SATENDER SINGH

Bar and Bench : the everlasting relation

Introduction
Attainment of justice for all the parties of the case and the society at a large is the main
objective of our Judicial system. The Bar and Bench are the essential partners for fulfilling
this objective of our judicial system, with the judiciary at the top of a vibrant bar. Both the
partners must have mutual understanding and respect between each other, and each
partner has its duties which they should perform diligently and effectively in order to
enable the system to function in its best way.

Bar and Bench

There are two parts in a court where cases are conducted namely:

1. The Bench, i.e. the place where the judges take their seat.
2. Bar, i.e. the place where the advocates stand.
The judges are known as the “Bench” and the Advocates are known as the “Bar”. The
relation between the judges and Advocates are referred to as the Bar and Bench relation.
Speedy justice and the faith the public has on the judiciary depend on the relation between
the judges and the Advocates and in the administration of justice the role of Advocates is
equally important as that of judges. Providing justice is the joint responsibility of both the
judges and the Advocates.

Duties of Bar and Bench in administration of justice

In the administration of justice, Bar and Bench plays an important role. Following are the
duties of the Bench and the Bar which they should perform for the administration of
justice.

Duties of the Bench

In the state, there is no office of such powers as that of the judge, as the powers which are
held by judges are greater than any other functionary. The citizen’s life, liberty, personal
domestic happiness, reputation, and property all are subject to the wisdom of the judges
and all the citizens have to comply with the judge’s decision. If judges become corrupt there
will be no security left with citizens to life and liberty, and also there will be no guarantee

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of personal domestic happiness to them. Thus, the state needs a judiciary that is strong,
powerful, and impartial. The judges shall perform the following duties:

Patient Hearing

While hearing cases the judge shall not be biased, and shall not form the opinion regarding
the merit of the case until he heard both the parties, he should act in the interest of justice.
Sufficient opportunity shall be given to the advocates by judges in order to present their
case.

Impartiality

Judges shall act impartial, and shall not do anything in favor of his friend and relatives, he
must do everything for justice.

Avoidance of Interruptions

When advocates examine witnesses in a case or argue in case, the judge shall make sure
that there are no interruptions. Unwanted interruption or bad comments by the judges
during the hearing of the case disturbs the advocates and as a result, he may not be able to
present his case properly. But the judges can interfere in the following circumstances:

 To prevent waste of time.

 To check the relevancy of arguments put forward by the advocates.
 To get clarifications on a point that is not clear to him.
 To express his opinion on a point.
 To promote speedy disposal of cases.

Interpretation of Statutes

In some cases, interpretations of acts, codes, regulations, orders, etc has to be done by the
court, during the process of administration of justice, in order to remove the ambiguity or
inconsistency or to know the actual meaning of the provisions. So in such cases, proper
interpretation of statutes should be done by the court to render justice to the parties.

Avoidance of unreasonable adjournments

Without reasonable and sufficient grounds cases shall not be adjourned. One of the reasons
for mounting arrears of cases is unreasonable adjournment which causes hardship to the
parties.

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Speedy disposal

Cases that come before the court shall be disposed of as soon as possible, as when justice is
delayed it means justice is denied.

Avoiding harsh comments

Harsh comments shall be avoided by the judge in the court about the advocate’s lack of
knowledge in law, similarly, without any sufficient reason, they can not ask the advocates
to leave the court. Judges should possess a calm temper.

Independence

The protection of the independence of the judiciary should be the prime duty of the judge.

Meeting of judges and advocates

At regular intervals, meetings shall be conducted between the judges and the Advocates,
such that they can put forward their difficulties in front of each other and it can be sorted
out, this will help in strengthening the Bar and Bench relation.

Integrity

The character and the conduct of a judge shall be praiseworthy, and he should have
personal and intellectual integrity.

Industriousness

A judge should regularly update his knowledge and should know all the recent
developments and changes made in the law.

Duties of the Bar

Advocates assist the court in the administration of justice, they are the officers of the court.
Advocates present the case before the court after collecting material related to that case,
and thus helps the court in arriving at the judgment. In the process of administration of
justice, an advocate is a partner of the judiciary. An advocate shall perform the following
duties-

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 1. A respectful attitude shall be maintained by advocates towards the courts, bringing
in mind that for the survival of the society the dignity of the judicial office is
essential.
2. Efforts shall be made by advocates in order to prevent his/her client from adopting
unfair practices concerning the court.
3. By any illegal or improper means, an advocate shall not try to influence the judgment
of the court.
4. Dignity and self-respect shall be maintained by an advocate while presenting his/her
case in front of the judge.
5. An advocate shall help the court in the trial of the case by presenting clearly the laws
which are relevant to the particular case.
6. An advocate shall not present any fact in front of the court which he knows to be
false.
7. An advocate shall not ask for an adjournment of the case without any sufficient
reason.
8. An advocate shall always appear in court in a presentable manner and a prescribed
dress. In public places, he should not wear a gown or bands.
9. If an advocate knows a judge personally he should not practice before him.
10. An advocate shall not interrupt in between when an opposite council or judge is
speaking.
11. If an advocate has a monetary interest in any case, he shall not plead in such a case.
12. An advocate shall not represent any organization or institution if he is a member of
the executive committee of such an organization or institution.
13. An advocate shall not apply any personal influence over the decision of the court,
nor he should give any kind of impression that he possesses personal influence with
the judge before whom he practices.

What judge requires from an advocate

An advocate is found to be useful and effective by the judge if he satisfies all the needs of
the judge, and a judge requires an advocate to help him in reaching the conclusion of the
case and thereby helping in the performance of his own role. It’s impossible for an advocate
to do so unless he is equipped with the required skills.

Bar and Bench relation

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The Supreme Court in P.D. Gupta v. Ram Murti and Others case has laid down his opinion on
Bar and Bench relation in the following words:

“An advocate should be fair not only towards his client but also towards the court as well as
towards the opposite party of the case. The process of administration of justice has to be
kept clean and uncorrupted. The Administration of justice not only concerns the Bench, it
concerns both the Bench and the Bar. The principal ground for recruiting judges is the Bar,
both the judges and the advocates complement each other. The main duty of an Advocate is
to present the case in court by informing the court about the law and the facts of the case
and to help the court in arising at the conclusion of the case. For good administration of
justice, an advocate shall possess good advocacy skills, so that he can put forward the case
in court properly and not get interrupted by the judge unless the interruption is necessary.”

In the case of Mahant Hakumat Rai v. Emperor the high court held that :

“An advocate can claim their right to be heard by the court before which they are practicing
while performing their duty they shall be fearless and independent, and also they have the
right to protest against any irregular procedure done by any judge. He would be perfectly
right in asking for getting a proper hearing and objecting to any interruption made by the
judge in order to disturb him while he is arguing the case in court and performing his duty
towards the client. However, the presence of professional etiquette coupled with the
recognition by the judiciary will help in reducing the conflicts between the Bar and Bench”.

Conclusion
An independent and fearless Bar is not preferred over an independent Bench, similarly, an
independent Bench is also not preferred over an independent and fearless Bar, neither of
them is superior over the other, both are essential for a free society. The freedom given to
the Bar requires an independent judiciary, through which if necessary the freedom that is
given to the Bar, be vindicated. A well-behaved, responsible, cultured, and a leaned Bar is
one of the potent means for assuring judges their independence.

Role of bar-bench in the administration of justice

The practice of law and the administration of justice is vitally important to each other.
There is no other office in the state that possesses the same level of authority as that of the
judge. Judges carry enormous power, far exceeding that of any other official in the
government or military. The common people’s lives and liberty, individual domestic
happiness, property, and public image are subordinate to the judges’ wisdom, and citizens
are held accountable for their judgments. If judicial power is corrupted, there is no longer
any assurance of life, liberty is forfeited, and there is no longer any guarantee of personal or

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domestic happiness. A strong judiciary that is active, unbiased, and competent is the most
important thing a state can have. Judges must carry out their responsibilities due to the
importance of judges in the maintenance of civil and orderly society.

The administration of justice is not limited to the courtroom. It also has significance for the
Bar. The preservation of cordial relations between the Bar and the Bench necessitates
respect and understanding on both sides of the bar. The roles of attorneys and judges are
supplementary to one another. The primary source of judges’ recruitment is the legal
profession. As a result, they are both members of the same community. The Bar and bench
need to sustain cordial relations with one another. However, because of the nature of the
responsibilities that attorneys and judges must fulfill, they may engage in dialogues that are
sometimes amusing, sometimes heated, and sometimes tough.

Bar-bench relations : an overview

 When it comes to democratic institutions, the independent judiciary is a pillar of

stability, and the bar is the cornerstone of that stability. The Bench reflects the
appearance, character, and behavior of the judges as the bench is considered to
be a mother and a bright mirror for the judicial officers.
 Those who practice law are just as much a part of the justice delivery system as
the judges themselves, and it is the closest possible harmony between the Bar
and the Bench that will produce the best results in accomplishing the targets
embodied in our Constitution. The Bar and the Bench are two opposing sides of
the same coin, as the saying goes. The administration of justice cannot be
successful unless there is unity between the Bar and the Bench. Otherwise, the
required outcomes to maintain the grandeur of the institution will not be
achieved.
 An advocate’s scandalizing of the court is truly despoiling the very foundations of
justice, and such behavior by an advocate tends to bring dishonor to the entire
administration of justice. The behavior of an advocate towards the court is
always one of uniform reverence, regardless of the status of the court in which
the case is being heard. The advocate’s personal view of the judge must not be
shown in his conduct because he has a responsibility to maintain the respect of
the judiciary as a professional organization. At the same time, it is the
responsibility of the judiciary not only to be courteous to members of the Bar but
also to do everything in their power to progress the high traditions of the
profession.
 Contempt of court can be imposed on a lawyer or a judge for their discourteous
behavior or misbehavior. There are two types of contempt of court: civil
contempt and criminal contempt. Consider the following examples: using
derogatory language against an individual judge, harassing him with transfer or
removal from office, casually addressing the judge, questioning his authority to
ask questions, or making disgraceful accusations against an individual judge. It is

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 considered to be contempt of court. He is responsible for his uncourteous
behavior and may be prosecuted for contempt of court.
 The opinion about the Bar and Bench relationship has been laid down in the case
of P.D. Gupta v. Ram Murthi and others(1997) in which the primary focus was on
how the relationship between the Bar and the Bench affects the administration of
justice.

Role of the bar in strengthening the bar-bench relation

Advocates are court officers, and they are required to aid the court in the administration of
justice on behalf of the court. Advocates gather resources relevant to the case to aid the
court in reaching an (outcome) in the case. An advocate works in collaboration with the
judiciary to ensure that justice is administered properly. Advocates, like judges, play a
significant role in the administration of justice. An advocate has to practice the following
steps to preserve and strengthen the relation between Bar and Bench:

 They should show reverence to the judges and refrain from disparaging the
judges or the judiciary in any way whatsoever.
 They should assist the judges in the court hearing of the cases by conveying the
relevant law accurately and understandably during the trial. They should never
behave in a way that would displease the judges.
 If the judges make a mistake in their decision, they should not be criticized. They
should attempt to correct the error in the order by filing an appeal.
 They should not exert stress or control on the judges to obtain a favorable order.
An advocate should refrain from seeking to manipulate the verdict of the court
through the use of illegal or inappropriate means.
 If the judge’s conduct is annoying and disrespectful to the advocates, they should
refrain from engaging in violent talks with the judge in question. The issue should
be addressed with the judge in his chambers, and the Bar Association should
make a formal request that such misbehavior not be repeated.
 It is the responsibility of an advocate to make every effort to constrain and avert
his or her client from engaging in unfair practices with the court.

Role of the bench in strengthening the bar-bench relation

A judge is a public official who hears and decides cases in the court of law, thereby
resolving a legal dispute. Judges wield enormous power, far exceeding that of any other
official in the government or military. A judge has to practice the following steps to
preserve and strengthen the relation between Bar and Bench:

 In the same way that the advocates respect the judges, the judges should respect
the advocates as well.

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 It is important for judges to approach the case with an open mind and to do so
without bias or prejudice, as appropriate. They will act in a manner that is
beneficial to the interests of justice. They will give the advocates sufficient time to
present their case in its entirety.
 Judges are expected to act in a fair and unbiased manner. They are not permitted
to act in the interests of any prosecutor or party to the dispute.
 When required, judges should refrain from interfering with the lawyer’s
interviews of witnesses and presentation of the argument. A lawyer’s
professional reputation may be harmed by undue intrusion and disparaging
messages from the judges, and he may be unable to effectively present the case.
In most cases, a judge’s intervention is confined to the following factors: avoiding
reiteration and time-wasting, checking for pertinence, providing clarification,
sharing an opinion of the courts on a particular point, and promoting the
expeditious disposition of the case.
 In the course of administering justice, the courts are frequently called upon to
decipher the law’s rules, directives, regulations, codes, bylaws, circulars, notices,
and other documents to determine the true significance of the statutes or to clear
up confusion or incoherence in the legislation. In these instances, a proper
explanation should be provided to provide full justice to the parties involved in
the situation.
 Adjournments are granted to allow the parties a reasonable amount of time to
present their arguments. Cases will not be adjourned where possible unless there
are reasonable and appropriate grounds to do so. Excessive postponement of
cases, which causes the parties to suffer financial difficulties is the most common
cause of mounting backlogs in the court system.
 The case of ‘justice deferred is justice denied’ will also be resolved as soon as
possible as well. When older cases are given priority over new cases, new cases
should not fall behind in their disposition.
 Judges should refrain from making unjustified public remarks about a lawyer’s
lack of legal insight in open court. They should not ask any lawyer to leave the
trial unless they have a compelling reason to do so. Likewise, they should not
request that any advocate not appear in his or her court in the future.
 Judges will have a thorough understanding of the law. They should be able to
apply the appropriate legislation to the evidence available and come to the best
possible conclusion on the matter.
 The foremost duty of ensuring and preserving judicial independence relies upon
the judges who preside over the courts.
 A judge’s moral responsibility and honesty should be unquestionable. He should
be treated with respect, both personally and intellectually. There should be
something to commend about the character and the action.

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  This entails a lot of hard work and extensive research done on a regular and
comprehensive basis. A judge’s knowledge should be kept up to date with the
most recent advancements and transformations in legislation by continuously
reviewing it.
 Briefings of judges and advocates are scheduled at regular intervals to strengthen
the relationship between the Bar and the Bench. During these sessions, the
problems of the opposing sides can be discussed, and the differences can be
resolved through discussion.
.

Conclusion
An ordinary citizen has faith and confidence in the country’s judicial system. It is the
responsibility of both the Bench and the Bar to uphold and strengthen the rule of law
through their dedication and behavior. To ensure the independence of the bar, an
independent judiciary must be in place, which can be used to defend that independence if
required.

Role of Bar and bench in Strengthening Relations for the administration of justice.

Judges have the primary responsibility to protect and preserve the independence of the
judiciary. Moreover, a Judge should be honest and morally upright. He should have
personal and intellectual integrity. His character and conduct should be praiseworthy.

Judges should not make any unwarranted comments in the open court about the
Advocate’s lack of knowledge of the law. They should not ask any Advocate to leave the
court, without sufficient reasons. Similarly, they should not ask any Advocate not to come
to his court hereafter.

Whereas,

A lawyer is a member of the legal profession who represents the clients. He is an officer of
the legal system and laso a public citizen having special responsibility for the quality of
justice. He Performs the function of an advisor, evaluator and negotiator. Therefore a
lawyer should be competent, prompt, diligent and Maintain proper communication with
clients.

A lawyer should use the law’s procedures only for legitimate purposes and to not harass or
intimidate others by using it.

He should demonstrate respect for the legal system and for those who serve it, including
judges and public officials. As a public citizen, a lawyer should also seek improvement of

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 the law, access to the legal system, the administration of justice and the quality of service
rendered by the legal profession.

Role of Bar in the administration of Justice

He should cultivate knowledge of the law beyond its use for clients, employ that knowledge
in the reform of the law and work to strengthen legal education. Further, strive for the
public’s understanding of and confidence in the rule of law and the justice system. All
difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients,
to the legal system and to the lawyer’s own interest in remaining an ethical person while
earning a satisfactory living.

The profession has a responsibility to assure that its regulations are conceived in the public
interest and not in furtherance of the self-interested concerns of the bar. So the major role
of the bar for the proper administration of justice and cordial relation with the bench are as
follow:

 Every lawyer is responsible for observance of the Rules of Professional Conduct.

 They should give due respect to the judges and they must avoid speaking ill of the judges
and the judiciary.
 They should help the judges in the trial of the cases by presenting the relevant law in the
correct and clear manner.
 They should never act in such a way as to irritate the judges.
 If the judges pronounce a wrong order, they should not criticize the judges. They should
also try to set right the wrong order through appeal.
 For getting favourable orders they should not give pressure or influence on the judges.
 If the judge’s behaviour is irritating and disrespectful to the Advocates should not enter
into a direct confrontation with the judge.
 Through the Bar Association, the matter should be discussed with the judge in his chamber
and shall request to avoid such misbehaviour.

Role of the Bench

 Impartiality: Judges should act impartially. They should not act in favour of any Advocate
or a party to the dispute. A judge has to be impartial in his dealings with advocates. The
judge should not only be free from bias or interest in any case rather he should not be
guided by obstinacy and snobbery in his conduct with advocates.
 Avoidance of Interruptions: As far as possible, Judges must avoid interruptions while the
Advocate is examining witnesses and arguing the case.
 Unwarranted interference and adverse comments by the Judges may upset the Advocates
and thereby they may not be able to present the case properly. Interference of a Judge may
be limited to the following circumstances
o to prevent repetition and waste of time
o to check the relevancy
o to get clarifications

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 o to express the court’s view on a point and
o to promote speedy disposal of the case.
 Proper Interpretation: During the process of administration of justice, often the courts have
to interpret the Act, Rules, Codes, etc. In such cases, proper interpretation should be given
with the object of rendering complete justice to the parties.

Other Roles

 Avoidance of Unreasonable Adjournments: Adjournments are given to afford a reasonable

opportunity for the parties to present the case. As far as possible cases shall not be
adjourned without reasonable and sufficient grounds. Unreasonable adjournment is the
main reason for the mounting arrears of cases causing hardship to the parties.
 Speedy Disposal: Justice delayed is justice denied, hence cases should be disposed of as
quickly as possible.
 Industriousness: It means regular and systematic hard work and study. A Judge should get
acquainted with the latest developments and changes in the law by regular updating of the
knowledge.
 Knowing in Law: Judges should possess deep knowledge of the law. They should have the
ability to apply the proper law to the disputed facts and to take the right decision.

Rights and Privileges of Advocates

1. Right to Practice:

This is the only right of advocates that has been codified and placed in the Advocates Act, of
1961 with the duties and code of conduct of lawyers. most important exclusive right
subject to fulfilment of conditions

 Section 29 Of Advocates Act: Advocates are the only recognized class of persons entitled to
practice law.
 Section 30 Right of advocates to practice – Subject to provisions of this Act, every advocate
whose name is entered in the [State roll] shall be entitled as of right to practise throughout
the territories to which this Act extends, –
o In all Courts including the Supreme Court;
o Before any tribunal or person legally authorised to take evidence; and

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 o Before any other authority or person before whom such advocate is by or under any
law for the time being in force entitled to practice.
 Section 33- Advocates alone are entitled to practise
 Section 34→ empowers High Court to make rules prescribing conditions subject to which
an advocate will be permitted to practice in the High Court and the courts below.

Hence, an advocate’s right to practice in all courts is subject to the rules made by High
Court.

2. Right to Fee:

This right is absolute as it does not depend upon winning or losing the case and in either
case, the client will have to pay up the fee.

3. Lawyer’s Right To Lien Over Client’s Papers:

It would lead to disastrous consequences as much as the flow of justice would be impeded.
Court also noted that given the socio-economic conditions prevailing in the country,
holding such a right of the legal practitioner may be susceptible to great abuse and
exploitation.

The Supreme Court also went on to declare that while it was a professional duty and moral
obligation of the lawyer to return the brief when the client required to change counsel but
also declared that not returning the files would be considered professional misconduct on
the part of the erring lawyer. In India, the rights of advocates are protected by the
Advocates Act, 1961 which outlines the legal framework governing the legal profession in
the country.

1. Right to Practice (Section 30)

2. Rights of Advocate to Pre-audience

3. Right to Freedom of Speech and Expression of a Advocate

4. Advocate’s Right to Enter any Court and Observe the Proceedings

5. Rights of Advocate Against Arrest

6. Rights of Advocate Meet with Accused

7. Rights of Advocate to Secure the Privacy of Communication

8. Right to Take Fee

9. Rights of Advocate to Refuse a Case

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Right to Practice (Section 30)

The right to practice law is a fundamental right of advocates in India. Section 30 of the
Advocates Act, 1961, explicitly recognises the right of advocates to practice in all courts,
including the Supreme Court, High Courts, and subordinate courts. Advocates have the
right to appear, plead, and act on behalf of their clients in any court or tribunal, and to
perform all other functions conferred upon them by law.

This right ensures that advocates can freely exercise their professional skills and represent
their clients without any undue restrictions, thus upholding the principles of access to
justice and the rule of law.

However, this right is subject to certain conditions, such as the advocate being enrolled
with the appropriate Bar Council, complying with the code of conduct for advocates, and
possessing the necessary qualifications and experience as required by law.

Rights of Advocate to Pre-audience

Advocates in India have the right to pre-audience, which means the right to access and
inspect the records, documents, and proceedings of a case before it is taken up for a
hearing in court. This right allows advocates to prepare their cases thoroughly, understand
the facts and legal issues involved, and effectively represent their clients.

The right to pre-audience is essential for advocates to provide competent legal

representation and ensure that their client’s interests are adequately safeguarded. This
right is recognised by various provisions of the Advocates Act, 1961, and the rules of
procedure of the courts, which provide advocates with the opportunity to examine the case
records and gather relevant information before presenting their arguments in court.

Right to Freedom of Speech and Expression of a Advocate

Advocates have the right to freedom of speech and expression, which includes the right to
express their opinions or criticisms about the legal system, judiciary, its functioning, or its
decisions. This right is recognised as a fundamental right under Article 19(1)(a) of the
Constitution of India, which guarantees the freedom of speech and expression to all
citizens.

Advocates play a vital role in advocating for the rights and interests of their clients, and
they have the right to voice their opinions or concerns on legal matters that affect their
clients or the legal profession as a whole. However, this right should be exercised
responsibly and in adherence to the code of conduct for advocates, which prohibits any
disrespectful or derogatory remarks about the judiciary or other legal professionals.

Advocate’s Right to Enter any Court and Observe the Proceedings

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Advocates have the right to enter any court and observe the proceedings, even if they are
not representing any party in the case. This right allows advocates to gain knowledge and
insights into the functioning of the court, understand the legal process, and stay updated
with the latest developments in the law.

Advocates can also learn from the arguments and strategies of other advocates, observe the
judicial process, and enhance their legal skills through this right. This right is recognised by
the provisions of the Advocates Act, 1961, and the rules of procedure of the courts, which
permit advocates to be present in courtrooms and observe the proceedings.

Rights of Advocate Against Arrest

Advocates have the right against arbitrary arrest or detention while performing their
professional duties. This right ensures that advocates can freely and fearlessly represent
their clients without any hindrance or intimidation.

The Advocates Act, 1961, specifically provides for this right under Section 32, which states
that no advocate shall be arrested or detained in any civil or criminal case while going to or
attending a court, or while returning from a court. However, this right is subject to certain
exceptions, such as when an advocate is reasonably suspected of committing a cognisable
offence, or when an arrest warrant is issued against the advocate by a competent court.

Rights of Advocate Meet with Accused

Advocates can meet and consult with their clients, including accused persons, in private,
without any interference or monitoring. This right is essential for advocates to effectively
represent their clients and provide legal advice and assistance.

The right to meet with accused persons in private is recognised by various provisions of
the Advocates Act, 1961, and the rules of procedure of the courts. Advocates can meet their
clients in police custody or in jail, and have the right to discuss the case, gather information,
and prepare the defence strategy in confidence.

This right ensures that advocates can uphold the principles of attorney-client privilege and
maintain the confidentiality of their communication with their clients.

Rights of Advocate to Secure the Privacy of Communication

Advocates have the right to secure the privacy of their communication with their clients,
which includes the right to protect the confidentiality of information shared by their
clients. This right is crucial for advocates to maintain the trust and confidence of their
clients, and to effectively represent their interests.

The Advocates Act, 1961, and the rules of professional conduct for advocates, specifically
provide for this right under various provisions, which prohibit advocates from divulging
any information or communication received from their clients, except with their consent or

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as required by law. Advocates are also duty-bound to protect the privileged communication
and legal documents of their clients from any unauthorised access or disclosure.

Right to Take Fee

Advocates have the right to receive reasonable fees for the professional services rendered
to their clients. This right ensures that advocates can earn a livelihood from their practice
and sustain their profession.

The Advocates Act, 1961, and the rules of professional conduct for advocates, recognise
this right and provide guidelines for determining fees and the mode of their recovery.
Advocates are entitled to charge fees based on their professional expertise, experience, and
the nature of the case, and are duty-bound to be transparent and fair in their fee
agreements with their clients. Advocates also have the right to sue their clients for their
unpaid fees, subject to the rules of professional conduct and the applicable laws.

Rights of Advocate to Refuse a Case

Advocates have the right to refuse to accept a case if they have sufficient reasons to believe
that the case is against their professional ethics or principles, or if they have a conflict of
interest. This right ensures that advocates can maintain their independence and integrity,
and avoid any compromise on their professional duties towards the court and their clients.

The Advocates Act, 1961, and the rules of professional conduct for advocates, recognise
this right and provide guidelines for advocates to refuse a case. Advocates are not bound to
accept every case that comes their way, and they have the right to decline representation if
they have valid reasons to do so.

However, this right is subject to certain exceptions, such as when an advocate is appointed
by the court to represent a party in a criminal case, or when an advocate is engaged by the
State to provide legal aid services. In such cases, advocates may be required to accept the
case, subject to the rules of professional conduct and the applicable laws.

Conclusion

The rights of advocate in India are crucial for ensuring their independence, integrity, and
effectiveness in representing their clients and upholding the rule of law. These rights, as
enshrined in the Advocates Act, 1961, and the rules of professional conduct, provide
advocates with the necessary tools and protections to discharge their duties towards the
court, their clients, and society at large.

Important case laws highlighting the role and relation of the bar and bench

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What is a strike? Right to strike of lawyer or advocate.

Harish Uppal Ex. Captain v. Union of India A.I.R. 2003 SC 739→

This case is a prominent case based on lawyers’ right to strike. In this case, a Petition was
filed against the undertaking of strikes by lawyers to protest against the various issues
faced by lawyers against the Bar Associations across the country.

Facts

Petitioners wanted strikes by lawyers to be declared illegal as they violated the

fundamental right of the client to justice.

Strikes are a weapon used by the downtrodden who knew no better means for resolving
their grievances. lawyers as members of the elite class not justified in calling for a strike

Held

The honourable Supreme Court held in the case of Harish Uppal Ex. Captain v. Union of
India that “lawyers have no right to go on strike or give a call for boycott, not even on a
token strike. The protest if any is required, can only be done by giving a press statement.
also T.V. interviews carrying out of Court premises banners or placards, wearing black or
white or any colour arm bands, peaceful protest marches outside and away from the Court
premises..” Moreover, if the lawyers as a part of the judicial structure, decide to interfere
with the fundamental rights of the litigants, it would violate the integrity of the judicial
profession as a whole.

Also, Section 7 of the Advocate Act provides respect for the functions of the Bar Council of
India, but none of its functions authorizes it to paralyze the working of the Courts. On the
contrary, it is enjoined with a duty to lay down standards of professional conduct and
etiquette for advocates.

No Bar Council can ever consider giving a call for a strike or a call for a boycott. Recently, in
December 2022, the Bar Council of India suspended 29 Odisha lawyers who resorted to
vandalism during the strike. Pertinently, the bar body also passed an interim order
suspending the licences of the practice of all the members of the Sambalpur District Bar
Association (SDBA) until further orders.

Strike hampers right to speedy trial

Hussainara Khatoon vs Home Secretary, State of Bihar. It is a landmark judgement

which highlighted the importance of timely justice as an integral part of a fair trial. It
widened the scope of article 21.

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The lawyers’ strike, however, results in the denial of these rights to the citizens in the State.
Suspension of work or strikes are clearly illegal. And it is high time that the legal fraternity
realizes its duty to society which is the foremost.

“It is held that only in the rarest of rare cases where the dignity, integrity and
independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind
eye) to a protest abstention from work for not more than one day”.

P.D. Gupta v. Ram Murti and Others,

This case is regarding the conduct of a lawyer. A lawyer owes a duty to be fair not only to
his client but also to the court as well as to the opposite party in the conduct of the case.

Facts

One Srikishan Dass died leaving behind extensive immovable properties.

Claims to the said properties were made by one Vidyawati claiming to be the sister of the
deceased, one Ram Murti and two others who claimed themselves to be the heir of the
deceased.

Later the said properties were purchased by the advocate of Vidyawati knowing them to be
disputed.

The advocate thereafter sold the property to a third party and made a profit. A complaint
was made against the advocate to the Bar Council of Delhi.

Held:

Since the disciplinary committee of the Bar Council of Delhi could not dispose of the
complaint within one year. Therefore the proceedings had been transferred to the Bar
Council of India under Section 36-B of the Advocates Act.

The disciplinary committee of the Bar Council of India found him guilty of professional
misconduct and suspended him from practice for a period of one year.

The defendant’s advocate threw the shoes and shouted slogans in the Supreme Court of
India. Both the disrespect and proceedings for professional misconduct were charged
against him.

The Supreme Court found him guilty of contempt of court and gave him imprisonment for 4
months and a fine of 2000 Rupees.

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Suo Motto Enquiry v. Nand Lal Balwani

It was held that the law does not give a lawyer, unsatisfied with the result of any litigation,
a license to permit himself the liberty of causing disrespect to the Court or attempting, in
any manner, to lower the dignity of the Court. It was also observed that Courts could not be
intimidated into passing favourable orders.

Later Disciplinary committee as well as the Bar Council of India found him guilty of
professional misconduct. They ordered him to remove his name from the Bar Council of
Maharashtra and Goa.

Conclusion

The primary duty of the lawyer is to inform the court as to the law and facts of the case. He
has to aid the court to do justice by arriving at the correct conclusions. Moreover, it is duty
of court is to listen to the advocate patitently

Introduction to the Advocates Act and Bar Council Rules

The Advocates Act, 1961 is a comprehensive legislation that regulates the legal profession
in India. It defines the term “advocate” and lays down the qualifications, rights, and duties
of an advocate. The Act provides for the creation of the Bar Council of India (BCI), which is
the regulatory body for advocates in India, as well as the state bar councils.

The Advocates Act, 1961 empowers the bar councils to prescribe the standards of
professional conduct and etiquette for advocates and also empowers them to take
disciplinary action against advocates for professional misconduct.

Bar Council of India Rules, also known as the “Standards of Professional Conduct and
Etiquette” lays down the specific duties and responsibilities of advocates.

Any violation of the ethical duties and professional responsibilities by an advocate may
result in disciplinary proceedings before the Bar Council. The Bar Council of India has the
authority to take disciplinary action against advocates who are found guilty of professional
misconduct. The disciplinary proceedings may include inquiries, hearings, and imposition
of penalties, including suspension or cancellation of the advocate’s license to practice law.

Advocates are also subject to the jurisdiction of the courts, and the courts have the
authority to take action against advocates for any act of misconduct or breach of duties
during court proceedings. The courts may impose fines, reprimand, or take other
appropriate actions against advocates who violate their ethical duties or professional
responsibilities.

1. Duties of an Advocate towards the Court

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Duty to uphold the dignity and decorum of the court

Advocates have a solemn duty to maintain the dignity and decorum of the court. They must
conduct themselves in a manner that upholds the dignity and respect of the judiciary, and
refrain from engaging in any act or behavior that may undermine the integrity or authority
of the court.

Advocates are expected to address the court with respect, use appropriate language, and
follow the court’s rules and procedures.

Duty to assist the court in the administration of justice

Advocates have a duty to assist the court in the administration of justice. They must
present their cases honestly, fairly, and with utmost sincerity. Advocates are officers of the
court and have a duty to ensure that justice is served and that the truth is brought before
the court. They must not withhold any material information from the court or mislead the
court in any manner.

Duty of confidentiality

Advocates have a duty to maintain the confidentiality of their client’s information. They
must not disclose any confidential information or privilege without their client’s consent
unless required by law. Advocates must protect their client’s interests and ensure that their
client’s information is not divulged to unauthorized persons.

Duty to be candid with the court

Advocates have a duty to be candid and forthright with the court. They must not
misrepresent facts, cite false authorities, or present misleading arguments.

Advocates must present their cases honestly and must not engage in any activity that may
undermine the integrity of the legal profession or the administration of justice.

Duty to respect the orders of the court

Advocates have a duty to respect and abide by the orders of the court, whether they agree
with them or not. Advocates must comply with the orders of the court and must not engage
in any activity that may obstruct or interfere with the administration of justice.

Disrespecting or disregarding the orders of the court can have serious consequences,
including disciplinary action by the bar council.

Duty to be punctual and prepared

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Advocates have a duty to be punctual and prepared for all court hearings and proceedings.
Advocates must arrive in court on time, be fully prepared with all necessary documents,
evidence, and arguments, and be ready to present their case before the court.

Advocates must also be familiar with the relevant laws, rules, and procedures applicable to
their case, and must not cause any delays or adjournments due to their lack of preparation.

Duty of fair and honest advocacy

Advocates have a duty of fair and honest advocacy in court. Advocates must not knowingly
make false statements, suppress material facts, or mislead the court or opposing parties.

Advocates must present their case honestly, fairly, and in good faith, and must not engage
in any conduct that may compromise the integrity of the judicial process. Advocates must
also not indulge in any sharp practice or unethical tactics to gain an unfair advantage in
court.

Duty to refrain from criticism of the court

Advocates have a duty to refrain from making any unwarranted criticism of the court or its
officers. Advocates must not make derogatory remarks, use disrespectful language, or
engage in any conduct that may undermine the dignity or authority of the court.

Advocates must always maintain a respectful and professional demeanour in their

interactions with the court, even if they disagree with a court’s decision or ruling.

Duty to comply with court orders and directions

Advocates have a duty to comply with court orders and directions. Advocates must not defy
or obstruct the implementation of court orders or directions and must take necessary steps
to ensure compliance.

Advocates must also not engage in any conduct that may be deemed contumacious or
disobedient towards the court, as it undermines the authority and integrity of the judicial
system.

Duty to avoid frivolous or vexatious litigation

Advocates have a duty to avoid initiating or pursuing frivolous or vexatious litigation.

Advocates must thoroughly examine the merits of a case and advise their clients
accordingly.

Advocates must not file or defend a case that lacks legal or factual basis or is intended
solely to harass or burden the court or the opponent.

2. Duties of an Advocate towards Clients

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Duty of loyalty and commitment

Advocates have a primary duty towards their clients. They must act in the best interests of
their clients and diligently represent their clients’ legal rights and interests. Advocates
must maintain a high level of loyalty, commitment, and confidentiality towards their
clients.

They must strive to achieve the objectives of their client’s cases to the best of their abilities,
within the bounds of law and ethics.

Duty to provide competent and diligent representation

Advocates have a duty to provide competent and diligent representation to their clients.
They must possess the requisite knowledge, skill, and expertise to handle the legal matters
entrusted to them.

Advocates must stay updated with the developments in the law and diligently prepare and
present their cases in a competent manner. They must also communicate with their clients
regularly and keep them informed about the progress of their cases.

Duty of disclosure and informed consent

Advocates have a duty to disclose all relevant facts to their clients and obtain their
informed consent before taking any action on their behalf. Advocates must provide
complete and accurate information to their clients regarding the legal implications, risks,
and possible outcomes of their cases.

Clients have the right to be fully informed about their legal matters and make informed
decisions based on the advice and information provided by their advocates.

Duty to avoid conflicts of interest

Advocates have a duty to avoid conflicts of interest between their clients and themselves or
their associates. Advocates must not represent conflicting interests that may compromise
their loyalty, integrity, or objectivity towards their clients.

They must disclose any potential conflicts of interest to their clients and obtain their
informed consent before proceeding with the representation.

Duty to maintain professional integrity and independence

Advocates have a duty to maintain professional integrity and independence. They must not
engage in any act that may compromise their integrity, independence, or impartiality.

Advocates must not allow any undue influence, pressure, or consideration to interfere with
their professional judgment or compromise the interests of justice.

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Duty to maintain communication and updates

Advocates have a duty to maintain regular communication and updates with their clients.
Advocates must keep their clients informed about the progress of the case, court dates,
developments, and any other relevant information.

Advocates must also promptly respond to their client’s queries, concerns, and instructions,
and not ignore or neglect their clients’ interests.

Duty to act in the best interests of the client

Advocates have a primary duty to act in the best interests of their clients. Advocates must
always prioritize their client’s rights, interests, and instructions, and not compromise their
clients’ position for their own personal gain or interests.

Advocates must act with loyalty, sincerity, and professionalism in advancing their client’s
cause.

3. Duties of an Advocate towards Society

Duty to promote access to justice

Advocates have a duty to promote access to justice and ensure that justice is accessible to
all, irrespective of their social, economic, or personal background. Advocates must not
refuse legal representation to any person on the grounds of discrimination, bias, or
prejudice.

They must strive to provide legal aid and pro bono services to the indigent and
marginalized sections of society.

Duty to promote legal education and awareness

Advocates have a duty to promote legal education and awareness among the general
public. They must strive to educate the public about their legal rights, obligations, and
remedies. Advocates must also contribute to legal research, writing, and publications to
enhance the knowledge and understanding of the law in society.

Duty to uphold the rule of law and social justice

Advocates have a duty to uphold the rule of law and promote social justice. They must use
their legal skills and knowledge to prevent and redress any violation of human rights,
injustice, discrimination, or abuse of power.

Advocates must also strive to eradicate corruption and promote transparency,

accountability, and fairness in the legal system.

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4. Duties of an Advocate towards Colleagues

Duty of professional courtesy and cooperation

Advocates have a duty to treat their colleagues with professional courtesy, respect, and
cooperation. They must not engage in any conduct that may harm the reputation or
interests of their colleagues. Advocates must strive to maintain a cordial and professional
relationship with their colleagues and promote a healthy and harmonious working
environment within the legal profession.

Duty to report professional misconduct

Advocates have a duty to report any instance of professional misconduct by their

colleagues to the appropriate authorities, such as the Bar Council or the court. Advocates
must not shield or protect their colleagues who engage in unethical or illegal conduct.

Reporting professional misconduct is essential to maintain the integrity and reputation of

the legal profession and uphold the interests of justice.

Duty to mentor and guide junior advocates

Advocates who have gained experience and expertise in the legal profession have a duty to
mentor and guide junior advocates. They must share their knowledge, skills, and
experience with junior advocates and help them in their professional development.

Advocates must also strive to maintain a healthy and respectful relationship with their
juniors, providing them with guidance, support, and constructive feedback.

5. Duties of an Advocate towards the Bar Council

Duty to comply with the code of ethics

Advocates have a duty to comply with the code of ethics and professional standards laid
down by the Bar Council. Advocates must be familiar with the rules, regulations, and
guidelines of the Bar Council and must adhere to them in their professional conduct.

Advocates must also cooperate with any inquiries, investigations, or disciplinary

proceedings initiated by the Bar Council and provide all necessary information and
documents.

Duty to pay dues and fees

Advocates have a duty to promptly pay their dues, fees, and subscriptions to the Bar
Council. Advocates must also promptly respond to any communications, notices, or
requirements from the Bar Council and comply with their regulations and procedures.

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Duty to participate in Bar Council activities

Advocates have a duty to actively participate in the activities of the Bar Council, such as
elections, meetings, seminars, and workshops. Advocates must also contribute to the
welfare and development of the legal profession by providing feedback, suggestions, and
inputs to the Bar Council for its better functioning.

Duty to abide by the rules and regulations of the Bar Council

Advocates have a duty to abide by the rules, regulations, and code of conduct prescribed by
the Bar Council of India or the State Bar Council. Advocates must familiarize themselves
with the applicable rules and regulations and must comply with them in all their
professional activities.

Advocates must also keep themselves updated with any changes or amendments to the
rules and regulations of the Bar Council, and must adhere to them at all times.

Duty to report misconduct

Advocates have a duty to report any misconduct or unethical behaviour of fellow advocates
to the Bar Council. If an advocate becomes aware of any violation of the Advocates Act, the
Bar Council rules, or any other ethical standards by another advocate, they must promptly
report such misconduct to the Bar Council for appropriate action.

Advocates must also cooperate with the Bar Council in any investigation or disciplinary
proceedings related to such misconduct.

6. Duties of an Advocate towards Opposite Party and Opposite Counsel

Duty of fairness and respect towards the opposite party

Advocates have a duty of fairness and respect towards the opposite party. Advocates must
not engage in any conduct that may harass, intimidate, or bully the opposite party.

Advocates must also not indulge in any acts of misconduct, such as misrepresentation,
suppression of evidence, or manipulation of facts, that may prejudice the rights and
interests of the opposite party.

Duty of professional courtesy towards opposite counsel

Advocates have a duty of professional courtesy towards the opposite counsel. Advocates
must treat the opposite counsel with respect, dignity, and professionalism. They must not
engage in any conduct that may undermine the reputation or interests of the opposite
counsel.

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Advocates must also not make any personal attacks or use derogatory language against the
opposite counsel during court proceedings.

Duty to avoid conflicts of interest with the opponent

Advocates have a duty to avoid conflicts of interest with the opponent. Advocates must not
represent conflicting interests that may compromise their ability to provide unbiased and
effective representation to their clients.

Advocates must also not engage in any activities that may be deemed as collusive or
unethical, which may result in a compromise of the opponent’s rights or interests.

7. Duties of an Advocate Towards the Legal Profession

Duty to uphold the dignity and honour of the legal profession

Advocates have a duty to uphold the dignity, honour, and integrity of the legal profession.
Advocates must maintain high standards of professional conduct, ethics, and morality.

Advocates must not indulge in any conduct that may bring disrepute to the legal profession
or erode public confidence in the legal system. Advocates must also not engage in any
activities that may compromise their independence, impartiality, or integrity as a legal
professional.

Duty to promote legal education and professional development

Advocates have a duty to promote legal education and professional development.

Advocates must continuously update their knowledge, skills, and expertise in the field of
law through regular study, research, and training.

Advocates must also share their knowledge and experience with junior advocates and law
students to contribute to the growth and development of the legal profession. Advocates
must actively participate in legal seminars, workshops, and training programs to enhance
their professional competence and stay updated with the latest legal developments.

Duty to maintain professional conduct and etiquette

Advocates have a duty to maintain professional conduct and etiquette in their interactions
with clients, opponents, judges, court staff, and other stakeholders in the legal system.
Advocates must conduct themselves with dignity, courtesy, and respect towards all parties
involved in a case, irrespective of their personal opinions or differences.

Advocates must also refrain from engaging in any behaviour that may be deemed
unprofessional, unethical, or contemptuous of the court.

Duty to avoid misleading or false statements

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Advocates have a duty to avoid making misleading or false statements in the course of their
professional practice. Advocates must not make any false, exaggerated, or misleading
claims about their qualifications, experience, or success rates to attract clients or gain an
unfair advantage in a case.

Advocates must also refrain from making any false statements or presenting fabricated
evidence in court, as it undermines the integrity of the legal profession and the justice
system.

Duty to respect the authority of the court

Advocates have a duty to respect the authority of the court and uphold the dignity and
integrity of the judicial system. Advocates must not indulge in any behaviour that may
undermine the authority of the court or obstruct the administration of justice.

Advocates must comply with the rules, procedures, and orders of the court, and not engage
in any conduct that may be deemed disrespectful, disobedient, or contemptuous of the
court.

Conclusion

Advocacy is a noble profession that plays a crucial role in the administration of justice.
Advocates, as officers of the court, have certain duties and responsibilities towards the
court, their clients, opposing counsel, and the Bar Council. The duties of an advocate are
enshrined in the Advocates Act, 1961, and the Bar Council of India Rules, and advocates are
expected to uphold them with the utmost professionalism and integrity.

Powers and Functions of the Bar Council of India

The Bar Council of India is a legally mandated organisation formed under the Advocates
Act, 1961. The act also mentions the powers and functions of the Bar Council of India.

Its primary purpose is to oversee and regulate legal practice and education in India. In
addition, it administers the All India Bar Examination (AIBE) annually, which serves as a
selection process for individuals seeking to practice law in the country’s courts.

The Bar Council also fulfils the role of regulatory authority by establishing guidelines for
professional conduct and etiquette within the Indian legal community. Its main objective is
safeguarding the rights, interests, and privileges of advocates throughout India.

The Bar Council of India operates as a statutory and regulatory body established by the
Advocates Act, 1961, with responsibilities encompassing the legal profession and education

26
in the country. It also serves as the representative organisation for the legal community in
India.

What is the Bar Council of India?

The Bar Councils of India were established under the Advocates Act, 1961 based on the
recommendations of the All India Bar Committee. These councils operate at both the
national and state levels. The State Bar Councils were established under Section 3 of the
Act.

The Bar Council of India comprises members elected from each State Bar Council, the
Attorney General of India, and the Solicitor of India, who serve as members automatically.
The members of the State Bar Councils are elected for five years. The Council has the power
to choose its own Chairman and Vice-Chairman from among its members, and they serve
for two years.

The powers and functions of the Bar Council of India have been discussed below.

Powers of the Bar Council of India

The powers of the Bar Council of India are:

Admission as an Advocate

According to Section 20 of the Advocate Act, any advocate who had the right to practice in
the Supreme Court before the appointed day but was not listed in any state roll can express
their intention to the Bar Council.

They must do this within the prescribed time and using the prescribed form. Upon
receiving the application, the Bar Council of India will direct the respective state Bar
Council to enter the advocate’s name in the state roll without a fee.

Sending Copies of Rolls

Section 19 of the Advocate Act mandates that every State Bar Council must send an
authenticated copy of the advocate role, prepared for the first time under this Act, to the
Bar Council of India. Furthermore, any alterations or additions made to the roll must be
promptly communicated to the Bar Council of India.

Transfer of Name

Section 18 of the Advocate Act deals with transferring an advocate’s name from one State
Bar Council role to another. If an advocate wishes to transfer their name, they must apply
to the Bar Council of India.

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Upon receiving the application, the Bar Council of India will direct the removal of the
advocate’s name from the first State Bar Council’s roll and its entry into the roll of the other
State Bar Council. No fee is required for this transfer.

Appointment of Committees and Staff Members

Section 9 empowers the Bar Council of India to appoint disciplinary committees, legal aid
committees, executive committees, legal education committees, and other necessary
committees.

Section 11 allows the Bar Council to appoint a secretary, accountant, and other staff
members as necessary. The secretary and accountant must possess the required
qualifications. Having a secretary is mandatory for the Bar Council.

Maintenance of Accounts

Under Section 12, the Bar Council of India must maintain books of accounts and other
relevant books in a prescribed format. Qualified auditors, similar to the auditing of
company accounts, must audit these accounts.

The Bar Council of India is also responsible for sending a copy of its accounts and the
auditors’ report to the Central Government. Furthermore, these accounts are published in
the Gazette of India.

Rules Making Power

The Bar Council of India can make rules under Section 15 of the Advocate Act. These rules
can cover various aspects such as the election of Bar Council members, the chairman and
vice-chairman, dispute resolution, filling of vacancies, powers and duties of the chairman
and vice-chairman, organisation of legal aid, meetings and conduct of the business of
committees, and management and investment of funds of the Bar Council.

General Power and Punishment for Misconduct

Section 49 of the Advocate Act grants the Bar Council of India general power to make rules
for discharging its functions under the Act. Additionally, Section 36 empowers the Bar
Council to punish advocates for professional or other misconduct. The Bar Council of India
can suspend advocates from practice, remove their names from the state roll, dismiss
complaints, or issue reprimands as it deems fit.

Appellate Power

Section 37 gives the Bar Council of India authority to hear appeals against the orders of
disciplinary committees. The disciplinary committee of the Bar Council of India must hear
any appeal.

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Furthermore, Section 38 allows individuals aggrieved by the order passed by the
Disciplinary Committee of the Bar Council of India to file an appeal before the Supreme
Court within 60 days.

Other Powers and Functions

Apart from the aforementioned points, the Bar Council of India has additional powers and
functions.

These include:

 providing financial assistance to State Bar Councils that require funds to perform
their functions,
 preventing citizens of specified countries from practising law in India if those
countries prevent Indian citizens from practising law there,
 reviewing the legality and propriety of proceedings conducted by State Bar Councils
or their committees,
 giving its orders except in matters handled by the disciplinary committee, and
 providing directions to State Bar Councils or their committees to ensure the proper
and efficient discharge of their functions.

Functions of the Bar Council of India

The functions of the Bar Council of India are:

Establishment of the Bar Council of India

Parliament established the Bar Council of India under the Advocates Act of 1961. Its main
responsibilities include regulating the legal profession and legal education in India.

Statutory Functions of the Bar Council of India

The Bar Council of India has various statutory functions outlined in Section 7 of the
Advocates Act, 1961:

1. Standards of Professional Conduct: It lays down the standards of professional conduct

and etiquette for advocates.

2. Disciplinary Procedure: It establishes the procedure to be followed by its disciplinary

committee and the disciplinary committees of each State Bar Council.

3. Advocates’ Rights and Interests: It safeguards advocates’ rights, privileges, and

interests.

4. Law Reform: It promotes and supports law reform initiatives.

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5. Handling Referred Matters: It deals with and resolves matters referred to by State Bar
Councils.

6. Legal Education: It promotes legal education and sets standards for legal education in
consultation with universities and State Bar Councils. It also visits and inspects universities
or directs State Bar Councils to do so.

7. Recognising Qualifications: It recognises universities whose law degrees qualify for

enrollment as an advocate. Foreign qualifications in law obtained outside India may also be
recognised reciprocally.

8. Seminars and Publications: It organises seminars and talks on legal topics by eminent
jurists and publishes journals and papers of legal interest.

9. Legal Aid: It organises legal aid for the underprivileged.

10. Management of Funds: It manages and invests the funds of the Bar Council.

11. Election of Members: It provides for the election of members who will run the Bar
Councils.

Establishment of Funds

The Bar Council of India can establish one or more funds according to prescribed
procedures. These funds may be used to organise welfare schemes, provide legal aid or
advice, and establish law libraries. The Bar Council can receive grants, donations, gifts, or
benefactions for these purposes.

Membership in International Legal Bodies

Under Section 7(a) of the Advocate Act, 1961, the Bar Council of India may become a
member of international legal bodies like the International Bar Association or International
Legal Aid Association. It can contribute funds and authorise participation in international
legal conferences or seminars.

Prohibition of Strikes and Boycotts

The Bar Council of India must uphold professional conduct and etiquette for advocates. It is
illegal and void for the Bar Council to pass resolutions instructing advocates not to
participate in legal aid programs or disrupt court proceedings.

Advocates who participate in strikes or boycotts can face disciplinary action by the
concerned State Bar Council. Advocates are obligated to ignore calls for strikes or boycotts.

Case Laws on Powers and Functions of the Bar Council of India

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Case: Raveendranath Naik v. Bar Council of India

In the case of Raveendranath Naik v. Bar Council of India, the court declared the
resolution of the Bar Council of India against participating in legal aid programs as illegal
and void.

Case: Ex-Captain Harish Uppal v. Union of India

In the case of Ex-Captain Harish Uppal v. Union of India, the court emphasised that
the Bar Council of India should not paralyse the functioning of courts. Instead, it should
focus on setting professional standards and preventing strikes or boycotts.

Case: Bar Council of Maharashtra v. M.V Dabholkar and others

Facts:

In this case, the respondents were lawyers practising in the criminal courts. They were
charged with professional misconduct under Section 35(1) of the Advocates Act, 1961. It
was alleged that they engaged in unethical behaviour outside the Magistrate courts.

They would try to snatch briefs from potential litigants and even get involved in physical
fights. They also promised undercut fees to litigants to secure work for themselves.

The High Court brought this matter to the attention of the Bar Council of Maharashtra,
which considered the complaint and referred it to its Disciplinary Committee for further
investigation.

Held:

The court held that the Code of Ethics for advocates does not allow them to advertise or
engage in obnoxious practices like soliciting or scrambling. Therefore, the respondents
were found guilty of professional misconduct. As a penalty, they were suspended from
practising for three years.

Rules on professional standards

Advocates, in addition to being professionals, are also officers of the courts and play a vital
role in the administration of justice.
Accordingly, the set of rules that govern their professional conduct arise out of the duty
that they owe the court, the client, their opponents and other advocates.

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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 placed there
under section 49(1)(c) of the Advocates Act, 1961.

RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT

1. Act in a dignified manner

During the presentation of his case and also while acting before a court, an advocate should
act in a dignified manner. He should at all times conduct himself with self-respect.
However, whenever there is proper ground for serious complaint against a judicial officer,
the advocate has a right and duty to submit his grievance to proper authorities.

2. Respect the court

An advocate should always show respect towards the court. An advocate has to bear in
mind that the dignity and respect maintained towards judicial office is essential for the
survival of a free community.

3. Not communicate in private

An advocate should not communicate in private to a judge with regard to any matter
pending before the judge or any other judge. An advocate should not influence the decision
of a court in any matter using illegal or improper means such as coercion, bribe etc.

4. Refuse to act in an illegal manner towards the opposition

An advocate should refuse to act in an illegal or improper manner towards the opposing
counsel or the opposing parties. He shall also use his best efforts to restrain and prevent his
client from acting in any illegal, improper manner or use unfair practices in any mater
towards the judiciary, opposing counsel or the opposing parties.

5. Refuse to represent clients who insist on unfair means

An advocate shall refuse to represent any client who insists on using unfair or improper
means. An advocate shall excise his own judgment in such matters. He shall not blindly
follow the instructions of the client. He shall be dignified in use of his language in
correspondence and during arguments in court. He shall not scandalously damage the
reputation of the parties on false grounds during pleadings. He shall not use
unparliamentary language during arguments in the court.

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6. Appear in proper dress code

An advocate should appear in court at all times only in the dress prescribed under the Bar
Council of India Rules and his appearance should always be presentable.

7. Refuse to appear in front of relations

An advocate should not enter appearance, act, plead or practice in any way before a judicial
authority if the sole or any member of the bench is related to the advocate as father,
grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother,
daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law
daughter-in-law or sister-in-law.

8. Not to wear bands or gowns in public places

An advocate should not wear bands or gowns in public places other than in courts, except
on such ceremonial occasions and at such places as the Bar Council of India or as the court
may prescribe.

9. Not represent establishments of which he is a member

An advocate should not appear in or before any judicial authority, for or against any
establishment if he is a member of the management of the establishment. This rule does not
apply to a member appearing as “amicus curiae” or without a fee on behalf of the Bar
Council, Incorporated Law Society or a Bar Association.

10. Not appear in matters of pecuniary interest

An advocate should not act or plead in any matter in which he has financial interests. For
instance, he should not act in a bankruptcy petition when he is also a creditor of the
bankrupt. He should also not accept a brief from a company of which he is a Director.

11. Not stand as surety for client

An advocate should not stand as a surety, or certify the soundness of a surety that his client
requires for the purpose of any legal proceedings.

RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT

1. Bound to accept briefs

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An advocate is bound to accept any brief in the courts or tribunals or before any other
authority in or before which he proposes to practise. He should levy fees which is at par
with the fees collected by fellow advocates of his standing at the Bar and the nature of the
case. Special circumstances may justify his refusal to accept a particular brief.

2. Not withdraw from service

An advocate should not ordinarily withdraw from serving a client once he has agreed to
serve them. He can withdraw only if he has a sufficient cause and by giving reasonable and
sufficient notice to the client. Upon withdrawal, he shall refund such part of the fee that has
not accrued to the client.

3. Not appear in matters where he himself is a witness

An advocate should not accept a brief or appear in a case in which he himself is a witness. If
he has a reason to believe that in due course of events he will be a witness, then he should
not continue to appear for the client. He should retire from the case without jeopardising
his client’s interests.

4. Full and frank disclosure to client

An advocate should, at the commencement of his engagement and during the continuance
thereof, make all such full and frank disclosure to his client relating to his connection with
the parties and any interest in or about the controversy as are likely to affect his client’s
judgement in either engaging him or continuing the engagement.

5. Uphold interest of the client

It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair
and honourable means. An advocate shall do so without regard to any unpleasant
consequences to himself or any other. He shall defend a person accused of a crime
regardless of his personal opinion as to the guilt of the accused. An advocate should always
remember that his loyalty is to the law, which requires that no man should be punished
without adequate evidence.

6. Not suppress material or evidence

An advocate appearing for the prosecution of a criminal trial should conduct the
proceedings in a manner that it does not lead to conviction of the innocent. An advocate
shall by no means suppress any material or evidence, which shall prove the innocence of
the accused.

7. Not disclose the communications between client and himself

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An advocate should not by any means, directly or indirectly, disclose the communications
made by his client to him. He also shall not disclose the advice given by him in the
proceedings. However, he is liable to disclose if it violates Section 126 of the Indian
Evidence Act, 1872.

8. An advocate should not be a party to stir up or instigate litigation.

9. An advocate should not act on the instructions of any person other than his client
or the client’s authorised agent.

10. Not charge depending on success of matters

An advocate should not charge for his services depending on the success of the matter
undertaken. He also shall not charge for his services as a percentage of the amount or
property received after the success of the matter.

11. Not receive interest in actionable claim

An advocate should not trade or agree to receive any share or interest in any actionable
claim. Nothing in this rule shall apply to stock, shares and debentures of government
securities, or to any instruments, which are, for the time being, by law or custom,
negotiable or to any mercantile document of title to goods.

12. Not bid or purchase property arising of legal proceeding

An advocate should not by any means bid for, or purchase, either in his own name or in any
other name, for his own benefit or for the benefit of any other person, any property sold in
any legal proceeding in which he was in any way professionally engaged. However, it does
not prevent an advocate from bidding for or purchasing for his client any property on
behalf of the client provided the Advocate is expressly authorised in writing in this behalf.

13. Not bid or transfer property arising of legal proceeding

An advocate should not by any means bid in court auction or acquire by way of sale, gift,
exchange or any other mode of transfer (either in his own name or in any other name for
his own benefit or for the benefit of any other person), any property which is the subject
matter of any suit, appeal or other proceedings in which he is in any way professionally
engaged.

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14. Not adjust fees against personal liability

An advocate should not adjust fee payable to him by his client against his own personal
liability to the client, which does not arise in the course of his employment as an advocate.

15.An advocate should not misuse or takes advantage of the confidence reposed in
him by his client.

16.Keep proper accounts

An advocate should always keep accounts of the clients’ money entrusted to him. The
accounts should show the amounts received from the client or on his behalf. The account
should show along with the expenses incurred for him and the deductions made on account
of fees with respective dates and all other necessary particulars.

17. Divert money from accounts

An advocate should mention in his accounts whether any monies received by him from the
client are on account of fees or expenses during the course of any proceeding or opinion.
He shall not divert any part of the amounts received for expenses as fees without written
instruction from the client.

18. Intimate the client on amounts

Where any amount is received or given to him on behalf of his client, the advocate must
without any delay intimate the client of the fact of such receipt.

19. Adjust fees after termination of proceedings

An advocate shall after the termination of proceedings, be at liberty to adjust the fees due
to him from the account of the client. The balance in the account can be the amount paid by
the client or an amount that has come in that proceeding. Any amount left after the
deduction of the fees and expenses from the account must be returned to the client.

20. Provide copy of accounts

An advocate must provide the client with the copy of the client’s account maintained by
him on demand, provided that the necessary copying charge is paid.

21. An advocate shall not enter into arrangements whereby funds in his hands are
converted into loans.

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22. Not lend money to his client

An advocate shall not lend money to his client for the purpose of any action or legal
proceedings in which he is engaged by such client. An advocate cannot be held guilty for a
breach of this rule, if in the course of a pending suit or proceeding, and without any
arrangement with the client in respect of the same, the advocate feels compelled by reason
of the rule of the Court to make a payment to the Court on account of the client for the
progress of the suit or proceeding.

23. Not appear for opposite parties

An advocate who has advised a party in connection with the institution of a suit, appeal or
other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for
the opposite party in the same matter.

RULES ON ADVOCATE’S DUTY TO OPPONENTS

1. Not to negotiate directly with opposing party

An advocate shall not in any way communicate or negotiate or call for settlement upon the
subject matter of controversy with any party represented by an advocate except through
the advocate representing the parties.

2. Carry out legitimate promises made

An advocate shall do his best to carry out all legitimate promises made to the opposite
party even though not reduced to writing or enforceable under the rules of the Court.

RULES ON AN ADVOCATE’S DUTY TOWARDS FELLOW ADVOCATES

1. Not advertise or solicit work

An advocate shall not solicit work or advertise in any manner. He shall not promote himself
by circulars, advertisements, touts, personal communications, interviews other than
through personal relations, furnishing or inspiring newspaper comments or producing his
photographs to be published in connection with cases in which he has been engaged or
concerned.

2. Sign-board and Name-plate

An advocate’s sign-board or name-plate should be of a reasonable size. The sign-board or

name-plate or stationery should not indicate that he is or has been President or Member of

37
a Bar Council or of any Association or that he has been associated with any person or
organisation or with any particular cause or matter or that he specialises in any particular
type of work or that he has been a Judge or an Advocate General.

3. Not promote unauthorized practice of law

An advocate shall not permit his professional services or his name to be used for promoting
or starting any unauthorised practice of law.

4. An advocate shall not accept a fee less than the fee, which can be taxed under rules
when the client is able to pay more.

5. Consent of fellow advocate to appear

An advocate should not appear in any matter where another advocate has filed a vakalt or
memo for the same party. However, the advocate can take the consent of the other
advocate for appearing.

In case, an advocate is not able to present the consent of the advocate who has filed the
matter for the same party, then he should apply to the court for appearance. He shall in
such application mention the reason as to why he could not obtain such consent. He shall
appear only after obtaining the permission of the Court.

The Indian Bar Council consists of lawyers who are elected to represent the bar. It is
situated in Delhi. The current Chairman and Vice-chairman are Manan Kumar Mishra and S
Prabhakaran respectively.

The Bar Council performs various functions to safeguard the interests of advocates. It
promotes and supports law reforms, promotes legal education, helps the legal institutions,
provides legal aid to the poor, etc.

Thus, this article deals with the history and powers of the Bar Council of India.

What is the history of the Bar Council of India?

The history of the Bar Council dates back many years ago when Indian Bar Council Act was
enacted in the year 1926. It was for the first time the Bar Council was established and
provided to each High Courts.

Further, post-independence an All-India Bar Committee was established in 1951 under the
chairmanship of Justice S.R Das of the Supreme Court. It recommended the creation of a
unified National Bar. The committee also stated that the establishment of an All-India Bar

38
 Council is very necessary. The committee in its report also stated the establishment of the
State Bar Council for each state.

In the year 1961, the Advocates Act was enacted to provide for the constitution of Bar
Councils and an All-India Bar. This Act has implemented the recommendation of the Bar
Committee in the Law Commission with some modifications.

Finally, the Bar Council of India was established under Advocates Act, 1961. M.C Setalvad
and C.K Daphtary were the first Chairman and Vice-Chairman of the bar council. Similarly,
State Bar Council was also established by the same Act for all the states.

What is the structure of the Bar Council of India?

The Bar Council of India comes under the domain of the Ministry of Law and Justice. It is a
body corporate having perpetual succession and a common seal. It has the power to
acquire and hold property i.e., moveable and immovable. It has the power to contract and
sue and be sued.

The Bar Council of India consists of the Attorney General of India and the Solicitor General
of India who are ex-officio members. Every state has elected members working for the State
Bar Council. The members are elected for a period of five years. The Chairman and Vice-
chairman of the Bar Council are elected for a period of two years.

The council also consists of various committees such as the legal education committee,
disciplinary committee, executive committee, legal aid committee, advocates welfare fund
committee, rules committee, etc. formed to cater to specific issues arising from time to
time.

What are the powers of the Bar Council to make rules?

Under Section 15 of the Advocates Act, the Bar Council is entrusted to make rules
regarding the procedure for election, termination, and such other things. Following are the
powers of the Bar Council to make rules:

 The Bar Council has the power to make rules regarding the election of its members by
secret ballot. It imposes certain conditions subject to which persons can exercise the
right to vote through postal ballot, prepare and revise the electoral rolls, and manners in
which the results of the election should be published.
 It has the power to make rules regarding the election of Chairman and Vice-Chairman.
 It can make rules regarding any doubts and disputes which may arise due to the election.
 It can make rules regarding the filing of casual vacancies.
 The council can make rules in respect of the powers and duties of the Chairman and the
Vice-Chairman.
 The council can make rules regarding constituting the funds for the purpose of giving
financial assistance or giving legal aid or advice to the indigent, disabled, etc.
 As the council provides legal assistance to the poor, it has the power to make rules
regarding the organization of legal aid and advice to the poor people, provide rules for
the constitution, and functions of committees and sub-committees.

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 The council being the corporate body has power to make rules for summoning and
holding the meetings of Bar Council, deciding the conduct of the business and the number
of members necessary to constitute a quorum.
 The council makes rules regarding the constitution and functions of any committee of the
Bar Council and the term of office of members of any such committee.
 It can make rules with respect to maintenance of books of accounts and other such books
of Bar Council.
 To inspect the books of accounts, the Bar Council can make rules regarding the
appointment of the auditors and the audit of the accounts.
 The Bar Council is a corporate body that has powers to make rules for the management
and funds of the Bar Council.[i]

What are the other general powers of the Bar Council to make rules?
Along with the powers mentioned above, the Bar Council has some other general powers of
making rules for discharging its functions. They are mentioned under Section 49 of the
Advocates Act, 1961. They are as follows:

 The council can make rules in regards to which advocate may be entitled to vote at an
election to the State Bar Council, rules regarding qualifications and disqualifications of
the voters, etc.
 It can make rules regarding the qualifications and disqualifications of membership of the
Bar Council.
 It can decide and make rules with respect to the manners in which seniority may be
determined.
 Bar Council being the important body dealing with legal education has the power to
prescribe the minimum qualification required for admission to a course of degree in any
law in any recognized university.
 It also prescribes the class or category of persons entitled to be rolled as advocates.
 Further, it also prescribes the conditions to which an advocate shall have the right to
practice and the circumstances under which a person shall be deemed to practice as an
advocate in the Court.
 Law profession being one of the noble professions, the council also prescribes standards
of professional conduct and etiquettes to be observed by the advocates.
 To provide quality education to the budding law students, the council lays down some
rules regarding the standard of legal education to be observed by the universities in India
and further inspects the same.
 The council also makes provisions regarding the foreign qualifications in law obtained
by persons other than citizens of India which shall be recognized for the purpose of
admission as an advocate.
 As it is mandatory for the advocates to wear the uniform, so the council has powers to
make rules regarding the form or type of robes or dresses to be worn by the advocates
after taking into consideration the climatic conditions.[ii]
 What are some of the new rules made by the Bar Council?

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 Bar Council of India has abolished the one-year LLM program. According to the new rule, a
two-year post-graduate degree is recognizable and a one-year LLM is not adequate.

According to the new rules made by the Bar Council, no advocate can make any statement
against the court, any judge, or any member of the judiciary, Bar Council of India, or State
Bar Council of India in print, electronic, or any social medium platform, which is
derogatory, defamatory or motivated. If any advocate makes such a statement, he/she shall
be debarred or suspended.

Contempt of Court:

According to the Oxford Dictionary, contempt is the state of being despised or dishonored;
disgrace. Any conduct that tends to bring the authority and administration of law into
disrespect or disregard or to interfere with or prejudice parties or their witness during
litigation is considered to be contempt of court, says Oswald. Contempt is defined by
Halsbury, as consisting of words spoken or written which obstruct or tends to obstruct the
administration of justice.

The Indian legislature does not provide with a concrete definition of contempt, however
section 2(a) of The Contempt of Courts,1971 says ‘contempt of court means civil contempt
or criminal contempt’. Section 2(b) & section 2(c) of The Contempt of Courts Act, 1971
defines civil and criminal contempt. Although the legislature has not defined what amounts
to contempt, it has defined civil and criminal contempt. Thus contempt cannot be confine to
four walls of a definition. Therefore, what would offend the court’s dignity and what would
lower the court’s prestige is thus a matter which can be decided by the court itself and it’s
for the court to deal with each case of contempt under the facts and circumstances of that
case.

Kinds of Contempt

Contempt of court are classified under three broad categories, according to Lord Hardwick:
1. Scandalizing the court itself.
2. Abusing parties who are concerned in the cause, in the presence of court.
3. Prejudicing the public before the cause is heard.

However, in India, contempt is classified under two major categories:

1. Civil contempt
2. Criminal contempt

Civil Contempt

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According to section 2(b) of the Contempt of Courts Act, 1971 civil contempt means willful
disobedience to any judgement, decree, direction, order, writ or other process of a court or
willful breach of an undertaking given to a court.

Thus from the abovementioned definition it can be ascertained that there are two
important essentials to constitute civil contempt:
1. Disobedience of any judgement, decree, direction, order, writ or other process of a court
or an undertaking given to the court.

There should be disobedience of a valid order to constitute contempt of court. An order

includes all kinds of judgements, orders-final, preliminary, ex-parte, contempt order.
Disobedience of a decree, direction, writ or other process of a court, or an undertaking
given to the court, will also amount to contempt of court. It was held by the Supreme Court,
in the case of H.Puninder v. K. K. Sethi,[2] that in absence of the stay order in appeal or
revision of higher court, the order appealed against should be complied with, subject to any
order passed at later stage, otherwise it is open for the contempt court to proceed further
on merit of the contempt case.

A different view was upheld by the Supreme Court in case of interim relief/stay order. The
Supreme Court, in the case of State of Jammu and Kashmir v. Mohammad Yakub Khan,[3]
held that where stay vacation application has been promptly filed by the respondent
against whom the stay order has been passed and the same is pending for disposal the
court shouldn't proceed in the contempt case unless and until the stay vacation application
has been decided.

So far as the breach of undertaking as contempt of court is concerned, the basis behind this
is that the contempter obtains a beneficial order for himself from the court, by giving an
undertaking and if he fails to honor the undertaking at a later stage, he plays a serious
fraud on the court and thereby interferes with the administration of justice by bringing the
court into disrespect.

An undertaking can be given to the court in two ways:

· By moving an application or filing an affidavit before the court clearly stating the terms of
the undertaking.
· By giving s clear and express oral undertaking which is incorporated by the court in the
order.
A willful breach of an undertaking, given according to the abovementioned ways, would
amount to contempt of court.

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2. The Disobedience or breach must be willful, deliberate and intentional.
Mere disobedience or breach of the court’s order by the person is not sufficient to
constitute civil contempt. Such a disobedience or breach must be willful, deliberate and
intentional. In order to exercise its power to punish the contemnor the court has to be
satisfied beyond reasonable doubt that the contemnor has willfully, deliberately and
intentionally violated the court’s order.

No court including contempt court is entitled to take trivialities and technicalities into
account while finding fault with the conduct of the person against whom contempt
proceeding is taken.

Where the order has been substantially complied with and a reasonable explanation has
been provided for the delay in compliance with the order, the contempt will not lie as the
violation is not willful and deliberate.

Criminal Contempt

According to section 2(c) of The Contempt of Courts Act, 1971, criminal contempt means
the publication (whether by word, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of any other act whatsoever
which-
i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court,
or
ii) Prejudices or interferes or tends to interfere with the due course of any judicial
proceeding, or

iii) Interferes or tends to interfere with, or obstruct or tends to obstruct, the administration
of justice in any other manner.

Thus from the abovementioned definition it can be ascertained that there are four
important essentials to constitute criminal contempt:
1. Publication of any matter.
The word publication has been given a very wide meaning so far as contempt of court is
concerned. It includes words (spoken/written), signs and visible representation. It also
includes the publication of any material in the newspaper and magazines, the broadcasting
of any material on the radio and exhibition of anything in cinemas, theaters and television.

43
If these materials contain anything which scandalizes or lowers or tends to scandalize or
lower the authority of any court, prejudices or interferes with the due course of any judicial
proceeding or interferes or tends to interfere with administration of justice, it will amount
to criminal contempt of the court.

2. Scandalizing or lowering the authority of the court.

Scandalizing might manifest itself in various ways but in substance, it is an attack on
individual judges in particular or the court as a whole, with or without reference to a
particular case, by casting unwarranted and defamatory aspersions upon the character or
the ability of the judges. Such conduct is punished as criminal contempt for the reason that
it tends to create distrust in the minds of common people and thereby shatters confidence
of the people in the judiciary.

The Supreme Court made it clear, in the case of Arundhati Roy, that criticism which
undermines the dignity of the court can't be said to be fair criticism and does not fall under
the ambit of freedom of speech and expression as is guaranteed by Article 19 (1)(a) of
Constitution of India. Thus prosecution of persons for scandalizing the court is not
prohibited by constitutional right of freedom of speech and expression under Article 19 (1)
(a).

Writing/drafting in pleading or petition by which defamatory allegations have been

levelled against a judge in particular or court as a whole, would amount to criminal
contempt, held the Supreme Court.[4]

In case of U.P Residential Employee Cooperative Society v. New Okhla Industrial

Development Authority[5], the Supreme Court held that filing a false affidavit in the court
with a view to mislead the court will amount to criminal contempt.

3. Prejudice or interference with the due course of any judicial proceeding.

Any publication which prejudices or interferes with the due course of any judicial
proceeding would amount to criminal contempt of court. Media trial or trial by newspaper
is not considered proper because it effects the fairness of trial and is likely to cause
interference with the administration of justice.

The knowledge of pendency of the case and reasonable grounds to believe that the case in
pending is sufficient to make out criminal contempt and the intention and motive of the
publisher behind the content of publication is not relevant for the purpose of criminal
contempt. If it lowers the authority of the court and causes interference with the due
course of judicial proceeding it would amount to criminal contempt.

44
In civil cases, the pendency starts with the filing of the plaint and in criminal cases, with the
filing of a charge sheet or the issuance of summons or warrants. The pendency continues
till the case is decided. In case an appeal/revision is filed, pendency continues till the
appeal or revision is decided. If appeal/revision is not filed, pendency continues till the
period of limitation for filing the same has not expired. Once it expires, pendency is over.

4. Interference/Obstruction with the administration of justice in any other manner.

The publication or doing of any act which interferes or obstructs or tend to interfere and
obstruct in the administration of justice in any other manner, would amount to criminal
contempt of court. This clause is a residuary clause, covering those cases of criminal
contempt which are not expressly covered by section 2(c) of the Contempt of Court Act.

The term 'administration of justice' is much wider than the term 'course of judicial
proceedings'. Every person in India is entitled to approach the court in order to secure
justice and for the redressal of his grievances and the court has to decide dispute between
the parties as per law and equity.

Any conduct which tends to prevent or actually prevents a party to approach the court,
amounts to criminal contempt of court, for eg. writing a threatening letter to litigating
party or his counsel preventing him from attending the court, writing a letter to the judge
or approaching him in order to influence his judicial conscience or approaching a counsel
for undue favor are all examples of interference with administration of justice and are
contempt of court.

An advocate is an officer of the court and undue interference with the advocate in the
discharge of his professional functions amounts to contempt of court. Casting aspersions on
counsel or approaching him for not defending a particular person amounts to criminal
contempt of court.

It was held by the Supreme Court in case of J. R Parashar v. Prashant Bhushan[6], that
holding a dharma or resorting to strike by itself may not amount to contempt of court but if
in doing so the presiding officer of the court, its staff, the police personnel and the litigating
parties are prevented from approaching the court, it will amount to interference in the
administration of justice and will be criminal contempt of the court.

Punishment Under The Contempt of Court Act

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Section 12 of the act deals with the punishment for contempt of court. It provides as
follows-
12. Punishment for contempt of court.-
(1) Save as otherwise expressly provided in this Act or in any other law, 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: -(1) Save as
otherwise expressly provided in this Act or in any other law, 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\:" Provided that the accused
may be discharged or the punishment awarded may be remitted on apology being made to
the satisfaction of the court. Explanation. -An apology shall not be rejected merely on the
ground that it is qualified or conditional if the accused makes it bona fide.

(2) Notwithstanding anything contained in any other law for the time being in force, no
court shall impose a sentence in excess of that specified in sub-section (1) for any contempt
either in respect of itself or of a court subordinate to it.

(3) Notwithstanding anything contained in this section, where a person is found guilty of a
civil contempt, the court, if it considers that a fine will not meet the ends of justice and that
a sentence of imprisonment is necessary shall, instead of sentencing him to simple
imprisonment, direct that he be detained in a civil prison for such period not exceeding six
months as it may think fit.

(4) Where the person found guilty of contempt of court in respect of any undertaking given
to a court is a company, every person who, at the time the contempt was committed, was in
charge of, and was responsible to, the company for the conduct of business of the company,
as well as the company, shall 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 each such
person: Provided that nothing contained in this sub-section shall render any such person
liable to such punishment if he proves that the contempt was committed without his
knowledge or that he exercised all due diligence to prevent its commission.

(5) Notwithstanding anything contained in sub-section (4), where the contempt of court
referred to therein has been committed by a company and it is proved that the contempt
has been committed 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 director,
manager, secretary or other officer 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. Explanation.-For the purposes
of sub-sections (4) and (5),-

46
(a) “company” means any body corporate and includes a firm or other association of
individuals; and
(b) “director”, in relation to a firm, means a partner in the firm.
Provided that, nothing contained in this sub-section shall render any such person liable to
punishment, if he proves that the contempt was committed without his knowledge or that
he exercised all due diligence to prevent its commission.

Period of Limitation

Section 20 deals with period of limitation for initiating contempt proceeding. Section 20
provides that no court shall initiate contempt proceedings either on its own notions or
otherwise after the expiry of one year from the date on which contempt is alleged to have
been committed. The period of limitation is applicable both in civil as well as criminal
contempt. Contempt proceedings can be initiated either by filing an application or by the
court itself suo moto. In both the cases, contempt proceedings must be initiated within one
year from the date on which contempt is alleged to have been committed.

In criminal contempt, contempt is alleged to have been committed the moment

scandalization of court or interference with the administration of justice takes place.
Consequently, the period of limitation immediately starts running. But, in case of civil
contempt the period of limitation does not start from the date of the order. It starts running
after expiry of period mentioned in the order after service of certified copy of the order
upon the other side. If no time limit is mentioned in the order, the order should be
complied within a reasonable period. The term “reasonable period” has been interpreted to
be a period of three months from the date of service of certified copy.

Defences In Civil Contempt

A person charged with civil contempt of court can take the following defences-
· No knowledge of order
The general principle is that a person cannot be held guilty of contempt in respect of an
order of which he claims to be unaware. Law casts a duty upon a successful party to serve
the certified copy of the order on the other side either personally or by registered speed
post. Notwithstanding the fact that the order has been passed in presence of both the
parties or their counsels.
So, it can be successfully pleaded in defense that the certified copy of the order was not
formally served on the alleged contemnor.

47
· Disobedience or breach was not willful
It can be pleaded that although disobedience or breach of the order has taken place but it
was due to accidental, administrative or other reasons beyond the control of the party
concerned. This plea can be successful only when the order has been complied with and a
reasonable explanation has been given for non- compliance thereof.

The Court may assess the intention of the party from the act done in the same way asa
reasonable prudent man would assess in the given circumstances.
· Order disobeyed is vague or ambiguous
If the order passed by court is vague or ambiguous or its not specific or complete, it would
be a defense in the contempt or alleged contemnor can raise a plea in defense that the
order whose contempt is alleged cannot be complied with as the same is impossible. In case
of R.N.Ramaul vs. State of Himanchal Pradesh[7] the Supreme Court directed the
respondent corporation to restore the promotion of the petitioner in service from a
particular date.

This direction was complied with by the respondent corporation by treating him as
promoted from that particular date which was given in the order. But, the monetary
benefits for that period were not paid by the respondent corporation and as such the
contempt petition was filed. Respondent Corporation took a defense that monetary
benefits were not paid to the petitioner because there was no direction in the order for
payment of monetary benefit and they cannot be held liable for contempt.

In case of Bharat Coking Coal Ltd. vs. State of Bihar[8], the Supreme Court clarified the legal
position by holding that where the order is incomplete and ambiguous, the parties should
approach the original court and get the order clarified by getting the ambiguity removed.

· Order involves more than on reasonable interpretation.

If the order whose contempt is alleged involves more than one reasonable and rational
interpretation and the respondent adopts one of them and acts in accordance with one
such interpretation, he cannot be held liable for contempt of court. However, this defense is
available only when a bonafide question of interpretation arises. The intention of bonafide
interpretation can be gathered from the fact that the order has been complied with by
adopting one such interpretation. In case of T.M.A. Pai Foundation vs. State of Karnataka[9]
it was held that this defense won’t be allowed if a doubt about the order has been
deliberately created when actually there is no doubt at all.

· Compliance of the order is impossible.

In proceedings for civil contempt, it would be a valid defense that the compliance of the

48
order is impossible. However, the cases of impossibility must be distinguished from the
cases of mere difficulty. In case of Amar Singh v. K.P.Geetakrishnan, the court granted
certain pensioner benefits to a large number of retired employees with effect from a
particular back date. The plea of impossibility was taken on the ground that the
implementation of the order would result in heavy financial burden on the exchequer.
However, the plea of impossibility was rejected by the court with the observation that
although it’s difficult to comply with the order but it’s not impossible to comply and
therefore, it should be complied with.

· The order has been passed without jurisdiction.

If the order whose contempt is alleged, has been passed by a court which had no
jurisdiction to pass it, the disobedience or violation would not amount to contempt of court
for the reason that the order passed without jurisdiction is a void order and binds nobody.
In case of Krishna Devi Malchand V. Bombay Environmental Action Group[10], the
Supreme Court clarified the legal position and held that if the order is void, it cannot be
ignored by the party aggrieved by it. The litigating party cannot assume the role of
Appellate or Provisional authority in order to say that the order is not binding upon them.
Consequently, if any party feels that the order has been passed by a court which had no
jurisdiction to pass it, he should approach the same court for seeking such declaration by
moving an application for recall of the order. If the application is rejected, the Appellate
Court can be approached for such declaration. In case of State of Jammu and Kashmir vs.
Mohd. Yaqub Khan[11], the Supreme Court has held that where stay petition application is
pending, the Contempt Court should not proceed with the contempt case till the stay
vacation application is decided. So, in case of interim order having been passed by a court
which has no jurisdiction, a stay vacation application can be promptly file, raising the plea
of lack of jurisdiction.

In Dr. H. Puninder Singh vs. K.K. Sethi[12], the Supreme Court has held that if there is any
stay order passed by the Appellate Court, the contempt court cannot proceed. However, if
no interim order application is passed by the Appellate Court, the court can proceed and
the order of the original court should be complied with subject to any order passed by the
Appellate Court at the final stage.

Defences Against Criminal Contempt

· Innocent publication and distribution of matter.
S.3 deals with this defense. If a criminal contempt is initiated against a person on the
ground that he is responsible for publication or for distribution of publication which
prejudices or interferes with the pending proceedings, the contemptner may take the
following steps:
(a) he may plead under S. 3(1) that at the time of publication, he had no reasonable ground

49
for believing that the proceeding was pending.
(b) he may plead under S.3(2) that at the time of publication, no such proceeding was
pending.
(c) he may plead under S.3(3) that at the time of distribution of publication, he had no
reasonable ground for believing that the matter (published or distributed by him)
contained or was likely to contain any material which interfered or obstructed the pending
proceeding or administration of justice.

· Fair and accurate report of judicial proceedings

S.4 of the Act provides that a person should not be held guilty of Contempt of Court for
publishing a fair and accurate report of any judicial proceedings or any stage thereof. S. 7 of
the Act provides Exception to the general principle that justice should be administered in
public. Sub sections (1) and (2) of S.7 provide that a person shall not be guilty of Contempt
of Court for publishing the text or for publishing fair and accurate summary of the whole or
any part of the order made by the court in camera (in Chamber) unless the court has
expressly prohibited the publication of the proceedings on the grounds of:
a) Public Policy
b) Public Order
c) Security of the State
d) Information relating to a secret process, discovery or invention, or, in exercise of the
power vested in it.

· Fair criticism of judicial act

S.5 provides that a person shall not be guilty of criminal contempt for publishing any fair
comment on the merits of any case which has been finally decided. A defense can be taken
that the statement complained of (in respect of publication of which criminal contempt has
been initiated) must be in respect of a case which has been finally decided and not in
respect of pending proceedings. Moreover, the statement should come from the mouth of a
knowledgeable person in the field of law and not from a litigating party which has lost the
case. In short, fair criticism means that criticism which while criticizing the act of a Judge
does not impute any ulterior motive to him. In case of Arundhati Roy, the Supreme Court
has held that judicial criticism cannot be invoked under the garb of Freedom of Speech and
Expression under Article 19(1)(a) of the Constitution of India.

The Supreme Court further clarified that fair criticism of the judiciary as a whole or the
conduct of a Judge in particular may not amount to contempt if it is made in good faith and
in public interest. To ascertain the 'good faith' and 'public interest' the Courts have to take
into consideration all the surrounding circumstances including the person's knowledge in
the field of law, the intention behind the comment and the purpose sought to be achieved. A
common citizen cannot be permitted to comment upon the Courts in the name of criticism

50
by seeking the help of Freedom of speech and expression for the reason that if it is not
checked, it would destroy the judicial institution itself.

In the present case, Arundhati Roy was not found to have knowledge or study regarding the
working of the Supreme Court or judiciary of the country and so the defense of fair
comment in good faith and public interest taken by her was rejected and she was punished
for criminal contempt.

· Bonafide complain against the presiding officer of a subordinate court.

S.6 provides that a person shall not be guilty of contempt of court in respect of any
statement made by him by way of complaint in good faith concerning the presiding officer
of any sub-ordinate court to the High Court or to the Court to which he is sub-ordinate. The
protection of this section will be available only when it is proved that the complaint was
made in good faith.

In ascertaining the 'good faith' the intention and the purpose sought to be achieved by
complaint will be taken into consideration and it would be ensured that the same was not
made with ulterior motive.

· No substantial interference with due course of justice.

By the Contempt of Courts (Amendment) Act, 2006, a new Section 13 has been substituted
in place of existing S.13. This new S. 13 provides that “notwithstanding anything contained
in any law for the time being in force, no Court should impose a sentence for Contempt of
Court unless it is satisfied that the Contempt is of such a nature that it substantially
interferes or tends to interfere with the due course of justice.”

· Justification by truth.
The amended S.13(2) provides that the Court may permit justification by truth as a valid
defense in any proceeding for criminal contempt if it is satisfied that it is in public interest.
Thus, truth is now a defense if it is in the public interest and bonafide.

· The statement complained of is open to different interpretations.

If the words complained of are open to two different interpretations and one of them
indicates contempt while the other does not, the contemptner cannot be punished for non-
compliance of one interpretation. But, in order to succeed in this defense, it is necessary to
prove that the order was complied with in respect of one interpretation. If the order is not
complied with at all, it cannot be proved that there was a reasonable doubt as to the
interpretation of the order. On the other hand, it will be presumed that a doubt is
deliberately sought to be created so as to avoid the compliance of the order.

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· Defamation of the judge personally.
If the publication or other act is merely a defamatory attack on the judge and is not
intended to interfere with the administration of justice, it will not be taken as contempt of
court.

The publication or other Act amounts to Contempt of Court only when it has nexus with the
functioning of a judge. The statement complained of may amount to Contempt of Court only
when it is made against a judge in his judicial capacity in the exercise of his judicial
functions. However, in such a situation a judge is not remediless and he has the same
remedies available which are available to a common man. A defamatory attack on a judge
may be Libel or Slander and he has a discretion to proceed for Defamation in civil, criminal
or simultaneous proceedings against the person concerned but he cannot be punished
summarily under criminal contempt of court. The object of Contempt law is to protect the
confidence of the people in the administration of justice and its object is not to prevent
attacks upon the personal reputation of any individual judge. So, any personal attack upon
the judge unconnected with the office he holds, is dealt with under the ordinary rules of
Libel and Slander.

Remedy Against The Order of Punishment

Following remedies are available against the punishment order under Contempt of Court
Act:
1. Apology: The contemner may under apology to the court and the court may remit the
punishment awarded for contempt, if the court is satisfied that the apology has been made
with real sense of repentance.
In case of A.K.Pandey, the Supreme Court made it clear that the court is not bound to accept
the apology unless there is a feeling of repentance in the contemner. In case of M.C.Mehta
vs. Union of India[13], the Supreme Court further clarified that apology should not be used
as a weapon of defense in case of contempt. The apology must be tendered at the earliest
opportunity. An apology will not be treated as an apology if tendered at a time when court
is going to impose a punishment. However, along with apology the defense taken by
contemner can be pleaded. Explanations to section 12(1) has enabled the contemner to put
forward his defense while pleading apology as this explanation has provided that apology
should not be rejected on the ground that its qualified or conditional if the accused makes it
bonafide. Apology will help the contemner if his explanation has been rejected.

In case of Haridas V. Smt. Usharani [14] the apology tendered by contemner was not found
to be genuine as the contemner repeatedly tried to assert that whatever he said was correct
and he would prove it. And at the same time he tender apology. His apology was not found
52
to be genuine and he was punished for contempt.

2. Appeal: Contempt of court Act, 1971 has provided for the statutory right of appeal
against the orders of High Court passed in the exercise of its jurisdiction to punish for the
contempt of the court. Prior to this act there was no statutory right of appeal but even at
that point of time the person punished under the Contempt of Court Act was not
remediless. The High Court itself could grant the certificate under Article 134 of the Indian
Constitution and where the High Court refused to grant such certificate, the Supreme Court
could entertain the appeal by granting special leave under Article 136 of the Constitution of
India.

So, the right of appeal prior to 1971 was dependent on the discretion of the court and it
was not by the way of right. Section 19(1) of the act provides right of only one appeal. It
provides that an appeal shall lie as of right from any order or decision of the High Court in
the exercise of its jurisdiction to punish for contempt. If the order of punishment has been
passed by single judge of High Court, there is right of appeal to the division bench of not
less than two judges of High Court. If the order of punishment is passed by a division on
bench then appeal will lie in Supreme Court.

However, in case of punishment order passed by single judge, the right of appeal gets
exhausted once the appeal is filed before the division bench and there is no further right of
appeal under the Contempt of Court Act.

However, the remedy under Article 136 of Constitution will still be available and the
Supreme Court may grant leave to appeal under Article 136. Section 19(4) provides for the
period of limitation for preferring an appeal.

It provides that an appeal under Article 19(1) shall be filed within thirty days to the
division bench of High Court and in case the order of punishment has been passed by
division bench of High Court then within sixty days to the Supreme Court from the date of
the order appealed against. Section 19(2) deals with the power of Appellate Court during
the pendency of appeal. It provides that during the pendency of the appeal the Appellate
Court may pass the following orders:

1. The execution of the punishment order shall remain suspended.

2. If appellant is under confinement imprisonment, he may be released on bail.
3. The appeal may be heard notwithstanding that the appellant has not perched his
contempt.

Section 19(3) provided that an appeal under section 19 will lie at the instance of the person

53
aggrieved. A proceeding for contempt is between the court and the contemner. A person
who moves the application for initiating contempt proceeding does not come within the
category of person aggrieved and therefore he has no locus to file an appeal, if his
contention for initiating the contempt proceeding is rejected. If a person is found guilty for
contempt of court, an appeal will lie under section 19 that the instance of person who is
found guilty and is consequently punished. But, if a person is not found guilty of contempt
proceedings and proceedings for contempt is either dismissed or dropped against him then
the informant or person who has moved the application for initiating the contempt will
have no right of appeal under section 19 of the Act. In case of Varda Kant Mishra vs. State of
Orissa, it was clarified by Supreme Court that the order or the decision of High Court
refusing to initiate contempt proceedings or dropping the contempt proceedings or
acquitting the contemner (even if initiated the contempt proceedings) cannot be challenged
by way of appeal under Section 19. It is only the order of punishment which can be
challenged by way of appeal under section 19 of the act.

Procedure To Be Adopted In Contempt Proceedings

Section 14 of the contempt of court act deals with the procedure of contempt in the face of
the court of record whereas section 15 deals with the procedure in cases other than in the
face of court of record. This is also known as constructive contempt. Article 129 provides
that the Supreme Court and article 215 provides that every High Court shall be a court of
record and shall have all the powers of such court including to punish for its contempt.
These court of records have inherent power to punish for contempt and therefore these
court of records can deal with such matter summarily and can adopt their own procedure.

The only case to be observed by the courts of record while exercising the contempt
jurisdiction is that the procedure adopted must be fair and reasonable in which full
opportunity should be given to the alleged contemner to defend himself. No person should
be punished for the contempt unless a specific charge against him is distinctly stated and
he is given a reasonable opportunity to answer it and to defend himself against such
charge.
The contempt proceedings are neither civil proceedings nor criminal. They are sui generis.
Consequently, contempt proceedings will neither be governed by Civil Procedure Code nor
by Code of Criminal Procedure. Even the provisions of Indian Evidence Act will not be
attracted in the contempt proceedings. The contempt of court including the criminal
contempt is not an offence within the meaning of Code of Criminal Procedure and therefore
a procedure prescribed by Code of Criminal Procedure for investigation, enquiry and trial
of the offence is not required to be followed in contempt proceedings.

54
The contempt of court and the power of the Supreme Court and High Courts to initiate
proceedings for contempt and pass punishment orders, is a special jurisdiction which is
inherent in all the courts of record. Section 5 of the Code of Criminal Procedure expressly
excludes special jurisdiction from the scope of Code of Criminal Procedure.

Procedure To Be Adopted In Cases of Contempt In The Face of The Court

Section 14 deals with contempt in the face of the Supreme Court and High Courts and it
provides that whenever it appears to the Supreme Court and the High Courts that a person
appears to have committed contempt in its presence or hearing the court may cause such
person to be detained in custody.
And shall at any time before the rising of the court on the same day or as early as possible,
thereafter :
1. Cause him to be informed in writing of the contempt with which he is charged.
2. Afford him an opportunity to make his defense in respect of the charge.
3. After taking such evidence as may be offered by such person and after hearing him
proceed either forthwith or after adjournment to determine the matter of the charge.
4. Make such order for the punishment or discharge of such person as may be necessary.

Where the person charged with contempt under this section applies whether orally or in
writing to have the charge against him, tried by some judge other than the judge or judges
in whose presence or hearing the contempt is alleged to have been committed and the
court is of the opinion that it is necessary in the interest of justice that the application
should be allowed, it shall cause the matter to be placed before the Chief Justice with the
statement of facts of the case for transfer before such judge as the Chief Justice may think
fit and proper under the circumstances of the case.

However, it shall not be necessary for the judge or Judges in whose presence or hearing the
contempt is alleged to have been committed to appear as a witness before the Court where
the matter has been referred. The statement of facts of the case written by the judge or
Judges while referring the matter to the Chief Justice shall be treated as evidence in the
case.

In Sukhdev Singh vs. Teja Singh, the Supreme Court observed that if the judge has been
personally attacked, he should not, as far as possible, hear the contempt matter and should
refer the matter to Chief Justice for nomination of some other Court, or, on the application
of the person aggrieved. This is necessary keeping in view the principle of law that no one
should be a judge in his own cause, and, secondly justice should not only be done, but it
must appear to have been done.
55
In those cases, where the Contemnor has been detained in custody, during the pendency of
the Contempt case, he may be released on Bail or on furnishing bond with or without
sureties, that he shall continue to attend the Court proceedings.

Procedure of Criminal Contempt Committed Outside The Court

Criminal Contempt committed outside the Court, in other words, other than in the face of
the Court, is known as Constitutive Contempt. Section 15(1) deals with cognizance of
criminal contempt by courts of record whereas Section 15(2) deals with criminal contempt
of sub-ordinate courts.

Section 15(1) provides that cognizance for criminal contempt can be taken by the Supreme
Court and High Courts in the following manner:
i. On its own motion
ii. On the motion of the Advocate General
iii. On the motion of any other person, with the consent, in writing, of the Advocate General.
iv. On the motion of such law officer in relation to the High Court for the Union Territory of
Delhi as the central government may notify.

Section 15(2) provides that in case of criminal contempt of a sub-ordinate court, the
concerned High Court may take action in the following manner:
i. On the reference made to it by the sub-ordinate court.
ii. On the motion made by the Advocate General.
iii. On the motion made by such law officer in relation to a Union Territory as the Central
Government may specify.

Section 15(3) provides that every motion or reference shall specify the contempt of which
the person charged is alleged to be guilty.
The expression “advocate general” in this section means the following:
1.in relation to the Supreme Court, the Attorney General or the solicitor general.
2.In relation to a High Court, the Advocate General of the states for which High Court has
been established.
3.In relation to the court of judicial commissioner, such law officer as the central
government may specify.

Bar On Private Persons

Section 15 bars the private individuals to file without consent of the Advocate General. The
purpose of barring a private person from filing contempt procedure without the consent of
56
Attorney General is to save the court's time from being wasted in frivolous complaints.

In Hari Kishan vs. Narutham Das Shashtri, the SC held that the purpose of barring private
person from filing criminal contempt is to prevent the courts from being flooded with
frivolous motions in order to serve personal interest or grudge.

Once the matter is scrutinized by advocate general only such motions which have
substance will receive the court's attention.
In case of Biman Basu V A.G Thakurta[15], the SC held that any petition of criminal
contempt filed by any private person without the consent of the Advocate General will not
be maintainable and will be dismissed on this ground alone.

In cases of contempt committed outside the court, the contempter isn't present in the court
and therefore a notice is to be served on him section 17 deals with this procedure. It
provides that notice of every proceeding under section 15 shall be served personally on the
person charged unless the court for reasons to be recorded, directs otherwise.

The notice shall be accompanied:

1. In case of proceedings commenced on a motion, by the copy of the motion along with
affidavit and material on which such motion is founded.
2. In case of proceedings on a reference by a subordinate court, by a copy of the reference.

If the court is of the opinion that the person charged under section 15 is likely to abscond
or is likely to avoid the service of notice, the court may order the attachment of the
property of such person. However, the court may release the property from attachment if
the person appears and satisfies the court that he did not abscond or avoid the court’s
notice.

Any person charged with contempt under section 15 may file an affidavit in support of his
defence and the court may decide the charge of contempt on the basis of his affidavit or
after taking such evidence as may be necessary.

Conclusion
Anything that curtails or impairs the freedom of limits of the judicial proceedings. Any
conduct that tends to bring the authority and administration of Law into disrespect or
disregard or to interfere with or prejudice parties or their witnesses during litigation.
Consisting of words spoken or written which obstruct or tend to obstruct the
administration of justice. Publishing words which tend to bring the administration of
Justice into contempt, to prejudice the fair trial of any cause or matter which is the subject
of Civil or Criminal proceeding or in any way to obstruct the cause of Justice.

57
An apology shall not be rejected merely on the ground that it is qualified or conditional if
the accused makes it bonafidely.

Section 12 deals with the punishment for contempt of court. It provides as follows: Section
12(1)- Save as otherwise expressly provided in this Act or in any other law, a contempt of
court may be punished with simple imprisonment for a term which may extent to 6 months
or a fine which may extend upto rupees 2000 or both.

Provided that, the accused (of contempt) may be discharged or the punishment awarded
may be remitted on apology being made to the court's satisfaction.

However, in short contempt can be said to be an act or omission which interferes or tends
to interfere in the administration of justice. To constitute contempt, it’s not necessary that
there has been actual interference in the administration of justice

Contempt of Court or Contempt has been defined as any conduct which tends to disrespect
or overlook the authority of Law and Order. The expression �contempt of court� has not
been defined by the Constitution. Although:

Article 129:

Grants Supreme Court the power to punish for contempt of itself.

Article 142(2):

Enables the Supreme Court to investigate and punish any person for its contempt.

Article 215:

Grants every High Court the power to punish for contempt of itself.

The law regarding contempt has been made for preserving the dignity of the courts and
keeping the administration of justice properly. According to Halsbury, Contempt consists of
any words, spoken or written which obstruct the course of administration of justice.

The Contempt of Court Act, 1971, defines the power of courts to punish for their contempt
and regulates their procedure. It seeks to protect judicial institutions from any kind of
58
disobedience towards judges, or obstruction in the implementation of their directives, or
comments and actions that exhibits disrespect. Such a person can be punished under
section 12 of the Act.

Need for Contempt Law

To protect the judiciary from unfair attacks and to thwart an unexpected fall in the
judiciary�s status in the eyes of public. Also, to uphold the majesty and dignity of the
judiciary.
Contempt powers assist judges to perform their duties, for instance deciding cases without
fear, biasness, affection or animosity.

Relevant Sections

Section 10: Power of High Court to punish contempt of subordinate courts:

Every High Court shall have and exercise the same jurisdiction, powers and authority, in
accordance with the same procedure and practice, in respect of contempt of courts
subordinate to it as it has and exercises in respect of contempt of itself.

Provided that no High Court shall take cognizance of a contempt alleged to have been
committed in respect of a court subordinate to it where such contempt is an offence
punishable under the Indian Penal Code (45 of 1860).

Section 11:

Power of High Court to try offences committed or offenders found outside jurisdiction.

A High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court
subordinate to it, whether the contempt is alleged to have been committed within or
outside the local limits of its jurisdiction, and whether the person alleged to be guilty of
contempt is within or outside such limits.

Section 12: Punishment for contempt of court

59
Notwithstanding anything contained in any law for the time being in force, no court shall
impose a sentence in excess of that specified in sub-section (1) for any contempt either in
respect of itself or of a court subordinate to it.

Section 15: Cognizance of criminal contempt in other cases.

In the case of any criminal contempt of a subordinate court, the High Court may take action
on a reference made to it by the subordinate court on a motion made by the Advocate-
General or, in relation to a Union territory, by such Law Officer as the Central Government
may, by notification in the Official Gazette, specify in this behalf.

Relevant Case Laws:

In Delhi Judicial Service Association vs. State of Gujarat,[1]

Relevant para nos.: Para 19, 21, 26 to 31, 37 and 38.

The above mentioned case is a Landmark Judgment where the Supreme Court ruled out
that it has the power to punish for contempt not only of itself but also of high courts,
subordinate courts and tribunals functioning in the entire country and is not against the
constitution of India. Both the Supreme Court as well as High Courts are courts of record.
The Constitution does not define Court of Record, but this expression is well recognized in
juridical world. A Court of record is a court whereof the acts and judicial proceedings are
enrolled for a perpetual memorial and testimony, and has power of summarily punishing
contempt of itself as well as of subordinate courts.

The High Court being a court of record has inherent power in respect of contempt of itself
as well as of its subordinate courts even in the absence of any express provision in any Act.
The Supreme Court being the Apex court and a superior court of record has the power to
determine its jurisdiction under Article 129 and jurisdiction to initiate or entertain
proceedings for contempt of the subordinate courts. This view does not run counter to any
provision of the Constitution.

In E Bapanaiah vs. K.S. Raju & others,[2]

Relevant para nos.: Para 25 to 27.

Powers of the High Courts to punish for contempt including the powers to punish for
60
contempt of itself flow from Article 215 of the Constitution of India. Section 10 of the
Contempt of Courts Act, 1971 empowers the High Courts to punish contempt of its
subordinate courts. The Company Law Board is judicially subordinate to the High Court
and, even if it�s administrative control is held not to vest in the High Court under Section
10 of the 1971 Act.

In Dayal Singh & others vs. State of Uttaranchal,[3]

The Supreme Court in this case held, as there was no action taken by the superior authority
of the concerned departments. This court hold them guilty under Contempt of Court Act,
1971.

In P.D. vs. UW [4]

In view of the fact that the petitioner has succeeded in demonstrating, prima facie, that the
respondent has committed contempt of the order, passed by the Family Court, Dwarka.
Therefore he is called upon to show cause as to why he should not be punished under
Section 10 read with 2(b) of the Contempt of Courts Act, 1971.

In Pamela Manmohan Singh vs. Harnam Kaur & Others, [5]

The respondents 2 and 3 have violated the orders passed by the subordinate court. The
question that now arises is how the said respondents to be dealt with. Insofar as the
punishment under Section 12 of the Contempt of Courts Act, 1971 is concerned; 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. In the facts
and circumstances of the current case, a fine of Rs 2,000/- was imposed on each of the
contemnors.

In Vir Bhan vs. MCD, [7]

61
Relevant page nos: [Pg. 266-C & D].
In the present case not only was the petition admitted but permission was given to file
additional affidavits and counter affidavits, and even oral evidence was taken before a
learned Judge of this court. After all the time taken and leading evidence it seems to me
inappropriate to refuse at this stage to entertain this petition and drive the parties to
another round of tortuous litigation involving considerable expense and time. And the
court further held the person to be guilty of contempt of court.

Conclusion
Thus, under Article 129 and 142(2) of the Constitution of India, The Supreme Court ruled
out that it has the power to punish for contempt not only of itself but also of high courts,
subordinate courts and tribunals functioning in the entire country and is not against any
provisions or Acts. Therefore, The Supreme Court being the Apex court has the jurisdiction
to initiate or entertain proceedings for contempt of the subordinate courts as well.

Under Article 215 of the Constitution of India, High Court being a court of record has
inherent power in respect of contempt of itself as well as of its subordinate courts even in
the absence of any express provision in any Act. Also Section 10 of the Contempt of Courts
Act, 1971 empowers the High Courts to punish contempt of its subordinate courts.

It should be noted here that The power of the High Courts to punish for contempt of a
subordinate court is derived from legislation and not from the Constitution.[8]

Contempt of Court
August 20, 2019

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Contempt of Court definition
“The term ‘Contempt of Court’ is a generic term descriptive of conduct in relation to
particular proceedings in a court of law which tends to undermine that system or to inhibit
citizens from availing themselves of it for the settlement of their disputes.”This definition is
given by Lord Diplock when he was giving the judgment in the case of Attorney-General v.
Times Newspapers Ltd. [1]

This term Contempt of Court can be easily understood as when we are disrespectful or
disobedience towards the court of law which means that we wilfully fail to obey the court
order or disrespect the legal authorities. Then the judge has the right to impose sanctions
such as fines or can send the contemnor to jail for a certain period of time if he is found
guilty of Contempt of Court.

This term can also be understood in terms of the freedom of limits of the judicial
proceeding. As we know that all judges in courts can give judicial proceedings which have a
certain limit in which it has the freedom to make any judicial proceeding and anything
which curtails or stops it in making any judicial proceeding which is of necessity can
amount to contempt of court.

Halsbury, Oswald, and Black Odgers have also given the definition of Contempt of Court
and in addition to that, they have talked about its misuse and its wrong interpretation and
also its broad prospectus.

In India, the concept of Contempt of Court is defined in Section 2(a) of the Contempt of
Courts Act, 1971 which has broadly describe it as civil contempt or criminal contempt.

There are two Articles in the Constitution of India which talk about the Contempt of Court
and these are Article 129 and Article 142(2) .

Article 129

Article 129 says that the Supreme Court shall be the ‘Court of Record’ and it has all the
powers of such courts including the power to punish for contempt of itself.

Now, we should know about the meaning of ‘Court of Record’ to understand why anything
commented wrongly against the decision of the courts leads to Contempt of Court.

Here, is the answer to this question. The ‘Court of Record’ means a Court having its acts and
proceedings registered for everlasting memory or that memory which has no end and as

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evidence or proof. The truth of these records cannot be questioned and also these records
are treated as a higher authority. And anything stated against the truth of these records
comprised Contempt of Court.

Article 142(2)

This article also talks about Contempt of Court. This Article says that when any law is made
by the Parliament on the provisions mentioned in clause 1 of this Article, the Supreme
Court has all the power to make an order for securing any person’s attendance, production
of any documents or has the power to give punishment to anyone for its contempt.

This also does not mean that the Supreme Court can do anything against the right of
personal liberty if it has the power to punish for Contempt of Court. We know that it is the
guardian of all the rights that we get from the Indian Constitution so it has to safeguard
these rights and cannot violate these rights itself.

Origin of Contempt of Court

The legal system that we see today is the summit of the long journey which has started
from the divine rule that was in proclamation to the natural law and more further to the
positive law that we see today. Contempt of Court is a matter which regards that justice
should be administered fairly and it also punishes anyone who aims to hurt the dignity or
authority of the judicial tribunals. This law has its origin from the medieval times when the
royal powers of the monarch were transferred to the court and at this time the monarch
was believed to be appointed by God and everyone was accountable to him. This power of
accountability clearly depicts the same accountability the Supreme Court possesses
nowadays under Article 129 and 142 of the Indian constitution against its contempt. In the
English medieval ages the Judiciary was an important tool of the Monarch. At that time
these judges and legislatures were representatives of the divine rule monarchy and these
judges and legislatures played an important role in legitimizing the functions of these
monarchs. The king was the superior head of justice and this power he has given to the
judicial system and if anyone or the king himself disrespect or question the courts it
became a challenge to the superiority of the king and as well as to his wisdom. So, this can
be seen as although the source of the law has transformed in the society the
unquestionability quality that a king enjoyed was upheld by the monarchy.

History of Law of Contempt in India

Sanyal Committee report deals with the historical aspect of the Law of Contempt in India.
This committee has been responsible for starting the amendment process in this law. The
law of contempt similar to many other laws has been brought from the English laws and

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statutes but this law has not been absolutely taken from the English laws it has other
origins too. How has the indigenous development of contempt law taken place? It can be
understood by the age-old system which our country was having to protect court or
assemblies (sabhas) in the past. We know about the philosopher Kautilya, in his book
Arthashastra has written about the governance at that time. He has written that “Any
person who exposes the king or insults his council or make any type of bad attempt on the
kings then the tongue of that person should be cut off.” Adding to this statement, he also
said that “When a judge threatens, bully or make silence to any of the disputants in the
court then he should be punished.”

Until the year 1952, there were no statutory provisions for the contempt of court in India
but after the enactment of Contempt of Court Act, 1952 statutory provisions for contempt
of court in India has established. This Act extends to the whole of India except Jammu and
Kashmir. This Act gives power to the High Court to punish contempt of the subordinate
court. This Act has repealed the existing law from the Contempt of Court Act, 1926 that
was prevailing in the state of Rajasthan and the state of Saurashtra. Although this Act was
extended to the whole of Bangladesh. It can be surprising knowing that although these Acts
have been introduced earlier then also these Acts do not give the definition of the term
‘Contempt’ and also there was still a lot of ambiguity present around the law of contempt.
This law has to be dealt with in light of two fundamental rights given by our Indian
Constitution and these rights are (i) freedom of speech and expression and (ii) right to
personal liberty.

. The procedure and application of enactment something that was done earlier by the
Contempt of Court Act of 1926 and 1952 was given several changes through the Contempt
of Court Act, 1971. This Act segregates the ‘Contempt of Court’ into criminal and civil
contempt with their definition respectively. This thing was not mentioned in the earlier
existing courts. Now, let us know something about the Contempt of Court Act, 1971.

Contempts of Courts Act 1971 notes

This Act under Section 2(a) defines Contempt of Court as ‘Civil Contempt’ and ‘Criminal
Contempt’. There is a case of Noorali Babul Thanewala v. K.M.M. Shetty [2] in which an
undertaking was given to a Court in civil proceedings by a person, on the faith that
undertaking was correct the Court sanctions a course of action in regard to that
undertaking but the undertaking seems to be incorrect. Hence, this was considered as
misconduct and amount to Contempt of Court

Essentials of Contempt of Court

1. Disobedience to any type of court proceedings, its orders, judgment, decree, etc
should be done ‘willfully’ in case of Civil Contempt.

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 2. In Criminal Contempt ‘publication’ is the most important thing and this
publication can be either spoken or written, or by words, or by signs, or by visible
representation.
3. The court should make a ‘valid order’ and this order should be in ‘knowledge’ of
the respondent.
4. The action of contemnor should be deliberate and also it should be clearly
disregard of the court’s order.
These essentials should be fulfilled while making someone accused of Contempt of Court.

Types of Contempt of Court in India

Depending on the nature of the case in India, Contempt of Court is of two types.

1. Civil Contempt
2. Criminal Contempt

Civil Contempt

Section 2(a) of the Contempt of Court Act, 1971 states Civil Contempt as wilful
disobedience to the order, decree, direction, any judgment or writ of the Court by any
person or willfully breach of undertakings by a person given to a Court. Since Civil
Contempt deprives a party of the benefit for which the order was made so these are the
offences essential of private nature. In other words, a person who is entitled to get the
benefit of the court order, this wrong is generally done to this person.

There is a case on the willful disobedience of the court order which a person should know.

Utpal Kumar Das v. Court of the Munsiff, Kamrup [3]

This is the case of non-rendering of assistance, although the court has ordered to render
assistance. Decree executed by the court to deliver immovable property but because of
certain obstruction, the defendant failed to do so. Hence, he was held liable for constituting
disobedience to the orders of the competent Civil Court.

Another case is on the breach of an undertaking which leads to Contempt of Court.

U.P. Resi. Emp. Co-op., House B. Society v. New Okhla Industrial Development Authority [4]

In this case, the Supreme Court has directed the Noida Authorities to verify and state on the
affidavit details given by persons for allotment of plots. In pursuance to the same direction

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by the Supreme Court a person Mr. S filed a false affidavit to mislead the court. The Registry
directed a show-cause notice against him to say that why an act of contempt should not be
taken against him for misleading the Supreme Court.

Defences to Civil Contempt

A person who is accused of Civil Contempt of case can take the following defences:

 Lack of Knowledge of the order: A person can not be held liable for Contempt
of Court if he does not know the order given by the court or he claims to be
unaware of the order. There is a duty binding on the successful party by the
courts that the order that has passed should be served to the Individual by the
post or personally or through the certified copy. It can be successfully pleaded by
the contemner that the certified copy of the order was not formally served to him.

 The disobedience or the breach done should not be : If someone is pleading

under this defence then he can say that the act done by him was not done
willfully, it was just a mere accident or he/she can say that it is beyond their
control. But this plead can only be successful if it found to be reasonable
otherwise your plead can be discarded.

 The order that has disobeyed should be vague or ambiguous: If the order
passed by the court is vague or ambiguous or this order is not specific or
complete in itself then a person can get the defence of contempt if he says
something against that order. In R.N. Ramaul v. State of Himachal Pradesh [5], .

 Orders involve more than one reasonable interpretation: If the contempt of

any order declared by the court and the order seems to be given more than one
reasonable and rational interpretation and the respondent adopts one of those
interpretations and works in accordance with that then he will not be liable for
Contempt of Court.

 Command of the order is impossible: If compliance of the order is impossible or it

can not be done easily then it would be taken as a defence in the case of Contempt
of Court. However, one should differentiate the case of impossibility with the case
of mere difficulties. Because this defence can be given only in the case of the
impossibility of doing an order.

Criminal Contempt

According to Section 2(c) of the Contempt of Court Act, 1971, Criminal Contempt is Defined
as (i) the publication of any matter by words, spoken or written, or by gesture, or by signs,
or by visible representation or (ii) doing of any act which includes:

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 1. a) Scandalize or tends to scandalise, or lowers or tends to lower the authority of
any court, or
2. b) Biasness, interferes or tends to interfere with the due course of any type of
Judicial proceedings, or
3. c) obstructs or tends to obstruct, interfere or tend to interfere with the
administration of justice in any manner.
Case on Scandalizing the Court:

Jaswant Singh v. Virender Singh [6]

In this case an advocate caste derogatory and scandalous attack on the judge of the High
Court. An application was filed an election petitioner in the High Court, who was an
advocate. It was held in this case that it was an attempt to intimidate the judge of the High
Court and cause an interface in the conduct of a fair trial.

Punishment for Contempt of Court

Section 12 of the Contempt of Court Act, 1971 deals with the punishment for Contempt of
Court. High Court and the Supreme Court have been given the power to punish someone for
the Contempt of Court. Section 12(1) of this Act states that a person who alleged with the
Contempt of Court can be punished with simple imprisonment and this imprisonment can
extend to six months, or with fine which may extend to two thousand rupees or can be of
both type punishment. However, an accused may be discharged or the punishment that
was awarded to him maybe remitted on the condition that if he makes an apology and this
apology should satisfy the court then only he can be exempted from the punishment of
Contempt of Court. Explanation of this sentence is that if the accused made an apology in
the bona fide then this apology shall not be rejected on the ground that it is conditional or
qualified.

The court can not impose a sentence for Contempt of Court in excess of what is prescribed
under the given section of this Act either in respect of itself or of a court subordinate to it.

Remedies against an order of Punishment

Section 13 has been added in the Contempt of Court Act, 1971 after amendment in 2006.
The new Act may be called The Contempt of Court (Amendment) Act, 2006. This Section
tells that contempt of court cannot be punished under certain circumstances or certain
cases.

Clause (a) of Section 13 of the Contempt of Court (Amendment) Act, 2006 states that no
Court under this Act shall be punished for Contempt of Court unless it is satisfied that the

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Contempt is of such a nature that it substantially interferes or tend to substantially
interfere with the due course of Justice.

Clause (b) of Section 13 of this Act states that the court may give the defence on the
justification of truth if it finds that the act done in the public interest and the request for
invoking that defence is bona fide.

Contempt Proceedings
Two Sections of the Contempt of Court Act, 1971 deals with the procedure of Contempt
proceeding. One talks about the proceeding in the face of the court of records and other
talks about the proceedings other than the court of records.

Section 14 of the Contempt of Court deals with the procedure of contempt proceeding in
the face of the court of record whereas Section 15 of this Act deals with the procedure of
the contempt proceeding outside the court of records.

These courts of record have got the power to punish for its contempt inherently. Therefore,
these courts of record can deal with the matter of content by making their own
procedure. While exercising the contempt jurisdiction by the courts of record the only case
to be observed is that the procedure adopted must be fair and reasonable in which the
alleged contemnor should be given full opportunity to defend himself. If the specific charge
against the person who is punished for the contempt is distinctly stated and he is given a
reasonable opportunity to answer and to defend himself against the charge then only he
will be liable for contempt of court and the court proceeding runs against him. Where the
person charged with contempt under this section applies whether orally or in writing to
have the charge against him, tried by some judge other than the judge or judges in whose
presence or hearing the contempt is alleged to have been committed and the court is of the
opinion that it is necessary in the interest of justice that the application should be allowed,
it shall cause the matter to be transferred before such judge as the Chief Justice may think
fit and proper under the circumstances of the case or placed before the Chief Justice with
the statement of facts of the case.

Contempt committed outside the court

Criminal Contempt rather than Civil Contempt committed outside the Court. Section
15(1) of the Contempt of Court Act, 1971 deals with the notice of Criminal Contempt by
Court of Record such as the Supreme Court and the High Court. Following manners can be
taken by the Supreme Court and the High Court for cognizance of the Criminal Contempt:

1. On the motion of court of records.

2. On the motion of the Advocate General of the Supreme Court and the High Court.

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 3. If any person proceeds the motion with the consent of the Advocate General in
writing.
4. If the law officer who is related to the High Court for the Union Territory of Delhi
as the Central Government notify proceeds the motion. Then it can be considered
as contempt committed outside the court.
Section 15(2) of this Act states that in the criminal contempt of the subordinate court, the
high court may take certain actions in the manner given in this Act.

Contempt by a Company
In case any person is found guilty of contempt of court for any undertaking given to a court
while he is a member of the company. Then the person who at that time was in charge of
that company will be responsible for the conduct of the business of that company and shall
be deemed to be guilty of the contempt. The punishment may be enforced by the detention
in the civil prison of such person with the leave of the court

However, that person can be free from liability if such person proves that the contempt was
committed without his knowledge or that he exercised all possible means to prevent its
commission.

Liability of officer of the company

If the contempt of court has been committed by a company and it is provided that the
contempt has been committed with the consent of, or is attributable to any neglect on the
part of, any director, manager, secretary or other officers of the company, then such
persons shall also be deemed to be guilty of the contempt and the punishment will be
enforced against them by the detention in civil prison of such director, manager, secretary
or other officer with the leave of the court.

Contempt by the third party to the proceeding

If a third party has a part to play in the offence then the third party to the offence may be
guilty of contempt of court and proceeding can initiate against him. In LED Builders Pty Ltd
v Eagles Homes Pty Ltd [7] Lindgren J stated:

“It is not necessary to show that a person who has breached the order of the court can be
liable for contempt of court but the only necessary thing to confirm his liability for
contempt is to show that the person knew of the order which was breached.”

In another case of M/S. Gatraj Jain & Sons v. Janakiraman [8] it has been stated about the
third party to the proceeding that if a third party to the contempt petition found to be

70
wilfully disobeying the court order then he cannot prevent the court from restoring
the status quo.

Criminal contempt and criminal defamation proceedings

A question has been asked by the person that can an action for criminal contempt and
criminal defamation initiated simultaneously. This can be understood by knowing the
concept of Criminal contempt and criminal defamation. Earlier, in this article, we have
talked about Criminal Contempt. But for an overview, we should know what does a
criminal contempt mean. According to Section 2(c) of the Contempt of Court Act, 1971,
criminal contempt is defined as (i) the publication of any matter by words, spoken or
written, or by gestures, or by signs, or by visible representation or (ii) doing of any act
which includes:

1. a) Scandalize or tends to scandalise, or lowers or tends to lower the authority of

any court, or
2. b) Biasness, interferes or tends to interfere with the due course of any type of
Judicial proceedings, or
3. c) obstructs or tends to obstruct, interfere or tend to interfere with the
administration of justice in any manner.
Now, we will know the concept of criminal defamation.

The definition of criminal defamation has been given under Section 499 of the Indian Penal
Code, 1860. It states about defamation that “Whoever, by words either spoken or intended to
be read, or by signs or by visible representations, makes or publishes any imputation
concerning any person intending to harm, or knowing or having reason to believe that such
imputation will harm, the reputation of such person, is said, except in the cases hereinafter
expected, to defame that person.”

There are certain exceptions of criminal defamation and these are:

1. If the publication of anything is in truth and for public good then it cannot be
treated as defamation.
2. When a person touches any public questions then for that he cannot be liable.
3. If the publication is of the reports of the proceedings of the court.
As the right to reputation is an important facet of the right to life and personal liberty
guaranteed under Article 21 of the Indian Constitution, hence, the aim of the criminal
defamation is to prevent a person from maligning harming the reputation of others by
using absurd or malign words with malafide intentions.

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In the case of Dr. Subramanian Swamy vs. Union of India (UOI), Ministry of Law and Ors. [9]
the constitutional validity of the criminal defamation was upheld.

Limitation
Section 20 of the Contempt of Court Act, 1971 deals with the limitation for the action of
Contempt. It states that no court shall initiate any proceedings of contempt in two
conditions:

1. Either the proceedings are on his own motion, or,

2. After the period of one year from the date on which the contempt is alleged to
have been committed.

Landmark Contempt Judgments

 Supreme Court Bar Association vs Union Of India & Anr [10]

In this case, the Judge held that procedural aspect for Contempt of Court may still be
prescribed by the Parliament so that it could be applicable in the Supreme Court and the
High Court. This means that Section 12(1) of the Contempt of Court Act, 1971 which
prescribed a maximum fine of Rs. 5000 and imprisonment for a term of six months shall be
applicable in this case.

 Zahira Habibullah Sheikh & Anr vs State Of Gujarat & Ors[11]

It was held in this case that the punishment that is given for contempt in the Contempt of
Court Act, 1971 shall only be applicable to the High Court but for Supreme Court, it acts as a
guide. The judgment that was given was not accompanied by rationality, this was
worrisome because the Supreme Court has been given great powers that the drafters of the
Indian Constitution has also not given.

 Sudhakar Prasad vs. Govt. of A.P. and Ors.[12]

This case is also similar to the Supreme Court Bar Association Case. In this case also once
again the Supreme Court declared that the powers to punish for contempt are inherent in
nature and the provision of the Constitution only recognised the said pre-existing situation.

The provision of the Contempt of Court cannot be used to limit the exercise of jurisdiction
given in Article 129 and Article 215 of the Constitution.

Famous cases of contempt

 P.N. Duda vs V. P. Shiv Shankar & Others[13]

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In this case, the Supreme Court observed that the judges cannot use the contempt
jurisdiction for upholding their own dignity. Our country is the free marketplace of ideas
and no one could be restricted to criticise the judicial system unless this criticism hampers
the ‘administration of justice’.

 R. Rajagopal vs State Of T.N[14]

This case is also known as the Auto Shankar case; in this case, Justice Jeevan Reddy invoked
the very famous doctrine of John Sullivan. This doctrine states that public must be open to
strict comments and accusations as long as made with bonafide diligence, even if it is
untrue.

 In Re: Arundhati Roy [15]

In this case, the Supreme Court observed that the fair criticism on the conduct of a Judge or
the institution of Judiciary and its function may not amount to contempt if it is made in
good faith and in the public interest.

 Indirect Tax practitioners’ Association v. R.K. Jain[16]

In this case, the Supreme court observed that the defence of truth can be permitted to the
person accused of contempt if the two conditions are satisfied. These are: (i) if it is in the
interest of public and (ii) the request for invoking the said defence is bonafide. These are
given in Section 13 of the Contempt of Court Act, 1971.

 Justice Karnan’s case

He was the first sitting High Court Judge to be jailed for six months on the accusation of
Contempt of Court. In February 2017, contempt of court proceeding was initiated against
him after he accused twenty Judges of the Higher Judiciary of Corruption. He wrote a letter
to PM Modi against this but he did not provide any evidence against them.

What is contempt of court

Article 129 declares that the supreme court as a “Court of record” and that it shall have all
the powers of a court of record including the power to punish for its contempt of itself.

Further Article 142(2) empowers the Supreme Court to investigate and punish for any
contempt of itself i.e. contempt of Supreme court of itself.

Similarly, Article 215 declares High courts as a “Court of record” and that it shall have all
the powers of such a court including the powers to punish for contempt for itself.

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Power to punish for contempt of both the High court and the Supreme Court has been given
by the Constitution as well as by Contempt of Courts Act, 1971.

Contempt of Courts Act, 1971 does not define what is contempt, it simply explains the types
of contempt: Civil contempt and Criminal contempt.

Importance of contempt of court

Contempt in law means being disobedient to a court of law or towards it ruling. The
recognition of contempt of court and to punish for contempt is essential for a nation such
as India which is based on the concept of rule of law, which requires supremacy of law,
since the judiciary is considered, as the last bastion of hope and justice for the citizens of
any nation.

According to the Supreme court bar association v. Union of India (1995), The object of
punishment is both curative and corrective and these coercions are meant to assist an
individual complainant to enforce his remedy and there is also an element of public policy
for punishing civil contempt since the administration of justice would be undermined if the
order of any court of law is to be disregarded with impunity.

Kinds of contempt of court

The Contempt of courts Act, 1971 (hereinafter “1971 Act”) regulates the contempt of court
and provides for 2 types of contempt.

 Civil contempt [Section 2(b)]

According to section 2(b), civil contempt means wilful disobedience of any judgement or a
decree of a court or a wilful breach of any undertaking given to a court.

 Criminal contempt [Section 2(c)]

subjective understanding of anyone. If there is a judicial order and if such order has

Section 2(c) defined criminal contempt as the publication of any matter which either
Scandalises or lowers the authority of the court, or that such matter interferes or

74
prejudices any judicial proceeding, Interferes or obstructs the administration of justice in
any manner. Further, an act or publication will constitute contempt if it even tends to
scandalize the authority of the court or it tends to interfere with any judicial proceeding or
administration of justice.

Relationship between contempt of court and courts being the court of record
Both the High court and Supreme court are courts of record and as a court of record, they
have the power to punish for contempt of itself respectively as well as contempt of courts
which are subordinate to it.

In Re: Vinay Chandra Mishra v. The Unknown (1995), the Supreme court said that
contempt jurisdiction of the superior court is not based on law, but it is inherent in the
court because it is a court of record. Thus power to contempt resides in the Supreme Court
and High courts because they are deemed as a court of record by the constitution.

Role of ethics in the contempt of court and analysis of criminal contempt of the courts
Chapter 2 Part V of the Bar Council of India rules provides the code of ethics which is to be
followed by advocates. A part of the rules deals with the Advocate’s duty towards the court.
For the purpose of this article rules which are important include:

 Advocate has to keep in mind the dignity of the judge.

 It is the duty of the advocate to perform his function in such a manner that due to
his acts the honour and integrity of the court are not affected.
According to Chief Justice Marshall, the fundamental aim of Legal ethics is to maintain the
honour and dignity of the law profession.

if any comment is made against an individual judge, it must be ascertained whether it

interferes with the administration of justice or impairs a judge in the adjudication process.
This is because under section 13 of Contempt of Courts Act,1971 a person cannot be
punished for Contempt unless the act “substantially interferes with the due course of
Justice”. In P.N. Duda vs. V. P. Shiv Shankar & Ors. (1988), the court stated that criticism of
the court that does not hamper the administration of justice cannot be punished as
contempt. The Supreme Court has repeatedly held that when a court exercises the power of
criminal contempt, it does not do so to vindicate the dignity and honour of the individual
judge who is personally attacked or scandalised but to uphold the majesty of the law and
the administration of justice.

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The focus must be on dealing with Civil contempt. According to Indian Judiciary Report
(2016-17), The High Courts have 96,310 Civil Contempt cases, compared to Criminal
Contempt which was 586.

Punishment for contempt of court

Article 129 and 215 empower the Supreme court and the High courts to punish its
contempt.

Accordingly, Section 12 of the Contempt of Courts Act, 1971 provides for punishment for
contempt of court. It incorporates the type and extent of punishment which the courts can
give for contempt.

According to section 12 contempt may be punished either by simple imprisonment of 6

months or a fine of Rs. 2000 or both. The further section makes it clear that the punishment
for contempt cannot exceed the 6-month imprisonment and fine of Rs 2000. Thus this is the
maximum punishment which the courts can give for contempt.

Further section 12 also states that imprisonment should only be imposed if it is necessary
to do in the interest of justice. In Smt. Pushpaben and another vs. Narandas V. Badiani and
another3 the supreme court said that the Contempt of Courts Act, 1971 confers special
power on the court to impose imprisonment and the court must give a special reason with
a proper application of mind while giving a sentence of imprisonment. It further said that
the Sentence of a fine is the rule while imprisonment is an exception.

In the Supreme Court bar association v. Union of India said that for imposing
imprisonment, the contempt has to be serious enough and that it must consider the
likelihood of interference with the administration of justice. Culpability of the offender and
that the intention for the act of contempt is a crucial factor while considering imprisonment
as punishment for contempt.

Further according to section 10 of the Contempt of Courts Act, 1971, the High courts have
the jurisdiction and authority to punish for the contempt of courts subordinate to it as well.

Scope of punishment for contempt of courts

The Supreme Court in Supreme court bar association v. Union of India (1998) discussed the
power of courts to punish for contempt. It said that although parliament or state legislature
has the power to make law in contempt of court, such legislation cannot denude, abrogate
or nullify the power of the supreme court to punish under article 129 or vest that power in
some other court. This, it said because the Supreme Court is a court of record and being a

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court of record it has an inherent power to punish and no law can take away this inherent
jurisdiction (power) of a court of record

It further differentiated between the power of the High court and that of the Supreme Court
to punish for contempt. It said that 1971 does not deal with the power of the Supreme
Court to punish for contempt of itself and only article 142(2) and 129 deals with it. This is
because in the definitions clause of the Contempt of Courts Act, 1971 there is no mention of
the Supreme Court and as the Supreme Court said that section 15 only deals with the
procedure by which the Supreme Court can take cognizance of an act of contempt. Thus it
said that the nature of punishment under Contempt of Courts Act, 1971 may act as a guide for
the supreme court but the extent (quantum) of punishment under the act can apply only to
the High courts. This is because according to the court, the1971 act ipso facto does not deal
with the contempt jurisdiction of the supreme court.

Court supported this ratio by relying on another judgement Sukhdev Singh v. Hon’ble C.J.S.
Teja Singh & Ors (1954). In which it said that maximum punishment which can be imposed
on a contemnor must be construed as dealing with the powers of the High court only and
not the Supreme Court. Thus the scope of power to punish for contempt of Supreme court
is not limited by the Contempt of courts act, 1971.

Punishments that can be given to an advocate under the Advocates Act, 1961 for

professional misconduct

In Re: Vinay Chandra Mishra, the Supreme Court suspended the licence of a senior
advocate on grounds of contempt of court. This decision was challenged in the Supreme
court bar association v. Union of India and was overruled. It held that punishment for an
established contempt of court committed by an advocate could not include punishment to
debar him from practice by suspending his licence, which can only be done by the
concerned State Bar Council and the Bar Council of India, under the Advocates Act, 1961.

Punishment for professional misconduct under the Advocates Act

Section 35 of the Advocates Act deals with professional misconduct. According to it, when
the State Bar Council of India receives a complaint about professional misconduct, it shall
transfer the disciplinary committee of the concerned state bar council. However, Bar
Council can transfer the case to the disciplinary committee of any other State Bar council as
well.

The disciplinary committee after the receipt of the complaint will give a chance of hearing
to the advocated, after that it may either:

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  Dismiss the complaint, or if the proceedings were initiated at the instance of the
State Bar Council, directs that proceedings be filed; or
 Reprimand the advocate i.e. warn the advocate; or
 Suspend the advocate from practice for such a period as it deems fit; or
 Remove the name of an advocate from the state roll of advocates.
Again it must be noted that only the Disciplinary committee has the power to suspend the
advocate from practice or remove him from the State roll of advocate and the High court
and Supreme Court cannot exercise its power to punish for contempt to suspend or remove
the advocate.

The Supreme Court states that the power of the Supreme court to punish for contempt of
court though wide is limited and cannot be expanded to include whether an advocate is guilty
of professional misconduct.

Defences available
Defences available to an advocate are given under section 3 to 8 of Contempt of Courts Act,
1971.

According to Section 3 of the Contempt of Courts Act, 1971 innocent publication and
distribution of matter is not contempt. It says that a person is not guilty of contempt for
publication of any matters which interferes or may interfere with the administration of
justice if such person was not aware that the matter was pending before the court.

Further, it says that any matter published relating to a civil or criminal proceeding will not
constitute contempt if such proceeding is not pending before the court.

Knowledge about the pendency is an essential pre-condition for holding a person guilty of
contempt.

Therefore, a publication and distribution to be considered innocent under the section must
fulfil the following condition:

(i) The person accused of an offence, at the time of publication, had no reasonable grounds
to believe that the proceeding was pending.

(ii) The proceedings are not pending at the time of publication.

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(iii) The person accused of distribution of the contemnous publication, had no reasonable
grounds, at the time of distribution of such material to believe, that the publication contains
contemnous matters or something which was likely to be in contempt of court.

Under Section 4 a person is not guilty of contempt for “fair and accurate report of a judicial
proceeding”. This is crucial since every citizen has a right to know about a judicial
proceeding to the extent that it does not invade the privacy of any party related to the
proceeding.

The judicial proceeding for the purpose of section 4 means day to day proceeding of the
court.

Purpose of this section can be said to be the basic principle of any legal system that justice
should be administered in public. All common law countries follow the maxim Ignorantia
Juris non-excusat which means ignorance of the law is no excuse. Reporting of judicial
proceedings can be said to act as a remedy for this principle.

Under Section 5, fair criticism on the merits of any case that has been finally adjudicated
does not constitute contempt. Fair criticism can be said to be criticism which does not have
any malicious intent or done without any reasonable justification. In Re: S. Mulgaokar vs.
Unknown (1978) Court held that judiciary cannot be immune from fair criticism, and
contempt action is to be used only when an “obvious misstatement” with “malicious intent”
seeks to bring down public confidence in the courts or seeks to influence the courts.

In Radha Mohan Lal v. Rajasthan High Court (2003), the court held that:

advocacy touches and asserts the primary value of freedom of expression. It is a practical
manifestation of freedom of speech.

This section embodies in itself the essence of free speech under Article 19 of the
constitution and freedom of the press.

Under Section 6 any statement made in good faith concerning a presiding officer will not
make a person guilty of contempt.

Under Section 7 fair and accurate reporting of a proceeding of a court “in chambers or in
the camera” is not contempt except when the publication of publication is prohibited by a
specific law or when the court on grounds of public policy specially prohibits the
publication of a proceeding or if court prohibits publication on the ground of “public order”
or “the security of the State” or when the information relates to a secret process, discovery
or invention which is an issue in the proceedings.

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Section 4 deals with reporting of any judicial proceeding before the court, whereas Section
7 specifically deals with processing either in the chambers or in-camera proceeding. In-
camera proceedings are court proceedings conducted in private in the absence of public
and press.

Further Section 8 says that any other bona fide and valid defences cannot be held to be
invalid just because such defences are not available merely because of the provisions of
Contempt of Court Act, 1971.

The Prashant Bhushan case

In Re: Prashant Bhushan & Anr., the Supreme Court held Senior Advocate Prashant Bhushan
guilty of Contempt. It held the 2 tweets by the Senior Advocate to be in Contempt of court
because it scandalised the authority of the court. The court relied on the judgement given
in Brahma Prakash Sharma And Others vs. The State Of Uttar Pradesh (1953) in which it
ruled that scandalising the court is when there is an attack on an individual judge or the
court as a whole with or without reference to particular cases, casting unwarranted and
defamatory aspersions on the character of the judges. This according to the court is
necessary because it creates distrust in the mind of the people and “impairs the confidence
of people in the courts which is of prime importance.

Professional Misconduct Under The Advocates Act, 1961

A lawyer’s profession is meant to be a divine or sacred profession by all means. In every

profession, there are certain professional ethics that need to be followed by every person
who is into such a profession. But there is the fact that professional misconduct is a
common aspect, not only in other professions but also in advocacy also. In simple terms, it
means certain acts done by the persons which seem to be unfit for the profession as well as
which are against certain ethics in this field. The term has been clearly defined in Black’s
Dictionary as, the transgression of some established and definite rule of action, a forbidden
act, a dereliction of duty, unlawful behavior, improper or wrong behavior. Its synonyms are
a misdemeanour, impropriety, mismanagement, offense, but not negligence or carelessness

The attributes of a profession are:

1. Existence of a body of specialized knowledge or techniques.

2. Formalized method of acquiring training and experience.
3. Establishment of a representative organization with professionalism as its goal.
4. Formation of ethical codes for the guidance of conduct.
5. Charging of fees based on services but with due regards to the priority of service
over the desire of monetary rewards.

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click above

Misconduct means any acts which are unlawful in nature even though they are not
inherently wrongful. Before the Advocates Act, 1961, we had the Legal Practitioners Act,
1879. There is no definition given for the term ‘misconduct’ in the Act, but the term
‘unprofessional conduct’ is being used in the Act. Some of the instances of professional
misconduct are as follows:

 Dereliction of duty
 Professional negligence
 Misappropriation
 Changing sides
 Contempt of court and improper behaviour before a Magistrate
 Furnishing false information
 Giving improper advice
 Misleading the clients in court
 Not speaking the truth
 Disowning allegiance to the court
 Moving application without informing that a similar application has been rejected
by another authority
 Suggesting to bribe the court officials
 Forcing the prosecution witness not to say the truth.[2]

Advocates Act, 1961

The provisions of Section 35 of the Advocates Act deal with professional misconduct of
lawyers and advocates in India, which read as:

A person is found guilty of professional misconduct; it shall refer the case to a disciplinary
committee, shall fix a date of hearing and issue a show cause notice to the Advocate and the
Advocate General of the State. The disciplinary committee of the State Bar Council, after
being heard of both the parties, may:

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 1. Dismiss the complaint, or where the proceedings were initiated at the instance of
the State Bar Council, directs that proceedings be filed;
2. Reprimand the advocate;
3. Suspend the advocate from practice for such a period as it deems fit;
4. Remove the name of an advocate from the state roll of advocates.[3]
Misconduct is of infinite variety; this expression must be understood in a broad meaning,
such that it extends the meaning under natural law, and there is no justification for
restricting their natural meaning. Section 49 of the Advocate Act empowers the Bar Council
of India to frame rules and standards of professional misconduct. Under the Act, no person
has a right to make advertisement or soliciting; it is against advocate’s code of ethics. He is
also not entitled to any advertisement through circulars, personal communications or
interviews, he is not entitled to demand fees for training and to use name/service for
unauthorized purposes.[4]

Contempt of Court as professional misconduct

Contempt of court may be defined as an offense of being disobedient or disrespectful

towards the court or its officers in the form of certain behaviour that defies authority,
justice, and dignity of the court

professional misconduct of the advocates

. In the case of V.C. Rangadurai v. D.Gopalan[7], the court looked into the matter of
professional misconduct in such a way that the decision was made in a humanitarian
manner, considering the future of the accused in this case. The court held that “even so
justice has a correctional edge, a socially useful function, especially if the delinquent is too
old to be pardoned and too young to be disbarred. Therefore, a curative, not cruel
punishment has to be delivered in the social setting of the legal profession”..

J.S. Jadhav v. Musthafa Haji Muhammed Yusuf[8], the court delivered the decision in such a
way that it created a notion in the minds of the wrongdoers that offenders will be punished
accordingly.

Conclusion

From the analysis of various cases and certain facts and circumstances, it will be clear that
unlike any other profession, advocacy is regarded as a noble profession and professional
ethics must be maintained.

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 Power of Disciplinary Committee, Advocates Act,1961
7 min read

May 27, 2021

Stuti Hasmukh Oswal

Introduction

Disciplinary committee means a person or a group of people who are empowered to hear
cases and proceedings involving professional misconduct of an advocate upon a complaint,
revision or suo motu. The disciplinary committee is mainly formed to ensure that the
members of the bar council of India or the bar council of any state are maintaining
professional ethics and standards.

Constitution of the Disciplinary Committee

The Bar Council shall constitute a disciplinary committee as per Section 9 of the Advocates
Act, 1961. This section provides that the one or more disciplinary committee are required
to be formed and each of these disciplinary committee shall consist of three members. The
election of two from the three members of the disciplinary committee shall be done by the
Council from the members of the Bar Council of India itself. The third member shall be co-
elected by the Council outside of the members of the Bar Council but who shall be an
advocate and possess qualifications as prescribed in Section 3(2) of the Advocates Act,
1961. The section further states that the senior most advocate shall be the chairman of the
committee. The term of members of this committee shall be not more than 3 years.

Powers of Disciplinary Committee

The section 42 of the Advocate’s Act, 1961 provides powers of disciplinary

committee. The section states that the disciplinary committee shall have the same powers
as vested in a civil court as per the Code of Civil Procedure, 1908 which are as follows:

 Summoning and enforcing the attendance of any person and examining him on oath.
 Requiring discovery and production of any documents.
 Receiving evidence on affidavits.
 Requisitioning any public record or copies thereof from any court or office.
 Issuing commission for the examination of witness or documents.
 Any other matter which may be prescribed.

Restricted Powers of the Disciplinary Committee

The disciplinary committee can exercise these powers only with a prior approval of certain
authorities. These are as follows:

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 Attendance of any presiding officer of a court shall be allowed only with a prior approval
of the High Court to which such court is subordinate.
 Attendance of any officer of revenue court shall be allowed only with prior approval of
the State Government.

Miscellaneous Powers

 The proceedings before the disciplinary committee shall be deemed to be judicial

proceedings.
 The disciplinary committee shall be deemed to be a civil court.
 If a chairman or any member of the disciplinary committee is unavailable on the date
fixed for hearing the matter then the disciplinary committee may if it thinks fit proceed
with the hearing and pass necessary orders provided that the order passed shall not be
the final order. The proceedings and the order passed by such a committee shall not be
invalid merely because the chairman or all three members of the disciplinary committee
were not present.
 Where the final orders cannot be made because of want of majority among the
disciplinary committee or is not in accordance with the opinion of the Chairman or the
members of the disciplinary committee then such matter or case shall be placed before
the Chairman of the Bar Council. If the Chairman of the Bar Council is acting as the
chairman of the disciplinary committee, then the case shall be placed before the Vice
Chairman of the Bar Council. After hearing the case, the Vice Chairman shall deliver his
opinion and the disciplinary committee shall follow such final order.
 The disciplinary committee also has the power to impose costs of proceedings as it may
deem fit and such order shall be executable as if it were the orders of High Court or
Supreme Court.
 The disciplinary committee also has the power to review its own orders under section
44 of the Advocates Act, 1961.

Case Laws:

Allahabad Bank Vs. Girish Prasad Verma[1]

Facts: A complaint was lodged by the Allahabad Bank against its advocate Girish Verma
stating that the advocate was given 52 suits for filing and accordingly paid him the
requisite court fee that was required for the same. The Advocate Girish Verma filed 50 out
of 52 suits and misappropriated the court fees paid to him for the remaining 2 suits.

Held: The disciplinary committee of the Uttar Pradesh Bar Council held that the advocate
had misappropriated the court fee paid to him by the complainant and hence ordered for
striking off the advocates name from the roll of Uttar Pradesh Bar Council. It further held
that “The legal profession is a noble profession and its members must set an example of
conduct worthy of emulation.”

V. C. Rangadurai Vs. D. Gopalan[2]

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Facts: The advocate Mr. V.C. Rangadurai did not disclose conflicting interest to his client
and kept him in dark. By doing this the advocate deceived his client who had placed his
trust with him. The disciplinary committee found the advocate guilty and suspended him
for a period of six years. The same order was challenged in the Supreme Court.

Held: The Supreme Court of India upheld the order passed by the disciplinary committee
as there was no doubt regarding the advocates misconducts but reduced the punishment
from six years to one year.

Rajendra Pai Vs. Alex Fernandes[3]

Facts: In a land acquisition matter the advocate along with 150 villagers filed a complaint.
The advocate too was an interested party in the class action suit. The matter was settled
and a compensation was given to the complainants. The advocate identified some claimants
in opening a bank account wherein the amount of compensation was drawn. The said
amount was withdrawn upon false identification. The disciplinary committee held that
advocates name from the State roll and Bar Council of India shall be removed permanently.

Held: The order was then challenged in the Supreme Court wherein the disciplinary
committee’s order was slightly modified. The Supreme Court was of the opinion that the
punishment given was quite disproportionate to the facts and circumstances. It further
stated that “Debarring a person from pursuing his career for his life is an extreme
punishment and calls for caution and circumspection before being passed”. It reduced the
punishment and directed that the advocate shall be suspended for a period of seven years.

Joginder Singh vs Bar Council Of India[4]

Facts: In the present matter the advocate was convicted under section 473 of IPC. There
were various other criminal proceedings pending and that the advocate Mr. Joginder Singh
was out on bail. All these facts were concealed by him while entering his name in the state
bar roll. When the advocate filed an application to the Bar Council of India to transfer his
name from U.P. Bar Council to Bar Council of Delhi the Bar Council of India learnt about
such concealment and issued a notice for striking of the advocate’s name. The disciplinary
commit

Procedure for complaints against advocates

A complaint against an advocate has to be in the form of a petition. It has to be duly signed
and verified as required under the Code of Civil Procedure.

Click here to see the Advocates Act, 1961

Click here to see Parts I, II and III of the Bar Council of India Rules

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Click here to see Part IV of the Bar Council of India Rules (Rules on Legal Education)
Click here to see Parts V, VI, VII, VIII and IX of the Bar Council of India Rules
The complaint can be filed in English or in Hindi or in a regional language where the
language has been declared to be a state language. In those cases where the complaint is in
Hindi or in any other regional language, the State Bar Council shall translate the complaint
in English whenever a disciplinary matter is sent to the Bar Council of India as per the
Advocates Act.

Every complaint shall be accompanied by the fees prescribed in the Bar Council of India
Rules.

Removal of Defects and Request for Particulars in a Complaint

The Secretary of the Bar Council may require the complainant to pay the prescribed fees if
the proper fee has not been paid. He can also call the complainant to remove any defects
and call for the particulars or copies of the complaint or other documents as may be
considered necessary.

On a complaint being found to be in order, it shall be registered and placed before the Bar
Council for such order as it may deem fit to pass.

Withdrawal and Settlement of Complaints

No matter taken up by the State Bar Council (either suo motu or on a complaint made by
other parties) for misconduct of advocates shall be dropped solely by reason of its having
been withdrawn, settled or otherwise compromised, or because the complainant does not
want proceed with the enquiry.
Before referring a complaint for misconduct of an advocate to one of its Disciplinary
Committees to be specified by it, the Bar Council may require a complainant to furnish
further and better particulars or may call for comments from the advocate complained
against, within a time to be fixed by it.

Show Cause Notice

Once the Bar Council has referred the complaint to a disciplinary committee, the Registrar
should expeditiously send a notice to the advocate.

The notice will ask the concerned advocate to show cause within a specified date, on the
complaint made against him and to submit the statement of defence, documents and
affidavits in support of the defence.

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It will also further inform him that in case of his non-appearance on the fixed date of
hearing, the matter shall be heard and determined in his absence. Appearance usually
includes appearance by an advocate or through a duly authorised representative.

Time of Enquiry

The Chairman of the Disciplinary Committee will fix the date, hour, and place of the
enquiry. This date will not ordinarily be later than thirty days from the receipt of the
reference. The Registrar has to give notice of the date, hour and place to the complainant or
other person aggrieved, the advocate concerned, and the Attorney General or the
Additional Solicitor General of India or the Advocate General, as the case may be.

Notices

The notices shall, subject to necessary modification, be in Form Nos. E-1 and E-2. It shall be
sent to the advocates appearing for the parties. Notice to a party not appearing by the
advocate shall be sent to the address as furnished in the complaint or in the grounds of
appeal.

The cost of the notices shall be borne by the complainant unless the Disciplinary
Committee otherwise directs.

The notices may be sent ordinarily through messenger or by registered post and served on
the advocate or the party concerned or his agent or other person as provided for in Order V
of the Civil Procedure Code.

Notice may also be sent for service through any Civil Court.

Where the notice sent to any party cannot be served using the normal methods listed
above, it may be served by affixing a copy in some conspicuous place in the office of the Bar
Council, and also upon some conspicuous part of the house (if any) in which the party
concerned is known to have last resided or had his office.

Appearance and Witnesses

Parties can appear in person or by an advocate who should file a vakalatnama giving the
name of the Bar Council in which he is enrolled, his residential address, telephone number
if any, and his address for service of notices.
A Senior Advocate is entitled to appear with another advocate who has filed a vakalatnama.
The Bar Council or its Disciplinary Committee may at any stage of a proceeding appoint an
advocate to appear as Amicus Curiae. Such advocate may be paid such fee as the Council or
the Committee may decide.

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Excepting when the Committee has otherwise directed, service on the advocate shall be
deemed to be sufficient service on the parties concerned, even if copies of the notices are in
addition sent to the parties, whether the parties have or have not been served.

Unless otherwise indicated, where more than one Advocate appears for the same party, it is
sufficient to serve the notice on any of them.

Ex-parte Proceedings
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.
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.
The provisions of Section 5 of the Limitation Act, 1963 shall apply to this sub-rule.

Proceedings and Exhibits

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.

The matters can be heard and determined on documents and affidavits. Unless the
committee 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.

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 ……………..

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The exhibits shall be marked as follows: –

a. Those of the complainant as C1,C2, etc.

b. Those of Respondent as R1, R2,etc.

c. Those of Disciplinary Committee as D1, D2, etc.

The Disciplinary Committee may at any stage direct the parties or their advocates to
furnish such further and better particulars, as it considers necessary.

Recording of Evidence

Any member of the Committee or any other person authorised by the committee shall
record the evidence given before the Disciplinary Committee preferably in English. The
evidence so recorded shall be signed by the Chairman or by any other member of the
committee if the Chairman is not there.

In the case where the records of evidence are in any other language than English and the
same has to be sent to the Bar Council of India or its Disciplinary Committee, then the same
has to be translated into English. Such a translation thereof in English has to be made by a
person nominated by Committee or Registrar certifying the same to be true copy should
also be sent.

Record of Proceedings

Every Disciplinary Committee shall make a record of its day-to-day proceedings.

The Registrar of the Disciplinary Committee shall maintain a case diary setting out shortly
in order of date, all relevant information concerning the date of filing, the date for hearing
and despatch.

The case diary shall also have the details of service of the notices on the parties or the
Advocates or the Attorney General or the Additional Solicitor General or the advocate
General as the case may be, of statements or petitions filed and/or of their order, and of
other proceedings in the matter before the Committee.

Dropping of Enquiries on Certain Grounds

In the case of the death of the complainant during the enquiry proceedings (and if there is
no representative who is willing to conduct the case), the Disciplinary Committee may

89
having regard to the allegations made in the complaint and the evidence available, make a
suitable order either to proceed with the enquiry or to drop it.

In the case of an enquiry against one advocate only, on his death the Disciplinary
Committee shall record the fact of such death and drop the proceedings.

Where the enquiry is against more than one advocate, on the death of one of them, the
Disciplinary Committee may continue the enquiry against the other advocate unless it
decides otherwise.

No disciplinary enquiry shall be dropped solely by reason of its having been withdrawn,
settled or otherwise compromised, or that the complainant does not want to proceed with
the enquiry.

Dress

Unless otherwise permitted, counsel appearing before any of the Disciplinary Committees
of the State Bar Council or Bar Council of India shall appear in court dress.

Findings and Judgment

The finding of the majority of the members of the Disciplinary Committee shall be the
finding of the Committee. The reason given in support of the finding may be given in the
form of a judgment.

If there is a difference of opinion, any member dissenting shall be entitled to record his
dissent giving his own reason. It shall be competent for the Disciplinary Committee to
award such costs as it thinks fit.

The Registrar of the Disciplinary Committee shall send, free of charge to each of the parties
in the proceedings, a certified copy of the final order or judgment.

The date of an Order made by the Disciplinary Committee shall be the date on which it is
first received in the office of the Bar Council after all the members have signed it.

For the purpose of limitation, the date of the Order shall be the date on which the contents
of the signed Order are communicated to the parties affected.

Pending Matters

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

90
payment of the prescribed fee. This is mandatory unless the Committee has directed
otherwise.

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.

The Secretary of the Bar Council of India may call for further statements and particulars as
he considers necessary.

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
these purposes and send them all to the records of proceedings that stand transferred.

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.

Withdrawal of Proceedings

Where a State Bar Council makes a report, the Secretary of the State Bar Council shall send
to the Secretary of the Bar Council of India, all the records of the proceedings, along with
the report.

An application by a person interested in the withdrawal of a proceeding shall sign the

same. 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 for withdrawal of an

application, the Disciplinary Committee of the Bar Council of India may:

a. Call for a report of the Disciplinary Committee seized of the proceedings;

b. Issue notice to the respondent;

c. Require the parties to file such statements as it considers necessary;

d. Call for the records of the proceedings; and

e. Examine any witnesses.

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In the proceedings before the Disciplinary Committee of Bar Council of India, the parties
may appear in person or by an advocate who shall file a vakalatnama.
On consideration of the report of a State Bar Council or otherwise, the Disciplinary
Committee of the Bar Council of India shall pass such orders as it considers proper.

Appeal to the Bar Council of India

An appeal to the Council from the State Bar Council shall be in the form of a memorandum
in writing. If the appeal is in a language other than English, it shall be accompanied by a
translation in English.

In every appeal, all persons who were parties to the original proceedings alone, shall be
impleaded as parties.

In an appeal by the advocate against an order for misconduct, in case of death of the
complainant, the legal representatives of the complainant shall be made parties.

An appeal may be presented by the appellant or his advocate or by his recognised agent in
the office of the Bar Council of India. It can also be sent by registered post, so as to reach
the Secretary, Bar Council of India. The appeal has to be presented on or before the last day
of limitation.

Any appeal may be admitted after the period of limitation if the appellant satisfies the
Disciplinary Committee that he has sufficient cause for not preferring the appeal within
such a period. Any such application for condonation of delay shall be supported by an
affidavit.

The memorandum of appeal shall contain necessary particulars as in Form G. The

memorandum of appeal shall state when the order was communicated to the appellant and
how it is in time.

Along with the memorandum of appeal, the appellant shall file:

a. The certified copy of the order appealed against, signed by the Registrar of the
Disciplinary Committee,

or

b.

(i) If there is only one respondent, five additional copies of the memorandum of appeal and
of the order appealed against.

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(ii) If there is more than one Respondent, such number of additional copies as may be
necessary.

All copies shall be certified as true copies by the appellant or by his counsel.

Every memorandum of appeal shall be accompanied by the prescribed fees in cash.

If the papers filed in an appeal are not in order, the Registrar shall require the appellant to
remove such defects within a specified time.

Allocation of Matters in Appeal

The Chairman of the Executive Committee or in his absence the Vice-Chairman of the
Executive Committee) or such other member authorised in this behalf by the Council) shall
have the power to allocate matters relating to the Disciplinary Committee. Sometimes the
Council allots a particular case to any one particular Disciplinary Committee.

Any matter allotted to a particular Disciplinary Committee, which has not been heard, may
be reallocated to a different Disciplinary Committee.

Interim Orders in Appeal

The Chairman of any Disciplinary Committee shall have powers to issue interim orders on
urgent matters which may be placed before him by the Registrar.

Time and Date in Appeal

Subject to any resolution of the Bar Council of India relating to the places of hearing, the
Chairman of the Disciplinary Committee concerned shall fix the date, hour and place for the
hearing of the appeal.

Exhibits and Records in Appeal

The appellant shall be required to file six typed sets of the papers properly paged and
indexed, if there is only one respondent.

In case of multiple respondents, as many more sets as there may be number of

respondents, for the use of the Disciplinary Committee and by the other parties and for the
record.

The papers to be filed are: –

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a. The complaint and the statement in the defence of the advocate,

b. The oral and documentary evidence 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 will be filed.

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
papers that are not in English.

Notice of Hearing in Appeal

The Registrar shall give notices to the parties, informing them of the date, the time and the
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.

Withdrawal of Appeal

No appeal filed 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.

Every appeal filed by or against an advocate shall abate on the death of the advocate so far
as he is concerned.

Records from State Bar Councils

The Registrar shall issue notice to the State Council concerned for the complete records to
be sent to the Council.

The Registrar of the State Council concerned shall send along with the records a list
containing particulars under the following columns and comply with such other directions
as may be issued.

Serial number of Date of Description of

Page number
document document document

Application for Stay

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An application for stay shall be made by the applicant with at least five copies of the
application, and the affidavit and as many additional copies as there are respondents.
Where the application is not in English, five copies with translation in English shall also be
filed.

In every application for stay made to the Council, the applicant shall state if any application
has been made to the State Council and the orders on the same.

Before a matter is allotted to a Disciplinary Committee the registrar may obtain orders on
applications for interim stay or other urgent applications from the Chairman of any of the
Disciplinary Committees. The orders passed shall be communicated to the parties and to
the Secretary of the Bar Council concerned.

The Disciplinary Committee of the Bar Council of India shall exercise all the powers
exercised by the Civil Court or Court of Appeal under C.P.C.

Section 42 of Advocates Act 1961, provides the Powers of Disciplinary Committee of a

Bar Council. The Provisions of this Section are same for both, the State Bar Council as well
the Bar Council of India.

2. Constitution / Composition of Disciplinary Committee

According to Section 9 of Advocates Act 1961 A Bar Council shall constitute one or
more disciplinary committees, each of which shall consist of three persons of whom two
shall be persons elected by the Council from amongst its members and the other shall be a
person co-opted by the Council from amongst advocates who possess the qualifications
specified in the proviso to sub-section (2) of section 3 and who are not members of the
Council, and the senior-most advocate amongst the members of a disciplinary committee
shall be the Chairman thereof.

3. Powers of Disciplinary committee

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 1) The disciplinary committee of a 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 such 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, and every such disciplinary committee shall be deemed to be a civil court for the
purposes of sections 480, 482 and 485 of the Code of Criminal Procedure, 1898.

3) For the purposes 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
the 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.

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 4) Notwithstanding the absence of the Chairman or any member of a disciplinary
committee on 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
shall be made in any proceeding unless the Chairman and other members of the
disciplinary committee are present.

Sub-section (3) of Section 35 :

"The disciplinary committee of a State Bar Council after giving the advocate concerned and
the Advocate-General an opportunity of being heard, may make any of the following orders,
namely —

(a) dismiss the complaint or, where the proceedings were initiated at the instance
of the State Bar Council, direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit;

(d) remove the name of the advocate from the State roll of advocates."

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 of 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.

Indian courts and professional ethics

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Introduction
Ethics and the legal profession are closely related. The practice of law is a noble profession.
Therefore, conforming one’s conduct and behaviours to a certain set of professional norms
is an important aspect of this profession. Legal ethics can be simply defined as a code of
conduct which may be written or unwritten. Such a code of conduct is meant to regulate
the behaviour of a practising legal professional towards the court, the presiding judge, his
client and his adversaries in the courtrooms.

It can be agreed that ethics is a fundamental prerequisite in any profession and not just the
legal profession. Thus on a general note Ethics basically denotes human behaviour and
their standard of moralities. A lawyer or an advocate must obey certain professional codes
with regard to the standards of fair dealing with the client and also includes the standard of
confidentiality required between them and uphold the self-possession. The Government of
India established The Bar council of India which is a statutory body under the Advocate Act,
1961.

The object of professional ethics

The primary object of ethics in advocacy is to maintain the dignity and integrity of the legal
profession. Legal ethics ensure that the legal fraternity serves the society honestly and
present each case in the most formal way possible so that the litigants have faith on not
only their legal representative or lawyer but also on the justice system. Not only the lawyer
but also the judge needs to have a sense and understanding of legal ethics in order to
maintain the functionality of Indian Courts. One of the fundamental aims of legal ethics is to
seek a spirit of friendly cooperation amongst the bar, bench and the clients. Standards of
ethics exist between the lawyer and his client, opponent and the witness being questioned
and of course between the Judge and the lawyer.

The legal profession has been created by the state to serve the litigatory needs of the
public. Thus, it is not a business it’s a profession. Consequently, there is 3 fundamental
basis of legal ethics that gives an insight into the essence of the legal profession:

1. The organisation of its members in order for the performance of their function;

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 2. Maintain certain standards at both the intellectual and ethical level to preserve
the dignity of the profession;
3. Pecuniary gains must be subordinate to the client’s interest.

Existing Legal Framework

The Advocate Act, 1961

The All India Bar Committee had come up with a few recommendations based on the Law
Commission’s recommendations relating to the legal ethics and legal profession. Thus,
under the auspices of these recommendations, the Legislature implemented the Advocate
Act, 1961. Subsequently, the Bar Council of India was established by the Parliament
under Section 4 of the 1961 Act. This Act lays down the functions of the Bar Council of India
(BCI) under Section 7. The Bare Council of India thus lays down standards of professional
Code of conduct and etiquettes to be followed by advocates under Section 7(1)(b).
Interestingly, this very function of the Bar is also laid down under Section 49(1)(c).
According to Section 49(1)(c), the Bar is empowered to make rules for the standard of
professional ethics that needs to be observed by advocates.

Bar Council of India Rules

Bar Council of India Rules is framed by the BCI under Part VI of Chapter 2. This chapter
deals with the standard of professional ethics and conduct of lawyers.

Rules on Advocates Duty towards Court

The Bar Council of India prescribes certain duties that an advocate must fulfil.

1. Act in a dignified manner: any advocate before the court (while presenting his
case) is required to have self-respect and conduct himself with dignity. In re D.C.
Saxena, AIR (1966)- This rule actually empowers an advocate to submit a
complaint against a judicial officer. However, such a complaint shall be submitted
to the proper authority.
2. An advocate must maintain a respectful attitude while at court and shall
respect the dignity of the judicial office: In the case of U.P. Sales Tax Service
Association v Taxation Bar Association (1995) it was stated that the survival of a

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 free community is endangered if an advocate doesn’t show respect or recognises
the dignity of the judicial officer. It potentially lowers the spirit of the court.
3. Not to communicate in private: rule prohibits any private communication with
the judge which would be specifically regarding a pending case. It is considered
as a gross form of professional misconduct if at all an advocate tries to influence
the decision of the court by having private communication with the judge.
4. Refuse to act in an illegal manner towards the opposition: An advocate is also
required to prevent his client from resorting to unfair practices relating to the
court, opposing counsel or opposite parties or even co-parties. The advocate
must earnestly restrain and explain the implications and the consequences of
such unfair practices. This rule also empowers an advocate to refuse to represent
a client if he/she insists on such improper conduct.
5. An advocate shall have his own sense of judgement and mustn’t use strong
language in the court of law: This is another important Rule laid down that the
advocate is expected to have his own sense of judgment regarding the cause or
the case he/she is representing. In the case of M.Y. Shareef & Anothers. V. Hon’ble
Judges of Nagpur High Court & Ors. (1954), it was observed that an advocate is not
a mere mouthpiece of the client. Legal counsel must exercise his/her own
judgement. An advocate must also restrain oneself from the use of scurrilous
remarks while in pleadings. They shall use intemperate language during
pleadings in court.
6. Appear in proper dress code: Legal profession is one of the few professions
that have a designated uniform. The court demands that an advocate must
necessarily show up inappropriate dress code. There have been instances in
court where cases have either been postponed or dismissed for that matter due
to the lack of proper dress code that should have been followed by the
representing legal counsel. Thus, if an advocate is improperly or inadequately
dressed, he is not only looked down upon but also his appearance is a breach of
the prescribed dress code.
7. Refuse to appear in front of relations: this rule is laid down in Section 30 of the
Advocates Act, 1961. This rule was laid down in order to avoid conflict of interest
and bias in judgment. If there is a family tie existing between the presiding
judicial officer and an advocate, then the advocate shall not appear in such cases
and shall request for the change in bench.
8. Not to wear bands or gowns in public places: the advocate cannot utilise
his/her gown or band in other public places unless in any ceremonial occasions
that the Bar Council of India and the court may prescribe.
9. Not to represent establishments of which he is a member: The rule simply
provides that an advocate is not allowed to represent, defend or even stand
against an organization, institution, society, corporation etc. if he is a part of the
executive committee of such institutions.
However, an advocate can appear as an ‘amicus curiae’ on behalf of a Bar Council.

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 1. Not appear in matters of pecuniary interest: An advocate shall not act or plead
in any matter in which he himself has some pecuniary interest.
2. Not stand as surety for the client: sometimes parties at court or litigants are
required to give surety to the court. An advocate shall not stand as a surety for
his client in any legal proceedings.

Rules on Advocates Duty towards Client

Just as an advocate owes duty towards the court he/she is also obligated to follow Rule 11
to Rule 33 that prescribes an advocate’s duties towards his client. They are as follows:

1. Bound to accept briefs: Rule 11 lays down that an advocate is bound to accept
any brief in the court that is if he proposes to take up without any fee at the Bar
council.
In S.J. Chaudhary v. State (1984), the Supreme Court held that if an advocate doesn’t attend
a case day to day he would be liable for breach of professional duty. This observation was
based on the fact that a lot of advocates don’t appear at the court and then his client has to
bear the brunt of it.

1. Not to withdraw from service: Rule 12 provides that an advocate shall give the
client reasonable and sufficient notice before withdrawing from an engagement.
He shall not withdraw without any reasonable grounds. If he withdraws himself
with sufficient cause he is bound to refund the fee (even a part of it if not
earned).
2. Not to appear in matters where he himself is a witness: Rule 13 provides this
rule as it can give rise to a conflict of interest. It must be noted that if an advocate
is a witness of a party and he is asked to represent the other side then only such
an advocate shall refrain from taking up such matters
In Kokkanda B. Poondacha v. K.D. Ganpathi (1995) the Court has upheld this rule as the
parties could be disadvantaged.

1. Full and frank disclosure to the client: Rule 14 provides that an advocate is
expected to be honest with his client before the commencement of his
engagement. He is obligated to reveal whether he has any connection with the
other side of parties and any interest in their case. Otherwise, this creates
controversies and also affects his client’s judgment to carry forward such an
engagement.
2. Uphold interest of the client: Rule 15 provides that an advocate owes his
loyalty to his client and must uphold the interest of his client fearlessly and
honestly by all fair means. He shall not give regard to unpleasant consequences
that he may bear.

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 3. Not to suppress material or evidence: suppressing material evidence is
absolutely disregarded in the court of law. This rule is provided under Rule 16. It
basically provides that if a prosecutor in a criminal trial tries to suppress material
evidence that may lead to the innocence of the accused or taint the justice of the
victim if shall be considered a gross breach of professional conduct and can also
invite legal trouble for themselves. Thus, such an act or omission shall be
scrupulously avoided.
4. Not to disclose the communications between the client and himself: Rule
17 is also one of the most important obligations followed by an advocate. A non-
disclosure agreement is always signed between the client and the advocate. Since
there exists a fiduciary relationship between the client and the advocate, breach
of confidentiality is taken seriously even at the court of law. This rule is also
incorporated in Section 126 of the Indian Evidence Act, 1872.
5. Not charge depending on the success of matters: Rule 20 provides that an
advocate shall not charge depending upon the success of the lawsuit. Such a
practice is opposed to public policy. Anu such contract for a contingent nature of
fee against Section 23 of the Indian Contract Act.
6. An advocate must not lend money to his client: Rule 32 provides that when an
advocate lends money to his client then interest is created. Such a creation of
interest if not allowed as it affects the advocate’s sense of judgment and also
disallows the client to think upon before commencing with engagement.
7. Not appear for opposite parties: Rule 33 provides that an advocate shall not
represent the opposite party after withdrawing from the case on behalf of the
previous party.

The fiduciary relationship between Lawyer and Client

On a general note, a fiduciary relationship is that of trust and confidence. Any client expects
their lawyer to maintain a high degree of fidelity and good faith as their confidential
information rests with the lawyer as they need to know the details of the case in order to
find out the best way to pull their clients out of the legal trouble or query. In the case of V.C.
Rangadurai v. D. Gopalan (1979), the Court observed that the relation between the
advocate and his client involves the highest personal trust and confidence.

Nature of Professional Ethics

Every profession has its own code of ethics. The legal profession in India is highly
competitive and dynamic. As it has been thoroughly discussed above that the standard of
ethics of the legal profession is codified under Indian law.

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The nature of professional ethics is such that it is the essence of the legal profession. It
encourages a Lawyer to act in a dignified manner that is befitting of such a noble
profession. Thus, in order to maintain its dignity and integrity, professional ethics were
codified. It brings upon accountability upon the legal professionals for dishonest,
irresponsible and unprofessional behaviour. Furthermore, advocates can lose their license
(to practice at court/firm) if they resort to unethical practices that endanger and tarnish
the dignity of the legal profession.

Even in general not only the legal profession but also various other professions like the
medical profession in India have codified standards of ethics. The Advocates Act, 1961
and Bar Councils Act, 1926 lay down the professional ethics that need to be followed by
lawyers. On the other hand the Indian Medical Councils Act, 1956 and the Indian Medical
Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 governs the standard
of professional ethics that needs to be followed by medical professionals.

Need for Professional ethics in Indian Courts

The need for codified legal ethics was well explained by the American Bar Association
Committee. Law is a keystone to the arch of Government. Thus, a proper code is needed in
order to prevent control of the judicial system by craft, greed or unworthy motives. Ethics
is a way by which an advocate owes a duty to the Bar, a judge to the Bench of justice. It shall
be noted that litigants or clients whom advocates represent don’t exactly owe the same
standard of ethics as an advocate or a judge in a Court. The duty to prevent the client from
resorting to unfair practices is also shouldered by the Bar and the Bench.

The committee also observed that a high standard of legal ethics must be codified in order
to further the administration of justice in a pure and unsullied manner. Every lawyer must
follow the prescribed legal ethics in order to retain membership in a professional
organisation.

Professional Conduct & Professional ethics

There lies a necessary distinction between professional ethics and professional conduct.
The primary difference is between the obligation to be followed by a member of the
profession. In professional conduct, refers to acts or steps taken under some statutory
obligation or contractual powers. Such an obligation could be a legal obligation. On the
other hand, in professional ethics, one is expected to follow a moral obligation.

Bridging the Gap between Legal Ethics and the Legal Profession in Indian Courts
The traditional approach to legal education is that of the application of established legal
rules and principles to a certain set of facts in a case. However, with the commencement of
law over time it was realised that the mere existence of laws cannot bring justice due to a
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number of reasons. Firstly, legal services are not as affordable as it should be for the whole
economic spectrum of citizens to be able to avail them. Especially in a poverty-stricken
country like India, the rights of the poor take a backseat due to lack of affordability.
Secondly, legal aid services are also limited. Thirdly, laws are not completely
comprehensive and coherent and judges are not consistent with their reasoning. Lastly,
one of the biggest concerns is the lack of ethics portrayed not only by the police but also the
lawyers.

Thus, to bridge the gap between ethics and the legal profession, the codification of the
standard of ethics was a way to prevent the above-stated concern. However, the question
raised is how far is it successful in protecting the dignity of the profession?

It shall be noted that the institutions providing legal education often neglect the concept of
ethical lawyering. Therefore, it is argued that in order to produce good ethical lawyers who
would serve the interest of the country, it can only be possible if institutions providing legal
education educate the young lawyers to be ethical. The legal curriculum must give
importance to socio-legal issues and contemporary problems of society that can be solved
through an ethical and realistic perspective of everything. Law schools are somehow
uncharacteristically silent on the subject of duties to court and client and general
responsibilities towards justice.

On the other hand, it is also argued that ethics cannot be taught and it is up to every.
Lawyer’s personal experience that will help them develop such ethics. The problem with
this statement is that it ignores the fact that before one enters a profession, one can be
misguided. Later on, the Bar is accused of lowering standards of professional ethics and
discipline for failing to provide moral and legal leadership when an advocate or a judge
misbehaves or uses unfair means to get by their respective cases.

The traditional way of teaching professional ethics in Indian law schools is not doing
enough. Young lawyers need more insight into the fact as to why legal ethics is more
important than subject knowledge. Legal knowledge can be gained (much more than the
knowledge gained in law schools) through practice and experience. However, a sense of
ethics should be developed earlier than that so that an intellectual legitimacy is created.

Traditional legal education must take up a humanistic approach and shall try to impart
values into young budding lawyers as their contribution to the future is going to become of
great consequence. There must exist a more holistic and humanising outlook towards the
teaching and studying of law. Even after legal ethics are codified in India, lawyers still
practice unfair means to seek favourable outcomes for their cases. The Code cannot bring
about a sense of ethics unless it is imparted to the law students at the very earliest..

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A sea change in the traditional methods of legal education can bring about an integration of
personal and professional values along with the assimilation of analytical
thinking/application of legal principles and emotional intelligence. A mere codification of
legal ethics will not make the young lawyers realise the nobility of the legal profession or
the dignity of the Bar.

Advantages of Having Codified Professional Ethics

There are 4 important advantages of having a code for professional ethics to be followed in
Indian Courts:

Firstly, a Code of Professional ethics provides a sense of social control. Every now and then
each profession and industry (here the legal profession) a newcomer enters it. Thus,
codified professional ethics makes the newcomer aware of the standards that need to be
met with, in the profession. A Codified form of ethics also keeps the old members of a
professional fraternity in line according to the standard of social requirement and
expectations.

Secondly, without a code of professional ethics the government or by society may try to
control the standards through its agencies. Thus to prevent such control and interference, a
code is required. Therefore, it is believed and practised that in order to standardise a
certain set of rules, protocols and ethics, it should be done by the profession itself so that
governmental interference is kept away.

Thirdly, higher standards of conduct can only be developed by codifying it. The codes bring
about a sense of permanence and crystallize the standard of best ethics about the
profession.

Fourthly, the existence of code will have great educative, corrective and appreciable value
for both the lawyers and the laymen.

Conclusion
The nature of the legal ethics reveals that it is an absolute mandate however the language
of the Code (under Advocate Act, 1961) makes it evident that advocates owe a duty
towards the Bar, bench, their clients along with opposing counsels at the court. The whole
point of having codified legal ethics is to mandate advocates to maintain the dignity of the
court.

Defining Ethics:
Ethics are a system of moral principles and the rules of conduct that arise from them.
Ethics are a set of moral principles that determine right or wrong behaviour. Ethics refers
to an individual’s moral beliefs or principles which govern his or her conduct. Ethics deals
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with right and wrong in general as well as questions about how one should act towards
other people (eg., confidentiality).
Defining Morality:
Morality is often used to refer to a person’s moral standards for himself or herself. For
example, someone might be said to have high moral standards if he or she follows strict
ethical rules such as those found in religious texts like the Bible or Quran. Many of these
codes of conduct encourage people to behave in ways that maintain order and peace in
society, and that protect the rights and safety of others.

Relation Between Ethics And Morals

Where does Morality come from?

There are a few different schools of thought on where morality comes from. Some people
believe that it is innate, something we are born with. Others believe that it is something
that is learned through experience and socialization. And still, others believe that it is a
combination of both nature and nurture.
The Conflict Between Ethics and Morals:
1. Morals are what you believe, while ethics are what you do. You can have conflicting
morals and ethics, like believing stealing is wrong but doing it anyway.
2. Morals are often based on religion or culture, while ethics are based on logic and
reason. This means that you can have different ethical systems even if you share the
same morals.
3. Morals usually deal with personal conduct, while ethics deal with professional
conduct. For example, a doctor may consider euthanasia to be morally acceptable but
ethically unacceptable because of their position as a doctor.
4. It’s possible for someone to live by their moral standards without ever having any
conflicts with their ethics because morality deals more with how we should behave in
our day-to-day lives, while ethics looks at all actions in general – both good and bad.
Key Differences Between Ethics and Morality:
1. Ethics are a formal system of beliefs that guide our behaviour, while morality is more
personal and can vary from individual to individual.
2. Ethics are usually based on logical reasoning and a shared set of values, while morality
is often based on gut instinct or religious beliefs.
3. Ethics tend to be more objective, while morality is often subjective.
4. Ethics are universal, while morality is often culture-specific.

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5. Ethics are transcendent; they govern all aspects of life. Morality deals with specific
issues such as politics, economics, religion and family matters. When someone does
something immoral, it usually relates to one of these specific areas. In contrast, ethics
applies universally to every aspect of life and when someone does something
unethical, it has more implications than just in one area.
6. Ethics applies to groups and organizations, while morality applies to individuals. As a
result, ethical practices don’t always mesh well with organizational cultures and vice
versa.
7. Ethics asks people to think about what they do before they act; morality asks people
to examine their actions after the fact. For example, someone might have had an
opportunity for an extramarital affair but resisted because it would have been
unethical rather than because it would have been wrong. Or perhaps somebody might
give money to charity because they believe it is the right thing to do, not because they
fear eternal damnation.
8. In terms of thinking through what we should do in certain situations, ethics tells us
how we should behave while morality only tells us if we did the right thing once we’ve
behaved in some way.
9. Ethics will help you determine whether your behaviour was good or bad, while
morality may help you decide whether your intentions were good or bad.
10. Both ethics and morality play important roles in shaping human civilization.

In law, a man is guilty when he violates the rights of others. In ethics he is guilty if he
only thinks of doing so.”Enunciate.

Introduction

Law which was made by nation, constitution or an entity to govern in the way it expects,
whereas ethics deal with subjective moral conscious of an individual at societal level. Later
one denotes subjectivity which includes actions as well as thoughts and former one avows
its objective essence to actions only.

Body

The above quote by Immanuel Kant makes a distinction between ethics and law.

Laws are externally enforced upon a society and deter potential crime. Ethics, on the other
hand, serve to guide individual conscience by enabling people to separate right from
wrong.

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Thoughts lead to actions. In law, the legality of actions is adjudged. Similar purpose for
thoughts is served by ethics.

For example, a person who thinks about killing another person is not guilty in law as he
does not deprive the other person of his right to life. However, simply by harbouring
thoughts of murder, he is ethically guilty. Similarly, men who think of violating a woman’s
dignity are guilty from an ethical point of view, even though they may not be considered
legally guilty until they actually perform that act.

On the other hand, Kant’s statement may not always hold true, as ethics reflect the society’s
mindset, which changes with time.

For example, Adultery was a criminal act in India till very recently, by law as well as ethics.
Now it is decriminalised by law (Supreme Court judgment) but large section of the Indian
society still consider it unethical.

Conclusion

Ethics and laws are complementary to each other. Most laws are derived from ethics, and
both of them reinforce each other to create a stable, harmonious society. The purpose of
both is to create a just, equitable, rule-based environment for humans to thrive in and
flourish.

A business enterprise must keep a systematic record of its daily transaction. It is a legal
duty. It helps to know where its stand and adjudge its performance. This systematic
recording of transactions is known as accounting. Since legal profession is a trade, lawyers
are under duty to maintain systematic accounts relating to the profession.

The basic purpose of accounting is to present a complete financial picture of the Advocates
profession. This can be done with the help of two financial statements like (i) Profit and
loss account and (ii) Balance sheet showing the assests and liabilities. It is necessary to
maintain proper accounts to calculate the following (i) Annual Income (ii) Income Tax (iii)
ProfessionalTax (iv) Amount due to the client or amount due by the client.

1. To calculate the annual income : To calculate the annual income of the Advocate from
the legal profession, it is necessary to maintain proper accounts of his income from the
profession. Maintaining this account is useful for Advocates also. By knowing his Annual
Income , he can take steps to improve his profession.

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2. To Calculate income Tax : Advocates are liable to Pay Income tax for the income
derived from the profession. In order to calculate the amount payable as income tax, he has
to maintain proper accounts relating to his income and expenditure. To calculate the
taxable income he is entitled to deduct certain expenditure like rent, salary, telephone bill
and other administrative expenditure. For this purpose also he has to maintain proper
accounts.

3. To calculate professional tax: Every six months the advocates are liable to pay
professional tax to the Government. The amount of professional tax varies depending on
the income. In order to calculate the amount of professional tax he has to maintain the
proper accounts.

4. To Ascertain the amount due from the client or due to the client: The account
relating to the amount received from the client and the amount received on behalf of the
client from others or from the court should be properly maintained. Then only the amount
due from the client can be calculated. This will help not only the client but also the
Advocate.

PLACE OF KEEPING THE ACCOUNTS BOOKS.

The accounts books and documents relating to the accounts should be kept and maintained
by the advocate,

(i) At his office.

(ii) Where he is carrying on the profession more than one office, then at his head office. But
accounts can also be maintained separately for each branch at the respective branch office.
Penalty for not keeping Account Books: A Lawyer who is legally liable to maintain account
books, fails to maintain it or fails to retain it for the prescribed period (cash book and
ledger-16 years, other books-8 years) is liable to pay penalty ranging from Rs.2000/- to
1,00,000/- (S.271 A ).

Bar council Rules relating to accounting

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

event which are financial in character and interpreting the result there of . An Advocate is

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under a duty to maintain proper accounts of money received from his client and the
amount received on behalf of client from others or from the court. The rules relating to
such accounting is dealt in rules 25 to 32 of the Bar Council Of India Rules 1975.

Rule 25: An advocate should keep the accounts of the client’s money entrusted to him. The
accounts should show the amounts received from the client, the expenses incurred for him
and the debits made on the account of Advocate fees with the respective dates and all other
necessary particulars.

Rule 26 : Where moneys are received from the client, it should be entered whether the
amount have been received for the advocates fees or expenses. Amount received for the
expenses shall not be diverted towards Advocates fees without the consent of the client in
writing.

Rule 27: Where any amount is received on behalf of his client the fact of such receipt must
be intimated to the client as early as possible.

Rule 28 : After the completion of the proceeding, the advocate shall be at the liberty to take
the settled fee due to hi to the unspent money in his hand.

Rule 29: Where the fee has been left unsettled, the advocate shall take the fees which he is
legally entitled from the moneys of the client remaining in his hands, after the completion
of the proceeding. The balance shall be returned to the client.

Rule 30: A copy of the client account shall be furnished to him after getting the necessary
copying charges from him.

Rule 31: An advocate shall not make any agreements whereby client’s funds in his hands
are converted into loans to the advocate.

Rule 32: An Advocate shall not lend money to his client for the purpose of conducting the
case

Rules Relating to Accounting Under Income Tax Act.

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

1. Cash book : It is the book in which the amount received by the Advocates from the
clients and others and the amount spent for the clients are written. This book is useful for
the Advocate to know the amount in his hand on each day.

2. Receipt Voucher : It is the document prepared for recording the receipt of money by
cash or cheque. When an Advocate received money from the client, the Advocate has to
issue a receipt to the client. Advocate shall maintain receipt books with serially numbered
receipt forms in duplicate. The original receipt should be given to the client and the
duplicate shall be retained by the Advocate.

3. Payment Voucher : Payment vouchers are used to record such payments for which
receipts are not obtainable from the person to whom such payments are made. For
example bus fare, auto fare, court fees, stamps, refreshment expenses etc. In such cases the
Advocate signature in the payment voucher and the signature of the person to whom
payment is made may be obtained.

4. Journal : Journal is the book of first entry or original entry. In the journal the
transactions are recorded in the order of their occurrence. It should contain the following
details (i) Date of Transactions (ii) Account to which the transaction relates (iii) Amount to
be debited, (iv) Amount to be credited (v) Explanation of the transaction.

5. Ledger : The transactions recorded in the journal are to be posted to the separate heads
of account in other book called as Ledger. In the ledger different pages are allotted to the
different heads of accounts. When the journal entries are posted to the concerned heads of
account in the ledger, the page number of the ledger should be noted in the journal for easy
reference.The ledger account of an advocate shall contain the following heads.

Clients Account :

For each and every client separate pages shall be allotted in this ledger and separate
account shall be maintained for them.

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 (i) Fees Account : In this account the fees received from each and every client shall be
entered separately. From this account the total amount of fees received from all the clients
in a financial year can be ascertained.

(ii) Rent Account.

(iii) Salary Account.

(iv) Library Account.

(v) Printing and Stationary Account.

(vi) Postage and Telegram Account.

(vii) Electricity Charges.

(viii) Conveyance Charges.

(ix) Repair and Maintenance.

(x) Office Miscellaneous Expenses Account.

At the beginning of the ledger book the index may be given with the name of the different
heads of account and their respective pages for easy reference.

Case Laws:

1. Manilal Kher Ambalal And Co. vs A.G. Lulla, Seventh Income-Tax ..1989 176 ITR 253
Bom
Facts of the case:

The Petition is files advocates who are solicitor and advocates enrolled more than 50 years
age and has been filing accounts every year with in the rules framed by High court, Bombay
with related to their professional work.Petitioner were maintain separate accounts in the
banks as per rule 10 of the Bombay High court. When an IT Officer sent the advocates

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 notice furnish the details as per new rules against the method followed by advocates from
several years. Advocate preferred this appeal against the change of accounting system.

Issues of the case:

1. When an advocate is accountable for money received from client towards case and is that
of a quasi trust and he holds such money in a fiduciary capacity?
2. whether the change the accounting system for an advocate can be entitled by IT officer
with out proper amendment?
Judgment:

The Bombay High Court ruled that the High Court Rules are unquestionably created in
conformity with professional standards and cannot be held accountable. As a result, the
petition was approved, and the respondent was required to cover the petitioners’ costs.

The nature of financial accounting is outlined as follows:

 Identifying monetary transactions – First, the transaction has to take place and be
identified so that it can be accounted for. To identify financial transactions, store and check
the receipts and bills of every transaction is a must. Sometimes, the exchange of money is
not directly involved, but it still needs to be identified. This involves depreciation in the
value of goods over time, which forms an important aspect of financial accounting.
 Measuring and recording transactions – The value of transactions has to be measured in
terms of money and those concerned with revenues and expenditures need to be recorded.
The recording is done in journals.
 Classifying payments – The huge data needs to be classified in a record known as a ledger.
For example, all salary-related expenses can be classified under one column. Leasing
related data can be classified in another column and so on.
 Summarisation – The larger the corporation, the more complicated the record. Hence, the
record needs to be summarised in a form where it can be easily comprehended.
 Analysing, interpretation, and communication: The summarised data needs to be analysed
well and interpreted so that it can be communicated to the concerned stakeholders so that
they have the full knowledge of the company’s financial position.

What Are The Functions Of Accounting?

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The functions of accounting include the systemic tracking, storing, recording, analysing,
summarising and reporting of a company's financial transactions. Through the functions of
the accounting department, the company can maintain a fiscal history that they can make
accessible for audits. They can also use it to prepare reports, create budgets, reduce costs,
increase profits, avail growth opportunities, assess future expenditure requirements and
make financial predictions.

The basic functions of accounting in a company may include the following:

Keeping financial records: Accounting helps businesses maintain an accurate and up-to-
date record of the day-to-day financial transactions of the company, such as supply
purchases, product sales, receipts and payments.

Monitoring financial transactions: Accountants may track multiple financial transactions

related to payments due to the company to ensure it receives the revenue and remains
profitable.

Making bill payments: Accounting involves checking invoices to ensure the legitimacy of
the charges, setting payment dates and paying the bills that the company owes to various
vendors and suppliers.

Paying employee salaries: Companies can use accounting to make payroll payments from
company funds, manage employee benefits and issue employee work-related bonuses.

Keeping digital records: Accounting may involve creating, maintaining and updating digital
accounting systems to store and calculate the company's financial data.

Writing financial reports: Accounting involves repairing detailed quarterly and annual
financial reports about the company's assets, profits and losses for internal and external
stakeholders.

Maintaining fiscal history: Accountants assist with creating, documenting and storing the
fiscal history of the company's transactions and making it available for audits and
assessments.

Achieving business goals: An accountant can analyse financial data to formulate and
implement comprehensive financial policies and strategies to advance the company's
business goals.

Preparing budgets: The accounts department may reference the company's financial data
to prepare the overall company budget, the department budgets and the project budgets.

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Making financial projections: Accounting involves analysing the company's available
financial resources, expected revenues and business goals and using this information to
predict future business expansion and growth.

Auditing finances: Accountants may conduct financial audits of the company, identify
accounting discrepancies and implement corrective solutions.

Assessing financial resources: Companies can use accounting to identify the financial
weaknesses and strengths of the organisation, determine how to counter weaknesses and
boost strengths and implement appropriate strategies.

Reviewing performances: Accounting involves performing regular financial reviews of the

company's departments to assess their performance and make changes to reduce waste,
increase productivity and streamline expenses.

Complying with legal requirements: Accountants make sure the company complies with
industry and government rules, regulations and policies related to taxation, financial
reporting and employee wages.

Preventing mismanagement: The accounting department can keep accurate track of the
company's financial transactions to ensure no mismanagement or wastage of money occurs
in the company.

Ensuring vigilance against fraud: Accounting includes implementing strong security

measures to protect the company assets against data breaches and internal and external
fraud.

Balance Sheet

A balance sheet is one of the three crucial financial statements that help in the evaluation of
a business. It gives a clear-cut view of a company’s financial state on a given date.

What is a Balance Sheet?

A company’s balance sheet is a financial record of its liabilities, assets and shareholder’s
equity at a specific date. It helps evaluate a business’s capital structure and also calculates
the rate of returns for its investors.

Moreover, you can pair a balance sheet with other financial statements to
calculate financial ratios and conduct fundamental analysis.

Components of a balance sheet

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There are three main components of a balance sheet. They are:

Liabilities

This section of the balance sheet shows the money that a company owes to others, like loan
expenses, recurring expenses, other forms of debt, etc. Now, liabilities can be further
subdivided into two categories:

Current liabilities

Under current liabilities fall notes payable due within a year, current maturities of long-
term, debt and accounts payable.

Non-current liabilities

Non-current liabilities include deferred tax liabilities, bonds payable, long-term debt and
notes payable in the long term.

Assets

In the assets section of the balance sheet, you will find items of value that can be converted
into cash. These items will be listed in order of liquidity, that is, how easily they can be
converted to cash.

Assets can be further subdivided into the following:

Current assets

The assets that can be converted easily into cash within a year or less are called current
assets. They have the following divisions:

Assets Particulars

Items of value for which the company has already made a payment, like busin
Prepaid expenses
insurance, office rent, etc.

Inventory Raw materials, finished products, etc.

Money that a company’s clients owe for services rendered that is payable in th
Accounts receivable
term.

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 Marketable securities Investments that a business can sell off within a year.

Cash and cash

Money saved in a firm’s checking and savings accounts, currency and checks.
equivalents

Long-term assets

Those assets that cannot be converted into cash within a year are called long-term assets.
You can further subdivide them into the following:

Assets Particulars

Fixed assets Machinery, buildings, property, etc.

Intangible assets Patents, copyrights, franchise agreements and more.

Long-term securities Investments that a company cannot sell within a year.

Shareholders’ equity

Shareholder’s equity is the amount of money stockholders have invested in a company. It

includes the following:

Retained earnings

It is the amount of a company’s gains that are reinvested into its business instead of
returning to the shareholders in the form of dividends.

Share capital

This is the amount of capital that a company receives for the purpose of business.

What are the features of a balance sheet?

The features of a balance sheet are as follows:

A balance sheet consists of all the liabilities and assets of a company. It shows their value
and nature enabling you to know the position of the capital on a specific date. However, it
does not show any revenues or expenses.

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Balance sheets follow the equation “Asset = Liability + Capital”, and both of its sides are
always equal.

It takes into account the credit as well as debit balances of a company’s current and
personal accounts. The credit balance comes under the personal account and is called the
liabilities of a business. In comparison, the debit balance comes under the real account and
is known as the assets of a business.

A company’s accountants generally prepare the balance sheet on the last day of an
accounting year. This is so as it is the ultimate step of final accounts and needs an
assessment of the company’s trading as well as profit and loss account for its preparation.

What is the importance of a balance sheet?

A balance sheet is an essential component that assists in the smooth running of a business.
Here are some of the reasons that explain the importance of a company’s balance sheet:

Assist banks in evaluating a firm’s net worth

Helps investors take decisions

Serves as a determiner for risk and returns

Enables financial analysis

How to prepare a balance sheet?:

Step 1 – Make a trial balance

A trial balance is a regular report that you can find in any accounting software. If the
programme has a manual mode of entry, you can make a trial balance by transferring
ending balance of every general ledger account into a spreadsheet.

Step 2 – Arrange it properly

In order to make your balance sheet similar to a relevant accounting structure, it is crucial
that you properly arrange the initial trial balance. Moreover, if you adjust the trial balance
using adjusting entries, please ensure to record all entries completely. This will help
auditors understand the reason behind each entry.

Step 3 – Remove all revenue and expense accounts

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The trial balance in your balance sheet contains liabilities, assets, equity, expenses,
revenue, losses and gains. However, in order to calculate it, you have to delete everything
apart from the liabilities, assets and equity.

Although, you will need these deleted accounts for making an income statement.

Step 4 – Make a calculation of the remaining accounts

Now, you must add up all the trial balance accounts. They will include the following:

Cash

Accounts receivable

Common stock

Retained earnings

Inventory

Fixed assets

Accounts payable

Debt

Accrued liabilities

Other liabilities

Other assets

Step 5 – Validate your balance sheet

In order to validate your balance sheet, the sum total of all assets in the sheet must match
the equity accounts of stockholders’ and liabilities.

Step 6 – Present it in the required format

The final step in preparing a balance sheet is to present all this data in the required balance
sheet format.

Cash Book definition

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Cash book is a special type of book that is only concerned with the recording of cash
transactions of an organisation. It performs the dual role of both journal and a ledger for all
the cash transactions taking place in a business organisation.

A cash book records all the cash receipts on the debit side and all the cash payments of the
organisation on the credit side.

Features of Cash Book

Cash book has the following features:

1. Acts as both a journal and a ledger.

2. Can be used as an alternative to a cash account for recording transactions.
3. It follows the dual entry system of accounting (i,e. Debit and credit side in cash
book).
4. The debit side should be identical to the credit side.
5. Cash book should always have a debit balance.

Types of Cash Book

There are four types of cash books used for accounting purposes. Let us have a look at the
types of cash books.

1.Single column cash book

2.Double column cash book

3.Triple column cash book

4. Petty cash book

Single column cash book: Single column cash book is also called a simple cash book. It
presents entries for cash received (receipts) on the left side or debit side and cash
payments on the right hand side or credit side.

The bank transactions and the discounts that are given for transactions will be featured in
separate ledger accounts in case of single-column cash books.

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Cash books are updated on a daily basis in some business firms. The most striking feature
of a cash book is that it can never have a credit balance. It should always show a debit
balance.

Double Column cash book: In a double column cash book, there is an additional column
that is reserved for the discounts. Therefore, in a double-column cash book, also known as
two-column cash book, the cash receipts and transactions are recorded in one column
while the second column records discounts received and discounts provided.

Discount being a nominal account the discount provided is placed on the debit side of the
cash book while discount received is placed on the credit side of the cash book.

At the end of the accounting period, both the columns are balanced, and the closing
balances are transferred appropriately.

Triple column cash book: In a triple column cash book, the two columns are similar to the
double column cash book. While the additional column is for bank transactions.

Due to the advances in the banking industry, most firms deal in cheques and therefore, the
presence of a bank column in a cash book is helpful in understanding the transactions
properly.

Petty cash book: Petty cash book, as the name suggests, is for very small transactions that
take place in an organisation. Such transactions can occur in a day and are repetitive in
nature, which can put undue load on the general cash book. For this reason, it is maintained
separately.

Examples of such transactions are: stationery, postage, food bills, etc.

Advantages of Cash Book

Cash book offers the following advantages:

1.It offers easy verification of cash by matching the balance in the cash book with actual
cash in hand and is therefore helpful in identifying mistakes in the entry.

2.It helps in creating a regular record of transactions date wise for the convenience of
accounting personnel.

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3. As it is maintained date wise, any cash payments or the transaction can be correctly
traced back in the cash book.

4. It is helpful in detecting any cash frauds in the organisation.

5.It helps in saving time and labour by reducing the workload

What is a Trial Balance?

A Trial Balance is a statement that keeps a record of the final ledger balance of all accounts
in a business. It has two columns – debit and credit. Trial Balance is prepared at the end of
a year and is used to prepare financial statements like Profit and Loss Account or Balance
Sheet. The main objective of a Trial Balance is to ensure the mathematical accuracy of the
business transactions recorded in a company’s ledgers.

Preparing a Trial Balance:

There are three methods by which you can prepare a Trial Balance. They are as follows:

 Total Method – Total Method records each ledger account’s debit and credit
columns to the Trial Balance. Both the columns should be equal as this method
follows the double-entry bookkeeping method.
 Balance Method – This method uses each ledger account’s final debit/credit
balance in the Trial Balance. Once the balance figures of all accounts are listed, the
Trial Balance (both on the debit and credit side) helps check the accuracy of all
transactions. The Balance Method of preparing Trial Balance is more popular
compared to its alternatives.
 Total cum Balance Method – This method is a combination of both the Total
Method and Balance Method. The Trial Balance has four columns – two for the credit
and debit totals of a ledger account and two for that account’s credit/debit balances.

Objectives of Trial Balance:

The main objectives of a Trial Balance are as follows:

 It helps in ascertaining arithmetic errors that occur while preparing accounts.

Accountants can make mistakes while recording financial transactions under the
double-entry bookkeeping system. When the debit and credit sides of a Trial
Balance do not match, it means one of two things. One, there was an error in either

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 recording the account balance. Or two, there is an accounting mistake made while
recording the transaction in the ledgers.
 It helps in preparing the financial statements of a company at the end of a financial
year. The final balance of expenses and revenue accounts is taken from the Trial
Balance and used in the Profit and Loss Account. Similarly, the accounts related to
Assets, Liabilities and Capital gets recorded in the Balance Sheet.
 A Trial Balance helps in summarising the financial transactions done while running
a business. It is a consolidated summary of the financial transactions that have taken
place within a financial year. It can help the management in making business
decisions as well.

Limitations of a Trial Balance

The main limitations of a Trial Balance are as follows:

 It may hide errors of omission. Some transactions are not journalised at all. Even a
correctly balanced Trial Balance cannot reveal this mistake.
 If a journal entry with an incorrect amount gets recorded in both accounts, the Trial
Balance will not detect that error.
 A journal entry may have the right amount, but the accountant may have entered it
under the wrong accounting heads. The Trial Balance cannot identify such mistakes.
 If a journal entry is missing in the ledger, it will not reflect in the Trial Balance.

Conclusion

Trial Balance is an essential part of the accounting process. It is beneficial in providing a

summary of the financial activities of a company, and i

SEVEN LAMPS OF ADVOCACY

 Home /
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Advocacy is an Honourable profession. Advocates are part and parcel of Court. Their efforts
solve the conflicts in the society. Advocates defend the rights and liabilities. They hold
unique place in the society. Advocacy is not a craft but a calling; a profession wherein
devotion to duty constitutes the hallmark.

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In the case of J,S Jadhav Vs. Mustafa Haji Mohamad yusuf 1993 AIR 1535, the Hon’ble
Supreme court of India observed that “Advocacy is not a craft but a calling; a profession
wherein devotion to duty constitutes the hallmark.

As like every profession, the legal profession is encapsulated in a code, which is avowed
ethics. Undeniably, the bedrock principle on which this noble profession has built is
professional ethics. Such legal professional ethics lay down the ethical code that a legal
person should possess so as to keep up the law and justice by balancing the relationship
between the bar and the bench.

Rules on the professional standards that an advocate needs to be maintained are

mentioned in Chapter II, Part VI of the Bar Council of India Rules. These rules have been
incorporated in Section 49 (1) (c) of the Advocates Act, 1961. It is pertinent to note that
this provision empowers the bar council of India (A statutory body established under
Section 4 of the Advocates Act, 1961) to make and regulate rules on the standard
of professional conduct and etiquette to be observed by advocates.

It was Judge Edward Abbott Parry who brought the theory into existence. He gave the
seven lamps of advocacy. After that, the 8th lamps of advocacy were added by justice V
Krishnaswamy Aiyar in his legal book of “professional conduct and advocacy”. He
named 8th lamp of advocacy TACT.

The qualities given above the seven lamps of advocacy are the best and essential qualities
of an advocate which must be followed by an advocate to succeed in his legal profession
while practising in the court anywhere. Let’s know about each and every lamp of advocacy.

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 Honesty

Honesty in a profession is the official policy that should be used by every person while
interacting with another person. Honesty should reflect in the thoughts, words and
behaviour of an advocate. It is honesty that increases the personal and professional
reputation of the person in a society. The reputation of an advocate is the thing that
includes his fame and trust with his clients and bar.

An advocate is expected to be honest while dealing with the case and making
arguments and producing oral and documentary evidence in the court of law. The
judge decides the case on the basis of the submission and arguments done by an advocate
on the behalf of his client. If wrong fact represented by an advocate can punish an innocent
person. An advocate should be:

Honest with his client-

 He must tell his client about the position of the case every time.
 An advocate must tell about the merits of the case
 He must tell about the demerits of the case or any consequences which can lead to the loss
of his client.
 If an advocate is going to lose the case in court, he should talk about this.
Honest with opposition-

An advocate should be honest even with his opposition party. He should not give any false
facts to take the case in the opposite direction.

Deceiving a person in a case should not be the purpose of an advocate.

Honest to law-

The person who is filing the case in the court is here to take justice, not to check the talent
of an advocate. Honest with the law means an advocate should give the truthful fact in
front of the judge, not any false statements. Telling the truth in front of the judge is the
best practice for honesty.

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Courage

Courage is one of the important factors in seven lamps of advocacy. Courage means the
ability to stand in front of the court without any fear. An advocate should feel proud
and confident while arguing in a case. It builds the ability of an advocate to convince the
judge that his true and honest facts represent on the behalf of his client.

A lawyer faces many problems while dealing with Civil litigation or Criminal litigation He
should have the courage to stand in that case and remove these problems fearlessly. He
should have been ready to fight all the problems and social evils. Advocates can use
courage as their weapon, but for that, they must have a deep knowledge of the law.

Not all cases are easy for dealing with, an advocate can get the case related to murder,
material rape, abatement, Child labour etc. He should have the courage to take every kind
of case.

Industry

Ignorance of the law is not an excuse. He must have the knowledge of the law for which
he is dealing in a case. We all know that the law is like an ocean; no one can be the master
of law. But an advocate should know about the law used in the case in which he is dealing
for.

Advocates should have knowledge, attitude and skill while dealing with the case. To get the
knowledge of the law and understand the law he should have given sufficient time for that.

No advocate can win the case without sufficient knowledge of the law. He must have given
the time for the case so that he could deal perfectly with that case and increase his chance
to win the case. Our law is not static, it keeps changing with the need of society every time
to solve the various new problems of the society. An advocate should update himself
with these new laws. Even if a lawyer was good enough to deal with all the cases in the
previous time, and now he does not stay up to date with new laws, he will face difficulties
while dealing with the case in the present time. There is no way other than hard work.

Wit

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 Being a professional lawyer in the field of law, a lawyer should have wit and a sense of
humour. It is the humour that keeps us calm and active. A person without a sense of
humour will fight the case with anger which isn’t good for providing justice. Judges also like
the advocates and witnesses which help them to provide justice in a case.

The wit is a necessary lamp to lighten the darkness of advocacy. A wit helps the advocates
to stay focused on his work and reduce the workload so that he can remain
relaxed. It automatically removes the mental strain of an advocate so that he can think
beyond the limits of his mind.

A well-prepared speech by an advocate in front of the Judge will not always work. An
advocate has to answer the questions of a Judge and that question will check the wit and
presence of mind of a lawyer. The questions asked by judges check the intelligence and
knowledge of advocates related to the case.

It happens many times that an advocate forgets to produce something in the court or fails
to answer some questions in the court. At that time, it is the wit of an advocate which helps
him to fill that gap.

Eloquence

The lamp of eloquence is the art of speaking. Every advocate delivers his argument in
front of the judge. But eloquence is the way to give the arguments in a way that holds a
long-lasting effect on the judge as well as the clients and listeners in the courtroom.

Eloquence is an oral art that is used by an advocate for fluent and skilful use of
communication which touches the soul of a judge.

An advocate who has a good knowledge of advocacy can use the eloquence language for
fluent speaking. There are some important points related to eloquence as follow:

 An advocate should be a skilled speaker

 He should stay confident while giving the speech in front of the judge
 He should be fluent while giving this speech.
 The language used by an advocate should be error-free

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 He should have the ability to pause himself at the right moment
 This speech given by an advocate should be effective, not dramatic.
 He should give this speech in a way that leaves an impression on the judge.
 The language should be used in a way that should help the judge while writing his
judgement.
 The language should influence people towards the point of discussion.
 Use of the right law phrase and law maxim.
An advocate can use the power of eloquence by:

 noticing the faults made by the opposite party

 Presence of mind in the case
 Knowledge and practice
 By setting the relation between arguments and justification
The skill to develop the equivalence in Hindi speech needs more and more knowledge.

Judgement

The lamp of judgement means the deep study of the present case and then make an
informed opinion for that case. An advocate should think from two sides of the case
because it will help him to understand the consequences of the case. By understanding the
case from both sides the advocates knows the merits and demerits of that case. It helps him
to anticipate the problems and tackle the same with his other lamps of advocacy.

A good advocate knows what will be the consequences after representing a witness in
court. He should be aware of what questions can be asked by the judges and the opposite
party after the witness. And he should be ready to counter these arguments and questions
from the opposite party and judges of the case as well.

Fellowship

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 Fellowship is one of the most important lamps of advocacy. An advocate must carry
fellowship with his colleagues. When an advocate takes the case and argues, he argues
against an opposite advocate. But it does not make them opposite to each other, they are
just making arguments for the sake of justice only. After finishing the argument in the court
hall, the advocate should respect his opposite advocate. Even while doing an argument
in court, an advocate should respect his opposite lawyer as well. The reason is, it is not the
fight between both of them but it is the fight for justice only.

A case must not bother his friendly relationship with other advocates. An advocate should
while referring to the opposite advocate use the term as a learned friend or learned
counsel.

Advocates should also use the lamp of fellowship for judges also. It is the arguments of an
advocate which leads his case. The advocate should respect the judge even if he gave the
opposite decision. An advocate should refer to a judge as:

 Learned Judge or Your Honour

 High court- your lordship or my lord
These are the terms that show respect towards the other advocates and judges. It builds a
friendship with another colleague.

8th lamp of advocacy

TACT is the 8th lamp of advocacy. An Indian lawyer and former judge of Madras High Court
“V Krishnaswamy Iyer” has written the TEACT in his book of PROFESSIONAL CONDUCT
AND ADVOCACY as the 8th lamp of advocacy.

Sometimes it happens that the courtroom becomes a mess due to the heavy and serious
arguments by advocates. In those circumstances, advocates should know how to tackle
the situation. An advocate should know how to:

 control his client in that situation

 Control over the opponent advocate in the case.
 Persuade the judge

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An advocate should use a great technique that will be able to control the messy situation in
the courtroom.

(7+1) Tact K.V.Krishnaswamy Aiyer, in his book “Professional Conduct and Advocacy” adds
one more lamp i.e. tact. Tact means handling people and situations skilfully and without
causing offence. An advocate must be in a position to tackle and win his client, opponent
party, opponent advocate in a smoother way. Many people of unequal ability have failed for
want of tack. An advocate should not quarrel with Court or loose temper over trifle things
in the Court and outside. Men of unquestioned ability have suffered for quarrelling with the
tribunal or for standing on their dignity over trifles, for getting their clients, or for losing
their tempers; they are men of parts but more properly refers to the human side of putting
into action the result of one’s judgment.

Conclusion

Advocates should keep burning these seven lamps of advocacy. Advocacy is not a way to
make money but it is the profession that helps the person to provide justice.

Case briefing or summarising a case is a way of presenting it in a systematic manner which

aids in determining the most relevant facts of the case and the decision made by the bench
in a particular way

1. 1. Mention the proper case title and the citation in your case summary

2. 2. Name of the court, name of the judges and the parties to the case

3. 3. Brief Facts

4. 4. Issues involved

5. 5. Important Arguments

6. 6. Judgment

7. 7. Present status of the judgment

8. 8. Include other opinions

9. 9. Conclusion, if any

1. Mention the proper case title and the citation in your case summary

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Title:
A proper title is must when you write case summaries. The title of the case shows who is
opposing whom. ‘v./vs’ should separate the 2 parties in a case.

Citation:
Citation of the case helps the reader to find the full judgement. There are various ways to
cite an article. You can read about them, here.

2. Name of the court, name of the judges and the parties to the case

Name of Court:
It can be Supreme Court, High Court, etc.

Judges:
The ones who wrote the judgement.

Parties:
The title of the case tells you the names of the parties to the case. The party that initiates a
legal action is the plaintiff. The other party is ‘Defendant’. At times, they may be referred as
‘petitioners’ and ‘respondent’.

‘In case of appeal, the plaintiff is referred as ‘appellant’.

3. Brief Facts

What were the facts of the Case? Determine precisely which facts can be excluded from the
case summary. Facts with unnecessary detail must be removed. Further, statement of facts
should set out the nature of the litigation, parties involved, cause of action, relevant laws or
key words involved and the course of decision through lower court/s to the present court.

The ‘fact section’ of a good case brief will include the following elements:

 A one-sentence description of the nature of the case, to serve as an introduction.

 A statement of the relevant law, with quotation marks or underlining to draw
attention to the key words or phrases that are in dispute.
 A summary of the complaint (in a civil case) or the indictment (in a criminal case)
plus relevant evidence and arguments presented in court to explain who did what to
whom and why the case was thought to involve illegal conduct.
 A summary of actions taken by the lower courts, for example: defendant convicted;
conviction upheld by appellate court; Supreme Court granted certiorari.

4. Issues involved

What were the important issues in the case? On what points a particular case came before
the court to decide?

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Try to identify the issues or questions judges explicitly set apart to discuss and decide
upon.

5. Important Arguments

What were the contentions of Petitioners and Respondents? Here you list out all the
contentions raised by both the parties to prove their points.

6. Judgment

Based on the contentions, what did the bench decide? Give briefs points on the same. Did
the court decide in favor of the plaintiff or the defendant? What remedy, if any, did the
court grant? If it is an appellate court opinion, did the court affirm the lower court’s
decision, reverse it in whole or in part, or remand the case for additional proceedings?

7. Present status of the judgment

Whether the judgement is still applicable or over-ruled?

8. Include other opinions

Concurring and dissenting opinions are included in a casebook when they present an
interesting alternative analysis of the case. Therefore, you should describe the analysis in
your case brief. It will help you see the case in a different light.

9. Conclusion, if any

Legal Profession in India: Evolution, Historical Development, and Regulations

The legal profession is an important limb of the machinery for the administration of justice.
Without a well-organized profession of law, the courts wouldn't be in a position to
administer justice effectively. A well-organized system of judicial administration postulates
a properly equipped and efficient bar.

>What is the legal Profession?

The profession of law is one of the oldest and noblest professions. The person in the legal
profession is called an advocate or lawyer. An advocate is an officer of justice and a friend
of the court. The central function that the legal profession must perform is nothing less
than the administration of justice. An advocate assists the parties in drafting economic
transactions like contracts, agreements, deeds, wills, etc. An advocate should provide free

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legal aid to the poor and deserving people on compassionate grounds.

Development of Legal Profession in India:

Development of the legal profession In India can be divided into the following phases:

Legal profession in Ancient India

Legal Profession in Medieval India 3) Legal profession in British India

Legal profession in India after Independence.

Legal Profession in Ancient India:

In India during the earlier period, people live in small groups. The head of these groups or
tribes delivered justice under the open sky before all the members. There was no specialist
like a lawyer during those days. When kingship was established, the king delivered justice.
King was advised by his councilors. The law of those days was rooted in Hindu religion and
custom.

From the stories of Maryada Ramayana and Vikramaditya, we are well aware of the wise
men who solved the critical cases of those days. During those days, the sufferer presented
complaints before the king and the king with the help of his religious heads and wise
courtier delivered the judgment.

Legal Profession in Medieval India:

During the Muslim period, there was the existence of the Legal profession, as the party of
the litigation appoints their vakils. This body decides the case and they were paid a
percentage of the amount in the suit. However, in this period the legal profession was not
so organized. Vakils performed their work as an agent for the principal but not as lawyers.

Legal Profession in British India:

During the British period, the model legal system was developed in India. Before 1726, the
courts derived their power, not from the British Crown but the East India Company.
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Charter of 1726:
The year 1726 marked the beginning of a new phase in the evolution of judicial institutions
in India. The mayor's courts were established in the presiding towns of Bombay, Calcutta,
and Madras, they were the royal courts. The courts heard all civil suits, action pleas
between parties, they followed the procedure based on English law. But there were no
facilities to get the legal training. Many persons who do not know law were used to practice
before the said courts. The Mayor's court has no jurisdiction in criminal cases. The criminal
jurisdiction was conferred on the governor.

Charter of 1753:
It was issued to modify the charter of 1726. This charter also ignored significant provisions
for legal training and education relating to legal practitioners and as such, after this charter
also the legal profession was not organized.

Charter of 1774:
The British crown issued a charter in 1774 by which the Supreme Court of judicature was
established at Calcutta. Clause 2 of the Charter empowered the said Supreme Court to
approve and enroll advocates and Attorney-at-law. The Supreme Court had powers to
remove any advocate or Attorney on reasonable cause.
Even the Charter of 1774 didn't provide for the appearance of the Indian Legal
Practitioners to appear and to plead before the Supreme Court.
'Advocate' means British and Irish Barristers.
'Attorney' means the British Attorney or Solicitor.

The Bengal Regulation Act of 1793:

This act for the first time provided for a regular legal profession for the company's court.
Under the regulation, only Hindu AND Muslims were entitled to be enrolled as pleaders.

Indian High Courts Act, 1861:

Under this act, The British Crown issued the Charter to establish one High Court in each
presidency town. The civil Courts were organized in provinces also subsequently.

Legal Practitioners Act, 1879:

It was enacted to consolidate and amend the law relating to legal practitioners. It provided
that an Advocate or vakil on the roll of any high Court can practice in all the courts
subordinate to the courts on the role of which he was entered. According to this act, the
High court was empowered to make rules consistent with the act as to suspension and

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dismissal of pleaders and mukhtars. Pleaders and Mukhtars were the Indian lawyers, but
advocates were to be the barristers.

Indian Bar Committee 1923:

It was constituted under the Chairmanship of Sir Edward Charminar. It was to consider the
issue of the organization of the bar on an Indian basis. The committee didn't favor the
establishment of the All-India Bar Council. It was of the view that a bar council should be
constituted for each High Court. The committee suggested that in all High Court a single
grade of the practitioner should be established, and they should be called Advocates.
Further suggested that the Bar committee should have the power to enquire matters calling
for the disciplinary action against a lawyer and High Court should be given disciplinary
power to punish the guilty.

Indian Bar Council Act, 1926:

To give effect to some of the recommendations of the Indian Bar Committee 1923, The
Indian Bar Council Act was enacted in 1926. The main purpose of the act was to provide for
the constitution and incorporation of the Bar Council for certain courts, to confirm powers
and impose duties on such councils and also to consolidate and amend the law relating to
legal practitioners of such courts. A provision was made in the act for the establishment of
the Bar council for every high court. Every Bar Council was to consist of 15 members. Four
of such members were to be nominated by the concerned High Court and 10 of them were
to be elected by the Advocates of the High Court from amongst themselves.

Legal Profession in India After Independence:

All India bar Committee, 1951:

All India Bar Committee was constituted under the chairmanship of Justice S.R. Das. The
committee in its report recommended the establishment of an All India Bar Council and
State bar Council. It recommended the powers of enrollment, suspension, or the removal of
advocates to the Bar Council. Further recommended that there should be no further
recruitment of non-graduated pleaders or Mukhtars.

Advocates Act, 1961:

The central government enacted the Advocates Act in 1961. This act has been in force in
entire India. It brought revolutionary changes in the legal profession in India. It sets out to
achieve the utility and dignity of the profession of law on an All-India basis. The preamble

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of the act says that the act amends as well as consolidates the law relating to legal
practitioners.

Conclusion

The development of the legal profession in India has been a journey marked by significant
progress and transformative reforms. The legal profession in India has evolved over
centuries, from ancient times with wise individuals serving as mediators, to the British
colonial period, which saw the establishment of courts and regulations. After
independence, the Advocates Act of 1961 brought significant reforms, establishing
autonomous bar councils and a common roll of advocates. This Act revolutionised the
profession, emphasising ethical conduct and enabling advocates to practice across the
country, contributing to the effective administration of justice.justice and society.

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