KAMKUS COLLEGE OF LAW

B.A.LL.B. VIITH SEMESTER

PROFESSIONAL ETHICS, ACCOUNTANCY OF LAWYERS AND BAR
BENCH RELATON
Code (BL-7005)

LONG QUESTIONS WITH ANSWER

Q. 1. EXPLAIN HISTTORICAL PERSPECTIVE AND REGULATION OF LEGAL

PROFESSION?

INTRODUCTION

Law is the set of rules and regulations governing a society. It is a full-fledged subject studied by
those who wish to enter the legal field. The history of the legal profession in India can be traced
back to the establishment of the First British Court in Bombay in 1672 by Governor Aungier.
The admission of attorneys was placed in the hands of the Governor-in-Council and not with the
Court. Prior to the establishment of the Mayor’s Courts in 1726 in Madras and Calcutta, there
were no legal practitioners.The Mayor’s Courts, established in the three presidency towns, were
Crown Courts with the right of appeal first to the Governor-in-Council and a right of the second
appeal to the Privy Council. In 1791, Judges felt the need of experience, and thus the role of an
attorney to protect the rights of his client was upheld in each of the Mayor’s Courts. This was
done in spite of opposition from Council members or the Governor. A second principle was
also established during the period of the Mayor’s Courts. This was the right to dismiss an
attorney guilty of misconduct. The first example of dismissal was recorded by the Mayor’s Court
at Madras which dismissed attorney Jones.

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 THE CHAMIER COMMITTEE

To remove all distinction enforced by statue or by practice between Barristers and Vakils Munshi
Ishwar Saran moved a resolution-in the Legislative Assembly recommending legislation in
February 1921. Though the removal of the distinction between Barristers and Vakils was the
primary focus, the resolution advocated the constitution of a recognized body consisting
exclusively of lawyers in India to provide for legal education and to deal with all others matters
relating to the legal profession. This was deemed important because many High Courts exercised
disciplinary powers over lawyers on the theory that Vakils were officers of the court.

THE INDIAN BAR COUNCILS ACT, 1926

To materialize the recommendations of the Chamber Committee, the Indian Bar Councils Act,
1926 enacted to provide for the constitution and incorporation of bar Councils for certain Courts
in British India, to confer powers and impose duties on such bar Councils, and to consolidate and
attend the law relating to legal practitioners entitled to practice in such courts. Unification of the
various grades of legal practitioners and self-governance to the bars attached to the various
Courts were the main purposes of the Act.

MAIN FEATURES

The Act extended to the whole of British India, but it was applied immediately only to the High
Courts of Calcutta, Madras, Bombay, Allahabad and Patna. The Act could be applied to such
other High Court as the “Governor-General in Council may, by notification in the Official
Gazette, declare to be High to which the Act applied.” Sections 3 to 7 of the Act dealt with the
constitution and incorporation of a Bar Council as a body corporate and its powers of making
by-laws.

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ALL INDIA BAR COMMITTEE, 1951

The Indian Bar Councils Act had left the pleaders, Mukhters etc. practicing in the mofussil
courts entirely out of its scope and did not bring about a unified Indian Bar. Further, the Councils
constituted under the Act were merely advisory bodies and were neither Autonomous nor had
any substantial authority. The Indian Legal profession was not satisfied with what had been
achieved by the Act of 1926. The Indian Practitioners had three main aims in view, namely:

1. The abolition of all distinctions between various classes and grades of the legal practitioner,

2. The Democratic of Bar Councils by bringing in representatives Mofussil Lawyers on them,

3. The taking away of the control exercised by the High Courts over the members of the legal
profession, and vesting the same in the Bar Council.

THE ADVOCATES ACT, 1961

In 1961, parliament enacted the Advocates Act to amend in consolidated the law relating to the
legal practitioner, and to provide for the constitution for the State Bar Council and All India Bar
Council. The Advocates Act implements the recommendation of the Bar Committee in the Law
Commission with some modifications. It repeals the Indian Bar Council Act, 1926,the Legal
Practitioners Act, 1879, in other laws under subject. The act has undergone several amendments
since its enactment in 1961. The Act extends to the whole of India.

THE BAR COUNCIL OF INDIA

The Act establishes an All India Bar Council for the first time. The Attorney General of India in
the Solicitor General of India is the ex-officiousness members of the Bar Council of India.
Besides, it has one member elected by its State Bar Council from among its members The
Council elects its own chairman and vice-chairman. The Bar Council of India has been entrusted
inter alia with the following important functions:

(1) To lay down standards of professional conduct and etiquette for advocates.

(2.) To promote legal profession

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(3.) To safeguard the rights, privileges and interest of advocates

(4.) To organize legal aid to the poor.

(5.) To promote and support law reform

(6.) To exercise general supervision and control over state bar council

STATE BAR COUNCILS

The Act creates a State Bar Council in each state. It is an autonomous body. The Advocate
General of the state is an ex-officio member, and there are 15 to 25 elected advocates. These
members are to be elected for a period of five years in accordance with the system of
proportionate representation by means of single transferable votes from among-st advocates

advocates on the roll of the State Bar Council. The State Bar Council has the power to elect is
own chairman. The main powers and functions of the State Bar Council are:

(a) To admit persons as advocates on its roll

(b) To prepare and maintain such rolls.

(c) To entertain and determine cases of misconduct against advocates on its roll

(d) To safeguard the right, privileges and interest of advocates on its roll

(e) To promote and support law reform

(f) to organize legal aid to the poor

Thus, every State Bar Councils prepares and maintains a roll of the advocate as an authenticated
copy of the roll which is to be sent to the Bar Council of India.

Advocates have been classified into Senior Advocates and other Advocates. An Advocate may,
with his consent, be designated as a Senior Advocate if the Supreme Court or a High Court is of
opinion that by virtue of his ability, experience and his standing at Bar.

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Q.2. Define the procedure of admission and enrollment of advocate in bar council of India?

At present, a person who wants to get enrolled as an advocate has to first clear Bar Council of
India exam. Thereafter the person can enroll himself/ herself under any State Bar Council.
Eligible persons are admitted as advocates on the rolls of the State Bar Councils.

Admission and Enrollment of Advocates-

Advocate is the person who argues in the Court of Justice professionally. for this an advocate has
to enroll in bar council . Every person cannot be enrolled as an advocate in bar council .

Section 24 : Persons who may be admitted as advocates on a state roll :- (1) subject to the
provisions of this Act, and the rules made there under, a person shall be qualified to be
admitted as an advocate on a state roll, if he fulfills the following conditions namely:-

(a) he is citizen of India

Provided that to the 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 practice 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 12th day of March 1967, from any university in any territory of India; or

(ii) before the 15th day August, 1947, from any university in area which was comprised before
that date within India as defined by the Government of India Act, 1935; or

(iii) after 12th day of March, 1967, save as provided in sub-clause (iii a), after undergoing three
year-course of study in law from any university in India which is recognized for the purposes of
this Act by the Bar Council of India ; or

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(iii a) after undergoing a course of study in law, the duration of which is not less than two
academic year from university in India which is recognized for the purpose of this Act the Bar
Council of India ; or

(iv) in any other case, from any University outside the territory of India, if the degree is
recognized for the purpose of this Act by the Bar Council of India or he is barrister and is called
the Bar on or before the 31st Day of December, 1976; or has passed the Articled 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 recognized by the Bar council of India for the purpose of admission as an advocate
under this Act;

(d) omitted;

(e) he fulfills such as other conditions as may be specified in the rules made by the State Bar
Council under this chapter;

(f) he has paid in respect of the enrolment stamp duty if any, chargeable under the Indian stamp
Act, 1989 and an enrollment fee payable to the state Bar Council of six hundred fifty rupees by
way of Bank draft drawn in favor of that council.

Provided that where such person is member of the scheduled castes or the scheduled tribes and
produces a certificate to that effect from such authority as may be prescribed, the enrollment fee
payable by him to the state council shall be one hundred rupees and to the bar council of India,
Twenty five rupees.

Explanation: For the purposes of this sub-section, person shall be deemed to have obtained a
degree in law from university in India on the date on which the results of the examination for that
degree are published by the university on its notice board or otherwise declaring him to have
passed that examination.

2) Notwithstanding anything contained in sub-section(1) a vakil or pleader who is law graduate

may be admitted as an advocate on a state roll if he.

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(a) makes an application for such enrollment in accordance with the provision of this Act, not
later than two years from the appointed day, and

(b) fulfills the conditions specified in clauses (a), (b) , (e) and (f) of sub-section (1)

(3) Notwithstanding anything contained in sub-section (1) a person who-

(a) has, for at least three years, been a vakil or a pleader or a mukhtar, or was entitled at any time
to be enrolled under any law as an advocate of a High Court (including a High Court of a former
part B state) or a court of judicial commissioner in any union territory; or

(aa) before the 1st day of December, 1961, was entitled otherwise than as an advocate to practice
the profession of law (whether by way of pleading or acting or both) by virtue of the provisions,
of any law, or who would have been so entitled had he not been in public service on the said
date: or

(b) omitted;

(c) before the first day of April, 1937, has been an advocate of any High Court in any High court
in any area which was comprised within Burma as defined in the government of India Act, 1935:
or

(d) is entitled to be enrolled as an advocate under any rule made by the bar Council of India in
this behalf.

May be admitted as an advocate on state roll if he –

Makes an application for such enrollment in accordance with the provisions of the Act; And

Fulfills the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1),

(4) Omitted.

Section 24-A : Disqualification for enrollment : (1) No person shall be admitted as an Advocate
on State roll –

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If he is convicted of an offence involving moral turpitude,

If he is a convicted of an offence under provisions of untouchable (offence) Act 1955;

If he is dismissed or removed from employment or office under the state on any change
involving moral turpitude.

Explanation: In this clause, the expression “State” shall have meaning assigned to it under article
12 of the constitution.

Provided that the disqualification for enrollment as aforesaid shall cease to have effect after a
period of two years has elapsed since his release or dismissal or, as the case may be removal.

(2) Nothing contained in sub-section (1) shall apply to a person who been found guilty is dealt
with under the provisions of the probation of offenders Act, 1958.

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Q.3. Difference between state bar council and bar council of India?

Bar council of India

The Bar Council of India is a statutory body established under the section 4 of advocates Act
1961 that regulates the legal practice and legal education in India. Its members are elected from
among-st the lawyers in India and as such represents the Indian bar. It prescribes standards of
professional conduct, etiquette's and exercises disciplinary jurisdiction over the bar. It also sets
standards for legal education and grants recognition to Universities whose degree in law will
serve as a qualification for students to enroll themselves as advocates upon graduation.

State Bar council

The State Bar Councils are statutory bodies established under Section 3 of the Advocates Act,
1961. These were set up as different councils for the states and union territories of India. They
act as regulatory bodies, making rules for the legal profession and education in their respective
states and also act as the representatives of the advocates of that state, thereby acting in their
interests. Section 6 of the Advocates Act, 1961 also lays out the functions to be performed by the
State Councils in their respective states. They work in coordination with and under the
supervision of the Bar Council of India, which is a national body established under Section 4 of
the Advocates Act, 1961

Difference between bar council of India and state bar council

1.) The Advocates Act, 1961 is an act to consolidate and amend the law relating to legal
practitioners and to provide for the constitution of the Bar Councils and an All-India Bar. It was
enacted by the Parliament in the Twelfth Year of the Republic of India. The Advocates Act,1961
provides for the constitution of two types of councils: State Bar Council-Section 3 Bar Council
of India-Section 4

2.) The Bar Council of India is a statutory body established under Section 4 of The Advocates
Act, 1961 that regulates the legal practice and legal education in India. Its members are elected
from among-st the lawyers in India and as such represents the Indian Bar. It prescribes standards

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of professional conduct, etiquette's and exercises disciplinary jurisdiction over the bar. It also
sets standards for legal education and grants recognition to Universities whose degree in law will
serve as a qualification for students to enroll themselves as advocates upon graduation.

3.) To promote and support law reforms To exercise general supervision and control over State
Bar Council. Rule making power To recognize Universities whose degree in law shall be a
qualification for enrollment as an advocate and for that purpose inspect Universities To manage
and invest the funds of the Bar Council To provide for the election of its members To provide
legal aid to the poor. To promote legal education.

4.) According to section 3, there shall be a bar council for each of the states . It provides for the
establishment and organization. It shall consist of the following members, namely: (a) in the case
of the State Bar Council of Delhi, Additional Solicitor General of India ex officio. A State Bar
Council shall consist of the members according to the clause (2) of Section 3 of the Advocates
Act, 1961. There shall be a Chairman and a Vice-Chairman of each State Bar Council elected.

5.)( i.) Admission as an advocate on state roll (S.24)

( ii.) Maintenance of roll of advocates (S.17)

(iii) Rule- making power (Section 16 to 27)

(iv) Power to punish for professional or other misconduct (s. 35)

(v.) Appointment of committees and staff members

(vi.) To safeguard the rights, privileges and interest of advocates on its roll.

(vii.) To promote and support law reform

( viii.) To manage and invest the funds of the Bar Council

(ix.) To provide for the election of its members

(6.) (1.) Indian Council of Legal Aid and Advice v. Bar Council of India, AIR 1995 SC 691 The
Supreme Court held that the rule debarring a person who has completed the age of forty five to
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be enrolled as an advocate is arbitrary , unreasonable and beyond the power of the Bar Council
of India.

(2.) V. Sudeer v. Bar Council of India, AIR 1999 SC 1167 The Supreme Court held that the Bar
Council can exercise power and fame rules for effectively discharging its statutory function as
laid down by the Act.

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Q.4. What are the duties and right of advocate under bar council?

Duties of an Advocate

Duties towards the client

— To accept a brief where the client is able to pay the fee and no conflict of interest or other
reasonable justification exists

— To not accept brief where there is a conflict of interest with the client unless a frank
disclosure has been made to the client about such conflict.

— To not appear in a matter where the advocate may be a witness

— To not withdraw from an engagement except with sufficient cause and reasonable notice and
to refund unearned fee upon such withdrawal.

— To 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 is to 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.

— To not foment litigation

— To ensure adequate representation of the client’s interests

— To tender the best legal advice according to his ability to the client

— To be diligent in handling the client’s matters.

— To ensure confidentiality of facts disclosed by the client.

— To not take instructions from any person other than the client or his authorized agent.

— To note enter an arrangement of contingent fee.

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— To not bid for or purchase any property which is being auctioned in execution of a decree in
a suit or appeal if he has been engaged in the matter.

— To not adjust fee payable to him by his client against his own personal liability to the client

— To not do anything whereby he abuses or takes advantage of the confidence reposed in him
by his client.

— To keep accurate accounts of the client’s money entrusted to him and to provide copies of
such accounts.

— To immediately intimate the client of any payment received on behalf of the client.

— To not enter into arrangements whereby funds in his hands are converted into loans.

— To not lend money to his client for the purpose of any action or legal proceedings in which
he is engaged by such client.

¾ Duties towards the court

— To maintain a respectful attitude towards the courts and legal system, bearing in mind that
the dignity of the judicial office is essential for the survival of a free community.

— To conduct himself with dignity and self-respect and to not be servile.

— Whenever there is proper ground for serious complaint against a judicial officer, to submit
such grievance to proper authorities as this is the duty of an advocate towards improving the
legal system and keeping it efficient.

— To not influence the decision of a court by any illegal or improper means and to avoid
private communications with a judge relating to a pending case are forbidden.

— To conduct himself as not merely a mouthpiece of the client, but an officer of the Court. The
advocate should dissuade the client from using unfair means and should refuse to represent a
client who persists in use of such means.

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— To appear before the court only in the prescribed uniform and to not wear a band and gown
except in court and other prescribed ceremonies.

— To not appear before a court or tribunal where a close relative is a member.

— To not represent an organization if the advocate is a member of the executive committee of

the organization.

— To not conduct a prosecution in such a manner as to knowingly secure the conviction of an

innocent person.

¾ Duty to opposite party

— To make communications only through the opposite party’s advocate

— To carry out all promises made even where it is not reduced in writing.

¾ Duty to colleagues:

— To not advertise or solicit work and to not indicate special positions, expertise, etc. in name
plates, name boards, stationery, etc.

— To not facilitate unauthorized practice of law.

— To not take an unreasonably low fee where the client can afford to pay

— To not accept an engagement in a matter where another advocate has already been engaged
except with his consent or permission of the court

— Duties to the society

— Duty to facilitate legal education, training of young lawyers and research in legal discipline

— Duty to render legal aid to those in need.

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Right of practice

The expression ‘right to practice’, in context of the legal profession refers to the exclusive right
of persons enrolled as advocates to engage in practice of law before courts and tribunals. In Re.
Lily Isabel Thomas 1964CriLJ724 the Supreme Court equated “right to practice” with
“entitlement to practice”. This right enjoys protection at two levels:

General protection – Article 19(1)(g) of the Constitution of India protects the right of
individuals to practice professions of their choice. As members of the legal profession, advocates
partake in this right along with members of other trades, occupations and professions.

Specific Protection – Section 30 of the Advocates Act, 1961 confers on persons whose name is
enrolled in the registers of State Bar Councils the right to practice before any court or tribunal in
India including the Supreme Court. This section has been recently made effective through a
notification issued by the Central Government.

Section 29 of the Advocates Act makes the right of practice an exclusive right and precludes all
persons other than advocates from practicing law.

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Q.5. Define the Ethics and differentiate between profession and occupation?

What is ethics?

At its simplest, ethics is a system of moral principles. They affect how people make decisions
and lead their lives. Ethics is concerned with what is good for individuals and society and is also
described as moral philosophy. The term is derived from the Greek word ethos which can mean
custom, habit, character or disposition.

Ethics covers the following dilemmas:

— how to live a good life

— our rights and responsibilities

— the language of right and wrong

— moral decisions - what is good and bad?

Our concepts of ethics have been derived from religions, philosophies and cultures. They infuse
debates on topics like abortion, human rights and professional conduct.

Difference Between Occupation and Profession

Occupation-vs-profession

Occupation is an activity undertaken by the person to earn his livelihood. It can be business,
profession or employment that a person undertakes to make money. Many think that occupation
and profession are synonyms, but the fact is they are different.

Profession is an activity that requires specialised training, knowledge, qualification and skills. It
implies membership of a professional body, and certificate of practice. The individuals who
undertake a profession of rendering personalised services are called professionals, who are
guided by a certain code of conduct, set up by the respective body.

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The line of demarcation between occupation and profession is thin and blurred. When a
professional is paid for his skill or talent, it is known as occupation. Check out the article to
know some more differences.

Definition of Occupation

Occupation refers to the kind of economic activity endeavored by a person regularly for earning
money. When someone engages or occupies himself, most of the time, in any economic activity,
that activity is known as their occupation.

Example: Drivers, shopkeepers, a government servant, clerks, accountants, etc.

An occupation does not necessarily require specialized schooling in a particular stream. Physical
or mental both kinds of jobs are included in an occupation. It is divided into the following
categories:

Business: When a person in engaged in any trade, commerce or manufacturing activities, he is

said to be doing business.

Employment: The occupation in which a person works for others and gets a fixed and regular
income is employment.

Profession: The occupation in which a person renders services to others, by applying his
knowledge and skills is a profession.

Definition of Profession

A profession is an occupation, for which a person has to undergo specialized training or

internship, for getting a high degree of education and expertise in the concerned area. The main
objective of the profession is to render services to those who need them.

The profession is governed by a professional body or statute. To be called as a professional, a

person has to pursue higher studies and qualify the exam conducted by the governing body.
Normally, a professional is said to be an expert in his field. Ethical codes are developed by the

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professional body which must be followed by the professionals, to ensure uniformity in their
work.

Example: Doctors, Engineers, Lawyers, Chartered Accountant etc.

Key Differences Between Occupation and Profession

The major differences between occupation and profession are discussed as under:

¾ An activity performed by a person normally for monetary compensation is known as the

Occupation. Profession refers to vocation, in which high degree of education or skills is
required.

¾ Unlike occupation, the profession has a code of conduct.

¾ Occupation does not require any sort of training in a particular field, but the profession
requires specialisation in a specific area, and that is why training is a must.

¾ In general, the profession is regulated by a particular or professional body statute while an

occupation is not.

¾ A person doing occupation get paid for what he produces, whereas a profession gets paid
according to his knowledge and expertise.

¾ The profession is also an occupation when the person is paid for utilising his skills and
expertise.

¾ A professional is independent, i.e. his work is not influenced by any external force.
Conversely, there is a lack of independence in the profession because the person performing
the occupation has to follow the commands of his supervisors.

¾ There are some responsibilities which are associated with the profession. However an
occupation is not backed with such responsibilities.

¾ The basic pay in the profession is normally higher than in occupation.

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¾ The professionals are respected by people and have a high status in the society as compared
to the occupation.

Conclusion

After the above discussion, it can be said that the occupation is a broader term, and it includes
profession. While occupation also includes those jobs that are ordinary and hence they don’t get
high recognition from the society, Professionals are mainly known by their jobs, and that is why
they receive a high level of respect and recognition from the society.

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Q.6. Explain legal ethics and accountability of lawyers?

INTRODUCTION
Legal Ethics, Accountability of lawyers and Bench-Bar Relation is one of the four practical
training papers included in the new syllabus for the LL.B degree. The scope of this paper is not
confined only to the practical training to be provided to the law students but also extends to the
study of the substantive law. It requires the students to study thoroughly the various concepts like
court, contempt of court, court of record, legal ethics, professional or other misconduct, etc. It
requires the students to study the provisions of the Advocates Act, Contempt of Courts Act and
also of the Constitution relating to the contempt of court.
Legal Ethics
Legal ethics may be taken to mean the body of rules and practice which determine the
professional conduct of the members of bar. The main object of legal ethics has well· been
explained by the Chief Justice Marshall-"The fundamental aim of Legal Ethics is to maintain the
honour and dignity of the Law Profession, to secure a spirit of friendly cooperation between the
Bench and the Bar in the promotion of highest standards of justice, to establish honourable and
fair dealings of the counsel with his client, opponent and witnesses, to establish a spirit of
brother-hood in the bar itself and to secure that lawyers discharge their responsibilities to the
community generally.
Actually the legal profession is a profession of great honour. It has been created not for private
gain but for public good. It is a partner with the judiciary in the administration of justice. An
advocate is an officer of the court. The court acts on his statements.
To maintain the honour of the legal profession, the Advocate Act has been passed and the Bar
Councils have been established. The State Bar Councils and the Bar Council of India can punish
the advocate for the professional or other misconduct. Misconduct is a wide expression and it is
very difficult to determine its ambit. However, it may be divided into three broad categories. The
breach of the advocate's duties codified by the Bar Council of India in the exercise. of its power
under section 49(1)(c) of the Advocates Act is taken as the professional or other misconduct.
From the preamble of the Rules made by the Bar Council of India it becomes clear that these
rules contain canons of conduct and eliquette adopted as general guides and the specific

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mentioned thereof should not be construed as a denial of the existence of other equally
imperative, though not specifically mentioned. Therefore, 'the professional or other misconduct'
is not confined to the breach of the duties specified in the rules made by the Bar Council of India.
Immoral conduct is also included in the expression 'professional or other misconduct'. Thus, all
the conducts which are immoral are taken as 'professional or other misconduct'. However, even a
conduct which does not involve moral turpitude may be taken as professional or other
misconduct. Actually if the conduct of an advocate is such as to make him unworthy to remain a
member of the honourable legal profession or unfit to be entrusted with the responsible duties
that an advocate is called upon to perform, he will be held guilty of misconduct.
The expression 'professional or other misconduct' under section 35 of the Advocates Act is not
confined to the acts committed in professional capacity. Even the misconduct in capacity other
than professional capacity is included, within the meaning of the expression 'professional or
other misconduct'.
The Bar Council of India has made several rules so as to specify the duties of an advocate
towards the court, client, opponent and colleagues, etc. The duties towards the court include the
following:-
An advocate is required to maintain towards the court a respectful attitude, however an advocate
is not servile and in case of proper ground for serious complaint against a judicial officer, it is his
right and duty to submit his grievance to the proper authorities. It is the duty of an advocate not
to influence the decision of the court by any illegal or improper means. The rule requires an
advocate to use his best effort to restrain and prevent his client from resorting to sharp or unfair
practice or from doing anything in relation to the court, opposing counselor parties which the
advocate himself ought not to do. An advocate has been prevented from acting or pleading in any
matter in which he is himself pecuniarily interested. The rule requires an advocate to appear in
court in the prescribed dress. It also requires an advocate not to wear bands or gowns in public
places other than in court except on such ceremonial occasions and at such places as the Bar
Council of India or Court may prescribe.

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The duties of an advocate towards his client include the following:
An advocate is bound to accept any brief in the Court or Tribunal or before any other authority in
or before which he proposes to practise. However, in exceptional circumstances he may refuse to
accept a particular brief. The rule also provides that an advocate shall not ordinarily withdraw
from engagements once accepted without sufficient cause and unless reasonable and sufficient
notice is given to the client. It has also been provided that an advocate should not accept a brief
or appear in a case in which he has reason to believe that he will be a witness. An advocate shall,'
at the commencement of his engagement and during the continuance thereof, make all such full
and frank disclosure to his client relating to his connection with the parties and any interest ,in or
about the controversy as are likely to affect his client's judgments in either engaging him or
continuing the engagement. It is the duty of an advocate to uphold the interest of his client
fearlessly by all fair and honourable means without regard to any unpleasant consequences to
himself or any other. An advocate appearing for the prosecution of a criminal trial shall so
conduct the prosecution that it does not lead to conviction of the innocent. The rule prohibits an
advocate to commit (directly or indirectly) a breach of the obligations imposed by section 126 of
the Indian Evidence Act. It is the duty of an advocate not to act on the instructions of any person
other than his client or his authorized agent. The rule makes it clear that the fee of an advocate
depending upon the success of the suit is against the public policy. An advocate shall not directly
or indirectly, bid for or purchase either his own name or in any other name, for his own benefit
or for the benefit of any other person, any property' sold in the execution of a decree or other
proceeding in which he was in any way professionally engaged. However, this rule does not
prevent an advocate from bidding for or purchasing for his client any property which his client
may himself legally bid for or purchase, provided the advocate is expressly authorized in writing
in this behalf. The rule provides that an advocate shall not do anything whereby he abuses or
takes advantage of the confidence reposed in him by-his client. Several rules have been made so
as to provide duties with respect to the money of the client in possession of the advocate.

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The duties of an advocate to opponent include the following:-
The rule makes it clear that an advocate shall not, in any way, communicate or negotiate upon
the subject-matter of controversy with any party represented by an advocate except through that
advocate.
The duties of an advocate to the colleagues include the following:-
An advocate shall not solicit work or advertise (either directly or indirectly) whether by circulars,
advertisements, touts, personal communications etc. An advocate shall not enter appearance in
any case in which there is already a Vakalatnama or memo of appearance filed by an advocate
engaged for a party except with his consent; in case such consent is not produced he shall apply
to the court stating reasons why the said consent should not be produced and he shall appear only
after obtaining the permission of the court.
In addition to above, the following duties are also notable:-
Every advocate· on the rolls of the State Bar Council is required to pay a certain sum to the State
Bar Council. Every advocate shall, in the practice of the profession of law, shall bear in mind
that anyone genuinely in need of a lawyer is entitled to legal assistance even though he cannot
pay for it fully· or adequately and that within the limits of an advocate's economic condition, free
legal assistance to the indigent and oppressed is one of the highest obligations, as an advocate
owes to the society.

Accountancy
Nowadays accountancy is of utmost importance. It usually concerns with the trade and business.
Accounting is considered as the language of business and it is used as means of communication.
The persons interested in the result of the business operation may achieve their object or purpose
from the accounting. Ordinary accounting is associated with business but it is useful not only to
the person carrying on the business but also to the persons carrying on the professions, e.g.,
doctors, lawyers, chartered accountants etc. Such professional persons can know the cash
received from the persons and purposes for which it has been used. They can know their
financial position at the end of the period. Thus, if proper accounting is done, the person·
maintaining it can very easily know the nature of receipts and payments.

23
In simple words accounting may be taken to mean as the process of recording the financial
transactions, classifying them, summarize them, analyse them and interpret them and
communicate the results thereof to e persons who are interested to have knowledge of such
information.
Recording of the financial transactions should be done in an orderly manner. Recording is made
in a journal. Journal is a book in which all daily transactions of the business are recorded. They
are recorded in the order in which they occur. It, thus, contains the chronical record of the
transactions. It may be taken as the book of original record.
The transactions recorded in the journal are classified in the ledger. Transferring the debit and
credit items from the journal to their respective accounts in the ledger in called 'posting'.
Summarising' may be taken to mean presenting the classified data in a manner which is easily
understandable to the persons who want to use the accounting statements.
The financial data recorded is required to be analyzed and interpreted in such a manner that the
user can make a meaningful judgment about the financial condition and profit-earning position.
The data is useful in preparing the future plan and preparing the policy to achieve its execution.
After analysis and interpretation the accounting information is required to be communicated to
the proper persons. The information is communicated in proper form and proper manner.

The main objectives of the accounting are as follows:

1. Accounting is done with the object to keep systematic record of the financial transactions.
2. Accounting provides assistance in ascertaining the net profit earned or loss suffered on
account of carrying on the business. Due to accounting a proper record of revenues and expenses
of a particular period is maintained and therefore it becomes very easy to ascertain the profit or
loss from carrying on of the business.
3. In accounting balance-sheet is prepared. It contains a statement of assets and liabilities of the
business on a particular date. From it the financial position of the business may be ascertained.
4. From the accounting the proprietor comes to know about the money payable by him to others
or money payable to him by the others and the quantum of fixed assets and cash in hands. This
knowledge helps him to take the decision as to whether or not the funds of the business have

24
been under-utilized or unreasonably used. After this knowledge the proprietor may manage its
business more efficiently. .
The professional men or firm like advocates, doctors, chartered accountants are considered to- be
non-profit making organization. Their main object is not to earn profit but to provide service to
the society. The Legal profession is created not for private gain or to earn profit but for the
public good. An advocate is an officer of the Court and helps the court- in the administration of
justice.
The Accountancy ordinarily concerns with the trade or business but it is also useful to the
professional men like advocates, doctors, chartered accountants, etc. .
The advocates have several clients and due to this it is very difficult to
remember the money received on behalf of the clients' and money spent on their behalf. Due to
this it becomes necessary to make a book of account stating the said money received and spent.
Sometimes the whole fee is not paid to the advocate by the client at one time. They pay it in
installments. Similarly the expenditure on behalf of the client is not incurred at one time. All
these necessitate the advocates to maintain the book of account. The money received on behalf of
the client should be stated therein with the name and address of the persons from whom it has
been received. The money spent on behalf of the client should also be stated alongwith the items
on which it has been spent. The name and address of the client on behalf of whom the
expenditure has been incurred should also be stated.
If the proper accountancy is done, the advocate may be able to know about the sources from
which the income has been received and the persons to whom the payments have been made or
the items on which the money has been spent. The advocate may also know if the income is
more than the expenditure or vice-verse. At the end of the year he can very easily know as to the
cash in his hand. He can have knowledge of the nature of the expenditure. Since the details of the
money of the client with the advocate are prepared, it is very easy for the advocate to have fully
knowledge about it.
In addition, the advocate may very easily know about the money payable by the client to him. In
the end of the financial year, the advocate may be able to know about the position of his
profession, i.e. from the financial point of view whether he is going ahead in the profession or

25
going dower. The advocate may make comparative study of the professional position of the last
year with the current year.
At the end of the financial year he can very easily collect the information’s necessary for the
income-tax purposes. By the regular and proper accountancy the income-tax return can easily he
prepared and claim of exemption may also be claimed in the legal manner. For certain
exemptions receipts are required to be produced or annexed to the Income Tax Return. For
accountancy will, no doubt, enable the advocate to produce them at the proper time.
The accountancy is closely related to the law. It should be done in accordance with the
provisions of the law. The advocate is required to prepare his account, along with the other rules,
taking into consideration the provisions of the Advocates Act, Rules framed by the Bar Council
of India, of the Income Tax Ac, Wealth Tax Act and all the Acts and Rules pertaining to the
court fee an stamp duty.
Some of the important rules made by the Bar Council of India which relevant for this
purpose are as follows-
(1) Rule, 25.-An advocate could keep accounts of the client's money entrusted to him and
accounts should show the amount received from the client on his behalf, the expenses incurred
for him and the debits made on' account of fees with respective dates and all other necessary
particulars. .
(2) Rule 26.-Where moneys are received from or on account of a client, the entries in the
accounts should contain a reference as to whether the amounts have been received for fees or
expenses, and during the course of the proceedings, no advocate shall, except with the consent in
writing of the client concerned, be at liberty to divert any portion of the expenses towards fees.
(3) Rule 27.-Where any amount is received or given to him on behalf of his client, the fact of
such receipt must be intimated to the client, as early as possible.
(4) Rule 28.-After the termination of the proceeding, the advocate shall be at liberty to
appropriate towards the settled free due to him, any sum remaining unexpended out of the
amount paid or sent to him for expenses, or any amount that has come into his hands in that
proceeding.
(5) Rule 29.-Where the fee has been left unsettled, the advocate shall be entitled to deduct, out of
any moneys of the client remaining in his hands, at the termination of the proceeding for which
26
he had been engaged, the fee payable under the rules of the Court, in force for the time being, or
by then settled and the balance, if any, shall be refunded to the client.
(6) Rule 30.-A copy of the client's account shall be furnished to him on demand provided the
necessary copying charge is paid.
(7) Rule 31.-An advocate shall not enter into arrangements whereby funds in his hands are
converted into loans.
(8) Rule 32.-An advocate shall not lend money to his client for the purpose of any action or legal
proceedings in which he is engaged by such client.
Explanation.- An advocate shall not be held guilty for a breach of this rule, -if in the course a
pending suit or proceedings, and without any arrangement with the client in respect of the same,
the advocate feels compelled by reason of the rule of the court to make a payment to the court on
account of the client for the progress of the suit or proceeding.
An advocate is not required to prepare Trading Account or Profit and Loss Account because the
advocate carries on profession which is not trade or business. His object is not to earn profit but
to provide service to the people or society. He is required to -prep Receipt and Payment Account,
Income and expenditure account and Balance-sheet. Every advocate should prepare an account
in the name of his client and should make two columns of debit and credit. The money received
from the client or on behalf of the client should be stated under the head 'credit' and money spent
on behalf of the client should be stated under the head 'debit'. The advocate may open a separate
account called as Clients Disbursement Account in the book.
Receipt and Payment Account is prepared by the advocate on the basis of his cash-book. It
represents receipts and payments during an accounting period. It also discloses the excess of
receipts over expenses or excess of expenses over receipts during the accounting period. It
contains a summary of cash transactions. Income and Expenditure Account is prepared to
represent the advocate's revenues and expenses during the accounting period. It also shows the
excess of revenues over expenses or excess of expenses over revenues during the accounting
period. On these basis an advocate prepares his balance sheet. An advocate prepares his
balance-sheet in the same manner as is prepared by a person carrying on trade or business. From
the balance-sheet it can easily be known as to whether the income is more than expenditure or

27
expenditure is more than income. The balance-sheet contains a short-statement as to the said
information.

Accountability
The advocate has been made accountable. Section 35 of the Advocates Act provides that 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. The disciplinary committee can punish the advocate for
the professional or other misconduct. Where on receipt of 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 guilt' of professional or other misconduct, it shall refer the case for disposal to its
disciplinary committee. This committee can punish the advocate for such misconduct. The
'professional or other misconduct' includes the breach of duties specified by the rules made by
the Bar Council of India.
The breach of duty has, thus, been made punishable. The order of the disciplinary committee of
the State Bar Council may be challenged in appeal before the Bar Council of India and the order
of the disciplinary committee of the Bar Council of India may be challenged in appeal before the
Supreme Court.

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Q.7. What are the profession ethics of an advocate under BCI?

Ethics is the activity of man directed to secure the inner perfection of his own personality. -
Albert Schweitzer

Fundamental prerequisite of any profession is good ethics. Ethics denotes to human behaviour to
make decisions between what is correct and what is wrong. Professional ethics are those set code
or moral principles that govern a person's conduct in a professional workplace or work life. In
the legal profession, a lawyer must obey to professional codes for fair dealing with the client and
uphold the self-possession. The Indian government has established a statutory body known as
The Bar council of India under the Advocate Act,1961.

Advocate Act, 1961

It was introduced to implement the recommendations of the All-India Bar Committee and taking
into account the Law Commission's recommendations relating to the legal profession. The
Parliament has established The Bar Council of India under section 4 of The Advocate Act,1961.
As per section 7(1)(b) the council has to lay down standards of professional conduct and
etiquette for advocates. And section 49(1)(c) allows the bar council of India to make rules as to
suggest the standard of professional conduct to be observed by advocates.

Bar Council Of India Rules

Bar Council of India has framed the rules under part VI of chapter II dealing with the standard of
professional conduct of lawyers. This chapter state 39 rules or duties of the lawyer against court,
client, opponent etc.

RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT

1. Act in a dignified manner

During the presentation of his case and also while acting before a court, an advocate should act
in a dignified manner. He should at all times conduct himself with self-respect. However,

29
whenever there is proper ground for serious complaint against a judicial officer, the advocate has
a right and duty to submit his grievance to proper authorities.

2. Respect the court

An advocate should always show respect towards the court. An advocate has to bear in mind that
the dignity and respect maintained towards judicial office is essential for the survival of a free
community.

3. Not communicate in private

An advocate should not communicate in private to a judge with regard to any matter pending
before the judge or any other judge. An advocate should not influence the decision of a court in
any matter using illegal or improper means such as coercion, bribe etc.

4. Refuse to act in an illegal manner towards the opposition

An advocate should refuse to act in an illegal or improper manner towards the opposing counsel
or the opposing parties. He shall also use his best efforts to restrain and prevent his client from
acting in any illegal, improper manner or use unfair practices in any mater towards the judiciary,
opposing counsel or the opposing parties.

5. Refuse to represent clients who insist on unfair means

An advocate shall refuse to represent any client who insists on using unfair or improper means.
An advocate shall excise his own judgment in such matters. He shall not blindly follow the
instructions of the client. He shall be dignified in use of his language in correspondence and
during arguments in court. He shall not scandalously damage the reputation of the parties on
false grounds during pleadings. He shall not use unparliamentary language during arguments in
the court.

6. Appear in proper dress code

An advocate should appear in court at all times only in the dress prescribed under the Bar
Council of India Rules and his appearance should always be presentable.
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7. Refuse to appear in front of relations

An advocate should not enter appearance, act, plead or practice in any way before a judicial
authority if the sole or any member of the bench is related to the advocate as father, grandfather,
son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt,
niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.

8. Not to wear bands or gowns in public places

An advocate should not wear bands or gowns in public places other than in courts, except on
such ceremonial occasions and at such places as the Bar Council of India or as the court may
prescribe.

9. Not represent establishments of which he is a member

An advocate should not appear in or before any judicial authority, for or against any
establishment if he is a member of the management of the establishment. This rule does not
apply to a member appearing as “amicus curiae” or without a fee on behalf of the Bar Council,
Incorporated Law Society or a Bar Association.

10. Not appear in matters of pecuniary interest

An advocate should not act or plead in any matter in which he has financial interests. For
instance, he should not act in a bankruptcy petition when he is also a creditor of the bankrupt. He
should also not accept a brief from a company of which he is a Director.

11. Not stand as surety for client

An advocate should not stand as a surety, or certify the soundness of a surety that his client
requires for the purpose of any legal proceedings.

31
RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT

1. Bound to accept briefs

An advocate is bound to accept any brief in the courts or tribunals or before any other authority
in or before which he proposes to practise. He should levy fees which is at par with the fees
collected by fellow advocates of his standing at the Bar and the nature of the case. Special
circumstances may justify his refusal to accept a particular brief.

2. Not withdraw from service

An advocate should not ordinarily withdraw from serving a client once he has agreed to serve
them. He can withdraw only if he has a sufficient cause and by giving reasonable and sufficient
notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued to
the client.

3. Not appear in matters where he himself is a witness

An advocate should not accept a brief or appear in a case in which he himself is a witness. If he
has a reason to believe that in due course of events he will be a witness, then he should not
continue to appear for the client. He should retire from the case without jeopardizing his client’s
interests.

4. Full and frank disclosure to client

An advocate should, at the commencement of his engagement and during the continuance
thereof, make all such full and frank disclosure to his client relating to his connection with the
parties and any interest in or about the controversy as are likely to affect his client’s judgement
in either engaging him or continuing the engagement.

5. Uphold interest of the client

It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and
honourable means. An advocate shall do so without regard to any unpleasant consequences to
himself or any other. He shall defend a person accused of a crime regardless of his personal
32
opinion as to the guilt of the accused. An advocate should always remember that his loyalty is to
the law, which requires that no man should be punished without adequate evidence.

6. Not suppress material or evidence

An advocate appearing for the prosecution of a criminal trial should conduct the proceedings in a
manner that it does not lead to conviction of the innocent. An advocate shall by no means
suppress any material or evidence, which shall prove the innocence of the accused.

7. Not disclose the communications between client and himself

An advocate should not by any means, directly or indirectly, disclose the communications made
by his client to him. He also shall not disclose the advice given by him in the proceedings.
However, he is liable to disclose if it violates Section 126 of the Indian Evidence Act, 1872.

8. Not charge depending on success of matters

An advocate should not charge for his services depending on the success of the matter
undertaken. He also shall not charge for his services as a percentage of the amount or property
received after the success of the matter.

9. Not receive interest in actionable claim

An advocate should not trade or agree to receive any share or interest in any actionable claim.
Nothing in this rule shall apply to stock, shares and debentures of government securities, or to
any instruments, which are, for the time being, by law or custom, negotiable or to any mercantile
document of title to goods.

10. Not bid or purchase property arising of legal proceeding

An advocate should not by any means bid for, or purchase, either in his own name or in any
other name, for his own benefit or for the benefit of any other person, any property sold in any
legal proceeding in which he was in any way professionally engaged.

33
11. Not adjust fees against personal liability

An advocate should not adjust fee payable to him by his client against his own personal liability
to the client, which does not arise in the course of his employment as an advocate.

12. An advocate should not misuse or takes advantage of the confidence reposed in him by
his client.

13. Adjust fees after termination of proceedings

An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to him
from the account of the client. The balance in the account can be the amount paid by the client or
an amount that has come in that proceeding. Any amount left after the deduction of the fees and
expenses from the account must be returned to the client.

14. Provide copy of accounts

An advocate must provide the client with the copy of the client’s account maintained by him on
demand, provided that the necessary copying charge is paid.

15. Not lend money to his client

An advocate shall not lend money to his client for the purpose of any action or legal proceedings
in which he is engaged by such client. An advocate cannot be held guilty for a breach of this
rule, if in the course of a pending suit or proceeding, and without any arrangement with the client
in respect of the same, the advocate feels compelled by reason of the rule of the Court to make a
payment to the Court on account of the client for the progress of the suit or proceeding.

16. Not appear for opposite parties

An advocate who has advised a party in connection with the institution of a suit, appeal or other
matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite
party in the same matter.

34
RULES ON ADVOCATE’S DUTY TO OPPONENTS

1. Not to negotiate directly with opposing party

An advocate shall not in any way communicate or negotiate or call for settlement upon the
subject matter of controversy with any party represented by an advocate except through the
advocate representing the parties.

2. Carry out legitimate promises made

An advocate shall do his best to carry out all legitimate promises made to the opposite party even
though not reduced to writing or enforceable under the rules of the Court.

Punishment For Professional Misconduct

As per section 35 of the Advocate Act,1961 if a person is found guilty of professional

misconduct then the case will be referred to a disciplinary committee, then they fix a date of
hearing and issue a notice to the Advocate. Then the disciplinary committee of the State Bar
Council, will hear both the parties, the court may:

# Dismiss the complaint,

# warning to advocate;

# suspend the Advocate from practice for certain period of time;

# remove the name of an advocate from the state roll of advocates.

Conclusion

Professional ethics are not only important for advocates, there importance diverse to any field
whether it is business or employment or profession. Good ethics leads as to make respect in
society as well in our work life. If we compare in between other employment, there were no
punishments for this kind of misconduct but in legal profession you have to obey these rules as
laws otherwise you will be penalized. Ethics are just about the way or conduct or manner in
which we perform our actions or work. In my point of view, it depends on us how we want to
35
work, whether we choose correct way or wrong way. But never forget Karma comes after
everyone ultimately.

36
Q.8. Define contempt of court and its types?

What Is Contempt of Court?

Contempt of court is any behavior or wrongdoing that conflicts with or challenges the authority,
integrity, and superiority of the court. These acts might include failure to comply with requests,
witness tampering, withholding evidence, interruption of proceedings, or defying a court order.
These wrongful acts may be committed by attorneys, officers of the court, court personnel,
jurors, witnesses, protectors, or any party involved in a court proceeding.

Types of contempt of courts -

Section 2(A) of The Contempt of courts Act,1971 , provides that contempt of court means civil
contempt or criminal contempt .

contempt of court classified mainly in two categories

1) Civil contempt of courts,and

2) Criminal contempt of Court

The willful disobedience to the order of court is considered civil contempt, while the
scandalizing or lowering the authority of the court in the public eye is considered criminal
contempt. The classification or categorization of contempt of court into Civil and criminal are
not closed. There are several contempt which do not fall in any of them. for example, undue
delay in pronouncing the order by a judge or judge coming late to the court by amount to
contempt of court, but they are not covered exactly by the definition of classification of contempt
in the act .

37
1) Civil contempt-

According to section 2 (b) of The Contempt of court Act, 1971, civil contempt means "willful
disobedience to any judgement, decree, direction , order, writ or other process of a court or
willful breach of an undertaking given to the Court . "

Thus Civil contempt consist of disobeying the orders and process of the court .Civil contempt
involves only the willful disobedience of the courts order or breach of undertaking given to the
court. The purpose of the proceeding for the Civil contempt is not only to punish the container
but also to exercise enforcement and obedience to the order of the court .

civil contempt serves two purposes -

1) Vindication of the public interest by punishment of contemptuous conduct; and

2) coercion to compel the container to do what the court requires of him.

To constitutes 'civil contempt' the following things are required to be proved :

A) there is disobedience of the order, decree etc. of the court or breach of undertaking given to
the court ;and

B) the disobedience of Breach Is Wilful.

for civil contempt it is necessary that order which has been disobeyed must have been passed by
the court having jurisdiction to pass such order. If the order has been passed without jurisdiction ,
it is not binding on the party against which it has been Passed by the and therefore disobedience
of such order will not amount to contempt of Court. The burden to prove that the court has no
jurisdiction to pass the order lies on the person who alleges it.

When the court orders a person to do something or not to do something, it is incumbent on that
party to comply with that order forthwith. The person disobeying the order of the court will alone
be responsible for the consequence and he cannot be heard to say that he referred the matter to
his higher officer.

38
The breach of undertaking given to the court is also taken as contempt, if it is wilful. the basis for
taking the breach of undertaking as contempt of court is that the container by making a false
representation to the court obtains a benefit for himself and if he fails to Honour the undertaking,
he plays a serious fraud on the Court itself and thereby obstructs the course of justice and brings
disrepute to the judicial institution. But the breach of undertaking recorded are forming part of
compromise decree, would not amount to contempt of court.

2) Criminal contempt -

According to Section 2(c) of The Contempt of courts Act, 1971 , "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 -

I) scandalize or tends to scandalize, or lower or tends to lower, the authority of any Court ;or

II) prejudice or interfere or tents to interfere with, the due course of any judicial proceeding ; or

III) interface or tends to interfere with or obstructs, tends to obstruct, the administration of justice
in any other manner.

Criminal contempt is a conduct directed against dignity of Court.

Criminal contempt is directed against the power and dignity of the court. The definition of
criminal contempt is wide enough to include any act of a person which would tend to interfere
with the administration of justice or with which would lower to the authority of the court.

To constitute the criminal contempt it is not necessary that the publication or other acts should
have actually resulted in scandalizing or lowering the authority of the court but it is enough that
the act is likely to result in scandalizing. Thus the offense of contempt is complete by mere
attempt and does not depend on actual deflection of Justice .

'Scandalize' connotes to speak falsely, or maliciously, to bring into approach ,dishonor, disgrace,
to offend the feelings, conscious or property of an action. ' scandalize' also means to offend a
moral feeling, and to make a public scandal of, to utter false or malicious reports of a person's

39
conduct, slander, or to bring same or discredit or to disgrace . We can say that the disgraceful
word scandalize means the defamatory , derogatory, false malicious disgraceful statements
regarding the persons as Judges.

Any conduct by which course or Justice is prevented either by a party or a stranger is a contempt
of court. Any person who interfere or prevent other person from coming to the stream of justice
is he liable for contempt of Court. The Court must be very careful in analyzing the facts and
circumstances of the case for determining whether or not the action taken by a person amounts to
interfere with the course of Justice.

Witnesses are also integral part of the judicial process and they must have freedom to perform
their duties and so interference with performance of their duties is taken as contempt of Court.

40
Q.9 Define contempt by lawyer ,judges state and corporate bodies?

Contempt by lawyer

The contempt jurisdiction is very wide. The Court has power to punish every person, body or
authority found guilty of the contempt of Court. Contempt by Lawyers, on account of the nature
of duties to be discharged by the lawyers and judges they may get into heated dialogue which
may result in contempt of Court.

There are several instances of the misconduct which have been taken as contempt of Court, e.g.,
using insulting language against a Judge, making scandalous allegations against a Judge,
suppressing the facts to obtain favourable order hurling shoe at the Judge, imputation 0f
partiality and unfairness against the Judge, etc. A counsel who advises his client to disobey the
order of the Court is also held liable for contempt of Court. Attacking the Judiciary in a Bar
Council Election Manifests is taken as contempt of Court. If a counsel refuses to answer the
questions of the court is also liable for contempt of Courts.

In a case the Supreme Court has held that advocate using intemperate language and casting
unwarranted aspersions on various judicial officers and attributing motives to them while
discharging their judicial functions would be held guilty of gross contempt of Court. In this case
such advocate was sentenced to four months simple imprisonment and fine of one thousand
rupees. The Court has observed that it is most unbefitting for an advocate to make imputations
against the Judge only because he does not get the expected result, which according to him is the
fair and reasonable result available to him. Judges cannot be intimated to seek favourable orders.
Only because a lawyer appears as a party in person, he does not get a licence to commit
contempt of the Court by intimidating the Judges or scandalizing the Courts.

An advocate cannot use language, either in the pleading or during arguments which is either
intemperate or unparliamentary and which has the tendency to interfere in the administration of
justice and undermine the dignity of the Court and the majority of law. To resent the question
asked by a Judge, to be disrespectful to him, to question his authority to ask the questions, to
shout at him, to threaten him with transfer and impeachment, to use insulting language and abuse

41
him to dictate the order that he should pass, to create scenes in the Court and to address him by
losing temper are all acts calculated to interfere with and obstruct, the course of justice. Such acts
tend to overawe the Court and to prevent it from performing its duty to administer justice.

Where an advocate shouted slogans in the open court and hurled his shoe towards the court and
thereby interrupted the court proceedings, his action both by his words and deeds in the presence
of the court taken as gross criminal contempt of Court and he was punished for contempt of
court. His apology was not accepted as it was not genuine and bonafide and made only to, escape
punishment.

An important issue is whether boycott of Court or strike by lawyers amounts to contempt of

Court. In a case the Court has held that the Bar Council has no power to call a strike of lawyers
and such a call will amount to contempt of Court. In a case the Court has observed that in
boycotting a Court, the advocate violates his duties not only towards the client but also towards
the Court.

It has been held that it is not proper for a pleader to boycott the Court in pursuance of the
resolution of the Bar Association and refrain from appearing in the Court without first obtaining
the consent of his client. However, the pleader is not guilty of any misconduct if he remains
absent from the Court on the day of a strike in the town and it is not shown that he is engaged in
any case fixed on that day.

In Common Cause v. Union of India, a Committee was constituted to suggest steps to be taken to
prevent boycott or strike. The Committee suggested that instead of the Court going into the wider
question, interim arrangements he made to see whether it would be workable.

Contempt by judge

Section 16 of the Contempt of Courts Act, 1971 makes Judges. Magistrate and other persons
liable for the contempt of courts. It provides that subject to the provisions of any law for the
time being in force, a judge, Magistrate or other person acting judicially shall a r 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. However, it also makes it clear
42
that 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.

Actually the contempt of Court is punished not to protect the Judge personally but to safeguard
the dignity of the seat of justice so that people’s faith in the judicial administration may not be
shaken. If the seat of justice abuses that confidence and an impression is created in the public
mind that the Judge is excitable indecorous and insulting to party or counsel, then the
confidence of the public in shaken in the administration of justice and it requires immediate
redress. If the Judge uses indecorous words and indulges in unseenly and indecent language, then
the impressional concept of the sent of justice is attended against even by its Occupant in
bringing into disrepute the administration of justice and he may be held liable for contempt of
Court. For example in Mohammed Shafi, Advocate v. Choudry Quadir Baksh, first class
Magistrate, Lahore, on the date of hearing the counsel pleaded that his client had obtained an ad
interim injunction in the Sub-Judge’s Court against the petitioner from prosecuting the
proceedings till the disposal of the suit.

If the inferior or subordinate court does not follow the law laid down by the superior court, it will
amount to contempt of court. Refusal by the inferior court to follow the law laid down by the
superior court will, no doubt, result in the serious interference with the administration of justice.
It will also bring the seat of justice into disrepute in the eyes of public. Article 141 makes it clear
that the law declared by the Supreme Court shall be binding on all courts within the territory of
1ndia. Article 227 provides that every High Court shall have superintendence over all Courts and
tribunals throughout the territories in relation to which it exercises jurisdiction. It is well
established that the subordinate courts must follow the rulings of the High Court, unless there is
a ruling of the Supreme Court contrary to that of the High Court. The High Court’s decision is
finding on the subordinate courts even when the decision is subjudice before the Supreme Court.
The binding nature of the High Court’s decision does not disappear merely because a leave to
appeal petition is filed. If the High Court’s decision or ruling is willfully disobeyed by the
subordinate court it will amount to contempt of court, unless the decision or ruling rendered by
43
the High Court is distinguishable. Thus, if a Judge of the subordinate court deliberately avoids to
follow the decision of the High Court by giving wrong and illegitimate reasons, he will be held
liable for contempt of Court. The plea that there is no express provision in the Constitution
making the High Court’s decision binding on the subordinate Courts and consequently, the High
Court’s decision is not binding on the subordinate courts cannot be accepted. It is implicit in the
power of supervision conferred on a superior tribunal that all the tribunals subject to its
supervision should conform to the law laid down by it. Such obedience would also be conducive
to their smooth working otherwise there would be confusion in the administration of law and
respect for law would irretrievably suffer. Actually it is implicit in the power f supervision
conferred on a superior court that all the courts and tribunals subject to its supervision should
conform to the law laid down by it. Such obedience is necessary for their smooth working
otherwise there would b confusion in the administration of law.

Contempt Liability of State, Corporate Bodies and their Officers

In India it is now well settled that the State is not immuned from the contempt liability and
therefore it may be held liable for contempt of Court.

In Mohd. Aslam v. Union of India, the Chief Minister of U.P., Mr. Kalyan Singh had given the
undertaking to the Court for protecting the Babri Masjid in his personal capacity as well as in his
official capacity. He was found guilty of willful committing breach of undertaking and therefore
the court sentenced him to one day’s token imprisonment and a fine of Rs. 2000. A Minister or
officer of Government is also either in his official capacity or if there is a personal element
contributing to contempt in his personal capacity, liable in contempt. There is no immunity of
any authority for any authority of Government if a personal element is shown in the act of
disobedience of the order of the Court from the consequence of order of the Court. Even in
England where the maxim “Crown can do no wrong” has its influence, a distinction is made
between the Crown as such and the executive.

If an injunction or order is passed against the State or corporate body and it is found that there
has been wilful disobedience thereof apart from the State or the corporate body, the officer
responsible for its implementation will also be liable for contempt, if it is established that he was
44
the person in charge of the subject-matter to which the injunction or order alleged to have been
disobeyed related and had knowledge of the order. Thus, if the Court is satisfied that the officer
had knowledge of the order and it was his duty to implement or carry out the order, he will be
held liable for the disobedience ad may be punished for contempt. In case of any doubt n the
validity of the order, he should apply for clarification or verification or modification before the
Court which has passed the order. In the case of disobedience of the order the defence of
ignorance or belief that order was invalid and not binding or bonafide doubt as to its correctness
is not allowed, even if the belief is based on the proper legal advice. If the officer is advised by
the legal adviser that the order is not binding, the officer should apply before the Court for
clarification. No officer can sit in appeal over an order of any Court for judging its validity or
correctness for deciding whether It should be implemented or not. Sometimes the action is taken
at different levels and it is very difficult to determine who is actually responsible for the
disobedience. To meet such a situation it is better if rules are framed by the Government for
determining the responsibility of the implementation of the Court’s order. However, at present,
even in such condition the officer on whom the duty lies to see that the order is carried out and
has knowledge of the order is held responsible for disobedience and punished for contempt. An
important issue is whether noting of the opinion in internal files against the order of the Court
may amount to contempt. Actually a Government functions by taking decisions on the strength
of views and suggestions expressed by the various officers at different level ultimately getting
finality at the hands of the Ministers concerned. Till then, conflicting opinions views and
suggestions would have emanated from various officers at the lower level. There should not be
any fetter on the fearless and independent expression of opinions by officers on matters coming
before them through the files. This is so, even when they consider the orders of the Court.
Officers of the Government are often confronted with the orders of the Courts and may find it
difficult to weekly submit to such orders. On such occasion they will necessarily have to note in
the files, the reasons why the order cannot be complied with and also indicate that the Courts
would not have passed those orders if full facts were placed before them. The Court has made it
clear that the expression of opinion by the officers has made it clear that the expression of
opinion by the officers in the internal files are for the use of the department and not for the
outside exposure or for publicity To find the officers guilty for expressing their independent
45
opinion, even against orders of Courts in deserving cases, would cause impediments in the
smooth working and functioning of the Government. These internal noting, in fact, are privileged
documents. Noting made by the officers in the files cannot be made the basis of contempt action
against each such officers who makes the noting. If the ultimate action does not constitute
contempt, the intermediary suggestions and views expressed in the noting which may sometimes
even amount ex facie disobedience of the Court’s orders will not amount to contempt of Court.

These noting are not meant for publication. They do not have the sanction of law as an effective
order. They are only expressing of feeling by the concerned officer on the subject under
review.’)The Court has made it dear that if a person is involved in litigation, the Courts can order
him to produce all the documents he has which relate to the issues in the case. Even if they are
confidential, the Court can direct them to be produced when the party in possession does not
produce them for the other side to see or at any rate for the Court to see. When the Court directs
production of those documents, there is an implied undertaking that they will not be used for any
other purpose. The production of these documents in ordinary cases is imposed with a limitation
that the side for whose purpose documents are summoned by the Court cannot use them for any
purpose other than the one relating to the case involved. They cannot be made basis for action in
contempt. An important issue is whether the Government or any other body or authority can
deny the implementation of the order of the Court on the ground that the implementation would
be violative of any rule. Such an issue also arose in the of T.R. Dhanajaya v. Vasudevan. In this
case petitioner’s claim for promotion as Chief Engineer was accepted by the High Court in
contradistinction with that of the then incumbent and the decision of the High Court was
affirmed by the Supreme Court. The fact that the petitioner was not eligible under relevant rules
for promotion as the chief Engineer was not brought to the notice of the Court. When the claim
inter se had been adjudicated and the claim of the petitioner had become final, the Government
did not promote the petitioner in accordance with the Court’s order on the ground that he could
not be promoted under the relevant rules. The Court held that the refusal amounted to contempt
of Court. When the order has been passed by the Court, the Government or authority or person to
whom the order has been made has no option but to give effect to the order as passed by the
Court and if there is any doubt, he should ask for clarification.

46
Q.10. Explain defence available for contempt?

DEFENCES IN CONTEMPT PROCEEDINGS

As a general principle of law man is presumed to know the nature and consequences of his act
and is, therefore, held responsible for it. However, there are certain exceptions to this general
rule, wherein a person may be excused of his offence.

section 8 provides those other defence that would have been valid defence and not affected by
any provision of this Act. Thus, the defence available can be classified under following head for
better evaluation:

(a) Innocent publication and distribution of matter.

(b) Fair and accurate report of judicial proceeding.

(c) Fair criticism of judicial act.

(d) Bonafide complaint against presiding officers of subordinate court.

(e) Publication of information relating to proceedings in chambers or in camera in certain cases.

(f) Other defenses.

4.1 Innocent Publication and Distribution of Matter

Section 3 in the Contempt of Courts Act, 1971 states that, 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.

47
4.2 Fair and Accurate Report of Judicial Proceeding

It has been provided in section 4 of the Act, that subject to the provision 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.

4.3 Fair Criticism of Judicial Acts

Section 5 of the Act, protects a person or a newspaper for his fair criticism on the merits of the
case which has been heard and finally decided. It states that 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. Fair criticism of judicial acts is necessary in the rule of law. The
courts are manned by human beings who suffer from weaknesses of ego, anger and even bias, if
not to individuals but to classes of society or to political theories. As custodians of law and order,
the courts have to decide the cases according to law of the land.

4.4 Bonafide Complaint against Presiding Officers of Subordinate Court

Section 6 of the Contempt of Courts Act, 1971 states that 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 or any subordinate court to –

(a) any other subordinate court, or

(b) the High court to which it is subordinate.

4.5 Publication of Information Relating to Proceedings in chambers or in camera in

Certain Cases

A type of contempt which does not neatly fit into the traditional classification of contempt by
way of scandalising the court and contempt in relation to pending proceedings is contempt by
publication of information relating to judicial proceedings in violation of secrecy.87 The general
principle in regard to publication of information relating to judicial proceedings is well-settled,
namely, that all judicial proceedings must be open to the public and the administration of justice

48
must take place in open court. The reason is that the public have a general interest in the
administration of justice. The concomitant result is that the publication of judicial proceedings
and information relating thereto cannot be forbidden. While the general principle is that justice
should be administered in public and the publication of judicial proceedings should not be
forbidden, this principle is subject to exception based upon a yet more fundamental principle that
the paramount object of courts of justice must be to ensure that justice is done. In order to attain
this paramount object, it may become necessary in some cases to exclude the public and enjoin
secrecy as to the proceedings and any violation of such secrecy would pro tan-to amount to
contempt of court.

4.6 Others Defenses

Most of the defenses which are available to the alleged contemner prior to Act of 1971 are now
incorporated in the various sections of the new Act but even then it is made clear that there is no
closed door policy in the Act. If the Act could be defended in the past on any plea, the same
would be available even now.

4.6.1 Deference in Civil Contempt

(i) Ambiguous/ vague order

An order to be followed or be implemented should be specific and complete in nature.

(ii) Without jurisdiction order

By jurisdiction is meant the authority which a court has to decide matters that are litigated before
it or to take cognizance of matters presented in a formal way for its decision. The limits of this
authority are imposed by the statute, charter or commission under which the court is constituted
and may be extended or restricted by the like‘s means.

(iii) Order not in knowledge

It is settled law that mere unintentional disobedience is not enough to hold one guilty of
contempt.

49
(iv) Substantial compliance of the order

When the order is substantially complied with, a finding of disobedience will not be
justified.When the order was for supplying the documents to the employee in a departmental
proceedings it is found from the records and affidavits exchanged that the demand of the
employee was substantially for inspection, contempt will not lie for not furnishing copies of such
documents.

(v) Third party to proceeding

So long as there is an order by the court which requires compliance, not only parties but even
third parties, who are not parties to the suit and who have notice of the same, will be liable for
contempt for the disobedience to such orders or for obstructing the execution of the same.159

4.6.2 Deference in Criminal Contempt

(i) Truth as defence

The law of contempt has not been recognized the truthfulness or factual correctness as the
defence till the amendments made in 2006 in the Contempt of Courts Act 1971. There are hardly
any English or Indian cases in which such defence has been admitted by the Judiciary.

(ii) Non-presence of men Rea

It is a cardinal principle of criminal law that, ordinarily speaking, a crime is not committed if the
mind of the person doing the act in question be innocent

(iii) Defence of public interest

It can be very well understood that defence of public interest is made available to the contemner
for a charge of publication of contemptuous matter. If the doctrine of contempt exists for the
public good i.e. to protect the public interest in the due administration of justice then it is
conceivable that a greater public interest could outweigh it so as to justify a publication
irrespective of any prejudice that might result.

50
Q.11. Describe the Bar Bench relation?

Bench Bar Relation: Bar-Bench Relation in law refers to the cordial relationship between the
Advocates and the Judges. The Bar (Advocates) and Bench (Judges) play an important role in the
administration of justice. They are expected to assist the court in the administration of justice.

(i) Bar :

Advocates are enrolled by the State Bar Council as such, on getting L.L.B degree from a
University and getting a certain training under some advocate as prescribed by rules. The
advocates are known as the 'Bar' as a whole body of advocates and an advocate represents the
Bar. In short, Bar is a collective term for the attorneys who are licensed to practice in the Courts,
or a particular court, of any state.

(ii) Bench :

Bench means all the judges taken together as distinguished from the ‘Bar’ the name for all the
members of the legal profession-bench is that part of the court considered in its official capacity,
while the judges are sitting. The earlier meaning of Bar contained the part of Bench also at the
present term ‘Bar’ is applied for the attorneys part of the court and the term is used for the
judicial officers part of the Court.

2) Role of Bar Bench in Administration of Justice

The Bar and Bench play important role in the administration of justice. According to Justice C.L.
Anand, there is no office in the State of such power as that of the Judge. Judges hold power
which is immensely greater than that of any other functionary. The common people's life, and
liberty, personal domestic happiness, property, and reputation subject to the wisdom of the
judges and hang citizens on their decisions. If Judicial power becomes corrupt no security is
left of life, liberty expires, there no guarantee is left of personal or domestic happiness. A strong
powerful, impartial active and the capable judiciary is the greatest need of a State. On the

51
account of the importance of the judges in the maintenance of the orderly society, judges should
perform their duties.

3) Bar-Bench Relations:

Administration of Justice is not something which concerns Bench only. It concerns the Bar also.
Mutual respect is necessary for the maintenance of the cordial relations between the Bar and
Bench. Advocates and Judges are complementary to each other. Bar is the Principal ground for
recruiting Judges. So they both belong to the same community. ar and Bench should maintain
cordial relations with each other. But on account of nature of duties to be discharged by
advocates and judges, they may get into dialogues sometimes, humorous, sometimes heated and
sometimes harsh.

Scandalising of the court by an advocate is really polluting the very foundation of justice and
such conduct by an advocate brings disrepute to the whole administration of justice. The attitude
of an Advocate towards the Court should be one of the uniform respect, whatever the status of
the Court. Advocates Private opinion about the Presiding officer, he must not show in its
behavior because he has to uphold the dignity of the judiciary as an institution. At the same, it is
equally the duty of the judiciary not only to be polite towards the members of the Bar but to do
everything possible to advance in its high traditions.

52
Q.13. What are the accountability of lawyers towards court client and society?

Lawyer Accountability

The legal profession is largely self-regulated, which makes it difficult for bad lawyers to be held
accountable to their clients. Lawyers claim that they need not be subject to such regulations
because they are held accountable by various state Bar rules governing attorney conduct.

The main aim of legal ethics is to maintain honor, dignity of the legal profession to ensure the
spirit of friendly co-operation, fair dealing of the counsel with their clients and also to secure the
responsibilities of the lawyers towards the society.

The salient features of The Advocates Act 1961 were:

1. Combined all the existing laws on the legal profession.

2. Provisions for Bar Council of India at Central Level and State Bar Council in each state.

3. Provisions for similar roll of Advocates throughout India.

4. Empower advocates whose name is in similar roll to practice in all courts of India.

5. The difference between the Advocates and Vakil was removed, people who practiced Law
were known as Advocates.

6. Provisions to confer status as Senior Advocate-(having extraordinary knowledge in field of

law).

7. Autonomous status to Bar Councils.

Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter
II, Part VI of the Bar Council of India Rules. These rules have been placed there under section
49(1)(c) of the Advocates Act, 1961.

53
Rules on an Advocate duty towards the court:

1. To Act in a proper manner

An advocate must behave in a proper/safety manner during the time of his case as well as while
acting before the court. He should conduct himself with self-respect. Whenever there is a ground
for complaint against a judicial officer, the advocate has a duty to submit his grievance to the
concerned authority.

2. Respect the Court

The advocate must show respect towards the Court. He has to keep in mind the dignity and
respect towards the judicial officer.

3. No communication in private

The advocate should not communicate with the judicial officer in private regarding any matter
pending before the court. The advocate should not influence the decision of a court in any matter
through illegal acts such as coercion, bribe, etc.

4. Refusal to act in an illegal manner towards the opposition

An advocate should not act in an illegal manner towards the opposing counsel. He should use his
best effort to restrain his client from acting in an illegal manner or perform any unfair practice
towards the judiciary, o to the opposing counsel.

5. Refusal to represent clients who insists in any unfair means of practice

An advocate shall refuse to represent the client who insists on using unfair or improper means.
He shall be respectful in using his language in correspondence and arguments in the court. He
shall not damage the reputation of the parties on false grounds during the pleadings.

6. Appear in proper dress code

The advocate should be present at all times in the court only in the proper dress code prescribed
by the Bar Council of India Rules, and the dress code must be presentable.
54
7. Not to appear in matters with financial interest

The advocate should not act on behalf of any matter in which he has a financial interest. He
should not accept a brief from a company in which he is a Director.

8. Not to stand as surety for the clients

The advocate should not stand as a surety for his client, or certify the soundness of a surety that
his client requires for the purpose of any legal proceedings.

Advocate duties towards his client:

1. Bound to accept briefs.

2. Not to withdraw from service.

3. Not to appear in matters in which he is a witness.

4. Full and frank disclosure to the client.

5. Uphold interest of the client.

6. Not to suppress any material of evidence.

7. Not to disclose any information of his client and himself.

8. Not to receive any interest in actionable claim.

9. Not to charge depending on the success of matters..

10. Keep proper accounts etc.

55
Q.14. Explain role of law and legal profession in social transformation?

Apart from fighting cases lawyers provide their skills and knowledge to the society by doing pro
bone cases and lending legal services to the poor and needy. A huge change has been brought
upon by the legal aid services in India.

Role of Lawyers in Social Transformation

On January 9 , 1915 at Apollo Bandar in Bombay a barrister returned to his motherland ,who
would have thought than that he will lead India in one of the biggest war this country has ever
seen and emerge victorious , he was no other than Mohandas Karamchand Gandhi . From early
times of moderates like Motilal Nehru , Dadabhai Naoroji to extremists C Rajagopalachari , Bal
Gangdhar Tilak or "Iron Man" Sardar Patel they all had their differences in opinions, thoughts
and way of working but what they all had in common was they were practitioners of 'law'. If not
of the self sacrificing and dedicated efforts of these brave men how we would have won the
independence we cherish.This was the first ever dynamic transformation in Indian society with
many more to come.

At the dawn of independence, the parliament of independent India was the forge where a
document that will guide the young nation was being crafted. It will fall on the keen legal mind
of B. R. Ambedkar to formulate a constitution for the newly independent nation. The Indian Bar
had a role in the Independence movement that can hardly be overstated – that the tallest leaders
of the movement across the political spectrum were lawyers is ample proof. The new nation saw
its first leader in Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both exemplary
lawyers. Perhaps it is the consequent understanding of law and its relation to society that
prompted the founding fathers to devote the energy required to form a Constitution of
unprecedented magnitude in both scope and length.1

Lawyers played a central role in drafting of constitution.The proceeding clearly show the part
played by the lawyers in elaborating the basic concept of secularism, democracy and
egalitarianism. It was because lawyers understood the than society in reality rather than
substantive term.They also introduced well known ambiguities such as the uncertainty about
56
fundamental rights and directive principles of state policy who were primary. Even after the
constitution was adopted lawyers continued to play an important role in national politics .They
represented 35.3 percent , 31.4 percent, 30 percent and 26.9 percent of the first four LokSabha.

Being lawyer is a noble and honorable profession which requires a manner and conduct to be
carefully followed. In Bar Council of India rules a lawyer holds a duty to act with dignity and
self-respect , to uphold the interest of client by all fair and honorable means and shall not take
advantage of the confidence reposed in him by his client.A lawyer is bound to conduct himself in
a manner befitting the high and honorable legal profession and if he departs from the high
standard which the profession has set for itself and demands of him in professional matter, he
will be liable to disciplinary actions.

Apart from fighting cases lawyers provide their skills and knowledge to the society by doing pro
bono cases and lending legal services to the poor and needy. A huge change has been brought
upon by the legal aid services in India.Legal Aid implies giving free legal services to the poor
and needy who cannot afford the services of a lawyer for the conduct of a case or a legal
proceeding in any court, tribunal or before an authority.

Article 39A of the Constitution of India provides that State shall secure that the operation of the
legal system promotes justice on a basis of equal opportunity, and shall in particular, provide free
legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disability. Articles
14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal
system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure
that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to
the poor, downtrodden and weaker sections of the society. The Constitutional duty to provide
legal aid arises from the time the accused is produced before the Magistrate for the first time and
continues whenever he is produced for remand.

In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal aid programs
throughout the country on a uniform pattern. This Act was finally enforced on 9th of November
1995 after certain amendments were introduced therein by the Amendment Act of 1994.
57
The role as a lawyer is challenging and demanding. The role of lawyer is not simply to appear in
court and argue passionately on the behalf of the client, but there is a multitude of background
work as well as responsibilities related to this profession especially in favor of the country and
not personally. A lawyers contribution is not seen in terms of calculative methods but its impact
can be felt by generations to come.

A lawyer must be very careful about his attributes and behavior.As Mahatma Gandhi said -

™ Keep your thoughts positive, because your thoughts become your words.

™ Keep your words positive, because your words become your behavior.

™ Keep your behavior positive, because your behavior become your habits.

™ Keep your habits positive, because your habits become your values.

™ Keep your values positive, because your values become your destiny.

™ Open Your Mind, Open Your Life: A Book of Eastern Wisdom

58
SHORT QUESTION WITH ANSWER

Q.1. Discuss strike by lawyer?

Strikes By Advocates

The purpose of this research article is to analyze the issue of frequent strikes that were called by
advocates in India in recent years. The article holds the various aspects of the matter as to why
the right to strike by lawyers is beyond the scope of the fundamental right to form an association.
It also reveals the reasons why such call for strikes had been declared as unconstitutional and
illegal by the judiciary. The role of bar council of India and its duties for curbing the menace has
also been discussed. Further, the article deals about the multiple obstructions that affect the
administration of justice by holding such strikes and protests.

Right to strike A Professional Misconduct

According to the constitutional perspective right to strike is a fundamental corollary conferred by

part III of the constitution under the right to freedom of association art 19(c) where a group of
people upholding a common interest can come together and demand of their rights. However
freedom of association under art 19 is not an absolute right, certain reasonable restrictions are
imposed on it. Therefore one of the important question arises in the legal profession is that do
lawyers have the right to call for a strike. The Supreme Court and High courts in its various
verdicts had made it clear that Lawyer strike is illegal and necessary steps should be taken to
curb the growing tendency.

In the landmark judgment given by the supreme court in case of Ex-Capt. Harish Uppal v Union
of India and Another

the Court held that lawyers have no right to go on strike or give a call for boycott, not even on a
token strike. The protest, if any is required, can only be by giving press statements, TV
interviews, carrying out of court premises banners and/or placards, wearing black or white or any
color armbands, peaceful protest marches outside and away from court premises, etc. In another
landmark case,
59
Reasons for denying Lawyers the right to strike.

The fundamental duty of Judiciary is to serve people who are seeking justice for themselves and
in order to do so its very important that every branch of it must coordinate and cooperate with
each other. Any deficiency in the system would lead to the violation of the fundamental right to
speedy trial guaranteed by article 21 of the constitution. Therefore the call for a strike by lawyers
has an adverse effect in the functioning of the judiciary.

Solutions to the Grievances of lawyers:

The ban imposed on strikes by lawyers is justified as consequences of strikes were corroding the
roots of the judiciary. However, it is also important to safeguard the interest of the advocates, so
that the functioning of the legal system should be balanced. Section 7 clause (d) of the advocate's
act 1961explains the functions of Bar Council of India to safeguard the rights, privileges, and
interest of advocates therefore abiding by the rules grievances of lawyers must be heard and
further steps should be taken to tackle their issues that they are facing.

60
Q.2. What is professional misconduct?

Professional misconduct of lawyers in India

Advocacy is a noble profession and an advocate is the most accountable, privileged and erudite
person of the society and his act are role model for the society, which are necessary to be
regulated. Professional misconduct is the behaviour outside the bounds of what is considered
acceptable or worthy of its membership by the governing body of a profession. Professional
misconduct refers to disgraceful or dishonourable conduct not befitting an advocate. Chapter V
of the Advocate Act, 1961, deals with the conduct of Advocates. It describes provisions relating
to punishment for professional and other misconducts. Section 35(1) of the Advocate Act, 1961,
says, 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 it disciplinary committee. Generally legal profession is not a trade or business, it’s
a gracious, noble, and decontaminated profession of the society. Members belonging to this
profession should not encourage deceitfulness and corruption, but they have to strive to secure
justice to their clients. The credibility and reputation of the profession depends upon the manner
in which the members of the profession conduct themselves. It’s a symbol of healthy relationship
between Bar and Bench.

The Code of Conduct Prescribed For Advocate

Section 49 of the advocates act 1961 empowers the Bar Council of India to frame rules
regulating standards of professional conduct. Accordingly various duties are prescribed for the
advocates some of them are highlighted below.

No advertising or soliciting work, it is against an advocate’s code of ethics to solicit or advertise

work and amounts to a misconduct on the part of the advocate. Both direct and indirect
advertising is prohibited. An advocate may not advertise his services through circulars,
advertisements, touts, personal communication or interviews not warranted by personal relations.
Similarly, the following forms of indirect advertising are prohibited:

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(i) by issuing circulars or election manifestos by a lawyer with his name, profession and address
printed on the manifestos, thereby appealing to the members of the profession practising in the
lower courts who are in a position to recommend clients to counsel practising in the HC.

(ii) canvassing for votes by touring in the province or sending out his clerk or agents to the
various districts, which must necessarily mean directly approaching advocates practicing in
subordinate courts. Further, the signboard or nameplate displayed by an advocate should be of
reasonable size. It should not refer to details of an affiliated by the advocate i.e. that he is or has
been president or member of a bar council or of any association, or he has been a Judge or an
Advocate-General, or that he specializes in a particular kind of work, or that he is or was
associated with any person or organization or with any particular cause or matter.

z Not to demand fees for training; An advocate is restrained from demanding any fees for
imparting training to enable any person to qualify for enrolment.

z Not use name/services for unauthorized practice; An advocate may not allow his
professional services or his name to be associated with, or be used for any unauthorized
practice of law by any lay agency.

z Not to enter appearance without consent of the advocate already engaged: an advocate is
prohibited from entering appearance in a case where there is already another advocate
engaged for a party except with the consent of such advocate. However if such consent is not
produced, the advocate must state the reasons for not producing it, and may appear
subsequently, only with the permission of the court.

Duty to opposite party:- While conducting a case, a lawyer has a duty to be fair not only to his
client but also to the court, and to the opposite party. An advocate for a party must communicate
or negotiate with the other parties regarding the subject matter of controversy, only through the
opposite party’s advocate. If an advocate has made any legitimate promises to the opposite party,
he should fulfill the same, even if the promise was not reduced to writing or enforceable under
the rules of the court.

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Duties of an advocate towards his client: The relationship between a lawyer and a client is
highly fiduciary and it is the duty of an advocate fearlessly to uphold the interests of the client by
fair and honourable means without regard to any unpleasant consequences to himself or any
other person.

Among the various duties of the advocates like, duties to client, court, public, colleagues and
self, selected points can be picked up and arranged according to the due and relative importance
and are called as ten commandments of advocates they are;

a) Duties to client

1) Protection of the interest of the client

2) Proper estimation of the value of legal advice and services

b) Duties to court

3) Honesty and respect

4) Preparation of the case

c) Duties to Public

5) Service

6) Loyalty to law and justice

d) Duties to colleagues

7) Fellowship

8) Fairness

e) Duties to self

9) Systematic study

10) Prudence and diligence

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Instances of Misconduct

Legal Practitioner act 1879 has not defined the word Misconduct. The word Unprofessional
conduct is used in the act. Even the Advocates Act 1961 has not defined the term misconduct
because of the wide scope and application of the term. Hence to understand the instances of
misconduct we have to rely on decided cases. Some of the instances of Professional misconduct
are as follows,

1) Dereliction of duty

2) Professional negligence

3) Misappropriation

4) Changing sides

5) Contempt of court and improper behaviour before a magistrate

6) Furnishing false information

7) Giving improper advice

8) Misleading the clients in court

9) Non speaking the truth

10) Disowning allegiance to court

11) Moving application without informing that a similar application has been rejected by another
authority

12) Suggesting to bribe the court officials

13) Forcing the prosecution witness not to tell the truth.

Contempt of Court As Misconduct

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In the recent case of B. M. Verma v. Uttrakhand Regulatory Commission court noted that, it was
given the wide powers available with a Court exercising contempt jurisdiction. In the case of
Court of Its Own Motion v. State dealing with the contempt proceedings involving two senior
advocates, observed that ‘given the wide powers available with a Court exercising contempt
jurisdiction, it cannot afford to be hypersensitive and therefore, a trivial misdemeanor would not
warrant contempt action. Circumspection is all the more necessary because as observed by the
SC in SC Bar Association v. Union of India the Court is in effect the jury, the judge and the
hangman; while in M.R. Parashar H. L. Sehgal it was observed that the Court is also a prosecutor
Anil Kumar Sarkar v. Hirak Ghosh, reiterates this.

Misbehavior As Misconduct

Vinay chandra mishra, in re; In this case a senior advocate in on being asked a question in the
court started to shout at the judge and said that no question could have been put to him. He
threatened to get the judge transferred or see that impeachment motion is brought against him in
Parliament.

Strike As Misconduct

Ex-capt. Harish uppal V. Union of India, Several Petitions raise the question whether lawyers
have a right to strike and/or give a call for boycotts of Court/s. The petitioners submitted that
strike as a mean for collective bargaining is recognised only in industrial disputes.

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Q.3. Write short note on Advocate and its qualification?

Who is Advocate?

Advocate is a person authorized to appear in a litigation on behalf of a party. An advocate should

possess a law degree and is enrolled with a Bar Council, as prescribed by the Advocates Act,
1961. Advocates are the only class of persons legally entitled to practice law. Advocates provide
legal advice to the clients. After being authorized to appear in a case by a client who has signed a
vakalatnama, advocates prepare cases and argue them in Court. In the Bombay and Calcutta
High Courts there is a separate class of legal practitioners, known as solicitors, who prepare the
case, but do not argue in Court. When appearing in a courtroom, an advocate usually dresses in
black and white, and wears a band and gown. Any complaint against an advocate is made to the
Bar Council of India. See junior advocate, advocate-on-record, senior advocate, amicus curiae,
vakalath.

Who is Advocate-on-record (AOR)? What are the qualifications?

Advocate on record is an advocate who has passed a qualifying examination conducted by the
Supreme Court of India. The examination is taken by an advocate who has been enrolled with a
Bar Council for at least five years and has completed one year training with an Advocate On
Record of not less than five years standing. Only an AOR can file a vakalath, a petition, an
affidavit or any other application on behalf of a party in the Supreme Court. All the procedural
aspects of a case are dealt with by the AOR, with the assistance of a registered clerk. It is the
AOR''s name that appears on the cause list. The AOR is held accountable, by the Court, for the
conduct of the case. Any notices and correspondence from the Court are sent to the AOR, and
not to the party.

Restrictions on senior Advocates U/S49 (1)(G) -

Under section 49 (1)(g), The Bar council made rules restricting in the matter of parties to which
senior advocates shall be subjected in chapter I of part VI of the bar council Of India thus :

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Senior Advocate shall, in the matter of their practice of the profession of law mentioned in
sectioned in section 30. of the Act be subject to the following restrictions-

First lets see what is Section 30 of the Advocate Act, 1961- Sec.30 of the advocate Act 1961 says
. Subject to the provisions of this Act , every advocate whose name is entered in the state roll
shall be entitled as of right to practice throughout the territories to which this act extends-

1) In all courts including the Supreme court .

2) Before any tribunal or person legally authorized to take evidence;

3) Before any other authority or person before whom such advocate is by under any law for the
being in force entitle to practice

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Q.4. Who is Senior Advocate?

Who is Senior Advocate?

Senior Advocate is an advocate who has been designated as such by either the Supreme Court or
the High Court. A Senior Advocate cannot file a vakalathnama, appear in the Court without
another advocate or advocate-on-record, cannot directly accept an engagement to appear in a
case or draft pleadings. A senior advocate argues cases in Court upon instructions from another
advocate. Senior advocates wear gowns that have flaps on the shoulders.

How to fix Advocate's fees?

Fee charged for Advocates for the various tasks performed is not standardized. Some advocates
charge a lump sum amount for dealing with an entire case, others charge separate fees for each
task - e.g., drafting, filing, legal advice, arguing. Senior advocates generally charge a separate fee
for every hearing. In the majority of Public Interest Litigation cases, these fees have been waived
by the advocates. When appearing on behalf of a legal aid committee, an advocate receives
expenses and nominal fees, at no cost to the party. In some Public Interest Litigation cases the
Court has awarded costs to the party. e.g., drafting, filing, legal advice, arguing. Senior
advocates generally charge a separate fee for every hearing. In the majority of Public Interest
Litigation cases, these fees have been waived by the advocates. When appearing on behalf of a
legal aid committee, an advocate receives expenses and nominal fees, at no cost to the party. In
some Public Interest Litigation cases the Court has awarded costs to the party.

Restrictions on senior Advocates -

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 .

b) (i) A senior advocate shall not appear without an advocate on on record in the supreme court
without an advocate an advocate of the state roll in any court or any tribunal or before any person
or other authorities mentioned in section 30 of the act.

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 (ii) where a senior advocate has been engaged prior to the coming into force of the rule in this
chapter shall not continue thereafter unless an advocate in Part II of the state roll is engaged
along with him:

Q.5. Explain disqualification of advocate?

Disqualifications for enrollment as an Advocate

Section 24A which has been inserted by Advocate (Amendment) Act, 1973 lays down the
conditions under which a person shall be disqualified for being enrolled as a member of the State
Bar Council. Originally there were two grounds of Disqualification, 1) For conviction of an
offense under the Untouchability Act, 1955. and; 2) Conviction of an offense involving moral
turpitude. However a third clause has been inserted by the Amendment of 1993 that dismissal or
removal from employment or office under the State on any charge involving moral turpitude.

The self explanatory provisions of Section 24 A are as follows :

(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

(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:

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Provided that the disqualification for enrolment as aforesaid shall cease to have effect after a
period of two years has elapsed since his release or dismissal or, as the case may be, removal.

(3) 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.

(4) Apart from the above provisions of disqualification of an advocate the Maharashtra and Goa
Bar Council under Rule 1(1) denies simultaneous practice of another profession along with the
practice law.

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