Assessment of Bar Council Disciplinary Committee

Author- Vishal Kumar Binay

The Bar Council of India (hereinafter, ‘BCI’) is a statutory body created by the Parliament under the Advocates Act, 1961 (hereinafter, ‘the Act’). Chapter V of the Act comprising of Sections 35 to 44 deals with the conduct of advocates and it lays down substantive provisions relating to professional and other forms of misconduct of enrolled advocates, including conduct of disciplinary proceedings and imposition of punishments.

BCI is a regulatory body and it has various committees under to assist it with various matters and Disciplinary Committee (Henceforth, ‘DC’) is one such committee which takes its sanction from Section 9 of the Act. Further, Part VII of the BCI Rules under head “Disciplinary Proceedings and Review” assists the substantial provisions with procedural aspect of disciplinary proceedings by the Bar Council or State Bar Council. The members of this DC, who are generally elected of 3 years are from the members of Bar Council for a fixed period and the council has the power to delegate duties and functions to the committee.

Disciplinary Committee’s name in general connotes that it has the responsibility of conducting and settling disciplinary charges and then issuing sanctions accordingly and BCI’s is no different. When any a complaint against advocates for misconduct have been adjudged by the State Bar Council, unsatisfied party can approach this DC, a 3 member body, by filing a revision or appeal, which will be heard by the members of the DC which will in turn pass an order after perusing the facts of the case and then order proportional punishment.

The Supreme Court in N.K. Bajpai v. Union of India^[1], while noting the role of Bar Council and State Bar Councils in maintaining discipline among advocates observed:

“The Bar Councils are empowered with the duty to act as sentinels of professional conduct and must ensure the dignity and purity of the professional conduct and etiquette. Thus, every State Bar Council and the BCI has a public duty to perform, namely, to ensure that the monopoly of practice granted under the Advocates Act is not misused or abused by a person who is enrolled as an advocate. The Bar Council has been created at the State level as well as the Central level not only to protect the rights, interests and privileges of its members but also to protect the litigating public by ensuring that high and noble traditions are maintained so that the purity and dignity of the profession are not jeopardized.”

Formation:

DC is formed under Section 9 of The Act, 1961. All such Committees shall consist of three members.

1. Two members shall be elected from the Council itself by its members.

2. One member shall be an advocate who possesses the desired qualifications and is elected by the members of the Council.

The Chairman each of this Committee shall be the senior most Advocate of such members.

Powers of Disciplinary Committee:

Section 42 of The Act provides that the DC shall have the same powers that a civil court has which includes all the powers mentioned in Criminal Procedure Code, 1908 and such powers include:

Summoning any person and examining him on oath
Ordering production of documents
Receiving evidence on affidavits
Getting public record from any court or office
Issuing commissions and expenses for the witnesses and documents

The DC does not have the power to order attendance of any officer of court except with permission of High Court of the respective state or the Supreme Court in case of DC of BCI. It cannot order any revenue officer to be produced in front of the committee except by prior permission of the respective State or Central Government.

The DC can submit to any civil court to request the attendance of any witness or production of any document and the civil court shall enforce such process.

The date of hearing will be fixed by the DC and the hearing will continue even if the chairman of the committee is not present but no final order can be passed unless all the three members of the committee are present.

If the members of the DC are not able to arrive at a consensus, the case will be presented before the Chairman of the BCI and his decision shall be final.

The Committee shall also make an order about the cost of the proceedings and such order is to be executed as if it were issued by any court.

The DC also has the power to hear appeals and order stay when the matter has been heard by State Bar Council along with the power to review its own orders.

Misconduct

Misconduct has not been defined under the Act and it includes breach of discipline and wrongful omission, intentional or unintentional or one’s action must be such that one would become unfit to be member of such profession and he becomes unfit to be entrusted with responsibilities.

Negligence

To determine whether a professional has been negligent or not, he has to be judged like an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess highest level of expertise in that branch which he practices.^[2]

A professional may be held liable for negligence on one of the two findings:

Either he was not possessed of the requisite skill which he professed to have possessed, or;
He did not exercise, with reasonable competence in the given case, the skill which he did possess.^[3]

There is a relationship between negligence and misconduct as negligence should be coupled with moral turpitude or delinquency to be considered as misconduct.

Punishment

Section 35 of the Act provides for punishment for professional and other misconduct. Section 35(1) of the Act provides that where on receipt of complaint or otherwise, if 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 DC.

Section 35(2) provides that the DC of State Bar Council shall fix the date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and the Advocate-General of such state.

Section 35(3) provides that the DC of a State Bar Council after giving the advocate concerned and the Advocate-General the opportunity of being heard, may make any one of the following orders, namely:

a. Dismiss the complaint or where the proceedings were initiated at the instance State Bar Council, direct that the proceedings be filed; or
Reprimand the advocate; or
Suspend the advocate from practice for such period as it may deem fit; or
Remove the name of the advocate from the State roll of advocates.

Section 35(4) provides that where an advocate is suspended from practice under clause (c) of sub-section (3), they shall during the period of suspension, be debarred from practicing in any court or before any authority or person in India.

Thus, it is clear from the above provisions under section 35 that an advocate can be punished for both professional misconduct or negligence.

Process of Proceedings

When the state Bar Council receives a complaint or has a reason to believe that any advocate is guilty of misconduct, it shall transfer the proceedings to the DC and it shall dismiss the compliant if deems fit. This process is mentioned in Section 35 but if the complaint is withdrawn or if the complainant passes away, the matter will be dropped. The advocate can appear in person or through duly authorized representative and in case of the advocate not appearing on the date of the hearing, the matter will be heard ex-parte and a decision will be made. All the evidence presented shall be recorded and signed by the Chairman of the DC and then the Committee can dismiss the complaint or hold the advocate guilty. In O.N. Mahindroo v Dist. Judge, Delhi, the apex court held that every order of DC shall mandatorily be approved by the BCI, so the Registrar of the DC will send a copy of judgment signed by the Chairman of the DC to the parties free of cost and an appeal can also be made to the BCI when matter has already been heard by the State Bar Council and such matter shall be heard in the same procedure by the DC of BCI.

Appeal against order of Disciplinary Committee

Any person aggrieved by an order of the DC of the State Bar Council may appeal to the BCI within 60 days from the date of the communication of the decision of the State Bar Council.

The DC of the BCI of India shall hear the matter on appeal and pass such orders as it deems fit, including varying the order of punishment awarded by the DC of the State Bar Council. In case, the appellate authority that is BCI and it enhances the punishment awarded or otherwise prejudicially affects the interest of the aggrieved person, no order shall be passed without providing the aggrieved person an opportunity of being heard.

Any person aggrieved by an order of the DC of the BCI may appeal to the Supreme Court within 60 days from the date of the communication of the decision and the Supreme Court may pass any orders, including varying the order of punishment awarded by the DC of the BCI but no such order which prejudicially affects the interest of the aggrieved party shall be passed without providing him adequate opportunity of being heard.

Consequences of Disciplinary Proceedings:

If an order of reprimand is made against an advocate the same shall be noted against the name of the advocate in the State roll.
If an order of suspension of practice is made against an advocate then he shall be debarred from practicing in any court or appear before ant tribunal, authority or person during the suspended period of time.
If order of removing an advocate from practice is made, then their name will be struck off from the State roll.
In case of suspension or removal from practice, the certificate of enrolment granted to the advocate shall be recalled.

Leading Case Laws:

In Adi Pherozshah Gandhi v. H.M. Seervai^[4], when State Bar Council did not find the accused guilty, the Advocate General filed an appeal to the BCI, it was argued that Advocate General cannot be the aggrieved person who can file appeal under Section 36 and 37 but the court held that Advocates General is not a representative of the Government in India but of the state government so, Advocate General can be the aggrieved person under Section 37 of the Act if they find that the decision of the DC has not safeguarded the interest of the public.
In Ajitsinh Arjunsinh Gohil v. Bar Council Of Gujarat And Anr^[5], when the State Bar Council referred a disciplinary matter to the BCI, it did not inquire the matter and sent it back to the State Council. The Supreme Court remanded the DC of BCI and ordered it to decide the matter within three months and further directed that once a complaint has been made, it must be disposed off within a year and noted that the decision taken may not be appropriate but the Committee cannot shirk away from taking any decision.
In An Advocate v. B.B. Haradara & Ors^[6], the Supreme Court framed a few guidelines regarding the conduct and noted that when an advocate is charged for negligence, it has to be decided whether the negligence was tolerable, done by person in general or was culpable in nature. The DC has to decide the matter with full consciousness and rules of natural justice and the DC is to take evidence like any other court and record appropriate oral evidence. These proceedings are quasi-criminal in nature as the guilty advocate can be disbarred. It should be guided by principle of benefit of doubt and advocate should be only if it is proved that he is guilty beyond reasonable doubt with mens rea and not on basis of preponderance of evidence or mere suspicion.

Thus, it is quite clear that Bar Council of India has an existing framework principles of natural justice imbued into the procedure to maintain standard of professional conduct among advocates of India and the state’s Bar Councils too play their part to safeguard the workings of and among the legal fraternity.

^[1] N.K. Bajpai v. Union of India, AIR 2022 SC 1310

^[2] Jacob Mathew v. State of Punjab & Another (2005) 6 SCC

^[3] CBI v. K. Narayana Rao (2012) SCC 512

^[4] Adi Pherozshah Gandhi v. H.M. Seervai, Advocate General, 1971 SCR (2) 863

^[5] Ajitsinh Arjunsinh Gohil v. Bar Council Of Gujarat And Anr, 6 April, 2017

^[6] An Advocate v. B.B. Haradara & Ors, 29 September, 1988