POWERS OF DISCIPLINARY COMMITTEE UNDER THE ADVOCATES
ACT, 1961
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Introduction :
Section 42 of Advocates Act 1961, provides the Powers of Disciplinary
Committee of a Bar Council. The Provisions of this Section are same for both, the State
Bar Council as well the Bar Council of India.
2. Constitution / Composition of Disciplinary Committee
According to Section 9 of Advocates Act 1961 A Bar Council shall constitute
one or more disciplinary committees, each of which shall consist of three persons of
whom two shall be persons elected by the Council from amongst its members and the
other shall be a person co-opted by the Council from amongst advocates who possess
the qualifications specified in the proviso to sub-section (2) of section 3 and who are
not members of the Council, and the senior-most advocate amongst the members of a
disciplinary committee shall be the Chairman thereof.
3. Powers of Disciplinary committee
1) The disciplinary committee of a Bar Council shall have the same powers as are
vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of
the following matters, namely —
(a) summoning and enforcing the attendance of any person and examining
him on oath;
(b) requiring discovery and production of any documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copies thereof from any court or
office;
(e) issuing commissions for the examination of witness or documents.
(f) any other matter which may be prescribed:
Provided that no such disciplinary committee shall have the right to require
the attendance of —
(a) any presiding officer of a Court except with the previous sanction of the
High Court to which such court is subordinate;
(b) any officer of a revenue court except with the previous sanction of the
State Government.
2) All proceedings before a disciplinary committee of a Bar Council shall be deemed
to be judicial proceedings within the meaning of sections 193 and 228 of the Indian
Penal Code, 1860, and every such disciplinary committee shall be deemed to be a civil
court for the purposes of sections 480, 482 and 485 of the Code of Criminal Procedure,
1898.
3) For the purposes of exercising any of the powers conferred by sub-section (1), a
disciplinary committee may send to any civil court in the territories to which this Act
extends, any summons or other process, for the attendance of a witness or the
production of a document required by the committee or any commission which it
desires to issue, and the civil court shall cause such process to be served or such
commission to be issued, as the case may be, and may enforce any such process as if it
were a process for attendance or production before itself.
4) Notwithstanding the absence of the Chairman or any member of a disciplinary
committee on date fixed for the hearing of a case before it, the disciplinary committee
may, if it so thinks fit, hold or continue the proceedings on the date so fixed and no
such proceedings and no order made by the disciplinary committee in any such
proceedings shall be invalid merely by reason of the absence of the Chairman or
member thereof on any such date:
Provided that no final orders of the nature referred to in sub- section (3) of section
35 shall be made in any proceeding unless the Chairman and other members of the
disciplinary committee are present.
Sub-section (3) of Section 35 :
"The disciplinary committee of a State Bar Council after giving the advocate concerned
and the Advocate-General an opportunity of being heard, may make any of the
following orders, namely —
(a) dismiss the complaint or, where the proceedings were initiated at the
instance of the State Bar Council, direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem
fit;
(d) remove the name of the advocate from the State roll of advocates."
5) Where no final order of the nature referred to in sub-section (3) of section 35
can be made in any proceedings in accordance with the opinion of the Chairman and the
members of a disciplinary committee either for want of majority opinion amongst
themselves or otherwise, the case, with their opinion thereon, shall be laid before the
Chairman of the Bar Council concerned or if the Chairman of the Bar Council is acting
as the Chairman or a member of the disciplinary committee, before the Vice-Chairman
of the Bar Council, and the said Chairman or the Vice Chairman of the Bar Council, as
the case may be, after such hearing as he thinks fit, shall deliver his opinion and the
final order of the disciplinary committee shall follow such opinion.
REMEDIES AGAINST THE ORDER OF PUNISHMENT PASSED BY THE
DISCIPLINARY COMMITTEE
Section 35 of Advocate Act 1961 provides for punishment for professional
misconduct or other misconduct. In exercise of powers under Section 35 of the
Advocate Act, on receipt of a complaint against an advocate or suo moto, if the State
Bar Council has reason to believe that any Advocate on its roll has been guilty of
professional or other misconduct, disciplinary proceedings may be initiated against him.
The Disciplinary Committee of the State Bar Council is empowered to inflict
punishment including removal of his name from the rolls of the Bar Council and
suspending him from practice for a period deemed fit by it, after giving advocate
concerned and the Advocate-General of the state an opportunity of hearing. However,
an appeal against the order of the Disciplinary Committee may be preferred to the bar
Council of India under Section 37 and thereafter to the Supreme Court of India against
the order of the Bar Council of India under the section 38 of Advocate Act, 1961.
The Advocate Act provides remedies against the order of punishment. An
advocate aggrieved by the order of Disciplinary Committee can evoke the following
remedies -
1) Review
2) Revision
3) Application for Stay
4) Appeal
1) Review :
It is provided in Section 44 of the Advocates Act,1961. By virtue of this
Section the Disciplinary Committee of Bar Council of its own motion or otherwise
review any order, within 60 days of the date of order passed by it under this Chapter.
However, no such order of Review of the Disciplinary Committee of a State Bar
Council shall have effect, unless it has been approved by the Bar Council of India.
According to Section 48-AA of the Bar Council of India or any of the its
Disciplinary Committee, may on its own motion or otherwise, review any order, within
60 days of the date of that order, passed by it under the Advocate Act 1961.
The procedure for making review application is given in chapter II, Part VII of the
rules of the Bar Council of India. It is in the form of petition duly signed and supported
by an affidavit accompanied by prescribed fee and certified copy of the order,
complained of.
Rules For Review under Section 44 of the Act as follows
(1) An application for review under Section 44 of the Act shall be in the form of a
petition duly signed and supported by an affidavit accompanied by the prescribed fee
and filed within 60 days from the date of the order sought to be reviewed.
(2) Every such application shall be accompanied by :
(a) certified copy of the order complained of.
(b) five additional copies of the application, affidavit and the order; and
(c) if there are more respondents than one, as many additional true copies as
may be necessary.
(3) Every such application shall set out the grounds on which the Review is sought
and shall further state whether any proceeding in respect thereof was filled and is still
pending or the result thereof as the case may be.
(4) If a Disciplinary Committee of Bar Council does not summarily reject the
application under Section 44 of the Act, or wishes to exercise its powers under Section
44 suo motu, the secretary of a Bar Council shall issue as nearly as maybe in the Form,
notice to the parties and to the Advocate-General concerned or the Additional
Solicitor-General of India in the case of the Bar Council of India.
(5) (1) If after the hearing referred to in rule 4, the Disciplinary Committee of a State
Bar Council does not dismiss the application, and decides that the application for
review should be allowed, the copy of the order along with the relevant record shall be
sent to the bar council of India for approval.
(2) If the Bar Council of India approves the order of the Bar Council, the
Disciplinary Committee of the State Bar Council shall communicate the order to the
parties, if the bar council of India does not approved it, the Disciplinary Committee of
the State Bar Council shall make its order dismissing the application and inform the
parties.
(6) The decision of the Disciplinary Committee of the Bar Council of India on an
application for Review of its order shall be communicated to the parties.
(7) In the proceedings under this chapter, unless the disciplinary committee of the
State Bar Council or the Bar Council of India, as the case may be otherwise decides, the
parties may appear by the Advocate who shall file a Vakalatnama signed by the party.
2) Revision Section. 48-A (Amendment 1964 )
1) The Bar Council of India may, at anytime call for the record of proceeding
under this Act which has been disposed of by the State Bar Council or a Committee
thereof, and from which no appeal lies, for the purpose of satisfying itself as to the
legality or propriety of such disposal and may pass such orders in relation thereto as it
may think fit.
2) No order which prejudicially affects any person shall be passed under this
section without giving a reasonable opportunity of being heard.
3) Application for Stay -
According to Section 40(1) of the Advocate Act,1961, 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 India and 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. Rule 29 of chapter I Part VII of the Bar Council of India Rules provides that
an application for stay shall be accompanied by an affidavit and the fee prescribed by
the Bar Council of India.
4) Appeal -
A) Appeal to the Bar Council of India
B) Appeal to Supreme Court
A) Appeal to the Bar Council of India -
In case the order of punishment has been passed by the Disciplinary
Committee of the State Bar Council, an Appeal may be preferred to the Bar Council of
India under Section. 37 of the Advocates Act,1961. It provides that any person
aggrieved by an order of the Disciplinary Committee of a State Bar council made under
Section 35, of the Advocate-General of State may, within 60 days of the date of the
communication of the order to him, prefer an appeal to the Bar Council of India. Under
Section 37(2), every such Appeal shall be heard by the Disciplinary Committee of the
Bar Council of India which may pass such order including an order varying the
punishment awarded by the Disciplinary Committee of the State Bar Council thereon as
it deemed fit ;
Provided that no order of the Disciplinary Committee of the State Bar Council
shall be varied by the Disciplinary Committee of the Bar Council of India so as to
prejudicially affect the person aggrieved without giving him a reasonable opportunity of
being heard.
B) Appeal to Supreme Court -
As per section 38 of the Advocates Act,1961 any person aggrieved by an order
made by the Disciplinary Committee of the Bar Council of India under Section 36 or
Section 37 or the Attorney-General of India or the Advocate-General of the State
concerned, as the case may be, may, within 60 days of the date on which the order is
communicated to him, prefer an appeal to the Supreme Court and the Supreme Court
may pass such order including an order varying the punishment awarded by the
disciplinary committee of the Bar Council of India thereon as it deems fit :
Provided that no order of the Disciplinary Committee of the bar Council of India shall
be varied by the Supreme Court so as to prejudicially affect the person aggrieved
without giving him a reasonable opportunity of being heard .
The Bar Council of India has framed the rules as to the procedure to be observed
in case of Appeal. The Appeal memo in a prescribed form to be accompanied with the
certified copy of the order appealed against signed by the appellant with a prescribed
fee within limitation period. Delay can be condoned if satisfactorily explained and to be
supported by an affidavit.
Thus, an appeal against the order passed by the Disciplinary Committee may be
preferred to the Bar council of India and an appeal against the order of the Bar council
of India may be preferred to the Supreme Court.
Case law
O.N. Mohindro vs District Judge, Delhi , AIR 1971, SC 107
In this case it was held that the appeal to the Supreme Court is not a restricted
Appeal. It is not an appeal on law alone but also on fact. Supreme Court must in all
cases go into the matter to satisfied itself that justice has been done by the Disciplinary
Committee Committees. The Supreme Court possesses under the constitution special
power of review and futher may pass any order to do full and effective justice under
section 38 Supreme Court has jurisdiction to pass in such appeals any order it deems fit
