to file a suit on
behalf of the complainant against RW 4 Anantaraju was taken in the presence of RW 3
Gautam Chand. It was at the instance and inspiration of RW 3 Gautam Chand that the suit
had been instituted by the complainant, but really he was the nominee of Gautam Chand and
that the complainant himself had no real claim on his own. It transpires from the records that
it was admitted by the complainant that he was not maintaining any account books in regard
to the business and he was not an income tax assessee. In addition, the complainant (PW 1)
Haradara himself has admitted in his evidence that it was Gautam Chand who had
introduced him to the appellant, and that he was in fact taken to the office of the appellant
for filing the said suit, by Gautam Chand. It was this suit which was withdrawn by the
appellant. of course it was withdrawn without any written instructions from the complainant.
It was also admitted by the complainant that he knew the defendant against whom he had
filed the suit for recovery of Rs 30,000 and odd through Gautam Chand and that he did not
know the defendant intimately or closely. He also admitted that the cheques used to be
passed in favour of the party and that he was not entitled to the entire amount. He used to
get only commission.
9. Even on the admission of the complainant himself he was taken to the office of the
appellant for instituting the suit, by RW 3 Gautam Chand, an old client of the appellant
whose dispute with the defendant against whom the complainant had filed the suit existed at
the material time and was being handled by the appellant. The defence of the appellant that
he had withdrawn the suit in the circumstances mentioned by him required to be considered
in the light of his admissions. The defence of the appellant being the suit was withdrawn
under the oral instructions of the complainant in the presence of RW 3 Gautam Chand and
RW 4 Anantaraju and inasmuch as RWs 3 and 4 supported the version of the appellant on
oath, the matter was required to be examined in this background. Assuming that the
evidence of the appellant corroborated by RWs 3 and 4 in regard to the presence of the
complainant was not considered acceptable, the question would yet arise as to whether the
withdrawal on the part of the appellant as per the oral instructions of RW 3 Gautam Chand
who had taken the complainant to the appellant for instituting the suit, would amount to
professional misconduct. Whether the appellant had acted in a bona fide manner under the
honest belief that RW 3 Gautam Chand was giving the instructions on behalf of the
complainant requires to be considered. If he had done so in a bona fide and honest belief
would it constitute professional misconduct, particularly having regard to the fact that no
allegation regarding corrupt motive was attributed or established. Here it has to be
mentioned that the appellant had acted in an open manner in the sense that he had in his own
hand-made endorsement for withdrawing the suit as settled and sent the brief to his junior
colleague. If the appellant had any oblique motive or dishonest intention, he would not have
made the endorsement in his own hand.
10. No doubt Rule 19 contained in Section 2 captioned ‘Duty to the clients’ provides that
an advocate shall not act on the instructions of any person other than his client or his
authorised agent. If, therefore, the appellant had acted under the instructions of RW 3
Gautam Chand bona fide believing that he was the authorised agent to give instructions on
behalf of the client, would it constitute professional misconduct. Even if RW 3 was not in
fact an authorised agent of the complainant, but if the appellant bona fide believed him to be
the authorised agent having regard to the circumstances in which the suit came to be
instituted, would it constitute professional misconduct? Or would it amount to only an
imprudent and unwise act or even a negligent act on the part of the appellant? These were
the questions which directly arose to which the Committee never addressed itself. There is
also nothing to show that the Disciplinary Committee has recorded a finding on the facts
and the conclusion as regards the guilt in full awareness of the doctrine of benefit of doubt
and the need to establish the facts and the guilt beyond reasonable doubt. As has been
mentioned earlier, no charge has been formulated and framed, no issues have been framed.
The attention of the parties was not focussed on what were the real issues. The appellant
was not specifically told as to what constituted professional misconduct and what was the
real content of the charge regarding the professional misconduct against him.
11. In the order under appeal the Disciplinary Committee has addressed itself to three
questions viz.:
(i) Whether the complainant was the person who entrusted the brief to the appellant and
whether the brief was entrusted by the complainant to the appellant?
(ii) Whether report of settlement was made without instruction or knowledge of the
complainant?
(iii) Who was responsible for reporting settlement and instructions of the complainant?
In taking the view that the appellant had done so probably with a view to clear the cloud of
title of RW 3 as reflected in para 22 quoted herein, the Disciplinary Committee was not only
making recourse to conjecture, surmise and presumption on the basis of suspicion but also
attributing to the appellant a motive which was not even attributed by the complainant and
of which the appellant was not given any notice to enable him to meet the charge:
“It is not possible to find out as to what made PW 2 to have done like that. As already
pointed out the house property which was under attachment had been purchased by RW 3
during the subsistence of the attachment. Probably with a view to clear the cloud of title of
RW 3, PW 2 might have done it. This is only our suspicion whatever it might be, it is clear
that RW 2 had acted illegally in directing RW 1 to report settlement.”
12. In our opinion the appellant has not been afforded reasonable and fair opportunity of
showing cause inasmuch as the appellant was not apprised of the exact content of the
professional misconduct attributed to him and was not made aware of the precise charge he
was required to rebut. The conclusion reached by the Disciplinary Committee in the
impugned order further shows that in recording the finding of facts on the three questions,
the applicability of the doctrine of benefit of doubt and need for establishing the facts
beyond reasonable doubt were not realised. Nor did the Disciplinary Committee consider
the question as to whether the facts established that the appellant was acting with bona fides
or with mala fides, whether the appellant was acting with any oblique or dishonest motive,
whether there was any mens rea, whether the facts constituted negligence and if so whether
it constituted culpable negligence. Nor has the Disciplinary Committee considered the
question as regards the quantum of punishment in the light of the aforesaid considerations
and the exact nature of the professional misconduct established against the appellant. The
impugned order passed by the Disciplinary Committee, therefore cannot be sustained. Since
 we do not consider it appropriate to examine the matter on merits on our own without the
benefit of the finding recorded by the Disciplinary Committee of the apex judicial body of
the legal profession, we consider it appropriate to remit the matter back to the Disciplinary
Committee. As observed by this Court in O.N. Mohindroo v. District Judge,32 we have no
doubt that the Disciplinary Committee will approach the matter with an open mind:
From this it follows that questions of professional conduct are as open as charges of
cowardice against Generals or reconsideration of the conviction of persons convicted of
crimes. Otherwise how could the Hebron brothers get their conviction set aside after Charles
Peace confessed to the crime for which they were charged and held guilty?
We must explain why we consider it appropriate to remit the matter back to the Bar Council
of India. This matter is one pertaining to the ethics of the profession which the law has
entrusted to the Bar Council of India. It is their opinion of a case which must receive due
weight because in the words of Hidayatullah, C.J., in Mohindroo case:
This matter is one of the ethics of the profession which the law has entrusted to the Bar
Council of India. It is their opinion of a case which must receive due weight.
It appears to us that the Bar Council of India must have an opportunity to examine the very
vexed and sensitive question which has arisen in the present matter with utmost care and
consideration, the question being of great importance for the entire profession. We are not
aware of any other matter where the apex body of the profession was required to consider
whether the bona fide act of an advocate who in good faith acted under the instructions of
someone closely connected with his client and entertained a bona fide belief that the
instructions were being given under the authority of his client, would be guilty of
misconduct. It will be for the Bar Council of India to consider whether it would constitute
an imprudent act, an unwise act, a negligent act or whether it constituted negligence and if
so a culpable negligence, or whether it constituted a professional misconduct deserving
severe punishment, even when it was not established or at least not established beyond
reasonable doubt that the concerned advocate was acting with any oblique or dishonest
motive or with mala fides. This question will have to be determined in the light of the
evidence and the surrounding circumstances taking into account the doctrine of benefit of
doubt and the need to record a finding only upon being satisfied beyond reasonable doubt.
In the facts and circumstances of the present case, it will also be necessary to re-examine the
version of the complainant in the light of the foregoing discussion keeping in mind the
admission made by the complainant that he was not maintaining any books of accounts and
he was not an income tax assessee and yet he was the real plaintiff in the suit for Rs 30,000
and odd instituted by him, and in the light of the admission that it was RW 3 Gautam Chand
who had introduced him to the appellant and that he was in fact taken to the office of the
appellant, for filing the suit, by RW 3 Gautam Chand. The aforesaid question would arise
even if the conclusion was reached that the complainant himself was not present and had not
given instructions and that the appellant had acted on the instructions of RW 3 Gautam
Chand who had brought the complainant to the appellant’s office for instituting the suit and
who was a close associate of the complainant. Since all these aspects have not been
examined at the level of the Bar Council, and since the matter raises a question of principle
of considerable importance relating to the ethics of the profession which the law has
entrusted to the Bar Council of India, it would not be proper for this Court to render an
opinion on this matter without the benefit of the opinion of the Bar Council of India which
will accord close consideration to this matter in the light of the perspective unfolded in this
judgment both on law and on facts. We are reminded of the high degree of fairness with
32
Delhi [(1971) 2 SCR 11]
 which the Bar Council of India had acted in Mohindroo case. The advocate concerned was
suspended from practice for four years. The Bar Council had dismissed the appeal. Supreme
Court had dismissed the special leave petition summarily. And yet the whole matter was
reviewed at the instance of the Bar Council and this Court was persuaded to grant the
review. A passage extracted from Mohindroo case deserves to be quoted in this connection:
We find some unusual circumstances facing us. The entire Bar of India are of the opinion
that the case was not as satisfactorily proved as one should be and we are also of the same
opinion. All processes of the court are intended to secure justice and one such process is the
power of review. No doubt frivolous reviews are to be discouraged and technical rules have
been devised to prevent persons from reopening decided cases. But as the disciplinary
committee themselves observed there should not be too much technicality where
professional honour is involved and if there is a manifest wrong done, it is never too late to
undo the wrong. This Court possesses under the Constitution a special power of review and
further may pass any order to do full and effective justice. This Court is moved to take
action and the Bar Council of India and the Bar Association of the Supreme Court are
unanimous that the appellant deserves to have the order debarring him from practice set
aside.
13. We have therefore no doubt that upon the matter being remitted to the Bar Council of
India it will be dealt with appropriately in the light of the aforesaid perspective. We
accordingly allow this appeal, set aside the order of the Bar Council insofar as the appellant
is concerned and remit the matter to the Bar Council of India. We, however, wish to make it
clear that it will not be open to the complainant to amend the complaint or to add any further
allegation. We also clarify that the evidence already recorded will continue to form part of
the record and it will be open to the Bar Council of India to hear the matter afresh on the
same evidence. It is understood that an application for restoration of the suit which has been
dismissed for default in the city civil court at Bangalore has been made by the complainant
and is still pending before the court. It will be open to the Bar Council of India to consider
whether the hearing of the matter has to be deferred till the application for restoration is
disposed of. The Bar Council of India may give appropriate consideration to all these
questions.
14. We further direct that in case the judgment rendered by this Court or any part thereof
is reported in law journals or published elsewhere, the name of the appellant shall not be
mentioned because the matter is still sub judice and fairness demands that the name should
not be specified. The matter can be referred to as An Advocate v. Bar Council or In re an
Advocate without naming the appellant. The appeal is disposed of accordingly.
CHAPTER – 6

ACCOUNTANCY FOR LAWYERS PURPOSE OF MAINTAINING ACCOUNTS BY

LAWYERS

A business enterprise must keep a systematic record of its daily transaction. It is a legal duty.
It helps to know where its stand and adjudge its performance. This systematic recording of
transactions is known as accounting. Since legal profession is a trade, lawyers are under duty
to maintain systematic accounts relating to the profession.
The basic purpose of accounting is to present a complete financial picture of the Advocates
profession. This can be done with the help of two financial statements like (i) Profit and loss
account and (ii) Balance sheet showing the assests and liabilities.

It is necessary to maintain proper accounts to calculate the following (i) Annual Income (ii)
Income Tax (iii) Professional Tax (iv) Amount due to the client or amount due by the client.
 To calculate the annual income : To calculate the annual income of the Advocate from
the legal profession, it is necessary to maintain proper accounts of his income from
the profession. Maintaining this account is useful for Advocates also. By knowing his
Annual Income , he can take steps to improve his profession.
 To Calculate income Tax : Advocates are liable to Pay Income tax for the income
derived from the profession. In order to calculate the amount payable as income tax,
he has to maintain proper accounts relating to his income and expenditure.To
calculate the taxable income he is entitled to deduct certain expenditure like rent,
salary, telephone bill and other administrative expenditure. For this purpose also he
has to maintain proper accounts.
 To calculate professional tax: Every six months the advocates are liable to pay
professional tax to the Government. The amount of professional tax varies depending
on the income. In order to calculate the amount of professional tax he has to maintain
the proper accounts.
 To Ascertain the amount due from the client or due to the client: The account relating
to the amount received from the client and the amount received on behalf of the client
from others or from the court should be properly maintained. Then only the amount
due from the client can be calculated. This will help not only the client but also the
Advocate.

PLACE OF KEEPING THE ACCOUNTS BOOKS.

The accounts books and documents relating to the accounts should be kept and maintained by
the advocate,
(i)At his office.
(ii)Where he is carrying on the profession more than one office, then at his head office. But
accounts can also be maintained separately for each branch at the respective branch office.

Penalty for not keeping Account Books: A Lawyer who is legally liable to maintain account
books, fails to maintain it or fails to retain it for the prescribed period (cash book and ledger-
16 years, other books-8 years) is liable to pay penalty ranging from Rs.2000/- to 1,00,000/-
(S.271 A ).

Bar council Rules relating to accounting

Accounting is an art of recording, classifying and summarizing in a significant manner the

event which are financial in character and interpreting the result there of . An Advocate is
under a duty to maintain proper accounts of money received from his client and the amount
received on behalf of client from others or from the court. The rules relating to such
accounting is dealt in rules 25 to 32 of the Bar Council of India Rules 1975.
  Rule 25: An advocate should keep the accounts of the client’s money entrusted to
him. The accounts should show the amounts received from the client, the expenses
incurred for him and the debits made on the account of Advocate fees with the
respective dates and all other necessary particulars.
 Rule 26 : Where moneys are received from the client, it should be entered whether the
amount have been received for the advocates fees or expenses. Amount received for
the expenses shall not be diverted towards Advocates fees without the consent of the
client in writing.
 Rule 27: Where any amount is received on behalf of his client the fact of such receipt
must be intimated to the client as early as possible.
 Rule 28 : After the completion of the proceeding, the advocate shall be at the liberty
to take the settled fee due to hi to the unspent money in his hand.
 Rule 29: Where the fee has been left unsettled, the advocate shall take the fees which
he is legally entitled from the moneys of the client remaining in his hands, after the
completion of the proceeding. The balance shall be returned to the client.
 Rule 30: A copy of the client account shall be furnished to him after getting the
necessary copying charges from him.
 Rule 31: An advocate shall not make any agreements whereby client’s funds in his
hands are converted into loans to the advocate.
 Rule 32: An Advocate shall not lend money to his client for the purpose of conducting
the case.

Rules Relating to Accounting Under Income Tax Act

Under the Income Tax Act, every lawyer is required to maintain the following books of
accounts and other documents to enable the Assessing Officer to calculate his total income (i)
cash book (ii) Receipt Voucher (iii) payment voucher (iv) journal (v) ledger. The accounting
year is 1st April to 31st March next year.

 Cash book : It is the book in which the amount received by the Advocates from the
clients and others and the amount spent for the clients are written. This book is useful
for the Advocate to know the amount in his hand on each day.
 Receipt Voucher : It is the document prepared for recording the receipt of money by
 cash or cheque. When an Advocate received money from the client, the Advocate has
to issue a receipt to the client. Advocate shall maintain receipt books with serially
numbered receipt forms in duplicate. The original receipt should be given to the client
and the duplicate shall be retained by the Advocate.
 Payment Voucher : Payment vouchers are used to record such payments for which
receipts are not obtainable from the person to whom such payments are made. For
example bus fare, auto fare, court fees, stamps, refreshment expenses etc. In such
cases the Advocate signature in the payment voucher and the signature of the person
to whom payment is made may be obtained.
 Journal : Journal is the book of first entry or original entry. In the journal the
transactions are recorded in the order of their occurrence. It should contain the
following details (i) Date of Transactions (ii) Account to which the transaction relates
(iii) Amount to be debited, (iv) Amount to be credited (v) Explanation of the
transaction.
 Ledger : The transactions recorded in the journal are to be posted to the separate
heads of account in other book called as Ledger.In the ledger different pages are
allotted to the different heads of accounts. When the journal entries are posted to the
concerned heads of account in the ledger, the page number of the ledger should be
noted in the journal for easy reference.The ledger account of an advocate shall contain
the following heads.
 Clients Account : For each and every client separate pages shall be allotted in this
ledger and separate account shall be maintained for them.
 Fees Account : In this account the fees received from each and every client shall be
entered separately. From this account the total amount of fees received from all the
clients in a financial year can be ascertained.
 Rent Account.
 Salary Account.
 Library Account.
 Printing and Stationary Account.
 Postage and Telegram Account.
 Electricity Charges.
 Conveyance Charges.
 Repair and Maintenance.
 Office Miscellaneous Expenses Account.
 At the beginning of the ledger book the index may be given with the name of the
different heads of account and their respective pages for easy reference.
 CHAPTER -7

CONCLUSION

We have to go to a lawyer, doctor or other professional at ones time or the other. Their help
is indispensable in our lives. We are consumers of their services. Law protect those who
seek the help of these professionals. There are Acts of parliament covering the qualifications
and conduct of doctors, dentists, nurses, pharmacists and lawyers. There are several other
professions not covered fully by such laws, like that of engineers and architects. They have
only association of professionals.33
33
M.J. Antony, Consumers Rights, 4th Edition, August 1996, Hind Pocket Book (p) Ltd. Delhi.
 The State Commission, Delhi, by its order dated 10.3.2006 in Appeal No.1815 of 2000 held
that the services rendered by the Lawyer would not come within the ambit of Section 2(1)
(o) of the Consumer Protection Act, 1986, as the client executes the power of attorney
authorizing the Counsel to do certain acts on his behalf and there is no term of contract as to
the liability of the lawyer in case he fails to do any such act. The State Commission further
observed that it is a unilateral contract executed by the client giving authority to the lawyer
to appear and represent the matter on his behalf without any specific assurance or
undertaking.
In D.K. Gandhi v. M. Mathias case on 6 August, 2007 The ambit and scope of Section 2(1)
(o) of the Consumer Protection Act which defines service is very wide and by this time well
established. It covers all services except rendering of services free of charge or a contract of
personal service. Undisputedly, lawyers are rendering service. They are charging fees. It is
not a contract of personal service. Therefore, there is no reason to hold that they are not
covered by the provisions of the Consumer Protection Act,1986. The State Commission
approached the question totally in an erroneous manner by holding that by executing power
of attorney the client authorizes the Lawyer to do certain acts on his behalf and there is no
term of contract as to the liability of the lawyer in case he fails to do such act. It is to be
stated that a Lawyer may not be responsible for the favourable outcome of a case as the
result/outcome does not depend upon only on lawyers work. But, if there is deficiency in
rendering services promised, for which consideration in the form of fee is received by him,
then the lawyers can be proceeded against under the Consumer Protection Act.
Further, it is totally erroneous to hold that it is a unilateral contract executed by the client by
giving authority to the lawyer to appear and represent the matter. Apparently, it is a bilateral
contract between the client and the lawyer, and, that too, on receipt of fees, lawyer would
appear and represent the matter on behalf of his client. To hold that contract is unilateral is
to ignore the fact that even after discussion the client may not engage the Advocate or the
Advocate may refuse to accept the brief. Hence, such a contract can never be said to be
unilateral.
In Lucknow Development Authority v. M.K. Gupta34, case wherein the Apex Court
observed as under: The concept of service thus is very wide. How it (the concept of service)
should be understood and what it means depends on the context in which it has been used in
any enactment.
Clause (o) of the definition section defines it as under: service means service of any
description which is made available to potential users and includes the provision of facilities
in connection with banking, financing, insurance, transport, processing, supply of electrical or
other energy, board or lodging or both, housing construction, entertainment, amusement or
the purveying of news or other information, but does not include the rendering of any service
free of charge or under a contract of personal service; It is in three parts. The main part is
followed by inclusive clause and ends by exclusionary clause.
The main clause itself is very wide. It applies to any service made available to potential users.
The words any and potential are significant. Both are of wide amplitude. The word any
dictionary means one or some or all. In Black’s Law Dictionary it is explained thus, word any
has a diversity of meaning and may be employed to indicate all or every as well as some or
one and its meaning in a given statute depends upon the context and the subject- matter of the
statute. The use of the word any in the context it has been used in clause (o) indicates that it
has been used in wider sense extending from one to all.

34
(1994) 1 SCC 243, pp. 254-255
The Court held that the importance of the Act lies in promoting welfare of the society
inasmuch as it attempts to remove the helplessness of a consumer as he faces against
powerful business; producers have secured power to rob the rest. To what extent the aforesaid
observations apply to various professions in the country is to be imagined and it is a matter of
guess work.
In Indian Medical Association v. V.P. Shantha and Others35 case the Supreme Court
discussed whether medical professionals would be covered by the said definition. For this
purpose, it was observed that in the matter of professional liability, professions differ from
other occupations for the reason that professions operate in spheres where success cannot be
achieved in every case and very often success or failure depends upon factors beyond the
professional man’s control. In devising a rational approach to professional liability which
must provide proper protection to the consumer while allowing for the factors mentioned
above, the approach of the courts is to require that professional men should possess a certain
minimum degree of competence and that they should exercise reasonable care in the
discharge of their duties. If there is negligence on the part of medical professionals, the right
of affected person to seek redress would be covered by the Act. Medical professionals would
not be outside the purview of the provisions of the Act.
The same principle would apply in case of service to be rendered by a lawyer. In Kishore Lal
v. Chairman, Employees State Insurance Corpn36. Case the Supreme Court observed:It has
been held in numerous cases of this Court that jurisdiction of the Consumer Fora has to be
construed liberally so as to bring many cases under it for their speedy disposal. The Act being
a beneficial legislation, it should receive a liberal construction. In the case of Jacob Mathew
v. State of Punjab5 the Supreme Court has held that in law of negligence, professionals such
as lawyers, doctors, architects and others are included in the category of persons professing
some special skill or skilled persons generally and a professional may be held liable for
negligence on one of the two findings: either he was not possessed of the requisite skill which
he professed to have possessed, or, he did not exercise, with reasonable competence in the
given case, the skill which he did possess. Further, this Commission has taken a consistent
view that if there is deficiency in service rendered by the Lawyers, complaint under the
Consumer Protection Act, 1986 is maintainable.

In the above discussion it is evident that the persons belonging to learned professions are
under duty to exercise reasonable degree of care and skill in performance of these
professional activities. Medical Professionals and advocates are well known personalities
belonging to learned professions. It is fundamental principles that to protect the interest of
consumers and to restore the faith of general public in legal system the judicial interpretation
of the term
Service and deficiency of service with respect to the legal services keeping in to account the
intention of legislature and an objective of the act is the need of society in present time. A
significant number of decisions given by the consumer forums against the professional
service providers has brought home, the clear message that the consumer are not going to
tolerate the unethical practices of professionals and are liable to pay the compensations for
their deficient services.
The legal profession is one of the most maligned one. Literature abounds in disparaging
remarks again them, like this quote from Shakespeare: “The first thing we do, lets kill all

35
1995 (6) SCC 651.
36
(2007) 4 SCC 579.
lawyers.” There are several remedies against erring lawyers, thought most people avoid
confrontations with them as in the case of doctors. Lawyers can be sued like doctors for
breach of contract and negligence. Claims for compensation can be filed before the consumer
forum for damages suffered due to lawyer’s negligence. A lawyer has duty to take care and
be skilful while handling your case, through there is no remedy against bad advocacy. If you
do not like your lawyer, you are free to try another. But it is not advisable to change him just
because you do not like his advice or he warns you that you may lose.
The conduct of lawyers is governed by the Advocate Act, 1961. Under this law, Bar Council
have been set up in states and at the Centre to enrol law graduate as lawyers, to hear and
decide cases of misconduct against lawyers, to lay down standard of professional conduct,
and to establish procedure of disciplinary committees. They have other functions, which are
more from the welfare of the lawyers than for their clients. Bar Councils are also enjoined to
set up legal aid committees.
A client may complain against his lawyer to the state Bar Council which will refer it to its
disciplinary committee. This committee has the powers of a civil court and can summon
witnesses and records. If the complaint is found to be true, the lawyer may be reprimanded,
suspended from practice, or permanently removed from the roll of advocates. Since only
advocates are allowed to practice in the courts, the last step would throw him out of the
profession. Some of the instances of professional misconduct are, Handling over the brief to
another lawyer without the client’s consent, representing conflicting interests without telling
the clients, soliciting briefs, undercutting fees, and putting indecent questions at trail. A
lawyer could be tried as any other offender in case of cheating or other criminal
offences. Proof of misconduct must be beyond reasonable doubt.
C.P. Act, 1986 is the largest development in India to protect the interest of consumers. Any
person can claim compensation under the provision of Act including negligent doctors. To
get relief under C.P. Act, 1986, the complainant should be a consumer as defined under S-
2(1)(d) of the Act and the “service” for the deficiency of which the complaint has been
made should comes within the circle of “service as defined under S-2(1)(o) of the Act. As
soon as the person, who is trying to file a suit for compensation in the Consumer Forum
under the C.P. Act,1986, proves that he is in the status of consumer, and the act against
which the complain is there “service” under C.P. Act,1986, he becomes entitled to do so.

The question is, whether the service of medical professionals comes within the limit
of“service”. Except the some earlier decisions courts have include the service of the doctor
under the term service and the patient as a consumer as under the Act, on the basis that they
receive service on payment.
There is no clear cut definition, whether Govt. hospitals comes under the purview of the
Act. Hence the policy maker or the judiciary should take necessary step to bring Govt.
hospitals under the umbrella of the C.P. Act, 1986 taking into consideration that these
hospitals are maintained from the taxes paid by people and on larger humanitarian grounds
so that the ordinary people who are the victims of negligent doctors either of Govt. or
private hospitals and who are unable to approach ordinary court file the complaint before the
consumer court to get redressal.
Since there is no express provision in CP Act, 1986 to include the medical professionals
 service within the purview of the Act, therefore the role of judiciary has become very
important with this regard, before the enactment of the Act the liability of the doctor was
decided on the basis of „tort‟ by taking some principle like res ipsa loquitor and the
principles laid down by the British court like Bolom test etc, but after the enactment the
question has been raised,whether patients are being saved by applying the C P Act, 1986 in
case of medical professionals.
In this scenario, judiciary has played very significant role to protect patient from legal and
medical negligence. In the landmark decision of the supreme court delivered in Indian
Medical Association v. V.P. Shanta, A clear and effective law has been laid down by the
Supreme Court and has given a clear cut ruling with regent to the inclusion of service under
C.P. Act, Supreme court make it clear that service render to a patient by medical
professionals by the way of consultation diagnosis and treatment both medicinal and
surgical would fall within the ambit of the „service‟, as defined in Sec. 2(1)(o) of the act
except those service which are render by the doctor free of charge.
It was further made clear that service rendered by non-government hospital/medical
professionals where all the person receives the service free of charge are outside the
expression of service but persons those are poor who get free service then it come within the
ambit of „Service” as in C.P. Act, 1986 because these institutions provide free service by
casting these charges open those patient who are economically competent.
It was also made clear in this case that a person who has taken health policy thought not
paying charges but are consumer and are entitled to get relief under C.P. Act, 1986 because
in such condition the payment was given by insurance company.

BIBLIOGRAPHY

1 B.C.I. Trust, “Legal Education in India status and problems” 1st ed ,New Delhi 1983.

2 C.Ramarao, & Vijaya Lakshmi Tayaru Y.Nageshwar Rao,“Professional Ethics Advocacy”,

Gayatri Books, Vizag.

3 Dr. S.R. Myneni, “Accountancy for Lawyers and Bench Bar Relations”, Asia Law House,
Hyderabad 2007.
4 G. Manohar Rao and Prof. K Sriniwas Rao, “Legal Education in India challenges and
Perspectives”, Asia law house Hyderabad, 2009.

5 Justice V.R. Krishna Iyer, “Law, Lawyers and Justice”, B.R Publishing Corporation, Delhi
1989.

6. Kailash Rai, “Legal Ethics, Accountancy for Lawyers and Bench Bar Relations”Central
law Publication, Allahabad , 2001.

7.M.K. Gandhi, “The law and Lawyers”(ed.S.B.Kher) 237 (1962),Harijan, 26November,1938

at 351.

8.S.P. Gupta, “Professional Ethics, Accountancy for lawyers and Bench-Bar Relations”,
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