ASHWINI KUMAR UPADHYAY V. UNION OF INDIA [WRIT PETITION (CIVIL) NO.

95 OF 2018,
SC]

Facts of the Case

The current case deals with the disputed question of fact whether the members of the parliament
i.e. MLAs./MPs, members of Lok Sabha or Rajya Sabha and if they are advocates, then
according to the tenure when they are the members of the parliament, till that particular period of
time will be debarred from practising in the field as a litigant

Ashwini Kumar had filed a petition through which she wants to say that who are MLAs./MPs
and if they are Advocates, then according to the tenure when they are the members of the
parliament, till that particular period of time will be debarred from practising in the field of
advocacy as an Advocate.

Reliance has been placed on Rule 49 of the Rules in particular to contend that there is an express
restriction on Advocates to take up other employment. It is also urged that being an elected
people‘s representative, by the very nature of his/her duty as a law maker and legislator, it is a
full-time engagement, coupled with the fact that the emoluments paid to them is under The
Salary, Allowances and Pension of Members of Parliament Act, 1954. Similarly, allowances are
paid as per the rules framed for different heads under the 1954 Act.

It is urged that there can be no relationship of an employee and employer between the
MP/MLA/MLC and the Government as such, merely because they receive salary, allowances
and pension in terms of the provisions of the 1954 Act as applicable to the Members of
Parliament or similar enactment applicable to the Members of Legislative Assembly/Council.

Issues of the Case

1. Whether legislators can be debarred from practising as Advocates during the period when
they continue to be the Members of Parliament or the State Assembly/Council?
2. Whether, by virtue of such practice, the concerned elected people‘s representative may
incur disqualification to continue to be a member of the concerned House on the ground
of office of profit or any other ground resulting in his/her disqualification provided by the
Constitution or any law made by the Parliament/State Legislature in that regard.
Arguments of the Parties

Petitioner - The elected people‘s representatives take a constitutional oath to serve the people
and are supposed to work full-time for public causes. For, if they are allowed to practice law they
would charge fees from their private clients and, at the same time, continue to draw salary from
the public exchequer, which will be nothing short of professional misconduct. If they do so, they
would end up becoming casual towards one of the two engagements and in a given situation be
guilty of conflict of interest amounting to professional misconduct. It is thus urged that allowing
legislators to practice law will have the potential of permitting them to indulge in conflict of
interest amounting to professional misconduct since they may appear in matters, in their capacity
as advocates, challenging the wisdom of Parliament/State Legislature.

Respondent - The draft legislation prepared on the basis of the Law Commission’s report is
under active consideration and was referred to stakeholders, that is, the States and Union
Territories for their inputs and suggestions. It was highlighted that the ‘Criminal Laws’ and the
‘Criminal Procedure’ fall in the Concurrent List of the Seventh Schedule to the Constitution of
India and, therefore, comments and views of the State Governments/Union Territories were
solicited on the recommendations made by the Law Commission of India. There may have been
some delay as some States did not furnish their response, albeit the Union of India took steps by
sending reminders on June 27, 2018, November 27, 2018 and December 20, 2018. Any direction
by this Court requiring the Parliament to frame a law or modify an enactment in a particular
manner would violate doctrine of separation of powers, a basic feature of the Constitution.

Judgment in the Case

The Supreme Court of India held that in the absence of any rule which clearly and expressively
prohibit the legislators from practicing as advocates Rule 49 of the rules framed by Bar Council
of India does not apply. It was held that; rule 49 of the Bar Council of India Rules provides that
an Advocate should not be the full-time employee of anybody. It includes any person, firm,
organization or Government if any advocate takes any such employment, he has to inform the
Bar Council about the emplacement and he ceases to be an Advocate and from practicing law till
the course of employment.
BHUPINDER KUMAR SHARMA V. BAR ASSOCIATION, PATHANKOT (AIR 2002 SC 47)

Facts of the Case

The case was brought before the Supreme Court of India in the form of an appeal under Section
38 of The Advocates Act, 1961 against the judgment and order dated November 4, 1998 passed
by the Disciplinary Committee of the Bar Council of India, confirming the order passed by the
Disciplinary Committee of Bar Council of Punjab & Haryana removing the name of the
appellant from the States Roll of Advocates under Section 35(3)(d) of the Act. The appellant was
enrolled with the State Bar Council as an Advocate on September 16, 1994.

On September 9, 1995, the respondent-association made a written complaint to the State Bar
Council making allegations of misconduct against the appellant. The State Bar Council took
cognizance of the complaint and referred the complaint to its Disciplinary Committee. After the
completion of the proceedings in D.C.E., order was passed by the Disciplinary Committee of
State Bar Council to remove the name of the appellant from the State Roll of the Advocates and
the same was confirmed by the Disciplinary Committee of the Bar Council of India, in appeal.

Hence, this appeal. On September 9, 1995, the respondent-association made a written complaint
to the State Bar Council making allegations of misconduct against the appellant. The decision of
the DCE was held on November 4, 1998. After that judgement, this appeal was filed in the
Supreme Court of India. The appellant – Bhupinder Kumar Sharma filed this appeal against the
order of the DCE, as the DC, BCI had removed his name from the State Roll of the Advocates.

Issues of the Case

I. Whether the appeal is fit to be entertained?

II. Whether the punishment given to the appellate is appropriate?

Arguments of the Parties

Appellant - The learned senior counsel for the appellant strongly contended that the allegations
made in the complaint were not established or proved. The standard of proof is required in a case
like this. Here, the appellant was not actually carrying on business and the evidence on this point
was not properly appreciated. Thus, it was argued that the punishment imposed on the appellant
is grossly disproportionate even if it is assumed that the misconduct was proved.

Respondent - The learned senior counsel for the respondent made submissions supporting the
impugned order. He drew out attention to the evidence brought on record to show how the
findings recorded against the appellant are justified. He strongly contended that the misconduct
of the appellant before and after filing of the appeals before the Bar Council of India and this
Court in continuing the business cannot be condoned. Further, in spite of giving undertaking
before this Court, he is still continuing his business as is supported by the report of the Sub-judge
made to this Court. Thus, here it was argued that the punishment imposed on the appellant is
proper in the absence of any good ground to take any lenient view.

Legal Provisions of The Case

1. Article 133 of the Constitution of India.

2. Section 26 of Advocates Act, 1961 which lays down the provision for – Disposal of
applications for admission as an advocate
3. Section 35(3)(d) of Advocates Act, 1961 which lays down the provision for –
Punishment of advocates for misconduct
4. Section 38 of Advocates Act, 1961 is included which lays down the provision for –
Appeal to Supreme Court where any person aggrieved by an order made by the
disciplinary committee of the Bar Council of India may, within sixty days of the date on
which the order is communicated to him, prefer an appeal to the Supreme Court of India.

Judgment in the Case

The finding recorded holding the appellant guilty of professional misconduct is supported and
based on cogent and convincing evidence even judged by the standard required to establish
misconduct as required to prove a charge in a quasi-criminal case beyond reasonable doubt. Any
merit in the argument that the misconduct alleged against the appellant was not properly proved
by the standard required to prove such misconduct was not found.

There was also no merit in the contention that the evidence was not properly appreciated by both
the Disciplinary Committees. Nothing was brought on record to discredit the evidence led on
behalf of the complainant and no material was placed to support the allegation of the appellant
that the members of the respondent – Association had any grudge or ill-will against the appellant.

Having regard to the nature of misconduct and taking note of the handicap of the appellant, the
court opined, debarring him from practicing for all time is too harsh, thus it should consider it
just and appropriate to modify the punishment to debar the appellant from practicing up to end of
December, 2006.

P.D. GUPTA V. RAM MURTI & ANR. (AIR 1998 SC 283)

Facts of the Case

The matter stems from a previous court case in which a man named Srikrishan Das died, leaving
behind property that was claimed by Adv. P. D. Gupta's client Vidyawati under the guise of
being the deceased's sister, the complainant Ram Murti, and two others via Wills. The properties
in question in this case were purchased by the Advocate, the appellant, and his son-in-law by a
registered sale deed from Vidyawati, his client, and subsequently sold at a significantly higher
price using a registered sale deed. Ram Murti, the claimant in the property dispute, filed a
complaint for misconduct against Adv. Gupta in Delhi, where the Advocate practises. The
Advocate filed an appeal against the verdict of the Bar Council of India's Disciplinary
Committee (DC), which found him guilty of misconduct and sentenced him to a one-year
suspension under Section 35 of the Act. The Disciplinary Committee of the Bar Council of Delhi
was unable to resolve the complaint within a year of it being lodged under Section 38 of the Act.
The current litigation was still ongoing at the Delhi High Court, and all procedures pertaining to
Srikishan Dass' estate filed under Section 276 of the Indian Succession Act were also moved
from the District Judge's court. The matter was firstly referred from the Disciplinary Committee
of the Bar Council of Delhi to the Bar Council of India under Section 38 of the Advocates Act,
1961, since the former was unable to resolve it within one year of the complaint being made
under Section 36B. Under Section 35 of the Act, the Advocate was held guilty for professional
misconduct, and an appeal was filed with the Supreme Court.

Issues of the Case

I. Whether the act of purchasing the property in dispute by the client considered
misconduct on the part of the Advocate?
II. Is a one-year suspension of his sentence disproportionate to his crime?

Legal Aspects of the Case

The present case revolves on the Section 35, 36, 36B, 37, 38 of the Advocates Act, 1961 and
Section 276 of the Indian Succession Act, 1925.

Arguments of the Parties

Appellants - The learned council, appearing for the appellant P. D. Gupta, argued that if the court
found a lawyer guilty of professional misconduct in this case, particularly on the basis of a
complaint filed by an interested party like Ram Murti, no lawyer would be able to conduct his
client's case fearlessly in the future. It was argued that if there was an aggrieved party in this
matter, it would have been Vidyawati, her daughter Maya Devi, or her grandson Anand Prakash
Bansal, but nobody of them had filed a complaint.

The learned council further asserted that, despite the fact that the land was bought by P. D. Gupta
in late 1982, Ram Murti's suit was filed only on December 16, 1922. The learned council went
on to clarify that how Vidyawati had been characterised differently in numerous litigations was
due to instructions from her or her attorney, and it was not P. D. Gupta's fault. Then it was
claimed that no specific allegations had been formulated in the disciplinary procedures, causing
P. D. Gupta to be prejudiced in the conduct of his defence. Finally, the learned council
maintained that P. D. Gupta was no longer interested in the land since he had sold it.
Respondent - The respondent party in person stated that the learned counsel’s statements seemed
to be devoid of substance, and that P. D. Gupta was fully aware of the claims he would face. It
wasn't a difficult charge. It was argued that he had been practising for a long time. The
contention that a charge had not been established appears to stem more from P. D. Gupta's
dissatisfaction with his inability to address the accusation.

The respondent indicated that it is his action in purchasing the property, which is the subject of
litigation between the parties, from his client on which he may wield undue influence,
particularly when there was a question thrown on his client's title to the property. If P. D. Gupta
had sold the land back to Vidyawati and had the sale deed revoked in his favour, something may
have been stated in his favour. It was argued that he profited by selling the property to a third
party, complicating the current lawsuit. P. D. Gupta acquired the properties at issue for himself
and his son-in-law for nearly throwaway rates, making him a party to the suit. P. D. Gupta's
conduct cannot be described as above board. Finally, the respondent claimed that he was acting
as a court officer while handling the matter.

In this case, P. D. Gupta had effectively subverted the legal system by purchasing the land, and
his actions had raised severe concerns about his fairness in the conduct of the trial, as well as his
professional behaviour as an advocate.

Judgment of the Court

In the final judgment the Bar Council of India’s Disciplinary Committee found him guilty of
professional misconduct and suspended him for a period of one year. In addition, the Supreme
Court held that under the facts of the case, there was no reason to interfere with the sentence
meted out to P. D. Gupta. The appeal was rejected. In this case the Court opined thus, It is
recognized truth that a legal advisor leading the instance of his customer has a commanding
status and can apply impact of his customer. As an individual from the Bar, it is common
knowledge that legal advisors have begun contracting with the customers and go into deals that if
there should arise an occurrence of achievement, he will shore the outcome. Most likely there is
no bar for a legal advisor to buy property however by virtue of basic reasonability exceptionally
law realizing individual will never prefer to purchase the property, the title of which is under
question.
HIKMAT ALI KHAN V. ISHWAR PRASAD ARYA & ORS. (1997) 3 SCC 131

Facts of the Case

Advocate’s Assault Case is a case brought before the Hon’ble Supreme Court of India against
the order of the disciplinary committee of Bar Council of India. This case has been brought
before the Hon’ble Supreme Court of India by the appellant under Section 38 of the Advocates
Act, 1961 which confers a right of appeal to the Supreme Court on any person aggrieved by an
order by the disciplinary committee of the Bar Council of India. In the present case, the appellant
has impugned the order of the disciplinary committee of the Bar Council of India in which the
committee set aside the punishment of the respondent. The State Bar Council of Uttar Pradesh
had disbarred the respondent on counts of professional misconduct under Section 35 of the
Advocates Act, 1961 read with Section 24-A of the Act.

In this case, the appellant had appealed against U. P. State Bar Council Disciplinary Committee’s
order against the respondent debarring him for 3 years. The appellant wanted an increase in his
punishment which was not considered by the Bar Council of India’s disciplinary Committee and
hence he appealed to the Hon’ble Supreme Court of India. The respondent is charged with fraud
and assault in the courtroom against a fellow advocate and hence, the case pertains to
professional misconduct. The case also highlights the importance of how advocates must work in
accordance with rules and regulations as well as must pay certain respect to fellow advocates and
assign dignity to their profession.

Issues Involved

Whether the acts are done by the appellant advocates tantamount to professional misconduct
under Section 35 of the Advocates Act?

Arguments of the Appellants

The advocates on behalf of the appellant argued that Disciplinary Committee had failed to
acknowledge the fact that the respondent evaded arrest for 16 months on the basis of a
fraudulently forged letter. The conviction of the respondent under IPC Section 307 has also not
been taken into regard by the Bar Council. The respondent’s entry in register 8 of kotwali
Badaun which is for people with bad character in the society is unbecoming for an advocate and
this leads to his bad reputation in society. The appellant lastly submitted that the Bar Council of
U. P. which levied punishment of disbarment of 3 years was less quantum of punishment and the
Bar council should have allowed an appeal against it.

Legal Aspects in the Case

Advocates Act – 3, 6, 9, 24-A, 35, 36, 37, 38, 42.

Indian Penal Code – 307, 193, 228.

Arms Act – 25.

Judgment of the Court

The Hon’ble Supreme Court of India gave the following verdict in this case.

The court set aside the order of the Bar Council of India dated September 8, 1985 which set aside
the U. P State Bar Council’s order of disbarment of the respondent. The court upheld the order of
disbarment of the respondent owing to gross professional misconduct under Section 35 of the
Advocates Act, 1961. The court furthermore, stated that the act of the Advocate not only
amounts to professional misconduct but also has been convicted of an offence involving moral
turpitude which is a ground for Disqualification for enrolment from State rolls as per Section 24-
A(1)(a) of the Act. The court order the removal of respondent-advocate from state rolls.
SHAMBHURAM YADAV V. HANUMANDAS KHATRI (AIR 2001 SC 2509)

Facts of the Case

The advocate of the Bar Council of Rajasthan was referred to the disciplinary committee of Bar
Council alleged for writing a letter to his client and suggesting him to give bribe to judge and
obtain several favourable orders in his favour and for that reason the said advocate held guilty of
professional misconduct. The list of professional misconduct is not exhaustive; the Supreme
Court has widened the scope and ambit of the term misconduct in numerous instances. Generally
legal profession is not a trade or business, it’s a gracious, noble and decontaminated profession
of the society. Members belonging to this profession should not encourage deceitfulness and
corruption, but they have to strive to secure justice to their clients. The credibility and reputation
of the profession depends upon the manner in which the members of the profession conduct
themselves. It’s a symbol of healthy relationship between bar and bench

The complaint was that the advocate – responded who appeared as a counsel in civil suit wrote a
letter to his client–Mahant Rajgiri inter alia stated that another client has told him that concerned
judge accepts bribe and give favourable orders in his favour and so he should send amount of Rs.
10,000/-. In case he can influence the judge himself there is no need to send such amount to be
given to the judge. The State Bar Council observe that the respondent advocate had admitted the
contents of the letter and said that it constitutes professional misconduct and suspended him from
practice for a period of two years with effect from June 15, 1997.

Issues before the Court

1. Whether the Disciplinary committee of the Bar Council of India has erred in giving
judgment?
2. Whether the disciplinary committee can modify the earlier order passed by another
disciplinary committee by taking a different view of the same set of facts in exercise of
power of review

Arguments of the Parties

Appellant - Appellant contended that the earlier order cannot be modified by the disciplinary
committee while deciding a review petition. Therefore, the disciplinary committee has erred
while delivering judgement. It is also said that the disciplinary bodies are guardians of the due
administration of justice. They have requisite power and rather a duty while supervising the
conduct of the members of the legal profession to inflict appropriate penalty when members are
found to be guilty of misconduct.

Respondent - Responded referred to disciplinary committee and from the said quotation it is
evident that the advocate was simply given a reply to the query put by his client regarding the
conduct of the judge and as such it remained a fact that it was not an offer on the side of the
advocate to bribe a judge. Further, he argued that he has joined the profession since 1951 and has
past clean record in the legal profession.

Legal Aspects of the Case

Advocates Act – Sec. 35, 44

Judgment of the Court

The Supreme Court held that the earlier order considering all relevant aspects directed expulsion
of respondent from profession which could not be lightly modified while deciding a review
petition. It is evident that the earlier committee on consideration of all relevant facts came to the
conclusion that the advocate was worthy of remaining in the profession.

It is evident that the Bar Council considered that a high standard of morality is required from the
lawyer more so from a person who has put in 50 years in profession. One expects from such
person a very high standard of morality and unimpeachable sense of legal and ethical propriety.
Since the Bar Councils under the Advocates Act have been entrusted with the duty of guarding
the professional ethics, they have to be more sensitive to the potential disrepute on account of
action of a few black sheep which may shake the credibility of the profession and thereby put at
the stake other members of the bar. Considering these factors Bar Council had inflicted in its
earlier order the condign penalty.

Under these circumstances the apex court has no hesitation in setting aside the impugned order
dated June 4, 2000 and restoring the original order of the Bar Council of India dated July 31
1999. The appeal thus allowed in the above terms with cost quantified at Rs. 10,000/-.
JOHN D’SOUZA V. EDWARD ANI (1994 SCC 2 64)

Facts of the Case

In the present case, the respondent filed a professional misconduct complaint with the Karnataka
State Bar Council, alleging that the Appellant, an Advocate who had drafted his late mother-in-
law's will and kept it in his safe custody after entering it in his register of wills and providing a
receipt, had failed to return the will despite written requests. It was further claimed that when the
testatrix's new lawyer asked the Appellant for the will, the Appellant denied possessing it,
forcing the testatrix to prepare a new will.

Issues of the Case

Whether the act of the appellant to refuse to surrender a will executed by the respondent’s
Mother-in-law amounts to professional misconduct?

Arguments of the Parties

Appellant - According to the senior counsel, the will in issue was cancelled and returned on
January 13, 1982, probably to Mrs. Mary Raymond, who was still living at the time. That fact is
reinforced by an endorsement made by the appellant's wife in the register of Wills, and even if
the will had not been returned, the appellant cannot be claimed to have committed any breach of
trust by keeping the revoked will, which had become a mere shred of paper following its
revocation. It was also argued by the learned counsel that the will had become an unquestionable
res nullius (no man's thing) and an unworthy paper without any value, and no dishonest or
indirect motivation or profit could be claimed by the applicant by preserving the cancelled will
for his own gain.

Respondent – They argued that the appellant who kept the will in custody was in the nature of a
trustee and was entitled as such to return the will upon request, and that it was irrelevant whether
it was oblique or private. The will cannot be said to have become res nullius (nobody's stuff)
because neither the testatrix, Mrs. Mary Raymond, nor the respondent, as the legal agent of the
testatrix's estate, had abandoned it.
He claims that the appellant should have received, or be presumed to have received, the first
letter, which was mailed from Manchester (U.K.) under Certificate of Posting. The respondent
further argued that the facts and circumstances of the case sufficiently demonstrated that the
appellant had flagrantly breached the client-attorney relationship constituted by law and betrayed
the respondent's faith and faith in him.

Legal Aspects of the Case

Advocates Act – Sec. 14, 35

Judgment of the Court

In the final judgment, after an overall evaluation of the facts and circumstances of the case the
Supreme Court held that the appellant had not returned the will and that it did not find any reason
to interfere with the impugned order of the Disciplinary Committee of the Bar Council of India.
The appeal was thus dismissed and the court’s temporary restraining order was revoked.

The appealing party had not returned the will however requests were made first by the testatrix,
at that point by her new legal counsellor and by the respondent who was additionally holding the
force of lawyer from the testatrix when he composed the main letter and was the agent delegated
under the subsequent will. The appealing party has no privilege to retain the will. Then again, he
was bound in obligation to return the said will when requested in light of the fact that the
instrument was endowed to his guardianship by the testatrix, Mrs. Mary Raymond just on trust.
BAR COUNCIL OF ANDHRA PRADESH V. KARUPATI SATYANARAYANA (AIR 2003 SC 178)

Facts of the Case

A complaint was filed

before the District Munif
Magistrate by G.
Nagabhanam
against K.Satyanarayanam
for retaining the decretal
amount received from
execution proceedings. The
case was transferred to the
Bar Council of Andhra
Pradesh which held that
retaining money was
professional misconduct on
part of
the advocate. On appeal to
the Disciplinary Committee
of the Bar Council of India
('DC of BCI'), it set aside
the order passed by the
State Bar Council ('SBC')
removing the name of
Kurupati Saatyanarayanan
from the roll of SBC on
the
grounds of professional
misconduct in the
discharge of his duties.
DC of BCI
observed that there was no
intention on part of the
government counsel to
misappropriate money.
Therefore, the Bar Council
of Andhra Pradesh appealed
before the DC of BCI on this
said order.
A complaint was filed
before the District Munif
Magistrate by G.
Nagabhanam
against K.Satyanarayanam
for retaining the decretal
amount received from
execution proceedings. The
case was transferred to the
Bar Council of Andhra
Pradesh which held that
retaining money was
professional misconduct on
part of
the advocate. On appeal to
the Disciplinary Committee
of the Bar Council of India
('DC of BCI'), it set aside
the order passed by the
State Bar Council ('SBC')
removing the name of
Kurupati Saatyanarayanan
from the roll of SBC on
the
grounds of professional
misconduct in the
discharge of his duties.
DC of BCI
observed that there was no
intention on part of the
government counsel to
misappropriate money.
Therefore, the Bar Council
of Andhra Pradesh appealed
before the DC of BCI on this
said order.
A complaint was filed
before the District Munif
Magistrate by G.
Nagabhanam
against K.Satyanarayanam
for retaining the decretal
amount received from
execution proceedings. The
case was transferred to the
Bar Council of Andhra
Pradesh which held that
retaining money was
professional misconduct on
part of
the advocate. On appeal to
the Disciplinary Committee
of the Bar Council of India
('DC of BCI'), it set aside
the order passed by the
State Bar Council ('SBC')
removing the name of
Kurupati Saatyanarayanan
from the roll of SBC on
the
grounds of professional
misconduct in the
discharge of his duties.
DC of BCI
observed that there was no
intention on part of the
government counsel to
misappropriate money.
Therefore, the Bar Council
of Andhra Pradesh appealed
before the DC of BCI on this
said order
The Advocate Kurapati Satyanarayana was engaged as counsel by Shri Gutta Nagabhushanam in
the execution proceedings and the Advocate Kurapati Satyanarayana has received a total sum of
Rs.14,600/- on various dates in the execution proceedings on behalf of his client but the said
money was retained by the Advocate Kurapati Satyanarayana and has conducted grave
professional misconduct.

The Disciplinary Committee of Bar Council of India observed that the conduct of the appellant
shows that Kurapati Satyanarayana never refused to return the money the same and also, he had
made part payment of the total amount. Perusal of the file shows that Kurapati Satyanarayana
could not make the payment of the remaining amount because of his family circumstances as the
remaining amount was utilized by him in his treatment. The Committee concluded that Kurapati
Satyanarayana never wanted to misappropriate the decretal amount and hence, the Bar Council
of India set aside the State Bar Council’s order holding that the delinquent had not committed
any professional misconduct though there might have been some negligence on his part, which
did not involve any moral turpitude.

The Bar Council of Andhra Pradesh has filed this appeal against the aforesaid order of the
Disciplinary Committee of the Bar Council of India.

Issues of the Case

I. Whether or not retaining client’s money by an advocate amount to professional

misconduct?
II. Whether or not in this case retaining client’s money is just negligence on the part of
Kurapati Satyanarayana?
III. Whether or not Kurapati Satyanarayana is guilty of professional misconduct?
IV. Whether the Disciplinary committee of the Bar Council of India has erred in giving
judgement?
V. Whether the disciplinary committee can modify the earlier order passed by another
disciplinary committee by taking a different view of the same set of facts in exercise of
power of review?

Arguments of the Parties

Appellant - The appellant Bar Council of Andhra Pradesh filed appeal petition against the order
of the Bar Council of India which set aside its order of removing the name of Kurapati
Satyanarayana from the State roll as it was of the view that he committed one of the gravest
professional misconduct as he retained money belonging to his client Shri Nagabhushanam.

Respondent - The point raised before the court on behalf of the advocate responded is that the
appeal filed by the Bar Council of Andhra Pradesh is not maintainable as it is not the person
aggrieved so this appeal is not maintainable.

Judgment of the Court

Apex Court found that the order of the Disciplinary Committee of the Bar Council of India is
unsustainable. It is sad that the Disciplinary Committee of the Bar Council of India which is the
highest body to monitor the probity of the legal profession in the country chose to trivialise and
treat a very grave professional misconduct on the part of the Delinquent lightly by saying that the
Delinquent did not make the payment to the de-facto complainant as he had utilised the money
for his personal need for treatment and that such like instances do take place when a person is in
trouble.

The Supreme Court said that the finding of the Bar Council of India that there was no intention
on the part of the advocate to misappropriate the money of his client was not only “unfounded
and perverse” but also lacked the serious thought which was required to be given to the
disciplinary committee of the Bar Council of India in the discharge of quasi-judicial functions
while probing into such grave instances. • Further, it said that it was neither pleaded nor shown
that Mr. Kurapati Satyanarayana was in dire financial difficulty which promoted him to utilize
the decretal amount for his treatment which was with him in trust. This is an act of breach of
trust. It said that “we are firmly of the view that such types of excuses cannot be entertained
being frivolous and unsustainable”.
Setting aside the Bar Council of India’s order, the Bench said that the conduct of the delinquent
advocate who is an elderly gentleman is reprehensible and is unbecoming of an advocate. It
deeply pains us that the delinquent who claimed to have practised for three decades and has
worked as Government advocate for four years should have been guilty of such serious
misconduct.

Hence, the Supreme Court has upheld the order of the Andhra Pradesh Bar Council removing the
name of the advocate from its rolls after he was found guilty of grave professional misconduct in
the discharge of his duties and also the appellant shall be entitled to the costs of this appeal,
which was assessed as Rs. 5,000/-.
EX. CAPT. HARISH UPPAL V. UNION OF INDIA, BC&AI (2003 3 SCC 45)

Facts of the Case

The petitioner, Harish Uppal, had a background as a retired army officer who served during the
1971 Liberation War in Bangladesh. Following the war, he faced allegations of embezzlement
and other irregularities. In 1972, he was court-martialed, arrested, and subsequently sentenced to
two years of imprisonment. Additionally, he was dismissed from his position. Seeking recourse,
Harish Uppal filed a review application in the court, but unfortunately, it did not yield any
positive outcome.

Undeterred, he proceeded to file a post-affirmation application but received no response for a

considerable period of time. It was only after 11 years that he finally received a reply. However,
by then, the time period for review had expired. The delay in processing his case was attributed
to the misplacement of documents and review applications, which occurred during a strike
undertaken by a group of advocates. In response to these circumstances, Harish Uppal decided to
file a writ petition in the Supreme Court, seeking a declaration that strikes initiated by legal
advocates are unlawful.

Issues Raised before the Court

1. Whether disputes between lawyers and the police authority are a valid ‘rare of rarest
cause’ for a lawyer to extend a strike/boycott for more than a day or not.
2. Whether lawyers' strikes for the Issue involving Dignity, Integrity, and Independence of
the Bar and Judiciary are legitimate or not.
3. Whether a lawyer can strike against Legislation without consultation with the Bar
Councils or not.

Arguments of the Petitioners

The argument posits that strikes are typically recognized as a legitimate tool for collective
bargaining in industrial disputes. However, it is contended that lawyers, who hold the
responsibility of being officers of the court, should refrain from utilizing strikes as a means to
exert undue pressure on the courts or their clients. The assertion is made that when lawyers call
for a strike, it can be interpreted as a breach of the contractual obligations they have with their
clients.

This viewpoint suggests that lawyers should find alternative methods for addressing their
concerns and grievances without resorting to strikes, considering their unique role within the
legal profession and the inherent responsibilities that come with it. He contended that as per legal
norms when a lawyer accepts a vakalatnama on behalf of a client, it becomes their professional
obligation to attend court. Failure to fulfill this duty would constitute professional misconduct
and potentially be regarded as contempt of court.

Judgment of the Court

Apex court directed that it is settled law and responsibility of every advocate who has
acknowledged vakalatlama to attend the trial and thus cannot deny to attend it or boycott it on
call from the Bar Association. The court is under a compulsion to hear the matters and cannot
adjourn it or otherwise, it would to tantamount to becoming a privy to the strike. Lawyers have a
responsibility and obligation to uphold the smooth functioning of the court system. They owe a
duty to their clients to ensure their interests are safeguarded. Strikes, on the other hand, disrupt
the administration of justice and can potentially jeopardize the interests of clients.

Therefore, lawyers cannot engage in activities that disrupt court proceedings and compromise the
wellbeing of their clients. Apex court rejected the submissions made on behalf of the Bar
Council of U.P as during analysis it became clear that submissions made on advocates act are not
up to the mark. The constitutional bench of this court held that it is a respectable duty of the Bar
Council to uphold the dignity of the very court and to counter all types of unprofessional acts, no
bar council should ever consider a call to a respectable Bar Association for strikes or boycott i.e.,
to create hindrance in the procedure established by law and any requisition to boycott, the strike
should be consigned to the place it actually belongs the waste paper basket.

The court also directed of formation of a grievance redressal committee at the Taluk/subdivision
Tehsil level, at the district level, High court and supreme court. Even then court held the
abstention should not be more than one day. Taking further cognizance the court stated that “they
are not powerless or helpless Section 38 of the Advocate Act provides that even in disciplinary
matters the final appellate authority is the Apex Court”.