1.

Introduction
The legal profession has at been at the forefront of many a nation's progress. The enormity of the
service provided by the profession to the world at large has led to it being labelled a noble
profession1. Though the title is scoffed at today due to the erosion of ethical practices by the
profession, it is imperative that a significant effort is made to regain the substance behind the now
ironic title. This effort is currently being made through the Advocates Act 1961 and the Rules
formulated by the Bar Council of India. These provisions lay down the standards and duties
expected of an advocate. When there is a violation of these standards and duties there is
professional misconduct on the part of the advocate. Such misconduct is punishable under s.35 of
the Advocates Act by the State Bar Council and under s.36 by the Bar Council of India.

One such incident of misconduct wa seen in the case that is being discussed in this paper, which is
the case of Hikmat Ali v. Ishwar Prasad Arya2. The case was decided by the Supreme Court in 1997.
The paper seeks to examine the facts, arguments and the reasoning of the Supreme Court in
reaching the verdict it did. Further the paper seeks to transform the case into a vehicle for studying
the concepts of moral turpitude and professional misconduct as seen in s.24A and s.35 of the
Advocates Act. Lastly the paper will try to critique the point of law expressed in the case and also
see if any other lessons can be learned from this case.

2. Hikmat Ali v. Ishwar Prasad Arya

2.1. Facts of the Case
Ishwar Prasad Arya, respondent No. 1, was registered as an advocate with the Bar Council of Uttar
Pradesh and was practising at Badaun. An incident took place on May 18, 1971 during lunch
interval at about 1.55 p.m., in which Ishwar Prasad (Respondent) assaulted his opponent Radhey
Shyam in the Court room of Magistrate, Bisauli at Badaun with a knife. A pistol shot is also said to
have been fired by him at the time of incident. After investigation he was prosecuted for offences
under Section 307 of the Indian Penal Code and Section 25 of the Arms Act. The 1st Temporary
Civil and Sessions Judge, by his judgment dated July 3, 1972, convicted him of the said offence and
sentenced him to undergo rigorous imprisonment for three years for the offence under Section 307,
I.P.C. and for a period of nine months for offence under Section 25 of the Arms Act.

On appeal the conviction under the Arms Act was overturned but the conviction under s.307 was
upheld. A letter bearing No. Pr. VI/Chh. Pa XXIII - 2016-75-76 dated April 28,1976 purporting to
1
See Generally, R. Ramachandran, “Professional Ethics: Changing Profession”, Changing Ethics (Lexis Nexis
Butterworth; New Dehli:2004)
2
Hikmat Ali v. Ishwar Prasad Arya, AIR 1997 SC 864
have been sent by Mr. L.R. Singh, Deputy Secretary, Ministry of Home, U.P., Lucknow, addressed
to the District Magistrate, Badaun bearing endorsement No. 1513(II)-75-76 was received in the
Court of the IIIrd Additional District and Session Judge, Badaun, who was responsible for executing
the order. The letter stated that the Governor was pleased to pardon the Respondent under Article
161 of the Act. Later it was found out that the letter was forged and the Respondent was arrested
immediately.

2.2. Disciplinary Proceedings

Disciplinary proceedings were initiated against the Respondent by the Bar Council of U.P. and he
was found guilty of gross professional misconduct by taking the benefit himself of a forged and
fabricated document which had been prepared at his behest. The Disciplinary Committee of the Bar
Council of U.P. directed the Respondent be debarred from practising as an advocate for a period of
two years from the date of the service of the order. The Respondent filed an appeal, the said appeal
was allowed by the Disciplinary Committee of the Bar Council of India by order dated June 8, 1984
and the order of the Disciplinary Committee of the Bar Council of U.P. dated January 30, 1982 was
set aside on the view that there was no material on the basis of which it could reasonably be held
that Respondent had prepared the document which was subsequently found forged.

Hikmat Ali (Appellant) filed another complaint with the Bar Council. The Disciplinary Committee
suspended the Respondent for a period of three years. The Respondent appealed and there was a
cross appeal by the Appellant to increase the punishment. On appeal this suspension too was
overturned as the Disciplinary Committee said that the Respondent had already been acquitted in a
previous matter before the Committee. Feeling aggrieved by the said order dated September 8, 1985
passed by the Disciplinary Committee of the Bar Council of India allowing D.C. Appeal No. 17 of
1984 filed by the Respondent and dismissing D.C Appeal No. 17A of 1984 filed by him, the
appellant filed an appeal before the Supreme Court.

2.3. Arguments in the Supreme Court

The first argument of the Appellant was that the Disciplinary Committee had wrongly overturned
the suspension of the Respondent as the second complaint was based on the offense under s.307 of
the IPC and the Respondent's name being in the list of bad characters in the Badaun Police Station.
and the earlier complaint was lodged due to the allegation of forgery.

The second submission of the Appellant was that due to the gravity of the misconduct of the
Respondent under Section 307, I.P.C. and his being sentenced to undergo rigorous imprisonment
for three years in connection with the said incident, the punishment of removal of his name of from
the roll of advocates should have been imposed on him

2.4. Decision of the Supreme Court

The Supreme Court stating that the acts of misconduct found established were serious in nature,
outlined the options available to the Bar Council under Sub-section (3) of Section 35 of the Act.
Under this section, the Disciplinary Committee of the State Bar Council is empowered to pass an
order imposing punishment on an advocate found guilty of professional or other misconduct. Such
punishment can be a reprimand, suspension from practice for a certain period and removal of the
name of the advocate from the State roll of advocates, depending on the gravity of the misconduct
found established.

The punishment of removal of the name from the roll of advocates is called for where the
misconduct is such as to show that the advocate is unworthy of remaining in the profession. The
Supreme Court at this point turned its attention to s.24A of the Act which deals with disqualification
from enrollment. The Court pointed out that under Section 24A of the Act a person who is convicted
of an offence involving moral turpitude is disqualified for being admitted as an advocate on the
State roll of advocates. Drawing a parallel to the case at hand, the Supreme Court laid down that the
conduct involving conviction of an offence involving moral turpitude which would disqualify a
person from being enrolled as an advocate has to be considered a serious misconduct when found to
have been committed by a person who is enrolled as an advocate and it would call for the
imposition of the punishment of removal of the name of the advocate from the roll of advocates.

Dealing with the facts at hand the Court stated that the Bar Council had failed to appreciate the
gravity of the offence committed by the Respondent and stated that the said misconduct called for
the imposition of the punishment of removal of the name of the Respondent from the State roll of
advocates. The Supreme Court, taking the matter into its own hands, decided finally that the appeal
should be allowed and the Respondent's name should be struck from the State roll of advocates.

3. Section 35 and the Realm of “Misconduct”

3.1. S.35 of the Advocates Act
The parts of s.35 which are relevant to the discussion in this paper are as follows:
(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any
advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for
disposal to its disciplinary committee......
(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the
Advocate- General an opportunity of being heard, may make any of the following orders, namely:-
(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar
Council, direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates.....

3.2. “Misconduct”
The key word in the section given above is “misconduct”. To understand the scope and implication
of the term “misconduct”, the context of the role and responsibility of an advocate should be kept in
mind. Misconduct is a sufficiently wide expression, and need not necessarily imply the involvement
of moral turpitude. “Misconduct” per se has been defined in the Black’s Law Dictionary to be “any
transgression of some established and definite rule of action, a forbidden act, unlawful or improper
behavior, willful in character, a dereliction of duty.”3 In a different context, the Supreme Court has
opined that the word “misconduct” has no precise meaning, and its scope and ambit has to be
construed with reference to the subject matter and context wherein the term occurs. In the context of
misconduct of an advocate, any conduct that in any way renders an advocate unfit for the exercise
of his profession, or is likely to hamper or embarrass the administration of justice may be
considered to amount to misconduct, for which disciplinary action may be initiated.4

The Supreme Court has, in some of its decisions, elucidated on the concept of ‘misconduct’, and its
application. In Sambhu Ram Yadav v. Hanuman Das Khatry5, a complaint was filed by the appellant
against an advocate, before the Bar Council of Rajasthan, who asked for Rs. 10,000 to bribe and
influence the judge to obtain a favorable order. The Disciplinary Committee, holding that the
advocate was guilty of “misconduct”, stated that such an act made the advocate “totally unfit to be a
lawyer.” The Supreme Court, upholding the finding of the Rajasthan Bar Council held that the legal
profession is not a trade or business. The Court further stated that members belonging to the
profession have a specific duty to uphold the integrity of the profession and to discourage
corruption in order to ensure that justice is secured in a legal manner.

3
Black’s Law Dictionary 237 (9th ed. 2009).
4
D.C. Saxena v. Chief Justice of India, AIR 1996 SC 2481
5
Sambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509
In another case, Noratanman Chouraria v. M. R. Murali 6, the Supreme Court studied the extent of
the words “professional misconduct” in Section 35 of the Advocates Act. Here involved an advocate
assaulted and kicked the complainant and asked him to withdraw the case. The principal issue in
this case was whether the act of the advocate amounted to misconduct, the action against which
could be initiated in the Bar Council, even though he was not acting in the capacity of an advocate.
The Supreme Court laid down that a lawyer is obliged to observe the norms of behavior expected of
him, which make him worthy of the confidence of the community in him as an officer of the Court.
Despite the fact that he was not acting in his capacity as an advocate, his behavior was unfit for an
advocate, and the Bar Council was held to be justified in proceeding against him. While reaching
the above decision, the Court studied the jurisprudence in this area. It reaffirmed that the term
“misconduct” is incapable of a precise definition. Broadly speaking, it envisages any instance of
breach of discipline. It means improper behavior, intentional wrongdoing or deliberate violation of a
rule of standard of behavior. The term may also include wrongful intention, which is not a mere
error of judgment. Therefore, “misconduct”, though incapable of a precise definition, acquires its
connotation from the context, the delinquency in its performance and its effect on the discipline and
the nature of duty. To sum up, it must be improper or wrong behavior which is willful in character.
It may involve moral turpitude, but is not a mere error of judgment, carelessness or negligence in
performance of duty.7

As officers of the court advocates are required to uphold the dignity of the court and maintain a
respectful attitude towards it. The Bar and the Bench form a noble and dynamic partnership geared
to the social goal of administration of justice, the mutual respect of the Bar and the Bench is
essential for maintaining cordial relations between the two. 8 Further it is to be be noted that the
scope of “misconduct” is not restricted by technical interpretations of rules of conduct. This was
proven conclusively in the case of Bar Council of Maharashtra v. M.V. Dahbolkar9. When the Bar
Council failed to take action against advocates who were causing a scrimmage trying to undercut
each other at the court gates, the Supreme Court held that a restrictive interpretation of the relevant
rule by splitting up the text does not imply that the conduct of the advocates was warranted or
justified.

As far As punishment goes the case of In the matter of an advocate10, two disjunctive tests were laid
6
Noratanman Chouraria v. M. R. Murali AIR2004SC2440
7
G. Chari, “Advocacy and Professional Ethics”, (Wadhwa & Co.; Allahabad:2000), p.41
8
S.C. Sarkar, “Cross Examination and Professional Ethics”, (India Law House; New Dehli:2004), p.159
9
Bar Council of Maharashtra v. M.V. DahbolkarAIR 1976 SC 242
10
In the matter of an advocate, AIR 1934 Rang 33
down with respect to misconduct and disbarment arising from the same, which are:
1) the misconduct is such that he must be regarded as unfit to remain a member of the honorable
profession; and
2) the misconduct is such that he must be regarded as unfit to be entrusted with the responsibilities
that an advocate is called upon to perform

Time and again it has been held that “misconduct” would cover any activity or conduct which the
members of the profession who enjoy good repute and competence would reasonably regard as
disgraceful or dishonorable. The standard of conduct of advocates flows from the broad canons of
ethics and behavior. It has been held that “professional ethics cannot be contained in a Bar Council
rule nor in traditional cant in the books but in new canons of conscience which will command the
member of the calling of justice to obey rules or morality and utility.” 11 Misconduct of advocates
should thus be understood in a context-specific, dynamic sense, which captures the role of the
advocate in the society at large.12

4. Disqualification for Enrollment and Moral Turpitude

4.1. S.24A of the Advocates Act
(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.

4.2. “Moral Turpitude”

The case itself fails to discuss the term “moral turpitude”. Moral Turpitude is defined in Black's
Law Dictionary as, “Conduct that is contrary to justice, honesty, or morality”. 13 There have also
been cases, albeit not in the context of the Advocates Act, which have laid down the parameters of
the term “moral turpitude”. In the case of Pawan Kumar v. State of Haryana14, it was stated that,
“moral turpitude” is an expression which is used in legal as also societal parlance to describe
conduct which is inherently base, vile, depraved or having any connection showing depravity.

The case which is usually cited as authority on the definition of “moral turpitude” is Baleshwar

11
Supra note 4
12
K. Rai, “Legal Ethics”, (Central Law Publications; Allahabad:2005), p.74
13
Supra note 3 at p. 245
14
Pawan Kumar v. State of Haryana AIR 1996 SC 3300
Singh v. District Magistrate15 which states as follows:
“The expression 'moral turpitude' is not defined anywhere. But it means anything done contrary to
justice, honesty, modesty or good morals. It implies depravity and wickedness of character or
disposition of the person charged with the particular conduct. Every false statement made by a
person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the
doing of any private and social duty which a person owes to his fellowmen or to the society in
general. If therefore the individual charged with a certain conduct owes a duty, either to another
individual or to the society in general, to act in a specific manner or not to so act and he still acts
contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity.
It will be contrary to accepted customary rule and duty between man and man.”

In the case of Sushil Singhal v. Regional Manager Punjab National Bank 16, it was held moral
turpitude also termed moral depravity means, in general, shameful wickedness and an extreme
departure from ordinary standards honest, good morals, justice, or ethics as to be shocking to the
moral sense of the community. It has also been defined by the court as an act of baseness, vileness,
or depravity in the private and social duties which one person owes to another, or to society in
general, contrary to the accepted and customary rule of right and duty between people.

The view taken in Shiva Nand v. S.D.O. Chunar etc.17, was that moral turpitude is involved in
offence under Section 13, Public Gambling Act. It was stated that one has to consider as to how that
act is viewed by the society or the community, as the case may be, and if the society or the
community views such act as involving moral turpitude, then even though some particular
individual may not consider it so will not make the act a moral one or a praiseworthy act.

In Mangali v. Chokhey Lal18, it was held that conviction for an offence under Section 60 of the U. P.
Excise Act did not involve moral turpitude. The court observed that some of the observations made
in prior decisions had been too widely stated and if followed would make every act punishable in
law an offence involving moral turpitude. The Court stated that this could not have been the
intention of the legislature. Stating that whether an offence would involve moral turpitude was to be
decided on the facts of the case, the Court laid down the following test to guide future decisions.

15
Baleshwar Singh v. District Magistrate AIR 1959 All 71
16
JT2010(8)SC233
17
Shiva Nand v. S.D.O. Chunar etc. 1961 RD 1986
18
Mangali v. Chokhey Lal AIR 1963 All 527
The Court enunciated certain questions to be looked at, which are as follows:
1) whether the act leading to a conviction was such as could shock the moral conscience of society
in general;
2) whether the motive which led to the act was a base one; and
3) whether an account of the act having been committed the perpetrator could be considered to be of
a depraved character or person who was to be looked down upon by the society.

The majority opinion in the case of Ruddha Pitai v. Sub-Divisional Officer, Malihabad19 was that it
is not the gravity of the offence or the quantum of punishment which determines the question but
the nature and circumstances in which it is committed. Taking inspiration from the above case, it
was held in Aijaz Ahmad v. Niyaz Ahmad Khan and another20 that conviction under Sections 3 and 8
of the U, P. Prevention of Cow Slaughter Act, 1955 does not involve moral turpitude so as to
disqualify a person to hold office of Pradhan.

Finally it is important to study the view of the Court in Harsukh Lal v. Sarnam Singh21. In this case
the Court laid down certain limitations on the term moral turpitude. Stating that turpitude is a word
of high emotional significance, suggesting conduct of such depravity as to excite feelings of disgust
and contempt, the Court went on to say that even murder, which was just an aggravated form of
hurt, would not involve moral turpitude unless it was pre-planned and coldblooded. The offence, it
was said should naturally evoke a spontaneous feeling of repulsion and condemnation in the mind.

From the above decision, it would be apparent that the expression moral turpitude has not been
specifically defined or nailed down in any Rules. The decision as to whether the offence involved
moral turpitude or not would depend upon the facts and circumstances of the case. However, the
decision would not be absolutely subjective as the Courts have laid down certain markers in this
regard. The most important marker is to see if the offence invokes a response of shock and
revulsion from society, thus indicating that the act was in violation of the basic tenets of morality.

5. Analysis of the Case and Lessons to be Learnt

5.1. Linking s.24A and s.35 of the Advocates Act
The Supreme Court in Hikmat Ali linked two sections of the Advocates Act. The power of action
against misconduct contained in s.35 of the Act was sought to be linked with and further defined by

19
Ruddha Pitai v. Sub-Divisional Officer, Malihabad AIR 1955 All 382
20
Ruddha Pitai v. Sub-Divisional Officer, Malihabad AIR 1955 All 382
21
Harsukh Lal v. Sarnam Singh 1964 ALJ 1118
s. 24 A of the Act, which deals with disqualification from enrollment. The reasoning behind this link
was that if the Act says that an advocate is disqualified from being enrolled due to certain reasons
contained in s.24A, the implication would be that these actions would also disqualify advocates who
are already enrolled from continuing as advocates, even though the Act does not specifically say so.
The relevant part of the section is s.24A(1)(a) which says that any person committing an offence
involving moral turpitude will be disqualify that person from enrolling as an advocate. Using the
reasoning of the Supreme Court in the instant case we can conclude that any advocate who commits
an offence involving moral turpitude is liable to be punished under s.35 of the Act.

What the Court has done in linking these two sections is to link “professional or other misconduct”
as stated in s.35 with “moral turpitude” contained in s.24A. No other part of s.24A can be connected
as the other parts deal with specific offences committed under specific enactments. What we need to
examine now is the implications of connecting these two sections. One fundamental question that
arises from said linkage is whether “moral turpitude” is now an essential ingredient needed to
punish an advocate under s.35 of the Act. Earlier in the judgment the court has stated that the
punishment to be handed out under s.35 is to be as per the gravity of the offence committed. The
harshest punishment possible under the section is obviously to remove the advocates name from the
rolls. The language used in the judgment with regard to the link created between s.35 and s.24A is
indicative of the intention the judges in this case. The intention seems to be to draw a parallel
between disqualification under s.24A and disbarment under s.35.

Therefore the question that was asked earlier as to whether “moral turpitude” is now an essential
ingredient under s.35 can be refined further and the enquiry shifts to whether “moral turpitude” is
an essential ingredient for disbarment, which is the maximum punishment that can be handed down
under s.35. Though, the Court's reasoning is sound while stating that a person who is not qualified
to enroll as an advocate should not be allowed to continue as one, the connecting of the two sections
has unnecessarily drawn in an element of moral turpitude into the realm of “professional and other
misconduct”.

5.2. Bar Council Inaction

The facts of the case demonstrate the lack of common sense in the activities of the Bar Council.
Does the Supreme Court really need to step in to lay down that an attempt to murder a person would
constitute the essential ingredients of “professional and other misconduct” as given in s.35 of the
Act? The convicted advocate's name should have been struck of the rolls the minute he was
convicted of the offence. This may be an isolated incident and in a State where the law and order
situation is poor, but the sheer idiocy of the BCI's decisions in the appeals before it is unfortunate. It
is probably time if not to create an independent body outside of the fraternity and take away
disciplinary power from the Bar Councils then to at least introduce an independent supervisory
body to deal with such matters. Advocates generally tend to be sympathetic towards the faults of
other advocates and in this fast shrinking world, the connectivity within the profession has
increased tremendously, creating a dangerous situation in which the accused and those who judge
the accused share the same mentality. Thus it is imperative that this sympathy is dealt with by
introducing a third party element into this scenario.

6. Conclusion
The paper set out to achieve three objectives. The first objective was to examine the facts,
arguments and reasoning of the Supreme Court in Hikmat Ali v. Ishwar Prasad Arya. It was found
that when an advocate assaulted another advocate with a knife, he was convicted for an offence
under s.307 of the IPC. On the complaint of the Judge involved, the disciplinary committee of the
State Bar Council suspended the advocate for two years. This was overturned by the BCI as they
thought that the evidence was insufficient. The Respondent in the above case was suspended again
for a period of three years on the complaint of the Appellant but the BCI overturned this suspension
too. This led to te appeal to the Supreme Court.

The Supreme Court held that the Respondent had committed an offence involving moral turpitude
as laid down in s.24A of the Act and therefore he was unfit to continue in the profession. The
reasoning was that if a person was disqualified from enrolling in the Bar after committing an
offence involving moral turpitude then a person who is also enrolled must be disqualified from
continuing to be a part of the Bar.

The second objective was to examine the concepts of professional misconduct and moral turpitude
that were used to strike the Respondent's name from the State roll of advocates. The term
“misconduct” has not been defined in any Act or Rules and therefore hasto be determined on a cases
to case basis. Some guidance has been given by the Courts which have repeatedly held that in the
context of misconduct of an advocate, any conduct that in any way renders an advocate unfit for the
exercise of his profession, or is likely to hamper or embarrass the administration of justice may be
considered to amount to misconduct. As far as “moral turpitude” is concerned a similar situation as
to that of “misconduct” exists. Due to the lack of definition, the interpretation of the term remains
subjective. Ultimately, however, the term has consistently been interpreted as the element in any
action which would shock and cause revulsion among members of society.
The final objective of the paper was to critically examine the point of law laid down by this case.
The point of law is that any person who is unfit to enroll in the bar due to the commitment of an
offence involving moral turpitude will also be unfit to continue to be a member of the Bar if he is
already enrolled at the time of committing said offence. As stated earlier in the paper the reasoning
is sound but unnecessary as the act of attempt to murder clearly qualifies as “professional or other
misconduct”. Thus the impact of the case on the larger field of professional ethics is minimal as all
cases of misconduct will not necessarily involve the element of misconduct. The final part of the
study of the case revealed the need for an independent disciplinary body to be constituted as the
There will be cases such as the case at hand where the BCI's decisions will defy both logic and
common sense.