PROFESSIONAL

ETHICS,
ACCOUNTABILITY OF
LAWYER AND BENCH
BAR RELATION
Historical perspective and regulation of legal profession.

Admission, Enrolment and Rights of Advocates, Bar Council of

India.

Nature and characteristics of Ethics of legal profession

Contempt of court

Civil contempt

Criminal contempt

Punishment for contempt

Defenses Against contempt

Constitutional validity of contempt law.

Contempt by Lawyers, Judges, State, and Corporate Bodies

 Strike by the Lawyers

Extent of professionalization of legal profession

Code of Ethics for lawyers

Professional Misconduct and its Control

Bar-Bench Relations

Accountability of Lawyers towards Court, client and Society

Role of law and legal profession in social Transformation.

HISTORICAL PERSPECTIVE AND REGULATION OF

LEGAL PROFESSION Profession
In society, people occupy different occupations for their
livelihood or for their satisfaction. The occupations may be
broadly divided as productive occupation and service
occupations. The occupations which require advanced
education and special training are called professions. Law,
teaching, architecture, medicine, etc. are related to professions.
They are intended to serve mankind.

The profession of law is one of the oldest and noblest professions. The
person in the legal profession is called an advocate or lawyer. An
advocate is an officer of justice and a friend of the court. He has to accept
a brief for any man who comes before the courts and do what one can do
honorably on behalf of his client. He has to collect legal material relating
to the case of his client and argue in the courts to help the judges to
deliver judgments. The central function that the legal profession must
perform is nothing less than the administration of Justice.
 Administration of justice means -The personnel, activity and structure
of the justice system - courts and police - in the detection, investigation,
apprehension, interviewing and trial of persons suspected of crime.

An advocate also serves the public by giving legal advice by explaining the
complicated and confusing provisions of different Acts and Rules to
citizens who seek his service.An advocate has to protect the
fundamental and Human Rights in addition to propagating them among
citizens. An advocate is the foreigner of the society. He has to fight for
law reforms and social change and at the same time extend his services to
maintain law and order.

Development of legal profession in India–

1. Legal profession in ancient India
2. Legal profession in medieval India
3. Legal profession in British India
4. Legal profession in India after independence

Legal profession in ancient India

In India during the earlier period, people live in smallgroups. The

heads of these groups or tribes delivered justice under open sky before
all the members. Open arguments were made. There was no specialist
like a lawyer during those days. When Kingships was established in the
society, Kings delivered justice. In King's Court, the king was advised by
his councilors. The law of those days was a rooted in religion and
custom. Though there was no Institution of a lawyer, some intellectual
people served justice.During those days the legal profession was
administered by the administrators. For some time, religious heads
dominated the society in administering the justice. During those days,
the sufferer presented complaint before the king in his court and
thereafter the court summoned the defendant to submit his reply. The
Court then investigated the matter on the evidence. The King took the
advice of the religious heads and wise courtier and then delivered the
judgment. The same procedure was followed in all cases.

Medieval India –

During the period, there was no Institution of the legal profession. But
both the parties of the litigation appoint their Vakils. This body decides
the case and they were paid a percentage of the amount in the suit.
The Court had the power to decide who be allowed to appear as
Vakils. They act as agent for principals but not as lawyers. The same
system was continued in North India even under the rule of East India
Company.

Legal profession in British India

British Period the legal profession was not paid due attention and it
was not well organized. Actually, the East India Company was not
interested in organizing the legal profession. There was no uniform
judicial system in the settlements of the East India Company. In 1726
by a Charter known as Charter of 1726 in each Presidency Town a
Mayor's Court was established and, thus, by the Charter a uniform
judicial system was introduced in all the three Presidency Towns-
Bombay. Calcutta and Madras. It may, here, be mentioned that before
1726 the Courts were the Courts of East India Company and they
derived their authority not from the British Crown but from the East
India Company and their decisions were not as authoritative as those
of the Courts in England. The Mayor’s Court established under the
Charter of 1726 were the Royal Courts and they derived their authority
from the British Crown and not from the East India Company. The
Mayor's Courts were to follow well-defined procedure based on the
English law and procedure. The Charter of 1726, thus, introduced Royal
Courts in India but did not make provisions for the regulations of the
legal practitioners. There was no provision for the legal training. The
legal profession was not organized. Many persons having no
knowledge of law were practicing. The judicial administration including
the legal profession was not of a high order.

Charter of 1726:

In 1726 the crown issued the charter of 1726, and the Mayor's Court
were established in the presiding towns of Bombay, Calcutta, and
Madras. They were the Royal Courts. They followed the procedure
based on English law. But there were no facilities to get the legal
training. Many persons who have no knowledge of law were used to
practice before the said Courts. The Mayor's Court had no jurisdiction
in criminal cases. The criminal jurisdiction was conferred on the
Governor

Charter of 1753 - In 1753, another charter was issued to modify the

charter of 1726. This charger also ignored significant provision for legal
training and education relating to legal practitioner. Even after the
charter of 1753, the legal profession was not organized.

Charter of 1774 –

The Regulating Act, 1773 empowered the British Crown to establish a

Supreme Court at Calcutta by issuing a Charter. Accordingly, a supreme
court at Calcutta was established by issuing the charter of 1774.

Clause II of the Charter of 1774 empowered the said Supreme Court of

Judicature Calcutta to approve and enroll advocates and Attorneys- in-
law. They were to be Attorneys of record. They were authorized to
appear and act in the supreme court. The supreme court had the
power to remove any advocate for Attorney on reasonable cause.
Indian legal practitioners were not allowed to enter the supreme court.
At that time 'Advocate' means the British and Irish Barristers and
member of the faculty of advocates in Scotland. The term ‘Attorney'
applied to the British attorneys or solicitor.

The Bengal Regulation Act of 1793:

The Bengal Regulation Act VII Of 1973 permitted qualified persons only
to enroll as pleaders and the Bengal Regulation XII of 1833 allowed all
the qualified persons of any nationality or religion to enroll as a
pleader of the Sardar Diwani Adalat.

The Legal Practitioners Act, 1846 –

The legal practitioners Act 1846 allowed at the people of any

nationality or religion to act as pleaders. It also allowed attorneys and
barristersenrolled in any of Her Majesty's courts in India to plead in the
company’s Sadar Adalat. The Legal Practitioners Act, 1853 - This Act
authorized the barristers and Attorneys of the Supreme Court to plead
in any of the company’s courts subordinate to Sadar court subject to
rules in force in the said subordinate courts as regards language or
otherwise.

Indian High Court Act, 1861 –

The Indian High Court Act, 1861 empowered the government to

establish High Court in Presidency towns. After the establishment of
the High Courts, the Civil Courts were organized at different towns. The
criminal courts were organized by the Criminal Procedure Code 1898.

Legal Practitioners Act 1879 –

Under the Legal Practitioners Act 1879 the term 'legal practitioner'
means Advocate, Vakil or attorney of a High Court and pleader,
Mukhtar or revenue agent, who were non-graduates and matriculates
only. All these were brought under the jurisdiction of the high court.
Vakils were the persons who had taken the law degree from Indian
Universities. Pleaders and mukhtars Were the Indian lawyers but
advocate were to be the barristers.

Section 5 of the Act says that every person entered as an attorney on

the role of any High Court would be entitled to practice in all the courts
subordinate To Such High Courts and in all revenue offices.

Section 6 of the Act Empowered the High Court to make rules

consistent with the Act as to Suspension and dismissal of pleaders and
Mukhtars.

Section 8 empowered the pleader to practice in courts and revenue

offices after enrollment.

Section 9 empowered the Mukhtar to practice in the courts after

enrollment.

According to Section 12, the High Court can Suspend or dismiss any
pleader or Mukhtar if he was convicted of any criminal offense and
according to Section 13, the high court can suspend or dismiss pleader
or Mukhtar guilty of professional misconduct.

Section 14 of the Act made provisions in respect of the procedure

when the charge of professional misconduct was brought in
subordinate Court or revenue office.

Section 17 of the Act deals with the power of chief controlling revenue
authority to make rules consistent with this act as to qualification,
suspension, dismissal etc. of the revenue agent.

Indian bar committee 1923 –

A committee called Indian bar committee under the chairmanship of

Sir Edward Chaminer was constituted in 1923 to consider the issue of
the organization of the bar on all India basis. The committee did not
favor the establishment of All India Bar Council. It was of the view that
bar council should be constituted for each High Court.

Indian Bar Council Act 1926

In 1926, the Indian bar council of India Act was enacted to provide a
bar council for each High Court. The Bombay High Court and Calcutta
High Court allowed non-barrister advocates to practice. Thus, the
distinction between Barristers and advocates was abolished. The
pleaders and Mukhtars practicing in Mofussil Courts were not within
the scope of the Indian bar council act 1926.

Even after the enactment of the Bar Council Act 1926, the High Court
has the power of enrollment of advocates and the functions of the bar
council was the adversary in nature and the rules made by the bar
council were to be effective only on the approval of the high court.
Section 10 of the Indian Bar Council Act 1926 empowered the high
court to reprimand, suspend or remove from practice any advocate of
the high court if he was found guilty of professional misconduct or
other misconduct.

……………………………………………………………………………………

Legal profession in India after independence –

All India Bar Committee, 1951-

In 1951, the All India Bar committee was constituted under the
chairmanship of justice S.R. Das. The committee in its report
recommended the establishment of an All India Bar Councils and State
Bar Councils. It recommended the powers of enrollment, suspension or
the removal of advocates to the Bar Council. It recommended the
common role of advocates should be maintained and they should be
authorized to practice in all courts in the country. It further
recommended that there should be no further recruitment of non-
graduated pleaders or mukhtars. The similar recommendations Were
made by the fifth Law Commission of India in its fourteenth report.

Advocate Act 1961 –

As a result of the report of the "All India Bar Committee Act, 1961 “.
the central government enacted the Advocate Act 1961.This Act has
been in Force In entire India. It brought Revolutionary changes in the
legal profession in India. It was set out to achieve the utility and dignity
of the profession of law on an all India basis. The Preamble of the says
that the Act amends as well as consolidates the law relating to legal
practitioners.

The Advocate Act,1961 contains 60 Sections set out in 7 chapters.

Chapter I - deals with primary issues such as short title, extent and
commencement and definitions.

Chapter - II Section 3 to15 deals with the bar councils.

Chapter III Section 16 to 28 deals with admission and enrolment of

advocates.

Chapter IV deals with the right to practice chapter.

Chapter V Section 35 To 44 deals with the conduct of advocate.

Chapter VI Miscellaneous issues.

Chapter VII deals with the temporary and transitional provisions.

The Advocate Act 1961 repeals the Indian Bar Council Act,1926 and all
other laws on the subject.

The Advocate Act,1961 provides for an autonomous bar council in each

state and All India Bar Council consisting mainly of the representatives
of the state bar councils. Under the act, a state bar council is to enroll
the qualified person as advocates and a prepare a roll of advocates
practicing in the state and thereafter a comment roll of advocates for
the whole of India is to be prepared by the bar council of India.

UNIT – 2
ADMISSION, ENROLMENT AND RIGHTS OF
ADVOCATE, AND BAR COUNCIL OF INDIA –
Section 16 to 28 of the Advocate Act deal with Admission and
Enrolment of Advocates. The provisions of advocates. The
provisions of the Advocate Act relating to admission and
enrolment of advocates may be explained under the following
headings: -

Section-16.Senior and other advocates -

(1) There shall be two classes of advocates, namely, senior

advocates and other advocates.

(2) An advocate may, with his consent, be designated as senior

advocate if the Supreme Court or a High Court is of opinion that
by virtue of his ability, [standing at the Bar or special knowledge
or experience in law] he is deserving of such distinction.

(3) Senior advocates shall, in the matter of their practice, be

subject to such restrictions as the Bar Council of India may, in
the interests of the legal profession, prescribe.

(4) An advocate of the Supreme Court who was a senior

advocate of that Court immediately before the appointed day
shall, for the purposes of this section, be deemed to be a senior
advocate

Provided that where any such senior advocate makes an

application before the 31st December, 1965 to the Bar Council
maintaining the roll in which his name has been entered that he
does not desire to continue as a senior advocate, the Bar
Council may grant the application and the roll shall be altered
accordingly.

In E.S Reddi Vs Chief secretary, government of Andhra Pradesh

AIR 1987 SC -the supreme court has held that by virtue of the
pre-eminence which senior counsels enjoy in the profession,
they not only carry greater responsibilities but they also act as a
model to the junior members of the profession.

Section -17. State Bar Councils to maintain roll of advocates.

(1) Every State Bar Council shall prepare and maintain a roll
of advocates in which shall be entered the names and
addresses of-
(2) (a) all persons who were entered as advocates on the roll
of any High Court under the Indian Bar Councils Act, 1926
(38 of 1926), immediately before the appointed day
[including persons, being citizenscitizens of India, who
before the 15th day of August, 1947, were enrolled as
advocates under the said Act in any area which before
the said date was comprised within India as defined in
the Government of India Act, 1935 and who at any time]
express an intention in the prescribed manner to practice
within the jurisdiction of the Bar Council;
(3) (b) all other persons who are admitted to be advocates
on the roll of the State Bar Council under this Act on or
after the appointed day.
(2) Each such roll of advocates shall consist of two parts,
the first part containing the names of senior advocates
and the second part, the names of other advocates.
(3) Entries in each part of the roll of advocates prepared
and maintained by a State Bar Council under this section
shall be in the order of seniority, 1[and, subject to any
rule that may be made by the Bar Council of India in this
behalf, such seniority shall be determined] as follows: ―
(a) the seniority of an advocate referred to in clause (a)
of sub-section (1) shall be determined in accordance with
his date of enrolment under the Indian Bar Councils Act,
1926 (38 of 1926);
(b) the seniority of any person who was a senior
advocate of the Supreme Court immediately before the
appointed day shall, for the purposes of the first part of
the State roll, be determined in accordance with such
principles as the Bar Council of India may specify;
(d) the seniority of any other person who, on or after the
appointed day, is enrolled as a senior advocate or is
admitted as an advocate shall be determined by the date
of such enrolment or admission, as the case may be.
(e) notwithstanding anything contained in clause (a), the
seniority of an attorney enrolled [whether before or after
the commencement of the Advocates (Amendment) Act,
1980 (47 of 1980)] as an advocate shall be determined in
accordance with the date of his enrolment as an
attorney.]
 (4.) No person shall be enrolled as an advocate on the roll
of more than one State Bar Council.
Section-18. Transfer of name from one State roll to
another. ―

Notwithstanding anything contained in section 17, any person

whose name is entered as an advocate on the roll of any State
Bar Council may make an application in the prescribed form to
the Bar Council of India for the transfer of his name from the
roll of that State Bar Council to the roll of any other State Bar
Council and, on receipt of any such application the Bar Council
of India shall direct that the name of such person shall, without
the payment of any fee, be removed from the roll of the first
mentioned State Bar Council and entered in the roll of the other
State Bar Council and the State Bar Councils concerned shall
comply with such direction:

Provided that where any such application for transfer is made

by a person against whom any disciplinary proceeding is
pending or where for any other reason it appears to the Bar
Council of India that the application for transfer has not been
made bona fide and that the transfer should not be made, the
Bar Council of India may, after giving the person making the
application anopportunity of making a representation in this
behalf, reject the application

(2) For the removal of doubts, it is hereby declared that where

on an application made by an advocate under sub-section (1),
his name is transferred from the roll of one State Bar Council to
that of another, he shall retain the same seniority in the latter
roll to which he was entitled in the former roll.
Section -19. State Bar Councils to send copies of rolls of
advocates to the Bar Council of India. ―Every State Bar Council
shall send to the Bar Council of India an authenticated copy of
the roll of advocates prepared by it for the first time under this
Act and shall thereafter communicate to the Bar Council of India
all alterations in and additions to any such roll, as soon as the
same have been made

Section -20

Special provision for enrolment of certain Supreme Court

advocates-

(1) Notwithstanding anything contained inthis Chapter, every

advocate who was entitled as of right to practice in the
Supreme Court immediately before the appointed day and
whose name is not entered in any State roll may, within the
prescribed time, express his intention in the prescribed form to
the Bar Council of India for the entry of his name in the roll of a
State Bar Council and on receipt thereof the Bar Council of India
shall direct that the name of such advocate shall, without
payment of any fee, be entered in the roll of that State Bar
Council, and the State Bar Council concerned shall comply with
such direction.

(2) Any entry in the State roll made in compliance with the
direction of the Bar Council of India under sub-section (1) shall
be made in the order of seniority determined in accordance
with the provisions of sub-section (3) of section 17.

(3) Where an advocate referred to in sub-section (1) omits or

fails to express his intention within the prescribed time, his
name shall be entered in the roll of the State Bar Council of
Delhi.]

Section -21 Disputes regarding seniority. —

(1) Where the date of seniority of two or more persons is the

same, the one senior in age shall be reckoned as senior to the
other.

(2) Subject as aforesaid, if any dispute arise with respect to the

seniority of any person, it shall be referred to the State Bar
Council concerned for decision.

Section-22 Certificate of enrolment. —

(1) There shall be issued a certificate of enrolment in the

prescribed form by the State Bar Council to every person whose
name is entered in the roll of advocates maintained by it under
this Act.

(2) Every person whose name is so entered in the State roll

shall notify any change in the place of his permanent residence
to the State Bar Council concerned within ninety days of such
change.

Section 23. Right of pre-audience. —

(1) The Attorney-General of India shall have pre-audience over

all other advocates.

(2) Subject to the provisions of sub-section (1), the Solicitor

General of India shall have pre-audience over all other
advocates.
(3) Subject to the provisions of sub-sections (1) and (2),
theAdditional Solicitor-General of India shall have pre-audience
over all other advocates.

(3A) Subject to the provisions of sub-sections (1), (2) and (3),

the second Additional Solicitor-General of India shall have
prudence over all other advocates.

(4) Subject to the provisions of sub-sections (1), [(2), (3) and

(3A), the Advocate-General of any State shall have pre-audience
over all other advocates, and the right of pre-audience among
Advocates-General inter se shall be determined by their
respective seniority

(5) Subject as aforesaid—

(i) Senior advocates shall have pre-audience over other

advocates; and

(ii) the right of pre-audience of senior advocates inter se shall

be determined by their respective seniority.

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 thereunder, 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 a citizen of India:

Provided that 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 the [12th day of March, 1967], from any University
in the territory of India; or

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

[(iii) after the 12th day of March, 1967, save as provided in sub-
clause (iiia), after undergoing a 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

(iiia) after undergoing a course of study in law, the duration of

which is not less than two academic years commencing from
the academic year 1967-68 or any earlier academic year from
any University in India which is recognized for the purposes of
this Act by 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 purposes of this Act
by the Bar Council of India] or;

he is barrister and is called to the Bar on or before the 31st day

of December, 1976 [or has passed the article clerks 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) Clause (d) omitted by Act 60 of 1973

 (e) he fulfils such 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, 1899 (2 of 1899), and
an enrolment fee payable to the State Bar Council of 7[six
hundred rupees and to the Bar Council of India, one hundred
and fifty rupees by way of a bank draft favor of bar council.

Provided that where such person is a member of the Schedule

Castes or the Schedule Tribes and produces a certificate to that
effect from such authority as may be prescribed, the enrolment
fee payable by him to the State Bar Council shall be [one
hundred rupees and to the Bar Council of India, twenty-five
rupees.

Explanation-For the purposes of this sub-section, a person shall

be deemed to have obtained a degree in law from a University
in India on that 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), 3[a

vakil or a pleader who is a law graduate] may be admitted as an
advocate on a State roll, if he—

(a) makes an application for such enrolment in accordance

with the provisions of this Act, not later than two years from the
appointed day, and

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

Section 24A. Disqualification for enrolment. —

(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 (22 of 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:]

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

(2) 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 (20 of 1958).

Section -25. Authority to whom applications for enrolment

may be made.—An application for admission as an advocate
shall be made in the prescribed form to the State Bar Council
within whose jurisdiction the applicant proposes to practice.

Section-26. Disposal of applications for admission as an

advocate.

(1) A State Bar Council shall refer every application for

admission as an advocate to its enrolment committee, and
subject to the provisions of sub-sections (2) and (3) 1[and to any
direction that may be given in writing by the State Bar Council in
this behalf], such committee shall dispose of the application in
the prescribed manner: [Provided that the Bar Council of India
may, if satisfied, either on a reference made to it in this behalf
or otherwise, that any person has got his name entered on the
roll of advocates by misrepresentation as to an essential fact or
by fraud or undue influence, remove the name of such person
from the roll of advocates after giving him an opportunity of
being heard.]

(2) Where the enrolment committee of a State Bar Council

proposes to refuse any such application, it shall refer the
application for opinion to the Bar Council of India and every
such reference shall be accompanied by a statement of the
grounds in support of the refusal of the application.

(3) The enrolment committee of a State Bar Council shall

dispose of any application referred to the Bar Council of India
under subsection (2) in conformity with the opinion of the Bar
Council of India.

(4) Where the enrolment committee of a State Bar Council has

refused any application for admission as an advocate on its roll,
the State Bar Council shall, as soon as may be, send intimation
to all other State Bar Councils about such refusal stating the
name, address and qualifications of the person whose
application was refused and the grounds for the refusal.

Section- 26A. Power to remove names from roll—

A State Bar Council may remove from the State roll the name of
any advocate who is dead or from whom a request has been
received to that effect.

Section- 27. Application once refused not to be entertained by

another Bar Council except in certain circumstances. —

Where a State Bar Council has refused the application of any

person for admission as an advocate on its roll, no other State
Bar Council shall entertain an application for admission of such
person as an advocate on its roll, except with the previous
consent in writing of the State Bar Council which refused the
application and of the Bar Council of India. 28. Power to make
rules. —

(1) A State Bar Council may make rules to carry out the
purposes of this Chapter.

(2) In particular, and without prejudice to the generality of the

foregoing power, such rules may provide for—

(a) the time within which and form in which an advocate shall
express his intention for the entry of his name in the roll of a
State Bar Council under section 20.

(c) the form in which an application shall be made to the Bar

Council for admission as an advocate on its roll and the manner
in which such application shall be disposed of by the enrolment
committee of the Bar Council;

(d) the conditions subject to which a person may be admitted

as an advocate on any such roll;

(e) the instalments in which the enrolment fee may be paid.

(3) No rules made under this Chapter shall have effect unless
they have been approved by the Bar Council of India

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 1964the 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

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.

•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.

•To not appear for the opposite party in the same matter after
withdrawing from an engagement.

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.
•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.

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.

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.

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 amongst the lawyers in India and as such represents the
Indian bar. It prescribes standards of professional conduct,
etiquettes 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

History –In March 1953, the 'All India Bar Committee', headed
by S. R. Das, submitted a report which proposed the creation of
a bar council for each state and an all-India bar council as an
apex body. It was suggested that the all India bar council should
regulate the legal profession and set the standard of legal
education. The Law Commission of India was assigned the job of
assembling a report on judicial administration reforms. In 1961,
the Advocates Act was introduced to implement the
recommendations made by the 'All India Bar Committee' and
'Law Commission'. M. C. Setalvad and C. K. Daphtary were the
first chairman and vice chairman respectively. In 1963, C. K.
Daphtary became the Chairman and S. K. Ghose became the
Vice Chairman.
Functions -Section 7 of the Advocates Act, 1961 lays down
the Bar Council’s regulatory and representative mandate. The
functions of the Bar Council are to: -

(a)Lay down standards of professional conduct and etiquette for

advocates.

(b) Lay down procedure to be followed by disciplinary

committees
(c) Safeguard the rights, privileges and interests of advocates
(d) Promote and support law reform
(e) Deal with and dispose of any matter which may be referred
by a State Bar Council
(f) Promote legal education and lay down standards of legal
education.
(g) Determine universities whose degree in law shall be a
qualification for enrollment as an advocate.
(h) Conduct seminars on legal topics by eminent jurists and
publish journals and papers of legal interest.
(i) Organize and provide legal aid to the poor.
(j) Recognize foreign qualifications in law obtained outside
India for admission as an advocate.
(k) Manage and invest funds of the Bar Council.
(l) Provide for the election of its members who shall run the
Bar Councils.
(m) Organize and provide legal aid to the scheduled caste.

Constitution –
As per the Advocates Act, the Bar Council of India consists of
members elected from each state bar council, and the
Attorney General of India and the Solicitor General of India
 who are ex officio members. The members from the state bar
councils are elected for a period of five years.

The council elects its own Chairman and Vice-Chairman for a period of
two years from amongst its members. Assisted by the various
committees of the Council, the chairman acts as the chief executive
and director of the Council.

Present members -

Name of member Position

Manan Kumar Mishra Chairman, Bar Council of India

Satish Abarao Deshmukh Vice-Chairman, Executive

Committee
Vijay Bhatt Managing Trustee, BCI Trust
Biri Singh sinsirwar Member
Pratap Mehta Member
S. Prabakaran Co Chairman
Ashok Kumar Deb Member
Attorney General of India ex-officio member
Solicitor General of India ex-officio member
Shailendra Dubey Member
D.P. Dhal Member
Rajinder Singh Rana Member
Satish Abarao Deshmukh Member
T. S. Ajith Member
N.Ramchander Rao, Member
Nilesh Kumar Member
Rameshchandra G. Shah Member
Bhoj Chander Thakur Member
Amit Ranah Member

Committees

The Bar Council of India has various committees which make

recommendations to the council. The members of these
committees are elected from amongst the members of the
Council.

Executive Committee: This committee deals with the issues

related to management of funds, affairs of the staff, accounts,
allotment of work, management of council's affairs, audit,
library and legal publications delegation of work.

Legal Education Committee: This committee make

recommendations to the BCI on matters related to legal
education and sets standards of legal education, visits and
inspects universities, recommend the pre-requisites for
foreignadvocates practicing law in India, recommend
recognition or discontinuance of a law degree from a university
etc.

Disciplinary Committee: This committee reviews applications by

persons against summary dismissal of their complaints against
advocates for professional misconduct, by the state bar councils
and appeals against orders of the disciplinary committees of the
state bar councils.
Advocate Welfare Committee: This committee looks into
applications made by advocates for welfare funds. It verifies the
application and provides funds. The Advocates Welfare
committee is certified by the Advocates Welfare Fund Act, 2001.

Legal Aid Committee: The Legal Aid Committee provides aids to

those requiring legal assistance.

Building Committee: The Building Committee is responsible for

setting up offices for the Council.

Rules Committee: The Rules Committee reviews the rules and

regulations of the Council.

Other than these, there are Finance Committee, Special or

Oversee Committee and All India Bar Examination Committee.

Directorate of Legal Education –

The Bar Council of India has established a Directorate of Legal
Education for the purpose of organizing, running, conducting,
holding, and administering the following:

Continuing Legal Education

Teachers training

Advanced specialized professional courses

Education program for Indian students seeking registration after

obtaining Law Degree from a Foreign University

Research on professional Legal Education and Standardization

Seminar and workshop

Legal Research
Any other assignment that may be assigned to it by the Legal
Education committee and the Bar Council of India

Unit -3

Nature and characteristics of Ethics of legal

profession–
Professional ethics encompass the personal, and corporate
standards of behavior expected by professionals. The word
professionalism originally applied to vows of a religious order.
By at least the year 1675, the term had seen secular application
and was applied to the three learnedprofessions: Divinity, Law,
andMedicine. The term professionalism was also used for the
military profession around this same time. Professionals and
those working in acknowledged professions exercise specialist
knowledge and skill. How the use of this knowledge should be
governed when providing a service to the public can be
considered a moral issue and is termed professional ethics. It is
capable of making judgments, applying their skills, and reaching
informed decisions in situations that the general public cannot
because they have not attained the necessary knowledge and
skills. One of the earliest examples of professional ethics is the
Hippocratic oath to which medical doctors still adhere to this
day

Some professional organizations may define their ethical

approach in terms of a number of discrete components.
Typically, these include:

Honesty

Integrity
Transparency

Accountability

Confidentiality

Objectivity

Respect

Obedience to the law

Loyalty

Honesty is a facet of moral character that connotes positive and

virtuous attributes such as integrity, truthfulness,
straightforwardness, including straightforwardness of conduct,
along with the absence of lying, cheating, theft, etc. Honesty
also involves being trustworthy, loyal, fair, and sincere.

Integrity is the quality of being honest and having strong moral

principles, or moral uprightness. It is a personal choice to hold
one's self to consistent standards.

In ethics, integrity is regarded as the honesty and truthfulness

or accuracy of one's actions. Integrity can stand in opposition to
hypocrisy, in that judging with the standards of integrity
involves regarding internal consistency as a virtue, and suggests
that parties holding within themselves apparently conflicting
values should account for the discrepancy or alter their beliefs.
The word integrity evolved from the Latin adjective integer,
meaning whole or complete. In this context, integrity is the
inner sense of "wholeness" deriving from qualities such as
honesty and consistency of character. As such, one may judge
that others "have integrity" to the extent that they act
according to the values, beliefs and principles they claim to
hold.

Transparency, as used in science, engineering, business, the

humanities and in other social contexts, is operating in such a
way that it is easy for others to see what actions are performed.
It has been defined simply as "the perceived quality of
intentionally shared information from a sender”. Transparency
implies openness, communication, and accountability.
Transparency is practiced in companies, organizations,
administrations, and communities. It guides an organization's
decisions and policies on the disclosure of information to its
employees and the public, or simply the intended recipient of
the information.

For example, a cashier making change after a point of sale

transaction by offering a record of the items purchased (e.g., a
receipt) as well as counting out the customer's change on the
counter demonstrates one type of transparency.

In ethics and governance, accountability is answerability,

blameworthiness, liability, and the expectation of account-
giving. As an aspect of governance, it has been central to
discussions related to problems in the public sector, nonprofit
and private (corporate) and individual contexts. In leadership
roles, accountability is the acknowledgment and assumption of
responsibility for actions, products, decisions, and policies
including the administration, governance, and implementation
within the scope of the role or employment position and
encompassing the obligation to report, explain and be
answerable for resulting consequences.
Confidentiality involves a set of rules or a promise usually
executed through confidentiality agreements that limits access
or places restrictions on certain types of information.

Respect is a positive feeling or action shown towards someone

or something considered important, or held in high esteem or
regard; it conveys a sense of admiration for good or valuable
qualities; and it is also the process of honoring someone by
exhibiting care, concern, or consideration for their needs or
feelings.

Law is a system of rules that are created and enforced through

social or governmental institutions to regulate behavior.

Loyalty, in general use, is a devotion and faithfulness to a

nation, cause, philosophy, country, group, or person.
Philosophers disagree on what can be an object of loyalty, as
some argue that loyalty is strictly interpersonal and only
another human being can be the object of loyalty. The
definition of loyalty in law and political science is the fidelity of
an individual to a nation, either one's nation of birth, or one's
declared home nation by oath.

Professional ethics means a code of rules which regulates the

behavior and conduct of a practicing lawyer towards himself, his
client, his opposite party, his counsel and of course towards the
court. Ethics means principles of behavior which are applied to
an ordinary citizen in the society shall be the standards of
morals for a lawyer too. Professional ethics consist of those
fundamental values on which the profession has been built.
Legal ethics is one of the professional ethics which lays down
certain duties for the observance of its members, which he
owes to the society, to the court, to the profession, to his client
and to himself. The practicing lawyer shall have the social
responsibility and dignity of the legal profession and high
standard of integrity and efficient service to his client as well as
for public welfare. Professional ethics demands not to disclose
any secrets of his client or indulge in any unfair practice.

IMPORTANCE OF LEGAL PROFESSION

The Lawyers play important role in the maintenance of peace

and order in the society. Learned C.L. Anand has rightly stated
that the advocates share with the judges the responsibility for
maintaining order in the community. They do not promote
stripes but settle them. They stand for legal order which is one
of the noblest functions in the society. The order which the
advocates seek is not of grave but based on justice. It is
theforemost function of the advocates to fulfill the desire of
their clients by providing them Justice. It is the desire of every
human on the earth. The Lawyers also play a very important
role in law reform also. “By reason of the experience gained in
daily application and interpretation of laws, lawyers are best
aware of the imperfection, of the legal system and constitute
the most competent class of men to advise on law reform and
to promote popular enthusiasm and support for it. The most
difficult part of the process of legislation is drafting of its
provisions and no one is better fitted to give guidance on this
than the lawyers.”

Thus, it can be said that the legal profession is a profession of

great honour. This is made for public welfare, for public good.
This is not for making money but to provide Justice to the right
person. An advocate is an officer of the Court and is required to
maintain towards the Court a respectful attitude bearing in
mind that the dignity of the judicial office. The Supreme Court
has rightly observed that the legal profession is a partner with
the judiciary in the administration of justice.

EHTICS OF LEGAL PROFESSION-

A legal practitioner is under triple obligation-:

An obligation to his clients to be faithful to them till the last, an

obligation to the profession not to besmirch its name by
anything done by him, and an obligation to the court to be and
to remain a dependable part of the machinery through which
justice is administered. The scope of legal ethics is beyond the
treatise of evidence or witnesses to be presented before the
court. In examining these witnesses, the advocate should not
forget that he is not mere the counsel of the client but also the
officer of the court. In this way there are some of the duties
thereinafter which the advocate should follow, like, professional
courtesy, co-operation, equal consideration to all members of
the profession, encourage junior brethren, should stand up for
its dignity and privileges whenever there is occasion for it, he
should expose corrupt or dishonest conduct in the profession.
In the words of Chief Justice Marshall has observed; “the
fundamental aim of Legal Ethics is to maintain the honour and
dignity of the Law Profession, to secure a spirit of friendly co-
operation between the Bench and the Bar in the promotion of
highest standards of justice, to establish honorable and fair
dealings of the counsel with his client opponent and witnesses;
to establish a spirit of brotherhood in the Bar itself ; and to
secure that lawyers discharge their responsibilities to the
community generally.”4 Professional Ethics may be defined as a
code of conduct written or unwritten for regulating the
behavior of a practicing lawyer towards himself, his client, his
adversary in law and towards the court. Thus, ethics of legal
profession means the body of rules and practice which
determine the professional conduct of the members of a bar.
When the person joins the legal profession and starts practicing,
his relation with men in general is governed by general rules of
law but his conduct as advocate is governed by the especial
rules of profession ethics of the Bar. The main object of the
ethics of the legal profession is to maintain the dignity of the
legal profession and the friendly relation between the Bench
and the Bar.

Professional Ethics is also known as legal ethics. “Legal Ethics is

that branch of moral science which deals with the duties which
a member of the legal profession owes to the public, the Court,
to his professional brethren and to his clients. [Ethics] is a study
of the meaning and application of judgments of Good, bad,
right, wrong, etc. and every evaluation of law involves an ethical
Judgment. “The description of Legal Ethics already clarifies that
legal ethics is one of the branches of moral science.
Etymological origin of the words moral and ethics appear to be
same. The word moral comes from Latin Word mos. (plural
mores) meaning thereby “Custom or way of life.” The related
term Ethics is derived from the Greek word ethos meaning
“Custom” or “Character”. Thus, both the words moral and
ethics are mostly synonymous and refer to a type of behavior
practices by a group which tends to become customary. But
there is a slight difference in the two that moral or morality
ordinarily refers to the conduct itself, while ethics or ethical
suggests the study of moral conduct or the system of code
which is to be followed.6 The Oxford Companion to Law
explains the professional ethics as “the standards of right and
honourable conducts which should be observed by members of
learned professions in their dealings one with another and in
protecting the interests and handling the affairs of their clients.”

UNIT – 4

INTRODUCTION-

Afterdiscussing concept, historical background and

constitutional aspect in the proceeding chapters, an attempt
has been made in this chapter to discuss in detail the provisions
of the Contempt of Courts Act, 1971. Rule of Lawis the basic
principle of governance of any civilized and democratic society.
The principle asserts supremacy of law bringing under its
purview everyone, individuals and institutions at par without
any subjective discretion. It connotes the meaning that,
“Whoever the person may be, however High he or she is, no
one is above the law notwithstanding how powerful and how
rich he or she may be.” There can be no Rule of Law unless the
bulwark of that grand concept „the Court of Justice‟ are kept
alive at institutions breathing freedom, openness and justice.
No society can exist without laws and laws have no meaning, if
they cannot be enforced. It is through the Courts that the rule
of law reveals its meaningful content. The Indian Constitution is
based upon the concept of Rule of Law and for achieving this
cherished goal, the framers of Indian Constitution have assigned
the special task to the judiciary. The judiciary is the guardian of
the Rule of Law. Hence judiciary is not the third pillar but the
central pillar of the democratic state. An independent or
impartial Judiciary is the sine qua non of a healthy society. It is
the last resort for the common people of a country, as they
repose their ultimate faith in it to get justice. Therefore, it
isessential for the Judiciary to be protected from all sorts of evil
likely to affect the administration of justice. For better
protection and preservation of prestige and dignity of the
courts, the law on contempt of court has evolved. So, broadly
speaking, this law helps the courts in discharging justice keeping
its stand supreme in the eye of society. Actually this law aims at
ensuring the administration of justice by courts in the society.

CONTEMPT OF COURT

LEGISLATIVE MEASURES RELATING TO CONTEMPT IN INDIA-

The origin of the law of Contempt in India can be traced from

the English law. In England Superior Courts of record have form
early times, exercised the power to commit for contempt
persons who scandalized the Court or the Judges. The right of
the Indian High Courts to punish for contempt, was in the first
instance recognized by the Judicial Committee of the Privy
Council which observed that the offence of the contempt of
court and the powers of the High Courts to punish it are the
same in such courts as in the Supreme Court in England. It also
observed that the three chartered contempt. Almost all the
High Courts in India, apart from the chartered High Courts have
exercised the jurisdiction inherent in a court of record from the
very nature of the court itself. It has been judicially accepted
throughout India that the jurisdiction was a special one inherent
in the very nature of the court. The fist Indian stature on the
law of contempt i.e., the Contempt of Courts Act was passed in
1926. It was enacted to define and limit the powers of certain
courts in punishing contempt of courts. When the Contempt of
Courts Act, 1926 (XII of 1926) was in existence in British India,
various Indian States also had their corresponding enactment.
These States were Hyderabad, Madhya Bharat, Mysore, Pepsu,
Rajastha, Travancore-Cochin and Saurasjtra. State enactments
of the Indian States and the Contempt of Courts Act, 1926 were
replaced by the Contempt of Courts Act, 1952 (32 of 1952).

An attempt was made in April, 1960 to introduce in the Lok

Sabha a Bill to consolidate and amend the law relating to
Contempt of Courts. On an examination of the Bill, government
appears to have felt that the law relating to Contempt of Courts
in uncertain, undefined and unsatisfactory and that in the light
of the constitutional changes which have taken place in the
country, it would be advisable to have the entire law on the
subject scrutinized by a Special Committee set up for the
purpose. In pursuance to that decision a Committee was set up
on 29th July, 1961 and it submitted its report on 28th
February,1963 to define and limit the powers of certain courts
in punishing contempt of courts and to regulate their procedure
in relation thereto. Joint Select Committee of Parliament on
Contempt of Courts went in detail and a new Bill, The Contempt
of Courts Bill, 1968 was prepared by the Joint Select Committee.

OBJECTS AND REASONS –

It is generally felt that the existing law relating to contempt of

Courts is somewhat uncertain undefined and unsatisfactory.
The jurisdiction to punish for contempt touches upon two
important fundamental rights of the citizens namely, the right
to personal liberty and the right to freedom of expression. It
was, therefore, considered advisable to have the entire law on
the subject scrutinized by a special committee. In pursuance of
this, a Committee was set up in 1961 under the Chairmanship of
the late Shri H.N. Sanayal the then Additional Solicitor General.
The Committee made a comprehensive examination of the law
and problems relating to contempt of Court in the light of the
position obtaining in our own country and various foreign
countries. The recommendations which the Committee made
took note of the importance given to freedom of speech in the
Constitution and of the need for safeguarding the status and
dignity of Courts and interests of administration of justice. The
recommendations of the Committee have been generally
accepted by Government

after considering the view expressed on those

recommendations by the State Governments, Union Territory
Administrations, the Supreme Court, the High Courts and the
Judicial Commissioners. The Bill seeks to give effect to the
accepted recommendations of the Sanyal Committee.
The Contempt of Courts Act, 1971 (70 of 1971) was passed by
the Parliament in December 1971 and it came into force w.e.f.
24th December, 1971.

An Act to define and limit the powers of certain courts in

punishing contempt of courts and to regulate their procedure in
relation thereto.

BE it enacted by Parliament in the Twenty-second Year of the

Republic of India as follows: -

(1) This Act may be called the Contempt of Courts Act, 1971
(2) It extends to the whole of India

Provided that it shall not apply to the State of Jammu and

Kashmir except to the extent to which the provisions of this
Act relate to contempt of the Supreme Court.

The recommendations of the Committee have been generally

accepted by Government after considering the view
expressed on those recommendations by the State
Governments, Union Territory Administrations, the Supreme
Court, the High Courts and the Judicial Commissioners. The
Bill seeks to give effect to the accepted recommendations of
the Sanyal Committee.

CONTEMPT OF COURT ACT 1971 -Sec -2

(a) “Contempt of court” means civil contempt or criminal

contempt”

(b) “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 a court.
(c) “Criminal contempt” means the publication (whether by
words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of
any other act whatsoever which-

Civil Contempt Under Section 2(b) 'civil contempt', is defined

to mean willful disobedience to any judgment, decree, order,
direction or any other process of court or willful breach of an
undertaking given to the court. It is basically a wrong to the
person who is entitled to the benefit of a court order. It is a
wrong for which the law awards reparation to the injured
party; though nominally it is a contempt of court it is fact a
wrong of a private nature. Civil contempt is a sanction to
enforce compliance with an order. It means willful
disobedience to any judgement, decree, writ or other
process of court.

Criminal Contempt-

Criminal contempt involves defiance of the court revealed in

conduct which amounts to obstruction or interference with
the administration of justice. Criminal contempt as defined
by Contempt of Courts Act 1971 means 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 scandalizes or tends to
scandalize, or lowers or tends to lower the authority of any
court; or prejudices or interferes, or tends to interfere with,
or obstructs or tends to obstruct the administration of justice
in any other manner. The present definition of criminal
contempt is virtually the definition of contumacious
contempt, which ordinarily requires punishment. Civil
contempt is also called contempt of procedure in English Law
and it bears two-fold characters implying as between the
parties to proceedings and the liability to submit to form of
civil execution. In fact, in the matters of contempt, courts
exercise the disciplinary jurisdiction and contemner can be
directed to pay the fine, whereas, whenever there is a
contumacious contempt as between the party and the court,
the courts exercise penal jurisdiction and the contemner can
be directed to undergo imprisonment. In civil contempt
whenever willful disobedience to the orders of the court is
done, it is called contumacious contempt .

Distinction Between Civil and Criminal Contempt

After careful consideration of the meaning of civil contempt

and criminal contempt it becomes clear that both are differ
from each other in different counts. The Calcutta High Court
in Legal Remembrancer v. Motilal Ghose46, has explained
the difference between civil contempt and criminal
contempt. The distinction between civil and criminal
contempt is of fundamental character. While criminal
contempt offends the public and consists of conduct that
offends the majesty of law and undermines the dignity of the
Court, civil contempt consistsin failure to obey the order,
decree, direction, judgment, writ or process issued by courts
for the benefit of the opposing party. The Allahabad High
Court in Vijay Pratap Singh v. Ajit Prasad 1966- has held that
a distinction between a civil contempt and criminal contempt
seems to be that in a civil contempt the purpose is to force
the contemner to do something for the benefits of the other
party, while in criminal contempt the proceeding is by way of
punishment for a wrong not so much to a party or individual
but to the public at large by interfering with the normal
process of law diminishing the majesty of the court.

However, if a civil contempt is enforcedby fine or

imprisonment of the contemner for nonperformance of his
obligation imposed by a court, it merges into a criminal
contempt and becomes a criminal matter at the end. Such
contempt, being neither purely civil nor purely criminal in
nature, is sometimes called suigeneris. It is submitted that
the dividing line between civil and criminal contempt is
sometimes very thin and may became indistinct. Where the
contempt consists in mere failure to comply with or carry on
an order of a court made for the benefit of a private party, it
is plainly civil contempt. If, however, the contemner adds
defiance of the court to disobedience of the order and
conducts himself in a manner which amounts to abstraction
or interference with the courts of justice, the contempt
committed by him is of a mixed character, partaking of
between him and his opponent the nature of a civil contempt

Section 3 -Innocent publication and distribution of matter

not contempt -

(1) 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.

(2) Notwithstanding anything to the contrary contained in this

Act or any other law for the time being in force, the publication
of any such matter as is mentioned in sub-section (1) in
connection with any civil or criminal proceeding which is not
pending at the time of publication shall not be deemed to
constitute contempt of court.

(3) A person shall not be guilty of contempt of court on the

ground that he has distributed a publication containing any such
matter as is mentioned in sub-section (1), if at the time of
distribution, he had no reasonable grounds for believing that it
contained or was likely to contain any such matter as aforesaid:

Provided that this sub-section shall not apply in respect of the

distribution of—

(i) any publication which is a book or paper printed or published

otherwise than in conformity with the rules contained in section
3 of the Press and Registration of Books Act, 1867 (25 of 1867);

(ii) any publication which is a newspaper published otherwise

than in conformity with the rules contained in section 5 of the
said Act.

Explanation. —For the purposes of this section, a judicial

proceeding—

(a) is said to be pending—

(A) in the case of a civil proceeding, when it is instituted by the

filing of a plaint or otherwise,
(B) in the case of a criminal proceeding under the Code of
Criminal Procedure, 1898 (5 of 1898)1, or any other law—

(i) where it relates to the commission of an offence, when the

charge-sheet or challan is filed, or when the court issues
summons or warrant, as the case may be, against the accused,
and

(ii) in any other case, when the court takes cognizance of the
matter to which the proceeding relates, andin the case of a civil
or criminal proceeding, shall be deemed to continue to be
pending until it is heard and finally decided, that is to say, in a
case where an appeal or revision is competent, until the appeal
or revision is heard and finally decided or, where no appeal or
revision is preferred, until the period of limitation prescribed for
such appeal or revision has expired

(b) which has been heard and finally decided shall not be
deemed to be pending merely by reason of the fact that
proceedings for the execution of the decree, order or sentence
passed therein are pending

(i) The liberty of free expression is not to be compounded with a

licence to make unfounded allegations of corruption against
judiciary; M.R. Prashar v. Dr. Farooq Abdullah, (1984)

(ii) The abuse of the liberty of free speech and expression

carries the case nearer the law of contempt

(iii) A defence of truth or justification is not available to the

publisher of a newspaper in proceedings for contempt of court;
Md. Vamin v. O.P. Bensal, 1982

Section-4Fair and accurate report of judicial proceeding not

contempt –Subject to the provisions contained Insection 7, a
person shall not be guilty of contempt of court for publishing a
fair and accurate report of a judicial proceeding or any state
thereof.

Section-5 Fair criticism of judicial act not contempt –

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.

Section-11 Power of High Court to try offences committed or

offenders found Outside jurisdiction –

A High Court shall have jurisdiction to inquire into or try a

contempt of itself or of any court subordinate to it, whether the
contempt is alleged to have been committed within or
outsidethe local limits of its jurisdiction, and whether the
person alleged to be guilty of contempt is within or outside such
limits

Section-12 Punishment for contempt of court –(1)Save as

otherwise expressly provided in this Act or in any other law, a
contempt of court may be punished with simple imprisonment
for a term which may extend to six months, or with fine which
may extend to two thousand rupees, or with both.

Provided that the accused may be discharged or the

punishment awarded may be remitted on apology being made
to the satisfaction of the court. Explanation – An apology shall
not be rejected merely on the ground that it is qualified or
conditional if the accused makes it bona fide.
(2) Notwithstanding anything contained in any law for the time
being in force, no court shall impose a sentence in excess of
that specified in sub section for any contempt either in respect
of itself or of a court subordinate to it.

(3) Notwithstanding anything contained in this section, where a

person is found guilty of a civil contempt, the court, if it
considers that a fine will not meet the ends of justice and that a
sentence of imprisonment is necessary shall, instead of
sentencing him to simple imprisonment, direct that the he be
detained in a civil prison for such period not exceeding six
months as it may think fit.

(4) Where the person found guilty of contempt of court in

respect of any undertaking given to a court is a company, every
person who, at the time the contempt was committed, was in
charge of, and was responsible to, the company for the conduct
of business of the company, as well as the company, shall be
deemed to be

guilty of the contempt and the punishment may be enforced,

with the leave of the court, by the detention in civil prison of
each such person.

Provided that nothing contained in this sub section shall render

any such person liable to such punishment if he proves that the
contempt was committed without his knowledge or that he
exercised all due diligence to prevent its commission.

(4) Notwithstanding anything contained in sub section (4)

where the contempt of court referred to therein has been
committed by a company and it is provided that the
contempt has been committed with the consent or
 connivance of, or is attributable to any neglect on the
part of, any director, manger, secretary or other officer of
the company, such director, manager , secretary or other
officer shall also be deemed to be guilty of the be
contempt and the punishment may be enforced, with the
leave of the court, by the detention in civil prison of such
director, manager, secretary or other officer.
(5) Explanation – For the purpose of sub sections (4) and (5)-

(a) “Company” means anybody corporate and includes a firm or

other association of individuals, and

(b) “Director” in relation to a firm, means a partner in the firm.

The various different modes of execution of orders and decrees,

as recognized by law, cannot be resorted to by the Court in a
contempt proceeding; Bonbehari Roy v. Kolkata Metropolitan
Development Authority, AIR 2004

Sometimes personal considerations affect the award of

punishment under contempt matters. In Hoshiam Shavaksha
Dolikuka v. Thrity Hoshie, the Court felt that imposition of any
kind of punishment on the father for whom daughter has a lot
of affection is likely to upset her and cause her mental distress.
In the unfortunate and acrimonious dispute between the
husband and the wife, the main concern in the instant case has
been the welfare of the child. Only taking into consideration the
fact that the welfare of the child is likely to be affected, the
court was of the opinion that under the present circumstances
and in the situation now prevailing one should let off the father
with a reprimand and a warning, although he has been rightly
found guilty of having committed contempt of court by the
Bombay High Court, in the hope that the appellant in future will
not do any such act as may constitute contempt of court and
will try to serve the cause of welfare of the minor daughter by
carrying out the directions given by the court. The Supreme
Court in R. K. Garg v. State of H.P.-held that the condemners
had suffered enough in mind and reputation and no greater
purpose was going to be served by subjecting the contemnor to
a long bodily suffering. The punishment in this case was reduced
to one-month imprisonment from six months whereas the fine
was enhanced from Rs. 200/- to Rs. 1000/-.

Section-13 Contempt’s not punishable in certain cases. —

Notwithstanding anything contained in any law for the time
being in force, —

(a) no court shall impose a sentence under this Act for a

contempt of court unless it is satisfied that the contempt is of
such a nature that it substantially interferes, or tends
substantially to interfere with the due course of justice;

(b) the court may permit, in any proceeding for contempt of

court, justification by truth as a valid defence if it is satisfied
that it is in public interest and the request for invoking the said
defence is bona fide.

Section-14 Procedure where contempt is in the face of the

Supreme Court or a High Court-

(1) When it is alleged, or appears to the Supreme Court or the

High Court upon its own view, that a person has been guilty of
contempt committed in its presence or hearing, the court may
cause such person to he detained in custody, and, at any time
before the rising of the court, on the same day, or as early as
possible thereafter, shall –
(a) Cause him to be informed in writing of the contempt with
which he is charged.

(b) Afford him an opportunity to make his defence to the

charge,

(c) After taking such evidence as may be necessary or as may be

offered by such person and after hearing him, proceed, either
forthwith or after adjournment, to determine the matter of the
charge, and

(d) Make such order for the punishment or discharge of such

person as may be just.

(2) Notwithstanding anything contained in sub section (1) where

a person Charged with contempt under the sub section applies,
whether orally or in writing, to have the charge against him
tried by some Judge other than the Judge or Judges in whose
presence or hearing the offence is alleged to have been
committed, and the court is of opinion that it is practicable to
do so and that in that interest of proper administration of
justice the application should be allowed, it shall cause the
matter to be placed, together with a statement of the facts of
the case, before the Chief Justice for such directions as he may
think fit to issue as respects the trial thereof.

(3) Notwithstanding anything contained in any other law, in any

trial of a person charged with contempt under sub section (1)
which is held, in pursuance of a direction given under sub
section (2), by a Judge other than the Judge or Judges in whose
presence or hearing the offence is alleged to have been
committed, it shall not be necessary for the Judge or Judges in
whose presence or hearing the offence is alleged to have been
committed to appear as a witness and the statement placed
before the Chief Justice under sub section (2) shall be treated as
evidence in the case.

(4) Pending the determination of the charge, the court may

direct that a person charged with contempt under this section
shall be detained in such custody as it may specify.

Provided that the shall be released on bail, of a bond for such

sum of money As the court thinks sufficient is executed with or
without sureties conditioned that the person charged shall
attend at the time and place mentioned in the bond and shall
continue t so attend until otherwise directed by the court.

Provided further that the court may, if it thinks fit, instead of

taking bail from such person, discharge him on his executing a
bond without sureties for his attendance as aforesaid

Section-16 Contempt by judge, magistrate or another person

acting judicially –

Subject to the provisions of any law for the time being in force
shall also be liable for 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, so far as may be, apply accordingly.

Notwithstanding in this section shall apply to any observations

or remarks made by a judge, magistrate or other person act in
judicially, regarding a subordinate court in an appeal or revision
pending before such judge, magistrate or other person against
the order or judgement of the subordinate court.

A judge can foul judicial administration by misdemeanors while

engaged in the exercise of the functions of a Judge;
Baradakanta v. The Registrar, Orissa High Court, AIR 1974 SC.
CONSTITUTIONAL VALIDITY OF CONTEMPT OF COURT –

Article 129 of the Constitution of India says that the Supreme

Court Shall be a court of record and shall have all the powers of
such a court including the power to punish for contempt of
itself.

According to Article 215 of the Constitution of India, every High

Court Shall be court of record and shall I have all the powers of
such a court including the power to punish for contempt of
itself.

Parliament and the State Legislature both have power to make

laws with respect to any of the subject enumerated in list III
(concurrentlist) of the seventh schedule of the Constitution. The
parliament has exclusive power to make laws with respect to
any of the matters are subjects enumerated in list -I (Union list)
of the 7th of the Constitution.

The state legislature has exclusive power to make laws with

respect of any of the matter or subjects enumerated in list II
(State list) of the seventh scheduled of the Constitution. Entry
77 of the list is as follows-

Constitution, organization, jurisdiction and powers of the

Supreme Court (including contempt for such a court) and the
fees taken therein; persons entitled to practice before the
supreme Court.

The legislature is fully competent to legislate with respect to

competent of court subject only to the qualification that the
legislature cannot take away the power of the Supreme Court
or the High Court to punish for contempt or vest that power in
some other court.
 Article 142(2) of the Constitution of India states that the
Supreme Court shall have all and every power to make any
order for the purpose of securing the attendance of any person,
the discovery or production of any document, or the
investigation or punishment of any contempt of itself.

According to article 372 of Constitution of India, all the laws in

force in the territory of India immediately before the
commencement of this Constitution shall continue in force
therein until altered or repealed or amended by a competent
legislature or other competent authority. That is why section
22 of the competent of Courts Act 1971, it makes it clear that
theprovision of this Act shall be in Addison to and not in
derogation of the provision of any other law relating to
contempt of courts. The contempt of Courts Act is not violation
of guarantee of equality and article 14 as the classification of a
founded on the intelligible differentia which distinguisher
personsor things that are grouped together from other left out
of the group and the differentia has a rational relation to the
object thought to be achieved by the statute in question is
reasonable.

As the existing law relating to contempt of court imposes

reasonable restrictions within the meaning of article 19(2) and
therefore, it is not violative of the fundamental right to freedom
of speech and expression guarantee by article 19 (1)(2) of the
Constitution.

According to clause 10 of the article 366 the existing law means

any law ordinance order bye- law, rule or regulation passed or
made before the commencement of this Constitution by a
legislature, authority or person having power to make such a
law., ordinance bye-law, rule or regulation.

The contempt of law is not violative of article 21 which provides

that no person shall be deprived of his life or personal liberty
except according to the procedure established by law as the
existing procedure for contempt proceedings have statutory
sanction. Section 10 of the contempt Act,1971, makes it clear
that every High Court shall have and exercise the same
jurisdiction powers and authority in accordance with the same

procedure and practice in respect of contempt’s of courts

subordinate to it as it has and exercise in respect of contempt’s
of itself. beside this article 225 of the Constitution of India
makes provision for its continuity.

Henceon the above grounds, it can be concluded that the

contempt of court at 1971 is not violative of any provision of
the Constitution and it is constitutionally valid.

Under Articles 129 and 215, Supreme Court and High Courts are
conferred with thestatus of courts of record including the
power to punish for contempt of itself. With regard to
thepowers of Supreme Court and High Courts for contempt
committed against itself, theconstitutional provisions are clear
and unambiguous. However, with respect to the powers ofthese
courts under Articles 129 and 215 to initiate contempt
proceedings for contempt committedagainst lower courts and
tribunals has led to considerable controversy in India. The study
showsthat the literal interpretation of the constitutional
provisions and discussions in the ConstituentAssembly do not
confer such wide powers with Supreme Courts and High Courts
to initiatecontempt proceeding under Article 129 and 215 when
contempt is committed against lowercourts and tribunals.
However, Supreme Court adopted a contrary interpretation and
the word‘including’ found under Article 129 and 215 was
interpreted to mean including lower courts andtribunals also.
The study shows that such wide powers were not intended by
the ConstituentAssembly, and the literal interpretation of
Articles 129 and 215 do not support such wide
powers.Problems in this regard may be rectified only by a
proper interpretation of the constitutional

provisions. These aspects are discussed in Chapter Four.

Yet another area considered in Chapter Four is the application

of Contempt of Courts Actin proceedings initiated under Article
129 and 215 of the Constitution. The general conclusionreached
by the Supreme Court and different High Courts in this regard is
that when contemptproceedings are initiated under Article 129
the same is not governed by Contempt of Courts Act,though a
proceeding initiated under Article 215 is governed by the Act.
The study shows thatsuch an interpretation could lead to
complex problems in India. Primarily there is no reason
fordifferential treatment of High Courts and Supreme Court
with respect to the application ofContempt of Courts Act
because under Indian constitutional scheme both Supreme
Court andHigh Courts are placed on the same position as courts
of record. Secondly the position evolvedin India has created a
situation that punishment and procedure for contempt of court
are at thediscretion of the Supreme Court if contempt
proceeding is initiated under Article 129. This hasled to a
situation that when contempt proceeding is initiated under
Article 129, the basicconstitutional principlesof procedure
established by law and the basic right of an accused
undercriminal law to know the gravity of punishment before the
imposition of punishment areviolated.Originally contempt’s
were dealt under a single head. However, subsequently,
dependingupon the nature of rights violated, procedure to be
followed and manner of commission,contempt’s were dealt
under different heads.

Firstly, the classification is under civil and criminalheads. The

criminal contemptwas sub divided into scandalizing the court,
interference withsub judice matters and other miscellaneous
contempt. Civil contempt is also subdivided intocoercive civil
contempt proceedings and compensatory civil contempt
proceedings. On themanner of commission of contempt, it is
again classified into ex facie and non-ex facie or directand
indirect contempt. Originally under Indian law also there was no
classification of contemptunder various heads. However, the
1971 Contempt of Courts Act brought substantial changes inthis
regard and contempt were classified under different heads.
Chapter Five of the study dealswith classification of contempt
under different heads, the rationale and need for such

classification. The study shows that, though, apparently

classification of contempt underdifferent heads is based on
some rationale, on a strict analysis, the different categories
ofcontempt serves the single purpose of ensuring due
administration of justice, and classification ofcontempt under
various heads does not serve any effective purpose.Contempt
power is not an exclusive domain of courts. The Legislature is
also wieldingthe same powers. Contempt power of the courts
and contempt power of the Legislature resemblein many
respects. However, there are a series of instances of conflict
between contempt powersof courts and contempt powers of
Legislature. Chapter Six of the study deals with
conflictsbetween contempt power of courts and contempt
power of Legislatures in India and looks intopossible solution to
the problem. The contempt power of Legislature in India is even
nowgoverned by transitory provisions contained in the
Constitution which permit Parliament as wellas State
Legislatures to exercise all powers, privileges and immunities
held by the House ofCommons at the commencement of Indian
Constitution until a law is enacted in this respect. Asno law is
enacted, even now the contempt powers of Parliament and
State Legislatures aregoverned by vague powers, privileges and
immunities wielded by the House of Commons at thetime of the
commencement of the Indian Constitution. The study shows
that the powers,privileges and immunities wielded by the
House of Commons were developed through the bitterstruggle
between the monarch and the Parliament. Further the
contempt power of the House ofCommons is developed from
the concept of High Court of Parliament which had all the
powersof court or record. It seems that none of these principles
are applicable to Legislatures in India.

Still they are wielding all the contempt powers retained by the
House of Commons at the time ofcommencement of the Indian
Constitution. The study shows that theoretically and
historically,the powers, privileges and immunities of the British
Legislature could not be compared withIndian Legislatures. The
theoretical justification for wielding contempt powers by the
BritishParliament could not be claimed by Indian Legislatures.
The study further leads to the inferencethat it is high time for
Indianlegislatures to enact appropriate laws fixing their powers
privilegesand immunities. The Seventh Chapter deals with
punishment and procedure for contempt of court. Thestudy
shows that originally punishment for contempt of court under
common law was cruel, barbarous and solely at the discretion
of the court. Subsequently punishment turned out to
bemerciful. Now it is confined to imprisonment, fine, cost,
apology and bond for good behavior. Under the English law till
the enactment of Contempt of Court Act 1981, there was no
statutorylimit regarding the quantum of fine and term of
imprisonment. However, the 1981 Actincorporated maximum
term of committal to two years in the case of committal by
superiorcourts and one month in the case of committal by
inferior courts. Even after the enactment of1981 Act, there is no
statutory limit regarding fine which could be imposed by
superior courts incontempt proceeding under English law.
However, under the 1981 Act, the maximum fine whichcould be
imposed by inferior courts in contempt proceeding is limited to
£ 2,500. In the UnitedStates, punishment for contempt of court
is much complex. Generally speaking punishment forcontempt
of court under U S law is at the discretion of the courts and is
governed primarily byapplying the principle of abuse of
discretion. Further it is linked with other constitutionalprinciples
like right of the accused to jury trial, right against cruel and
unusual punishments etc.In India, since the enactment of
Contempt of Courts Act, 1926, punishment for contemptof
court was statutorily limited to a maximum of six months
imprisonment and a fine of rupeestwo thousand. Thus, the
question of unlimited fine or indefinite imprisonment does not
arise inIndia as a punishment for contempt of court under the
Contempt of Courts Act. But the positionis different when
contempt proceeding is initiated under Article 129 and Article
215. Whethercontempt proceedinginitiated by the High Courts
under Article 215 is governed by Contempt ofCourts Act is yet
unsettled. However, it is well settled that the contempt
proceeding initiatedunder Article 129 is not governed by
Contempt of Courts Act. In such situations, there areinstances
of imposition of strange punishments completely disregarding
maximum punishmentfor contempt of court mentioned under
the Act. The study further shows instances of punishmentfor
contempt of court disregarding the maximum punishment
mentioned under Contempt ofCourts Act even for proceedings
for contempt of court initiated under the Act. The study
showsneed of a complete revision regarding punishment for
contempt of court by incorporating severepenalties especially
regarding fine and the need to strictly stick on to the statute
even in caseswhere contempt proceeding is initiated by the
Supreme Court under Article 129 of the IndianConstitution.
Originally in common law, normal criminal procedures were
followed in contempt casesalso. Subsequently summary
proceeding without jury trial was introduced for contempt
whichare ex facie. Later even for non-ex facie contempt,
summary trial was introduced in English lawwithout any sound
justification. Subsequently the Contempt of Court Act 1981 also
recognizedsummary trial in contempt cases and it became a
rule in English law.Following common law, summary trial for
contempt cases was recognized under U S lawalso. But by the
development of constitutional principles regarding protections
to accused, jurytrial was recognized in criminal contempt cases
where the punishment for contempt of court isnot petty.
However, the distinction between petty and serious
punishments in contempt casesmakes the contempt
proceedings complex.In India also, summary proceeding for
contempt cases is well established. Under theIndian
lawproceeding for contempt of court is not governed by
Criminal Procedure Code orIndian Evidence Act. Further under
Indian law the contemnor is not even treated as an accused
toclaim protections guaranteed to an accused under the
Constitution of India. But the presentContempt of Courts Act
contains some minimum procedures to be followed with regard
to exfacie and non exfacie criminal contempt. The study further
shows that even with regard to theminimum procedures
contained in the Act, Supreme Court has shown reluctance to
comply withit.

As the statute does not contain all procedural formalities

regarding contempt proceedings, it also empowers Supreme
Court and High Courts to frame appropriate rules in this regard.
Therules framed by the High Courts and Supreme Court in this
regard are highly vague, and there isno uniformity regarding
rules framed by Supreme Court and various High courts. There
arises aneed of framing of uniform rules by a single agency to
ensure uniform procedures for contemptproceedings in the
Supreme Court and various High Courts.Though unwanted
interference with administration of justice is to be prevented
andnobody shall be permitted to pollute the stream of justice,
the present contempt law in India isnot in tune with our
constitutional objectives. The study indicates the need for
serious changes inthe contempt of court law in India. To
effectuate necessary changes, the Contempt of Courts Actneeds
thorough revision and amendments. Suggestions regarding
necessary amendments andrevision to the present Act are
proposed in the suggestion part of the thesis.
UNIT- 5

STRIKE BY THE LAWYERS –

The Supreme Court of India, rather the entire judiciary is

probably the strongest in the world and it has an
impressiveindex of delivering verdicts that display a rare
jurisprudential vision irrespective of the fact whether such
pronouncementshave mass appeal or not. This is the
uniqueness of the Indian judicial system. When the executive,
bureaucracy or other organs go astray, the Court comes to the
rescue to inculcate a sense ofresponsiveness in those erring
ones. Some of the judgments of the Supreme Court are
sufficiently focused andimaginative in this regard to meet the
felt need of the society. In this sequence the judiciary has
recently metamorphosed the entire chemistry of the concept of
strike. The SupremeCourt in Communist Party of India (M) v.
Bharat Kumar 1998 deprecated the call for enforcing a bandh
affirming the ratiodecidendi of the Kerala High Court in Bharat
Kumar K. Palicha v. State of Kerala which held that calling for
and holding"bandh" violated the fundamental rights of the
citizen and the court could step in to protect such rights. Then
again, theKerala High Court in Kerala Vyapari Vavasayi
Ekopana Samithi v. State of Kerala 2000held that the mere
calling of a hartalor advocating it as understood in the strict
sense, cannot be held to be objectionable. But the moment it
comes out of theconcept of hartal, strictly so-called and seeks
to impinge on the rights of others, it ceases to be a hartal in the
real senseof the term and actually becomes a violent
demonstration affecting the rights of others.Then the Supreme
Court in T.K. Rangarajan v. Govt. of T.N. held that there exists
no fundamental, statutory, equitableand moral right toresort to
strike. Then, again the Full Bench of the Kerala High Court in
George Kurian v. State ofKerala categorically held that: "13. (5)
Those who call for hartals or strikes by whatever reason should
make it clear in their call that nobody will becompelled to
participate in the hartals or strikes, that traffic will not be
obstructed and those who are willing can go forwork and that
fundamental rights of others to move about will not be
affected. They should also instruct their supportersto see that
no coercion or force is used for compelling others to participate
in the strike or hartal;"

Having disseminated the aforesaid verdicts on the concept of

strike this article now refers to the question of strikes
bylawyers. Common Cause, a voluntary association engaged in
raising public issues, filed a writ petition in the SupremeCourt
challenging the right of lawyers to go on strikes. Obviously, it
seems permissible to venture the comment thatstriking work by
counsel amounts to refusal of discharging their contractual
obligations to their clients who have paidthem and who are, in
no way associated with the quarrels the lawyers have with the
Government. Hypothetically, it maybe possible for the judges to
call out the cases, record the default of appearance of parties or
their counsel, dismiss thecases and reject applications for
restoration since strike by lawyers is no basis for restoration. If
that happens, the strikinglawyers may even be asked to pay
damages to their clients who suffered by their non-appearance.
In this sense strikesmay not even advance the interests of
lawyers themselves. The question of lawyers' strike has been
dealt with in a number of decisions of the Supreme Court and
Common Cause,A Registered Society v. Union of Indiaand Ex-
Capt. Harish Uppal v. Union of India importantly deal with this
matter. The Supreme Court in Common Cause 'A Registered
Society' v. Union of India8 dealt with this question. This
matterrelated to the punitive action of the Bar Associations i.e.
the Delhi High Court Bar Association and the Supreme CourtBar
Association, in visiting the advocates, who refuse to participate
in strike call, with action of suspension and the actionof the Bar
Council of Delhi passing a resolution which inter alia proposed
to take action against lawyers who did notparticipate in the
strike call, which amounted to the contempt of the earlier
judgment of the Supreme Court in Common Cause case6. In Ex-
Capt. Harish Uppal v. Union of India7 the Supreme Court very
lucidly per curiam held that: "The law is already well settled. It is
the duty of every advocate who has accepted a brief to attend
trial, even though itmay go on day to day and for a prolonged
period. He cannot refuse to attend court because a boycott call
is given by theBar Association. It is unprofessional as well as
unbecoming for him to refuse to attend court even in pursuance
of a callfor strike or boycott by the Bar Association or the Bar
Council. The courts are under an obligation to hear and
decidecases brought before them and cannot adjourn matters
merely because lawyers are on strike. It is the duty
andobligation of courts to go on with matters or otherwise it
would tantamount to becoming a privy to the strike. If a
resolutionis passed by Bar Associations expressing want of
confidence in judicial officers, it would amount to scandalizing
thecourts to undermine its authority and thereby the advocates
would have committed contempt of court. If the
lawyersparticipate in a boycott or a strike, their action is ex facie
bad in view of the decision in Mahavir Prasad Singh case
Theadvocates would be answerable for the consequences
suffered by their clients if the non-appearance was solely
onground of a strike call."It is further held that an advocate is
an officer of the court and enjoys special status in society.
Advocates haveobligations and duties to ensure smooth
functioning of the court. They owe a duty to their clients and
strikes interfere withthe administration of justice. They cannot
thus disrupt court proceedings and put the interest of their
clients in jeopardy.This brings us to the provisions of Article 145
of the Constitution which gives to the Supreme Court and
Section 34 of theAdvocates Act which gives to the High Court
power to frame rules including rules regarding conditions on
which a personincluding an advocate can practice in the
Supreme Court and/or in the High Court and courts subordinate
thereto. Manycourts have framed rules in this regard. Such a
rule would be valid and binding on all. It is therefore expected
of the BarCouncils and the Bar Associations that they should
counsel their members to exercise self-restraint else courts may
haveto step in and consider framing of specific rules which
would debar advocates found guilty of contempt
and/orunprofessional or unbecoming conduct from appearing
before the courts. The Constitution Bench of the Supreme
Courthas cautioned the Bar Councils to rise to the occasion as it
is responsible to uphold the dignity of court and majesty oflaw.
However, in rarest of the rare cases absenteeism from work for
one day could be tolerated but, in such cases, theChief Justice
or the District Judge, as the case may be, make final decision.
The entire metaphysics therefore rotatesround the enunciated
position that advocates have no right to resort to strike/hartal
or boycott of the courts. On such an embargo being put on the
right of the advocates to go on strikes, a question would be
asked as to howshould they ventilate their grievances when it is
held that lawyers have no right to go on strikes or give a call for
boycottnot even for a token strike. Then it has been suggested
that the protest, if any required, can only be by giving
pressstatements, TV interviews, carrying out of court premises
banners or play cards, wearing black or white or any colour
armbands, peaceful protest marches outside and away from
court premises, going on dharmas or relay facts, etc.; this
couldbe the legitimate course of protest.It therefore follows
that the judiciary has practically banned the strikes/hartals by
advocates and has directed thesubordinate courts not to
countenance strikes but even then, we find that advocates have
been resorting to strikes allfrequently and for no reason or
rhyme and unfortunately courts are also accommodating such
indulgences.We have a sensitive, accountable, transparent and
responsive system of dispensation and administration of justice
andtherefore the time has come when such indulgences should
be audited for appropriate remedial measures.The Supreme
Court has done laudable work and has defined "whys", "whens"
and "if at alls" for regulating the legalprofession. In some cases,
it has also held that an advocate cannot have any lien on the file
of the client and he cannotretain the file even if the client has
not paid the fee of the advocate. The file is the property of the
client. The work on this write-up would remain incomplete if
reference is not made to certain very befitting and apt
observationsmade by the Hon'ble R.P. Sethi, J. in R.D. Saxena v.
Balram Prasad Sharmaon legal profession. A social duty is
castupon the legal profession to show the people beckon light
by their conduct and actions. No effort should be made
orallowed to be made by which a litigant could be deprived of
his rights, statutory as well as constitutional. An advocate
isexpected at all times to conduct himself in a manner befitting
his status as an officer. It is high time for the legalprofession to
join heads and evolve a code for themselves in addition to the
mandate of the Advocates Act, rules madethereunder and the
rules made by thevarious High Courts and the Supreme Court,
for strengthening the belief of thecommon man in the
institution of the judiciary in general and in their profession in
particular. Creation of such a faith andconfidence would not
only strengthen the rule of law but also result in reaching
excellence in the profession. Would sucha noble profession get
infected by the malaise of strike? Let it have a voluntary
insulation against strikes.

Litigants’ right to speedy justice is a part of their fundamental

rights, the Supreme Court has already held in the Harish Uppal
case, which all but declared strikes unlawful except in the most
extreme circumstances.

And the bar council of Tamil Nadu appeared to agree last week
in the high court, undertaking not to issue a call for local
lawyers to strike in response to a writ.

The LC stated in its report: The Supreme Court had consistently

been declaring that advocates do not have a right to call for
strikes and held that the lawyers’ strikes are illegal and that
effective steps should be taken to stop the growing tendency.

In numerous cases beginning from Pandurang Dattatraya

Khandekar v. Bar Council of Maharashtra, Bombay7; to Ex Capt.
Harish Uppal v. Union of India, it was held that the advocates
have no right to go on strike. The Courts are under no obligation
to adjourn matters because lawyers are on strike. On the
contrary, it is the duty of all Courts to go on with matters on
their boards even in the absence of lawyers. In other words,
Court must not be privy to strikes or calls for boycotts.

It was held that if a lawyer, holding a vakalatnama of a client,

abstains from attending Court due to a strike call, he shall be
personally liable to pay costs which shall be in addition
todamages which he might have to pay his client for loss
suffered by him.But does anybody care for the SC’s view?The
run up to today’s strikes alone witnessed lawyers striking to
oppose a ban on lawyers’ strikes, the BCI, which proposed the
ban on strikes, using the mechanism of strike to protest against
other proposals, and lawyers striking to counter-protest the call
for a strike by other lawyers.Moreover, whenever a lawyers’
strike is called usually somewhere between a few thousands to
tens of thousands of lawyers may join in, even if it sometimes
means that a faction of lawyers who are striking against another
faction join the second faction days later in a wider strike. The
situation is so bad that on the day of a strike call the assumption
is that all practicing lawyers have joined the strike. A lawyer told
us that during the previous strike called by the BCI, he flew all
the way to a major high court only to find that the matter in
which he was to appear was adjourned to a future date without
his knowledge.

What had transpired: The local counsel for his client had taken
an adjournment on the other lawyer’s behalf, assuming that he
would be joining the nationwide strike. The Supreme Court Bar
Association (SCBA) is one of the few to have gone against the
grain officially, but not without attracting a social media
outburst from the BCI chairman.

The spectrum of lawyer strike motivations

The LC report also highlights some of the more whimsical
triggers for lawyers’ strikes, such as “bomb blast in Pakistan
school, amendments to Sri Lanka’s Constitution, interstate river
water disputes, attack on / murder of advocate, earthquake in
Nepal, to condole the death of their near relatives, to show
solidarity to advocates of other State Bar Associations, moral
support to movements by social activists, heavy rains, or on
some religious occasions such as shraadh, Agrasen Jayanti, etc.
or even for kavi sammelan”.But there have been certain
instances when the reason could be argued as tenable. In
western Uttar Pradesh, for instance, lawyers had been striking
every Saturday for the last several years to protest the lack of
local court benches and the consequent hardship faced by
litigants, and in Allahabad and Patna lawyers’ strikes were to
protest against violence against and greater security for lawyers
on court premises.Modern-day striking lawyers may also be
modelling their action on textbook examples of leadership in
the profession: the SCBA under MC Chagla – went on strike
against the government’s indirect impingement on judicial
independence in 1972, and India’s struggle for freedom was led
by lawyers like Mahatma Gandhi, Rajendra Prasad, Sardar Patel
and Saifuddin Kitchlew, about all of whom the BCI notes on its
own website: “Most lawyers gave their time freely, at the cost
of their own legal practice, to the defense of scores of helpless
victims of Martial Law implemented by the British, who had
been condemned to the gallows or sentenced to long terms of
imprisonment.”

But those were examples of lawyers sacrificing their work hours

for the benefit of the masses – a marked difference in
ideologies from the lawyers mostly using abstention from
practice and the ensuing inconvenience to litigants as a weapon
of choice to bargain for their vested interests with the
government.In the words of former Advocate General of
Mahrashtra Shreehari Aney in an interview on LiveLaw, when
the choice is to debate and discuss a law before it is passed and
to legally challenge it after it is passed, stopping the courts from
working by breachingprofessional ethics in a strike, should be
the last thing on the mind of an advocate who has entered into
a contract with the litigant by accepting their case brief.

The data According to the report:

In Dehradun District, the Advocates were on strike for 455 days

during 2012-2016 (on an average, 91 days per year)

In Haridwar District, 515 days (103 days a year) were wasted on

account of strike, during 2012-2016

The High Court of Judicature at Jodhpur saw 142 days of strike

during 2012-2016

The High Court of Judicature at Jaipur saw 30 days of strike

during 2012-2016

Ajmer District courts, strikes remained for 118 days in the year
2014 alone

In Jhalawar, 146 days were lost in 2012

UP- 2011-2016: Muzaffarnagar (791 days), Faizabad (689 days),

Sultanpur (594 days), Varanasi (547 days), Chandauli (529 days),
Ambedkar Nagar (511 days), Saharanpur (506 days) and Jaunpur
(510 days)

Tamil Nadu District Courts: During the period 2011-2016,

districts like Kancheepuram, 687 days (137.4 days per year);
Kanyakumari, 585 days (117 days per year); Madurai, 577 days
(115.4 days per year); Cuddalore, 461 days (92.2 days per year);
and Sivagangai, 408 days (81.6 days per year)

UNIT – 6

EXTENT OF PROFESSIONALIZATION AND LEGAL PROFESSION

The growing divergence between the ideals of what it means to

be a professional and the realities of professional work has led
to concerns regarding the declining professionalism of lawyers
(e.g., Abel, 2003; Freidson, 1992; Nelson & Trubek, 1992). Some
scholars argue that the changing nature of professional practice
signals a ‘‘crisis of professionalism,’’ suggesting that the legal
profession has abandoned principle for profit and
professionalism for commercialism (Lerman, 2002; Linowitz,
1994; Solomon, 1992). These concerns stem largely from two
ongoing trends in contemporary law practice. The first is a
tension between the once applauded professional ideal of
lawyers as free, independent practitioners and the documented
trend that suggests this form of law practice is in decline, as
lawyers increasingly work in law firms and other organizational
settings (Abernethy & Stoelwinder, 1994). The second issue is
that of a progressive erosion of the professional ideals of a
noble calling to theprofession and a dedication to the pursuit of
justice (Krieger, 2005). Professional unity, forged through a
shared language, cultural norms, collegiality, mutual trust and
respect, loyalty and fellowship (Goode, 1957), has been under
corrosive strain in recent decades. The contrast between legal
professionalism of an earlier era and contemporary times is not
fictitious. As late as the 1950s, nearly all lawyers in North
America were independent, solo practitioners. That is, they did
not employ lawyers nor were they employed by lawyers or
others. One of the most profound transformations in the legal
profession in this continent over the past 100 years is the
dramatic change in the work settings in which lawyers practice
law (Abel, 1989; Heinz, Nelson, Laumann, & Michelson, 1998).
The dominance of private practice1 has steadily declined and,
within private practice, a smaller proportion of lawyers enter
solo practice and a growing proportion practice in larger and
larger firms (Galanter & Palay, 1994; Nelson, 1992; Sander &
Williams, 1992). Despite the dramatic changes in North
America, solo practitioners still represent almost one third of all
practicing lawyers and nearly half of those in private practice,
whereas those working in large law firms represent only a small
minority of all lawyers (Carlin, 1994b; Feinstein & Potter, 2005;
Nelson, 1994). These ongoing trends are cause for concern
because the professions literature traditionally assumed that
the solo practitioner best exemplifies the ideals of
professionalism. Professionalism represents a method of
organizing work that revolves around the key idea that
members of a specialized occupation control their own work,
i.e., they have professional autonomy (Abernethy &
Stoelwinder, 1994; Freidson, 1992; Grey, 1998; Meixner & Bline,
1989; Pei &Davis, 1989). The movement away from
professionals working predominantly in independent practice
has been identified by some as signaling the professionalization,
or proletarianization, of professionals, as they steadily lose
control, prestige, and status, especially if they are employees in
non-professional bureaucratic organizations (e.g., as inhouse
counsel in private corporations) (Derber, 1983; Derber &
Schwartz, 1991; Hagan, Zatz, Arnold, & Kay, 1991; Rosen, 1999;
Sommerlad, 1995; Wallace, 1995b). This argument is based on
the assumption that solo practitioners’ work better reflects the
ideals of professionalism in contrast to law firm practice. We
propose that the situation is more complex than this, where in
some ways solo practitioners have held onto certain
professional norms and values and in other ways law firm
lawyers have taken on some, but not all, of the traditional
professional role behaviors. Our first research question then is:
Do solo and law firm lawyers’ work experiences differ
significantly along certain ideals of professionalism? Finding
that they do, we then consider the factors that might explain
why these different groups of lawyers have such diverse
professional work experiences. The literature suggests that solo
and firm lawyers differ significantly in their law school
preparation and their day-to-day work experiences. We argue
that perhaps these variations may account for lawyers having
dissimilar professional experiences when they work in different
settings. This leads to our second research question: Do the
differences in solo and law firm lawyers’ education and work
experiences account for the differences in their
professionalism? The issue is not whether solo practitioners are
more professional compared to law firm lawyers, but rather the
extent to which they differ in certain aspects of professionalism
and professional role behaviors in their daily work experiences.
Following Nelson and Trubek (1992), we view lawyer
professionalism not as a fixed set of unitary values, but instead
as consisting of multiple visions of what constitutes proper
lawyer behavior that are expected to reflect the different
arenas in which these conceptions are reproduced. Leicht and
Fennel (2001) suggest that as organizational forms change and
splinter, it is reasonable to expect that the interests and values
of professionals who have different backgrounds and work in
widely differing organizational contexts will diverge as well (see
also Lachman & Aranya, 1986).This approach allows for the
possibility that different groups, such as soloand firm lawyers,
will report different work experiences that reflect their various
situational, ideological, political, and economic concerns. Before
reviewing the relevant literature, it should be noted that most
research on members of the legal profession has focused on law
firm lawyers, and more specifically and recently, on lawyers
working in large firms (e.g., refer to Gorman, 2005; Beckman &
Phillips, 2005). In contrast to the considerable body of research
on lawyers working in large firms, relatively little research has
focused on solo practitioners. Jerome Carlin’s (1994b) classic
work, Lawyers on Their Own, originally published in 1962,
stands out as an insightful and significant contribution. Seron’s
(1996) more recent study of solo practitioners and small firm
lawyers suggests that neither has changed much in the past 30
years. The discussion presented below is largely influenced by
Carlin’s (1994b) work and most of the hypotheses are derived
directly from his study of solo practitioners. As such, this study
breaks new ground by comparing the results of Carlin’s work
with a contemporary generation of lawyers.

CODE OF ETHICS FOR LAWYER –

In India, the legal professionals are said to be abided by various

legal ethics that may seem outdated in many other jurisdictions
abroad but are yet considered as a very important part of the
legal profession. The Bar Council of India still maintains strict
standards with respect to the legal community. One of the
biggest example one can see is through Rule 36 of the Bar
Council of India Rules whereby the Indian Law firms and lawyers
are not allowed to advertise their practice in the market.

The judiciary has recognized the substance of this restriction in

several cases. It does not merely imply that the Bar Council of
India has been completely sightless to the realities of
liberalization, as that is apparent from its decision to amend
Rule 36 and add a proviso permitting advocates to keep
websites about themselves or their law firms in order to
distribute information, in order to enable people to make
decisions.

Law

Law is a system of rules and guidelines which are enforced

through social institutions to govern behaviour, wherever
possible. There are mainly three philosophical explanations of
laws: 

Law is command, backed by threat of sanctions, from a

sovereign, to whom people have a habit of obedience; another
is from natural lawyers

Law reflects essentially moral and unchangeable of nature with

justice; law arises from both a social impulse and reasons; the
last one is law’s positivism, which is totally contradictory to the
natural ideas.Real law is entirely separate from morality and it
emanates from the will to power.

Ethics

Ethics is the philosophical study of morality while morality is the

rules of conduct describing what people ought and ought not to
do in various situations. Also, ethics are the rational, systematic
analysis of conduct that can cause benefit or harm to other
people. Ethics stress on logic and reasons. Different people can
have different opinions about one situation as long as there are
reasonable logics.

Law & Ethics

Stealing causes harm as everyone would live in fear of getting

their possessions stolen and therefore the act of stealing must
not be permissible. Raping and murder treat the victims as a
means to end, making them wrong. The law thus prohibits such
acts. Therefore, it looks like the law makes it a national rule
preventing what we find ethically wrong. However, this idea
that ethics always determines law only makes sense at a
superficial level.
To look more deeply into the matter, we must first make a
distinction between rule of law and rule of man. In certain
societies, the law is simply an instrument used by the ruling
class to enforce rules that keep them in power or ideas the
ruling class agree with. In such situations, it becomes clearer
that law and ethics are distinct.

The difference between laws and ethics

Ethics stress on the individual while laws stress on whole

society. Towards a situation, different people have different
ideas but the laws can only have one solution in order to show
justice. Sometimes the laws are cold while people are
influenced by the emotions to change the decisions.Ethics
emphasize on logic and reasons while laws are based on the
words. The logic and reasons can be changed anytime but laws
have been issued early. It cannot change no matter how good
the logic and reasons are.Ethics and laws sometimes make the
same decision while sometimes not. It all depends on the
situations. As long as there are sufficient reasons, we can
support our own opinions, no matter whether it is right
according to laws.

Professional ethics encompasses an ethical code governing the

conduct of persons engaged in the practice of law as well as
persons engaged in the legal sector.   All members of the legal
profession have a paramount duty to the court and towards the
administration of justice. This duty prevails over all other duties,
especially in the circumstances where there may be a conflict of
duties. It is important that legal practitioners conduct
themselves with integrity, provide proper assistance to the
court, and promote public confidence in the legal system. In
carrying out their duties, they are required and expected to deal
with other members of the legal profession with courtesy and
integrity. Advocates, apart from being professionals, are also
officers of the court and play a vital role in the administration of
justice.

Accordingly, the set of rules that govern their professional

conduct arise out of the duties that they owe to the court, the
client, their opponents and other advocates. Rules on the
professional standards that an advocate needs to maintain are
mentioned in Chapter II, Part VI of the Bar Council of India
RulesThese Rules have been provided under section 49(1)(c) of
the Advocates Act, 1961.

Rules on an advocate’s duty towards the Court-

Act in a dignified manner-An advocate must behave in a

dignified 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 authorities.

Respect the Court-The advocate must show his respect towards

the Court. He/she has to keep in mind that the dignity and
respect towards the judicial officer are essential for the survival
of a free community.

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 or
improper acts such as coercion, bribe, etc.

Refusal to act in an illegal manner towards the opposition -An

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

Refusal to represent clients who insist on any unfair means of

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

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.

Not represent the establishment of which he is a member–An

advocate should not appear in the court, for or against any
establishment in which he is a member. But this rule does not
apply in the case of appointment as an ‘Amicus Curiae’ or
without a fee on behalf of the Bar Council.

Not appear in matters with pecuniary 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.
Not 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’s duties towards his client

 Bound to accept briefs.

 Not withdraw from service.

 Not appear in matters in which he is a witness.

 Full and frank disclosure to the client.

 Uphold interest of the client.

 Not suppress any material of evidence.

 Not disclose any information of his client and himself.

 Not receive any interest in actionable claim.

 Not charge depending on the success ofmatters.

 Keep proper accounts etc.

Advocate’s duty towards his opponent counsel –

 Not to negotiate directly with opposing party-The

advocate should not in any way directly communicate
with the opposing party regarding any matter of the case
except through the advocate representing the party.

Carry out legitimate promises made- The advocate should

make best of all possible legitimate promises made to his party,
even though not reduced to writing under the rules of the
Court.
Advantages of having codified professional ethics-

 Means of social control. It will keep up with the new

perspectives brought to the profession according to the
social requirements and expectations. The dignity of the
profession will be required to be maintained in order to
retain the confidence of the public in it.

 Ethical codes prevent interference of government in such

matters through its agencies. If a degree of
standardization is needed, it will keep Governmental
interference outside.

 Ethical codes are important in developing higher

standards of conduct. The code also brings about a sense
of judgment towards the profession

 The existence of the code will have great educative,

corrective and appreciable value for both the lawyers and
the common men

Conclusion-

Professional ethics can also be stated as the duties that have to

be followed by an advocate during his profession. These are
moral duties and the very basic courtesy which every person in
this field should know. An advocate who does not work with
sincerity and does not follow the rules of conduct is said to have
violated the code of ethics of this profession. The fundamental
aim of legal ethics is to maintain honor and dignity of the legal
profession to ensure the spirit of friendly co-operation,
honorable and fair dealing of the counsel with his clients as well
as to secure the responsibilities of the lawyers towards the
society.
PROFFESSIONAL MISCONDUCT AND ITS CONTROL –

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 dishonorable
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 Advocates Act, 1961 as well Indian
Bar Council are silent in providing exact definition for
professional misconduct because of its wide scope, though
under Advocates Act, 1961 to take disciplinary action
punishments are prescribed when the credibility and reputation
on the profession comes under a clout on account of acts of
omission and commission by any member of the profession.

Misconduct, according to Oxford dictionary means a wrongful,

improper, or unlawful conduct motivated by premeditated act.
It is a behavior not conforming to prevailing standards or laws,
or dishonest or bad management, especially by persons
entrusted or engaged to act on another's behalf. The expression
professional misconduct in the simple sense means improper
conduct. In law profession misconduct means an act done
willfully with a wrong intention by the people engaged in the
profession. It means any activity or behaviour of an advocate in
violation of professional ethics for his selfish ends. If an act
creates disrespect to his profession and makes him unworthy of
being in the profession, it amounts to professional misconduct.
In other word an act which disqualifies an advocate to continue
in legal profession.

The Supreme Court has, in some of its decisions, elucidated on

the concept of ‘misconduct’, and its application.

InSambhu Ram Yadav v. Hanuman Das Khatry, a complaint

was filed by the appellant against an advocate to the Bar
Council of Rajasthan, that while appearing in a suit as a counsel,
he wrote a letter stating that the concerned judge, before
whom the suit is pending accepts bribes, and asked for Rs.
10,000 to bribe and influence the judge to obtain a favourable
order. The Disciplinary Committee, holding that the advocate
was guilty if “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. Members belonging
to the profession have a particular duty to uphold the integrity
of the profession and to discourage corruption in order to
ensure that justice is secured in a legal manner.

In another case, Noratanman Courasia v. M. R. Murali the

Supreme Court explored the amplitude and extent of the words
“professional misconduct” in Section 35 of the Advocates Act.
The facts of the case involved an advocate (appearing as a
litigant in the capacity of the respondent, and not an advocate
in a rent control proceeding) assaulted and kicked the
complainant and asked him to refrain from proceeding with the
case. The main 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. It was upheld by the
Supreme Court 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 that court.
It may be noted that in arriving at the decision in the case, the
Supreme Court carried out an over-view of the jurisprudence of
the courts in the area of misconduct of advocates. It reiterated
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 N.G. Dastane v. Shrikant S. Shind, where the advocate of one
of the parties was asking for continuous adjournments to the
immense inconvenience of the opposite party, it was held by
the Supreme Court that seeking adjournments for postponing
the examination of witnesses who were present without making
other arrangements for examining such witnesses is a
dereliction of the duty that an advocate owed to the Court,
amounting to misconduct.

Ultimately, as it has been upheld and reiterated that

“misconduct” would cover any activity or conduct which his
professional brethren of good repute and competency would
reasonably regard as disgraceful or dishonourable. It may 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. Dahbolkar.

The facts under consideration involved advocates positioning
themselves at the entrance to the Magistrate’s courts and
rushing towards potential litigants, often leading to an ugly
scrimmage to snatch briefs and undercutting of fees. The
Disciplinary Committee of the state Bar Council found such
behavior to amount to professional misconduct, but on appeal
to the Bar Council of India, it was the Bar Council of India
absolved them of all charges of professional misconduct on the
ground that the conduct did not contravene Rule 36 of the
Standards of Professional Conduct and Etiquette as the rule
required solicitation of work from a particular person with
respect to a particular case, and this case did not meet all the
necessary criteria, and such method of solicitation could not
amount to misconduct. This approach of the Bar council of India
was heavily reprimanded by the Supreme Court. It was held that
restrictive interpretation of the relevant rule by splitting up the
text does not imply that the conduct of the advocates was
warranted or justified. The standard of conduct of advocates
flows from the broad cannons of ethics and high tome of
behavior. It was 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.” 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.

SECTION 35 -Punishment of advocates for misconduct.

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.

[(1A) The State Bar Council may, either of its own motion or on
application made to it by any person interested, withdraw a
proceeding pending before its disciplinary committee and direct
the inquiry to be made by any other disciplinary committee of
that State Bar Council.]

(2) The disciplinary committee of a State Bar Council 2[***] shall

fix a date for the hearing of the case and shall cause a notice
thereof to be given to the advocate concerned and to the
Advocate-General of the State.
 (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.

(4) Where an advocate is suspended from practice under clause

(c) of sub-section (3), he shall, during the period of suspension,
be debarred from practising in any court or before any authority
or person in India.

(5) Where any notice is issued to the Advocate-General under

sub-section (2), the Advocate-General may appear before the
disciplinary committee of the State Bar Council either in person
or through any advocate appearing on his behalf.

Explanation. —In this section, [section 37 and section 38], the

expressions “Advocate-General” and Advocate-General of the
State” shall, in relation to the Union territory of Delhi, mean the
Additional Solicitor General of India.]

Conclusion
The role of the lawyers in the society is of great importance.
They being part of the system of delivering justice holds great
reverence and respect in the society. Each individual has a well
defined code of conduct which needs to be followed by the
person living in the society. A lawyer in discharging his
professional assignment has a duty to his client, a duty to his
opponent, a duty to the court, a duty to the society at large and
a duty to himself. It needs a high degree of probity and poise to
strike a balance and arrive at the place of righteous stand, more
so, when there are conflicting claims. While discharging duty to
the court, a lawyer should never knowingly be a party to any
deception, design or fraud. While placing the law before the
court a lawyer is at liberty to put forth a proposition and
canvass the same to the best of his wits and ability so as to
persuade an exposition which would serve the interest of his
client and the society.

The advocate, as an officer of the Court, also has the

responsibility to render services of sound quality. Lapses in
services in the nature of absence when the matters are called
out, the filing of incomplete and inaccurate pleadings – many
times even illegible and without personal check and verification,
the non-payment of court fees and process fees, the failure
toremove office objections, the failure to take steps to serve the
parties are not merely professional omission. They amount to
positive dis-service to the litigants and create embarrassing
situation in the court leading to avoidable unpleasantness and
delay,

Furthermore, as the officers of the court the lawyers are

required to uphold the dignity of the judicial office and maintain
a respectful attitude towards the Court. This is because the Bar
and the Bench form a noble and dynamic partnership geared to
the great social goal of administration of justice, and the mutual
respect of the Bar and the Bench is essential for maintaining
cordial relations between the two. It is the duty of an advocate
to uphold the dignity and decorum of the Court and must not
do anything to bring the Court itself into disrepute, and ensure
that at no point of time, he oversteps the limits of propriety.

ACCOUNTABILITY OF LAWYERS TOWARDS COURT CLIENTS

AND SOCIETY–

ACCOUNTABILTY OF ADVOCATES The advocate has been made

accountable. Section 35 of the Advocates Act 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 can punish the advocates
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 guilty 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.

A SUCCESSFUL ADVOCATE SHOULD FOLLOWCERTAIN

GUIDLINES

Now-a-days it is often that the legal profession has no future. It

is overcrowded and usually those persons join this profession
 who do not get other job. But this view is not correct in relation
to the persons who join this profession keeping in mind that
they are to devote their whole time to this profession. For a
person who is hardworking and devoted to law has a bright
future. Actually, good command over the language, good voice,
good power of expression, goodknowledge of the law, good
commonsense, good presence of mind and good health all help
alawyer to become over the temper is also necessary for
becoming a popular and successful lawyer.

Mr. Justice R.C. Lahoti has given the following tips to be a

successful advocate:

1 .Work hard:

There is no royal road to success in profession. In law, to earn

success, one has to live like hermit and work like a horse.

2. Be physically fit:

The law graduates who join the legal profession must have a
sound physique and healthy body to bear the burden of higher
responsibilities and facing the challenges of the strenuous
profession

. 3. Value the time:

In legal profession time, talent and wisdom are marketable

commodities. They are displayed in the show case and
purchased by one who can afford to pay the price. Just as raw
material has to be preserved and can be available for producing
the finished product so in legal profession time has to be saved
for utilization in delivering the finished product.

4. Knowledge of English language:

While the students should enrich themselves in their mother tongue
they should not lag behind in learning English and should rather
acquire good command over it which holds so much of promise for
them. English has become the Chief Global language. The only
language known to computers in the world around, is English.

5. Read literature:

Reading literature gives width to vision. There is so much to read in

law that one life may not be enough to complete reading the
available literature I law. The books available in law consist of
fundamentals of law, jurisprudential thoughts, legal research and
biographies and autobiographies of eminent judges and lawyers. It
is inspiring to read them.

6. Knowledge of Computers:

Computers are indispensable and therefore the students must learn

computer.

7. Develop a hobby:

Every professional must have a hobby to divert and entertain

himself and get rid of monotony.

8. Look smart:

A professional should try to look as attractive as he can. “Always

bear a smile on your face and try to look as attractive as you can.
An astute client would access your worth in the first meeting and
decide upon retaining you as his lawyer feeling impressed initially by
your appearance and the impact of your personality.”

9.Aim high: One who aims high should not feel diffident by the
crowd in prof
Thus, to sum up the legal profession is a profession of great honour.
It has been created not for private gain but for public good. It is not
a money-making occupation but a branch of administration of
justice. Since it is not a business, a lawyer cannot solicit work or
advertise either directly or indirectly. An advocate is an officer of
the Court and required to maintain towards the Court a respectful
attitude bearing in mind that the dignity of the judicial office is
essential for the survival of the society. The Supreme Court has
rightly observed that the legal profession is a partner with the
judiciary in the administration of justiceession.

A LAWYER’S DUTY TO SOCIETY –

This very event – a Symposium on Professionalism – is evidence of

the belief of The Advocates’ Society that lawyers are something
more than service providers operating a market-driven business;
lawyers are members of a profession. Your role as a participant in
this event is to assist The Advocates’ Society in defining what it
means to be a member of the legal profession.

The legal profession does not exist as of right. As are members of

other professions, lawyers are afforded privileges as part of a
bargain with society, “in which they promise conscientiously to
serve the public interest – even if to do so may, at times, be at their
own expense.” These privileges include the right to self-regulate,
the exclusive right to perform certain functions, and special status.

The special status which lawyers enjoy in society is referred to a

number of times in the Rules of Professional Conduct of the Law
Society of Upper Canada (“the Law Society”). For example, Rule
1.03 provides that “a lawyer has special responsibilities by virtue of
the privileges afforded to the legal profession and the important
role it plays in a free and democratic society and in the

administration of justice …” In a commentary to another Rule, it is

stated definitively that, “Alawyer's responsibilities are greater than
those of a private citizen.”

What does ‘Duty to Society’ mean in the twenty-first century?

Your examination of this duty is being made:

• At a time when mistrust of institutions is widespread. Lawyers

have historically fallen

below bankers and financiers in popular opinion polls of

trustworthiness. Given the

events of the past year, the legal profession (through no efforts of

its own) might move

ahead a few positions if such a poll were taken today;

• In the context of globalization. Lawyers today work with clients

whose interests are

international and who deal with individuals, institutions, and

governments which may function without regard for democracy
and/or the Rule of Law;

• With respect to a population that has changed significantly in the

past half-century.Ethnic diversity in Canada has significantly
increased. Progress in terms of gender issues has been made, but
problems remain; and

• In an era in which ‘corporate social responsibility’ is increasingly

important. The public purse no longer provides for the welfare of
every member of society. Corporate philanthropy has become part
of the main stream. Individuals and institutions (corporate or
otherwise) are being asked not only to consider the well-being of
the people who live on this planet but of the planet itself.

Section 126 of the Indian Evidence Act provides that except with
the client’s consent a lawyer cannot disclose any communication
made to him by the client or to reveal the contents of any document
to which he has become privy in the course of his professional
employment or disclose the advice tendered by him to his client.
Contrary to this specific provision of law the activist, who
champions the lawyers so called duty to Society, would urge that
the lawyer must not keep secret his knowledge about an illegality
committed by his client. In my view there is no such duty and the
importance of complete and free communication between a lawyer
and his client is itself for the welfare of Society at large.

It is the duty of an advocate to uphold the interest of his client by all

fair and honorable means without regard to any unpleasant
consequences to himself or to any other. An issue which sometimes
arises is whether in discharging this duty there would be a conflict
with the advocate’s duty to the Court. Whilst he must uphold in all
ways the interest of his client at the same time he must not put
forward as a fact when he knows (as distinct from what he suspects)
to be untrue. For example, if the client has told him that he has
done something the advocate cannot urge that he has not done it
though he would be justified in taking the stand that it is for the
other side to prove that his client had indeed done the act as
alleged by the other side. Many people take the view that this is a
facetious distinction which lawyers draw. However, the rule of law
requires that it is for the plaintiff or the prosecutor to establish his
case with acceptable evidence and if the lawyer does not take this
stand he would be cutting at the root of the rule of law. It is also
urged that a lawyer’s duty to society requires that he should not
defend someone who he believes to be guilty of what is alleged
against him. Those who would so urge should ponder over whether
if a man sentenced to death for murder falls sick whilst in jail should
a doctor attend to him or decline to do so in the belief that Society
would be well served by his early demise. A lawyer’s duty is to his
client and to the Court and if one may say so to the law. In my
opinion these override any amorphous duty to Society which is
spoken of so glibly. An advocate’s loyalty is to the law and the law
requires that no man should be punished without adequate
evidence. The cynic may counter that it is fortunate that people are
born whose moral standards are sufficiently flexible to enable them
to practice the calling of law!

An interesting issue arises when a client wants to know the

consequences of his acting in a manner which is contrary to the
law. It would appear that it is the lawyer’s duty to explain what
would be the decision in law if the misdeed is discovered but he
should in no way be a party to facilitate on such misdeed. A fine
issue arises – is it the duty of the lawyer to tell the client that
what he proposes to do is contrary to the law and he ought not
to embark on the act. It would appear (though there may
certainly be two views on the issue) that it is not for the lawyer
to be a moralist but leave it to the client to decide whether
knowing the consequences ethical and otherwise, of what he
proposes to do, he should still go through with his earlier
scheme. Here also the protagonist of “duty to Society” may take
a contrary view.

An arguing Counsel owes a duty to his client and to the Court

for attending the hearing of an appeal from the beginning to the
end. It is not enough that the lawyer attends Court only at the
time his turn comes to argue the case for his client and
thereafter on completing the argument leaves the Court with
some excuse or the other proffered to the judge. The lawyer’s
defence is that he owes a duty to other clients for whom also he
is to appear on the very day. I feel that unless the lawyer is
present throughout the hearing of the appeal and has heard the
arguments of opposing Counsel he would not be able to give off
his best to the client or to render full assistance to the Court. He
should choose which case he will attend to and return the other
briefs in good time or have the other hearing adjourned. In a
witness action the position may be different.

Sometimes a possible conflict arises when a judge seeks

Counsel’s opinion on a particular matter which is in issue
between the contesting parties. If the lawyer was to express his
opinion or what he believes to be the right position in law he
may be acting adversely to his client’s interest. He would
therefore be justified in politely declining the judge’s request to
give his opinion. Some purist may contend that in taking this
stand the lawyer is not discharging his duty to the Court.
Though the lawyer’s duty to the client is certainly not more
important than his duty to the Court, nevertheless the
“inquisitive” judge should have realized that the duty of the
lawyer is to argue his case and not to express his opinion on the
issue involved. Undoubtedly, tact of a high degree is required in
meeting such a situation. People must realize that what a
lawyer believes and what he argues are not the same.

A related issue is to what extent the duty of a lawyer to the

Court compels him to cite all possible decisions which he is
aware of even though some of them may be contrary to what
he is briefed to argue. Whilst the lawyer must bring to the
notice of the Judge any judgement which is binding on the
judge like that of the Supreme Court of India or of the Federal
Court or the Privy Council (when the opinion of the Privy
Council is as of a point of time when the same was binding on
the Indian Courts). He will also have to disclose to the Court any
judgement of the High Court of the state where he is arguing
the matter as the same may be binding or if the judge wants to
take a contrary view he may have to refer the matter to a larger
Bench. It is not the duty of the lawyer to cite decisions rendered
by other Courts which are not binding. It is for the opposing
lawyer, if he so thinks fit, to bring such decisions to the notice of
the Court. This shows that the lawyer can honour his duty both
to the Court and to the client in respect of a particular matter
without infringing either.

Sometimes a very piquant situation arises. A judge recuses

himself from a case on the ground that one of the parties has
“approached” him. Should the lawyer of the alleged defaulter
also opt out of the case? In my opinion, he should first of all
satisfy himself that indeed a representative on behalf of his
client had approached the judge, with the client’s authority to
do so. Unfortunately, there are today people who without being
instructed by the client to do so approach a judge in a pending
matter of which they are aware and then approach the client
with the offer of procuring a favourable judgement. Once he is
satisfied that the judge was indeed approached under his
client’s instructions he should return the brief though it is
possible that this may prejudice the client adversely if the brief
is returned in the midst of a hearing. It would also show his
client in poor light. This sort of situation really calls for a fine
balance being drawn between the lawyer’s duty to the client
and to the Court.

When discharging his duties to his client the lawyer often is

faced with matching the same to his duty to the profession and
to his co-professional. Though it may be in the interest of his
client for the lawyer to interrupt the other side’s Counsel so as
to distract him from his trend of thought or interfere with the
flow of his arguments, it would be a breach of his duty to a co-
professional and he must not indulge in it. I must say that I have
found that in the southern states of India the respect for the
right of the opposing professional to have full uninterrupted
opportunity to express his views is far more evident than in the
northern and, may I add, western states?

It is undoubtedly the duty of the lawyer to the Court always to

be courteous and deferential to the judge but that does not
mean he has to be obsequious. If for any reason it appears that
the judge is acting unreasonably and making comments which
are wholly uncalled for either against the litigant or the lawyer
or the legal profession it is his duty to stand up to the judge
and, as politely as possible, to correct him. It is not the lawyer’s
duty to the Court to submit to insults to himself or his
profession or to fawn for petty favours. I remember an occasion
when a judge was unreasonably giving a junior lawyer a tough
time. As the Court rose for lunch a senior lawyer, who was
waiting for his case to be called out got up and suggested that
perhaps the junior lawyer deserved a more patient hearing. The
judge – full marks to him – saw reason and his attitude changed
post lunch. It is remarkable that the senior lawyer really did not
know the junior at all but the incident shows the importance of
standing up to a judge even when it does not affect the lawyer
personally.

It sometimes happens that a “succeeding” lawyer in the course

of his argument takes a stand different from what his
predecessor, who was then representing the client, had taken.
If it is in the client’s interest for him to take a contrary stand he
should do so but without in any way decrying or condemning
the stand previously taken by the predecessor lawyer. In this
manner he fulfills his duty both to the client and to the
profession.

Sometimes a lawyer may feel that it would be advisable for a

client to consult another lawyer or even to brief another lawyer
rather than himself. He should frankly advise the client to do
what is in client’s interest though it may conflict with his own
pecuniary interest. A lawyer is sometimes asked to recommend
the name of a junior to assist him. The lawyer should either
leave it to the client to choose the junior lawyer or suggest 3 or
4 names preferably not only from his chamber and leave it to
the client to decide who should be briefed. This would fulfill the
duty of the lawyer to his co-professional by not depriving a
junior outside his chamber from being briefed.

In the practice of the profession sometimes peculiar situations

arise which have a bearing on conflict of duties. It may happen
that after a case is heard and decided the advocate reliably
learns that the judgement was improperly procured. This would
mean that even though the client may not himself be guilty of
any improper conduct there was a miscarriage of justice. Is it
the duty of the advocate in these circumstances to bring these
facts to the notice of the Court for considering whether to order
a retrial? The purist would undoubtedly say that it is advocate’s
duty to do so but there may be practical difficulties.

An interesting instance of conflict of duties may arise when a

lawyer accepts a directorship. It may happen in this way: the
company of which he is a director may be confronted with a
particular problem and looking to the facts of the case the
company may have to adopt a particular stand in law and the
director would have voted in favour of taking such a stand. In
the light of this peculiar position his view of what is the correct
position may get warped and he may not be able to render
independent advice to another company facing a similar
problem. For a similar reason a lawyer who is a director of a
company must not appear in Court for the company as he may
not be able to maintain the sense of independence and
detachment required of him. In similar vein a firm of solicitors, a
partner of which is a director on the Board of a company, is not
allowed to represent the company in Court. This is sometimes
overcome by the solicitors firm interposing a dummy lawyer.
But that is really a case of failure of duty to one’s conscience!

A common source of conflict is where each of two partners of a

firm represents persons arraigned against each other. They
build some sort of a Chinese wall to urge that they both
function independently. However, there is no gainsaying the
fact that there is bound to be at some stage a conflict of duties
and the firm may tilt in favour of the client who is more
important to it; namely, from whom it hopes to earn a larger
fee in the long run.

It goes without saying that an advocate cannot be a party to

procuring evidence by inducement. By procuring evidence the
advocate may further the cause of justice but may he be guilty
of breach of his duty to the Court or the profession and perhaps
even to society. For example, a suit is filed by A claiming
damages from B who had assaulted him. X was the only witness
to the incident. When the matter is to be heard in Court X
suggests to A’s lawyer that he may not come to give evidence
and if he is summoned he may plead that he did not remember
what exactly happened. He may slyly add that he could be
induced to state the truth. If the lawyer spurns X’s suggestion it
may mean that his client who was entitled in law to succeed
may not be able to prove his case. On a strict view of the matter
it would appear that the advocate is in breach of his duty to the
Court and the profession if he succumbs to the suggestion made
by the witness. If he does not succumb to X’s demand is he in
breach of his duty to the client because the client may fail in a
cause where he deserved to succeed? The puritan will
undoubtedly opine that upholding the process of law and
justice is more important than an individual client’s obtaining of
damages for the wrong done to him. On the other hand, one
may think that it is reasonable to do a little wrong to achieve a
higher good in the form of a person justly succeeding in the
litigation launched by him. It appears that whichever way he
acts the lawyer may later have pangs of conscience. A self-
saving action on the part of the lawyer may be to tell his client
to contact X if he so deemed fit. Of course, this would mean
that the lawyer would have to live with the disconcerting fact
that he, at least passively, was a party to “procuring” evidence.

An advocate undoubtedly owes a duty to his fellow

professional: not to run him down or attempt to take over his
brief. Does it mean that he should not appear in a matter in
which his fellow professional is sued? The answer obviously is
that his duty to his client, who claims relief against a
professional brother, is higher than his duty to a fellow
professional or to the profession. If a lawyer declines to appear
against a brother lawyer it would mean that the affected party
may not be able to find a lawyer to represent him.

Sometimes a client realizes that he is bound to fail in his plea

before the Court but he would like to postpone the evil day. It
would appear that the advocate’s duty to the client permits him
to obtain an adjournment on whatever grounds are available
but without putting forward a false excuse. The fact that
thereby there is a delay which is adverse to the interest of the
other side does not mean that the advocate is in breach of his
duty to the profession or to the Court.

The lawyer’s duty to the client does not extend to carrying out
all his instructions. For example, it is not his duty to oppose the
grant of an adjournment sought by the other side because his
client says so or to urge an argument the client insists on even
though the lawyer feels it would be counterproductive or not
ethical to do so, then, the advocate’s duty to himself, to the
Court and to the profession must prevail. However, he should
communicate his decision to the client in good time and he
should give the client the option to brief another Counsel. In
similar light is the case where the opposing side’s Counsel has
slipped up. Should the advocate take advantage of that
position? The classical view would be he should not. I do not
know how far that is practical because surely it is not Counsel’s
duty to say that his co-professional has made a slip in not
pressing a particular point or not pressing it forcefully enough
and the judge should consider the same.

I have referred above to a lawyer’s duty to Society. It would be

apt to mention Society’s duty to “law.” Nowadays the media
pronounces upon a case and lawyers’ comment on a case in
progress. This may prejudice the interest of one of the litigants
in the case. Society and all of us owe a duty to law and its fair
administration and to desist from action which can conflict with
a litigant’s right to a fair and free trial. I am conscious that if it
were not for the interest taken by the media several matters of
grave concern which involve prominent politicians and other
personalities may have gone unattended to. Even so one should
try to reconcile duties of the media to law and to Society.

THE LEGAL PROFESSION AS A SOCIAL PROCESS

To theorize the legal profession as a social process requires a

reconfiguration of the relationship among four main
components of professional life: expertise, jurisdiction, mobility,
and politics. In the sociology of professions, all four components
have been extensively discussed, but there is rarely an effort to
put them together in a single theoretical framework. The
processualtheory that I propose here seeks to establish a
coherent logic pertinent to the production of professional
expertise, the conflict over
professional jurisdictions, the mobility of practitioners across
space and hierarchy, and the political struggle over state
regulation. This logic has its roots in Simmelian sociological
theory (Simmel 1971), which maintains that the shape of social
structures, large or small, is constituted by interaction between
social actors. While sharing a similar theoretical foundation with
the interactional approach, the processual theory of the legal
profession does not limit the scope of analysis to the microlevel
(e.g., lawyer-client interaction) or to one specific type of
interaction (e.g., jurisdictional conflict); instead, it seeks to
establish a conceptual link between interaction and structure
using multiple social processes, including diagnostic struggle,
boundary work, migration, and exchange. Each of these four
concepts involves a dialectic between individual action and
social structure; taken together, they establish a processual
logic for explaining the structure of and change in the legal
profession. This analytical framework is summarized in Table
and elaborated in the next four subsections.

Rule of Law is a dynamic concept and must keep pace with the
changes to suit the current needs of the society. Protection of
Human Rights and implementation of the legal framework is
essential to prevent resort to rebellion against tyranny and
oppression. the Rule of Law is described as springing from the
rights of the individual developed through history in the age-old
struggle of mankind for freedom; which rights include freedom
of speech, press, worship, assembly and association and the
right to free elections to the end that laws are enacted by the
duly elected representatives of the people and afford equal
protection to all.

Role of Lawyers in Social Transformation-

“Lawyers are the foot soldiers of our Constitution."

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 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 Lok Sabha.

A man clad in black and white attire walking briskly in a corridor

enters the courtroom, eyes of the victim turns to him with hope
and belief that he will provide him with the justice he deserves,
for him he is no less than the angel who saved his life. Lawyers
are those small pillars in a building that are required during the
construction of the main pillar as to give it support towards the
right direction. We did not reach where we are in a dayswork ,
laws that governs us the freedom that we have to express , right
to say what desire , choose what we want to work , practice the
faith that we believe in. All these rights are conferred upon us
by 'law' of India and lawyers are the officers who work to make
sure that citizens of India are not deprived of their rights.

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.Most social evils are an
outcome or creation of poverty and the misery that comes with
being poor in a country like India, at the same time it also needs
to be borne in mind that the judiciary no matter however
committed it may be towards uplifting the cause of the poor is
ultimately bound by procedural formalities which do not take
into account the misery or problems of the masses. Therefore
the sufferings being so may it is not possible for the legal system
to remove even few of such problems. In keeping with the same
view Justice Krishan Iyer asserted that poverty is a creation of
unjust institutions and unjust society. Therefore in a country like
India if you are poor you are ineffective socially as well as
economically the only way that you can then be empowered is
through radical revamping of the socio-economic structure.
Such a radical change according to him could only be brought
about in the form of a revolution that the legal service program
only is capable of gearing. Thus the legal aid program aimed at
revamping the socio-economic structure by way of removing
the socially unjust institutions and creating a new order based
upon the ethos of human liberty, equality and dignity of
mankind.Justice Blackmun in Jackson v. Bishop says that; "The
concept of seeking justice cannot be equated with the value of
dollars. Money plays no role in seeking justice."4

Various branch of studies deals with the specific study of which

they are specialized for. E.g. A medical practitioner can deal
only in the line of medicine, an engineer only in his limited
scope of engineering but a lawyer deals with all the fields of
society including science, socialvalues, human rights, banking,
Intellectual property etc. As famously said "A lawyer should
know something about everything and everything about
something". Julius Stone defined 'The lawyer’s extraversion, It is
the lawyer examination of the precepts, ideas and techniques of
the law in the light derived from present knowledge in discipline
other than the law'. Apart from their role in legal services
lawyers have equal participation in imparting of knowledge i,e,
Law Schools providing legal education from the old 3 years law
courses to dynamic 5 years integrated courses. Not just Bar
Council of India is supreme body that regulate the course it
keeps in check the quality and methods of imparting legal
education. For eg. 66% of the attendance is compulsory and
there is no distance learning in law because law requires
practical approach, students need direct confrontation with
reality as they will be the future which will decide the direction
in which the legal system will take place. With practical subjects
like moot court and drafting there is scope for students to
develop their personal skills. Lawyers are not extra-territorial
creatures they are human beings who live in the society and are
affected by its whereabouts but the difference is that they have
the ability , power, resources and knowledge to change it.
Question arises does common man working 9 to 5 around the
clock does not have the power to change the law or the
conditions of the society. Yes, he has and there are examples in
the history but than taking a practical approach how many have
actually tried the percentage is very low. How will I change it?
To whom should I complain? Why should I take all the pain?
These are the questions that stops a common man but our legal
system has provided a way to by which we can bring change
and help those who are affected but are unable to help
themselves , answer is Public Interest Litigation(PIL).

Public-Interest Litigation is litigation for the protection of the

public interest. In Indian law, Article 32 of the Indian
constitution contains a tool which directly joins the public with
judiciary. A PIL may be introduced in a court of law by the court
itself (suo motu), rather than the aggrieved party or another
third party. For the exercise of the court's jurisdiction, it is not
necessary for the victim of the violation of his or her rights to
personally approach the court. In a PIL, the right to file suit is
given to a member of the public by the courts through judicial
activism. The member of the public may be a non-governmental
organization (NGO), an insituationoranindividual. In the case of
SP Gupta vs Union of India that the Supreme Court of India
defined the term Public Interest Litigation in the Indian Context.
The concept of Public Interest Litigation (PIL) is in consonance
with the principles enshrined in Article 39A of the Constitution
of India to protect and deliver prompt social justice with the
help of law. Justice Bhagwati and Justice V.R, Krishna Iyer were
the first to accept the PIL.The Court entertained a letter from
two professors at the University of Delhi seeking enforcement
of the constitutional right of inmates at a protective home in
Agra who were living in inhuman and degrading conditions.But
a coin has two sides with the ability to file PIL there was a
increased number of frivolous PIL. The 38th Chief Justice of
India, S. H. Kapadia, has stated that substantial fines would be
imposed on litigants filing frivolous PILs. His statement was
widely welcomed, because the instance of frivolous PILs for
pecuniary interest has increased. So necessary steps have been
taken to stop itsmisuse. We live in a world full of technology
and gadgets, when we lose our cell phone or internet
connection is hampered we feel like we have been
handicapped. Oneknows more about his distant friend what has
he/she taken in breakfast but barely know the name of the
person sitting next to him/her. A world werevirtually has
become an integral part of reality and were there are people
there are certain misadventures and to prevent those
misadventures there is 'cyber law'. It is the age where we the
government is talking about digital India. With the increase in
digital activities there is a hike in online frauds and scams. A
recent study shows there is 50% increase in complaints of cyber
crime than in 2013 to 2014. The problem does not end here
along with these scams there is harassment, cyberbullying and
degrading regards of human values as no one is there to keep a
check.

Let us take a few examples Monika Lewinsky was the first victim
of cyber world or as she herself called as 'patient zero', the
infamous Delhi MMS scandal, Lottery fraud cases, Charity fraud
and recent increase in Nigerian fraud were they make friends
via facebook or through emails and then demand a brief
amount of money to give you a substantial sum. Many have
fallen ill to this , recent a Mumbai based education institute
owner.

Engineers can provide you with better softwares so it may not

happen again , Doctors will give you medicine so you may come
out of your depression but who will provide you justice,who
stand up for you and bring the culprit down.It is Lawyers. They
will take the stand and bring notice the society what has
happened and now what should be done so that the victim will
recover fromtheinjurysuffered.

The Information Technology Act, 2000 is the statute that

provide guidelines regarding the rules and regulations of laws
prevailing in India for Cyber Crimes. Lawyers with the help of
these laws help the victim as it is not possible for a common
man to know all the laws and act accordingly. When people
hear the word lawyer being spoken, they usually think of an
individual who goes to court every day and stands before a
judge defending the freedom of another individual. This is true
in some cases; however, there are many different types of
lawyers with a variety of job responsibilities and duties. No
matter what type of lawyer one maybe they ultimately have an
extremely important role in the lives of others. So, the lawyers
have a wide range of responsibilities and duties when it comes
to their profession. Their role in society is even more important
as they are acting as a voice for others and a social engineer
having intellectual challenges.

Lives of people are not only affected by standing in court and

proving if one is innocent and guilty. They are affected even
when a company takes over another, there is change in the
banking rules or even there is increase in gas prices. One might
not know but lawyers are not just confined to courtrooms but
extended to the high profile business meetings of these
Multinational Companies to the merchant selling his business to
another.As their transactions are governed by law and a
corporate lawyer is the one who helps them in solving out the
legal paradoxes and allow them to do their business
freely.Public opinion of lawyers is that , one who will take up
your time bind you into the legal system and instead of
providing you with the remedy will take up all the remaining
resources you have.But let me ask them this question, You can
give your opinion freely and say what one wishes to say why
because our constitution allows it. That constitution which was
drafted by majority of lawyers headed by Dr. B.R. Ambedkar.
When the Bhopal Gas tragedy took place, who provided legal
support to the public and provided them with remedy. Justice
Bhagwati developed the concept of 'Absolute Liability' so the
accused would be held liable for those innocent deaths. In
'Nirbhya' case it was the lawyers who demanded for speedy
justice and asked the court if not 'Justice Delayed is Justice
Denied' to that innocent girl who wasbattlingforlifeanddeath.

Yes, there are corrupt lawyers some who work for their
personal gains and benefits but dirty work of few who lack on
morality and ethics should not hide the great achievements and
role of a lawyer in building a nation and developing a society
which is fearless and advance. Lawyers keep in check that there
is no one force which dictates the shape of nation.

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 lawyer’s 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.
-Keep your thoughts positive, because your thoughts become
yourwords.Keep your words positive, because your
wordsbecomeyourbehavior.Keep your behavior positive,
because yourbehaviorbecome our habit. 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:
 

1. References:
2. .Kailash Rai, Legal Ethics Accountability for Lawyers and
Bench Bar Relation.
3. .C.L. Anand, General Principle of Legal Ethics.
4. Art of Advocacy, edited by Justice Dr. B. Malik
5. . Krishnamurty C, Legal Education and Legal profession in
India.
6. .Prasad Anirudh, Principle of ethics of legal Profession in
India : accountability for lawers and bench-bar relations
including of court.
7. .Joginder Singh Gandhi, Sociology of legal Profession, law,
and legal system.
8. .http://www.barcouncilofindia.org/about/about-the-legal-
profession
9. .Lawyers in Society- Common Law World by Richard L Abel
- pg. N.
10. 377.http://www.legalserviceindia.com/
articlesen.wikipedia.org/wiki/Public_interest_litigation_in
India
www.lawyersclubindia.com/articles/Lawyer-s-role-in-
Indian-economy-the-hidden-hero-or-avillain--5514.asp
www.barcouncilofindia.org
11.The bar council of indiaretrived 3 may 2014
12. Advocate act 1961