ADVOCATES ACT 1961

A PROJECT OF PROFESSIONAL ETHICS SUBMITTED IN PARTIAL

FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF B.A.LL.B. (H)
(SEMESTER-VIII) IN HALDIA LAW COLLEGE OF VIDYASAGAR UNIVERSITY

UNDER THE GUIDANCE AND SUPERVISION OF

MRS.SADAF MOOSA
Assistant Professor -in- Law
HALDIA LAW COLLEGE

DR. PRADEEPTA KISHORE SAHOO

PRINCEPAL OF HALDIA LAW COLLEGDE

SUBMITTED BY

  SAJAHAN MOLLA

REGISTRATION No. 0001482 0F 2016-2017

Roll: 60530116 No.: 5068     

HALDIA LAW COLLEGE

(A PREMIER LEGAL INSTITUTION OF ICARE)
ICARE COMPLEX, P.O.: HATIBERIA, HALDIA
DIST.: PURBA MEDINIPUR
WEST BENGAL, INDIA 

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 ACKNOWLEDGEMENT

A project is a joint endeavor which is to be accomplished with utmost compassion,

diligence and with support of all. I am overwhelmed in all humbleness and gratefulness to
acknowledge from the bottom of my heart to all those who have helped me to put these
ideas, well above the level of simplicity and into something concrete effectively and
moreover on time.

This project would not have been completed without the combined effort of my teacher,
Mrs, Sadaf Moosa Assistant Professor-in-Law, Haldia Law College whose support and guidance
was the driving force to successfully complete this project. I express my heartfelt gratitude to
him.

I am also thankful to Dr. P. k. Sahoo (Principal) and other faculty members for their
encouragement, support and inspiration both for completion of this work and for the
course study. I am equally thankful to Mr. Samir Kumar Panda (Librarian) and other staff
of the College.

I owe the present accomplishment of my project to my friends, who helped me

immensely with sources of research materials throughout the project and without whom I
couldn’t have completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands who
helped me out at every stage of my project.

                                                                                                                                          SAJAHAN MOLLA

Place: Haldia Law College                                                                                              Signature

Date: 02/07/2020

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 DECLARATION

I am   SAJAHAN MOLLA this project report is my original work and have not been submitted
in any form as a part of any other project.

Information derived from the published and unpublished work of other has been
acknowledgement in the list references in given in the bibliography.

                                                                                       

                                                                                       SAJAHAN MOLLA

Place:Haldia Law College Signature

Date: 02/07/2020

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 CERTIFICATE

This is to certify that the project on the topic ‘’ADOCATES ACT 1961’’

Submitted by

NAME: - SAJAHAN MOLLA 

Registration Number:-0001482 0F 2016-2017

Class Roll No: - 68

During 8 Semester of the B.A.LL.B course on Haldia Law College, under my guidance and
th

have been completed it successfully.

                                                                
Place:Haldia Law College                                                                     Signature

Date: 02/07/2020

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 CONTENTS
Chapter- 1. ADVOCATES ACT
1.1 Introduction……………………………………………………………………………………07
1.2 Salient Features………………………………………………………………………………07
1.3 Common Roll………………………………………………………………………………….07-08
1.4 State Roll……………………………………………………………………………………….. 08
1.5 State Bar Council……………………………………………………………………………. 08-10
1.6 Admission and Enrolment of Advocates …………………………………………11-14
1.7 Right to Practice ……………………………………………………………………………..14-15
1.8 Conduct of Advocates………………………………………………………………………15-21
1.9 Miscellaneous…………………………………………………………………………………. 21-25
1.10 Conclusion ………………………………………………………………………………………25-26
Chapter 2. BAR COUNCIL OF INDIA RULES
2.1 Introduction…………………………………………………………………………………………. 27-28
2.2 History………………………………………………………………………………………………….. 28-29
2.3 Structure Of The Bar Council Of India …………………………………………………….29
2.4 Functions Of Bar Council Of India………………………………………………………….. 29-30
2.5 Committees Of Bar Council Of India ………………………………………………………30-31
2.6 Legal Education Committee …………………………………………………………………..31
2.7 Disciplinary Committee …………………………………………………………………………31-32
2.8 EXECUTIVE COMMITTEE………………………………………………………………………… 32
2.9 Conclusion …………………………………………………………………………………………..32-33
Chapter 3. BAR AND BANTCH RELATION
3.1 Introduction …………………………………………………………………………………………..34
3.2 Bar and Bench…………………………………………………………………………………………34
3.3. The Changing Bar and Bench………………………………………………………………….34-36

3.4. Legacy of Bar and Bench Relationship……………………………………………………36-38

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3.5. Role of the Bar to Strengthen Bar-Bench Relation……………………………………38

3.6. Role of the Bench to Strengthen Bar –Bench Relation……………………………38-40

3.7. Legal Duties of an advocate to the Court………………………………………………..40
3.8. Conclusion……………………………………………………………………………………………..41

Chapter 4. Concept of Court Act 1971

4.1 Introduction ……………………………………………………………………………………………42
4.2 Object of the Act……………………………………………………………………………………..42-43
4.3 Punishment for contempt of court…………………………………………………………..43
4.4 Essentials Of Civil Contempt Of Court…………………………………………………….43-45
4.5 Misbehavior act in court………………………………………………………………………….45-46
4.6 The summary procedure………………………………………………………………………….46-47
4.7. Conclusion………………………………………………………………………………………………47-48

Chapter 5. BIBLIOGRAPHY……………………………………………………………………………..49

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 Chapter- 1. ADVOCATES ACT
1.1 Introduction
The Advocates Act, passed by the Parliament received the assent of the President
on 19th May 1961. Before this Act, there were different classes of legal
practitioners called pleaders, vakils, Lawyers, Attorneys," revenue agents,
practicing under Legal Practitioners Act" and other Acts. The objective of the.
Advocates Act is to integrate and constitute one class of legal practitioners called
"Advocates" (a common roll of advocates in India)- and to prescribe uniform
qualification for admission to the Bar. The Act has created an autonomous All
India Bar Council and also various State Councils with powers vested inter alia, to
take disciplinary action in suitable cases. On enrolment an advocate is entitled to
practice in any court of India including the Supreme Court.
1.2 Salient Features
Sn.2 (a) of the Advocates Act 1961 defines an "Advocate". According to it, an
Advocate means " an advocate entered in any roll under the provisions of this
Act." Before the passing of this Act, there were different classes of legal
practitioners recognized under the Legal Practitioners Act. They were called as
Advocates, lawyers, vakils, pleaders, "revenue agent" etc. the Advocates Act
has abolished these classes and has recognised only one class of Advocates
(Sn.29) On merits they are grouped as "Senior Advocates" and "other
advocates". The status of a Senior Advocate is conferred by the High Court or
the Supreme Court with the consent of such advocate. The senior advocate is
barred from taking minor legal work like drafting of pleadings, notices,
affidavits etc. An advocate duly enrolled in the "Common roll" is entitled to
practice in the Supreme Court and in any court, tribunal and in any other body
where an advocate is allowed to pratice (Sns.29 & 33). Any person, who is not
on the rolls and who practices law, is liable for punishment which may extend
to 6 months imprisonment (Sn.45)

1.3 Common Roll

Sn.2(f) of the Advocates Act, defines a "Common roll" .This means the common
roll of advocates, prepared and maintained by the Bar Council of India under

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Sn.20 The common roll consists of the names of Advocates duly entered in all the
State rolls, and also includes the names of the Supreme Court Advocates. The
common roll consists of two classes: (i) Senior advocates, (ii) other advocates. Any
dispute as to seniority is decided by the State Bar Council in respect of state roll,
and by the -Bar Council of India in respect of common roll. The decision of the Bar
Council is final.
1.4 State Roll

i) The Advocate Act defines State roll in Sn.2(n) It means a roll of

advocates prepared and maintained by the State Bar Council under
Sn.17.

ii) Every State Bar Council should prepare and maintain a roll of advocates.
This consists of the names and addresses of: “All persons who were
advocates according to Indian Bar Council Act.

iii) All persons who are admitted as advocates under the Advocates Act.
iv) A person cannot be enrolled in more than one State Bar Council.

v) Each state sends the roll of advocates to the Bar Council of India, and
also additions or omissions, from time to time. The Bar Council of India,
prepares a common roll of advocates from these State rolls.

1.5 State Bar Council

The Advocates Act 1961, has provided for a State Bar Council in each State under
Sn.3.
a) Composition:
Each State Bar Council, .consists of
1) The Advocate-General of the State (Ex-officio)

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2) 20 members elected in accordance with the system of proportional
representation by means of single transferable vote from among the advocates of
the State Bar Council. Of course, at least ten of these must be from advocates
having 10 years standing at the Bar.
3) This Council elects a chairman and a vice-chairman.
b) Legal Status:
The Bar Council is a body corporate and hence a legal person. It is an autonomous
body. It has a right to acquire and dispose of property, to sue and be sued etc. It
has a right of succession.
c) Tenure:
The tenure of office of the elected members is six years (one third of the
members retire once in two years)
d) Powers:
i) Appointment:
It is authorised to appoint the necessary staff of the State Bar Council tocarry out
the management and the functions.
ii) Disciplinary committees:
The State Bar Council has powers to. Constitute disciplinary committee having
three persons (2 members of the Bar Council and an a Advocate).
iii) Constituting other committees:
The Bar Council may constitute standing committees called "Executive
Committee" (having 5 council members), enrolment committee (having 3 council
membersO and other committees.
iv) Power to make rules: (Sn. 15)
'To carry out the purposes of the Advocates Act, the State Bar Council is
empowered to make rules relating to:
i) Election of members of the Bar Council, ii) Election of chairman and vice
chairman, iii) Summoning of meetings. iv) Constitution of Fund.

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v) Appointment of Auditors etc.
Functions:
(1) The functions of a State Bar Council shall be-
(a) to admit persons as advocates on its roll;
(b) to prepare and maintain such roll.
(c) to entertain and determine cases of misconduct against advocates on its roll;
(d) to safeguard the rights, privileges and interests of advocates on its roll; dd) to
promote the growth of Bar Associations for the purposes of effective
implementation of the welfare schemes.
(e) to promote and support law reform;
e.1) to conduct seminars and organise talks on legal topics by eminent jurists and
publish journals and papers of legal interest;
e.2) to organise legal aid to the poor in the prescribed manner;]
(f) to manage and invest the funds of the Bar Council;
(g) to provide for the election of its members;
[(g.1) to visit and inspect Universities in accordance with the directions given
under clause (i) of subsection (1) of section 7;]
(h) to perform all other functions conferred on it by or under this Act;
(i) To do all other things necessary for discharging the aforesaid functions.
2) A State Bar Council may constitute one or more funds (a) giving financial
assistance to organise welfare schemes for the indigent, disabled or other
advocates; (b) giving legal aid or advice in accordance with the rules made in this
behalf; establishing law libraries.]
(3) A State Bar Council may receive any grants, donations, gifts or benefactions
for all or any of the purposes specified in sub-section (2) which shall be credited
to the appropriate fund or funds constituted under that sub-section.]

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1.6 Admission and Enrolment of Advocates
Senior and other advocates.-
(1) There shall be two classes of advocates, namely, senior advocates and other
advocates.
(2) An advocate may, with his consent, be designated as senior advocate if the
Supreme Court or a High Court is of opinion that by virtue of his ability,
1*[standing at the Bar or special knowledge or experience in law] he is deserving
of such distinction.
(3) Senior advocates shall, in the matter of their practice, be subject to such
restrictions as the Bar Council of India may, in the interests of the legal
profession, prescribe.
State Bar Councils to maintain roll of advocates.-

(1) Every State Bar Council shall prepare and maintain a roll of advocates in
which shall be entered the names and addresses of—
(a) all persons who were entered as advocates on the roll of any High Court
under the Indian Bar Councils Act, 1926.(38 of 1926), express an intention in
the prescribed manner to practise within the jurisdiction of the Bar Council; .
(b) all other persons who are admitted to be advocates on the roll of the State
Bar Council under this Act on or after the appointed day.
(2) Each such roll of advocates shall consist of two parts, the first part
containing the names of senior advocates and the second part, the names of
other advocates.
(3) Entries in each part of the roll of advocates prepared and maintained by a
State Bar Council under this section shall be in the order of seniority,
(4) No person shall be enrolled as an advocate on the roll of more than one
State Bar Council.
Transfer of name from one State roll to another
any person whose name is entered as an advocate on the roll of any State Bar
Council may make an application in the prescribed form to the Bar Council of
India for the transfer of his name from the roll of that State Bar Council to the roll

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of any other State Bar Council and, on receipt of any such application the Bar
Council of India shall direct that the same.
Certificate of enrolment.-
(1) There shall be issued a certificate of enrolment in the prescribed form by the
State Bar Council to every person whose name is entered in the roll of advocates
maintained by it (2) Every person whose name is so entered in the State roll shall
notify any change in the place of his permanent residence to the State Bar Council
concerned within ninety days of such change.
Right of audience.-
(1) The Attorney-General of India shall have pre-audience over all other
advocates.
(2) Subject to the provisions of sub-section (1), the Solicitor-General of India shall
have pre-audience over all other advocates.
(3) Subject to the provisions of sub-sections (1) and (2), the Additional Solicitor-
General of India shall have pre-audience over all other advocates.
(4) Subject as aforesaid--(i) senior advocates shall have pre-audience over other
advocates, and (ii) the right of pre-audience of senior advocates inter se and
other advocates inter se shall be determined by their respective seniority.
Persons who may be admitted as advocates on a State roll.
(1) (a) he is a citizen of India: .Provided that subject to the other provisions
contained in this Act, a national of any other country may be admitted as an
advocate on a State roll, if citizens of India, duly qualified, are permitted to
practise law in that other country;
(b) he has completed the age of twenty-one years;
(c) he has obtained a degree in law-- after undergoing a three-year course of
study in law from any University in India which is recognised for the purposes of
this Act by the Bar Council of India; or
(d) after undergoing a course of study in law, the duration of which is not less
than two academic years he is a barrister and is called to the Bar

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 (e) he fulfils such other conditions as may be specified in the rules made by the
State Bar Council
(f) he has paid, in respect of the enrolment, stamp duty, and an enrolment fee
payable to the State Bar Council of six hundred rupees and to the Bar Council of
India, one hundred and fifty rupees Scheduled Castes or the Scheduled Tribes
[one hundred rupees and to the Bar Council of India, twentyfive rupees".
Disqualification for enrolment.-
(1) No person shall be admitted as an advocate on a State roll-- (a) if he is
convicted of an offence involving moral turpitude; (b) if he is convicted of an
offence under the provisions of of the Untouchability (Offences) Act, c) if he is
dismissed or removed from employment or office under the State on any charge
involving moral turpitude. Provided that the disqualification for enrolment as
aforesaid shall cease to have effect after a period of two years has elapsed since
his released or dismissal or, as the case may be, removal.
Authority to whom applications for enrolment may be made. - An application for
admission as an advocate shall be made in the prescribed form to the State Bar
Council within whose jurisdiction the applicant proposes to practise.
Disposal of applications for admission as an advocate.-
(1) A State Bar Council shall refer every application for admission as an advocate
to its enrolment committee, and subject to the provisions of sub-sections
(2) and (3) to any direction that may be given in writing by the State Bar Council
in this behalf, such committee shall dispose of the application in the prescribed
manner: Provided that the Bar Council of India may, if satisfied, either on a
reference made to it in this behalf or otherwise, that any person has got his name
entered on the role of advocates by misrepresentation as to an essential fact or
by fraud or undue influence, remove the name of such person from the roll of
advocates after giving him an opportunity of being heard.
(3) Where the enrolment committee of a State Bar Council proposes to refuse any
such application, it shall refer the application for opinion to the Bar Council of
India and every such reference shall be accompanied by a statement of the
grounds in support of the refusal of the application. .

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Where the enrolment committee of a State Bar Council has refused any
application for admission as an advocate on its roll, the State Bar Council shall, as
soon as may be, send intimation to all other State Bar Councils about such refusal
stating the name, address and qualifications of the person whose application was
refused and the grounds for the refusal.]
Power to remove names from roll.- A State Bar Council may remove from the
State roll the name of any advocate who is dead or from whom a request has
been received to that effect.]
Application once refused not to be entertained by another Bar Council except in
certain circumstances. except with the previous consent in writing of the State
Bar Council which refused the application and of the Bar Council of India.
Power to make rules.-
(1) A State Bar Council may make rules to carry out the purposes of this
Chapter.
1.7 Right to Practice
Advocates to be the only recognised class of persons entitled to practise law.
—Subject to the provisions of this Act and any rules made thereunder, there shall,
as from the appointed day, be only one class of persons entitled to practise the
profession of law, namely, advocates.
Right of advocates to practise.—
Subject to provisions of this Act, every advocate whose name is entered in the
1[State roll] shall be entitled as of right to practise throughout the territories to
which this Act extends,— (i) in all courts including the Supreme Court; (ii) before
any tribunal or person legally authorised to take evidence; and (iii) before any
other authority or person before whom such advocate is by or under any law for
the time being in force entitled to practise.
Power of Court to permit appearances in particular cases—
Notwithstanding anything contained in this Chapter, any court, authority, or
person may permit any person, not enrolled as an advocate under this Act, to
appear before it or him in any particular case.

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Advocates alone entitled to practise.—
Except as otherwise provided in this Act or in any other law for the time being in
force, no person shall, on or after the appointed day, be entitled to practise in any
court or before any authority or person unless he is enrolled as an advocate under
this Act.
Power of High Courts to make rules.—
(1) The High Court may make rules laying down the conditions subject to which
an advocate shall be permitted to practise in the High Court and the courts
subordinate thereto.
1[(1A) The High Court shall make rules for fixing and regulating by taxation
or otherwise the fees payable as costs by any party in respect of the fees of
his adversary’s advocate upon all proceedings in the High Court or in any
Court subordinate thereto.]
2[(2) Without prejudice to the provisions contained in sub-section (1), the
High Court at Calcutta may make rules providing for the holding of the
Intermediate and the Final examinations for articled clerks to be passed by
the persons referred to in section 58AG for the purpose of being admitted
as advocates on the State roll and any other matter connected therewith.]
1.8 Conduct of Advocates
Punishment of advocates for misconduct.
(1) Where on receipt of a complaint or otherwise a State Bar Council has reason
to believe that any advocate on its roll has been guilty of professional or other
misconduct, it shall refer the case for disposal to its disciplinary committee.

1A) The State Bar Council may, either of its own motion or on application
made to it by any person interested, withdraw a proceeding pending before
its disciplinary committee or direct the inquiry to be made by any other
disciplinary committee of that State Bar Council.]

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 (2) The disciplinary committee of a State Bar Council shall fix a date for the
hearing of the case and shall cause a notice thereof to be given to the
advocate concerned and to the Advocate General of the State.

(3) 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.

(4) Where an advocate is suspended from practice he shall, during the period
of suspension, be debarred from practicing in any court or before any
authority or person in India.

Disciplinary powers of Bar Council of India.-

(1) Where on receipt of a complaint or otherwise the Bar Council of India has
reason to believe that any advocate whose name is not entered on any State
roll has been guilty of professional or other misconduct, it shall refer the case
for disposal to its disciplinary committee.
(2) Notwithstanding anything contained in this Chapter, the disciplinary
committee of the Bar Council of India may, either of its own motion or on a
report by any State Bar Council or on an application made to it by any person
interested], withdraw for inquiry before itself any proceedings for disciplinary
action against any advocate pending before the disciplinary committee of any
State Bar Council and dispose of the same.
(3) The disciplinary committee of the Bar Council of India, in disposing of any
case under this section, shall observe, so far as may be, the procedure laid
down in section 35, the references to the Advocate-General in that section
being construed as references to the Attorney-General of India.
(4) In disposing of any proceedings the disciplinary committee of the Bar
Council of India may make any order which the disciplinary committee of a
State Bar Council can make under sub-section 36B. Disposal of disciplinary
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proceedings.- (1) The disciplinary committee of a State Bar Council shall
dispose of the complaint received by it under section 35 expeditiously and in
each case the proceedings shall be concluded within a period of one year from
the date of the receipt of the complaint or the date of initiation of the
proceedings at the instance of the State Bar Council, as the case may be,
failing which such proceedings shall stand transferred to the Bar Council of
India which may dispose of the same as if it were a proceeding withdrawn for
inquiry under sub-section (2) of section 36.(2) .

Appeal to the Bar Council of India.-

(1) Any person aggrieved by an order of the disciplinary committee of a State

Bar Council made may, within sixty days of the date of the communication of
the order to him, prefer an appeal to the Bar Council of India. 73.
(2) Every such appeal shall be heard by the disciplinary committee of the Bar
Council of India which may pass such order including an order varying the
punishment awarded by the disciplinary committee of the State Bar Council
thereon as it deems fit: Provided that no order of the disciplinary committee
of the State Bar Council shall be varied by the disciplinary committee of the
Bar Council of India so as to prejudicially affect the person aggrieved without
giving him reasonable opportunity of being heard.

Appeal to the Supreme Court.-

Any person aggrieved by an order made by the disciplinary committee of the

Bar Council of India under section 36 or section 37 [or the Attorney-General of
India or the Advocate-General of the State concerned, as the case may be,]
may, within sixty days of the date on which the order is communicated to him,
prefer an appeal to the Supreme Court and the Supreme Court may pass such
order [including an order varying the punishment awarded by the disciplinary
committee of the Bar Council of India)] thereon as it deems fit: Provided that
no order of the disciplinary committee of the Bar Council of India shall be
varied by the Supreme Court so as to prejudicially affect the person aggrieved
without giving him a reasonable opportunity of being heard.]

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Stay of order.-

1)] An appeal, made under section 37 or section 38, shall not operate as a stay
of the order appealed against, but the disciplinary committee of the Bar
Council of India, or the Supreme Court, as the case may be, may, for sufficient
cause, direct the stay of such order on such terms and conditions as it may
deem fit.
2) Where an application is made for stay of the order before the expiration of
the time allowed for appealing there from under section 37 or 74.section 38,
the disciplinary committee of the State Bar Council, or the disciplinary
committee of the Bar Council of India, as the case may be, may, for sufficient
cause, direct the stay of such order on such terms and conditions as it may
deem fit.]

Alteration in roll of advocates.-

(1) Where an order is made under this Chapter reprimanding or suspending

an advocate, a record of the punishment shall be entered against his name--
(a) in the case of an advocate whose name is entered in a State roll, in that
roll; and where any order is made removing an advocate from practice, his
name shall be struck off the State roll.
(2) Where any advocate is suspended or removed from practice, the
certificate granted to him under section 22, in respect of his enrolment shall
be recalled.

Powers of disciplinary committee.-

- (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 witnesses or
documents;

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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 witnesses 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.
Where no final orders 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.
Review of orders by disciplinary committee.- The disciplinary committee of a Bar
Council may of its own motion or otherwise review any order 2*[within sixty days
of the date of that order] passed by it under this Chapter: Provided that no such
order of review of the disciplinary committee of a State Bar Council shall have
effect unless it has been approved by the Bar Council 45. Penalty for persons
illegally practising in courts and before other authorities.-Any person who
practises in any court or before any authority or person, in or before whom he is

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not entitled to practise under the provisions of this Act, shall be punishable with
imprisonment for a term which may extend to six months.
Power of revision.-
(1) The Bar Council of India may, at any time, call for the record of any
proceeding under this Act which has been disposed of by a State Bar
Council or a committee thereof, and from which no appeal lies, for the
purpose of satisfying itself as to the legality or propriety of such disposal
and may pass such orders in relation thereto as it may think fit.(2) No order
which prejudicially affects any person shall be passed under this section
without giving him a reasonable opportunity of being heard.
(2) Review.- The Bar Council of India or any of its committee, other than its
disciplinary committee, may of its own motion or otherwise review any
order, within sixty days of the date of that order, passed by it under this
Act.]

Power to give directions.-

(1) For the proper and efficient discharge of the functions of a State Bar Council
or any committee thereof, the Bar Council of India may, in the exercise of its
powers of general supervision and control, give such directions to the State
Bar Council or any committee thereof as may appear to it to be necessary, and
the State Bar Council or the committee shall comply with such directions.
General power of the Bar Council of India to make rules.-- [(1)] The Bar Council of
India may make rules for discharging its functions under this Act, and, in
particular, such rules may prescribe-
[(a) the conditions subject to which an advocate may be entitled to vote at an
election to the State Bar Council including the qualifications or disqualifications of
voters, and the manner in which an electoral roll of voters may be prepared and
revised by a State Bar Council;
(ab) qualifications for membership of a Bar Council and the disqualifications
for such membership; (ac) the time within which and the manner in which
effect may be given to the proviso to sub-section (2) of section 3; (ad) the

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 manner in which the name of any advocate may be prevented from being
entered in more than one State roll; (ae) the manner in which the seniority
among advocates may be determined; 3*[(af) the minimum qualifications
required for admission to a course of degree in law in any recognized
University;](ag) the class or category of persons entitled to be enrolled as
advocates; (ah) the conditions subject to which an advocate shall have the
right to practise and the circumstances under which a person shall be deemed
to practise as an advocate in a court;]

(b) the form in which an application shall be made for the transfer of the
name of an advocate from one State roll to another;

(c) the standards of professional conduct and etiquette to be observed by

advocates;

(d) the standards of legal education to be observed by Universities in India

and the inspection of Universities for that purpose; .

(e) the foreign qualifications in law obtained by persons other than citizens of
India which shall be recognised for the purpose of admission as an advocate
under this Act;

(f) the procedure to be followed by the disciplinary committee of a State Bar

Council and by its own disciplinary committee;

(g) the restrictions in the matter of practice to which senior advocates shall be
subject; gg) the form of dresses or robes to be worn by advocates, having
regard to the climatic conditions, appearing before any court or tribunal;]

(h) the fees which may be levied in respect of any matter under this Act;

i) general principles for guidance of State Bar Councils and the manner in
which directions issued or orders made by the Bar Council of India may be
enforced;
1.9 Miscellaneous
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Penalty for persons illegally practising in courts and before other authorities.
—Any person who practises in any court or before any authority or person, in or
before whom he is not entitled to practise under the provisions of this Act, shall
be punishable with imprisonment for a term which may extend to six months.
Financial assistance to State Bar Council.
—The Bar Council of India may, if it is satisfied that any State Bar Council is in
need of funds for the purpose of performing its functions under this Act, give such
financial assistance as it deems fit to that Bar Council by way of grant or
otherwise.
Reciprocity.
—(1) Where any country, specified by the Central Government in this behalf by
notification in the Official Gazette, prevents citizens of India from practising the
profession of law or subjects them to unfair discrimination in that country, no
subject of any such country shall be entitled to practise the profession of law in
India. (2) Subject to the provisions of sub-section (1), the Bar Council of India may
prescribed the conditions, if any, subject to which foreign qualifications in law
obtained by persons other than citizens of India shall be recognised for the
purpose of admission as an advocate under this Act.
Indemnity against legal proceedings.
—No suit or other legal proceeding shall lie against any Bar Council or any
committee thereof or a member of a Bar Council 3[or any Committee thereof] for
any act in good faith done or intended to be done in pursuance of the provisions
of this Act or of any rules made thereunder.
Power of revision.
—(1) The Bar Council of India may, at any time, call for the record of any
proceeding under this Act which has been disposed of by a State Bar Council or a
Committee thereof, and from which no appeal lies, for the purpose of satisfying
itself as to the legality or propriety of such disposal and may pass such orders in
relation thereto as it may think fit. (2) No order which prejudicially affects any
person shall be passed under this section without giving him a reasonable
opportunity of being heard.]

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Review.
—The Bar Council of India or any of its committees, other than its disciplinary
committee, may of its own motion or otherwise review any order, within sixty
days of the date of that order, passed by it under this Act.]
Power to give directions.
(1) For the proper and efficient discharge of the functions of a State Bar Council or
any Committee thereof, the Bar Council of India may, in the exercise of its powers
of general supervision and control, give such directions to the State Bar Council or
any committee thereof as may appear to it to be necessary, and the State Bar
Council or the committee shall comply with such directions. (2) Where a State Bar
Council is unable to perform its functions for any reason whatsoever, the Bar
Council of India may, without prejudice to the generality of the foregoing power,
give such directions to the ex officio member thereof as may appear to it to be
necessary, and such directions shall have effect, notwithstanding anything
contained in the rules made by the State Bar Council.]
General power of the Bar Council of India to make rules.
1. The Bar Council of India may make rules for discharging its functions under
this Act, and, in particular, such rules may prescribe.
a.a. the conditions subject to which an advocate may be entitled to vote at
an election to the State Bar Council including the qualifications or
disqualifications of voters, and the manner in which an electoral roll of
voters may be prepared and revised by a State Bar Council;
(ab) qualifications for membership of a Bar Council and the
disqualifications for such membership;
(ac) the time within which and the manner in which effect may be given to the
proviso to sub-section (2) of section (3);
(ad) the manner in which the name of any advocate may be prevented from
being entered in more than one State roll;

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 (ae) the manner in which the seniority among advocates may be determined;
(af) the minimum qualifications required for admission to a course of degree in
law in any recognised University;]
(ag) the class or category of persons entitled to be enrolled as advocates;
(ah) the conditions subject to which an advocate shall have the right to practise
and the circumstances under which a person shall be deemed to practise as an
advocate in a court;]
(ah) the conditions subject to which an advocate shall have the right to practise
and the circumstances under which a person shall be deemed to practise as an
advocate in a court;]
(b) the form in which an application shall be made for the transfer of the name
of an advocate from one State roll to another;
(c) the standard of professional conduct and etiquette to be observed by
advocates;
(d) the standards of legal education to be observed by universities in India and
the inspection of universities for that purpose;
(e) the foreign qualifications in law obtained by persons other than citizens of
India which shall be recognised for the purpose of admission as an advocate
under this Act;
(f) the procedure to be followed by the disciplinary committee of a State Bar
Council and by its own disciplinary committee;
(g) the restrictions in the matter of practice to which senior advocates shall be
subject;

Repeal of certain enactments.—

(1) On the date on which a State Bar Council is constituted under this Act, the
provisions of sections 3 to 7 (inclusive), sub-sections (1), (2) and (3) of section 9,
section 15 and section 20 of the Indian Bar Council Act, 1926 (38 of 1926), shall
stand repealed in the territory for which the State Bar Council is constituted.

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(2) On the Date on which Chapter III comes into force, the following shall stand
repealed, namely:—
(a) sections 6, 7, 18 and 37 of the Legal Practitioners Act, 1879 (18 of 1879), and
so much of sections 8, 9, 16, 17, 19 and 41 of that Act as relate to the admission
and enrolment of legal practitioners;
(b) sections 3, 4, and 6 of the Bombay Pleaders Act, 1920 (Bombay Act 17 of
1920);
(c) so much of section 8 of the Indian Bar Councils Act, 1926 (38 of 1926), as
relates to the admission and enrolment of legal practitioners;
(d) the provisions of the Letters Patent of any High Court and of any other law
insofar as they relate to the admission and enrolment of legal practitioners.
(3) On the date on which Chapter IV comes into force, the following shall stand
repealed, namely:—
(a) sections 4, 5, 10 and 20 of the Legal Practitioners Act, 1879 (18 of 1879), and
so much of sections 8, 9, 19 and 41 of that Act as confer on legal practitioners the
right to practise in any court or before any authority or person;
(b) sections 5, 7, 8, and 9 of the Bombay Pleaders Act, 1920 (Bombay Act 17 of
1920);
(c) section 14 of the Indian Bar Council Act, 1926 (38 of 1926), and so much of
sections 8 and 15 of that Act as confer on legal practitioners the right to practise
in any court or before any authority or person;
(d) the Supreme Court Advocates (Practice in High Courts) Act, 1951 (18 of
1951);
(e) the provisions of the Letters Patent of any High Court and of any other law
conferring on legal practitioners the right to practise in any court or before any
authority or person.
Rule of construction.—On and from the appointed day, references in any
enactment to an advocate enrolled by a High Court in any form of words shall be
construed as references to an advocate enrolled under this Act.

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Saving.—
Nothing in this Act shall be deemed to affect the power of the Supreme Court to
make rules under article 145 of the Constitution—
(a) for laying down the conditions subject to which a senior advocate shall be
entitled to practise in that Court;
(b) for determining the persons who shall be entitled to 1[act or plead] in that
Court.
1.10. Conclusion
The Indian legal profession has grown over a short period of less than 50 years to
become the world’s largest branch of the profession. Within India, it is one of the
most influential professions having an involvement in the governance of the
country. It sufficiently reflects the diversity of Indian society, its social hierarchies
and realities, and yet performs efficiently in delivering justice to litigants through
Courts, despite the massive pressures that Courts and legal institutions
function, given how unimaginably overburdened they always are.  The unitary
structure of the Indian bar comes across as a boon in this regard.

Due to globalization, the effects of the world economy are being felt, with foreign
law firms seeking entry into the Indian space and Indian law firms handling
transactions with global implications. At the same time, the core practise of law
still revolves around the courts in India, and the majority of the bar is involved in
practise before the courts. This produces a melting pot of ideas and opinions, and
the result is a bar which is evolving through reforms in legal education and ethics
and at the same time, is fortified by traditions that have stood the test of time. It
is inevitable that as the nature of legal services sought by the consumers of legal
service change, with the inevitabilities of liberalisation, the profession in India will
evolve and rise to the challenges that they raise. Continuing Legal Education (CLE)
initiatives will need to be fostered. There is no doubt that the legal profession in
India will always work closely with all stakeholders concerned to improve access

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to justice for all and help realise our Constitutional ideals for people from all walks
of life.

Chapter 2. BAR COUNCIL OF INDIA RULES

2.1 Introduction
The Bar Council of India is a statutory body that regulates and represents the
Indian bar. It was created by Parliament under the Advocates Act, 1961. It
prescribes standards of professional conduct, etiquettes and exercises disciplinary
jurisdiction over the bar. It also sets standards for legal education and grants
recognition to Universities whose degree in law will serve as a qualification for
students to enroll themselves as advocates upon graduation.
Section 4 of the Bar Council of India provides:
(1) There shall be a Bar Council for the territories to which this Act extends to be
known as the Bar Council of India which shall consist of the following members,
namely:– (a) the Attorney- General of India, ex officio; (b) the Solicitor- General of
India, ex officio; (c) one member elected by each State Bar Council from amongst
its members. Section 4(1-A) of the Act makes it clear that no person shall be
eligible for being elected as a member of the Bar Council of India unless he
possesses the qualifications specified in the proviso to sub- section (2) of section
3.

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 Provided that such person shall continue to carry on the duties of his office until
the Chairman or the Vice- Chairman, as the case may be, of the Council, elected
after the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977 ),
assumes charge of the office. Section 4(3) of the Act provides that the term of
office of a member of the Bar Council of India elected by the State Bar Council
shall-

(i) in the case of a member of a State Bar Council who holds office ex officio, be
two years from the date of his election 2 [or till he ceases to be a member of the
State Bar Council, whichever is earlier]; and (ii) in any other case, be for the
period for which he holds office as a member of the State Bar Council: (ii)
Provided that every such member shall continue to hold office as a member of the
Bar Council of India until his successor is elected.

Section 10-A of the Act provides that The Bar council of India shall meet at New
Delhi or at such other place as it may, for reasons to be recorded in writing,
determine. A State Bar Council shall meet at its headquarters or at such other
place as it may, for reasons to be recorded in writing, determine .The committees
other than disciplinary committees constituted by the Bar Councils shall meet at
the headquarters of the respective Bar councils. Every Bar Council and every
committee thereof except the disciplinary committees shall observe such rules of
procedure in regard to the transaction of business at their meetings as may be
prescribed. The disciplinary committees constituted under section 9 shall meet at
such times and places and shall observe such rules of procedure in regard to the
transaction of business at their meetings as may be prescribed.

Section 10-B of the Act provides that an elected member of a Bar Council shall be
deemed to have vacated his office if he is declared by the Bar Council of which he
is a member to have been absent without sufficient excuse from three
consecutive meetings of such Council, or if his name is, for any cause removed
from the roll of advocates or if he is otherwise disqualified under any rule made
by the Bar Council of India.

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Section 14 of the Act provides that no election of a member to a Bar Council shall
be called in question on the ground merely that due notice thereof has not been
given to any person entitled to vote thereat , if notice of the date has, not less
than thirty days before that date, been published in the Official Gazette.

2.2 History
After the Constitution of India was established on January 26, 1950, the Inter-
University Board passed a resolution emphasizing the need for an all-India Bar
and the importance of uniformly high standards for law examinations in different
Universities. In May 1950, the Madras Provincial Lawyers Conference, held under
the presidency of Shri S. Varadachariar, resolved that a committee appointed by
the Government of India should evolve a scheme for an all-India Bar and amend
the Indian Bar Councils Act such that it conforms to the new Constitution. On April
12, 1951, Shri Syed Mohammed Ahmad Kazmi, a Member of Parliament,
proposed a bill to amend the India Bar Councils Act. The Government of India
concluded that it was necessary for the Government to sponsor the Bill. In August
1951, a Committee of Inquiry was set up to consider the feasibility of a unified Bar
in India, the continuance or abolition of the dual system of counsel for each state,
possibility of a separate Bar Council for the Supreme Court and the revision of
enactments related to the legal profession.
2.3 Structure Of The Bar Council Of India
The Bar Council of India consists of 18 Members. The Attorney General of India
and the Solicitor General of India are Ex-officio Members of the council and the
other 16 Members represent the
16 State Bar Councils in the country. The Members are elected for a period of five
years and the Chairman and Vice -Chairman are elected for a period of two years
from among the Members of the Bar Council of India. The Bar Council further
consists of various committees viz., Legal Education Committee, Disciplinary
Committee, Executive Committee, Legal Aid Committee, Advocates Welfare Fund
Committee, Rules Committee and various other Committees formed to look into
specific issues arising from time to time.

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2.4 Functions Of Bar Council Of India
The Bar Council of India was established by Parliament under the Advocates Act,
1961. The following statutory functions under Section 7 cover the Bar Council’s
regulatory and representative mandate for the legal profession and legal
education in India:
1. To lay down standards of professional conduct and etiquette for advocates. 2.
To lay down procedure to be followed by its disciplinary committee and the
disciplinary committees of each State Bar Council. 3. To safeguard the rights,
privileges and interests of advocates. 4. To promote and support law reform. 5. To
deal with and dispose of any matter which may be referred to it by a State Bar
Council. 6. To promote legal education and to lay down standards of legal
education. This is done in consultation with the Universities in India imparting
legal education and the State Bar Councils. 7. To recognize Universities whose
degree in law shall be a qualification for enrolment as an advocate. The Bar
Council of India visits and inspects Universities, or directs the State Bar Councils to
visit and inspect Universities for this purpose. 8. To conduct seminars and talks on
legal topics by eminent jurists and publish journals and papers of legal interest. 9.
To organize legal aid to the poor. 10. To recognize on a reciprocal basis, the
foreign qualifications in law obtained outside India for the purpose of admission
as an advocate in India. 11. To manage and invest the funds of the Bar Council.
12. To provide for the election of its members who shall run the Bar Councils.
The Bar Council of India can also receive grants, donations, and gifts for any of
these purposes. With respect to the point 6, (stated above) the Supreme Court
has made it clear that the question of importing legal education is entrusted to
the Universities in India and not to the Bar Council of India. All that the Bar
Council can do is to suggest ways and means to promote suck legal education to
be imparted by the Universities and for that purpose it may lay down the
standards of education. Sections 7 do not entitle the Bar Council itself to frame
rules laying down pre-enrolment as Advocate.
In RaveendranathNaik v. Bar Council of India, the resolution passed by the Bar
Council of India
directing advocates not to participate in any programme organized by the Legal
Services Authorities in any LokAdalat or any legal aid programme has been held
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illegal and void. In Ex-Captain Harish Uppal v. Union of India, the court held that
section 7 provides in respect of the functions of the Bar Council of India, but none
of its functions mentioned in section 7 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 of strike or a call of boycott. In case any association calls for
a strike or boycott the concerned State Bar Council of India must immediately
take disciplinary action against the advocates who gives a call for a strike. It is the
duty of every advocate to ignore a call of strike or boycott.
2.5 Committees Of Bar Council Of India
The Bar Council of India has various committees that make recommendations to
the Council. The members of these committees are elected from amongst the
members of the Council. The Advocates Act mandates the creation of a
Disciplinary Committee (under section 9), a Legal Education Committee, and an
Executive Committee (under section 10). Chapter III of the Bar Council of India
Rules permit the Council to appoint from amongst its members, one or more
committees in addition to those specified in the Act. The Council can delegate
powers, duties, and functions to these committees. The term of the members of
the committees of the Council has been specified in Chapter III of the Bar Council
of India Rules. A different term can be specified at the time of election.
2.6 Legal Education Committee
The Legal Education Committee consists of five members of the Bar Council of
India and five coopted members to represent the judiciary, the Law Ministry, the
University Grants Commission, and academia. This committee makes
recommendations to the Bar Council of India on all matters pertaining to legal
education in the country. The committee elects its own Chairman.

The Legal Education Committee has the power:

• To make recommendations to the Council for laying down the standards of
legal education for Universities.
• To visit and inspect Universities and report the results to the Council.

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 • To recommend to the Council the conditions subject to which foreign
qualification in law obtained by persons other than citizens of India may be
recognised.
• To recommend to the Council for recognition of any degree in law of any
University in the territory of India.
• To recommend the discontinuance of recognition of any University already
made by the Council.
2.7 Disciplinary Committee
The disciplinary committee of the Bar Council of India hears applications for
revision by persons against summary dismissal of their complaints against
advocates for professional misconduct, by the State Bar Councils.
Appeals lie before the Bar Council of India against orders of the disciplinary
committees of the State Bar Councils. Every such appeal is heard by the
disciplinary committee of the Bar Council of India, which may pass an order,
including an order varying the punishment awarded by the disciplinary committee
of the State Bar Council.
Each disciplinary committee consists of three members. The term of the
members of this committee is three years.
2.8 EXECUTIVE COMMITTEE
The Executive Committee is the executive authority of the Council, and is
responsible for giving effect to the resolutions of the Council.
Members of the Executive Committee are elected from amongst the members of
the Bar Council of India. The committee elects its Chairman and Vice-chairman.
The Executive Committee has the power:
• To manage the funds of the Council, • To invest the funds of the Council in the
manner directed by the Council from time to time, • To grant leave to members
of the staff, other than casual leave, • To prescribe books of account, registers
and files for the proper management of the affairs of the Council, • To appoint
and supervise the work of the members of the staff and prescribe their conditions
of service • To appoint auditors and fix their remuneration, • To consider the

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annual audit report and place it before the Council with its comments for its
consideration, • To maintain a library and under the directions of the Council,
publish any journal, treatise or
pamphlets on legal subjects, • To prepare and place before the Council, the
annual administration report and the statement of account, • To provide for
proper annual inspection of the office and its registers, • To authorise the
Secretary to incur expenditure within prescribed limits, • To fix travelling and
other allowances to members of the committees of the Council, and to members
of the staff, • To delegate to the Chairman and/or the Vice-Chairman any of its
aforementioned powers, • To do all other things necessary for discharging the
aforesaid functions.
2.9 Conclusion
The Bar Council of India has a lot of functions vested within itself, whereby
exercising those functions it can restructure and reframe the entire legal arena in
the country. In fact, it can be more predominantly envisaged that in modern times
it has hardly contributed constructively in the improvement of law in India. There
are certain loopholes in the legal arena in India today which the Bar Council must
look into, in order to protect the law standard from degradation and to maintain
the same standards.

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 Chapter 3. BAR AND BANTCH RELATION
3.1 Introduction
The whole purpose of adjudication in our adversary system is for a party to
explicitly put his case across the table which will enable the opponent to respond
appropriately to that case he has fielded, and then the Judge, as an impartial
umpire will adjudicate on the issues in controversy. That and nothing more is the
epitome of what justice or fair trial is all about. But the persons playing different
roles in this due discharge of Justice is never regarded as equals in a judicial
proceedings. The Judges shall always be superiormost, officers of the court such
as persons appointed for examination, commission, receiver etc come next, the
prosecutor and the advocates are the intermediary, the Police and other
investigation and executing branch form the next group, the witnesses and those
who give evidence are regarded next, the petitioner respondent complainant etc
lower still, and the defendant respondent accused etc are the least regarded.
Persons appointed for examination, commission, receiver etc are usually
advocates. Thus Bar Bench Relations relate to the power equations between the
top most layers of the functionaries of the judicial process.

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3.2. Bar and Bench

The court hall where cases are conducted consists of two parts namely:
(i)                   The place where the judges sit is called as Bench
(ii)                  The place where the Advocate sit is called as Bar.
The term `Bench’ refers to the judges and the `Bar’ refers to the Advocates. Bar-
Bench relation means the cordial relation between the judges and the Advocates.
The faith on the judiciary to the general public and the speedy justice mainly
depends on the cordial relation between the judges and the Advocates and the
role of Advocates are equally important to the judges in the Administration of
justice. Rendering justice is their joint responsibility.

3.3. The Changing Bar and Bench

1. Broad purpose of Bench and Bar

The primary duty of Judges and the Advocates is to provide "Justice” according to
the law which has to be administered in the existing society. Justice, as embodied
in the law, has different contents and connotations. The functions of the Bench
and Bar, due to the somewhat differing basic concepts of justice seems different
in different States. These concepts have been produced and moulded by the
operations of complex and interconnected, constantly acting and counter-acting,
sets of factors in the course of our histories.
2. Shrunk and organically interlinked modern world
Distances have vanished in the various parts of the modern shrinking world.
Space time relationships have altered vastly. Speedy and easy communication
facilities have produced a uniformity in patterns of thinking, behaving, and living,
cutting across all barriers of political organisation and ideology, culture, race,
creed, and colour, resulting in a progressive development of uniform basic
notions of justice as well as common patterns of law in various parts of the world.
In this modern age of science, the problems of justice cannot be dogmatic.
3. Changing Concepts
Our concepts of Justice consist of the products of an interchange of shifting pulls
and forces. New moral values, ultimately translated into law, emerge in the
process. Our notions of Justice are relative and results of empirical knowledge of
what satisfies certain needs believed to be basic.
4. Sense of Dedication

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The spirit of consecration and dedication which impels human beings towards
what they believe to be 'Justice' certainly appears to be a part of the eternal and
the unchanging human nature. The urge to see justice done to others, viewed as
reflections and even as parts of one's own self, is often submerged by other
powerful drives and passions. The effort of the members of both the Bench and
the Bar will be to overcome the passions and prejudices which interfere with such
a disinterested pursuit of justice. Justice, in a sense, may be conceived of as an
eternal quest of every being who deserves to be called human.
5. The Specialist's approach
The quest of the Judge and of the Advocate must be dedicated to the pursuit of
justice and seeks it scientifically by employing ordered knowledge contained in
the form of law and by scientific and legal tools.
6. The Judge's Persona
The persona of the Judge today in India is the ability to detach themselves from
the pursuit of private gain and selfishness and rise above all pettiness, passions,
prejudices, obsessions and complexes and preserve an unruffled temper even
when faced with the most trying of situations. 7. What the Judge requires from
the Advocate
What the Judge requires from an Advocate is assistance in the performance of his
own role. The effectiveness and usefulness of an Advocate is determined by his
capacity to satisfy the needs of the Judge. It is impossible for an Advocate to give
that assistance unless he is equipped with required learning.
8. Power of Judge and Advocate over the Judicial Process
The power exercised by the Judge in India over the fate of a criminal or civil
litigation is really enormous. The power of the advocate is rather prodigious in
determining whether justice will hit or miss its mark. But Rules of professional
ethics and etiquette can be violated both by advocates and judges in India
without being properly punished.
9. A Source of Miscarriages of Justice
The best of institutions can be misused and human frailties cannot be entirely
eliminated anywhere and judicial proceedings is no exception. Bar and Bench
should be vigilant about that.
10. A Source of Legitimate Pride to Indian Citizens
Even though the present pronunciations of the Bench and the irresponsible
behavior of the advocates are very often subjected to public criticism, the People
of India have not started to disbelieve the judicial process in India. However

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Judiciary is now frequently using its contempt jurisdiction, as if fearing that it may
happen in near future.
11. The responsibility of the Constitutional role
The Constitution places a very heavy responsibility on the part of the Judges as
well as the Advocates who assist them, of propounding solutions which are in
harmony with "Justice: social, economic, and political." The "Judicial Process" in
our country includes the task of "Social Engineering too." Isolationism of Judges
from the rest of society invites the criticism that they live in "ivory towers”.  As
the officers of the Court, lawyers are expected to assist the Bench in
administering justice. They are expected to maintain respectful attitude, towards
the Bench keeping in mind that, the dignity of judicial office is essential for the
survival of the society.

3.4.  Legacy of Bar and Bench Relationship

1. The power relation in Courts

The conflict-co-operation relationship in between Bar and Bench cannot be
properly evaluated without going into its history. Before enactment of Advocates
Act, 1961, it was the Court itself which was giving licence and taking it away under
the Acts/Rules framed therefore.  The conduct and behaviour of lawyers were
under direct supervision of the Court.  During the freedom struggle, lawyers
played important part and they suffered much for their independent view against
the government policy and even courts did not recognise their right to dissent
with the government policy.  The colonial concept of the existence of lawyer is
best described in Mahant Hakumat Rai v. Emperor, the Lahore High Court AIR
1943 Lahore 14 which reads:  “Without failing in respect to Bench, it is the duty of
the members of the Bar to assert their just right to be heard by the Tribunal
before which they practising.  They should be fearless and independent in the
discharge of their duties, and would be perfectly right in protesting against
irregular procedure on the part of any judge; and if the advocate is improperly
checked or found fault with, he should vindicate the independence of the Bar.  He
would be perfectly justified in insisting on getting a proper hearing and he would
be perfectly right to object to any interruption with the course of his argument
such as to disturb him in doing his duty to his client.  Plenary powers vested in the
Presiding Officer of the Court, apart from the fact that they have rarely been used
against members of the legal profession so far, should only be used to vindicate
the honour of the court or to satisfy the necessities of public justice and not as a

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matter of course.”   The creation of courts and inner partitioning of the court’s
room with high pedestal for the seat of judges, lower sitting arrangement of
lawyers on chairs/benches, rear dock for the accused and similar small dock for
witness smacks the colonial values and not the constitutional values of equality
and human dignity.  
2. Strike by Lawyers
Strike by lawyers are normally not for gaining something for them from
governments or courts, rather it aims at either for dignity of the lawyers as a
class/individual or for some other cause deeply related to public justice, rule of
law and factors affecting public justice.   In Harish Uppal Ex. Captain v. Union of
India A.I.R. 2003 SC 739 Supreme Court held 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 by giving press statement.  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,
going on dharnas or relay facts etc.
3. Mutuality of Bar and Bench
Division Bench of Allahabad High Court in Yash Pal Singh v. State of U.P. and Ors
Writ Petition No. 1160 (S/B) of 2002 has held, “This institution can function best
when both Bar and Bench respect each other’s purpose and responsibilities. A Bar
functions best when its speech is untrammeled but guided by deep scholarship. A
counsel serves the institution best when knows that it is not his job to win cases
by all means but to assist the Court with all his mastery of facts and law. A Judge
serves the institution best when he does not fear to hear but does not decide out
of fear, when he fears with compassion, but does not decide out of favour.”

3.5. Role of the Bar to Strengthen Bar-Bench Relation

To strengthen the Bar-Bench relation, an Advocates must take the following

steps.
1.         They should give  due respect to the judges and they must avoid speaking
ill of the judges and the judiciary.
2.         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 away
to irritate the judges.
3.         If the judges pronounces a wrong order, they should not criticize the
judges. They should try to set right the wrong order through appeal.

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4.         For getting favourable order they should not give pressure or influence the
judges.
5.         If the judges behavior is irritating and disrespect to the Advocates should
not enter in to 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 misbehavior.

3.6. Role of the Bench to Strengthen Bar –Bench Relation

To strengthen Bar-Bench relation the Judges should follow and practice the
following.
1. Judicial  Respect: Just like the Advocates are giving respect to the Judges the
Judges should also give respect to the Advocates and the brethren Judges.
2. Patient Hearing: Judges should hear the case with open and respective mind
without any prejudice or bias. They should act only to the interest of justice. They
should give sufficient opportunity for the Advocates to present the case in full.
3. Impartiality: Judges should act impartially. They should not act in favour  of any
Advocate or a party to the dispute.
4. Avoidance  of Interruptions:  As far a 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 he may not be able to present the case properly. Interference of a Judge
may be limited to the following circumstances
(i) to prevent repetition and waste of time
(ii) to check the relevancy
(iii) to get clarifications
(iv) to express courts view on a point and
(v) to promote speedy disposal of the case.
5. Proper  Interpretation: During the process of administration of justice, often
the courts have to interpret the Act, Rules, Codes, Regulations, Orders,
Notifications, Circulars, Byelaws etc. in order to ascertain the actual meaning of
the provisions or  to remove the ambiguity or inconsistency. In such cases proper
interpretation should be given with the object of rendering complete justice to
the parties.
6. Avoidance of Unreasonable Adjournments: Adjournments are given to afford
reasonable opportunity to the parties to present the case. As far as possible cases
shall not be adjourned without reasonable and sufficient grounds. Unreasonable

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adjournment is the main reason for the mounting arrears of cases causing
hardship to the parties.
7. Speedy  Disposal: `Justice delayed is justice denied’, hence cases should be
disposed off as quickly as possible. When preference is given for disposal of old
cases, new cases should not get into arrears.
8. Avoiding  Unwarranted comments: Judges should not make any unwarranted
comments in the open court about the Advocate’s lack of knowledge in 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.
9. Knowing in Law: Judges should possess deep knowledge in law. They should
have the ability to apply the proper law to the disputed facts and to take the right
decision.
10. Independence: Judges have the primary responsibility to protect and preserve
the independence of judiciary.
11. Integrity: A Judge should be honest and morally upright. He should have
personal and intellectual integrity. His character and conduct should be praise
worthy.
12. 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.
13. Meeting  of Judges and Lawyers: To strengthen Bar-Bench relation, at regular
intervals meeting of judges and the Advocates shall be arranged. In such meetings
the respective sides difficulties can be discussed and the differences can be sorted
out.

3.7. Legal Duties of an advocate to the Court

Bar Council of India Rules, 1975 Part V, Chapter II Standards of Professional

Conduct and Etiquette imposes many duties on the Advocates, a few among
which are reproduced below.
Duty to the Court (Rule 1-10)
In the administration of the justice, the role of the advocate is to help the court to
take a right decision in the dispute.
1. An Advocate shall show the due respect to the court and shall never act in any
manner to undermine the confidence in the judiciary.

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2. He shall not exert or attempt to exert any personal influence on the decision of
the court, nor shall give any impression that he possesses personal influence with
the judge before whom he normally practices.
3. He shall be always punctual in attending courts in the prescribed dress.
4. He shall be fair and frank in the court proceedings.
5. He shall not include any fact which he knows to be false in the pleadings,
petitions or affidavits.
6. He shall not ask for any adjournment of a case without genuine reasons.
7. He shall not communicate privately with the judges to influence them relating
to any pending case.
8. He shall not speak ill of judges or use abusive remarks about them. But, if the
judge behaves improperly, it is not only the right but also his duty to report it to
the proper authorities.
9. He shall not interrupt when the counsel for the otherside or the judge is
speaking.
10. He shall appear in the court in the prescribed dress and his appearances shall
always be presentable. He shall not wear bands or gown in the public places.
11. He shall not practice before a judge if he is related to him.
12. He shall not act or plead in any matter in which he has pecuniary (monetary)
interest.
13. He shall not appear for any organization, institution, society or corporation if
he is the member of the executive committee of such organization, institution,
society or corporation.

3.8. Conclusion
The Colonial Institution of Judicial Courts have not completely evolved into a
democratic constitutional set up. Thus it is evident that the values and thus
relationships between the Bar and the Bench have not fully evolved as equally
responsibly functionaries for the due discharge of legal justice. What the time
being in force requires is a cordial and mutually respected Bar and Bench with the
high aspirations of the welfare of the people and the furtherance of the statutory,
fundamental and human rights of the aggrieved individuals, citizens and other
persons.
During the course of the interaction between the Bar and the Bench, they should
not forget their own long lasting dignity as well as the dignity of the least man
whom you can imagine. Our Father of the Nation was also an advocate and his

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vision was so. He too was both respected and tried for contempt by the Judges of
then Indian Judiciary.

Chapter 4. Concept of Court Act 1971

4.1 Introduction
Contempt of court is the offense of being disobedient to a court . Being impudent
to legal authorities in the courtroom, or willfully failing to obey a court order may
attract Contempt of Court proceedings. A judge may impose punishment such as
a fine or jail for someone found guilty of contempt of court. Any act that makes
the authority and administration of Law contempt or discount or to impede with
or prejudice parties or their witnesses during lawsuit. 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
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fair trial of any cause or matter which is the subject of Civil or Criminal proceeding
or in any way to barricade the cause of Justice. The Common has divided
contempt of court into 2 categories - civil and criminal. We will elucidate them in
more detail below and in later chapters, but in the simplest terms civil contempt
is committed when an order of the court made in civil proceedings is disobeyed.
More often than not its procedures are invoked by a party in whose favour an
order has been made who wants to see it enforced. The term criminal contempt
is executed to all other contempt, but more often than not those are contempt,
which somehow impede with the administration of justice in a more general way
i.e. disrupting court proceedings, , or insulting a Judge. At times the dividing line
between the two forms of contempt becomes hazy.
4.2 Object of the Act:
To define and limit the powers of certain courts in punishing contempt of courts
and to uphold the majesty and dignity of law courts and their image in the minds
of the public is no way whittled down.
Contempt of court " - Civil Contempt or Criminal Contempt.
Civil contempt
“- wilful disobedience to any judgment, decree, order, writ or other process of a
court
Criminal contempt " - publication (whether by words. Spoken or written, or by
signs, or by visible representations, or otherwise) of any matter or the doing of
any other act whatsoever which- (i) Scandalizes or lowers or tends to lower the
authority of, any court ; or (ii) Prejudices, or impede or tends to interfere with,
the due course of any judicial proceeding; or (iii) Interferes or obstructs or tends
to obstruct, the administration of justice in any other manner;
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, in respect of contempt of courts subordinate to 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 Power of High Court to try offences committed or offenders found
outside jurisdiction.
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4.3 Punishment for contempt of court
(1) 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 the accused may be discharged or the
punishment which was awarded may be remitted on apology being made by the
person. Explanation.-An apology shall not be rejected merely on the ground that
it is qualified or conditional if the accused makes it bona fide. [Sec.12] to it where
such contempt is punishable
4.4 Essentials Of Civil Contempt Of Court
1. The making of a valid court order, 2. Knowledge of the order by
respondent, 3. Ability of the respondent to render Compliance, and 4.
Wilful disobedience of the order
Cognizance of criminal contempt in other cases
1) In the case of a criminal contempt, other than contempt referred to in
section 14, the Supreme Court or the High Court may take action on its own
motion or on a motion made by- (a) The Advocate-General, or (b) Any other
person, with the consent in writing of the Advocate General (2) 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 or 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.
Procedure after cognizance:
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
CRIMINAL CONTEMPT
The law of criminal contempt is there to protect and keep clean the
administration of justice. It may be committed in the face of the court (broadly
speaking words spoken or acts done in or in the confines of a court, which
obstruct or interfere with the due administration of justice or are calculated so
to do) or outside the court (in general terms, words spoken or otherwise

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 published, or acts done, outside the court which are anticipated or likely to
interfere with or Hinder the due administration of justice). Set out below are
some examples of conduct which might be said to fall within this category –

(a) conduct in the face of the court such as committing an assault, insulting the
court by language or manner, interrupting the proceedings, photography or
sketches of the judge, jurors, parties or witnesses, refusing to be sworn or
to give evidence or to answer a lawful question as a witness, misbehaviour
by a juror; (b) conduct outside the court, such as disgrace of the court by
words written or spoken, publishing words written or spoken calculated to
prejudice the due course of justice, doing any act (before, during or after
the proceedings) calculated to prejudice the due course of justice,
interfering with receivers or with property under arrest in certain actions,
interfering with wards of court, impeding the service of process or forgoing
or altering the process of the court, disobedience to a witness summons,
acting as a solicitor when not qualified. “Several traditional forms of
criminal contempt in the face of the court have been codified and are
punishable by the appropriate courts”. The following are some examples -
(a) the High Court or a District Court can punish a person summarily for
contempt of court up to a maximum of two years' imprisonment (i) if a
person disobeys a witness summons or order to attend court (ii) if a person
refuses to give evidence or be sworn when required 10 (b) a magistrates'
court may summarily impose a sentence of up to$2,000 fine or 2 months'
imprisonment on a person who behaves in an insulting manner or uses any
threatening .
CIVIL CONTEMPT
Conceivably the most prime role of civil contempt procedures is to supply the
necessary sanction when all else fails to secure compliance with orders of the
court. Individuals can be sent to prison, corporate bodies can be punished by fine
and confiscation of assets, or by the committal of their directors or other officers.
The following are examples of conduct which has been held to be a civil contempt
of court - (a) Failure to carry out an undertaking given to the court; (b) subject to
certain restrictions, disobedience to a judgment or order for the payment of

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money within a specified period; (c) Disobedience to an order for the payment of
money into court in time;
(d) Failing to obey a judgment or order to do or abstain from doing an act within a
specified time; (e) Failure to obey an order for interrogatories, inspection or
discovery. Courts with contempt jurisdiction: The powers of the High Court and
the Court of Appeal, as superior courts of record, to commit for all forms of
contempt of court are now regulated by 0.52 of the Rules of the Supreme Court.
A successful application will result in the offender being seized under the order of
the court by a court official and taken to prison. The courts' inherent powers are
expressly reserved by Order 52 Rule 9 and so there is jurisdiction to fine or take
security for good behaviour or instead of committing, to grant an injunction
against repetition of the contemptuous conduct. The assets of a company may be
sequestrated. The Court has power to suspend the execution of the order for
committal on terms and may at any time on the application of the person
committed, order his discharge.
4.5 Misbehavior act in court:
It is universally accepted that Courts of law must possess adequate powers to
check and prevent misbehaviour during judicial proceedings so that an
atmosphere conducive to the orderly administration of justice is maintained. As
Chapter III of the Report has shown the legislature has granted the courts at
different levels wide powers to punish for contempt committed in their face.
Where a contempt amounts also to a criminal offence such as assault (in a recent
case an angry defendant threw one of his shoes at the presiding magistrate) the
offender will normally be tried in the usual way before another magistrate and
there will be nothing extraordinary about the procedure. But misbehaviour in
court which interrupts the proceedings will often be dealt with by the summary
procedure and it is here that the Court’s powers are seen by some to be arbitrary
in that the Judge, as it were, frames the charge, initiates and conducts the
prosecution and fixes the penalty. A warning, a reprimand or, in suitable cases,
the removal of the offender from court, will often suffice to restore order and
allow the case to proceed. However, the apparent harshness of the summary
procedure has been reduced by the vigilance of the superior courts, so that the
offender must be told the precise nature of the alleged contempt and given a full

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chance of defending himself. We think that the following passage from the
judgment of Lord Denning in Balogh v. Crown Court11 aptly summarises the
modern approach to the exercise of summary powers - "This power of summary
punishment is a great power. It is given to maintain the dignity and authority of
the judge to ensure a fair trial. It is to be exercised by the judge of his own motion
only when it is imperative to act immediately - so as to maintain the authority if
the court - to prevent disorder - to enable witnesses to be free from fear - and
jurors from being improperly influenced - and the like. It is, of course, to be
exercised with scrupulous care, and only when the case is clear and beyond
reasonable doubt. But properly exercised, it is a power of the utmost importance
which should not be curtailed."
4.6 The summary procedure:
There are indeed powerful arguments for the retention of the summary
procedure to punish contempt in the face of the court. The presiding judge must
be able to deal with a disruption of the proceedings quickly and effectively so that
the hearing can continue. The facts will rarely be seriously in dispute and the
judge who has seen and heard what has happened will be in as good a position as
another judge to determine guilt and decide the right penalty. He will moreover
be better able to place the behaviour complained of in its proper context. The
deterrent factor must also be borne in mind. The threat of an immediate sanction
is more likely to be effective than that of postponed proceedings elsewhere. We
entertain no doubt that the power to deal with a contempt committed in its face
is one that a court must of necessity continue to possess. There will be examples
of conduct which need to be restrained and punished at once if the machinery of
justice is to function properly. However we consider that the interests of justice
demand that the growing current practice of using summary powers only when it
is a matter of urgency and it is imperative to act immediately, be reflected in
legislation. It seems to us that for justice to be seen to be done, the ordinary
process should be the rule and the summary procedure the exception. We are
also of the opinion that the steps invariably taken by a judge to safeguard the
interests of an offender when the summary procedure is invoked should be
similarly codified .

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Proposals for reform: We believe it to be unsatisfactory that misbehaviour in
court is dealt with, as it is at present, in different Ordinances with varying
definitions and penalties. To cover the worst cases, the maximum penalty, we
feel, ought to be a fine of $50,000 or 2 years' imprisonment in the High Court or
the Court of Appeal. Where the contempt is committed in the District Court, we
think that a maximum of a fine of $20,000 or 1 years imprisonment would be
adequate. We also think that a magistrates' court or a tribunal with power to
punish for contempt should have power to impose a maximum penalty of a fine
of $5,000 or 3 months' imprisonment. The following offences now scattered in
different Ordinances should be included in the new Ordinance - (i) Disobeying a
summons or order to appear as a witness; (ii) Refusing to give evidence, or to
answer lawful questions, or to be sworn, when required; (iii) Failing to attend as a
juror or absenting oneself without leave. In this area of the law of contempt in the
face of the court, the legislation we envisage would - (a) Create the offence (b)
provide that the judge or magistrate presiding at the proceedings in which the
offence was committed shall remand the offender in custody or on bail for trial in
the usual way before another court. (c) Provide that where the offence is dealt
with summarily by the presiding judge or magistrate before whom it was
committed, the judge or magistrate should. (i) Reduce the charge into writing and
ask the offender to show cause why he should not be punished for contempt. (ii)
Except where official shorthand-writers are present, take a full note of the
proceedings; (iii) Where an offender is punished for contempt, inform him of his
right of appeal; (iv) Have power to review an order of committal on his own
motion or on application and order the discharge from custody of the offender.
4.7. Conclusion
Contempt of Court common and in general refers to the conduct that disobeys
disrespects or insults the authority or dignity of a court. Often, contempt takes
the form of actions that are seen as damaging to the court's ability to administer
justice. Judges typically have much discretion in deciding whom to hold in
contempt and the type of contempt. Those held in contempt can include parties
to a proceeding, attorneys, witnesses, jurors, people in or around a proceeding,
and officers or staff of the court itself. There are two types of contempt of court:
criminal contempt and civil contempt. Civil contempt often involves the failure of
someone to comply with a court order. Judges use civil contempt sanctions to

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pressurize such a person into complying with a court order the person has
violated. Criminal contempt charges, on the other hand are punitive, meaning
they serve to discourage future acts of contempt by punishing the offender no
matter what happens in the core proceeding. Someone imprisoned for criminal
contempt cannot secure their own release by deciding to comply with the Court.
Judges use various factors when deciding, whether to clutch someone in civil or
criminal contempt, including the nature of the underlying court pre-court
proceeding (criminal or civil) and the sternness of the contemnor's behavior.

Chapter 5. BIBLIOGRAPHY
Prescribed Books and Web Site

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 1. Krishnaswami Iyer’s Professional Conduct and Advocacy (1945), available at
https://archive.org/details/professionalcond029273mbp
2. GCV Subba Rao, Commentary on Contempt of Courts Act 1971 (2014) Ranadhir
Kumar De, Contempt of Court Law & Practice (2012) Wadhwa Book Company
Francis L. Wellman, The Art of Cross Examination, available at
http://www.delhihighcourt.nic.in/library/articles/the%20art%20of%20cross
%20examination[1].pdf
3. Suggested Readings: Justice Mirza Hameedullah Beg, Role of the Bench and the
Bar, available at
http://www.allahabadhighcourt.in/event/RoleoftheBenchandtheBarMHBeg.pdf
4. J.W. Smyth Q.C, The Art of Cross Examination (1961), available at
http://www.allahabadhighcourt.in/event/RoleoftheBenchandtheBarMHBeg.pdf
5. Champ S. Andrews, The Law A Business or a Profession (1908), available at
https://www.jstor.org/stable/pdf/784941.pdf
6. Ben W. Heineman, Jr., William F. Lee, David B. Wilkins, Lawyers as
Professionals and as Citizens: Key Roles and Responsibilities in the 21st Century
(2014) available at https://clp.law.harvard.edu/assets/Professionalism-Project-
Essay_11.20.14.pdf

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