First Year SEM - 1 Training Test Assignment
First Year SEM - 1 Training Test Assignment
First Year SEM - 1 Training Test Assignment
Practical
Q1.
Q. 1 What are the functions of the State Bar Council.
Answer:
The State Bar Councils:
The State Bar Councils are statutory bodies established under Section 3 of the Advocates
Act, 1961. These were set up as different councils for the states and union territories of
India. They act as regulatory bodies, making rules for the legal profession and education in
their respective states and also act as the representatives of the advocates of that state,
thereby acting in their interests. Section 6 of the Advocates Act, 1961 also lays out the
functions to be performed by the State Councils in their respective states. They work in
coordination with and under the supervision of the Bar Council of India, which is a national
body established under Section 4 of the Advocates Act, 1961.[1]
The Advocates Act, 1961, Section 3 of the Advocates Act establishes the State Bar Councils
for the States and Union Territories mentioned in the Section 3 (1), while Section 3 (2),
defines the membership of these state councils. The later sub-clauses define the
chairmanship, vice chairmanship, the grounds for disqualification and other related matters.
Section 7 of the Act elaborates upon the functions that are to be performed by the State Bar
Councils and the funds that are constituted by it for various purposes. This is discussed in
detail below –
1. The State Bar Councils are empowered to admit persons as advocates on roll and
maintain such roll.
2. They act upon the complaints made regarding the misconduct of advocates on its roll.
3. The State Bar Councils are responsible for the growth and promotion of the Bar
Associations so that it can effectively administer its functions.
4. The State Bar Councils need to bring in reform in the Legal Profession.
5. They organise and conduct various talks, seminars, workshops, conferences on various
topics by eminent to jurists to better equip the Bar and publish Legal journals and other
materials to keep the Bar updated of the latest developments in the field.
6. The State Bar Councils organize legal aid for the poor and downtrodden and also manage
the funds allocated to or raised by it.
7. They are also tasked with conducting periodic elections for its various posts and also
ensure that these are conducted in a free and fair manner.
8. The State Bar Councils also regulate the Legal Education imparted in the respective State
Universities.
Apart from this, the State Bar Councils are also empowered under Section 6 (2) of the act to
constitute funds for many purposes including –
1. For giving financial assistance for welfare schemes meant for the indigent, disabled or
other deserving advocates.
Section 8 of the act elucidates the lengths of terms of persons holding office in the State Bar
Councils while Section 24 defines the minimum qualifications for eligibility for membership
of these councils. The State Councils are also empowered to make rules, which need to
approved by the Bar Council of India, to carry on the purposes under Sections 16 to 28
(Chapter III).
(c) to entertain and determine cases of misconduct against advocates on its roll
(d) to safeguard the rights, privileges and interest of advocates on its roll
(dd) (Note:- Ins. by Act 70 of 1993, sec.2 (i) (a)) to promote the growth of Bar Associations
for the purpose of effective implementations of the welfare schemes referred to in clause
(a) of sub section (2) of this section and clause (a) of sub section (2) of section
(ee) (Note:- Ins. by Act 60 of 1973, sec.6) to conduct seminars and organize talks on legal
topics by eminent jurists and publish journals and papers of legal interest.
(gg) (Note:- Ins. by Act 70 of 1993, sec.2 (I) (b)) to visit and inspect Universities in
accordance with the directions given under clause (I) of sub-section (1) of section7;
(2) [ (Note:- Sub-sections (2) and (3) subs. by Act 60 of 1973, sec.6, for sub-section (2).) A
State Bar Council may constitute one or more funds in the prescribed manner for the
purpose of].
a. Giving financial assistance to organize welfare scheme for the indigent, disabled or other
advocates.
b. Giving legal aid or advice in accordance with the rules made in this behalf
(3) A State Bar Council may receive any grants, donations, gifts or benefactions for all or any
of the purposes specified in sub-section (2) which shall be credited to the appropriate fund
or funds constituted under that sub-section
“The fundamental aim of Legal Ethics is to maintain the honour and dignity of the Law
Profession, to secure a spirit of friendly co-operation between the Bench and the Bar in the
promotion of highest standards of justice, to establish honourable and fair dealings of the
council with his client opponent and witnesses; to establish a spirit of brotherhood in the
Bar itself, and to secure that lawyers discharge their responsibilities to the community
generally.”
The Courts have observed that an advocate is under a commitment to maintain the
standard of law and guarantee that the open equity framework is empowered to work at its
maximum capacity. An advocate ought to be stately in his obligations towards the court, to
his kindred legal advisors and the disputants. He ought to loyally conduct himself to the
gauges of professional conduct and behaviour recommended by the Bar Council of India in
Chapter II, Part VI of the Bar Council of India Rules.
Section 49(l)(c) of the Advocates Act, 1961, engages the Bar Council of India to make
obligations in order to endorse the gauges of professional conduct and decorum to be seen
by the advocates. It has been clarified that such principles will have an impact just when
they are endorsed by the Chief Justice of India. It has additionally been clarified that
principles made comparable to the guidelines of expert lead and behaviour to be seen by
the advocates and in power before the beginning of the Advocates (Amendment) Act, 1973,
will proceed in power until adjusted or revoked or revised as per the arrangements of this
Act.
In the activity of the standard creation power under Section 49(1)(c) of the Advocates Act,
1961, the Bar Council of India has made a few principles in order to endorse the measures of
expert direct and behaviour to be seen by the advocates. Section II of Part VI of the Rules
confined by the Bar Council of India manages the principles of expert direct and decorum. It
contains a few rules which set out the gauges of expert lead and behaviour. These rules
determine the obligations of a promoter to the Court, customer, a rival with partners, and
so on. Notwithstanding, from the Preamble, it turns out to be evident that these standards
contain ordinances of lead and decorum received as general aides and the particular notice
thereof ought not to be interpreted as a foreswearing of the presence of other similarly
basic, however not explicitly referenced.
Professional ethics encompasses an ethical code governing the conduct of persons engaged
in the practice of law as well as persons engaged in the legal sector.
Accordingly, the set of rules that govern their professional conduct arise out of the duties
that they owe to the court, the client, their opponents and other advocates. Rules on the
professional standards that an advocate needs to maintain are mentioned in Chapter II, Part
VI of the Bar Council of India Rules. These Rules have been provided under section 49(1)(c)
of the Advocates Act, 1961.
Rules on an advocate’s duty towards the Court:
Act in a dignified manner
Respect the Court
No communication in private
Refusal to act in an illegal manner towards the opposition
Refusal to represent clients who insist on any unfair means of practice
Appear in proper dress code
Not represent the establishment of which he is a member
Not appear in matters with pecuniary interest
Not stand as surety for the clients
Rule 11 gives that a promoter will undoubtedly acknowledge any short in the Court or
Tribunal or before some other expert in or before which he proposes to rehearse at charge
predictable with his remaining at Bar and furthermore the idea of the case. The standard
clarifies that in unique conditions he may decline to acknowledge a specific brief. In the case
S. J. Chaudhary v. State the Supreme Court has clarified that if an advocate acknowledges
the brief of a criminal case, he should go to the case every day and on the off chance that he
doesn’t do as such (i.e., on the off chance that he neglects to go to the case), he will be held
obligated for a break of expert obligation.
Rule 12 gives that a promoter will not usually pull back from commitment once
acknowledged without adequate reason and except if sensible and adequate notification is
given to the customer. On the off chance that he pulls back himself from the case, he will
undoubtedly discount such a piece of the expense as has not been earned.
Rule 13 clarifies that a promoter ought not to acknowledge a brief or show up for a situation
wherein he has the motivation to accept that he will be an observer. The principles give that
if, in the wake of being occupied with a case it becomes evident that he is an observer on a
material inquiry of certainty, he ought not to keep on showing up as a promoter on the off
chance that he can resign without risking his customer’s advantages. In Kokkanda B.
Poondacha v. K.D. Ganpathi, the Court hosts; one gathering to procedures can’t refer to
advocate speaking to the opposite side as an observer without unveiling regarding how his
declaration is applicable as it will bring about denying the opposite side of administrations
of the advocate.
Rule 14 gives that an advocate will, at the initiation of his commitment and during the
continuation thereof, make all such full and plain divulgence to his customer identifying with
his association with the gatherings and any enthusiasm for or about the debate as are
probably going to influence his customer’s decisions in either captivating him or proceeding
with the commitment.
Rule 15 gives that it is the obligation of a promoter to maintain the interests of his customer
boldly by all reasonable and fair methods regardless of any horrendous result to himself or
some other. It is the obligation of an advocate to safeguard an individual blamed for
wrongdoing paying little heed to his sincere belief regarding the blame of the blamed and in
the release for this obligation he ought to consistently hold up under at the top of the
priority list that his dependability is to the law which necessitates that no man ought to be
sentenced without satisfactory proof.
Rule 16 gives that a promoter appearing to the arraignment of a criminal preliminary will so
direct the indictment that it doesn’t prompt conviction of the honest. The standard clarifies
that the concealment of material fit for setting up the honesty of the denounced must be
carefully maintained a strategic distance from.
Rule 19 clarifies that it is the obligation of an advocate not to follow up on the guidelines of
any individual other than his customer or his approved specialist. It gives that an advocate
will not follow up on the guidelines of any individual other than his customer or his
approved operator.
The expense of a promoter relying on the achievement of the suit is considered rather than
the open approach. An agreement for unexpected charges is likewise hit by Section 23 of
the Indian Contract Act. Consent to share the returns of the case may add up to champerty.
In such conditions, the promoter has direct enthusiasm for the topic and can’t act with the
feeling of separation or with the demeanour of objectivity. Such understanding corrupts the
respectable profession. To forestall such an understanding principle 20 gives that an
advocate will not specify for an expense dependent upon the aftereffects of suit or consent
to share the returns thereof.
Rule 21 gives that an advocate will not accept or traffic in or specify for or consent to get
any offer or enthusiasm for any noteworthy case. In any case, it has been clarified that
nothing in this Rule will apply to stock, offers, and debentures or government protections or
to any instruments which are, for now, by law or custom debatable or to any commercial
archive of title to products.
Rule 22 gives that a promoter will not, legally or by implication, offer for or buy either in his
own name or in some other name, for his own advantage or to assist some other individual,
any property sold in the execution of an announcement or other continuing in which he was
in any capacity expertly locked in. The standard clarifies that this disallowance doesn’t keep
a promoter from offering for or buying for his customer any property which his customer
may himself lawfully offer for or buy, given the advocate is explicitly approved recorded as a
hard copy for this benefit.
Rule 23 gives that an advocate will not modify expenses payable to him by his customer
against his very own obligation to the customer which risk doesn’t emerge throughout his
work as a promoter.
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Q3.
Q. 3 What is the procedure of ‘enrolment of an advocate’ as given under the Advocates
Act, 1961?
Answer:
procedure of ‘enrolment of an advocate’ as given under the Advocates Act, 1961
Procedure to enrol into the Bar Council:
The Bar Council of India is a well-known established statutory body in India governing the
legal domain of the nation. This body was formed under the statute of Advocates Act, 1961
with an objective to present standards of conduct to be carried out at a professional level
along with the role of governing the functioning of all other State Bar Councils. The Bar
Council of India is a corporate body by itself, coming under the purview of the Ministry of
Law and Justice under the Government of India. Being a corporate body, it has a seal and a
perpetual succession over movable as well as immovable property and therefore by its very
name can sue anyone infringing the same or be sued for its own deeds.
The Bar Council of India consists of a total of 18 members which is inclusive of the Attorney
General of India and the Solicitor General of India. The rest 16 members are the
representatives of the State councils across the nation. A national-level examination that
helps to determine advocates about to profess the legal profession is the All India Bar
Council Examination that acts as a screening procedure to identify the potentials in an
individual aspiring to be an advocate and contribute in the legal profession. Only after
qualifying in the examination, the Bar Council of India issues a certificate certifying that the
advocate can practice in the nation. Thus, the examination is the entrance to the legal
domain of practising for any aspiring advocate. An analytical and aptitude assessment, the
All India Bar Council Examination is indeed an ingredient in the Indian legal system.
c) Has been granted permission to carry on legal practice in any other country.
2) The person should be more or equal to the age of twenty-one years but should not be
less than that.
3) A degree in law has been obtained from any university recognised under the Bar Council
of India. If the national hails from some other country then a degree in law in the foreign
university will suffice provided the degree is recognised in India under the Act by the Bar
Council of India.
4) Any other conditions or parameters laid down by the State councils should be carried out
by the person.
Advocates Enrolment
Currently, any individual can be enrolled as an advocate under the State Bar Council if he or
she has necessarily appeared in the examination held by the Bar Council of India and have
thereby cleared the same. As the Advocates Act, 1961 have mentioned, the States are
provided with the flexibility to frame their own regulations for the enrolment of an advocate
in the council. The committee that is formed to look after the procedure of enrolment is
provided with the authority to carry out scrutiny of the applications submitted by the
candidates those have applied for the examination. An enrolment fee needs to be paid
according to the provision of Section 24(1)(f) of the Advocates Act, 1961 of an amount of
Rs.600 to the respective State Bar Council and an amount of Rs 150 is to be deposited to the
Bar Council of India. Separate demand drafts are to be used for the mode of payment of
these amounts to the different councils. Although different states have been provided with
the freedom to set their own rules, the majority of the States ask the candidate to provide
with certain requirements which are:
1) Application along with the showcasing of the law degree obtained from a university which
follows the parameters laid down by the council.
The candidates who are eligible are appointed as advocates of State Bar Councils on its role.
It is through the State Bar Council that the contact details and other information of
relevance can be found when it comes to the appointment of the advocates. Scrutiny of the
application of the candidate is to be carried out by the Council’s Enrolment Committee. The
eligible candidates who are to be appointed as an advocate are issued a Certificate of
Enrolment by the State’s Bar Council.
2) Admit card of the examination or any other documents that have an equivalent value with the
same.
3) Marksheet of either the three-year LLB course or the five-year LLB course.
4) The mark sheet of the final year of the three or five years of LLB degree.
These requirements are essential to be provided for the candidates belonging to the
university located in the State of West Bengal. For the candidates who hail from any
university that is located in any other States across the nation, the documents that need to
be provided by them are as hereunder:
2) Admit card of the examination or any other documents that have an equivalent value with the
same.
3) Marksheet of either the three-year LLB course or the five-year LLB course.
4) The mark sheet of the final year of the three or five years of LLB degree.
It is to be noticed that all these above documents should be original and should be enclosed
with the photocopies of the same which is to be having the initials of the advocate who
provided the candidate with the certificate of good character along with the concerned
enrolment number. The cost of the enrolment form issued by the West Bengal State Bar
Council worth Rs.700 with a separate enrolment fee of Rs 3000 for the general category
candidates and Rs.1500 for the candidates with the Scheduled Caste and Scheduled Tribe
certificate. Along with these several other fees focusing on other spheres needs to be
provided with by the candidate.
2) A degree of LLB of either 3 years or 5 years is required to be eligible for appearing in the
examination.
3) The applicant should be a registered advocate under any State Bar Councils.
5) The applicant cannot apply for the examination in the same year he or she is qualifying with an
LLB degree.
1) The official link of the All India Bar Council examination needs to be visited.
3) Registration confirmation to be sent by the medium of email in the registered mail id.
7) Print out of the form and the receipt is required for future references.
Therefore, the steps towards the way of reaching out and giving the examination which has
been provided above are one of the ingredients in the procedure of enrolment in the Bar.
Conclusion:
The profession of lawyers is a holy profession for they are burdened with the most
important responsibility on their shoulder, the responsibility of remedying injustice. The Bar
Council of India along with the State Bar Council provides a platform for these lawyers to
enrol as an advocate in order to keep a record as in how many practising advocates on the
record are there in the country. This ensures stability in the functioning of the bar in India.
Along with the function of governance, the Bar Council of India executes representative
roles by means of safeguarding the rights and privileges and interests associated with an
advocate. This is carried out through fund creation by means of providing financial
assistance in order to layout welfare mechanisms for the advocates.
Therefore, these things make it clear as to why arises the necessity of enrolling in the Bar
Councils. The State Bar Councils and the Central Bar Council work in coexistence with each
other to carry out the functions and roles efficiently as has been laid down previously. As
the legal profession is gaining importance with the evolution of the world, the Bar Council of
India which was established under the Advocates Act, 1961 is also gaining recognition more
than ever. Every direction, idea, development has been made and is being made for the
welfare of the advocates in India. This regulating statutory body has come up with a very
organised and well-structured procedure for the enrolment of the advocates. Stages have
been divided in order to avoid any kind of causality in the procedure. With advocates being
enrolled in the Bar by means of the procedure, the domain of legal aid regulation is also
being carried out swiftly. Legal aid is reaching out to the poor and the needy ones. The Bar
Council lays down etiquettes for advocates to abide by. Thus, in this way it is promoting the
legal education and profession across the nation.
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Q4.
Q. 4 What are the rights and privileges of an advocate?
Answer:
The Rights and Privileges of An Advocate:
INTRODUCTION:
An Advocate is a professional or an expert in the field of law. In India each state has its own
Bar Council whose role is to register the Advocates who are willing to practice. He/she is a
person who is deemed to be a responsible person in society
According to Sec 2(a) of the Advocates Act, 1961, advocate means an advocate entered in
any roll
[1] under the provisions of this Act. In layman language, it means a law graduate
[2] which can be termed as a legal practitioner
[3] It is esteemed that every person has rights and duties to be designated.
Right means legal, social, or ethical principles of freedom or entitlement i.e. rights are the
fundamental normative rules about what is allowed of people or owed to people according
to some legal system, social convention, or ethical theory.
BACKGROUND:
Over the last 25 years, advocacy rights have played a crucial role in broadening the concept
of what people with rights can accomplish. This advocacy rights have been instrumental in
shaping new images of people with prominent rights. In emphasizing individual
independence and empowerment since the beginning of the various movements in the
early 1970s, advocates have tried to manifest that providing rights to advocates are vital
part of society.
Before the establishment of Advocates act, 1961, various Acts where been enacted in the
interest of public and many provisions of the Act itself were amended too.
The main section of the Advocate act, 1961 came into effect on 1st June when enacted as a
response to the demand for unification of the Bar by a legal practitioner.
Special provision to attorney was also provided under Advocates Act but was omitted by the
amendment.
LEGAL PROVISIONS
Various Acts have been formed in order to consolidate the law relating to legal practitioners
and to not deprive any of their rights as provided to them.
Provisions for rights are provided under various legislations such as: -
Advocates Act, 1961
Constitution of India, 1949
Legal Practitioners Act, 1879
Also through various judgments also, these rights were taken into effect such as:-
It was observed in the case of Sampath Kumar v. Bar Council of India, the right to practice as
an advocate is merely a statutory right and not a fundamental right.
It was held in the case of Praveen Pandey v. The State of Madhya Pradesh, that if the
advocate has been restrained from doing legal work, then it will be termed as a violation of
their right as also mentioned under Art 19(1)(g) of the constitution.
In the case of Ramnath Lathi v. State of Madhya Pradesh, provides that an advocate who
does not suffer disqualification has the right to plead.
RIGHTS OF ADVOCATES
Various rights that are provided to the advocates are listed below: -
Sec 30 of Advocates Act – the right of Advocate to practice – it means an exclusive right
given to advocates to practice law before courts and tribunals. (specific protection)
Section 33 of the Advocates Act confers an exclusive and monopoly right on the enrolled
advocate or pleader to plead and practice in a Court of law.
Sec 23 of Advocates Act – right of pre audience – it means that an advocate can represent or
present his client in the court of law till when he/she wants to speaks in the front of the
audience and cannot be stopped until he disturbs the decorum of court.
Sec 26A of Advocates Act – Has the power to remove their name from roll at request to the
state bar council.
Right to plead – this right is provided to advocates to prove his/her innocence against the
false disqualifications charged upon them.
Article 19(1)(g) – the right of individuals to practice of their own choice. (fundamental right)
Sec 55 of the Legal Practitioners Act,1879 – saves the rights of certain legal practitioners
such as, pleaders, vakils, attorneys, mukhtars and revenue agents, who shall continue to
enjoy the same rights to practice.
Article 177 provides with the rights of the advocate General to speaker otherwise take in
part in the proceedings of the state Legislature or any committee of the Legislature of which
he may be a member of.
CONCLUSION
It is been seen that the Advocates Act which is the primitive act in mentioning the rights of
an advocate is an elaborative act dealing in various aspects in relation to the legal profession
and it is prominent to state that according to the Section 29 to 34 of the Advocate Act, 1961,
Practicing is a right of Advocates.
These were all rights as provided to the advocates so that individuals who are the protectors
of the law of the country are not deprived of their rights. Also, with the rights duties are also
given to the law practitioners.
It may, however, be noted that the Advocates Act, 1961, came into existence over four
decades back, but still, Section 30 of this Act, is not enforced.
In view of the above provisions, it is crystal clear that nobody, except an advocate who is
enrolled with the State Bar Council, can argue a case before the Hon’ble Supreme Court,
High Court, Tribunal, Appellate Authority, Assessing Authority, or person, and cannot
practice the profession of law either in litigious as well as non-litigious matters with
beholding their rights.
It is the right of an Advocate to represent his client in the court of law and to claim audience
in courts. According to Section 30 of the Advocates Act, subject to the provisions of this Act,
every advocate whose name is entered in the State roll shall be entitled as of right to
Practise throughout the territory -----
a) In all Courts including the Supreme Court
b) Before any Tribunal or person legally authorized to take evidence
c) Before any other authority or person whom such advocate by or under any law for the
time being in force entitled to practise.
4) Right of Fee:
As per Rule 11 of chapter II of Part VI of the Bar Council of India Rules, he has a right for a
fee consistent with his standing at the bar.
Privileges of Advocate:
Some privileges of Advocates are:
1) Privilege of exemption from arrest:
An advocate, while going to the court or during the proceedings before a Court and while
returning from the court, is exempted from civil arrest. However, this does not apply to
arrest for contempt of court or arrests for criminal offences.
As India was a colony of British dominion, therefore prior to this act, the English Common
Law principles governed this area of law. In fact, the provisions of this legislation deeply
voice these principles. This act was the first piece of legislation in India, governing the act of
Contempt of Court. It had 3 sections in total.
1). of removing the doubts regarding the powers of High Court Division in punishing
contempt of court; and
2). of defining and limiting the power of the High Court Division in punishing the contempt
of court.
Section 2 of this act talked about the power of High Court to exercise the same jurisdiction,
powers and authority in respect of contempt of Courts subordinate to it, with the same
procedure and practice as it would have used, had the contempt happened with it. But the
proviso to this section bars the High Court from exercising the powers given in section 2 in
case the contempt is an offence punishable under the Indian Penal Court.
Punishment for Contempt: - Section 3 of this act empowers the High court to award a
punishment of imprisonment which may extend to six months, or with fine, which may
extend to Rs. 2000/-, or with both. However, the court is barred from awarding punishment
that exceeds the one provided for in this section, both for itself and for the subordinate
courts. Further, the punishment can be waved off on the service of an apology by the
awardees to the satisfaction of the court.
This act was repealed by a subsequent act called the Contempt of Court Act 1952.
The Contempt of Court Act 1952;
This act sought to remove the shortcomings of the act of 1926 by widening the jurisdiction
of the High Court and the scope of contempt law.
The act of 1926 did not contain provisions for contempt of courts subordinate to chief
courts and court of judicial commissioner. Also, the High Court was not given power to look
into the matter of contempt committed outside the local jurisdiction of it by someone who
is not subject to its jurisdiction.
2). empowered the High Court to intervene in the matter of contempt for itself and for the
subordinate court whether committed within or outside its local jurisdiction, committed
even by someone who is not subject to the jurisdiction of the courts mentioned.
In spite of these improvements this act did not define the term ‘contempt’ and ‘what
constitute’ it. This created uncertainty and gave very wide power to the judicial officers to
interpret the in their own ways. Thus, there remained a ‘grey area’ with regard to the field
of Contempt of Court.
3). to regulate the process required to be followed in achieving the purpose of the act.
What ‘constitute’ Contempt of court under the ambit of this act?
Section 2 (a) to this act defines two categories of Contempt of court, namely, civil contempt
and criminal contempt.
Civil Contempt- Wilful disobedience to any judgment, decree, direction, order, writ or other
process of a court or wilful breach of an undertaking given to a Court by a person in civil
proceedings, on the faith of which the Court sanctions a course of action.-Section 2(b)
Criminal Contempt- The publication of any matter, done whether by spoken or written
words, or by signs, or by visible representation or of doing any other act; which; do or have
the tendency to;
scandalise or lower the authority of, any court;
prejudice, or interfere with the due course of any judicial proceeding; or
Interfere or obstruct the administration of justice in any other manner. -Section 2(c)
An act of a judicial officer and a lawyer deliberately acts contrary to any order of a court and
publishes libellous allegations against sitting Judges of High Court, respectively.
Publication of information relating to proceeding in chambers or in camera is contemptuous
if;
It is contrary to the provisions of any enactment;
The court expressly prohibits the such publication;
The court sits in chambers or in camera for reason connected with public order or the
security of the State; and
The information relates to a secret process, discovery or invention which is an issue in the
proceedings. Section 7.
Which instances ‘do not’ constitute contempt of court within the ambit of this act?
What are the punishments prescribed for Contempt of Court under this act?:
A contempt of court may be punished with simple imprisonment for a term which may
extend to six months, or with fine which may extend to two thousand rupees, or with both.
Section-12(1).
Provided that this punishment is not imposed unless the court is satisfied that the contempt
is of such a nature that it substantially interferes, or tends substantially to interfere with the
due course of justice.
In case a person is found guilty of Civil Contempt, he can be detained in a civil prison by a
court for such period not exceeding six months as it may think fit, if imposition of fine
doesn’t satisfy the court to meet the ends of justice. Section-12(3).
Any disobedience, breach, publication or other act which is punishable under this act for
contempt of court may also be punishable under the provision of any other act. Section-9.
Where the contempt of court has been committed by a company with the consent or
connivance of, or is attributable to any neglect on the part of, any director, manager,
secretary or other officer of the company, such persons shall also be deemed to be guilty of
the contempt and the punishment may be enforced, with the leave of the court, by the
detention in civil prison of such director, manager, secretary or other officer. Section-4&5.
However, lack of knowledge or neglect on part of such persons with regard to contempt,
can serve as a valid defence against such punishment.
The accused may be discharged or the punishment awarded to him may be remitted on
apology being made to the satisfaction of the court. Provided that an apology shall not be
rejected merely on the ground that it is qualified or conditional if the accused makes it bona
fide. Section-12(1)- Explanation.
What are the powered vested with High Court with regard to awarding punishment for
Contempt?
Every High Court shall;
Have and exercise the same jurisdiction, powers and authority, in case of contempt of
courts subordinate to it, in accordance with the same procedure and practice, as it has and
exercises, in respect of contempt of, itself. But every High Court is barred from taking
cognizance of contempt offence committed against court subordinate to it which is
punishable under Indian Penal Code, 1860. Section-10.
Have jurisdiction to inquire into or try contempt of, itself or of any court subordinate to it,
whether alleged to have been committed within or outside the its jurisdiction, and whether
the person alleged of such contempt, is within or outside such limits. Section-11.
Every court is duty bound to impose a sentence which is not in excess of that specified in
this act for any contempt either in respect of itself or of a court subordinate to it. Section-
12(2).
What is the procedure to be followed in case contempt is committed in the face of the
Supreme Court or a High Court? Section-14.
In case the Supreme Court or the High Court finds a person guilty of contempt, committed in
its presence or hearing, the court may cause;
What is the procedure to be followed in cases of criminal contempt (other than the ones
mentioned in the above question?
The Supreme Court or the High Court may take cognizance of the offence by themselves or
by any motion passed by the Advocate- General or by any other person with the Advocate-
General’s consent. In the case of any criminal contempt of a subordinate court, the High
Court may take action on a reference made to it by such subordinate court. And, every such
motion or reference should mention the charge of contempt. Section-15.
Every person charged of criminal contempt should be served a notice of every proceeding
undertaken in section 15,
This notice should be accompanied by;
A copy of the motion or reference if initiated at the instance of an Advocate General or any
Subordinate Court, as the case may be.
If the court has the reasons to belief that the person charged under section 15 would
abscond or run away from the legal proceedings, then tit can attach his property of such
value or amount in the manner provided in the Code of Civil Procedure, 1908
Any person charged with contempt under Section 15 may file an affidavit in support of his
defence, and the court may determine the matter of the charge either on the affidavits filed
or after taking evidence as may be necessary, and pass such order as the justice of the case
requires.
Hearing of cases of criminal contempt to be by Benches (Section-18)
Every case of criminal contempt under Section 15 shall be heard and determined by a Bench
of not less than two Judges. However, this shall not apply to the Court of a Judicial
Commissioner.
Procedure for Appeals (Section-19)
An appeal shall lie from any order or decision of High Court to punish for contempt
Where the order or decision is that of a single judge, to a Bench of not less than two Judge
of the court;
Where the order or decision is that of a Bench, to the Supreme Court.
Where order or decision is that of the Court of the Judicial Commissioner in any Union
territory, such appeal shall lie to the Supreme Court. (2)
While taking up the appeal, the appellate court may order that
In the case of an appeal to a Bench of the High Court, within thirty days; and
In the case of an appeal to the Supreme Court, within sixty days, from the date of the order
appealed against.
What are the provisions related to Contempt of Court by a Judge, magistrate or other
person acting judicially?
A judge, magistrate or other person acting judicially shall also be liable for contempt of his
own court or of any other court in the same manner as any other individual is liable and the
provisions of this Act shall, so far as may be, apply accordingly. However, no observations or
remarks made by a judge, magistrate or other person acting judicially, regarding a
subordinate court in an appeal or revision pending shall be taken as contemptuous. Section-
16.
The proceedings of contempt shall initiate by the court, either on its own motion or
otherwise, before the expiry of a period of one year from the date on which the contempt is
alleged to have been committed. Section-20.
What are other relevant provisions that need to be looked at?
This act shall not apply to contempt of Nyaya Panchayats or other village courts. Section-21.
This act is to be applied in addition to, and not in derogation of, other laws relating to
contempt. Section-22.
The Supreme Court or, as the case may be, any High Court, may make rules, not inconsistent
with the provisions of this Act, providing for any matter relating to its procedure. Section-23.
Conclusion:
The Contempt of Court Act 1971 is the legislative instrument that governs the law of
Contempt of Court in India. Running across 24 sections, this act repealed the Contempt of
Court Act 1952 (Section-24). On a broader scale it helps in maintaining the sanctity of the
most reserved branch of the democracy; the Judiciary.
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Q6.
Q. 6 Write a note on Bar-Bench relationship.