TOPIC: ROLES AND POWERS OF DISCIPLINARY COMMITTEE

SUBJECT: LEGAL ETHICS AND COURT CRAFT

SUBJECT CODE: LLB 501

NAME: BHAVYA SHARMA

BATCH: 2017-2022
CLASS: 5th YEAR BBA LLB (A)
ENROLLMENT NO.: 40751103517
SUBMITTED TO: Ms. GARIMA GOSWAMI
(DME FACULTY LAW)
INTRODUCTION

In its 14th report on the reform of Judicial Administration, the law commission of India,
which was presided over by Mr. M.C Setalvad, who was then the Attorney General of India,
endorsed the recommendations of the All-India Bar Committee regarding the creation of a
unified all India bar, as well as the establishment, composition, and functions of state and All
India Bar Councils.

The Law commission also recommended that the requirements of a certain number of years
of practise in the High Court for enrolment as a Supreme Court advocate be abolished, that
advocates on the common role have the right to practise in all Indian courts, that the dual
system in the Calcutta and Bombay High Courts be maintained, and that the Bar be divided
into Senior advocates and advocates.1

After following the procedure outlined below, the High Court was empowered under section
10 of the Legal Practitioners Act to reprimand, suspend, or remove any advocate of the High
Court from practise for professional or other misconduct. The High Court must hear
complaints against lawyers for professional or other misconduct. If the High Court did not
dismiss a complaint on the spot, it was required to refer the case to the Bar Council for
investigation or, following consultation with the Bar Council, to a district judge. Even though
there was no complaint, the High Court had the authority to make such a referral Suo motu.
Cases referred to the Bar Council had to be investigated by a committee of the Bar Council
(referred to as a tribunal) made up of at least three and no more than five members selected
by the Chief Justice of the High Court. 2

The High Court was required to make rules for the conduct of disciplinary enquiries. The
finding of the tribunal after enquiry was to be forwarded to the High Court through the Bar
Council and the finding of a district court was to ne forwarded direct to the High Court which
was required to send a copy to the Bar Council. Notice was to be given of the date fixed for
hearing to the advocate concerned and to the Bar Council and to the Advocate General and
after affording them an opportunity of being heard, final orders were passed by the High
Court.

1
Law commission of India Report: Report on Judicial Administration, 556-558
2
Section 11, The Indian Bar Council Act, 1926
CONSTITUTION AND ROLE OF DISCIPLINARY COMMITTEE

Disciplinary committee is a usually “A person, a group of people who are often empowered
to hear matters and proceedings which are often regarding professional misconduct of an
advocate”. The purpose of Disciplinary Committee is to guarantee that members of the Bar
Council of India, or any State Bar Council, adhere to professional ethics and standards.

The Advocates Act of 1961 gives the Bar Council of India's disciplinary committee the
authority to Investigate accusations of professional misconduct or any other wrongdoings
against any advocate referred to it. The committee has the authority to investigate cases
before it, to hear appeals, and to stay and review its own rulings. It has the authority to make
any order it deems fit regarding the costs of any procedure before it. Any such order will be
enforceable as if it were a Supreme Court order.

In accordance with Section 9 of the Advocates Act, 1961, the Bar Council shall establish a
Disciplinary body. According to this clause, one or more disciplinary committees must be
created, with each Disciplinary committee consisting of three members. The Council will
elect two of the three members of the disciplinary committee from among the members of the
Bar Council of India itself. The third member will be co-elected by the Council from among
those who are not members of the Bar Council but must be an advocate with the criteria set
forth in Section 3(2) of the Advocates Act, 1961.3 The provision further stipulates that the
Chairman of the committee would be the Senior Advocate. Members of this committee will
serve for a maximum of 3 years.

POWERS OF DISCIPLINARY COMMITTEE

Section 42 of the Code of Civil Procedure, 1908, states that the disciplinary committee of a
Bar Council has the same powers as a civil court in summoning and enforcing the attendance
of any person and examining him on oath, requiring discovery and production of any

3
The Advocates Act, 1961
documents, receiving evidence on affidavits, requisitioning any public record or copies
thereof, and issuing commissions for the examination of witnesses or documents.4

An advocate who is suspended from practising law in India is prohibited from appearing in
any court or before any authority or person. A State Bar Council's disciplinary committee
may examine any order passed by it on its own volition or otherwise, but no such order will
take effect unless it has been authorised by the Bar Council of India.  

The Advocate's Act of 1961, Section 42, gives the disciplinary committee power. According
to the clause, the disciplinary committee has the same powers as a civil court under the Code
of Civil Procedure, 1908, which are as follows:

 Power to Enquire and to Withdraw: If the Bar Council of India has reason to believe
that any advocate on the roll whose name is not entered on any state roll has been
guilty of professional or other misconduct, it shall refer the case to its disciplinary
committees for disposal. The committee may also, on its own motion, conduct an
inquiry into any disciplinary proceedings against any advocate pending before the
disciplinary committee.
 Power to Hear appeal and Order stay: Any person who is aggrieved by an order of a
State Bar Council's disciplinary committee made under Section 35 of the Advocates
Act, 1961, may appeal to the Bar Council of India within sixty days of receiving the
order. Every such appeal will be heard by the Bar Council of India's disciplinary
committee, which has the authority to issue any order it sees fit.
The disciplinary committee of the Bar Council of India approved an appeal filed by
the advocate-general under section 37 of the Advocates Act, 1961, in the matter of
Adi Pherozshah Gandhi v. H.M. Seervai.5 Overruling its own verdict, the Bar
Council of India's disciplinary committee suspended the lawyer for a year. The Indian
Supreme Court upheld the ruling.
 Power of Review: The Bar Council of India's disciplinary committee has the right to
examine any order it has made on its own initiative or otherwise. The term 'otherwise'
in Section 44 of the Advocates Act, 1961, is broad enough to cover a case referred for
review by the Bar Council. The court reasoned that because disciplinary proceedings
against a lawyer will affect not only the individual lawyer but also the legal
profession's reputation, the disciplinary committee's powers of review should be
4
Section 42, The Advocates Act, 1961
5
Adi Pherozshah Gandhi vs H.M Seervai, 1971 AIR 385, 1971 SCR (2) 863
 interpreted broadly to allow the disciplinary committee to exercise its powers in
appropriate cases.
By its own action or otherwise, the disciplinary committee of a Bar Council has
review powers under Section 44 of the Advocates Act, 1961. However, no ruling or
review issued by the state Bar Council's disciplinary body has any effect unless it is
accepted by the Bar Council of India. The Supreme Court supported the Bar Council
of India's position in O.N. Mahindroo v. Dist. Judge, Delhi, that the Bar Council of
India has no competence to examine any order made by its disciplinary committee on
6
appeal. However, the Bar Council has the option of referring the case to the
disciplinary committee for further review.
 Appeal to Supreme Court: Any person who is aggrieved by an order made by the Bar
Council of India's disciplinary committee under Section 36 or Section 37 may file an
appeal with the Supreme Court within sixty days of the day on which the order is
communicated to him, and the Supreme Court may make any judgement it sees
proper. The Supreme Court of India issued Order V. The Rules deal with appeals to
the Supreme Court against an order of the Bar Council of India's disciplinary
committee made under section 36 or section 37 of the Advocates Act.
The Rules, among other things, provide for a preliminary hearing on the petition for
appeal's registration. If the court is satisfied after such a hearing that no prima facie
case has been made out for its interference, it may dismiss the appeal; if it is not, it
may order that notice of appeal be issued to the Advocate-General of the State
concerned, the Attorney-General of India, or both, as well as the respondent. The
court has sole authority over the expenses of all appeal processes.7
 Any person may be summoned and compelled to appear, and he may be examined
under oath.
 Any documents must be discovered and produced.
 Receiving evidence on affidavits.
 Obtaining a public document or copies of a public record from any court or office.
 Issuing a commission for witness or document examination.
 Any other matter which may be prescribed.

RESTRICTED POWERS OF DISCIPLINARY COMMITTEE

6
O.N Mahindroo vs Distt Judge, Delhi, 1971 AIR 107, 1971 SCR (2) 11
7
The validity of s. 38 of the Act and order V, rule 7 of the Supreme Court Rules was upheld by the Supreme
Court in O.N. Mohindroo v. Bar Council, AIR 1968 SC 888.
Only with the prior approval of relevant authorities can the disciplinary committee employ
these powers. The following are some of them:

 Attendance of any presiding officer of a court is only permitted with the permission of
the High Court to whom the court is subject.
 Attendance of any officer of the revenue court is only permitted with the State
Government's prior approval.

MISCELLANEOUS POWERS OF DISCIPLINARY COMMITTEE

 If the chairman or any other member of the disciplinary committee is unable to attend
the hearing on the scheduled date, the disciplinary committee may proceed with the
hearing and make appropriate orders, provided that the order passed is not the final
order. Because the chairman or all three members of the disciplinary committee were
not present, the proceedings and order passed by such a committee are not invalid.
 If the final orders cannot be made due to a lack of majority among the disciplinary
committee members or are not in agreement with the Chairman's or members'
opinions, the matter or case must be brought before the Chairman of the Bar Council.
The matter will be heard by the Vice Head of the Bar Council if the Chairman of the
Bar Council is also the chairman of the disciplinary committee. The Vice Chairman
will provide his view after hearing the case, and the disciplinary committee will
follow that final order
 In Joginder Singh vs Bar Council of India8, in this case, the attorney was found
guilty under section 473 of the Indian Penal Code. There were several other criminal
cases ongoing, and the lawyer, Mr. Joginder Singh, was on bail. When he entered his
name in the state bar roll, he concealed all these facts. When the advocate applied to
the Bar Council of India to move his name from the Uttar Pradesh Bar Council to the
Delhi Bar Council, the Bar Council of India discovered the concealment and issued a
notice for the advocate's name to be struck. The advocate's name was taken from the
roll after the disciplinary body issued an order prohibiting him from practising in any
court.
 The disciplinary committee also has the authority to impose costs of proceedings as it
sees fit, and such orders are enforceable as if they were High Court or Supreme Court
rulings.

8
Joginder Singh Vs. Bar Council of India AIR 1975 Delhi 192
CONCLUSION

In the judicial system, advocates play a crucial role. By putting their whole trust in them,
one can rely on them completely. It is critical for an advocate to carry out his or her duties
with precision and efficiency. As a member of the legal profession and a court officer, an
advocate is expected to maintain high standards and respect the judicial office's dignity.
Any wrongdoing by an advocate will not be tolerated since it will harm the public's trust
and attitude toward the legal system. A disciplinary commission has been established and
given powers to conduct cases involving fraud, misconduct, and cheating perpetrated by
an advocate against his own client to ensure that such irresponsible and unreasonable
behaviour does not go unpunished.

References

1. The Advocates Act,1961

2. www.indianbarassociation.org
3. www.indiankanoon.com
4. Law Commission of India: Report on the Reform of Judicial Administration, 556-
586 (1958)
5. The Indian Bar Council Act, 1926.