01.

Introduction
The whole purpose of adjudication in our adversary system is for a party to
explicitly put his case across the table which will enable the opponent to respond
appropriately to that case he has fielded, and then the Judge, as an impartial
umpire will adjudicate on the issues in controversy. That and nothing more is the
epitome of what justice or fair trial is all about. But the persons playing different
roles in this due discharge of Justice is never regarded as equals in a judicial
proceedings. The Judges shall always be superior most, officers of the court such
as persons appointed for examination, commission, receiver become next, the
prosecutor and the advocates are the intermediary, the Police and other
investigation and executing branch form the next group, the witnesses and those
who give evidence are regarded next, the petitioner respondent complainant etc.
lower still, and the defendant respondent accused etc. are the least regarded.
Persons appointed for examination, commission, receiver etc are usually
advocates. Thus Bar Bench Relations relate to the power equations between the
top most layers of the functionaries of the judicial process.
02. Bar and Bench
The court hall where cases are conducted consists of two parts namely:(i)

The place where the judges sit is called as Bench(ii)

The place where the Advocate sit is called as Bar.

The term `Bench’ refers to the judges and the `Bar’ refers to the Advocates. Bar
-Bench relation means the cordial relation between the judges and the Advocates.
The faith on the judiciary to the general public and the speedy justice mainly
depends on the cordial relation between the judges and the Advocates and the
role of Advocates are equally important to the judges in the Administration of
justice. Rendering justice is their joint responsibility.
03. The Changing Bar and Bench
1. Broad purpose of Bench and Bar

The primary duty of Judges and the Advocates is to provide "Justice” according to
the law which has to
be administered in the existing society. Justice, as embodied in the law, has
different contents and connotations. The functions of the Bench and Bar, due to
the somewhat differing basic concepts of justice seems different in different
States. These concepts have been produced and molded by the operations of
complex and interconnected, constantly acting and counter-acting, sets of factors
in the course of our histories.
2. Shrunk and organically interlinked modern world
Distances have vanished in the various parts of the modern shrinking world.
Space time relationships have altered vastly. Speedy and easy communication
facilities have produced a uniformity in patterns of thinking, behaving, and living,
cutting across all barriers of political organization and ideology, culture, race,
creed, and colour, resulting in a progressive development of uniform basic
notions of justice as well as common patterns of law in various parts of the world.
In this modern age of science, the problems of justice cannot be dogmatic.
3. Changing Concepts
Our concepts of Justice consist of the products of an interchange of shifting pulls
and forces. New moral values, ultimately translated into law, emerge in the
process. Our notions of Justice are relative and results of empirical knowledge of
what satisfies certain needs believed to be basic.
4. Sense of Dedication
The spirit of consecration and dedication which impels human beings towards
what they believe to be ‘Justice' certainly appears to be a part of the eternal and
the unchanging human nature. The urge to see justice done to others, viewed as
reflections and even as parts of one's own self, is often submerged by other
powerful drives and passions. The effort of the members of both the Bench and
the Bar will be to overcome the passions and prejudices which interfere with such
a disinterested pursuit of justice. Justice, in a sense, may be conceived of as an
eternal quest of every being who deserves to be called human.
5. The Specialist's approach
The quest of the Judge and of the Advocate must be dedicated to the pursuit of
justice and seeks it scientifically by employing ordered knowledge contained in
the form of law and by scientific and legal tools.
6. The Judge's Persona

The persona of the Judge today in India is the ability to detach themselves from
the pursuit of private gain and selfishness and rise above all pettiness, passions,
prejudices, obsessions and complexes and preserve an unruffled temper even
when faced with the most trying of situations.
7. What the Judge requires from the Advocate
What the Judge requires from an Advocate is assistance in the performance of his
own role. The effectiveness and usefulness of an Advocate is determined by his
capacity to satisfy the needs of the Judge. It is impossible for an Advocate to give
that assistance unless he is equipped with required learning.
8. Power of Judge and Advocate over the Judicial Process
The power exercised by the Judge in India over the fate of a criminal or civil
litigation is really enormous. The power of the advocate is rather prodigious in
determining whether justice will hit or miss its mark. But Rules of professional
ethics and etiquette can be violated both by advocates and judges in India
without being properly punished.
9. A Source of Miscarriages of Justice
The best of institutions can be misused and human frailties cannot be entirely
eliminated anywhere and judicial proceedings is no exception. Bar and Bench
should be vigilant about that.
10. A Source of Legitimate Pride to Indian Citizens
 Even though the present pronunciations of the Bench and the irresponsible
behavior of the advocates are very often subjected to public criticism, the People
of India have not started to disbelieve the judicial process in India. However
Judiciary is now frequently using its contempt jurisdiction, as if fearing that it may
happen in near future.
11. The responsibility of the Constitutional role
The Constitution places a very heavy responsibility on the part of the Judges as
well as the Advocates who assist them, of propounding solutions which are in
harmony with "Justice: social, economic, and political." The "Judicial Process" in
our country includes the task of "Social Engineering too." Isolationism of Judges
from the rest of society in.
its the criticism that they live in "ivory towers”.
As the officers of the Court, lawyers are expected to assist the Bench in
administering justice. They are expected to maintain respectful attitude, towards
the Bench keeping in mind that, the dignity of judicial office is essential for the
survival of the society.
04. Legacy of Bar and Bench Relationship

1. The power relation in Courts

The conflict-co-operation relationship in between Bar and Bench cannot be
properly evaluated without going into its history. Before enactment of Advocates
Act, 1961, it was the Court itself which was giving licence and taking it away under
the Acts/Rules framed therefore. The conduct and behaviour of lawyers were
under direct supervision of the Court. During the freedom struggle, lawyers
played important part and they suffered much for their independent view against
the government policy and even courts did not recognise their right to dissent
with the government policy. The colonial concept of the existence of lawyer is
best described in
Mahant Hakumat Rai v. Emperor, the Lahore High Court AIR 1943 Lahore14
which reads:
“Without failing in respect to Bench, it is the duty of the members of the Bar to
assert
their just right to be heard by the Tribunal before which they practicing. They
should be fearless and independent in the discharge of their duties, and would be
perfectly right in protesting against irregular procedure on the part of any judge;
and if the advocate is improperly checked or found fault with, he should vindicate
the independence of the Bar. He would be perfectly justified in insisting on getting
a proper hearing and he would be perfectly right to object to any interruption
with the course of his argument such as to disturb him in doing his duty to his
client. Plenary powers vested in the Presiding Officer of the Court, apart from the
fact that they have rarely been used against members of the legal profession so
far, should only be used to vindicate the honour of the court or to satisfy the
necessities of
public justice and not as a matter of course.”

The creation of courts and inner partitioning of the court’s

room with high pedestal for the seat of judges, lower sitting arrangement of
lawyers on chairs/benches, rear dock for the accused and similar small dock for
witness smacks the colonial values and not the constitutional values of equality
and human dignity.
2. Strike by Lawyers
Strike by lawyers are normally not for gaining something for them from
governments or courts, rather it aims at either for dignity of the lawyers as a
class/individual or for some other cause deeply related to public justice, rule of
law and factors affecting public justice. In
Harish Uppal Ex. Captain v. Union of India A.I.R. 2003 SC 739
Supreme Court held that lawyers have no right to go on strike or give a call for
boycott, not even on a token strike. The protest if any is required, can only be by
giving press statement. T.V. interviews carrying out of Court premises banners or
placards, wearing black or white or any colour arm bands, peaceful protest
marches outside and away from the Court premises, going on dharnas or relay
facts etc.
3. Mutuality of Bar and Bench

Division Bench of Allahabad High Court in Yash Pal Singh v. State of U.P. and Ors
Writ Petition No. 1160 (S/B) of
2002 has held, “This institution can function best when both Bar and Bench
respect each other’s purpose and
responsibilities. A Bar functions best when its speech is untrammeled but guided
by deep scholarship. A counselserves the institution best when knows that it is
not his job to win cases by all means but to assist the Court with all his mastery of
facts and law. A Judge serves the institution best when he does not fear to hear
but does notdecide out of fear, when he f
ears with compassion, but does not decide out of favour.”

05. Role of the Bar to Strengthen Bar-Bench Relation

To strengthen the Bar-Bench relation, an Advocates must take the following
steps.1. They should give due respect to the judges and they must avoid speaking
ill of the judges and the judiciary.2. They should help the judges in the trial of the
cases by presenting the relevant law in the correct and clear manner. They should
never act in such away to irritate the judges.3. If the judges pronounces a wrong
order, they should not criticize the judges. They should try to set right the wrong
order through appeal.4. For getting favourable order they should not give
pressure or influence the judges.5. If the judges behavior is irritating and
disrespect to the Advocates should not enter in to a direct confrontation with the
judge. Through the Bar Association the matter should be discussed with the judge
in his chamber and shall request to avoid such misbehavior.
06. Role of the Bench to Strengthen Bar
–
Bench Relation
To strengthen Bar-Bench relation the Judges should follow and practice the
following.
1.
Judicial Respect:
Just like the Advocates are giving respect to the Judges the Judges should also
give respect to the Advocates and the brethren Judges.
2.
Patient Hearing:
Judges should hear the case with open and respective mind without any
prejudice orbias. They should act only to the interest of justice. They should give
sufficient opportunity for the Advocates to present the case in full.
3.
Impartiality:

Judges should act impartially. They should not act in favour of any Advocate or a
party to the dispute.
4.
Avoidance of Interruptions:
As far a possible, Judges must avoid interruptions while the Advocate is
examining witnesses and arguing the case. Unwarranted interference and adverse
comments by the Judges may upset the Advocates and thereby he may not be
able to present the case properly. Interference of a Judge may be limited to the
following circumstances(i) to prevent repetition and waste of time(ii) to check the
relevancy(iii) to get clarifications(iv) to express courts view on a point and(v) to
promote speedy disposal of the case.
5. Proper Interpretation:
During the process of administration of justice, often the courts have to interpret
the Act, Rules, Codes, Regulations, Orders, Notifications, Circulars, Byelaws etc. in
order to ascertain the actual meaning of the provisions or to remove the
ambiguity or inconsistency. In such cases proper interpretation should be given
with the object of rendering complete justice to the parties.
6. Avoidance of Unreasonable Adjournments:

Adjournments are given to afford reasonable opportunity to the parties to

present the case. As far as possible cases shall not be adjourned without
reasonable and sufficient grounds. Unreasonable adjournment is the main reason
for the mounting arrears of cases causing hardship to the parties.
7. Speedy Disposal:

`Justice delayed is justice denied’, hence cases should be disposed off as quickly as
possible. When preference is given for disposal of old cases, new cases should not
get into arrears.
8. Avoiding Unwarranted comments:
Judges should not make any unwarranted comments in the open
court about the Advocate’s lack of know
ledge in the law. They should not ask any Advocate to leave the court, without
sufficient reasons. Similarly, they should not ask any Advocate not to come to his
court hereafter.

9. Knowing in Law:
Judges should possess deep knowledge in law. They should have the ability to
apply the proper law to the disputed facts and to take the right decision.
10. Independence:
Judges have the primary responsibility to protect and preserve the independence
of judiciary.
11. Integrity:
A Judge should be honest and morally upright. He should have personal and
intellectual integrity. His character and conduct should be praise worthy.
12. Industriousness:
It means regular and systematic hard work and study. A Judge should get
acquainted with the latest developments and changes in the law by regular
updating of the knowledge.
13. Meeting of Judges and Lawyers:
To strengthen Bar-Bench relation, at regular intervals meeting of judges and the
Advocates shall be arranged. In such meetings the respective sides difficulties can
be discussed and the differences can be sorted out.
07. Legal Duties of an advocate to the Court
Bar Council of India Rules, 1975 Part V, Chapter II Standards of Professional
Conduct and Etiquette imposes many duties on the Advocates, a few among
which are reproduced below.
Duty to the Court (Rule 1-10)
In the administration of the justice, the role of the advocate is to help the court
to take a right decision in the dispute.1. An Advocate shall show the due respect
to the court and shall never act in any manner to undermine the confidence in the
judiciary.2. He shall not exert or attempt to exert any personal influence on the
decision of the court, nor shall give any impression that he possesses personal
influence with the judge before whom he normally practices.3. He shall be always
punctual in attending courts in the prescribed dress.4. He shall be fair and frank in
the court proceedings.5. He shall not include any fact which he knows to be false
in the pleadings, petitions or affidavits.6. He shall not ask for any adjournment of
a case without genuine reasons.7. He shall not communicate privately with the
judges to influence them relating to any pending case.8. He shall not speak ill of
judges or use abusive remarks about them. But, if the judge behaves improperly,
it is not only the right but also his duty to report it to the proper authorities.9. He
shall not interrupt when the counsel for the other side or the judge is
speaking.10. He shall appear in the court in the prescribed dress and his
appearances shall always be presentable. He shall not wear bands or gown in the
public places.11. He shall not practice before a judge if he is related to him.12. He
shall not act or plead in any matter in which he has pecuniary (monetary)
interest.13. He shall not appear for any organization, institution, society or
corporation if he is the member of the executive committee of such organization,
institution, society or corporation.
08. Conclusion
The Colonial Institution of Judicial Courts have not completely evolved into a
democratic constitutional setup. Thus it is evident that the values and thus
relationships between the Bar and the Bench have not fully evolved as equally
responsibly functionaries for the due discharge of legal justice. What the time
being enforce requires is a cordial and mutually respected Bar and Bench with the
high aspirations of the welfare of the people and the furtherance of the statutory,
fundamental and human rights of the aggrieved individuals, citizens and other
persons. During the course of the interaction between the Bar and the Bench,
they should not forget their own long-lasting dignity as well as the dignity of the
least man whom you can imagine. Our Father of the Nation was also an advocate
and his vision was so. He too was both respected and tried for contempt by the
Judges of then Indian Judiciary.
Contempt of Court

For the concept of

Contempt of Court
, the Contempt of Court Act, 1971 was passed which dealt with such a concept.
Article 129 and 215 of the Constitution of India empowers the Supreme Court and
High Court respectively to punish people for their respective contempt. Section 10
of The Contempt of Courts Act of 1971 defines the power of the High Court to
punish contempt of its subordinate courts. Power to punish for contempt of court
under Articles 129 and 215 is not subject to Article 19(1)(a).

Essentials The elements generally needed to establish a contempt are:1. the

making of a valid court order,2. knowledge of the order by respondent,3. ability of
the respondent to render compliance, and4. wilful disobedience of the order.
Types According to Lord Hardwick, there is a three-fold classification of
Contempt:1. Scandalizing the court itself.2. Abusing parties who are concerned in
the cause, in the presence of court.3. Prejudicing the public before the cause is
heard. However in India contempt of court is of two types:1. Civil Contempt
Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has
been defined as wilfuldisobedience to any judgment, decree, direction, order,
writ or other process of a court or wilful breach of an undertaking given to a
court.2. Criminal Contempt Under Section 2(c) of the Contempt of Courts Act of
1971, criminal contempt has been defined as 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:(i) Scandalizes or tends to
scandalize, or lowers or tends to lower the authority of, any court, or(ii)
Prejudices, or interferes or tends to interfere with the due course of any judicial
proceeding, or(iii) Interferes or tends to interfere with, or obstructs or tends to
obstruct, the administration of 'High Court' means the high court for a state or a
union territory and includes the court of the judicial commissioner in any union
territory. Objectstice in any other manner.
UNIT -3
BENCH BAR RELATION
Bench Bar Relation:
Bar-Bench Relation in law refers to the cordial relationship between the
Advocates and the Judges. The Bar (Advocates) and Bench (Judges) play
an important role in the administration of justice. The judges administer
the law with the assistance of the lawyers. The lawyers are the officers of
the court. They are expected to assist the court in the administration of
justice. As the officers of the court the lawyers are required to maintain
respectful attitude toward the court bearing in mind that the dignity of the
judicial office is essential for the survival of the society. Mutual respect is
necessary for the maintenance of the cordial relations between the Bench
and Bar.
The opinion of our Supreme Court in the context of Bench- Bar Relation
has been clearly laid down in P.D. Gupta v. Ram Murti and Others1
as
follows: "A lawyer owes a duty to be fair not only to his client but also to
the court as well as to the opposite party in the conduct of the case.
Administration of justice is a stream which has to be kept pure and clean.
It has to be kept unpolluted. Administration of justice is not something
which concerns the Bench only. It concerns the Bar as well. The Bar is the
principal ground for recruiting judges. Nobody should be able to raise a
finger about the conduct of a lawyer. Actually judges and lawyers are
complementary to each other. The primary duty of the lawyer is to inform
the court as to the law and facts of the case and to aid the court to do
justice by arriving at the correct conclusions. Good and strong advocacy
by the counsel is necessary for the good administration of justice.
Consequently, the counsel must have freedom to present his case fully

1
AIR 1998 SC 283.
and properly and should not be interrupted by the judges unless the
interruption is necessary."
In Mahant Hakumat Rai v. Emperor2
the Lahore High Court had held
that "Without failing in respect to Bench, it is the duty of the members of
the Bar to assert their just rights to be heard by the tribunal before which
they are practising. They should be fearless and independent in the
discharge of their duties, and would be perfectly right in protesting
against irregular procedure on the part of any judge; and if the advocate
is improperly checked or found fault with, he should vindicate the
independence of the Bar. He would be perfectly justified in insisting on
getting a proper hearing and he would be perfectly right to object to any
interruption with the course of his argument such as to disturb him in
doing his duty to his client. Plenary powers vested in the Presiding Officer
of the Court, apart from the fact that they have rarely been used against
members of the legal profession so far, should only be used to vindicate
the honour of the court or to satisfy the necessities of public justice and
not as a matter of course." It may, however, be noted that the presence
of professional etiquette coupled with recognition by judiciary of the
importance of an independent Bar, will work together to minimize the
possibility of confrontation between the Bench and the Bar.
To conclude this part we can say that, a free and fearless Bar is not to be
preferred to an independent judiciary, nor an independent judiciary to a
free bar. Neither has a primacy over the other. Both are indispensable to
a free society. The freedom of the Bar presupposes an independent
judiciary through which that freedom may, if necessary, be vindicated.
One of the potent means for assuring judges of their independence is
responsible, well- behaved, cultured and, learned Bar. Finally, reciprocal
adjustment of conduct by the Bench and the Bar is the keystone to the
smooth functioning of courts in general interest of the society.

2
AIR 1943 Lahore 14.
Bar Council of India
Introduction
The Bar Council of India is a statutory body established under 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 was created by Parliament under the
Advocates Act, 1961. 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'. In 1963, C. K. Daphtary became the Chairman
and S. K. Ghose became the Vice Chairman. 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.
FUNCTIONS AND POWERS OF BAR COUNCIL OF INDIA:
Section 7 of the Advocates Act provides for the following statutory
functions of the Bar Council of India:
1. To lay down standards of professional conduct and etiquette for
advocates;
2. To lay down the procedure to be followed by its disciplinary
committee and the disciplinary committees of each State Bar
Council;
3. To safeguard the rights, privileges and interests of advocates;
4. To promote and support law reform;
5. To deal with and dispose of any matter which may be referred to it
by a State Bar Council;
6. To exercise general supervision and control over the state bar
council;
7. To promote legal education and to lay down standards of legal
education in consultation with the Universities in India imparting
legal education and the State Bar Councils, With respect to this
point, the Supreme Court has made it clear that the question of
importing legal education is entrusted to the Universities in India
and not to the Bar Council of India. All that the Bar Council can do
is to suggest ways and means to promote suck legal education to
be imparted by the Universities and for that purpose it may lay
down the standards of education. Sections 7 do not entitle the Bar
Council itself to frame rules laying down pre-enrolment as
Advocate;
8. To recognize Universities whose degree in law shall be a
qualification for enrolment for an advocate for that purpose to visit
and inspects Universities, or direct the State Bar Councils to visit
and inspect Universities for this purpose;
9. To conduct seminars and organize talks on legal topics by eminent
jurists and publish journals and papers of legal interest;
10.To organize legal aid to the poor;
11.To recognize on a reciprocal basis foreign qualifications in law
obtained outside India for the purpose of admission as an advocate
in India;
12.To manage and invest the funds of the Bar Council;
13.To provide for the election of its members who shall run the Bar
Councils.
14.To perform all other functions conferred on it or under this Act;
15.To do all other things necessary for discharging the aforesaid
functions;
16.The Bar Council of India may constitute one or more funds in the
prescribed manner –
(a) giving financial assistance to organise welfare schemes for
indigents, disabled or other advocates;
(b) giving legal aid or advise in accordance with the rule made in
this behalf;
(c) establishing law libraries.
17. The Bar Council of India can also receive grants, donations, and
gifts for any of these purposes mentioned under point no 16.
In Ex-Captain Harish Uppal v. Union of India, the court held that
section 7 provides in respect of the functions of the Bar Council of India,
but none of its functions mentioned in section 7 authorizes it to paralyze
the working of the Courts. On the contrary it is enjoined with a duty to lay
down standards of professional conduct and etiquette for advocates. No
Bar Council can ever consider giving a call of strike or a call of boycott. In
case any association calls for a strike or boycott the concerned State Bar
Council of India must immediately take disciplinary action against the
advocates who gives a call for a strike. It is the duty of every advocate to
ignore a call of strike or boycott.
In Raveendranath Naik v. Bar Council of India, AIR 2007 Kar. 75
the court held that the resolution passed by the Bar Council India
directing advocates not to participate in any programme organised by the
Legal Services Authorities in any Lok Adalat or any legal aid programme
has been held illegal and void.
Section 7-A of the Advocates Act makes it clear that the Bar Council of
India may become a member of international legal bodies, such as, the
International Bar Association or the International Legal Aid Association,
contribute such sums as it thinks fit to such bodies by way of subscription
or otherwise and authorize expenditure on the participation of its
representatives in any international legal conference or seminar.
Section 7(2) of the Advocates Act provides that the Bar Council of India
may constitute one or more funds in the prescribed manner for the
purpose of:
(a) giving financial assistance to organize welfare schemes for indigent,
disabled or other advocates;
(b) giving legal aid or advice in accordance with the rules made in this
behalf;
(c) establishing law libraries.
It may receive any grants, donations, gifts or benefactions for all or any
of the purposes specified above such grants, donations, etc., shall be
credited to the appropriate fund or funds constituted under this subsection.
Powers of Bar Council of India:
1. Admission as advocates:
Section 20 of the Advocates Act provides that every advocate who was
entitled as of right to practise 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 role of that State Bar Council and the State Bar Council concerned
shall comply with such direction. The entry in the State Roll made in the
compliance with such direction shall be made in the order of seniority
determined in accordance with the provisions of Section 17(3).Where an
advocate 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 19 of the Advocates Act makes it clear that 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 alternations in and
addition to, any such roll, as soon as the same have been made.
Section 18 of the Advocates Act makes provision in respect of the transfer
of name from one State roll to another. It provides that 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 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 an opportunity of making a representation in this behalf, reject
the application. It has been made clear that where on an application
made by an advocate under this section, 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.
2. Appointment of Committee and Staff-members:
Section 9 of the Advocates Act empowers a Bar Council to appoint
disciplinary committees, It shall constitute one or more disciplinary
committees each which shall consist of three persons of whom two shall
be persons elected by the Council from amongst its member and the
other shall be person co-opted by the Council from amongst advocates
who possess the qualifications specified in the proviso to sub-section (2)
of Section 3 of the and who are not members of the Council and the
senior most advocates amongst the members of a disciplinary committee
shall be the Chairman thereof.
Section 9-A of the Advocates Act empowers a Bar Council to appoint or
more legal aid committees. Each committee shall convert of such number
of members not exceeding nine but not less than five as may be
prescribed. The qualifications, the method of selection and the term of
office the members of such committee shall be such as may be
prescribed.
Section 10(1) makes provisions in respect of constitution of Standing
Committees by a State Bar Council. Besides, Section 10(2) of the
Advocates Act requires the Bar Council of India to constitute the following
committees:-
(1) an executive committee consisting of nine members elected by the
Council from amongst its members;
(2) a legal education committee consisting of ten members, of whom five
shall be persons elected by the Council from amongst its members and
five shall be persons co-opted by the Council who are not members
thereof.
Section 11 of the Advocates Act, requires every Bar Council to appoint a
secretary. It also empowers the Bar Council to appoint an accountant and
such member of other persons on its staff as it may deem necessary. The
secretary and the accountant shall possess such qualifications as may be
prescribed.
According to Section 12 of the Advocates Act every Bar Council shall
cause to be maintained such books of account and other books in such
form and in such manner as may be prescribed. The account shall be
audited by auditors duly qualified to act as auditors of companies under
the Companies Act, 1956 at such times and in such manner as may be
prescribed. Sub-section (3) of Section 12 makes it clear that as soon as
may be practicable at the end of each financial year but not later than the
31st day of December of the year next following, a State Bar Council shall
send a copy of its account together with a copy of the report of the
auditors there on to the Bar Council of India and shall cause the same to
be published in the official Gazette. Sub-section (4) of Section 12
provides, as soon as may be practicable at the end of each financial year
but not later than the 31st day of December of the year next following, the
Bar Council of India shall send a copy of its accounts together with a copy
of the report of the auditors thereon to the Central Government and shall
cause the same to be published in the Gazette of India.
4. Rule-making power:
A Bar Council may make rules under the provisions of Section 15 of the
Advocates Act. Sub-section (2) of Section 15 of the Act provides that in
particular land without prejudice to the generality of the foregoing power,
such rules may provide for:
(a) the election of members of the Bar Council by secret ballot including
the conditions subject to which persons can exercise the right to vote by
postal ballot, the preparation and revision of electoral rolls and the
manner in which the results of election shall he published;
(b) the manner of election of the Chairman and the Vice-Chairman of the
Bar Council;
(c) the manner in which and the authority by which, doubts and disputes
as to the validity of an election to the Bar Council or to the office of the
Chairman or Vice-Chairman shall be finally decided;
(d) the filling of casual vacancies in the Bar Council;
(e) the powers and duties of the Chairman and the Vice-Chairman of the
Bar Council;
(f) the constitution of 'one or more funds by a Bar Council for the purpose
of giving financial assistance or giving legal aid or advice referred to in
Section 6(2) and Section 7(1) of the Advocates Act;
(g) organization of legal aid and advice to the poor, constitution and
function of committees and sub-committees for that purpose and
description of proceedings in connection with which legal aid or advice
may be given;
(h) the summoning and holding of meetings of the Bar Council, the
conduct of business there at and the number of members necessary to
constitute a quorum;
(i) the constitution and functions of any committee of the Bar Council and
the terms of office of members of any such Committees;
(j) the summoning and holding of meetings, the conduct of business of
any such committee and the number of members necessary
to constitute a quorum;
(k) the qualifications and the conditions, of service of the secretary, the
accountant and other employees of the Bar Council;
(l) the maintenance of books of accounts and other books by the Bar
Council;
(m) the appointment of auditors and the audit of the accounts of the Bar
Council;
(n) the management and investment of the funds of the Bar Council.
Sub-section (3) of Section 15 makes it clear that no rules made under this
section by a State Bar Council shall have effect, unless they have
approved by the Bar Council of India.
Section 49 of the Advocates Act confers on the Bar Council of India
general power to make rules. It provides that the Bar Council of India
make rules for discharging its functions under this Act and in particular,
such rules may prescribe:
(a) the conditions subject to which an advocate may be entitled to vote
at an election to the State Bar Council including the qualifications or
disqualifications of voters and the manner in which an electoral roll of
voters may be prepared and revised by a State Bar Council;
(b) qualifications for membership of a Bar Council and the disqualification
for such membership;
(c) the time within which and the manner in which effect may be given to
the proviso to section 3(2).
(d) the manner in which the name of any advocate may be prevented
from being entered in more than one State roll;
(e) the manner in which the seniority among advocates may be
determined;
(f) the minimum qualifications required for admission to a course of
degree in law in any recognized University;
(g) the class or category of persons entitled to be enrolled as advocates;
(h) the conditions subject to which an advocate shall have the right to
practice and the circumstances under which a person shall be deemed to
practice as an advocate in a Court;
(i) the form in which an application shall be made for the transfer of the
name of an advocate from one State roll to another;
(j) the standard of professional conduct and etiquette to be observed by
advocates;
(k) the standards of legal education to be observed by Universities in
India and the inspection of Universities for the purpose;
(l) the foreign qualifications in law obtained by persons other than
citizens of India which shall be recognized for the purpose of admission as
an advocate under this Act;
(m) the procedure to be followed by the disciplinary committee of a State
Bar Council and by its own disciplinary committee;
(n) the restrictions in the matter of practice to which senior advocates
shall be subject;
(0) the form of dresses or robes to be worn by advocates having regard
to the climatic conditions appearing before any Court or tribunal;
(p) the fees which may be levied in respect of any matter under this Act;
(q) general principles for guidance of State Bar Councils and the manner
in which directions issued or orders made by the Bar Council of India may be
enforced;(r) any other matter which may be prescribed.