29/07

We have discussed rights of advocates yesterday –

6 rights of advocates, some of rights mentioned under advocates rights and one right under
evidnece act and CPC.
1. Right to pre audience – this is very imp as it talks about duties of other advocates –
heirrachial manner – under section 23 of advocates act

Right of pre-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 [(3A) Subject to the provisions of sub-sections (1), (2) and (3), the second
Additional Solicitor-General of India shall have pre-audience over all other advocates.] (4)
Subject to the provisions of sub-sections (1), 5 [(2), (3) and (3A)], the Advocate-General of
any State shall have pre-audience over all other advocates, and the right of pre-audience
among Advocates-General inter se shall be determined by their respective seniority. (5)
Subject as aforesaid— (i) senior advocates shall have pre-audience over other advocates,
and 1. Subs. by Act 60 of 1973, s. 15, for section 20 (w.e.f. 31-1-1974). 2. Subs. by s. 16, ibid.,
for sub-section (2) (w.e.f. 31-1- 1974). 3. Subs. by s. 17, ibid., for section 22 (w.e.f. 31-1-
1974). 4. Ins. by Act 47 of 1980, s. 3 (w.e.f. 29-11-1980). 5. Subs. by s. 3, ibid., for “(2) and
(3)” (w.e.f. 29-11-1980). 16 (ii) the right of pre-audience of senior advocates inter se and
other advocates inter se shall be determined by their respective seniority.

When two people enrolled at same time – when one person is senior he gets rights of pre
audience. Heirarchy system is given under section itself. Either by enrolment date or by the
age.

Pre audience is right to be heard, senior advocate sepaks first before others. Thus it is
the heirachy that decides first preffered hearing before others. Thus advocate who is senior
is given chance to present case. Thus person is heard – attorney general has pre audience
over all other advocates. He will first present the case which is then followed.

Seniority is very imp for advoctaes – if person is enrolled prior.

This is the first right given under section 23.

2. Right to practice the profession – there are two kind of protection given to practising
advocates. There are two kind of areas – first one is under general protection and specifc
protection, thus there are two category – general nad specifc category

General category is under constitution – article 19 (1) (g). spefic protection under sec 30.

Right of advocates to practise.―Subject to the provisions of this Act, every advocate whose name is
entered in the 3 [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.

Includes right to [practice in any court.

 3 – sec 30 –right to enter in any court.

4. Right against arrest – given under 135 of cpc. Which states that an advocate cant be
arrested under any circumstances.

Thus see sec 135 of the act.

Section 135 CPC Description

(1) No Judge, Magistrate or other judicial officer shall be liable to arrest under civil
process while going to, presiding in, or returning from his Court.

(2) Where any matter is pending before a tribunal having jurisdiction therein, or
believing in good faith that it has such jurisdiction, the parties thereto, their pleader,
mukhtars, revenue-agents and recognized agents, and their witnesses acting in
obedience to a summons, shall be exempt from arrest under civil process other than
process issued by such tribunal for contempt of Court while going to or attending
such tribunal for the purpose of such matter, and while returning from such tribunal.

(3) Nothing in sub-section (2) shall enable a judgment-debtor to claim exemption

from arrest under an Order for immediate execution or where such judgment-debtor
attends to show cause why he should not be committed to person in execution of a
decree.

Next – right to meet accused - accused is the main person against whom charges are there – to
understand it better – it is necessary for an advocate to meet the accused – there is privelege to
meet accused wherever he wants to meet. Time slot is limited.

Last right – privilege to a lawyer – to secure privacy of communication –

In India, Sections 126 to 129 of the Act deal with privileged communication that is attached
to professional communication between a legal adviser and the client.

Section 126 of the Act provides the scope of privilege attached to professional
communications in an attorney-client setting. It restricts attorneys from disclosing any
communications exchanged with the client and stating the contents or conditions of
documents in possession of the legal advisor in course of and for the latter's employment
with the client.

Thus there are two categories – one is comptent witness and compellable
[10] A witness is competent if he or she may lawfully give evidence. Generally,
everyone is presumed to be a competent and compellable witness. A compellable
witness is one who is competent and in addition can be forced to testify under
the pain of punishment in terms of section 189 of the Act.

Lawyer and client discuss all facts of case, if client leaves adivcate and hires another, now can
previous advocate act as witness against client.

Eligibility of competent witness – see this.

S. 118 provides: All persons shall be competent to testify unless the court

considers that they are prevented from understanding the questions put to them, or from
giving rational answers to those questions, by tender years, extreme old age, disease,
whether of body or mind, or any other cause of the same kind.
Thus the previous adviocate is comptent witness, second question is about compellabity –
he cant be compelled to answer because of fiduciary relation – court cant compel the
previous advocate, if it is a threat to nation then advocate has to disclose the fact.
It is very imp as it ethically it dpedns on consciousness – how exactly ethics work for lawyers
as lawyer represent cases – kasab case – lawyer had to protect him.

Other rights with advocates such as – right of fee- rule 11 of abr council of india rule –

Anr right – right wrt to vakalatnama. When a vakalatnama gets signed, he is entitled to represent the
client to the particular case. He has right to file a memorandum – thus there are certain rights with
advocates.

Rights are over now.

Conduct of advocates –chapter 5 – section 35 – how a person has to manage himself in court of law
– [punishment of advocates or misconduct – what maounts to misconduct – discussed under section
35.

Sec 35

35. 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. 3 [(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 and direct the inquiry
to be made by any other disciplinary committee of that State Bar Council.] (2) The disciplinary
committee of a State Bar Council 4 *** 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 under clause (c) of sub-
section (3), he shall, during the period of suspension, be debarred from practising in any court or
before any authority or person in India. (5) Where any notice is issued to the Advocate-General
under sub-section (2), the Advocate-General may appear before the disciplinary committee of the
State Bar Council either in person or through any advocate appearing on his behalf. 5
[Explanation.―In this section, 3 [section 37 and section 38], the expressions “Advocate-General” and
“Advocate-General of the State” shall, in relation to the Union territory of Delhi, mean the Additional
Solicitor General of India.]

How many members are there in disciplinary committee –

Disciplinary committees.―(1) A Bar Council shall constitute one or more disciplinary committees,
each of which shall consist of three persons of whom two shall be persons elected by the Council
from amongst its members and the other shall be a person co-opted by the Council from amongst
advocates who possess the qualifications specified in the proviso to sub-section (2) of section 3
and who are not members of the Council, and the senior-most advocate amongst the members of a
disciplinary committee shall be the Chairman thereof.

Two gorunds of misconduct – by suo moto or by complaint.

35. 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. 3 [(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 and direct the inquiry
to be made by any other disciplinary committee of that State Bar Council.]

Wrt misconduct – two things are imp – one section before 2011 it was inactive , after 2011 it became
imp , and see case on it – write a brief note on that, and see the misconduct – what is meaning of
misconduct in sec 35.

30/07

What is meant by misconduct – intentionally misbehaving. Misconduct is an intentional act.

professional misconduct is not defined anywhere in the advocates act. thus it does not give
definition of misconduct, have to see advocates act.

professional misconduct by advocate? Professional ethics talks about conduct of advocate – how
do they conduct themselves in court and outside. Thus even though it is very imp, it is not defined in
the act. some of provision in the act gives boundaries as to what advocates must do and ought not
to do – sec 49(1)© of advicates act. - (c) the standards of professional conduct and etiquette to be
observed by advocates; - if any person goes against those rules by power under sec 49(1)© -
advoatces have to follow this.

Lawyers and advocates must follow some rules- bci rule 3, 1961 , advocates cant influcne court
judgement, bribery etc. these are some of the important things present in the advoctaes act.

when you talk about conduct of advocate, to define misconduct, it is not defined but in very normal
sense, it basically amounts to an act commited intnetnional by those poepe who are in profession
with wrong intent for selfish interest/ends.includes any action which goes against professional
ethics.
Thus there is professional misconduct if conflict between profession and action. If act is against
professional interest conflict arises and person becomes ineligible, thus it is intentional act of person
which basically disqualifies a person from being a professional advocate or from practising in a
particular area.

Thus it is conflict between act and rules. Even though not mentioned in advocated act but certain
things included as misconduct depends – not coming on time.

There is no straight jacket list but there are some acts – not exhaustive.

In black’s dictionary misconduct is described as transgression of some ? and definite rule of action
prohibited act, dereliction of duty, unlawful behaviour, inappropriate or incorrect behaviour,
misdemeanour, imporperity , mismanagement, offense but does not include negligenge or
carelessness.

A famous person Cardozo – “lawyers life is no life of positered ease to which you deductae your life,
it is life that touches your fellowmen of every angle , a life that you must live in crowd, yet apart
from it. Thus there is high dignity to lawyers’ profession.

Cases of high conduct of lawyers – as high position in society – shambuhram Yadav v hanuman das
Khatri – AIR 2001 SC 25109 – held that credibility and repute of profession depends upon manner
advocates conduct themselves. Also stated that relationship between lawyer and client is of trust
and mutual confidence/fiduciary relation. Imp to maintain dignity and trust. Society and public are
interest and hence lawyer owes duty to society and court and not encourage dishonesty and
corruption. In this case appellant filed complaint – so the advocate wrote a letter that the concerned
judge accepted bribe and asked for money to get favourable judgement – person filed compliant
against advocate – comm said such act makes advocate punishable for misconduct as law is a noble
profession – cant do such act. There is no staright jacket formula for misconduct.

Anr case – dp chadda v trugi naresh chadda air 2001 sc 457. Court observed that advocate owes a
duty to his client, and to his opponent and to the court and society at large and to himself. (5
categories). Sc is duty bound to state the correct psoiton of law when it is undisputed even if it does
not favour his client. (clash between duty and honesty) – this is conflict of interest – necessary for
society to disclose. While an advocate is free to try to the best of his ability to use wit to persuade
the court to a view of the law which best serves his clients. He can’t mislead the court on a settled
position of law.

Thus keep balance between society and court. Thus lawyer has a very unique position in society.

Sc held that society and public are interested in due administration of justice hence lawyer owes a
duty to society and the court and he is not supposed to encourage dishonesty and corruption. Hence
there is very imp and unquie psoiton of lawyer in society and justice.

Society expects highest standards from lawyers – has to maintain high standard and conduct in
society.

Nauratmal chaursai v mr murali – sc held that misconduct was not specified in advoctaes act but
msidocnduct envisages violation of discipline, although it will not be possible to set out exhaustively
as to what would constitute misconduct and indiscpilne which however is broad enough to include
wrongful omission or commission whetehr done or omitted to be done intentionally or
unintentionally.
Sc also studied extent of misconduct under sec 35 and held that lawyers are obliged to observe
norms of behaviour which makes him worthy of such status.

In re tulsidas amanal karim court said that any behaviour which in any way renders unfit for the
exercise of his profession or is likely to influenceor embarass the adminsitartion of justice by the
high court or any other subooridnate court is regarded as misconduct.

After this case – two test laid dwn – first the conduct of the advocate is such that in order to remain
a meber of honourable profession he must be treated as unworthy , second lawyers conduct is such
that it is deemed unfit to be entrusted with the respobile duties which the lawyer is called upon to
perform.

Anr case – satte of Punjab v ram singh, sc stated that misconduct is deifned as unlawful behaviour or
neglect by public officer by which rights of aprties have been affected.

In tanuja rajan v state of tamil nadu – lawyers used abusive language here. Sc stated, if act of
advocate goes unnoticed it is considered as misconduct – abusive language by lawyers – the lawyers
were not allowed to do their work – giving wrong message to public otherwise.

Sections for tomorrow – sec 35 – punishment of advocate for misconduct, sec 41 – alteration in role
of advocates, sec 44, sec 36b.

Two three cases along with sections.

In next class see sections.

3 – 08 – 2021

Misconduct is not defined anywhere – definition is not exhaustive – misconduct not done in way it is
ought to be done – sec 35 is very imp – maam gave case laws – acts done by advocates court held
those consitiute misconduct – doc not submitted by lawyers.

Sec 35 allows case to be refferd to disciplanry comm and then the attorney general of state sends a
notice and passes an order which includes dismissal of complaint or reprimand lawyer (all this is
given under sec 35).

Chapter 2 and 6 of the bar council of india rules 1975 – whoich must be adopted as guide for all
advpocates in conudting matters related to law – thus some of the duties – ch 2 and 6 of bci rules –
the advocates owes duty not towards client but towards court , society – where conscious does not
allow him to speak lie.

What is advocate duty towards court?

1. Duty to act in repsctful attitude

2. Duty to act in dignified manner and appear in proper dress code.
3. Combing of the hair which judges point upon.
4. Wearing particular uniform
5. Duty of advocates to not influence by imporer or illegal means, advocates not appear in
matter where pecuniary interest, refuse to appear in same court, not to conduct prosecution
in such a manner – they know the rules and must not conduct prosecution to secure
porsecution – there are other duties as well.
Duty towards client -
1. Maintain confidentiality – as fiduciary duty
2. To not to go against the cleint’s interest
3. As adivcate agree to appear – first duty is to not ordinarily withdraw from the case. He
cant remove from case without giving valid reason as not possible that he may
continue , he msut serve resaonalbe time of notice.
4. Advocate must not disclose communication – maintain confidentiality
5. Not to appear in a case where he himself is a witness.
6. Duty of advocate to give best legal advice and not take matter of opposite party
7. Duty to diligently handle the matter of client.

Duty towards opponent –

1. Not to negotiate except thorugh an advocate

2. Not to mislead opponent regarding any point in case
3. Not to communicate or negotitate with any party expect through that advocate and
duty of advocate to do his best to carry out his best.
4. Summary of misdocnut – any condcit which renders a man unfit or hampers justice.

Justice Krishna iyer – bar council of maharshtra v mb dabholkar – air 1976 242 -
here j krihna iyer stated that vital role of lawyer dpends upon his commity and
professional lifestyle , the central fucntuion of legal profession is to promote the
administration of justice as monopoly to legal profession has been statutorily
granted by nation, it obligates the lawyer to observe those norms which make him
worthy of confidence of community in him as a vehicle of social justice.
Law is not trade briefs, nor merchandise, legal profession is monopolistic in
character and monopoly itself has certain high tradition which its members are
expected to upkeep and uphold as misconduct is not been defined, meaning in
common parlance would guide its meaning, the term ahs to be examined with lense
of deceny , propeoty , worthy living and fitness of person to be on rolls of an
advocate.
Thus in law, misconduct is an act done with wrongful intetn and unprofessional acts
even though such acts are not inherently wrongful.

Sec 35 – bar council has obligation to see if there is reason to beileive of advocate is
guility of unprofessional act.
See sec 35 first line - 35. 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.
Imp that prior to referring the case, the bar council must ensure that there is
reasonable ground against advocate on roll – reasonable gorund to beileive the
same where misdocut happened.
One case where sc said on recpeit of complaint bc must apply its mind if reason to
beilive that advocate is guility of profession or misocut – nadlal v bar council of guj
air 1981 sc 477. Anr case - pc chaturvedi v bar council of up – where bc should act
under sec 35 has material where conclusion – quasi judicial proceeding begin. The
bar council before it could act under sec 35 should have befire it the material with
which some certainity leads to the conclusion that misconduct was actually
committed.
Bar council perfoms an admin function when expressing power under sec 35 when
matter goes to the discpilanry committee , then quasi judiciary proceedings begin.

Bhupinder kumar sharma v bar asscoation of poathan court – air 2002 sc 47 – sc said
that charge of professional misconduct should be supported by and based on cogent
and convincing evidence, judged by the standard req to establish misconduct as
required to prove a charge in a quasi criminal case beyonf reasonable doubt. Hence
allegation of misdocut must be proved beyond reasonable doubt if proved that
person is guilty of misconduct.

4-08-2021
Professional misconduct definition is not exhaustive – 5 to 6 kinds of misconduct but
if the conduct of the profession allows it amounts to misconduct.

What amounts to misconduct –

Professional misconduct – two things – one is reason to believe by bar council then
it passes to the disciplinary committee – prima facie evidence which says evidence of
misconduct – what is nature of proceeding or standard of proof required is beyond
reasonable doubt. Case law of bhupinder kumar sharma where judges stated it is
beyond reasonable doubt
Anr case – baldev singh dhingra v madan lal gupta air 1999 sc 902 – another imp
point when can a charge of misconduct action gaianst lawyer – it is only when
lawyer is guilty of misconduct while in practice in court that action can be taken but
when he suspends practice on joining judicial service and in repsect of his conduct as
a judge action taken by high court, the bar council cant initate against that person
after his resuming practice for the same misconduct.

Yesterday – duty of lawyer against client given.

More instances of misconduct – state of Punjab v ram singh 1992 air – sc observed
that misconduct in office – definition of misconduct – not actually speficiing
misconduct – Sc observed that it is unlawful behaviour or neglect by which rights of
parties have affected, court said professional misconduct involves unlawful
behaviour, transgression, carelessness or negligence in performance of duty.
Another case – state v lalit mohan nanda – this is related mr lalit mohan nanda –
initially he was fighting the case and later on he changes the side, the court held that
this is a misconduct and advocate was found guilty of changing side – thus he has
breached duty of upholding interest of client.

Anr case – lc goyal v suresh joshi – air 1999 – sc 2222 – case related to
misapporiation of money recived as court fee. Other cases – online hearing of cases
– where lawyers are found not abiding to professional conduct – in one of life
session senior advocate was smoking hukka and cigarretes. Appearing before court
in a casual manner – thus number of insatcnes observed where misconduct is
happening due to virtual hearing where advoactes take it in casual manner – not
abiding by rules.
 Anr incident –
Advocates lein – rd saxena v balram Prasad sharma – where sc held that advocate
has no right of lien.
After rd saexna there has been other cases – new india assurance v ak saxena – sc
ruled that advocate has no lien – which includes client money.
Can an attorney be entitled to claim fee for the work which he has done – can a fee
be claimed from the client. – quantum merit – if fee is not decided or agreed by the
party in the agreement then based on quantum merit, advocate is paid fee.
When not presebied in agreement -advocate has right of lien till the time he gets his
fee – if not predertined then reasonable fee.
Sttasuotry lien – order 8 rule 6 of cpc
5. Particulars of set-off to be given in written statement.—(1) Where in a suit for the
recovery of money the defendant claims to set-off against the plaintiff's demand any
ascertained sum of money legally recoverable by him from the plaintiff, not
exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill
the same character as they fill in the plaintiff's suit, the defendant may, at the first
hearing of the suit, but not afterwards unless permitted by the Court, presents a
written statement containing the particulars of the debt sought to be set-off.
SUB RULE – written statement shall not affect the lien wrt the cost. Last point – in
absence of express agreement no advocate can claim lien until account is settled.

In general no lien after rd saxena case but order 8 rule 6 of cpc – lien is money of
client where express agreement where advocate is laible to get x amount of fee and
can get lien over advocates money.
Basic principle – if person wishes to remain on the rolls then he or she has to
remember that those who live by law should keep the law and not encourage others
in its breach of publicly extolling and glorifying persons sentenced and by showing
sympathy towards sedition and disloyal movements.
Thus imp that pleader has no faith in the judiciary or justice administration is liable
to be dealt under disciplinary judiciary as it is kind of misconduct – society is affected
by it. Certain principle led down by judiciary – whether a particular conduct of legal
practioner subjects him to judicial action or not – 5 pointers are given – first – mere
holding of such views is gorund for adopting disciplinary action gaaisnt legal
pracitoner. Holding or expressing a view is sufficient for taking action against legal
practioner – court must look into nature of act to deicde if legal poracitoner is unfit
to live in the profession.
Third point – legal practioner is part of machinery for manintencnace of law and
order and hence he is inconsistent with his duty to icnite others to break the law
which is duty of court to administer- those who live by law cant preach breaking of
law – to subvert order is a reasonable

Last point – acts involving moral turpitude or which may apply general to make legal
practioner unfit, the act involving moral turpitude make legal practioner unift.
Contempt of court case – uppal;s case – harish uppal v union of insda – air 2003 –
the court held that lawyers going ons tirke are laible to contempt.

Can an advocate change the side and can fight case from other side?
 05-08-2021
Section 35 has many cases , many instances – not given entire categories of act
cosnituting misconduct – apply mind and see if it is misconduct or not in exam

Another section 36 –
36. 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, 1[either of its own motion or on a report by any State Bar
Council or 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 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 under this section 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 (3) of Section 35, and where any proceedings have
been withdrawn for inquiry before the disciplinary committee of the Bar Council of India
the State Bar Council concerned shall give effect to any such order.

Sec 36 it confers similar power on bar council of inida – one diff between sec 35 and 36 – sec 35
applies only to those cases where the advocate are rolled under any state bar council , 36 applies
where name is not rolled. Thus bar council of India refers to disciplinary committee the case.

Further in case of sec 35 – mentioned that state bar council must satisfy prima facie case – if the bar
council of India is satisified of primar facie case , then can refer it to disiploinary comm – no need to
send case to disciplinary comm – sec 36 also empowers to withdraw suo moto or on report by nay
state bar council or an application by interested person pending before any disciplanry comm of bar
council of Inida is empowered to withdraw any application and state bar council must take action
with regards to nay order.

Thus disciplinary committee which is given power under sec 36 has to follow all the norms and
procdure presibed in section 35.

Last point – in dispoing proceduing under section, disciplinary may make any order which is made
under sec 35 – procudre followed in same – two things mentioned in sec 36.

Thus sec 36 is clear.

See sec 36b

[36B. Disposal of disciplinary 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.

Thus disposal of allegation of misconduct must be done in one year and if state bar council fails
then?

Cases related to professional misconduct – example of such kind – people will not trsut the judiciary
as lawyers are presentative of client and thye rpesent client in court of law and if there is a delay , it
will result in delay of repsentation in court of law – loose trust and faith injudiciary –

mangu shri hari v bar council of state of ap – air 1983 271 – observed that allegation of misconduct
gaiasnt an advocate should be disposed off expeditoiosuly within a period of one year so that wither
the cloud cast on the particular advocate is cleared at the earliest or the nobel profession is kept
clear of such members.

Markan c Gandhi v rohini m dandekar – 2009 1 scc 94 – sc observed that - case is galring example of
complete withdrawal of confidence reposed by the legislature in such a body consisting exclusively
members of legal profession which is considered to be one of most nobel profession. Anr para
which talked about complaint – it is unfortunate that though the complaint was filed before state
bar council before 1984 and transfeered to bci in 1986, the matter remained pending before it for 22
years, the chairman of bci would see in future that complaints are disposed off in reasonable fashion
so that people will repose confidence in bci which is a statotury body – copy of order – and
recosmnittuted comm must dispose matter after giving opportunity – within period of 6 motnhs
from date of its constitution.

Sc wrt to dsicplianry proceeding also stated that order which are passed by disciplinary committee
should be speaking order and must set the reason behind particular deciaion after analysing
evidence and the decision of committee must be absed on complete analysis of evidence brought
before it – complete procudre must be followed to reach to a decision.

Sec 37 and 38 are appellate section – sec 37 – appeal to bci and 38 – appeal to sc – here also imp
thing decided by sc- sec 37 says that any person agrreived by order of dsicplianry comm made within
60 days of comm of order may prefer an appeal to abr council of India. thus every such appeal must
be made within.

If the person is agrreived - @any person agreeived by order of disciplinary comm may within 60 days
prefer an appeal to bar council of india” – wrt aggrieved person an imp case law given –

adi firosh shah Gandhi v feroz shahi (very imp ) case – held advocate general is not a person
agrreived – to deicde who is agrreived person – advocate general of mh – sc 385 – imp case wrt who
is agrreived person. Here an adovctae on roll of maharshatra state bar council who was charged
with professional misconduct and was exonerated, the advocate general of mh filed appeal and
objection raised – that advocate is not agrreived person – the appeal went to sc and chief justice
hidayatulla – gave majority ruling -that advocate general was not an agrreived person – thus a
person in nature of aprrty must be distinguished – chief justice said person who is in nature of aprty
as distinguished from othe rperosn is not idnentical – any person dispapponted with case is not
aggrieved person, he msut be disappointed with the result.

Thus this case is very imp where they descbired who is agrrevied person

Sec 38 – go thorugh this tomorrow.

Project – no topic to be directly copy pasted and second point – professional ethics cant add in
eticates – because of pandemic new situation came up – recent changes bar council wrt conduct of
advocates – reasonable deniance to new rules - come with

9 -08 – 2021

The words advocate general were inserted. Minority view expressed in firoz shah Gandhi case was
taken into consideration.

Aggrevied person – bar council of Maharashtra – air 1975

In this case an advocate was found guilty of misconduct and that guilt was decided by disciplinary
committee of bar council of state of maharsthra, an appeal was filed by bar council and suspension
was set aside – the bar council appealed to the supreme court – if decision not satisfied – appeal to
sc and in that case said bar council is not person aggrieved.

Firoz Gandhi case – held bar council was aggrieved person – said state bar council is watchdog and
mantian – matter before discpilanry comm – bar council is agreeived person

Forum of the profession – some pointers stated – mixed opinion about bar council as agrreived
person – judges said bar council as aggrieved person because of four pointers in case law.

One of judges ordered public investigation by one belonging to public profession – by one member
of bar is interested.

These points were stated as professional misconduct – they loose repute – everybody is aggrieved
party.

See notes from shubha.

10 - 08 – 2021

Section 38. 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 1[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 1[(including an order varying the punishment awarded by the disciplinary committee of the
Bar Council of India)] thereon as it deems fit:

1[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.]
Adi Firoz Shah Gandhi v. H.M Seervai, AG of Maharashtra AIR 1971 SC 385- who is called as an
aggrieved person? An advocate who was on roll of Maharashtra State Bar

[read minority opinion- taken into consideration]

• Because it was add advocate general who appealed, advocate general was not the person
aggrieved- majority stance. Advocate gen is not the guardian angel of the bar nor is he champion of
the public interest.

• Minority view-

• AG and attorney gen reperesented the standard to be maintained in the profession. If a

public servant is competent to file a companint there is no reason why for the purpose of sppealing
he is not an aggrieved person. Because of this reasoning of the minority, the amendment was
brought in Section 37 and 38- adv gen and attorney gen were included and the minority stance was
taken into consideration.

[lost connection]

In 1973 an amendment was done- aggrieved person would include advocate general and attorney
general of the state as well.

Another case where question of aggrieved person came in question- Bar Council of Maharashtra v.
M.V. Dabolkar (1975, DC, 7-judge bench)

• An advocate was found guilty of prof misconduct. That guilt was decided by the disciplinary
committee of the Bar Council of Maharashtra.

• Later an appeal was filed before BCI and his suspension was set aside.

• BC of Maha appealed before the SC under Section 38. It was stated that Bar Council is not
the person aggrieved.

• CJ Ray- state BC is considered as a watchdog. It watches and maintains peace and does not
cease on facing… BC can be considered as aggrieved person because it represent the collective
conscience…decorum of the profession…concerned with the decision.

• BC can be considered as aggrieve person because of the above 4 pointers.

• It is pub investigation of misconduct of one belngng to the public – everyone concerned with
the profession have a stake in it… loss of reputation…everyone concerned with justice
administration.
Section 38 specifically provides for appeal to SC from an order by Disc Committee of BCI. It also
states that appeal may be filed by att gen or adv gen of the concerned state BC. It should be made
within 60 days of the communication of the order- date on which the concerned person receives
communication and not the date of despatch of communication.

• O.M. Mahindru v. Bar Council of Delhi AIR 1968 SC 888

➢ An adv was found gilty of prof misconduct. Appeal to BCI and SC failed. After failure of
appeal under Section 38, he filed writ petition before HC challenging validity of Section 38 and Order
5 Rule 7 of the Supreme Court Rules (dismissal of appeal on preliminary hearing)

➢ Contention- section 38 as outside was outside the leg power of the Parliament it off3nds list
3 entry 28 of the Indian consti related to legal, medical and other professions.

➢ SC- the entry is not concerned with the constitution and organization of courts or their
jurisdictional powers. These are matters dealt under entry 77 and 78 of List 1. These 2 entries also
deal with persons entitles to practice before the SC and the HC and the powers to legislate in regard
to them is carved out from the general power relating to the profession in Entry 26 of list III and is
made the exclusive field of Parliament. And since the adv act in its pith and substance is an
enactment which concerns itself with the disqualification or qualification, involvement, right to
practice, and disciplinary of the advocate and must be held to fall within entry 77 and 78.

➢ The right to appeal under Section 38 creates jurisdiction and power in relation to matters
falling under entries 77 and 78 of the union list.

The power under Section 38- court can pass any order as it deems fit. The scope of powers is very
wide.

Even under Section 37- “as it deems fit” – any kind of punishment can be given- as the court deems
fit.

Section 40- State of Order

3[(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.

4[(2) Where an application is made for stay of the order before the expiration of the time allowed
for appealing therefrom under section 37 or 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.]

• Under Sections 37 and 38, there are no express provisions for staying.

• Section 40 authorizes disc committee or BCI or SC to allow stay of operations- it can be

ordered only on sufficient grounds.
• Stay order may also be conditional

• An appeal should be pending against the order passed in the disciplinary committee.

Section 42- Powers of Disciplinary Committee

42. 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;

(f) any other matter which may be prescribed:

Provided that no such disciplinary committee shall have the right to require the attendance of—

(a) any presiding officer of a court except with the previous sanction of the High Court to which such
court is subordinate;

(b) any officer of a revenue court except with the previous sanction of the State Government.

(2) All proceedings before a disciplinary committee of a Bar Council shall be deemed to be judicial
proceedings within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860), and
every such disciplinary committee shall be deemed to be a civil court for the purposes of sections
480, 482 and 485 of the Code of Criminal Procedure, 18981 (5 of 1898).

(3) For the purposes of exercising any of the powers conferred by sub-section (1), a disciplinary
committee may send to any civil court in the territories to which this Act extends, any summons or
other process, for the attendance of a witness or the production of a document required by the
committee or any commission which it desires to issue, and the civil court shall cause such process
to be served or such commission to be issued, as the case may be, and may enforce any such process
as if it were a process for attendance or production before itself.

2[(4) Notwithstanding the absence of the Chairman or any member of a disciplinary committee on a
date fixed for the hearing of a case before it, the disciplinary committee may, if it so thinks fit, hold
or continue the proceedings on the date so fixed and no such proceedings and no order made by the
disciplinary committee in any such proceedings shall be invalid merely by reason of the absence of
the Chairman or member thereof on any such date:

Provided that no final orders of the nature referred to in sub- section (3) of section 35 shall be made
in any proceeding unless the Chairman and other members of the disciplinary committee are
present.
(5) 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.]

• Powers of a civil court as given under CPC related to matters under clauses (a) to (f).

• Only if the court requires so, affidavit can be submitted as a piece of evidence.

• Navtej Singh v. Satish Kumar AIR 1989 SC 1758

• Rambharose v. Har Swaroop Maheshwar ARI 1976 SC 1736

CA 1 Test Portion

Topic 1 and Topic 2

Advocates Act- till Section 34.

10-08 – 2021

Discussing advocates act - what are the powers of the bar council of india and have discussed power
of displianry committee which is most imp wrt satte bar council – sec 42 which provides with power
of disciplinary comm – is that section over – see 5 sub sections.

Power given to civil court under cpc same power to dispcilnary comm – exmainign witness on oath
and induction of any document – asking about affidavit – public record or copies –

Sub sec2 says that proceedings which are held before discpilnary committee they would be
considered judicial proceeding under sec 193 and 228 of ipc – discplianry comm shall be deemed to
be civil court for sec 482 and 485 of crpc.

Further sub sec 3 says wrt summon – and sub sec 4 is another imp section and it says that
proceedings ebfore discpilianry comm shall not ipso facto come to halt when either the chairman or
any other member – it does not come to stop or come to end – proceed with hearing – no
invalidation of proceeding. Thye cant give a final order as final order is opinion of chairman

Section 42 talsk about working of discpilnary comm – sec 42a of amendment act – talks about power
of bci – provision of section 42 applies in relation to bci – enrolled committee and legal aid
committee of abr council – provision applies.
See section 44 – review of order by disciplinary committee – the disciplinary comm may of its own
motion review any order – within 60 days was added after an amendment act.

One proviso was also added under it – the disciplinary committee of bar council – order passed on
revision is subject to approval of bar council – proviso says that no such order of satte abr council
shall have effect unless approved by bar council of India.

D saibaba v bar council of Inida – air 2003 sc 2502. Where sc held that while interpreting section 48
aa which is similarly worded – the word 60 days from date of order ahs to be recokkened.

Unless the order is communicated to party – it is not taken into consideration – communication is a
must here – 60 days counted when order is communicated to the party.

Now chapter 6 – miscellenaous provision – runs from

Second last chapter – section 45 to 52 – and temporary provision – runs from 53 to 60.

So under miscllenapous provison number of thigns are discussed as all thigns are not imp – discuss
sec 45 which says that if any advocate is there – sec 46a inserted alter on – financial assitacne given
to state bar council and 44 which talsk about reciprocity and indemnity provison – 48 a is about
reivisona nd 48 aaa talks about review – 45 which declares the genral power of abr council of inida.

Thus sec 45 says that any person who practices before any court with whom he is not entitled shall
be punsihsbale – wrt this section take note of sec 32 of legal practioner act – any person who
practices shall be laible by court for fine by stamp act.

Wordings of sec 45 - start with any person – here any person does not mean person who has degree
but it requires duly qualified or licnese but talsk about outsider who is not legal practioner – when
person ;license is expired and he practicses illegally and he fails to comply with rules and no right –
any insatnces where no right to go for court proceedings – what is instance where person is not
allowed to practice?

When can right of practice be taken away?

Trade law aspect here – foreign advocates practising in country – which agremeents of trade? Where
allowing foreign advocates. – gats under trade regime. – legal profession not yet opened in india.

Portion – dekh lo.

Sec48 talsk about indemnity – no suit or legal proceeding shall lie if nay act is done in good faith.

Section 48aa talks about review of any order passed under act. Thus section 44 talks about
disciplinary comm and 44 and 48aa – these are imp sections wrt advocates act.

Syllabus for test already told.

12-08-2021

We were discussing in our last class.

We ar eon last part of advocates act.

Chapter 6 which comes from section 45 till section 52

Sec 45 – deals with illegal practice – we have discussed 45 – 48aa – till review.
48 is not of much importance but it gives direction to the – power is mentioned 48d – for proper
discharge of state council – bar council of india may give such direction to satte abr council as may
appear to be necessary.

Thus power is given to bar council lto give direction to state bar council and diff committees. Are
committees cosnitutued at both level. There are 8-9 committees cosnitutued under both level or
only udner state bar council.

They are ocnsitutued udner both – bar council has right to give direction to committee and state bar
council – so for efficient discharging – section 40 b ha sgiven power to bar council of india- for
supervision nad control – to any committees for discharge of duties.

Bar council may give such direction to ex officio member as may appear to be necessary – sub sec 2
of 40b – gives power to the bar council of idnia to give offciio incharge.

So one imp thing which is necessary is power given to bar council of india wrt giving direction must
be construed indpednently wrt power given to bar council under rule making power

Where is rule amking power given to bar council of india – which section talsk about that – section
15?

15. Power to make rules.―(1) A Bar Council may make rules to carry out the purposes of this
Chapter. (2) In particular, and without prejudice to the generality of the foregoing power, such rules
may provide for― 2 [(a) the election of members of the Bar Council by secret ballot including the
conditions subject to which persons can exercise the right to vote by postal ballot, the preparation
and revision of electoral rolls and the manner in which the results of election shall be published;] 3 *
* * * * 4 [(c) the manner of election of the Chairman and the Vice-Chairman of the Bar Council;] (d)
the manner in which and the authority by which doubts and disputes as to the validity of an election
to the Bar Council 4 [or to the office of the Chairman or Vice-Chairman] shall be finally decided; 5 * *
* * * (f) the filling of casual vacancies in the Bar Council; (g) the powers and duties of the Chairman
and the Vice-Chairman of the Bar Council.

Thus section 15 gives power – to satte bar council – as no effect unless approved by bar council –
power is given to both state

Any section which gives exlcusive power? – it is section 49

49. General power of the Bar Council of India to make rules.― 1 [(1)] The Bar Council of India may
make rules for discharging its functions under this Act, and, in particular, such rules may prescribe—
2 [(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; (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
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;] (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; 4 [(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; 5 [(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; (j) any other matter which may be prescribed:] 4 [Provided that no rules made with
reference to clause (c) or clause (gg) shall have effect unless they have been approved by the Chief
Justice of India:]

Thus 15 is for both and 49 is exclusively for bar council – this has to be constued speeratley –
otheriswe section 49 itself.

Rule amking power has to be contrueed indpendetly only.

So sec 49 gives list of power.

Why is seniority that imp wrt advocates? – does promotion matter here as well. Certain irghts such
as right to pre audience depends on seniority, senior gets preference. further experience matters as
well – even if enrolled at later date then enrolled earlier is called senior – when enrollement is done
is imp.

No promotion concept for advocates. Thus the right of pre aduidnece is eceircised on sneiroty basis.

Anr power – minimum qualification and right to practice and forum.

General principel of guidance – two proviso – no rule made wrt clause c or g – c talks about std of
professional conduct – shall have effect unless impacted by chief justice.

What must be approved by cji – clause c and g – professional ethics and ettiqutes – gg talks about
dresses and robes and which dpedns on climatic condition – this must be approved by cji and any
rule msut be approved by central gov – and sub sec 2 – nothwithstanding to sub sec 1 – until altered
or repealed under act.

Thus sec 15 and 49, 15 empowers both state and other bar council to carry rules for chapter 2 –
what does chapter 2 talks about bar councils. Thus they can make rules wrt bar councils. In case of
sec 49 – wide range of power given exclusively to bar council – includes attire , thus 49 has wider
scope wrt bar council and does not empower state bar council – whereas 15 empowers both.

Rules framed under clause c and gg needs to be approved by cji and central government.
Case laws –

Some case laws under sec 49 – for ex – sudhir v bar council of india. air 1999 sc 66 – related to
section 49(1)(a)(g) which says the class or category entitled to be enrolled as an advocated – in this
case court held that rules presrbiing for pre enrollement training was beyond rule making power and
was otherisw advocates act of 1961 – thus pre enrollement training is imp – not power of abr
council.

Anr case – indra bahadur sen. – see from isha. Here person was cjm and promoted to judicial
member and later on he retired and enrolled as an advocate – retired ins ept and practiced in board
of revenue – professional misconduct complained filed in abr council of up – the petioner challenged
valifdity of rule and court upheld the same. See from isha

Anr challenge – rule violated spirit of art 220 of constitution.

Article 220 Constitution of India: Restriction on practice after being a permanent Judge.

This imposes a restriction nd violates article 220 – premamanet judge pracitisng in same
high court - thus contention was rejected. Contention in toto was rejected – rule under 49a
was no consitutinal – wrt art 220 contention , it was violation – here cpourt said it si not
violation.
220 says high court jude cant practice – thus whatever contention was raised on behalf of
mis conduct, court held it is not uncosntitu as rules framed resoanbly.
Thus it si not valid.
One more case – shitab v bar council of india – air 1969 rajasthan 136. – wrt section 49(1)
(b) rues presriibng std of legal education – wrt law it is very imp to understand that you cant
take degree of law by being a private student under distance learning – any program like ba,
bcom can be taken by distance learning, in law, you must be regular student and not part
time. Till now no distance learning law degree, thus have to enrol with university as bci
mandates the same. Thus imp to have min attendance for exmas. Thus shatab khan case
says dgree is vlaid if taken from recoignizes university.

13 -08 -2021

Section 49 wide power - case laws pertaining to power under section 49 - we were talking about
inder bahadur singh v bar council of up - section 49(1)(a) right to practicse in any court in Indai - here
petiioner challneheged consitutioanlity of rules of abr council of Inida - juniors prevented from
practising in certain courts - rule seven of bar council prohibited legal practice - from date of
retirement - two proviso - provisio one says it allows practice of superior court and seocnd proviso -
amendment act of 1996 - excluded non permanent judges of high court - held in ps mudolkar v bar
council of Inida- Bombay hc case - the case was not valid under ART 14 as it discrimanted agaisnt sub
ordiante judges and judicial officers - request that proviso 2 must be sturck down - court said it is
consti as art 220 bars just permanaent judges and cant consider this rule as arbitrary.

Later on proviso 2 rule amended in 1984 - rule 7 had two provsio amnedment act - in 1984 rule
amdned which added provsio - nothing in rule shall apply to judicial officer who is nto permanent -
this was deleted and word two years was added to it.
Thus rule prohibits legal practice - initially entire bar was there but alter emandnet and case laws -
uncosnit right of practicse and later they added period of two years - can find in inder baahdur singh
v bc of up.

1980 bombay hc case - amendment - see from shubha rmeaning.

Monday missed

17 -08

In general functions - what are the general functions of the bar council - what is the reason of
enactment.

Section 6(1)? - main function is to enroll the person and those in role are considered as enrolled
member of bar council - necessity to maintain the rule - the maintenance of such rules must be there
to detmeirne and safegaurd the rights and promote the growth of bar assocaition - reffered in clause
a of sub section 2 of section 7 - to promote law reforms and public journals and create legal
awareness among general masses - to manage funds of bar council - clause 1 of sub section 1 - to
maintain standard - another fucntion is to issue certificates.

Advocates are enrolled - which contains id and enrollment no - section 22 provides certificate issued
by state bar council - diff exmainations etc done for advocate on roll.

Section 17 provides one of the function of advocates act - section 17 talks about maintennace and
preparation of role - it gives those advocates rights and priviliges - section 17 - role of advocates
must be maintained.

Section 17 - two colums - one which talks about senior and other which talks about junior advocate -
two diff paths are there. These are functions of state bar council.

Now see power of state bar council - 4 categroies - power to make rules , punish advoactes, power
to appoint committees and power to maintian accounts.

Rule making power - to make rule to carry out section 16 to section 27

From sec 16 to 27 of advocates act. The funnctions from sec 16 to 27 - state bar ocuncil is
empowered to carry rules from sec 16 to 27 of advocates act.

Next - power to appoint committees as members are too much - law profession in our country -
india’s rank in this? - India has second largest lawyer population.

When huge numbe rof lawyers are there - it is necessary to keep check on each and every aspect of
the area - std maintained to compete with world lawyer - standrd for conduct of world lawyer as
profession demands conduct which is prima facie condition for profession - those who join
porfession needs to be followed. Ex - if profession demands speical behavior - discipline is essential -
profession of doctors and lawyers - standard must be maintained as memebrs are huge and thus
delegated the task to bar ocuncil and committes perform the task

Next - sec 12 of advocates act.

Sec 4 - attoney and solictor general of Inida. One member lected by each.
No person shall be eligible unless provisio - sub sec 2 - section 3

Most imp one is to lay down professional ethics becnhmark.

Orders passed agaisnt misconduct - it si been apeealed to the bar council - acts as an appellate
jurisdiction - as bar ocuncil has perpetual succession and common seal and power to contract. -
these are some of imp aspects wrt bar council.

See rest from shubha.

23/8/2021

Why is enrollement for advocates necessary – it is necessary as three profession never retire –
doctor, lawyer, teachers.

Why is enrollment necessary – and which section talks about it? Advocate is duty bound not noly
towards the court but towards other parties as well. Thus entire judicial administration revolves
around advocates. Advocate is very imp – thus he must be capable – to understand the plus and
minus of all steps. Enrollemnt is thus very imp for lawyers, they must enrol to state bar council as
right to p[tactice is very imp and it gives right to pre audience.

Case – chief executive officer. Gujart maritime board v patel gunju bai – air 1999 gujrat case. Gujrat
high court emphasised on importance of dvaoctes – advocates have imp palce and he is most
comptent person to help the courts to help the masses to get justice.

Thus there is some requirement for competence – where is this competency given, here is advocates
defined?

2. Definitions -

(1)  (Note: - Section 2 renumbered as sub-section (1) thereof by Act 60 of 1973, sec.2 (w.e.f. 31/07/1974)  in this
Act, unless the context otherwise requires-

a. "advocate" means an advocate entered in any roll under the provisions of this Act.

Thus it is necessary for advocate to register. Thus registration is must – which section talks about this?

See section 24 –

24. Persons who may be admitted as advocates on a State roll.―(1) Subject to the provisions of this
Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a
State roll, if he fulfils the following conditions, namely:― (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— (i) before the 1 [12th day of March, 1967], from any University in the territory of
India; or (ii) before the 15th day of August, 1947, from any University in any area which was
comprised before that date within India as defined by the Government of India Act, 1935; or 2 [(iii)
after the 12th day of March, 1967, save as provided in sub-clause (iiia), 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 (iiia) after undergoing a course of study in law, the duration of which is
not less than two academic years commencing from the academic year 1967-68 or any earlier
academic year from any University in India which is recognised for the purposes of this Act by the
Bar Council of India; or] 3 [(iv) in any other case, from any University outside the territory of India, if
the degree is recognised for the purposes of this Act by the Bar Council of India; or] 4 [he is a
barrister and is called to the Bar on or before the 31st day of December, 1976; 5 [or has passed the
article clerk's examination or any other examination specified by the High Court at Bombay or
Calcutta for enrolment as an attorney of that High Court;] or has obtained such other foreign
qualification in law as is recognised by the Bar Council of India for the purpose of admission as an
advocate under this Act]; 6 * * * * * (e) he fulfils such other conditions as may be specified in the
rules made by the State Bar Council under this Chapter; 7 [(f) he has paid, in respect of the
enrolment, stamp duty, if any, chargeable under the Indian Stamp Act, 1899 (2 of 1899), and an
enrolment fee payable to the State Bar Council of 8 [six hundred rupees and to the Bar Council of
India, one hundred and fifty rupees by way of a bank draft drawn in favour of that Council:]

Qualification of passing of bar examination – this section amended many times –

original section was very different. Advicates act framed at time of britishers. From
which act was it taken? – indian bar council act 1926 (similar to section 9 of this
act?). major amendment is in the area of degree- section 9 talks about qualification
– 4 sub sections.

Sub section 1 is proviso – rule shall not refuse admission at discretion

Clause f talks about stamp duty

Sub section 3 – rule provides that no women shall be disqualified.

Last sub section – nothing in this sub section shall limit.

Thus section 9 was very much particular.

5 imp qualification under section 24 –

must be citizen of india.
Age of twenty one years
Degree in law
e) he fulfils such other conditions as may be specified in the rules made by the State Bar
Council under this Chapter; 7
[(f) he has paid, in respect of the enrolment, stamp duty,

Are foreginers allowed to practice in india – if any other antion allows us to practice than
foreginers can practice in Inida – it will be covered under gats agreement. 4 modes of
supply of service. 12 different heads of services under gats.
Tomorrow – section 24a.

25/08

What are the disqualifications – section 24a

0[24A. 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 the Untouchability (Offences) Act, 1955
(22 of 1955);
[(c) if he is dismissed or removed from employment or office under the State on any
charge involving moral turpitude. Explanation.―In this clause, the expression “State”
shall have the meaning assigned to it under article 12 of the Constitution:] Provided that
the disqualification for enrolment as aforesaid shall cease to have effect after a period of
two years has elapsed since his 2 [released or dismissal or, as the case may be, removal.]
(2) Nothing contained in sub-section (1) shall apply to a person who having been found
guilty is dealt with under the provisions of the Probation of Offenders Act, 1958 (20 of
1958).
24a is inserted by amendment of 1973 – it lays down circumstances as to when will the
person be disqualified – in original section there were just two disaqualifciation – moral
turpitude and untouchability.

Later on new disqualifciations are added – c, d and e.

Is moral turpitude defined anywhere – what does it comprise of?

Gajendra nath gupta v ij assam – 1959 assam case. – moral turpitude has not been
defined anywhere but ahs been used in different enactments.
Dictionary – grave infringement of moral sensitivyt of community – this is a very
subjective term. Cant have a very straight definition of this – number of acts –
sometimes small incidents can trigger , it is very subjective.

Public morality, moral turpitude is very subjective.

Example – at what time that statement is given matters a lot – if statement pertianing to
some community when that community is in news that will affect a lot of people. It
includes a number of things such as depravity or duty towards society – it is a duty which
a person owes towards society – thus section 24a gives a kind of space where
disqaulifciation for enrollemnt.
Is there provision for diff category of advocates enrollemtn in the act.

[20. Special provision for enrolment of certain Supreme Court advocates.―(1)

Notwithstanding anything contained in this Chapter, every advocate who was entitled as
of right to practise in the Supreme Court immediately before the appointed day and
whose name is not entered in any State roll may, within the prescribed time, express his
intention in the prescribed form to the Bar Council of India for the entry of his name in
the roll of a State Bar Council and on receipt thereof the Bar Council of India shall direct
that the name of such advocate shall, without payment of any fee, be entered in the roll
of that State Bar Council, and the State Bar Council concerned shall comply with such
direction. (2) Any entry in the State roll made in compliance with the direction of the Bar
Council of India under sub-section (1) shall be made in the order of seniority determined
in accordance with the provisions of subsection (3) of section 17. (3) Where an advocate
referred to in sub-section (1) omits or fails to express his intention within the prescribed
time, his name shall be entered in the roll of the State Bar Council of Delhi.]

Sc rules 1966 –rule 2c says that advocate

Rule 4 which says that any advocate not being a senior advocate. After fulfilling
condition mentioned in rule 5 which talks about condition of enrollement.

Sub part of rule 5 – also see rule 5a.

Restriction on duty of sc – given under order 4 rule 2 of 1966 part I – which says that
senior advocate shall not file a vakalatnama , also a senior advocate shall not ……………..

Difference in enrollement – special provison for enrollemnt of certain sc advocates – one

thing is payment of fee, second see sub sec 2 – order of seniority.

We have completed topic 3 for now.

Tomm topic 5 – contempt of court.

duties of the advocates - in general discussed till now. next topic is about contempt -
how does it comes
under professional ethics.
THE CONTEMPT OF COURTS ACT, 1971
ACT NO. 70 OF 1971
[24th December, 1971.]
An Act to define and limit the powers of certain courts in punishing contempts of courts
and to
regulate their procedure in relation thereto.
BE it enacted by Parliament in the Twenty-second Year of the Republic of India as
follows:—
1. Short title and extent.—(1) This Act may be called the Contempt of Courts Act, 1971.
(2) It extends to the whole of India:
Provided that it shall not apply to the State of Jammu and Kashmir except to the extent
to which the
provisions of this Act relate to contempt of the Supreme Court.
2. Definitions.—In this Act, unless the context otherwise requires,—
(a) “contempt of court” means civil contempt or criminal contempt;
(b) “civil contempt” means wilful disobedience to any judgment, decree, direction,
order, writ or
other process of a court or wilful breach of an undertaking given to a court;
(c) “criminal contempt” means the 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—

thus contempt is of two kinds - criminal and civil. is anywhere else the term contmept
appear in
advocqates act - no.

three articles of consitution - art 129 of indian consitution -

Article 129 Constitution of India: Supreme Court to be a court of record. The Supreme
Court shall be a
court of record and shall have all the powers of such a court including the power to
punish for
contempt of itself.
3 cases -
pk gadkari v op gupta air 1971 sc 1132 -
lambodri pad v nambriyar air 1970 sc 2015
brahmaprakash v state of up air 1954 sc
what is held in these 3 cases see.
they have defined contempt of court in a better way - anr article is 142 clause 2
Subject to the provisions of any law made in this behalf by Parliament, the Supreme
Court shall, as
respects the whole of the territory of India, have all and every power to make any order
for the purpose
of securing the attendance of any person, the discovery or production of any
documents, or the
investigation or punishment of any contempt of itself.
art 142 is wrt enforcment of decree, art 129 was wrt only misconduct.
215. High Courts to be courts of record Every High Court shall be a court of record and
shall have all the
powers of such a court including the power to punish for contempt of itself
case law wrt 215 - high court of judicature at allahabad v raj kishore air 1997 sc 1186. -
given difference
between sc court of contempt and hc court of contempt - anlayze these case laws and
send to maam.
the court have been empowered to punish under contempt of court act as well. how
professional ethics
and contempt is connected - we have associated this with certain obligations not just
wrt cleints but
courts as well - called code of conduct required by each and every advocate to abide.
one more explanation - justice marshall - main obejct of professional ethics - the
fundamtal aim of legal
ethics is to maintian the honor and dignity of legal profession , ............... to establish fair
delaing with
client and to secure taht lawyer discharge their duties to communities in general.
thus they have to maintian some standards . who lays down the code of conduct? the
bar council of Inida
and state bar council lays down the ethics and code of conduct. who empowers the bar
council to lay
down the same. - section 49 of advocates act.
Indian council of legal aid and advice v bar council of India 1999 - empowered the bar
council of India to
lay down the standards to maintian the dignity of the profession.
next discussion on contempt - which act can be considered as contempt - this contempt
is not defined in
general but it means to offend the dignity and lower the prestige of the court. thus it is
disobdience of the
court.
halsbury definition - any act done which is calculated to bring a court or judge in
contempt or to lower his
auhtoirty or to interfere with the due course of jsutice or lawful process of court is
contempt of court.
in re ajay kumar pandey air 1998 sc 3299 - where sc held that an advocate using
intemperetae language
and casting false report on various judicial offciers is in contempt of court for not getting
expected result.
classification of contempt of court act - civil and criminal contempt 2b and 2 c
civil contempt consist - wilful disobedience to any judgment, decree, direction, order,
writ or
other process of a court or wilful breach of an undertaking given to a court;
thus it just involves willful disobedience, thus when you see the main purpose of
punsihment - it is to
enforce a feeling of enforcment wrt order of court - 2 purposes of civil contempt -
first is the coercion to compel the person to do what the court requires, second is
vindication of the public
interest by punsihmnet of contentious conduct.

thus two requirments -

first there is an order or a decree which is passed by the auhtorised court which is
disobeyed and second
is that the disobedince is willful. the court must be auhtorised. if not auhtorised it is not
contempt.
here whoever alleges that court has no jursidiction has burden of proof.
the def of civil contempt and it is objective. thus it is stuck to the wordings - if order is
disobeyed, it
amounts to cotnempt - if willful disobdience.
criminal contempt - it is directed against diginity and power of court and definition is
very wide - act which
is tend to be done, thus it includes attempt as well. thus not neceesary that person has
publicised it.
meaning of scandalise - to speak falsely or maliciously and to bring into dishonor or
disgrace and to
offend the moral feeling, concuious of an action - ex using defamatory words or
derogatory words - it is
dsicretion of court to see if it lowers authority of court or not
wherever there is discretion there is a room for arbitariness.

27/08

If have to defend the client, heated agruments can flow and it is unintentional – this is
common problem found in court. We also talked about two kinds of contempt – civil and
criminal difference – very subjective.
Civil contempt – order of authorised court which must be wilfully disobeyed.
Ajay kumar pandey case 1993 – comtempt of court.
Other cases – re vijay Chandra Mishra case 1995 sc 2348 – where sc held that question
asked by judge – ques judge authority or to hsout at him, use insulting language – such
act prevents court from perfomring its duty and is contempt of court.

In anr case – if an advocate makes any wilful and misleading stamtent to obtain a
favourable order – it would also amount to contempt – Narayan nath v. govt of mp air
1974 sc 1252.
Will strike or boycott of court amount to contempt of court. Rajasthan hc bench jodhpur
and Jaipur – boycott of legal proceddings at end of each motnh – does this amount to
contempt of court.

Case of Calcutta hc – swarini mohan case air 1923 cal hc – where court held that the
lawyers had no power to sritke as it amounts to contempt and boyctooing the
proceeding of court is in violation of duty towards the court and client.

Strike can amount to misconduct as well – section 35 talks of this. Misconduct is very
wide section. Depends on case and circumstances.

Punishment for contempt – section 12 of contempt of court act talks about punishment
for contempt.
10. Power of High Court to punish contempts of subordinate courts.? ? Every High Court
shall have and exercise the same jurisdiction, powers and authority, in accordance with
the same procedure and practice, in respect of contempt of courts subordinate to it as it
has and exercises in respect of contempts of itself: Provided that no High Court shall
take cognizance of a contempt alleged to have been committed in respect of a court
subordinate to it where such contempt is an offence punishable under the Indian Penal
Code (45 of 1860). Comments High Court can take action for contempt of subordinate
court under Section 2 of? 1926 Acts for defamation of the Judge though the aggrieved
officer may have remedies such as Sec. 499 I.P.C.? (Bathina Ramakrishna Reddy v. State
of Madras, AIR 1952 S.C. 149) High Court in exercise of its powers under Section 10
cannot interfere with the complaints filed for disobedience of breach of injunction order
temporarily issued during the pendency of a suit.? Shaik Mohiddin v. Section Officer,
Karnataka Electricity Board, Kaiwara.1994 Cri.L.J.3689 = ILR (Kar) 1994 2513 (ka

12. Punishment for contempt of court.—(1) Save as otherwise expressly provided in this
Act or in any other law, a contempt of court may be punished with simple imprisonment
for a term which may extend to six months, or with fine which may extend to two
thousand rupees, or with both: Provided that the accused may be discharged or the
punishment awarded may be remitted on apology being made to the satisfaction of the
Court.

See other sub sections – max punshiment is 6 months and fine of 2000 rupees.

Sec 10 – sc bar association v uoi – 1998 case of sc – although parliament or state

legislature has power to punish for contempt of cout such cant nullify power of sc under
art 129 or vest that power on some other ocurt. As sc is court of record and has inherent
power to punish and no law can take away that power of court of record.
Thus it is inherent power of sc and hc,

(d) “High Court” means the High Court for a State or a Union territory, and includes the
court of the Judicial Commissioner in any Union territory.

Sc not mentioned in section 2d, only hc is mentioned. Also keep in mind wrt sc see
power in constitution, there is no mention of sc in . For hc see cosnit and contempt of
court act.
3 more cases.
Sukhdev singh v teja singh and other 1964 sc – where court said that max punishment
for contempner for delaing with power of hc and not sc. the scope of power to punish
for contempt of sc is not limited by contempt of court act 1971.

30/08/2021

Contempt of court act 1971 – civil and criminal contempt.

Further talk about debate going on wrt contempt of court and committee which was
established by law commission of India – for contempt of court act 1971.
Debate wrt contempt – fundamental right which is presumed to be violated with repsect
to contempt of court.
Freedom of speech violated because of contempt of court. Article 19(1)(a) and (2)
provides for reasonable restriction on this freedom wrt contempt of court. Reading
article 19(1)(a) and 19(2)
Wrt contempt keep in mind two clauses – 19(1)(a) and clause 2 which says nothing shall
effect with repsect to any law.

Reasonable restriction it is described in a number of cases.

Some thinkers and jurists have given a kind of relation between freedom of speech and
contempt – Sathe 2001 expalined the inter relation which said that- the acrimony
between the judicial power to punish for contempt of court and citizens fundamental
right to freedom of speech has prevailed since 1970 – when SC held that e namboodiri
pad v t Narayan namibiyar – the kerela cm was found guilty of contempt of court for his
comments on judiciary as an insitutions. Further court had sub ordinated the freedom of
speech and expression the most imp of fundamteal right to the judiciary power of
pusnhing the contempt of court – a sewwpign countour of contempt foc ourt ahd
trivilased the freedom of speech, he also explained that the freedom of speech is the
most fundamental of fudnamteal rights and the resticritons thereupon had to be
minimal. The law of contempt of court can impose only such restirctions as are needed
to sustain the legitimacy of the judicial instituions, the law need not protect the judges,
it ahs to protect only the judiciary. A contempt notice issued without proper scrutiny
cause great hardship to people who are engaged in public life. Freedom must be the rule
and the restriction msut be an exception.

Judges have to keep public interest in mind – Mathura rape case – after this amendment
in consent concept – here they are serving the judiciary , thus critically analysing the
cases which are not in public interest, hence freedom of speech is against the judiciary
and not a judge in general. As law is not to protect the judges but judiciary.
Social activist – mr prashant bhushan , arun dhati roy.
Narmada bachao andolan - Deterrence of punishment- when moral conviction –
suffering enhances social esteem – if punished gone up in public esteem?
Contempt action taken against mr prashant bhushan when he made statement 0- justice
ap shah wrt contempt of court proceeding. – free speech as evidenced in prashan
tbhushan case – self proclaimed magnanimity – rs 1 only fine but not without chastising
his contempt – one clear thing – court came across as intolerant.
Ques of egoing. Where at eod he was charged with fine of rs 1. Thus court said when
issue of freedom of speech and contempt of court than to what extent the court may go
– it was further observed that court that what distinguishes free society from totalitarian
one is that there is a freedom of speech in the former, this liberty is available not only
for the propogation of the common view but necessarily also for views which might be
misapproved.

Thus it is very imp as to how advocates articulate their words – if judge convinces, the
judgement comes in favour of party, thus line drawn where freedom ends and contempt
starts.
Contempt of court act is very old – one report of alw commission of India which wanted
to bring an amendment in that act, the chairman of that commission was justice bs
Chauhan, the entire report basically gave certain suggestions wrt requiremnts and need
of changes and ended suggesting that major changes are not required in the act because
of certain reasons, few of them are? – adequate safeguards for contempt of court act
1971 – it wanted to increase ambit of criminal contempt and submission of report saying
that no req to mamend the act as there are adequate safeguard in the act.

The act provides a provision which lays down cases which don’t amount to ocntmept
and cases where contempt is punsiable – 4 aprts of the act – dfirst which deifnes and
second which talks about punishment and talks about cases not falling udner contempt
and fourth cases which don’t amount to contempt.

See cases where contempt is not punsiable and those cases which odnt amount to
contempt.
Send mail to maam today only for assignment.

Cases which don’t amount to cogntemot and cases where contempt is not punsiable –
law commission set up – see name fo that commission and see cases which don’t
amount to contempt and third cases where contempt is there which is not punishable –
what is name of that law commission which was set up and

1st September 2021 -

Section 13 - The time being in force,— (a) no court shall impose a sentence under this
Act for a contempt of court unless it is satisfied that the contempt is of such a nature
that it substantially interferes, or tends substantially to interfere with the due course of
justice; (b) the court may permit, in any proceeding for contempt of court, justification
by truth as a valid defence if it is satisfied that it is in public interest and the request for
invoking the said defence is bona fide.]

Two situations – 1st contempt does not interefere with course of justice – in these two
situations, the court does not punish the contempt , some other exceptions wrt
contempt of court.

Two situations where court allows the contempt, other situatiosn where there is
exceptations where person is not punished for contempt – when no reasonable ground
to believe proceeding is pending

3. Innocent publication and distribution of matter not contempt.—(1) A person shall not
be guilty of contempt of court on the ground that he has published (whether by words,
spoken or written, or by signs, or by visible representations, or otherwise) any matter
which interferes or tends to interfere with, or obstructs or tends to obstruct, the course
 of justice in connection with any civil or criminal proceeding pending at that time of
publication, if at that time he had no reasonable grounds for believing that the
proceeding was pending. (2) Notwithstanding anything to the contrary contained in this
Act or any other law for the time being in force, the publication of any such matter as is
mentioned in sub-section (1) in connection with any civil or criminal proceeding which is
not pending at the time of publication shall not be deemed to constitute contempt of
court. (3) A person shall not be guilty of contempt of court on the ground that he has
distributed a publication containing any such matter as is mentioned in sub-section (1), if
at the time of distribution he had no reasonable grounds for believing that it contained
or was likely to contain any such matter as aforesaid: Provided that this sub-section shall
not apply in respect of the distribution of— (i) any publication which is a book or paper
printed or published otherwise than in conformity with the rules contained in section 3
of the Press and Registration of Books Act, 1867 (25 of 1867); (ii) any publication which
is a newspaper published otherwise than in conformity with the rules contained in
section 5 of the said Act. 2 Explanation.—For the purposes of this section, a judicial
proceeding— (a) is said to be pending— (A) in the case of a civil proceeding, when it is
instituted by the filing of a plaint or otherwise, (B) in the case of a criminal proceeding
under the Code of Criminal Procedure, 1898 (5 of 1898), or any other law— (i) where it
relates to the commission of an offence, when the charge-sheet or challan is filed, or
when the court issues summons or warrant, as the case may be, against the accused,
and (ii) in any other case, when the court takes cognizance of the matter to which the
proceeding relates, and in the case of a civil or criminal proceeding, shall be deemed to
continue to be pending until it is heard and finally decided, that is to say, in a case where
an appeal or revision is competent, until the appeal or revision is heard and finally
decided or, where no appeal or revision is preferred, until the period of limitation
prescribed for such appeal or revision has expired; (b) which has been heard and finally
decided shall not be deemed to be pending merely by reason of the fact that
proceedings for the execution of the decree, order or sentence passed therein are
pending.

Section 13 tells when contempt is not punishable as even though it is contempt the
same is justified and second where exception of contempt of court.

Going by section 3 –
8 excpetions wrt contempt of court. 3 exceptions under section 3 itslef
which
Other exceptions of contempt of court -
3. Fair and accurate report of judicial proceeding not contempt.—Subject to the provisions
contained in section 7, a person shall not be guilty of contempt of court for publishing a
fair and accurate report of a judicial proceeding or any stage thereof. 5. Fair criticism of
judicial act not contempt.—A person shall not be guilty of contempt of court for
publishing any fair comment on the merits of any case which has been heard and finally
decided. 6. Complaint against presiding officers of subordinate courts when not
contempt.—A person shall not be guilty of contempt of court in respect of any
statement made by him in good faith concerning the presiding officer of any subordinate
court to— (a) any other subordinate court, or (b) the High Court, to which it is
subordinate. Explanation.—In this section, “subordinate court” means any court
 subordinate to a High Court. 7. Publication of information relating to proceedings in
chambers or in camera not contempt except in certain cases.—(1) Notwithstanding
anything contained in this Act, a person shall not be guilty of contempt of court for
publishing a fair and accurate report of a judicial proceeding before any court sitting in
chambers or in camera except in the following cases, that is to say,— (a) where the
publication is contrary to the provisions of any enactment for the time being in force; (b)
where the court, on grounds of public policy or in exercise of any power vested in it,
expressly prohibits the publication of all information relating to the proceeding or of
information of the description which is published; (c) where the court sits in chambers or
in camera for reasons connected with public order or the security of the State, the
publication of information relating to those proceedings; (d) where the information
relates to a secret process, discovery or invention which is an issue in proceedings. (2)
Without prejudice to the provisions contained in sub-section (1), a person shall not be
guilty of contempt of court for publishing the text or a fair and accurate summary of the
whole, or any part, of an order made by a court sitting in chambers or in camera, unless
the court has expressly prohibited the 3 publication thereof on grounds of public policy,
or for reasons connected with public order or the security of the State, or on the ground
that it contains information relating to a secret process, discovery or invention, or in
exercise of any power vested in it.

Cases wrt contempt of court –

MV sanghi v. High court of Punjab and Haryana air 1991 SC 1834. Here utternac
eof some bad words – held guilty of contempt – they were asled for giving apology
– what is meant by unqualified apology and what is meaning of the word apology
in contempt of court cases. In this case advocate was asked to apologize, court held
that apology is not a weapon of defense to purge the guilty of their offense nor it is
intended to operate as a universal penantia. But it is intended to be evidence of a
real unritenss

Delhi judicidal service association v state of gujrat – air 1997 sc 2176.

DDA v skipper construction 1995 scc 3507 – contempt did not allow apology but
simple imprisonment – saying apology is not a weapon to purge guilt.

Citizens for democrarcy v state of assam – air 1996 sc 2193 – here also act of
handcuffing of under trial prsioners which is not allowed. Keeping in mind the
fundamental and other rights, handcuffing was considered as contempt of court.

Article 14, 19 and 32 which talsk about safe custody and handcuffing – those cases
there was contempt by authorities, court gave direction to follow sc guidelines to
follow the jail manuals given by court as if not done it amount to contempt.

Dhananjay sharma v state of Haryana and another – 1995 3 scr 964. Pk ghosh v gj
Rajput air 1996 sc 513.
2/9/2021

Pk ghosh v gj Rajput air 1996 513.

There are other cases pertaining to misconduct and contempt of court – other cases
talking about contempt.

Case laws – wrt civil and criminal.

Wrt civil contempt , case law is vidys sagar v third adj Dehradun – CLJ 991 - court
held that civil contempt serves dual purpose first is coercion to compel the
contempner to do what court requires of him and second vindication of public
interest for contempous conduct.

Court of its own motion v ns kumar 1995 clj 1261 – held here that usually the
order must be served against person on whom it has been passed however where it
is proved to the satisfaction of court that the person had actual knwoeldge of order
he cant escape liability of contempt on gorund that copy of court is not sevred on
him.

Another case – babu ram gupta v sudhir bhasim. Air 1979 – SC 1528. In this case
breach of undertaking recorded forming part of compromise decree does not
amount to contempt of court, the court also observed that there is clear diff
between compromise right and consent order passed at isntacne of parties in the
former if violation of compromise, no question of contempt of court arises but
aprty can enforce the same by injunction of the court.

Main ingredient to avoid contempt proceeding in civil contempt – there are only
two req – wifull diosobdeicne of judegemnt of court – can riase ques wrt
jurisdiction and second – avoidance can be done by compying with the order. Thus
if order is complied with then there is no ques of contempt and there is willful
disobedience – two thigns out of section 2b – ram narang v Ramesh narang – 2006
case of supreme court – court here held that def of covil contempt creates two
categories – willful diobdeicne and breach.

In criminal contempt – one ore thing asked tommor – order 39 rule 2a of cpc and
contempt of court act.

Criminal contempt – Delhi judicidal service association v state of gujrat – air 1997
sc 2176. – def of criminal contempt is very wide which can lower authority of the
court – thus basically criminal contempt scope is very wide and empowers court to
preserve the repsect of law and which is very necessary for rule of law.

Hiralal dixit v state of up air 1954 sc 743 –

Another case – named in re pc sen – where as there are many thigns included in
criminal contempt – court held that strict liability rule is applied in case of criminal
contempt – what does this rule says – this means that even though there is no intent
necessary to interfere with justice of amdinsitration. Essence of offense of
contempt lies in the tendency to interfere with the due course of justice, good faith
etc of alleged contemner are irrelevant, the motive, intent is immaterial.

It si also enough if the action complained is inherently likely to interefere in admin

of justice, mens rea in sense of lowering repute of court is not essential ingredient
of cirmianl contempt – thus effect of offending act is relevant and not act per se.

Essenbtial ingredient – first one is publication in case of in re sk sundarami – sc

2374. There was a communication through a telegraph where the contempner made
some statements against cji – there was bad statements and court held that it is case
of gross cirmianl contempt of court and defense by party was when such messages
are sent, it does not amount to publication, hence telegraphic messages can be
transmitted only after sender gives content of message to telegraphic office, whci
hwould invariably be manned by the staff of that office and message after
transmission reaches the destination office which is manned by member of the
staff.

Second req is scandalizing or lowering authority of court or administration of

justice. Case – rajendra sen v mp high court bar association 2005 case. Statement
made by witness of prosecution side – in amurder trail, the judge disposed or
equipped the accused and made a statement that judge was avaible for sale and
judgement is rubbish and comment was published in newspaper. He said judge is
avaible for sale. Court held, it is contempt of court.

Another case – state of bihar v kripalu Shankar – air 1987 sc 1554 – notigns made
by offcies in file of court – ques whetehr it can be made as basis for contempt
action – court said it does not cosnitute contempt as main purpose of documents
are that they are summoned by court in relating to the case itself , thus when
notings done by officer, will this amount to contempt?- court said it si not
contempt as document asked by ocurt not with intent to interfere with justice.

Anr case – SR ramraj v special court Bombay – air 2003 – SC 3039 – corut held
that where verification is specific and false then nothing in law to prevent the
person from being proceeded for contempt – thus where verification is specific and
false than nothing in law tp prevent person to be proceeded for contempt.

Anr case – state v sajjan kumar sharma – 1986. Talked about sec 6 of contempt of
court act.
6. Complaint against presiding officers of subordinate courts when not contempt.—A
person shall not be guilty of contempt of court in respect of any statement made by
him in good faith concerning the presiding officer of any subordinate court to—
(a) any other subordinate court, or
(b) the High Court, to which it is subordinate. Explanation.—In this section,
“subordinate court” means any court subordinate to a High Court.

Sec 6 anables a bonafide complaint. Thus it does not amount to contempt – when
we comaplin to seniors about juniros it is not contept as it is done in good faith.

How is good faith proved.

Section 52 in The Indian Penal Code. 52. “Good faith”. —Nothing is said to be done or
believed in “good faith” which is done or believed without due care and attention.

Must prove that the complaint acted with due care and attention. State v sajjan kumar –
section 6 – when a person is not guilty of contempt – thus

Third imp aspect of criminal contempt

Disha rape case 2019 – when an incident is given hype in media and public tries to give
their judgement – media trial happended which affected the judiciary as ppl start
expecting the result – if judgement does not come then questions are raised against
judiciary.

Thus media trial is one isntacne where publication interferes with justice.

Ag v times newspaper (eng case) – where they criticised media trial and considered
contempt of court which must be prevented – thus whenever publication or any act which
unduly interferes with litigation is criminal contempt .

4th req – interference/ obstruction with admin of justice.

Jr prasha v parashar v bhushan air 2001 sc 3395 – where sc held that holding a dharna
in itself des not amount to contempt of court but if while holding it access to court is
hindered or proceeding is hindered then it may amount to contempt as it results in
obstruction of justice.

Another case – Aligarh municipal board v ekka tanga mazdoor union air 1979 sc 1767 –
it is main function of court to decide disputes. …………

Part lost see from shubha

 4 satges of crime – is any act committed as crime punished at all those 4
stages – purchase knife or posion tried to mix posion and died.

wrt contempt – sc in hiralal dixit v state of up said that where act is likely to
commit a crime, not imp that it results in actual scandalizing but is likely to
result in scandalising – thus it is an abstract concept – ex

6/9/2021

Contempt by the judges – contempt of court by judges – can they do the

contempt – Section 16 of act

16. Contempt by judge, magistrate or other person acting judicially.—(1) Subject to the
provisions of any law for the time being in force, a judge, magistrate or other person acting
judicially shall also be liable for contempt of his own court or of any other court in the same
manner as any other individual is liable and the provisions of this Act shall, so far as may be,
apply accordingly.

Exception - (2) Nothing in this section shall apply to any observations or remarks made by a
judge, magistrate or other person acting judicially, regarding a subordinate court in an
appeal or revision pending before such judge, magistrate or other person against the order
or judgment of the subordinate court. (thus it does not amount to contempt of court).

This section exception same as section 6 - 6. Complaint against presiding officers of

subordinate courts when not contempt.—A person shall not be guilty of contempt of
court in respect of any statement made by him in good faith concerning the
presiding officer of any subordinate court to—
(a) any other subordinate court, or
(b) the High Court, to which it is subordinate. Explanation.—In this section,
“subordinate court” means any court subordinate to a High Court.

In lawyers profession whenever statement are made, it may not be made with intent
of contempt but situations may cause contempt – even judges have to speak within
limit – sanjay Krishna paul judgment – SC said judges must know the limtis and
must not behave like emperors, this was doen when there was a summon issued
against govt officer – here public officer was routinely called on summon – they said
there is a lien of separation of power which cant be crossed and pressuring them to
pass order against whims and fancies.
Allahnbad case – person routinely asked – have to decide limit – public officer msut
not be distirubed continosuly without cause, othersiwe he have to leave the task.
Justice karnan of Calcutta hc/madras hc

Does press conference amount to contempt – is it contempt of court?

In press conference

Tomm – insatcnes of contempt by judges.

Wrt ca 2 – topic 3 - advocates act from sec 35 – misconduct and topic 5.

Cases wrt contempt by judges.

Case Name – sukhdev singh sodi v. CJ and judges of hc of Bengal 1954 case SC –
maam will mail cases.

7/9/2021

Relation between contemept and ethics?

Duty of advocate to keep dignity of judges – have to follow code of conduct by bci
and have duty towards courts = have to take into consideration dignity of judges
and have to perform function in such manner.

Court of conduct – not doing any act against dignity of court – conduct msut not be
disrespected.

What act cosnitutes misconduct or contempt?

Prashant bhushan case – cji not follwign the nroms– what amoutns to mis docnut
or contempt – is it defined anywhere.

There is no def of misconduct and contempt – criminal contempt on other hand has
wide interpretation – what act is against court or judges and is not described.

Similarly even judges have to observe rules and any personal comment by them
during proceedings amouts to contempt – it is like?

The act has a very wide interpretation on contempt and misconduct – very
interesting area where wide discussion is possible.

Next topic – duties?

8th September 2021

Today – see duties of the advocate.

How are duties connected with professional ethics?

What is the interconnection? What does ethcis demand and what is need of advocates – what is
duties of advocates, they have duties not just with cilents but wrt other apsects as well – towards
courts , cients , towards witness of opposite party and towards judiciary, this means there is
repsobiltiy associated with each and every advocate. Talking of connection with ethics. Some
profession requires some ethical standards to be followed – required in every profession. As
profession has own value in society – what exactly does advaote have value in society to require
soecufc behaviour.

Give write up on this – what is value of advocate in society which requires high standard of
professional ethics from advocate – analyse this statement.

Topic 3 – advocate act and 5 – contempt of court.

13th September 2021 –

Where is code of conduct defined.

Advocates are very imp – vital role in administration of justice – they have also considered
concnecting link between masses and judiciary – cases of general masses are rleosved by adovates,
thus very imp to act accordingly – set of rules which have to be followed which is essential for their
profession, thus those rules govern conduct of any advocate in court of law, these rules are
mentioned udner which act.

15/09/2021 - no class

16/9

We are discussing the title of course which is professional ethics – ethics require legal standard as
we discussed all the time – professional ethics for every society – there ahs to be high ethical
standard of lawyers which have to be maintained as if there is a kind of trust in legal profession, it
helps to maintain peace in society. Ethical std – there are diff norms and duties – is advocare duty
bound just towards the client as he is officer of court – behaviour and mannerism is imp - also the
way they reopresent themesleves in front of judges is imp – if advocate have high standard and
vaue, they are appraised for same. Thus how do they rpesent in front of judges is imp.

Can advocates be laible for contempt – yes , even adovctaes and judges are liable for contempt – to
ascertain the std followed. An advocate shall at all times must present himself in a manner which fits
himself as an officer of court and have to behave as a privileged member of society – lawyers are
privileged and rpeosnbile to amitnain trust, accesibiltiy of justice because of this. This is why they are
prvivleged member of society and have to keep standard high.

Thus everybody and everyone msut have knowledge of law and know basic alw otherwise he can
laible for commission of offense, thus law is of so much imp and advocates beign officers of law are
also imp. As there are number of advcoates we sideline lawyers.

What kind of rleaitonship between elcient and advocate – privilege – confidentiality – reveal each
and every fact to the advocate – thus keep nothing hidden from doctors and advocates – thus must
not conceal any facts to reveal from diseases , thus have to reveal each and evry fact to advocate –
thus the relation of trust and fiduciary rleaiton exists, thus we see how imp this thing is.

Thus this seems as talk but this is reality – if we are loyal to profession new have to maintain this
standard towards profession and clients. This provision is also very general norm – do any work with
100% dedication. We learn by praciting and expreicning things in real life. Mental satisifaction are
imp as well.

Thus ethics is imp – cant feel in form of cash or kidn but by way of mental satisfaction – helped so
many people – thus when you have been apid for services , you try to give 100% as sometimes we
never go for certain money but mental satisifaction – by doing legal aid work – getting two things
mental satisfaction nd getting some amount of money, thus this profession demands charity – even
doctors do charity – they earn money on day to day basis and conduct camps which give free
services in whatever form – thus it is not satisifaction thorugh money but there ahs to be time for
emntal satisifaciton – ethcis teaches us this.

Thus have to think from perspective of other person when we fail to do what the other person wants
us to do – if requirement in our cpapcuty then we must do it. If we act as legal aid lawyer, must give
100% to him so that if he does not give fees but gives good wishes - thus these thigns matter
sometimes.

Thus advocates are officers of court , it is very much imp aspects that they must act without
prejudice to generality of foregoing obligation to uphold interest of client. Thye msut confork
themselves to rules ad give 100% to the client.

Before duty fo advocates and courts and others, let us talk about category of advcoates.

Section 16 in THE ADVOCATES ACT, 1961

16. 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 interest of the legal profession, prescribe.
(4) An advocate of the Supreme Court who was a senior advocate of that Court
immediately before the appointed day shall, for the purposes of this section, be deemed
to be a senior advocate: 2[Provided that where any such senior advocate makes an
application before the 31st December, 1965 to the Bar Council maintaining the roll in
which his name has been entered that he does not desire to continue as a senior
advocate, the Bar Council may grant the application and the roll shall be altered
accordingly.]
Do their duties differ?

Section 16-

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, 3 [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.

4) An advocate of the Supreme Court who was a senior advocate of that Court immediately before
the appointed day shall, for the purposes of this section, be deemed to be a senior advocate: 4

Provided that where any such senior advocate makes an application before the 31st December, 1965
to the Bar Council maintaining the roll in which his name has been entered that he does not desire
to continue as a senior advocate, the Bar Council may grant the application and the roll shall be
altered accordingly.

If he is senior advocates, rights and duties must also be different of senior and junrio advocate.

Let us discuss the provisons – it provides for division of abr, the status of senior advocate is
conffered by sc and hc

What is enrollemnt date.

Criteria to determine senior and other advocates? – it is only on basis of merit.

(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, 3 [standing at the Bar or special knowledge or
experience in law] he is deserving of such distinction.

If person is a very good orator and if person has those skills can he be prefferd over other lawyers as
senior advocates.

An advocate can be senior advocate if by virtue of his ability he deserves such distinction – use of
word or.

Further section says that subject to

(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.

What are these restrcitions this sec talks about? – prohibited from darfting , notices and minor legal
work. Thus senior advocate is prohibited to do such work. Where is this prohibiton mentioned.

Democractic bar association v. high court of judicature – 2000 case – allhabaad high court case. This
case talked about the fact that senior advocate designation cant be claimed as a matter of right and
is the discretion of court, anme can be considered only after recommendation of high court and
lawyer of any court can be taken into consideration. Thus it is not senior advocate v high court but it
can be discretion of court to distinguish after consent, can be made senior advocate. Thus it is not
matter of right.

Even district court lawyers can be made senior advocate on absis of emrit. After diistingusih is doen
of senior and junior, udner advcoates act said there are diff gowns , a diff gown by sneuor advocate
which is diff in design and which is kind of very diff thing which diff between senior and junior
advocate.

Does this amount to art 14 diff – no , case on this – delhi hc case is there on this, violation of article
14 as it need to diff between senior and other advocate on basis of merit. We have distinguished to
show that some kind of symbol of senior advocates.

Further an advocate is as imp as judgeas judge is mere spectator and lsitens to what advoctaes says,
thus in ocurt of alw both are very imp , and their duty is as imp as that of judge as they are
rpesonsible to society.

Thus talka botu advocate and client relationship – it si fiduciary rleaiton based on trust, when such
trist is there than there si requriemnt of sincerity a, honesty and repsct to each other.

Thus misocudt must form req of law. Advocate is also under obligation to uphold rule of law. Thus he
msut uphold rule of alw so that public justice system is enable to function at its full potential.

Last point – next class duties of advocates towards client – even if a minute violation is there or
ignorance of any minor level or misconduct from advocate, ti goes against fudnamteal foundation of
public justice system, thus he msut be dignified to ocurt and fellow layers and litigants and must
have itnegroyt and never do naything which tarnishes his credibility and there is also duty towards
junior lawyers. Also legal profession as an angle of service and must abide of all standard of
professional conduct of chapter 2 of abr council of idnai rules and this is evry much mp to abide with
these rules and regualtions.

One case alw – op sharma and others v high court of Punjab and Haryana 2011 case law.

Where stated that senior advocate are prohibited to do some work.

17/9

2) Under Order 4 Rule 7 of Supreme Court Rules 1950, which provides that senior advocate
shall not draw pleadings, Affidavit, Advice on evidence, and Statement of cases or do
any drafting work of any kind in any court. This restriction does not apply to discuss the
same work with the junior Advocate.

CHAPTER -I

Restrictions on Senior Advocates

(Rules Under Sections 16 (3) and 49 (1) (g) of the Act)

Senior Advocates shall, in the matter of their practice of the profession of law mentioned in
Section 30 of the Act, be subject to the following restrictions:

(a) A Senior Advocate shall not file a vakalatnama or act in any Court, or Tribunal, or before any
person or other authority mentioned in Section 30 of the Act.

Explanation : “To act” means to file an appearance or any pleading or application in any court or
Tribunal or before any person or other authority mentioned in Section 30 of the Act, or to do any
act other than pleading required or authorised by law to be done by a party in such Court or
Tribunal or before any person or other authorities mentioned in the said Section either in person
or by his recognised agent or by an advocate or an attorney on his behalf.

(b) (i) A Senior Advocate shall not appear without an Advocate on Record in the Supreme Court
or without an Advocate in Part II of the State Roll in any court or Tribunal or before any person or
other authorities mentioned in Section 30 of the Act.

Also restriction on gown.

Maam – after designation as supreme court - BAR COUNCIL OF INDIA RULES – Chapter I part IV –
from a to e – are rules which say that senior advocate shall not file vakalatnama – shall not
appear without an advocate in any court and not accept isnturcitons to draft evidence or do any
drafting work and he may not undertake any work of any kind whatsoever but must work in
consultation with advocates – these are pertaining to senior advcoates.

Furher senior advocate must not accept brief or etc to appear before tribunal to appear before
any authorities etc.

Further senior advocate shall not after designation advice on gorund of appeal except as an
advocate.
Even though it is not amndatory – ex when new batch comes, senior tells them to access
manupatra etc to them. It is kind of work done by every committee – similarly for senior advocate
– he must promote , guide and encourage junior advocate to learn professional skills and
financial support for their sustennciae – it is not mandatory duty but moral duty.

DIFF in practice and reality – in real practice most depends upon steps or statutory provision.
Depends on facts and scenario – teach juniors how law works when we go on practicality – have
to be very rigid and flexible – not as per book – as so much of expreicne of senior, they must
share it with junior advocates, so that they may know the procedural aspect of court of law. This
is a moral duty.

Duty of advocates towards client – relation between client and advocate is based on fiduciary
relation.

Here client ahs utmost trust and belief towards advocate – other side ahs some duty and
obligation to take care of the client – someone who has blind trust or faith – he must be duty
bound to take care of interest and must be in a psoiton to tell client what law says and provision
applicable to his case.

Lawyering is a chess game. Why? – probabale next step of opponenet , read his mind and
accordingly make a decision.

Advocate is duty bound to tell law and tell the available remedies to the advocate.

Another duty, advocate must not hrt the sentient or interest of client, must not do such acts
which advocate is supposed to do- not such to hurt cleint’s interest. It is also duty of advocate to
defends person accused of crime. But if person is doing crime against country then he is duty
bound to not help the person but even in cases of human rights etc. cases of ajmal kasab – have
to be aprt of case to defend as it is moral duty of advocate to be represented by a lawyer etc.
these are basic rights must be given to person even though they are in charge of committing the
crime but while case if client admits crime then advocate must not defend client.

SECTION II - DUTY TO THE CLIENT

 
11.      An Advocate is bound to accept any brief in the Courts or Tribunals
or before any other authority in or before which he professes to
practise at a fee consistent with his standing at the Bar and the nature
of the case. Special circumstances may justify his refusal to accept a
particular brief.
15.      It shall be the duty of an Advocate fearlessly to uphold the interests of his client by all fair and
honourable means without regard to any unpleasant consequences to himself or any other. He shall
defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused,
bearing in mind that his loyalty is to the law which requires that no man should be convicted without
adequate evidence.
PD gupta v ram murty air 1998 sc 283 – another case – harish Chandra Tiwari v baiju air 2002 sc 538
– go through these cases and then continue.

20/9/2021

Op sharma v high court of Punjab and Haryana – suties of senior and other advocate,

Now duties towards the cleints – given under abr council of India rules, Chapter II, division, we
discussed that advocate is an officer of court and owes duty towards diff people like client, judge ,
court etc.

We discussed about advocate bifurcation of seniroa dn other advocate.

Now duty of advocate towards cleient – to maintain confidentiality.

2nd – cant withdraw from case.

4) 4. No transaction with the property of the Client:

4.1) In case of P.D Gupta Versus Ram Murti (AIR 1998 S.C 283)
Supreme Court held that buying the disputed property of client is
professional misconduct.

Advcioates of high court can excerise lien

First duty – every indivudal has right tobe repesnted , if he cant afford then legal aid is given to him
for better and complete representation, thus advocate is bound to accept any brief before which he
proposes to practice – special circumtances may justify not givng brief – lawyers msut provide legal
aid services and hence they are bound to do so.

Also in ocurt of law, person with degree can represent. Enrollemnt with abr council is also required.
Thus wrt lawyers people will have tenducny to fight legal issues – lawyers with courts and cleitns,
thsu duty to accept any brief – they have right to represent – second, an advocate shall not
withdraw from eneganemnt oince they ahev accepted it unless there is sufficient cuase or
resoabnble gorund, that too after serving notice to client. Thus advocate msut not withdraw from
case in between , he has to give reasona dn pay back the fees also.

Third – he must not accept beirf or appear in a case where he will be a witness – thus he cant be
advocate where he himself can be witness. If engaged ina material case, he cant withdraw without
jeopardising clinets’s case.

Next – it si duty of advocate to uphold interest of client by all fair and honourable rights. Without
regard to any unpleasant cosnequences and must defend person regardless of guilt – which syas that
no man be convticed without adequate eveidnece.
When a lawyer takes case, his personal opinion on guilt is irrelevant and opinion of judge only
matters. Judgements are opinion only?

It is not their personal opinion , it is opinion given on basis of eveidnece given.

Lawyers must put forth the character of entrie incident which happened along with proper evidence,
an advocate appearing for prosecution of criminal trial and suppression of amterial fact must be
avoided, thus it is necessary in criminal cases, must prove that threshold is very high and no single
window left for doubt whenever a person appears, must bring forth all evidence where inncocne can
be proved and any material fact ust be brought before court.

Next – advocate msut not commit breach of section 126 of indian evidence act.

126. Professional communications.—No barrister, attorney, pleader or vakil shall at any

time be permitted, unless with his client’s express consent, to disclose any
communication made to him in the course and for the purpose of his employment as
such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the
contents or condition of any document with which he has become acquainted in the
course and for the purpose of his professional employment, or to disclose any advice
given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure—

(1) Any such communication made in furtherance of any 1[illegal] purpose; 2[illegal]
purpose;"
(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his
employment as such, showing that any crime or fraud has been committed since the
commencement of his employment. It is immaterial whether the attention of such
barrister, 2[pleader], attorney or vakil was or was not directed to such fact by or on
behalf of his client. Explanation.—The obligation stated in this section continues after
the employment has ceased.
Illustrations
(a) A, a client, says to B, an attorney—“I have committed forgery, and I wish you to
defend me”. As the defence of a man known to be guilty is not a criminal purpose, this
communication is protected from disclosure.
(b) A, a client, says to B, an attorney—“I wish to obtain possession of property by the use
of a forged deed on which I request you to sue”. This communication, being made in
furtherance of a criminal purpose, is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the
course of the proceedings, B observes that an entry has been made in A’s account-book,
charging A with the sum said to have been embezzled, which entry was not in the book
at the commencement of his employment. This being a fact observed by B in the course
of his employment, showing that a fraud has been committed since the commencement
of the proceedings, it is not protected from disclosure.

Advocate msut not agree to recive any actionable claim. What are actionable claim? An advocate
shall not buy or agree to recive any share or interest in actionable claim

Some aprt lost – take from shubha.

Actionable claim means a debt or a claim on which action can be started in a Court of law for
comfort or relief.

It states that advocate shall not buy or bring actionable claim and say that he does not have
share.
Nothing shall apply to stock debenture of government authorities.
What does this point mean? This means that an advocate can claim any right over types of
claim over government security.

22/09/2021
Advocates duty towards the court – odne yesterday.
Yesterday we talked about thing where person did not wear gown, what is consequence? If
he dioes not appear in proper dress code – it amoutns to miscodncut, there are different
case laws on this, where adovcates requited to do away with balck coats and gowns, no ac
chamber, becomes difficult to survive – asked senior and junior advcoates as to why need to
wear different gowns, there have been diff cases wrt to this.
Madurai bench hc case, 2020 case.
Cant find name of case, thye said in that case, Madurai bench of madras high court ordered
and directed to not wear neck coats during strikes. Here directed that advocate should not
wear gown and coat during stoirkes and not misuse the dress code and endorse it during
strike – see case name here?
Another division bench direction passed in PIL filed by advocate B ram kumar – who sought
direction for advocate to not wear gown during strike, thus in this pil said advocate is not
following norms and another things, they said that advocates are seen wearing different
color dresses which dimishes majesty of law.
And he filed a PIL to direct adovcates and said msut not wear any other attire, further said
that even though advocate prohibited to go on strike, they still go on strike and aprt of
boycott and they wear gown and nech bands, hence here direction is given by court.
Strike is not proper way, when they go , msut not use gown etc.
And wrt improer dressing, statement by patna high court - cases where fine imposed by
ocurt for not adhering to the dress code – instances where experience of relative going to
court without night suit and officer got angry and said it is not a jogging place, thsu even in
court cases, there have been very much strictness for hoiw to be represented in corut – n
ofine for dress code and penalty extending to 2000 rupees. Patna hc imposed fine for two
officals for not being properly dressed. Chief secretary – strcit implemantion for how official
appear in court.
Thus it is very important – another case in Punjab and Haryana high court – where concept
for not following dress code –wearign kurta pyjama where, high court was nagry and gave a
good lecture, all these thigns have to be kept in mind as it is unporfessioanlsim – not
follwoign proper attire or dress code presirbed, if cpourt allowed then?
Furnishing or inspiring newspaper – where engaged, the sign post must not indicate that he
is member of bar council.

Any additional or other input approved is deemed to be violation of rule 36 and laible for
misdocnut udner advocates act.

Rule 36: An advocate shall not solicit work or advertise, either directly or indirectly,
whether by circulars, advertisements, touts, personal communications, interviews not
warranted by personal relations, furnishing or inspiring newspaper comments or producing
his photographs to be published in connection with cases.

Not standing under intimation 2 – as per bar council.

Wrt general duty – which every advocate should abide with – training and legal aid.
Tlakign of training – imporeor for advocate to demand any premium under rules prescribed
by bar council under advocatesact 1961 – thus senior advocates imparting training to junior
– duty bound to continue to do so.

Legal aid – right to legal aid – is it fundamental or legal right? – it is dpsp – directive. But as
per article 21 – it is fundamteal right.
Thus it is duty of every advocate to render legal aid and give legal assistance is highest
obligation which advocate owes towards society. Thus there is obligation of legal aid.
Our country does not appreciate the act but huge appreciation in foreign country.
In free legal aid, the client gets free service but the advocate still gets some fee. This is one
of the duty – last section of duty – tomorrow.

23/09/2021

29/09/2021
One case and question
- difference between cosnequences faced by usa and uk – in usa they give a
punishment which contributes more towards society. In Australia, thye had diff
concept of legal aid and services.
- Which country has more standardised professional ethics which are more prone
towards society and abiding.
-
1/10/2021
2 hindrcnes wrt access to justice. Lengthy time of disposal of case and financial cosntraitns
and to overcome this, we came up with free legal aid – for every problem there is a solution
– remedy given? For spedy disposal – fast track courts
4/10 – free class.
5/10
Need for code of ethics – tomorrow. The portion is over for now. Maam will just do revision
henceforth.

6/10 – free class

7/10
Diff between lawyers and advocates – those who have degree are lawyers and capable to
give legal advice are lawyers. An advocate in enrolled udner advcoates act. And he has right
to represent cleints in court. This si diff between trained alwyers and others.
Any other categories of lawyers udner indian jursidciton.
Senior advocates and other advocates.

Section 16 provides that there shall be two classes of advocates, namely, senior advocates and
other advocates. 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, standing at the Bar or
special knowledge or experience in law, he is deserving of such distinction. 

Than there are adovcates on record.

Advocate on Record is an advocate who is entitled under the Order IV of the Supreme Court
Rules, 2013, framed under Article 145 of the Constitution, to act as well as to plead for a party in
the Supreme Court of India.

Solicitors are those who advise the clients and draft documents and pleadings for the clients
but engage advocates to appear in the court on behalf of the customer. They can cover
large clientele, unlike the advocate who has a limited number of clients because they have
to advise and appear for them in the courts.
For lawyers as they are responbile to court for fair and honest conduct of case and they are
considered as agent of court of law in administration of justice – there is still repsobility even
after judgement is given and cosnignemtn ends up. Post contract also the agent is laible.

One of statements – advocate share repsobiltiy to maintaitn order in community. They

provide legal roder which provides goblal roder in society. Cl anand case law – hemraj v bar
council of mahrashtra and goa air 1996 sc 1708 where sc observed that legal rpfoession is
profession of great honor created not for private gain but for overall good, it is a branch of
admisnitration fo justice, as it is not business, a lawyer cant solicit or advertise either directly
or idnrectly. An advocate is an officer and is required to miantian an attitude, keeping in mind
that it is eesentialf or survival of society. Legal profession is oartner with judiciary in
amdinsitration fo society.
Prior to modern day – there was arthashastra – not so much development – we had diff
rulers – like hindu muslim and chanayka neeti - did hindu kings appointed lawyers.

10/08/2021