Disciplinary proceedings against advocates: sections 35 to 44 - Professional Ethics

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1. Professional or other misconduct
2. Before the State Bar Council: section 35
3. The one-year rule and transferred cases: section 36B
4. Before the Bar Council of India: section 36
5. Appeals
6. Review and revision
7. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Chapter V of the Advocates Act is a ladder. Section 35: the State Bar Council’s disciplinary committee. Section 36 and 36B: the Bar Council of India’s own and transferred cases. Section 37: appeal to the Bar Council of India. Section 38: appeal to the Supreme Court. Learn the four punishments, the two sixty-day periods and the one-year rule.

1. “Professional or other misconduct”

The Act does not define misconduct. Section 35 speaks of “professional or other misconduct”, so conduct outside practice that makes a person unfit to be an advocate is covered. The Supreme Court has described misconduct as conduct which, in the opinion of the profession, is dishonourable or disgraceful, and has treated the proceedings as quasi-criminal, so that the charge must be clearly framed and proved: An Advocate v. B.B. Haradara, 1988 INSC 307, AIR 1989 SC 245. The rules in Part VI, Chapter II of the Bar Council of India Rules are guides, and the Preamble says they are not exhaustive.

2. Before the State Bar Council: section 35

Initiation. On a complaint “or otherwise” (suo motu), if the State Bar Council has reason to believe that an advocate on its roll is guilty of misconduct, it refers the case to its disciplinary committee (section 35(1)). It may withdraw the case from one committee to another (section 35(1A)).
Committee. Three persons: two elected members of the Council and one co-opted advocate (section 9).
Notice. The committee fixes a date and gives notice to the advocate and to the Advocate-General of the State (section 35(2)), who may appear in person or through an advocate (section 35(5)).
Powers. The committee has the powers of a civil court to summon witnesses, require documents, receive affidavits and issue commissions (section 42).
Orders (section 35(3)), after hearing the advocate and the Advocate-General:
- (a) dismiss the complaint, or file the proceedings if started by the Council;
- (b) reprimand the advocate;
- (c) suspend him from practice for such period as it thinks fit;
- (d) remove his name from the State roll.
Effect. A suspended advocate is debarred from practising anywhere in India during suspension (section 35(4)). Reprimand and suspension are recorded against his name; on removal his name is struck off and his certificate recalled (section 41).
Costs may be awarded (section 43).

3. The one-year rule and transferred cases: section 36B

The State Bar Council’s committee must conclude the proceedings within one year from receipt of the complaint or initiation. If it does not, the proceedings stand transferred to the Bar Council of India, which disposes of them as if withdrawn under section 36(2). This is why so many of the selected opinions in Unit IV are listed as “BCI Tr. Case”.

4. Before the Bar Council of India: section 36

Original jurisdiction over an advocate whose name is not on any State roll (section 36(1)).
Power to withdraw any proceeding pending before a State committee, on its own motion, on a report by the State Bar Council or on application by a person interested (section 36(2)).
It follows the section 35 procedure, with the Attorney-General in place of the Advocate-General, and may make any order a State committee can (section 36(3) and (4)).

5. Appeals

Section 37. Any person aggrieved by an order of a State committee under section 35, or the Advocate-General, may appeal to the Bar Council of India within sixty days of communication of the order. Its disciplinary committee may pass any order, including varying the punishment, but may not enhance it without a hearing.
Section 38. Any person aggrieved by an order of the Bar Council of India’s disciplinary committee under section 36 or 37, or the Attorney-General or the Advocate-General, may appeal to the Supreme Court within sixty days. The Supreme Court may pass any order, including varying the punishment.
Section 39. Sections 5 and 12 of the Limitation Act, 1963 apply, so delay can be condoned for sufficient cause.
Section 40. An appeal does not operate as a stay, but the appellate body may stay the order.

A State Bar Council is itself a “person aggrieved” who can appeal to the Supreme Court against an order of the Bar Council of India: Bar Council of Maharashtra v. M.V. Dabholkar, 1975 INSC 164, (1975) 2 SCC 702 (seven Judges), followed in Bar Council of Andhra Pradesh v. Kurupati Satyanarayana, 2002 INSC 474. The complainant, who is the person most obviously aggrieved by a dismissal, may also appeal.

6. Review and revision

Section 44. A disciplinary committee may review its own order within sixty days, on its own motion or otherwise. A State committee’s review order has no effect until approved by the Bar Council of India. Review is not a second appeal: in Shambhu Ram Yadav v. Hanuman Das Khatry, 2001 INSC 318, (2001) 6 SCC 1, the Supreme Court set aside a review that had reduced removal to reprimand.
Section 48A. The Bar Council of India may revise any State Bar Council proceeding from which no appeal lies.

7. Problem

Mr. S, aggrieved by an order of the Disciplinary Committee of the State Bar Council, wants to appeal. Can he? Advise him.

Issue. Whether, to whom and within what time an appeal lies from an order of a State Bar Council’s disciplinary committee.

Law. Section 37(1): any person aggrieved by an order of the disciplinary committee of a State Bar Council made under section 35, or the Advocate-General, may within sixty days of communication of the order appeal to the Bar Council of India. Section 37(2): the appeal is heard by the disciplinary committee of the Bar Council of India, which may confirm, set aside or vary the order. Section 39 applies section 5 of the Limitation Act. Section 40 allows a stay. Section 38 gives a further appeal to the Supreme Court within sixty days.

Application. If S is the advocate who has been reprimanded, suspended or removed, he is plainly a person aggrieved. If S is the complainant whose complaint was dismissed, he is also aggrieved. In either case he must appeal to the Bar Council of India, not directly to the Supreme Court or the High Court; a writ petition would ordinarily be refused because an effective statutory appeal exists. If he is late, he should apply for condonation of delay showing sufficient cause. If he is a suspended advocate, he should ask for a stay under section 40, since the appeal does not suspend the order automatically. If the Bar Council of India decides against him, he has a second appeal to the Supreme Court under section 38.

Conclusion. S can appeal to the Bar Council of India under section 37 within sixty days of communication of the order, with an application for stay if needed, and thereafter to the Supreme Court under section 38.

Trap. The punishments under section 35(3) do not include a fine. Awarding costs under section 43 is not a punishment. If a problem asks whether a Bar Council can fine an advocate, the answer is no; it can reprimand, suspend or remove, and order costs.

How this is examined

The appeal problem was set in December 2018. As a theory question, “explain the disciplinary proceedings under the Advocates Act” is answered in the order of this note: meaning of misconduct, section 35 procedure and punishments, section 36B, section 36, sections 37 and 38, then review. Add Dabholkar (1975) on the Bar Council’s standing to appeal, and one case from the misconduct notes to show the Supreme Court varying punishment.