Project Report ON Professional Ethics: Powers and Procedures of Disciplinary Committee of Bar Council of India
Project Report ON Professional Ethics: Powers and Procedures of Disciplinary Committee of Bar Council of India
Project Report ON Professional Ethics: Powers and Procedures of Disciplinary Committee of Bar Council of India
ON
PROFESSIONAL ETHICS
ACKNOWLEDGEMENT
I express my heartfelt gratitude towards my sub
teacher from showing the confidence in me and
giving me an opportunity to take up this project so I
could enhance my sphere of knowledgement. I would
also like to thank panjab university for providing us
with such esteemed faculty and giving us an
opportunity to be a part of this university.
In the end I would like to thank lord almighty and
parents for being my constant back and helping me
pass all my endeavors with flying colors.
Submitted to : Ms. Amritpal Kaur
Submitted by: Yash Sura
36. Disciplinary powers of Bar Council of India(1) Where on receipt of a complaint or otherwise the Bar Council of India has reason to believe
that any advocate (Note:- The words "on the common roll" omitted by Act 60 of 1973, sec.25)
whose name is not entered on any State roll has been guilty of professional or other misconduct,
it shall be refer the case for disposal to its disciplinary committee.
(2) Notwithstanding anything contained in this Chapter, the disciplinary committee of the Bar
Council of India may, [(Note:- Subs. by Act 60 of 1973, sec.25, for the words "of its own
motion".) either of its own motion or on a report by any State Bar Council or an application made
to it by any person interested] withdraw for inquiry before itself any proceedings for disciplinary
action against any advocate pending before the disciplinary committee of any State Bar Council
and dispose of the same.
(3) The disciplinary committee of the Bar Council of India disposing of any case under this
section, shall observe, so far as may be, the procedure laid down in Section 35, the references to
the Advocate-General in that section being construed as references to the Attorney-General of
India.
(4) In disposing of any proceedings under this section the disciplinary committee of the Bar
Council of India may make any order which the disciplinary committee of a State Bar Council
can make under sub-section (3) of section, 35 and where any proceedings have been withdrawn
for inquiry [(Note:- Subs. by Act 60 of 1973, sec.26) before the disciplinary committee of the Bar
Council of India] the State Bar Council concerned shall give effect to any such order.
Section 36 of the Advocates Act empowers the Bar Council of India to refer, in certain
circumstances, the case for disposal to its disciplinary committee. Sub-section (1) of section 36
provides that where on reciept of a complaint or otherwise the Bar Council of India has reason to
believe that any advocate whose name is not entered on any State roll has been guilty of
professional or other misconduct, it shall refer the case for disposal to its Disciplinary Committee.
Sub-section (2) of section 36 provides that the Disciplinary Committee of the Bar Council of
India may either on its own motion or on report by any State Bar Councilvor on an application
made to it by any person interested, withdraw for inquiry before itself any proceedings for
disciplinary action against any advocate pending before the disciplinary committee of any State
Bar Council and dispose of the same. The Rules framed by the Bar Council of India on this issue
are notable. These are found in Chapter I of Part VII of the Rules of Bar Council of India. Rule 18
provides that where a State Bar Council makes a report referred to in Section 36(2) of the Act, the
Secretary of the State Bar Council shall send to the secretary of the Bar Council of India all the
records of the proceedings alongwith the report. An application by a person interested in the
withdrawal of a proceeding referred to in Section 36(2) of the Advocates Act shall be signed by
him and it shall set out the necessary facts supported by an affidavit and accompanied by the fee
prescribed. For making an order on an application of a party or otherwise under section 36(2) of
the Act, the disciplinary committee of the Bar Council of India may call for a Report of the
Disciplinary Committee seized of the proceeding and issue notice to the respondant. It may
require the parties to file such statements as it considers necessary and call for the record of the
proceedings. It may examine the witnesses. In the proceeding before the disciplinary committee
of the Bar Council of India under section 36,unless otherwise directed, the parties may appear in
person or by advocate who shall file a vakalatnama.
Sub-section (3) of Section 36 provides that in disposing of the case, the disciplinary committee of
the Bar Council of India shall observe, so far as may be, the procedure laid down in Section 35,
references to the Advocate-General in that section being construed as reference to the AttorneyGeneral of India.
Sub-section (4) of Section 36 provides that where any proceedings have been withdrawn for
enquiry before the disciplinary committee of the Bar Council of India, the State Bar Council
concerned shall give effect to any such order. It also makes it clear that in disposing of any
proceedings under this section, the disciplinary committee of the Bar Council of India may make
any order which the disciplinary committee of a State Bar Council can make under sub-section
(3) of Section 35.
42. Powers of disciplinary committee.
(1) The disciplinary committee of the Bar Council shall have the same powers as are vested in a
civil court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following
matters, namely ;a. summoning and enforcing the attendance of any person and examining him on oath ;
b. requiring discovery and production of any documents ;
c. receiving evidence on affidavits ;
d. requisitioning any public record or copies thereof from any court or office ;
e. issuing commissions for the examination of witness or documents ;
f. any other matter which may be prescribed ;
Provided that no such disciplinary committee shall have the right to require the attendance of
a. any presiding officer of a court except with the previous sanction of the High Court to which
court is subordinate ;
b. any officer of a revenue court except with the previous sanction of the State Government.
(2) All proceedings before a disciplinary committee of a Bar Council shall be deemed to be
judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, 1860
(45 of 1860), and every such disciplinary committee shall be deemed to be a civil court for the
purpose of sections 480, 482 and 485 of Code of Criminal Procedure, 1898 (5 of 1898).
(3) For the purpose of exercising any of the powers conferred by sub section (1), a disciplinary
committee may send to any civil court in the territories to which this Act extends, any summons
or other process, for the attendance of a witness or the production of a document required by the
committee or any commission which it desires to issue, and civil court shall cause such process to
be served or such commission to be issued as the case may be, and may enforce any such process
as if it were a process for attendance or production before itself.
(4) (Note:- Sub-sections (4) and (5) ins. by Act 60 of 1973, sec.32) Notwithstanding the absence
of the Chairman or any member of a disciplinary committee on a date fixed for the hearing of a
case before it, the disciplinary committee may, if it so thinks fit, hold or continue the proceedings
on the date so fixed and no such proceedings and no order made by the disciplinary committee in
any such proceedings shall be invalid merely by reason of the absence of the Chairman or
member thereof on any such date.
Provided that no final orders of the nature referred to in sub-section (3) of Section 35 can be
made in any proceedings unless the Chairman and other members of the disciplinary committee
are present.
(5) Where no final order of the nature referred to in sub section (3) of section 35 can be made in
any proceedings in accordance with the opinion of the Chairman and the members of a
disciplinary committee either for want of majority opinion amongst themselves or otherwise, the
case, with their opinion thereon, shall be laid before the Chairman of the Bar Council concerned
or if the Chairman if the Bar Council is acting as the Chairman or a member of the disciplinary
committee, before the Vice Chairman of the Bar Council, and the said Chairman or the Vice
Chairman of the Bar Council, as the case may be, after such hearing as he thinks fit, shall deliver
his opinion and the final order of the disciplinary committee shall follow such opinion.
Section 42 deals with the powers of the disciplinary committee of a Bar Council. The provisions
of Section 42 have already been stated in this Chapter in the context of the powers of the
disciplinary committee of the State Bar Council. Section 42-A makes it clear that the provisions
of Section 42 shall, so far as may be, apply in relation to the disciplinary committee of the Bar
Council of India.
From Section 43 it becomes clear that the disciplinary committee of the Bar Council of India may
make such order as to the costs of any proceedings before it as it may drew fit and any such order
shall be executable as if it were an order of the Supreme Court.
Section 44 provides that the disciplinary committee of a Bar Council may of its own motion or
otherwise review any order within 60 days of the date of that order passed by it under Chapter V
dealing with the punishment of advocate for misconduct.
PART VII
DISCIPLINARY PROCEEDINGS AND REVIEW
CHAPTER-I
Complaints against Advocates and Procedure to be followed
by Disciplinary Committees of the State Bar Council and the Bar
Council of India
(Rules under Section 49 (1) (f) of the Act)
A. Complaint and Enquiry under Section 35, 36 and 36B of the
Act
1. (1) A complaint against an advocate shall be in the form of a
petition duly signed and verified as required under the Code of Civil
appears for the same party, it is sufficient to serve the notice on any
of them.
7. (1) If in an enquiry on a complaint received, either the
complainant or the respondent does not appear before the
Disciplinary Committee in spite of service of notice, the Committee
may proceed ex-parte or direct fresh notice to be served.
(2) Any such order for proceeding ex-parte may be set aside on
sufficient cause being shown, when an application is made supported
by an affidavit, within 60 days of the passing of the ex-parte order.
Explanation : The provisions of Section 5 of the Limitation Act,
1963 shall apply to this sub-rule.
8. (1) The Disciplinary Committee shall hear the Attorney General or
the Additional Solicitor General of India or the Advocate General, as
the case may be or their advocate and parties or their advocates, if
they desire to be heard and determine the matter on documents and
affidavits unless it is of the opinion that it should be in the interest of
justice to permit cross examination of the deponents or to take oral
evidence, in which case the procedure for the trial of civil suits shall
as far as possible be followed.
(2) On every document admitted in evidence, the following
endorsement shall be made which shall be signed by the Chairman
or any member of the Committee :The Disciplinary Committee of Bar Council of .....................
Exhibit No .............................. Date of Document..............................
Produced by ................................. Date .....................................
Signature of .................
(3) The exhibits shall be marked as follows :(a) Those of the complainant as C1,C2, etc.
(b) Those of Respondent as R1, R2,etc.
shall be the date on which the said Order is first received in the office
of the Bar Council after it has been signed by all the members
thereof. For the purpose of limitation the date of the Order shall be
the date on which the contents of the Order duly signed as aforesaid
are communicated to the parties affected thereby.
15. Save as otherwise directed by the Disciplinary Committee or the
Chairman thereof, certified copies of the records of a case pending
before the Disciplinary Committee may be granted to the parties or to
their counsel on an application made in that behalf and on payment
of the prescribed fee.
16. (1) The Secretary of a State Bar Council shall send to the
Secretary of the Bar Council of India quarterly statements of the
complaints received and the stage of the proceedings before the State
Bar Council and Disciplinary Committees in such manner as may be
specified from time to time.
(2) The Secretary of the Bar Council of India may however call for
such further statements and particulars as he considers necessary.
17. (1) The Secretary of every State Bar Council shall furnish such
particulars and send such statements as may be considered necessary
by the Secretary of the Bar Council of India for purposes of Section
36B of the Act and send all the records of proceedings that stand
transferred under the said Section.
(2) The date of receipt of the complaint or the date of the
initiation of the proceedings at the instance of the State Bar Council
shall be the date on which the State Bar Council refers the case for
disposal to its Disciplinary Committee under Section 35 (1)* .
(3) Whenever the records of proceedings are transferred under
Section 36B of the Act to the Council, the requirements in Rule 9 (2)
of this Chapter shall be followed by the Disciplinary Committee of
24. (1) The appellant shall be required to file six typed sets of the
following papers properly paged and indexed if there is only one
Respondent and as many more sets as there may be additional
respondents for the use of the Disciplinary Committee and by the
other parties and for the record :(a) the complaint, statement in the defence of the advocate,
(b) the evidence oral and documentary and such other papers on
which parties intend to rely.
(c) any other part of the record as may be directed by the
Committee.
Where any of the above papers is in a language other than
English, English translations thereof shall be filed.
(2) The Respondent shall, if he so desires, or if so called upon,
file six sets of typed papers of any part of the record on which he
intends to rely. He shall also file English translations of such papers
as are not in English.
25. The Registrar shall give notices to the parties or their advocates
or their recognised agents informing them of the date, time and place
of the hearing of the appeal.
A copy of the memorandum of appeal shall be sent to the
respondent along with the notice of the appeal.
26.
(1) No appeal filed under Section 37 of the Act against an order
of punishment of an advocate shall be permitted to be withdrawn on
account of settlement or compromise or adjustment of the claim
against the advocate.
(2) Every appeal filed under Section 37 of the Act by or against an
advocate shall abate on the death of the advocate so far as he is
concerned.
27. In regard to appearance of a party in the appeal, Rule 6 of this
36. The Secretary of the State Bar Council or the Bar Council of
India as the case may be, shall send to each of the parties in the
proceedings, a certified copy of the final order made under Sections
35, 36, 36B or 37, signed by him as Registrar of the Disciplinary
Committee and bearing the seal of the State Bar Council/Bar Council
of India as the case may be. No charges shall be payable on the
copies so sent. Charges as prescribed under the rules shall however
be payable for all additional copies of the said order applied for.