A

PROJECT ON

Disciplinary Powers of the State Bar Council

SUBMITTED TO:
FACULTY OF Professional Ethics

SUBMITTED BY:
ROLL NO. 24
SEMESTER X:

SEC ( C ): BATCH X: B.A. L.L.B (HONS.)

DATE OF SUBMISSION 7TH APRIL 2015

ACKNOWLEDGEMENTS
I, , feel myself highly elated, as it gives me tremendous pleasure to come out with work on
the topic Disciplinary Powers of the State Bar Council
Words fail to express my deep sense of glee to my teacher,
who enlightened me with his beautiful work on this topic.
I would like to thank him for guiding me in doing all sorts of researches, suggestions and
having discussions regarding my project topic by devoting his precious time. I thank for
providing Internet facilities. And lastly I thank my friends and all those who have helped me
in the completion of this project.

Thanking you,

Semester X

RESEARCH METHODOLOGY
Methodology used in this project work is both Doctrinal and Secondary electronic research
i.e. data mainly collected from books, case laws, websites etc. This project work contains
extensive research work on Disciplinary Powers of the State Bar Council. This project is
based on theoretical study as well.

PREFACE
This section provides that all cases of professional or other misconduct shall be disposed of
by the disciplinary committee of the State Bar Council concerned, but before a Bar Council
refers a complaint against an Advocate to its disciplinary committee, it is essential that it
should be satisfied that there is a prima facie case against the Advocate. However, where due
to mental infirmity the client becomes unfit to give instruction to the counsel, the relationship
between the counsel and his client come to an end
The authorities that have been relied upon and used as source material have been duly
referred to and acknowledged in the footnotes. References have also been appended to the
project.
The mode of research has been subjective analytical. Secondary sources are referred to in the
course of research.

CHAPTERISATION TABLE OF CONTENTS

Introductory .
Chapter 1 professional or other misconduct ..
Chapter 2.reason to believe
Chapter 3 Chapter 3 Bar Council should not exercise normal functions of a Criminal or
Civil Court
Chapter 4 Chapter 4.Changes in constitution of disciplinary committee
Conclusion page..
Bibliography

Introduction
Prior law:- This section corresponds to Section 10 of the Indian Bar Councils Act, 1926 and
Sections 13, 14 and 15 of the Legal Practitioners Act, 1879. Section 10 of the Bar Councils
Acts is reproduced below.
Prior to this Act, High Court alone was competent to punish an Advocate for
unprofessional conduct. Under the Indian Bar Councils Act, the High Court, on receipt of a
finding from the Bar Council and after hearing all parties, could reprimand, suspend or
remove from practice any advocate whom it found guilt of professional or other misconduct.
The power of punishment for misconduct of an advocate under the present Act resides in the
State Bar Council under Section 35 or in the Bar Council of India under Section 36 not
entered on any State roll. An advocate, therefore, is primarily punished by the member of his
own fraternity in the shape of the disciplinary committee. Proceedings pending before the
disciplinary committee of any State Bar Council may be withdrawn disciplinary committee.

Chapter 1 Professional or other misconduct. There must be something which can fairly
be described as misconduct; otherwise three can be no reasonable cause for taking
disciplinary action. Misconduct itself is a sufficiently wide expression; it is not necessary
or instance that it should involve moral turpitude. The court has a right to expect a higher
standard of loyalty to the court under co-operation from those who practice profession of law.
Any conduct which in any way renders a man unfit for the exercise of his profession or is or
any of the courts subordinate thereto may be considered to be misconduct calling for
disciplinary action. What court has to consider in all these cases is the conduct of Advocate
(attorney) as it affects his position as an Advocate (attorney) and his relations to the court. 1
Iyer, J. said in The Bar Council of Maharashtra v. M.V. Daholkar2that the vital role of the
lawyer depends profession is to promote the administration of justice. As monopoly to legal
profession has been statutorily granted by the nation, it obligates the lawyer to observe
scrupulously those norms which make him worthy of confidence of community in him as a
vehicle of social justice. Law is not trade briefs-no merchandise. Legal profession is
monopolistic in character and the monopoly itself inheres certain high traditions which its
members are expected to upkeep and uphold. 3As misconduct has not been defined, meaning
in common parlance would guide its meaning. The term has to be examined with the lens of
propriety, decency and worthy living and the fitness of the person to rolls of an advocate.4
Both in law and in ordinary speech, the term misconduct uses an act done willfully with a
wrong intention and as applied to people, it includes unprofessional acts even though such
acts are not wrongful.5 Conduct of an advocate who was partly to racket in defrauding and
cheating aspirant loanees amounts to professional and order of the Disciplinary Committee of
1 In re, Tulsidas Amarlal Karnanmi, AIR 1941 Bom 228: ILR 1941 Bom 548: 1951C
359: 43 Bom LR 250: 42 Cr Lj 723.
2 AIR 1976 SC 242: 1976 UJ (SC) 49: (1976) 2 SCC 291: (1976) 2 SCR 48.
3 M. Veerabhadra Rao v. Tek Chand, AIR 1985 SC 28 at p.38.
4 U. Dakshinamoorthy v. commission of Enquiry, AIR 1980 Mad 89 at p.95: (1979)
92: 688: (1980)1 LJ 121 (FB).
6

the Bar Council is imposing the penalty of removal of the name of advocate found guilty of
advocates.6

The natural meaning of the works professional or other misconduct Section 35 of the
Act is misconduct in a professional or other capacity. --- of the Legal Practitioners Act
classified misconduct of a lawyer under While clauses (a) to (e) deal with various forms of
unprofessional clause (f) is very widely worded, the words being for any other rea cause.
The words professional or other misconduct occurring in Section 10, Indian Bar
Councils Act, have now been repealed in the present section.
In the above noted case the legal practitioner induced his client to pay him Rs.75 as
the fee of the senior lawyer to be engaged in a criminal appeal. No such lawyer was engaged
and the money was not claimed by the legal practitioner. The criminal appeal was
compromised without the knowledge and consequently without the consent of the client. The
sum of Rs. 1,500 being in consideration for the compromise was retained by the legal
practitioner. It was held that the charge of misconduct was amply framed against the legal
practitioner but the conduct complained of did not amount to any specific criminal offence.
Nevertheless the court took a lenient view of the matter and suspended the legal practitioner
from practice for a period of only six months.
Professional misconduct authorizing suspension or disbarment is not confined to
misconduct in the attorneys relation to his client, but includes as well misconduct towards
the court or a judge in or out of court 7 so is deliberate disobedience of a mandate or order of
court.8

5 Mahbub Ali Khan, in the mater of , AIR 1958 Andh Pra 116: ILR 1957 Andh Pra
20 Andh WR 191: 1959 CrLJ 155: 91957) 1 MLJ (Cr) 464.
6 Devendra bhai shanker Mehta v. Ramesh Chandra Vithal Das Seth, AIR 1992SC
13 1405: (1992)3 SCC 473: (1992)3JT (SC) 560: 1992 AIR SCW 1454.
7 U.s.-In re, Ades, (D.C Md.) 6 F. Supp. 467. Ala.-In re, Mitchell, 71 So. 467, 196
ala. 430: 6 CJ, p.594, note 89.
7

Where the counsel ha knowledge of previous petition having been filed and conceals
the fact from the court it amount fraud played on court9.

Chapter 2 Reason to believe. It may be noticed that the Bar Council on receipt of
complaint or otherwise, is not to transmit it to its disciplinary committees, but it is obligatory
on the part of the Council to see if there is reason to believe that an advocate on its roll is
guilty o unprofessional act. The requirement of it being essentially a barrier against frivolous
enquires. It is implicit in the resolution of the Bar Council when it says that it has considered
the complaint and decided to refer eth matter to the disciplinary committee that had reason to
believe as p[prescribed by the statute.10 Following the above case the Supreme Court held that
on receipt of complaint the Bar Council is required to apply its mind to find out whether ther3
is nay reason to believe that an advocate has been guilty of professional or other misconduct.
As in this case, it had not been done the proceedings before the disciplinary committee were
set aside.11 The Bar Council before it could act under Section 35, should have before it
material which with some certainly lead to the conclusion that misconduct was actually
committed. The Bar Council performs an administrative function when expressing power

8 In re, Gluck, 243 NYS 334: 229 App div 490: re, Reinhardi, 162 NYS 524: 175
App div 843.
9 Chandrika Pd v. State, AIR 19856 M.P. 254 at 258.
10 Bar Council of Maharashtra v. N.V. Dabholkar, AIR 1976 SC 242 at p.244: 1976
UJ (SC) 49: (1976)2SCC 291: (1`976) 2 SCR 48.
11 Nandlal v. Bar Council of Gujarat, AIR 1981 SC 477: 1980 UJ (SC) 914: 1981
SCC (Cr) 255: 1980 All WC 689.
8

under Section 35. When the matter goes to the disciplinary committee then quasi-judicial
proceedings begin.12
Nature of proceedings and standard of proof : - Disciplinary proceedings before the State
Bar Council are sui generis and are neither civil nor criminal in character 13. An advocate
should not be condemned for professional misconduct unless the proof of this delinquency is
free from doubt.14 It will be useful to make reference to certain important principles which
have to be borne in mind in deciding cases of professional misconduct and the standard of
proof which it is necessary for the complaints to attain to prove such a charge. The first case
which may be referred, to in this connection is Emperor v. Surjya Narayan.15 A Full Bench of
Patna High Court made the following observations in a case under Section 13, Legal
Practitioners Act.
The court is entirely unable to understand why a different standard of proof of guilt should
be required in a case like the present from the which is necessary in any other legal
proceedings. The proof which is required in order to convict on a criminal charge is that
which leaves no r3asonable doubt in the mind of the court that the offence has been
committed.
To adopt a different standard of proof in cases arising under the Legal Practitioners
Act would, in our opinion, be an entirely novel departure and unjustifiable on any known
principle of law. To remove a person from his profession, for what amounts to a criminal
12 P.C. Chaturvedi v. Bar Council of U.P., 1977 All WC 45: ILR (1977) 1 All 439:
1977 Cr. Lj 897.
13 V.C. Rangadurai v. D.Gopalan, AIR 1979 SC 281 at p.288: 1978 UJ (SC) 838:
1979 All LJ 144: (1979) 1 SCC 308: (1979) 2 Mad LJ (SC)1: (1979) 2 SCWR 134.
14 R, a Higher Grade zPleder and H, a Lower Grade Pleader, In re, AIR 1936 Rang
180:36 Cr LJ 1090: 157 IC 48; Dogar Amir Chand v. P. a Pleader, ILR 18 Pat 580:
182 IC 645: 40 Cr LJ 687: AIR 1939 Pat 343: 20 PLT 607; Emperor v. Harbans Lal,
163 IC 975: AIR 1936 Lah 1013; In re, a Pleader, Bellary, ILR 1945 Mad 317: AIR
1945 Mad 132:40 Cr LJ 556: 219 IC 275: AIR 1945 Mad 132: 40 Cr LJ 556: 219 IC
275:58 LW 56: 1945 MWN 106 (2): (1945) 1 MLJ 174; Crown v. Puran Pleader, ILR
1938 Mad 104: AIR 1937 Mad 696; Ananda Devi v. Banchanidhi, AIR 1959 Orissa
1.
15 AIR 1920 Pat 84:21 Cr LJ 636: 57 IC 460.
9

offence upon evidence which would not support a conviction on a criminal charge, cannot
possibly the justified.16
It is no longer to be considered to be good law and the test according to the supreme
Court is that there should be convincing preponderance of evidence.17 The principles of
natural justice apply to the disciplinary proceedings and the Disciplinary Committee must
frame a charge specifying the misconduct against the advocate before recording evidence.18
In A Pleader v. Judges of high Court, Madras,19 which was a case under Section 10,
Letters Patent of the Madras High Court, their Lordships of the Privy Council laid down as
follows:Before dealing with the charges, it is right to state that, in their Lordships opinion,
charges of professional misconduct must be clearly proved and should not be inferred from
mere ground or suspicion, however, reasonable, or what may be mere error of judgment or
indiscretion. An appropriate guide may be found in Section 13, Legal Practitioner Act, No. 18
of 1879.The same view appears to be deducible from the judgment of their Lordships of the
Supreme Court in Bhataraju Nageshwara Rao v. Judges of Madras High Court.20In the
case of enquiry into a charge of professional misconduct evidence should leave no reasonable
doubt of guilt21.
It is clear that the same principles which govern inquiries under Section 13, legal
Practitioners Act, should apply to inquiries under Section 35 of the Advocates Act:
16 Kr. Amarsingh of Sabalpore v. Mandanmohan Lal, AIR 1956 Raj 58.
17 V.C. Rangadurai v. D. gopalan, AIR 1979 SC 281 at p.288: 1978 UJ (SC) 838
and P.D. Khandekar v. Bar Council of Maharashtra, AIR 1984 SC 110 at p.113.
18 In re, an Advocate, AIR 1989 Sc 245 at p.254: (1989) 1 Ker LT 116: 1989 BCJ
116: (1989) 1 Civ LJ 407: (1988) 4JT (SC) 376: (1988) 2 Cur CC 920: (1989) 1
UPLBEC 58: 1989 SC FB RC 62.
19 AIR 1930 PC 144:31 MLW 627: 1930 ALJ 539: 58 MLJ 635: 1930 MWN 300:34
CWN 534:7 CWN 517:51 CLJ 418: 123 IC 184; Ram Bharos Co. Kalar Bhavani
Kalar v. Surendra nath Jhulnu, AIR 1960 MP 81: 1959 MPC 732: 1960 MPLJ 27.
20 AIR 1955 SC 223: 1955 SCR 1035.
21 L.D. Jaishinghani v. Naraindas M. Punjabi, AIR 1976 SC 373 at p.376: (1976) 1
SCC 354: 1976 UJ (SC) 68.
10

Charges of professional misconduct must be clearly proved and should not be

inferred from ground for suspicion or what may be mere error of judgment or indiscretion. 22
Proving facts and circumstances giving rise to grave suspicion is not sufficient to establish a
charge of fraudulent or glossy improper conduct in the discharge of professional duties.23
The Bar Council performs an administrative function while exercising power under
Section 35. When the matter goes to the Disciplinary Committee then the quasi-judicial
proceedings begin.24 Disciplinary Committees of both the Councils i.e., State Bar Council of
India, exercise their jurisdiction as quasi- judicial Tribunals25. After passing the Advocates
Act, 1961, Bar Councils have been given jurisdiction to take disciplinary proceedings against
advocates and no court is invested with power to control the action of an advocate who is
cited as a witness and who wants to represent the accused at a criminal trial. 26 A profession
body like the Bar council has the exclusive jurisdiction under Section 35and is enjoined to
dispose of enquiry expeditiously within a year.
Mere negligence unaccompanied by any moral delinquency dose not amount to professional
misconduct. When there is considerable doubt whether upon the evidence the charge of
professional misconduct can be supported, then the charge shall fail.27

22 Kashi Nath Ratho v. U.C. Patnaik, Pleader ILR 18 Pat 580: 182 IC 645: 40 Cr. LJ
687: AIR 1939 Pat 343:20 PLT 607; Crown v. Puran chand, Advocate, AIR 1950
Pepsu 2:51 Cr Lj 862; Dogar Amir Chand v. a Pleader, AIR 1930 Lah 947: 32 Cr LJ
303:31 PLR 913:129 IC 301.
23 Kahsi Nath Ratho v. U.C. Patnaik, Pleader, AIR 1939 Pat 343: ILR 18 Pat 580:
182 IC 645: 40 Cr Lj 687: 20 PLT 607; Bar Council, Madras v. K. Raghavaiah, AIR
1964 Mad 488.
24 P.C. Chaturvedi v. Bar Council of U.P., 1977 All WC 45: ILR (1977) 1 All 639:
1977 Cr LJ 897. Maghraj Call v. Kajodi Mall, AIR 1994 Raj 11.
25 Mast Ram v. B.K. Bedi, 1973 Chan LR (Cr) 367 (369) (Punj).
26 Mangu Srihari v. Bar Council of state of Andhra Pradesh, AIR 1983 AP 271 at
p.276: (1983) 1 Andh WR 319: (1982) Andh LT 479.
27 Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra, AIR 1984 SC
110.
11

Punishment for misconduct:- Legal profession is monopolistic in character and the

monopoly itself inheres certain high traditions which its members are expected to upkeep and
uphold. With these observations the Supreme Court in the undermentioned case, 28 enhanced
the punishment from mere reprimand to suspension from practice for five years. In this case
the appellant had fabricated signatures on an affidavit.
Chapter 3 Bar Council should not exercise normal functions of a Criminal or Civil
Court.
The jurisdiction under the Advocates Act, 1961, is one which ought to be
circumspectly exercised.
Through it is true a deliberate fraud of a criminal character committee on a client must
necessarily amount to professional misconduct in an Advocate, it dose not follow that the
Disciplinary Committee created by the Act is one which ought necessarily to deal, at any rate,
in the first place, with every case in which an Advocate is charged with committing a fraud or
other crime in relation to his professorial practice. A distinction should be drawn between that
species of misconduct which is of a purely professional character and misconduct which also
lies within the ambit of the criminal law. In the former case, there is no doubt that a
Disciplinary Committee such as that which is contemplated by the Advocates Act is a proper
one to deal exclusively with purely professional delinquencies. But it is doubtful whether it
was the intention of the Act that a Disciplinary Committee should in all cases usurp the
functions of a Criminal or Civil Court merely by reason of the accident of the person
complained against being an Advocate and the subject-matter of the complaint being a matter
connected with his professional practice. This view was expressed by the Judicial Committee
of the Privy Council in A Pleader v. the judges of the High Court of Judicature at
Allahabad,29 in these words:
To do so in every case would lay the jurisdiction of the Act open to grave abuse. In all
circumstances this is a matter which should be dealt with after the complainant has taken
such steps, if any as he may be advised to take to establish either the guilt of the practitioner
in question in a Criminal Court or his liability in a Civil Court. Should either of these
28 M. Veerbhadra Rao v. Tek Chand, AIR 1985 SC 28 at p. 35.
29 AIR 1931 PC 112: 132 IC 608 : 58 IA 152 ; ILR 53 All 183:----450.
12

proceedings be taken and terminate in the framing of the charges leveled by the complainant
against the Bar Council again under the Advocates Act.30
Reinstatement:- The principle deducible from the long series of English decisions, 31 is that it
is open to a court when a legal practitioner has been dismissed for misconduct of any
description, in the widest sense of the term, to re-admit him after the lapse. Of time if he
satisfies the court that he has in interval conducted himself honourably and that no objection
remains as to his character or capacity.
The doctrine just explained had been adopted in the Indian Courts as well. It had been held in
a number of cases that although there is no express provision for a review of an order made
under the Legal Practitioners Act, there was inherent power in the High Court to restore a
pleader whose name had been struck off the rolls,32 under the present Act the High Court dose
not possess any Jurisdiction to punish an Advocate for professional misconduct; nor can it,
after an Advocate has been removed from the roll, reinstate him. The power of punishment
for misconduct of Advocate resides in the disciplinary committees of the Bar Councils and
Section 44 empowers them suo motu or otherwise to review these orders.
The following observations touching this subject are to be found in the judgment of the
Allahabad High Court in In the Matter of R, a Mukhtar, Budaun33 : While on the one hand
we are clearly of opinion that a legal practitioner, who has been convicted of an offence
implying moral turpitude or who has been found guilty of some misconduct, may so reform
his character in course of time as to justify his re-admission to the legal profession, we think,
on the other hand, that the mere fact that he has not repeated his offence and has not shown
any tendency to misconduct himself in his dealings with others during a given period is not
always sufficient for reinstatement of a dismissed legal practitioner.
30 In the matter of H, an Advocate, AIR 1941 All 280 : ILR---------: 1941 AWR (HC)
217: 1941 ALJ 390: 42 Cr LJ 673.
31 In re, Smith, Un rep cited in 17 Bear 477; In re, Robins, (1865) 34 LJQB 121;
In re, Bramdatt, (1891) 60 LJQB 501; King v. Grimwood, (1760) 1. WB Lock 222;
In re, Pyke, (1895) PC 330; In Anonymous case, (1853) Beav 475.
32 In the matter of H, a Vakil, Banda, AIR 1935 All 321 : 4 AWR 1404 : 156 IC
243; In the matter of R, a Mukhtar, of Budaun, AIR 1937 All 50.
33 AIR 1937 All 50: ILR 1937 All 411 : 166 IC 818.
13

Chapter 4.Changes in constitution of disciplinary committee:- Whenever in respect of any

proceedings under Section 35 or Section 36, a disciplinary committee of the State Bar
Council or a disciplinary committee of the Bar Council of India ceases to exercise jurisdiction
and is succeeded by another committee which has and exercises jurisdiction, the disciplinary
committee of the State Bar Council or the disciplinary committee of the Bar Council of India,
as the case may be, so succeeding may continue the proceeding from the stage at which the
proceedings were so left by its predecessor committee.
Disposal of disciplinary proceedings:- The disciplinary committee of a State Council shall
dispose of the complaint received by it under Section 35 expeditiously and in each case the
proceedings shall be concluded within a period of one year from the date of the receipt of the
complaint or the date of initiation of the proceedings at the instance of the State Bar Council,
as the case may be, failing which such proceedings shall stand transferred to the Bar Council
of India which may dispose of the same as if it were a proceeding withdrawn for inquiry
under sub-section (2) of Section 36.
Appeal to Bar Council of India.
Scope:- Under this section an appeal to the Bar Council of India from any order of the
disciplinary committee of a State Bar Council made under Section 35(3) shall lie at the
instance of the person aggrieved or the Advocate General of the concerned State.
Every such appeal shall be made within sixty days of the date of the communication of the
order to the party concerned. The date of communications is not the date of the dispatch of
the order but the date of its receipt. The appeal to the Bar Council of India shall be heard and
decided by its disciplinary committee who may pass appropriate order. It may order that an
14

order made by the disciplinary committee of a State Bar Council shall be stayed pending the
disposal of an appeal there from upon such terms as shall seem fit. The disciplinary
committee of the Bar Council of India is competent to vary the order of punishment handed
over by the disciplinary committee of the State Bar Council. It has been specifically enjoined
upon by the proviso that the disciplinary committee of the Bar Council of India shall not vary
the order under appeal so as to prejudice the aggrieved person, without giving him
opportunity of being heard, as an obvious quintessence of natural justice. Of course, if a
person is dissatisfied with the order of the disciplinary committee whether made in the
exercise of appellate or original jurisdiction he has under Section 38 a right of appeal to the
Supreme Court of India.
Person aggrieved.- This expression, in a case decided before the amendment of sub-section
(1) of this section in 1973 came to be examined before a Bench of five Judges of the Supreme
Court. An advocate on the roll of Maharashtra State Bar Council who was charged with
professional misconduct was exonerated by the State disciplinary committee. The AdvocateGeneral of Maharashtra filed appeal before the Bar Council of India where advocates
objection that the Advocate-General was not an aggrieved person was negative and the
advocate was suspended for a year. however, disagreed and held that the Advocate-General
and the Attorney-General represented the standards to be maintained in the profession. 34 If a
public servant is competent to file a complaint there is no reason why for the purpose of
appealing to the Bar Council of India, he is not a person aggrieved.35
By the Advocates (Amendment) Act, 60 of 1973 both Sections 37 and 38 were amended and
words or an Advocate-General of the State were inserted in Section 37(1) and words or
the Attorney-General of India or the Advocate-General of the State concerned as the case may
be were added to Section 38 of the Act and thus the minority view expressed, in, Adi
Pherozshah Gandhi v. H. M. Seervai, Advocate-General36, was given effect to.

34 Adi Pherozahah Gandhi v. H.M. Seeervai Advocate-General of Maharastra, AIR

1971 SC, 385 at pp. 389, 395 and 421: (1971) 2 SCJ 71: (1971) 1 SCR 863.
35 B.M. Madnani v. Commissioner of Workmens Compensation, Bombay, (1969)
1 SCWR 216: (1969) 2 SCC 299.
36 AIR 1971 SC 385.
15

After the aforesaid amendments, the term aggrieved person again came to be examined
before a Bench of seven Judges of the Supreme Court. Respondent M.V. Dabholkar an
advocate was found guilty of professional misconduct by the disciplinary committee of the
Bar Council of India exonerated the respondent and his suspension was set aside. The Bar
Council of State of Maharashtra appealed to the Supreme Court under Section 38 and mainly
relied on Adi Pherozshah Gandhis case.37 It was contended that the Bar Council was not a
person aggrieved.
The Bar Council is an aggrieved person because (1) these words are of wide import; (2) the
Bar council represents the collective conscience of the standards of professional conduct; (3)
the Bar Council is all the time interested in the proceedings for vindicating discipline, dignity
and decorum of the profession; (4) a decision of the Committee can only be corrected by
appeal and (5) the Bar Council is vitally concerned with the decision.
Appeal to the Supreme Court.- Any person aggrieved by an order made by the disciplinary
committee of the Bar Council of India under Section 36 or Section 37 [or the AttorneyGeneral of India or the Advocates-General of the State Government as the case may be,] may,
within sixty days of the date on which the order is communicated to him, prefer an appeal to
the Supreme Court and the Supreme Court may pass such order (including an order varying
the punishment awarded by the disciplinary committee of the Bar Council of India) thereon
as it deems fit:
Constitutionality of Section 38.- The matter of the validity of this section directly arose in
the undermentioned case,38 in the Supreme Court. The appellant having been found guilty of
professional misconduct was duly convicted and his appeals to the Bar Council of India and
the Supreme Court had also failed. He then filed a writ petition in the High Court challenging
validity of Section 38 of the Advocates Act and of Order V, Rule 7 of the Supreme Court
Rules. The latter rule provides for dismissal of an appeal on a preliminary hearing. The
appeal and the letters patent appeals also failed. Then he filed the appeal in the Supreme
Court. His contention was that Section 38 was outside the legislative powers of the
Parliament for it offends List III Entry 28 of the Constitution which relates to Legal medical
37 AIR 1971 SC 385.
38 O.N. Mohindroo v. Bar Council of Delhi, AIR 1968 SC 888 at pp. 890, 894:
(1968) 1 SCWR 986: (1968) 2 SCJ 448.
16

and other professions. The Supreme Court held that the entry is not concerned with the
Constitution and organization of courts or their jurisdiction and powers. These area maters
dealt with by Entries 77, and 78 of List I. These are entries also deal with persons entitled to
practice before the Supreme Court and the High Courts and the power to legislate in regard
to them is carved out form the general power relating to professions in Entry 26 of List III
and is made the exclusive field of Parliament. The Advocates Act in pith and substance is an
enactment which concerns itself with the qualifications, enrolment, right to practice and
discipline of the advocates and must be held to fall within Entries 77 and 78.
The right to appeal under Section 38 creates a jurisdiction and power in relation to a matter
falling under Entries 77 and 78 of the Union List.

Conclution
This section provides that all cases of professional or other misconduct shall be disposed of
by the disciplinary committee of the State Bar Council concerned, but before a Bar Council
refers a complaint against an Advocate to its disciplinary committee, it is essential that it
should be satisfied that there is a prima facie case against the Advocate. However, where due
to mental infirmity the client becomes unfit to give instruction to the counsel, the relationship
between the counsel and his client come to an end.

17

Bibliography
http://legalsutra.com/426/disciplinary-powers-of-the-state-bar-council/

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