UNIT 1

I. The Historical development of legal profession and its responsibilities:

(i) Legal Profession in Ancient India:
In India during the earlier period, people live in small groups. The head of these groups or tribes
delivered justice under the open sky before all the members. There was no specialist like a lawyer
during those days. When kingship was established, the king delivered justice. King was advised by
his councillors. The law of those days was rooted in Hindu religion and custom.
From the stories of Maryada Ramayana and Vikramaditya, we are well aware of the wise men who
solved the critical cases of those days. During those days, the sufferer presented complaints before
the king and the king with the help of his religious heads and wise courtier delivered the judgment.
(ii) Legal Profession in Medieval India:
During the Muslim period, there was the existence of the Legal profession, as the party of the
litigation appoints their vakils. This body decides the case and they were paid a percentage of the
amount in the suit. However, in this period the legal profession was not so organized. Vakils
performed their work as an agent for the principal but not as lawyers.
(iii) Legal Profession in British India:
During the British period, the model legal system was developed in India. Before 1726, the courts
derived their power, not from the British Crown but the East India Company.
1. Charter of 1726:
The year 1726 marked the beginning of a new phase in the evolution of judicial institutions
in India. The mayor's courts were established in the presiding towns of Bombay, Calcutta,
and Madras, they were the royal courts. The courts heard all civil suits, action pleas between
parties, they followed the procedure based on English law. But there were no facilities to get
the legal training. Many persons who do not know law were used to practice before the said
courts. The Mayor's court has no jurisdiction in criminal cases. The criminal jurisdiction was
conferred on the governor.
2. Charter of 1753:
It was issued to modify the charter of 1726. This charter also ignored significant provisions
for legal training and education relating to legal practitioners and as such, after this charter
also the legal profession was not organized.
3. Charter of 1774:
The British crown issued a charter in 1774 by which the Supreme Court of judicature was
established at Calcutta. Clause 2 of the Charter empowered the said Supreme Court to
approve and enroll advocates and Attorney-at-law. The Supreme Court had powers to
remove any advocate or Attorney on reasonable cause.
Even the Charter of 1774 didn't provide for the appearance of the Indian Legal Practitioners
to appear and to plead before the Supreme Court.
'Advocate' means British and Irish Barristers.
'Attorney' means the British Attorney or Solicitor.

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 4. The Bengal Regulation Act of 1793:
This act for the first time provided for a regular legal profession for the company's court.
Under the regulation, only Hindu AND Muslims were entitled to be enrolled as pleaders.
5. Indian High Courts Act, 1861:
Under this act, The British Crown issued the Charter to establish one High Court in each
presidency town. The civil Courts were organized in provinces also subsequently.
6. Legal Practitioners Act, 1879:
It was enacted to consolidate and amend the law relating to legal practitioners. It provided
that an Advocate or vakil on the roll of any high Court can practice in all the courts
subordinate to the courts on the role of which he was entered. According to this act, the High
court was empowered to make rules consistent with the act as to suspension and dismissal of
pleaders and mukhtars. Pleaders and Mukhtars were the Indian lawyers, but advocates were
to be the barristers.
7. Indian Bar Committee 1923:
It was constituted under the Chairmanship of Sir Edward Charminar. It was to consider the
issue of the organization of the bar on an Indian basis. The committee didn't favor the
establishment of the All-India Bar Council. It was of the view that a bar council should be
constituted for each High Court. The committee suggested that in all High Court a single
grade of the practitioner should be established, and they should be called Advocates. Further
suggested that the Bar committee should have the power to enquire matters calling for the
disciplinary action against a lawyer and High Court should be given disciplinary power to
punish the guilty.
8. Indian Bar Council Act, 1926:
To give effect to some of the recommendations of the Indian Bar Committee 1923, The
Indian Bar Council Act was enacted in 1926. The main purpose of the act was to provide for
the constitution and incorporation of the Bar Council for certain courts, to confirm powers
and impose duties on such councils and also to consolidate and amend the law relating to
legal practitioners of such courts. A provision was made in the act for the establishment of
the Bar council for every high court. Every Bar Council was to consist of 15 members. Four
of such members were to be nominated by the concerned High Court and 10 of them were to
be elected by the Advocates of the High Court from amongst themselves.
(iv) Legal Profession in India After Independence:
• All India bar Committee, 1951:
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 Council and
State bar Council. It recommended the powers of enrollment, suspension, or the removal of
advocates to the Bar Council. Further recommended that there should be no further
recruitment of non-graduated pleaders or Mukhtars.

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 • Advocates Act, 1961:
The central government enacted the Advocates Act in 1961. This act has been in force in
entire India. It brought revolutionary changes in the legal profession in India. It sets out to
achieve the utility and dignity of the profession of law on an All-India basis. The preamble
of the act says that the act amends as well as consolidates the law relating to legal
practitioners.
II. Seven Lamps of Advocacy:
(i) Honesty: Lawyers are often labelled as liars, but honesty is a crucial quality for a legal
professional. They have a fiduciary duty to act in their client’s best interests and this honesty
should reflect in every aspect of their work. Honesty and straightforwardness entail not
relying on deceit, dishonesty, cheating or any other unethical or criminal behaviour.
Professional misconduct can harm their growth, so lawyers should be pioneers of justice,
providing proper legal guidance to their clients.

(ii) Courage: The nexus between courage and honesty is irrefutable. Refined legal knowledge,
skills and truthfulness enhance the ability to remain fearless under pressure and pain.
Courage is a defined quality of great lawyers attributable to eloquent speech, persuasive
writing and critical thinking. They combine extraordinary work ethics with compassion and
this quality is necessary to be an expert in the field. Lawyers should not back down from
dissenting actions out of fear or danger and should uphold their clients in front of the bench.

(iii) Wit: Wit denotes the capacity to think clearly and express thoughts concisely and cleverly.
Wit is one of the seven lamps of advocacy. It is the keen perception of connections between
ideas that awaken amusement and pleasure. Wit lightens the darkness of advocacy and it is
an essential quality for advocates to possess. Quick-wittedness is crucial in court as a
planned and prepared speech will not help an advocate. It is pertinent to note that law is
often compared to a spider web because it entangles and holds the poor and weak, while the
rich and powerful break through them easily. An advocate must possess sufficient wit to
bridge this gap.

(iv) Industry: Industry recommends that advocates excel at all the required skill sets to sustain or
succeed in the field of law. Law is not static but dynamic, evolving with the needs of society
and adapting to the changing status quo. Pursuant to this, an advocate should update
themselves in compliance with the adage “There is no alternative to hard work.” Law is like
a language that develops with the life of people and as such, it grows and strengthens with
the people. Thus, if the law gets amended in compliance with societal needs, lawyers should
also be acquainted with the latest law.

(v) Eloquence: Eloquence is the art of speaking and plays a pivotal role in assessing the abilities
of an advocate and determining their career success rate. An eloquent speech holds a long-
lasting effect on the bench, clients and listeners. Eloquence is one of the seven lamps of
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 advocacy. Eloquence is not about delivering grandiloquent speeches that sound better than
reality, but rather error-free fluent communication that has a persuasive effect. Fluency of
speech can be developed through acquired knowledge and constant practice. To bring off
this skill, one must notice other parties’ faults, have a presence of mind and be efficient in
argumentation with justification.

(vi) Legal Judgement: The most important quality that an advocate should possess is a legal
judgement. This skill involves the ability to analyse and evaluate the strengths and
weaknesses of a case, anticipate potential counterarguments and identify the turning points
of the case. The legal judgement also entails the responsibility of informing clients of the
true legal status of their case and making the best decisions based on all possible
contingencies.

(vii) Professional Fellowship: While advocates may represent opposing sides in a legal dispute,
they should not allow their professional differences to hinder their ability to maintain a
cordial and respectful relationship. As a result, bar associations require advocates to obtain
membership to encourage professional fellowship and facilitate positive relationships among
legal professionals.

III. Rights & Privileges of a lawyer:

• Rights of Advocates:

1. Right To Freedom Of Speech And Expression : Article 19(1) (a) of the Indian Constitution
provides that the right to freedom of speech and expression is available to all citizens. An
Advocate enjoys this right even in court, unlike other citizens.

2. Right to Practise: It is the right of an Advocate to represent his client in the court of law.
According to Section 30 of the Advocates Act, an Advocate has the right to practice his
advocacy in any court of law in India.

3. Right for Welfare Fund : As per section 15 of the Andhra Pradesh Advocates Welfare Fund
Act, 1987, every advocate practicing in any court in the State becomes a member of the Welfare
Fund.

4. Right of Fee: As per Rule 11 of chapter II of Part VI of the Bar Council of India Rules, he has a
right to a fee consistent with his standing at the bar.

5. Right to enter the Court : An Advocate has the right to sit in the seats provided for advocates,
whether he is having a case or not, and observe the proceedings.

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• Privileges enjoyed by Advocates:

1. Privilege of exemption from arrest : An advocate, while going to the court or during the
proceedings before a Court and while returning from the court, is exempted from civil arrest.
However, this does not apply to arrest for contempt of court or arrests for criminal offenses.

2. Vakalatnama in favor of Advocate : When the client signs Vakalatnama in favor of an

Advocate, such an Advocate gets the exclusive privilege to represent his client in that particular
matter. No other advocate can appear in that case without his consent for the reason of express
prohibition.

3. An Advocate has a liability of Negligence : No action can be taken against the advocate if he
does any negligence.

4. An advocate can review Parliamentary Bills for remuneration: Advocates have the
privilege to review parliamentary bills and suggest amendments too.

Advocate sticker a Privilege?

In India, Advocates tend to stick Advocate Sticker on their cars to evade police actions. It is
pertinent to know that in law there is pertinent to know that in law there is no express provision to
grant privilege to Advocates for use of such stickers. In December 2020 the the Madras High Court
held that misuse of Advocate stickers should stop.

In the case of Sampath Kumar v. Bar Council of India, it was observed by the SC that the right to
practice as an advocate is merely a statutory right and not a fundamental right.

IV. Salient Features of the Advocates Act, 1961:

• Introduction: The Advocates Act of 1961 is a landmark legislation that governs the legal
profession in India. Enacted with the aim of unifying and regulating the legal profession, this Act
has played a crucial role in shaping the legal landscape of the country. It established the Bar
Council of India as the apex regulatory body for advocates and introduced various provisions to
safeguard the interests of both lawyers and clients. In this article, we will delve into the salient
features of the Advocates Act, 1961 and explore how it has empowered the legal profession.

• Salient Features of Advocates Act 1961:

1. Establishment of Bar Council of India (BCI):

One of the key provisions of the Advocates Act, 1961 is the establishment of the Bar Council of
India. The BCI serves as the regulatory authority for advocates in India and is responsible for
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 maintaining professional standards, promoting legal education, and safeguarding the rights and
interests of advocates. It exercises disciplinary control over advocates and ensures ethical
conduct within the legal profession.

2. State Bar Councils:

The Act also provides for the establishment of State Bar Councils in each state of India. These
bodies are responsible for regulating the legal profession within their respective jurisdictions
and are affiliated with the Bar Council of India. State Bar Councils play a crucial role in
enrollment of advocates, maintaining a roll of advocates, and conducting disciplinary
proceedings against errant advocates.

3. Advocates’ Enrollment:
The Advocates Act, 1961 lays down the procedure for the enrollment of advocates. It provides
for a unified process of enrollment, whereby advocates are enrolled with the State Bar Councils.
The Act sets certain eligibility criteria, including educational qualifications and a mandatory
qualifying examination, ensuring that only qualified individuals are admitted to the legal
profession. This provision ensures a minimum standard of competence among advocates and
protects the interests of clients.

4. Standards of Professional Conduct:

The Act enshrines the standards of professional conduct that advocates must adhere to. It
defines the duties and responsibilities of advocates, emphasizing their commitment to the
administration of justice and the client’s interests. Advocates are required to maintain the
dignity of the profession and not engage in any conduct that may compromise their professional
integrity. This provision ensures that advocates uphold the highest ethical standards while
representing their clients.

5. Disciplinary Proceedings:
The Advocates Act, 1961 provides for disciplinary proceedings against advocates who breach
the standards of professional conduct. The Act empowers the Bar Councils to take disciplinary
action, ranging from issuing warnings and reprimands to suspending or removing an advocate
from the roll. This provision ensures accountability within the legal profession and protects
clients from unethical or incompetent advocates.

Conclusion: The Advocates Act, 1961 stands as a significant legislation that has revolutionized the
legal profession in India. By establishing a regulatory framework, it has elevated professional
standards, protected clients’ interests, and empowered advocates to serve as competent and ethical
practitioners of law. The Act’s provisions, such as the establishment of the Bar Council of India,
enrollment procedures, standards of professional conduct, and disciplinary mechanisms, have
played a vital role in shaping a robust legal system in the country. With the Advocates Act, 1961,

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the Indian legal profession has been equipped with the necessary tools to uphold justice, maintain
professionalism, and ensure the rights of individuals are safeguarded.

V. Rules of admission and enrolment of advocates:

The Advocates Act of 1961, Sections 16 to 28, govern the admission and enrollment of advocates.
Section 16 of the Advocates Act categorizes advocates as Senior Advocates or Other Advocates. If
the Supreme Court or a High Court believes that an Advocate's skill, reputation at the Bar, or special
legal knowledge or expertise merit such recognition, the court may designate him as a Senior
Advocate with his consent.

• Advocates Roll: Each State Bar Council is required by Section 17 of the Advocates Act to
create and maintain a list of advocates. It will be divided into two parts. The list of Senior
Advocates is in the first section, and the list of other Advocates is in the second. If more than one
Advocate enrolls on the same day, their names will be listed in the order of their seniority. A
person can only register as an advocate with one Bar Council. The State Bar Council is required
to send an authorized copy of the Advocates Roll whenever a new advocate is added to the roll or
a name is removed from the roll.

• Certificate of Enrollment: According to Section 22 of the Advocates Act, any person whose
name is on the list of advocates that the State Bar Council keeps in accordance with this Act must
obtain a certificate of enrollment in the appropriate form from the State Bar Council.

• Prerequisites for Enrollment: As per Section 24 of the Advocates Act following

requirements mandatory for becoming an Advocate −

• He must be an Indian citizen.

• He must be at least 21 years old.
• He must have completed either a 3-year legal course (regular university studies after
graduation) or a 5-year integrated law course after 10 +2. If the legal degree is from a
foreign university, it must be recognized by the Bar Council of India under the Advocates
Act.
• He must pay any enrollment fees levied by the State Bar Council.
• He must also meet any additional enrollment requirements established by the State Bar
Council.
• Disqualification of Enrolment: A person is ineligible to become an advocate under Section 24
A, which governs enrolment disqualification if they have been convicted of a moral turpitude
offense, found guilty under the Untouchability (Offenses) Act of 1955, fired from government
employment, or otherwise removed due to an allegation of moral turpitude. If an application for
enrolment is denied on any of the aforementioned grounds of disqualification, the State Bar
Council must notify all other State Bar Councils of the fact, including the applicant's name,
address, and reasons for denial, and the applicant will be barred from applying for enrolment.
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• Removal of name from the Roll: In accordance with Section 26-A of the Advocates Act, the
State Bar Council has the authority to remove any advocate's name from the state roll who has
died and for whom a request has been made.

UNIT 2

I. The Bar Council Of India Rules On Standards of professional ethics:

• Professional or other misconduct: Section 49 of the advocates act 1961 empowers the Bar
Council of India to frame rules regulating standards of professional conduct. Accordingly various
duties are prescribed for the advocates some of them are highlighted below.

1. No advertising or soliciting work, it is against an advocate’s code of ethics to solicit or

advertise work and amounts to a misconduct on the part of the advocate. Both direct and
indirect advertising is prohibited. An advocate may not advertise his services through circulars,
advertisements, touts, personal communication or interviews not warranted by personal
relations. Similarly, the following forms of indirect advertising are prohibited:

(i) by issuing circulars or election manifestos by a lawyer with his name, profession and address
printed on the manifestos, thereby appealing to the members of the profession practising in the
lower courts who are in a position to recommend clients to counsel practising in the HC.

(ii) canvassing for votes by touring in the province or sending out his clerk or agents to the various
districts, which must necessarily mean directly approaching advocates practicing in subordinate
courts. Further, the signboard or nameplate displayed by an advocate should be of reasonable size.
It should not refer to details of an affiliated by the advocate i.e. that he is or has been president or
member of a bar council or of any association, or he has been a Judge or an Advocate-General, or
that he specializes in a particular kind of work, or that he is or was associated with any person or
organization or with any particular cause or matter.
2. Not to demand fees for training; An advocate is restrained from demanding any fees for
imparting training to enable any person to qualify for enrolment.
3. Not use name/services for unauthorized practice; An advocate may not allow his
professional services or his name to be associated with, or be used for any unauthorized practice
of law by any lay agency.
4. Not to enter appearance without consent of the advocate already engaged: an advocate is
prohibited from entering appearance in a case where there is already another advocate engaged
for a party except with the consent of such advocate. However if such consent is not produced,
the advocate must state the reasons for not producing it, and may appear subsequently, only
with the permission of the court.
5. Duty to opposite party:- While conducting a case, a lawyer has a duty to be fair not only to his
client but also to the court, and to the opposite party. An advocate for a party must communicate
or negotiate with the other parties regarding the subject matter of controversy, only through the
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 opposite party’s advocate. If an advocate has made any legitimate promises to the opposite
party, he should fulfill the same, even if the promise was not reduced to writing or enforceable
under the rules of the court.
6. Duties of an advocate towards his client: The relationship between a lawyer and a client is
highly fiduciary and it is the duty of an advocate fearlessly to uphold the interests of the client
by fair and honourable means without regard to any unpleasant consequences to himself or any
other person.

The above are only few important code of conduct to be observed by an advocate practicing in
India. According to Justice Abbot Parry, there are seven important qualities that a lawyer should
possess, he call these qualities as seven lamps of advocacy, they are; Honesty, Courage, Industry,
Wit, eloquence, Judgement, and Fellowship. Apart from that the panchsheel of the bar are Honesty,
Industry, Justice, Service and Philisophy and Panchsheel of the bench according to Sri ram Kishore
Rande are, Impartiality, Independence, Integrity and Industry, Judicial activism and Prayer. Among
the various duties of the advocates like, duties to client, court, public, colleagues and self, selected
points can be picked up and arranged according to the due and relative importance and are called as
ten commandments of advocates they are;
a) Duties to client
1) Protection of the interest of the client
2) Proper estimation of the value of legal advices and services
b) Duties to court
3) Honesty and respect
4) Preparation of the case
c) Duties to Public
5) Service
6) Loyalty to law and justice
c) Duties to colleagues
7) Fellowship
8) Fairness
e) Duties to self
9) Systematic study
10) Prudence and deligence

The rules laid down by the Bar Council of India forms the code of conduct for advocates and in
broad sense any violation of such rules or code of conduct can be termed as professional
misconduct. The scope of the term has been still widened by the Supreme Court in various
decisions.

Instances of Misconduct: Legal Practioners act 1879 has not defined the word Misconduct. The
word Unprofessional conduct is used in the act. Even the Advocates Act 1961 has not defined the

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term misconduct because of the wide scope and application of the term. Hence to understand the
instances of misconduct we have to rely on decided cases. Some of the instances of Professional
misconduct are as follows,
1) Dereliction of duty
2) Professional negligence
3) Misappropriation
4) Changing sides
5) Contempt of court and improper behaviour before a magistrate
6) Furnishing false information
7) Giving improper advice
8) Misleading the clients in court
9) Non speaking the truth
10) Disowning allegiance to court
11) Moving application without informing that a similar application has been rejected by another
authority
12) Suggesting to bribe the court officials
13) Forcing the procecution witness not to tell the truth.

• Contempt of Court As Misconduct

In the recent case of B. M. Verma v. Uttrakhand Regulatory Commission court noted that, it was
given the wide powers available with a Court exercising contempt jurisdiction. In the case of Court
of Its Own Motion v. State dealing with the contempt proceedings involving two senior advocates,
observed that ‘given the wide powers available with a Court exercising contempt jurisdiction, it
cannot afford to be hypersensitive and therefore, a trivial misdemeanor would not warrant contempt
action. Circumspection is all the more necessary because as observed by the SC in SC Bar
Association v. Union of India the Court is in effect the jury, the judge and the hangman; while in
M.R. Parashar H. L. Sehgal it was observed that the Court is also a prosecutor Anil Kumar Sarkar v.
Hirak Ghosh, reiterates this.

In the most controversial and leading case of R.K. Ananad v. Registrar of Delhi High Court, On
30th May, 2007 a TV news channel NDTV carried a report relating to a sting operation. The report
concerned itself with the role of a defence lawyer and the Special Public Prosecutor in an ongoing
Sessions trial in what is commonly called the BMW case. On 31st May, 2007 a Division Bench of
this Court, on its own motion, registered a writ Petition and issued a direction to the Registrar
General to collect all materials that may be available in respect of the telecast and also directed
NDTV to preserve the original material including the CD/video pertaining to the sting operation.
The question for our consideration is whether Mr. R.K. Anand and Mr. I.U. Khan, Senior Advocates
and Mr. Sri Bhagwan Sharma, Advocate have committed criminal contempt of Court or not. It was
observed that prima facie their acts and conduct were intended to subvert the administration of
justice in the pending BMW case and in particular to influence the outcome of the pending judicial

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proceedings. Accordingly, in exercise of powers conferred by Article 215 of the Constitution
proceedings for contempt of Court (as defined in Section 2(c) of the Contempt of Courts Act, 1971)
were initiated against Mr. Anand, Mr. Khan and Mr. Sri Bhagwan Sharma and they were asked to
show cause why they should not be punished accordingly. Court said that Courts of law are
structured in such a design as to evoke respect and reverence for the majesty of law and justice. The
machinery for dispensation of justice according to law is operated by the court. Proceedings inside
the courts are always expected to be held in a dignified and orderly manner. The very sight of an
advocate, who was found guilty of contempt of court on the previous hour, standing in the court and
arguing a case or cross-examining a witness on the same day, unaffected by the contemptuous
behaviour he hurled at the court, would erode the dignity of the court and even corrode the majesty
of it besides impairing the confidence of the public in the efficacy of the institution of the courts.
This necessitates vesting of power with the HC to formulate rules for regulating the proceedings
inside the court including the conduct of advocates during such proceedings. That power should not
be confused with the right to practise law. Thus court held that there may be ways in which conduct
and actions of an advocate may pose a real and imminent threat to the purity of court proceedings
cardinal to any court’s functioning, apart from constituting a substantive offence and contempt of
court and professional misconduct. In such a situation the court does not only have the right but also
the obligation to protect itself. Hence, to that end it can bar the advocate from appearing before the
courts for an appropriate period of time. In the present case since the contents of the sting
recordings were admitted and there was no need for the proof of integrity and correctness of the
electronic materials. Finally the Supreme Court upheld High Court’s verdict making Anand guilty
on the same count. On the other hand, the Supreme Court let off I U Khan, who was found guilty by
the High Court.
Cases:
• Harish Chandra Tiwari v. Baiju; Court held on these fact, Appellant Harish Chandra Tiwari
was enrolled as an advocate with the Bar Council of the State of UP in May 1982 and has been
practising since then, mainly in the courts at Lakhimpur Kheri District in UP. Respondent Baiju
engaged the delinquent advocate in a land acquisition case in which the respondent was a
claimant for compensation. The Disciplinary Committee has described the respondent as “an old,
helpless, poor illiterate person.” Compensation of Rs. 8118/- for the acquisition of the land of the
said Baiju was deposited by the State in the court. Appellant applied for releasing the amount and
as per orders of the court he withdrew the said amount on 2.9.1987. But he did not return it to the
client to whom it was payable nor did he inform the client about the receipt of the amount. Long
thereafter, when the client came to know of it and after failing to get the amount returned by the
advocate, compliant was lodged by him with the Bar Council of the State for initiating suitable
disciplinary action against the appellant. Court held that among the different types of misconduct
envisaged for a legal practitioner misappropriation of the client’s money must be regarded as one
of the gravest. In this professional capacity the legal practitioner has to collect money from the
client towards expenses of the litigation, or withdraw money from the court payable to the client
or take money of the client to be deposited in court. In all such cases, when the money of the

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 client reaches his hand it is a trust. If a public servant misappropriates money he is liable to be
punished under the present Prevention of Corruption Act, with imprisonment which shall not be
less than one year. He is certain to be dismissed from service. But if an advocate misappropriates
money of the client there is no justification in de-escalating the gravity of the misdemeanor.
Perhaps the dimension of the gravity of such breach of trust would be mitigated when the
misappropriation remained only for a temporary period. There may be justification to award a
lesser punishment in a case where the delinquent advocate returned the money before
commencing the disciplinary proceedings.

• Informing About Bribe: Shambhu Ram Yadav v. Hanuman Das Khatry, the Court upheld
the order of bar council of India dated 31st July 1999, which held that the appellant has served as
advocated for 50 years and it was not expected of him to indulge in such a practice of corrupting
the judiciary or offering bribe to the judge and he admittedly demanded Rs.10,000/- from his
client and he orally stated that subsequently order was passed in his client’s favour. This is
enough to make him totally unfit to be a lawyer by writing the letter in question. We cannot
impose any lesser punishment than debarring him permanently from the practice .His name
should be struck off from, the roll of advocates maintained by the Bar Council of Rajasthan.
Hereafter the appellant will not have any right to appear in any Court of Law, Tribunal or any
authority. Court impose a cost of Rs. 5,000/- to the appellant which should be paid by the
appellant to the Bar Council of India which has to be within two months.

II. Procedure of complaints against advocates:

As per Section 35 of The Advocates Act 1961, in case an advocate commits a professional
misconduct then he is liable for punishment. One can file a complaint in the Bar Council of the
particular state and if the disciplinary committee of the council finds the complaint to be genuine
then proceedings are initiated against that advocate. So, for initiating the proceedings, a complaint
is the first step taken as per the procedure mentioned below-

• Language of complaint: The complaint against a lawyer must be in the form of a petition. It can
be in English, Hindi or in any regional language that is declared to be a state language. In case,
the complaint is filed in Hindi or any other regional language, it shall be submitted with a copy
of its translation into English.

• Verification of complaint: The complaint must contain the details of the lawyer against whom
the complaint is made as well as the personal details of the petitioner. The details regarding the
name, address, phone number, enrollment number of the lawyer must be there. The complaint has
to be duly signed and verified as required under the Civil Procedure Code (CPC), 1908.

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• Fees and removal of defects in a complaint: Every complaint is to be accompanied by the fees
which are prescribed in the Bar Council of India Rules (i.e. 500 rupees or more, depending upon
the state where the case is filed). These rules have been placed under Section 49 of the Advocates
Act, 1961. The secretary of the Bar Council may require the complainant to pay the fees if the
prescribed fees have not been paid. The secretary can also ask the complainant to remove the
defects as he may find necessary. Moreover, to support the complaint the petitioner is required to
contain an affidavit on a non-judicial stamp paper of Rs 10/- and attest it by the Oath
Commissioner or the Notary. If the complaint is in order, it shall be registered and shall be placed
before the Bar Council for an order to be passed.

• Notice to the lawyer: Once the above proceedings are completed, the complaint is referred to
one of the disciplinary committees of the State Bar Association. Then the registrar shall
efficiently send a notice to the concerned lawyer. The notice asks the lawyer to showcase within
a specified time period. Moreover, it asks the lawyer to submit the statement of defence,
documents and affidavits in support of their defence. In case, the advocate or his representative
do not appear in the court after receiving the showcase notice, then the matter shall be heard and
determined in his absence.

• Date of enquiry: After the notice is sent, the committee discusses whether the complaint is
genuine and there is a requirement for the matter to be investigated. In case, the committee thinks
that the concerned lawyer is liable, then the disciplinary committee of the State Bar Council
chooses a date to hear the matter. The date, hour and place of the enquiry are fixed by the
chairman of the disciplinary committee. The date of enquiry must not be later than 30 days from
the receipt of the reference. The registrar gives the notice regarding the date and time of enquiry
to the complainant, the concerned advocate and the Attorney General or the Additional Solicitor
General of India in whose presence the case is to be decided. The notice may be sent through
messenger or by registered post. The complainant is supposed to pay the cost of the notices
unless the disciplinary committee directs otherwise.

• Appearance: Parties can appear in person or through an advocate who should file a vakalatnama
and give the name of the Bar Council in which he is enrolled, his telephone number and his
residential address. In case either the complainant or the respondent do not appear in an inquiry
before the Committee, then the Committee may proceed with an ex-parte decree. This decree is
passed when either of the parties is absent on the hearing date. It gives power to the judge to pass
an order in favour of the party that is present there. If both the parties are absent then the
complaint is rejected and the petitioner has to file a fresh complaint.

• Record of evidence and proceedings: Every document that is recorded by the Committee as
evidence shall be signed by the Chairman or by any member of the Committee in absence of the
Chairman. Every disciplinary committee has to make a record of its day-to-day proceedings. A
13
 case diary is to be maintained by the registrar in which all the relevant information is to be
recorded. For example, the date of filing, the date for the hearing, details of service of the
notices, statements or petitions filed and other proceedings in matters before the committee. All
the above proceedings are considered to be judicial proceedings. Hence, these are governed
under Section 193 and Section 228 of the Indian Penal Code (IPC), 1860.

• Judgement: The disciplinary committee shall hear and determine the matter. The findings of the
committee along with a reason to support that finding may be given in the form of a judgement.
The registrar shall send a certified copy of the final order to each of the parties in the proceedings
free of charge. The order is to be signed by all the members of the committee and then sent to the
office of the Bar Council. In case the committee believes that the matter should be cross-
examined and must be in the interest of justice, the procedure for the trial of civil suits shall be
followed.

• Grounds on which enquiries are dropped: The enquiries before the disciplinary committee
shall never be dropped solely because it has been withdrawn, settled or otherwise compromised
or the complainant does not wish to proceed with the enquiry. There are certain grounds for the
dropping of enquiries as mentioned below-

1. When the complainant dies during the proceedings of the enquiry and no representative is
there to conduct the case. If this happens then the disciplinary committee, based on the
allegations made and the evidence available, shall make a suitable order either to proceed
with the enquiry or to drop it.

2. When the enquiry is against only one advocate and he dies, the committee shall drop the
proceedings.

3. When the enquiry is against more than one advocate and one of them dies, then the
committee may continue the enquiry against the others unless it decides otherwise.
• Consequences of filing a complaint: After filing a complaint under Section 35 of the Act, the
advocate concerned is given equal opportunity of being heard. After the advocate is heard, the
disciplinary committee of a State Bar Council under Section 35(3) of the same Act may make
any of the following orders-

1. Dismiss the complaint if it does not seems to be a genuine one

2. Initiate the proceedings

3. Reprimand the advocate

4. Suspend the advocate from practice for a particular period

5. Remove the name of the advocate from the State roll of advocates in severe cases
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In another case, the State of Punjab and ors v. Ram Singh ex. Constable [1992], the gunman of the
Deputy Commissioner of Police (the respondent) was found heavily drunk while roaming around
the bus stand wearing a service revolver. He was dismissed from the service due to such an act. He
filed a suit claiming that such dismissal is illegal, ultra vires and opposed to the principle of natural
justice as dismissal can only be done for the gravest act of misconduct. The court restored the order
of dismissal and held that the word ‘misconduct’ does not have a precise definition but it can be
connoted from the context, delinquency in the performance and its effect on the discipline. The
court also has given a list of acts that are considered professional misconduct. They are-

– Moral turpitude;

– Improper or wrongful behaviour;

– A forbidden act;

– Carelessness or negligence in the performance of duty; and

– Disobedience of established set of rules or code of conduct.

• Appeal to the Bar Council of India: If a lawyer’s conduct is unprofessional owing to which the
State Bar Council withdraws the license of that concerned lawyer or awards some other
punishment, he still has a chance to take the matter to the Bar Council of India if he thinks
injustice is done to him.

After an order is passed against an advocate, the Advocate-General of the State may prefer an
appeal to the Bar Council of India within 60 days from the date of the communication of the order.
The appeal to the Council shall be made in the form of a memorandum in writing. Later, the
Registrar of the Bar Council of India shall issue a notice to the State Bar Council for the complete
records to be sent to the Council.

The disciplinary committee of the Bar Council of India then shall hear such appeal and may pass an
order as it deems fit. It has the power to even vary the punishment that was awarded by the
disciplinary committee of the State Bar Council. The committee of the Bar Council of India shall
exercise all the powers that are exercised by the Civil Court or Court of Appeal under C.P.C. The
order that is passed is then communicated to the parties and the Secretary of the State Bar Council
Concerned.

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III. Punishments for misconduct and Remedies against order of punishment:

Section 35 of Advocate Act 1961 provides for punishment for professional misconduct or other
misconduct. In exercise of powers under Section 35 of the Advocate Act, on receipt of a complaint
against an advocate or suo moto, if the State Bar Council has reason to believe that any Advocate on
its roll has been guilty of professional or other misconduct, disciplinary proceedings may be
initiated against him. The Disciplinary Committee of the State Bar Council is empowered to inflict
punishment including removal of his name from the rolls of the Bar Council and suspending him
from practice for a period deemed fit by it, after giving advocate concerned and the Advocate-
General of the state an opportunity of hearing. However, an appeal against the order of the
Disciplinary Committee may be preferred to the bar Council of India under Section 37 and
thereafter to the Supreme Court of India against the order of the Bar Council of India under the
section 38 of Advocate Act, 1961.

The Advocate Act provides remedies against the order of punishment. An advocate aggrieved by
the order of Disciplinary Committee can evoke the following remedies -

1) Review

2) Revision

3) Application for Stay

4) Appeal

1) Review : It is provided in Section 44 of the Advocates Act,1961. By virtue of this Section the
Disciplinary Committee of Bar Council of its own motion or otherwise review any order, within
60 days of the date of order passed by it under this Chapter. However, no such order of Review
of the Disciplinary Committee of a State Bar Council shall have effect, unless it has been
approved by the Bar Council of India.According to Section 48-AA of the Bar Council of India
or any of the its Disciplinary Committee, may on its own motion or otherwise, review any
order, within 60 days of the date of that order, passed by it under the Advocate Act 1961. The
procedure for making review application is given in chapter II, Part VII of the rules of the Bar
Council of India. It is in the form of petition duly signed and supported by an affidavit
accompanied by prescribed fee and certified copy of the order, complained of. Rules For
Review under Section 44 of the Act as follows:
(1) An application for review under Section 44 of the Act shall be in the form of a petition duly
signed and supported by an affidavit accompanied by the prescribed fee and filed within 60 days
from the date of the order sought to be reviewed.
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 (2) Every such application shall be accompanied by :
(a) certified copy of the order complained of.
(b) five additional copies of the application, affidavit and the order; and
(c) if there are more respondents than one, as many additional true copies as may be
necessary.

(3) Every such application shall set out the grounds on which the Review is sought and shall
further state whether any proceeding in respect thereof was filled and is still pending or the result
thereof as the case may be.
(4) If a Disciplinary Committee of Bar Council does not summarily reject the application under
Section 44 of the Act, or wishes to exercise its powers under Section 44 suo motu, the secretary of
a Bar Council shall issue as nearly as maybe in the Form, notice to the parties and to the Advocate-
General concerned or the Additional Solicitor-General of India in the case of the Bar Council of
India.
(5) (1) If after the hearing referred to in rule 4, the Disciplinary Committee of a State Bar Council
does not dismiss the application, and decides that the application for review should be allowed, the
copy of the order along with the relevant record shall be sent to the bar council of India for
approval.
(2) If the Bar Council of India approves the order of the Bar Council, the Disciplinary
Committee of the State Bar Council shall communicate the order to the parties, if the bar council of
India does not approved it, the Disciplinary Committee of the State Bar Council shall make its order
dismissing the application and inform the parties.
(6) The decision of the Disciplinary Committee of the Bar Council of India on an application for
Review of its order shall be communicated to the parties.
(7) In the proceedings under this chapter, unless the disciplinary committee of the State Bar
Council or the Bar Council of India, as the case may be otherwise decides, the parties may appear
by the Advocate who shall file a Vakalatnama signed by the party.

2) Revision Section. 48-A (Amendment 1964 )

1) The Bar Council of India may, at anytime call for the record of proceeding under this Act
which has been disposed of by the State Bar Council or a Committee thereof, and from which no
appeal lies, for the purpose of satisfying itself as to the legality or propriety of such disposal and
may pass such orders in relation thereto as it may think fit.

2) No order which prejudicially affects any person shall be passed under this section without
giving a reasonable opportunity of being heard.

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3) Application for Stay - According to Section 40(1) of the Advocate Act,1961, an Appeal made
under Section 37 or Section 38 shall not operate as a stay of the order appealed against, but the
Disciplinary Committee of India and the Supreme Court as the case may be, may for sufficient
cause direct the stay of such order on such terms and conditions as it may deem fit. Rule 29 of
chapter I Part VII of the Bar Council of India Rules provides that an application for stay shall be
accompanied by an affidavit and the fee prescribed by the Bar Council of India.

4) Appeal -

A) Appeal to the Bar Council of India

B) Appeal to Supreme Court

A) Appeal to the Bar Council of India - In case the order of punishment has been passed by the
Disciplinary Committee of the State Bar Council, an Appeal may be preferred to the Bar Council of
India under Section. 37 of the Advocates Act,1961. It provides that any person aggrieved by an
order of the Disciplinary Committee of a State Bar council made under Section 35, of the Advocate-
General of State may, within 60 days of the date of the communication of the order to him, prefer an
appeal to the Bar Council of India. Under Section 37(2), every such Appeal shall be heard by the
Disciplinary Committee of the Bar Council of India which may pass such order including an order
varying the punishment awarded by the Disciplinary Committee of the State Bar Council thereon as
it deemed fit ;

Provided that no order of the Disciplinary Committee of the State Bar Council shall be varied
by the Disciplinary Committee of the Bar Council of India so as to prejudicially affect the person
aggrieved without giving him a reasonable opportunity of being heard.

B) Appeal to Supreme Court - As per section 38 of the Advocates Act,1961 any person aggrieved
by an order made by the Disciplinary Committee of the Bar Council of India under Section 36 or
Section 37 or the Attorney-General of India or the Advocate-General of the State concerned, as the
case may be, may, within 60 days of the date on which the order is communicated to him, prefer an
appeal to the Supreme Court and the Supreme Court may pass such order including an order
varying the punishment awarded by the disciplinary committee of the Bar Council of India thereon
as it deems fit :

Provided that no order of the Disciplinary Committee of the bar Council of India shall be varied by
the Supreme Court so as to prejudicially affect the person aggrieved without giving him a
reasonable opportunity of being heard .

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 The Bar Council of India has framed the rules as to the procedure to be observed in case of
Appeal. The Appeal memo in a prescribed form to be accompanied with the certified copy of the
order appealed against signed by the appellant with a prescribed fee within limitation period. Delay
can be condoned if satisfactorily explained and to be supported by an affidavit.
Thus, an appeal against the order passed by the Disciplinary Committee may be preferred to the Bar
council of India and an appeal against the order of the Bar council of India may be preferred to the
Supreme Court.

UNIT 3

I. Bench Bar Relationship:

• What does the term Bar mean?

In general, the term Bar represents the synergic group of attorneys who are empowered to practice
in court, or courts of any state. Anyone, who has a Law Degree (from any university) and who is a
member of Bar-Council of India, can be enlisted to be an advocate, thus, such advocates who
practice in the court of law, are considered as BAR.

• What does the term Bench mean?

Legally, the term ‘Bench’ has various meanings. Most importantly, it represents the place where the
judges or the judge of any court normally sit for the hearing of the trial. Secondly, it also represents
the judges of particular court collectively, For Example- Queen’s Bench in England & similarly in
Wales.

Bench-Bar Reciprocity here means the practice of exchanging things, especially powers, privileges
and duties with each other for mutual benefit. Bench & Bar I.e., Judges & Advocates share with
each other their common powers & privileges in order to ensure effective administration &
implementation of justice.

Courts in India basically consists of two parts,

First, the place where the judges sit is called ‘Bench’ &

Second, the place where the advocates stand is called ‘Bar’.

So, the term bench is used to refer to ‘Judges’ & the term Bar is used to refer to ‘Advocates’. Bar-
bench means the cordial relationship among the judges & the advocates. Both Bench & Bar play an
important role in the administration of justice. The Advocates are like administrant of the court,
their duty is to act like an ‘functionary agent’ to the court. The judges are responsible for delivering
justice, but they cannot do so without the help of the lawyers. Similarly, advocates are responsible

19
for presenting their clients, whose rights have been violated and ensuring that they do receive
justice. Both Bench & Bar I.e., judges & Advocates are equally responsible for the administration of
justice. So, there must be mutual respect, understanding & effort.

An Advocate is the member of the Bar Council of India, which is the statutory body established
under Section 4 of Advocates Act, 1961. The function of the Bar Council is to modulate and
regulate legal practice & legal education all around the country. The head of the ‘All India Bar
Committee’ S.R. Das suggested for the establishment of the Bar-Council for each state and All India
Bar-Council as an apex body. The Law Commission along with the All-India Bar committee
collectively introduced the Advocates Act, 1961 in order to ensure proper regulation of the legal
education as well as legal practices, throughout the country. It also stipulates etiquette, code of
conduct, behavior & it also exercises disciplinary jurisdiction over the bar.

RELATIONSHIP OF BAR & BENCH IN ADMINISTRATION OF JUSTICE: The Hon’ble

Supreme Court laid down in the case, P.D. Gupta V. Ram Murti & Others AIR 1988 SC 283: “A
Lawyer owes a duty to be fair not only to his clients but to the court as well as to the opposite party
in the conduct of the case” The Court further stated that “Administration of justice is not something
that concerns the Bench only, it concerns the Bar as well.” The SC in this case, also said that
“Actually judges & lawyers are complementary to each other. The primary duty of the lawyer is to
inform the court as to the law & facts of the case & to do justice by arriving at the correct
conclusions.”

DUTIES OF THE BAR & BENCH:

1. (JUDGES)

The Judge is responsible for providing accurate administration of justice in his court. So, to ensure
proper administration, he himself must fulfil certain duties towards the law. Judges, especially
supreme court’s judge hold power & authority that is immensely greater than any other authority in
our country. Therefore, to ensure that there is no misuse of that power. The judge of SC must follow
some duties. These duties are as follows:

• A judge must not misuse his power.

• A judge should respect the privilege of the Bar.
• A judge must not show partiality; everything he does must be done for the law & justice and
not for the family & friends.
• Judges should be free from ill will, influence of others, partiality etc…..
• He must ensure that justice (economic, social or political) reaches everyone and that too
equally.
• A judge is responsible for maintaining the dignity of the court and its members.

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 • A judge must keep his tone professional & he must not use any kind of bad knowledge while
dealing with any matter.
2. (ADVOCATES)

Advocates are the essence of the courts. They are expected to secure administrative justice in the
courts. Advocates assist the courts in serving justice to all.

Hence, it is important for them to act in a certain manner that will not hamper the system of justice
& equality. Therefore, they must follow aforementioned duties strictly:

• An Advocate must not be involved in any corrupt practices, he must be loyal to the law &
the court as well.
• An Advocate must not use any illegal means in order to change or alter the decisions or
proceedings of the court.\An Advocate has a responsibility to be fair and righteous towards
his client as well as the court.
• His tone must always be professional while dealing with his case & he must not use any
kind of bad knowledge while the case is on trial.
• An Advocate must show respect to the judges & must not attempt contempt of court.
Contempt of court is of various types, for example, threatening the judges, or being
disrespectful or disobedient towards the court or its judges.
• An Advocate must have perfect knowledge of the law he is dealing with. He must always be
prepared.
• The duty of Bar to Bench is to maintain its honor & integrity.
In the words of V. Krishna Iyer “……The Lawyer shall be an instrumentality of the republic in
securing to the whole people as promised in the preamble, Justice Social Economic and Political
and fundamental freedoms and rights incorporated in law….”

BENCH-BAR RECIPROCITY AS PARTNERS IN ADMINISTRATION OF JUSTICE:

• A lawyer, who is a member of Bar Council and hence the judiciary system of India,
represents his clients in the court & has certain responsibilities towards them. He is
responsible for providing pure justice to his clients.
• A lawyer has to perform various functions: As a client’s representative, he represents his
client in the court of law. As an Advocate, he ensures proper delivery of justice. As an
evaluator, he ensures that the clients or individuals are aware of their rights & obligations
and also takes steps to provide victims of crimes with clear procedure for obtaining their
remedy through law.
• An Advocate must be hardworking, prestigious, competent & diligent. A lawyer must be
able to keep in confidence info about the client & only disclose the information permissible
by the law.

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 • A lawyer must solve the conflicts among his professional association with proficiency. His
conduct must be adequate in respect of the court, clients as well as with other advocates.
• A judge should be law-abiding, faithful in actions, loyal by heart, fearless in bravery &
ambitious for justice.
• For proper administration of justice there must be mutual understanding & respect among
these two branches I.e., Bench & Bar. Without cordial relations between these organs a
peaceful atmosphere cannot be created
• Lawyers as well as judges have a very important & crucial role in maintaining the well-
being of society. These roles are crucial for society & can only be fulfilled with a complete
understanding of the relations among them.
• Legal profession demands proficiency, fearlessness, non-biasness. Whether one is a member
of a Bar or Bench, one must stand by what is right & what is wrong, in a cordial manner &
without fear.
• There must be tolerance & understanding on the part of both sides. And neither the judge
nor advocate, neither of them is bigger than law.

UNIT 4
I. The Contempt Of Courts Act, 1971: The term Contempt of Court can be easily understood as
when we are disrespectful or disobedience towards the court of law which means that we
wilfully fail to obey the court order or disrespect the legal authorities. Then the judge has the
right to impose sanctions such as fines or can send the contemnor to jail for a certain period of
time if he is found guilty of Contempt of Court. In India, the concept of Contempt of Court
is defined in Section 2(a) of the Contempt of Courts Act, 1971 which has broadly describe
it as civil contempt or criminal contempt.
There are two Articles in the Constitution of India which talk about the Contempt of Court and
these are Article 129 and Article 142(2) .

• Article 129: Article 129 says that the Supreme Court shall be the ‘Court of Record’ and it has all
the powers of such courts including the power to punish for contempt of itself. Now, we should
know about the meaning of ‘Court of Record’ to understand why anything commented wrongly
against the decision of the courts leads to Contempt of Court. Here, is the answer to this question.
The ‘Court of Record’ means a Court having its acts and proceedings registered for everlasting
memory or that memory which has no end and as evidence or proof. The truth of these records
cannot be questioned and also these records are treated as a higher authority. And anything stated
against the truth of these records comprised Contempt of Court.

• Article 142(2): This article also talks about Contempt of Court. This Article says that when any
law is made by the Parliament on the provisions mentioned in clause 1 of this Article, the
Supreme Court has all the power to make an order for securing any person’s attendance,
production of any documents or has the power to give punishment to anyone for its contempt.

22
This also does not mean that the Supreme Court can do anything against the right of personal liberty
if it has the power to punish for Contempt of Court. We know that it is the guardian of all the rights
that we get from the Indian Constitution so it has to safeguard these rights and cannot violate these
rights itself.

II. Origin of Contempt of Court: The legal system that we see today is the summit of the long
journey which has started from the divine rule that was in proclamation to the natural law and
more further to the positive law that we see today. Contempt of Court is a matter which regards
that justice should be administered fairly and it also punishes anyone who aims to hurt the
dignity or authority of the judicial tribunals. This law has its origin from the medieval times
when the royal powers of the monarch were transferred to the court and at this time the
monarch was believed to be appointed by God and everyone was accountable to him. This
power of accountability clearly depicts the same accountability the Supreme Court possesses
nowadays under Article 129 and 142 of the Indian constitution against its contempt. In the
English medieval ages the Judiciary was an important tool of the Monarch. At that time these
judges and legislatures were representatives of the divine rule monarchy and these judges and
legislatures played an important role in legitimizing the functions of these monarchs. The king
was the superior head of justice and this power he has given to the judicial system and if anyone
or the king himself disrespect or question the courts it became a challenge to the superiority of
the king and as well as to his wisdom. So, this can be seen as although the source of the law has
transformed in the society the unquestionability quality that a king enjoyed was upheld by the
monarchy. There is a case of contempt against J. Almon in the year 1765; a statement was made
by the Irish judge Sir Eardley Wilmot in regard to this contempt attacks on the judges. In this
case, Almon has published a pamphlet libelling the decision of the bench of kings and the
judgment given by the judge had given rise to many questions of several aspects of the judiciary
which had not been questioned yet. This matter gives a great push in the establishment of the
contempt of court. This judgement also recognised that the unbiasedness is also one of the
features of the judiciary in making the decision which makes this institution different from its
peer institutions.

III. History of Law of Contempt in India: Sanyal Committee report deals with the historical
aspect of the Law of Contempt in India. This committee has been responsible for starting the
amendment process in this law. The law of contempt similar to many other laws has been
brought from the English laws and statutes but this law has not been absolutely taken from the
English laws it has other origins too. How has the indigenous development of contempt law
taken place? It can be understood by the age-old system which our country was having to
protect court or assemblies (sabhas) in the past. We know about the philosopher Kautilya, in his
book Arthashastra has written about the governance at that time. He has written that “Any
person who exposes the king or insults his council or make any type of bad attempt on the kings
then the tongue of that person should be cut off.” Adding to this statement, he also said that
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 “When a judge threatens, bully or make silence to any of the disputants in the court then he
should be punished.” Until the year 1952, there were no statutory provisions for the contempt of
court in India but after the enactment of Contempt of Court Act, 1952 statutory provisions for
contempt of court in India has established. This Act extends to the whole of India except Jammu
and Kashmir. This Act gives power to the High Court to punish contempt of the subordinate
court. This Act has repealed the existing law from the Contempt of Court Act, 1926 that was
prevailing in the state of Rajasthan and the state of Saurashtra. Although this Act was extended
to the whole of Bangladesh. It can be surprising knowing that although these Acts have been
introduced earlier then also these Acts do not give the definition of the term ‘Contempt’ and
also there was still a lot of ambiguity present around the law of contempt. This law has to be
dealt with in light of two fundamental rights given by our Indian Constitution and these rights
are (i) freedom of speech and expression and (ii) right to personal liberty. There was a bill
introduced in the Lok Sabha to make any changes or to make the existing law relating to
contempt more strong. This law was introduced by Shri B B Das Gupta on 1st of April 1960.
The government after examining the bill discern the need for reform in the existing Act. So,
they made a special committee to look into the matter or inspect the existing Act. This
committee was set up in 1961, under the chairmanship of H.N. Sanyal which gives its report on
28th February, 1963. The report of this committee took the form of Contempt of Court Act,
1971. The procedure and application of enactment something that was done earlier by the
Contempt of Court Act of 1926 and 1952 was given several changes through the Contempt of
Court Act, 1971. This Act segregates the ‘Contempt of Court’ into criminal and civil contempt
with their definition respectively. This thing was not mentioned in the earlier existing courts.
Now, let us know something about the Contempt of Court Act, 1971.

III. Types of Contempt of Court in India:

Depending on the nature of the case in India, Contempt of Court is of two types.

1. Civil Contempt

2. Criminal Contempt
• Civil Contempt: Section 2(a) of the Contempt of Court Act, 1971 states Civil Contempt as
wilful disobedience to the order, decree, direction, any judgment or writ of the Court by any
person or willfully breach of undertakings by a person given to a Court. Since Civil Contempt
deprives a party of the benefit for which the order was made so these are the offences
essential of private nature. In other words, a person who is entitled to get the benefit of the court
order, this wrong is generally done to this person. There is a case on the willful disobedience of
the court order which a person should know.

- Defences to Civil Contempt

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A person who is accused of Civil Contempt of case can take the following defences:

• Lack of Knowledge of the order: A person can not be held liable for Contempt of Court if
he does not know the order given by the court or he claims to be unaware of the order. There
is a duty binding on the successful party by the courts that the order that has passed should
be served to the Individual by the post or personally or through the certified copy. It can be
successfully pleaded by the contemner that the certified copy of the order was not formally
served to him.
• The disobedience or the breach done should not be : If someone is pleading under this
defence then he can say that the act done by him was not done willfully, it was just a mere
accident or he/she can say that it is beyond their control. But this plead can only be
successful if it found to be reasonable otherwise your plead can be discarded.
• The order that has disobeyed should be vague or ambiguous: If the order passed by the
court is vague or ambiguous or this order is not specific or complete in itself then a person
can get the defence of contempt if he says something against that order. In R.N. Ramaul v.
State of Himachal Pradesh [5], this defence has been taken by the respondent. In this case,
the Supreme Court has directed the corporation of the respondent to restore the promotion of
the petitioner from a particular date in the service. But the respondent has not produced the
monetary benefit for the given period and a complaint was filed against him for Contempt of
Court. He pleads for the defence on the given evidence that it has not mentioned by the court
in order to pay the monetary benefit. Finally, he gets the defence.
• Orders involve more than one reasonable interpretation: If the contempt of any order
declared by the court and the order seems to be given more than one reasonable and rational
interpretation and the respondent adopts one of those interpretations and works in
accordance with that then he will not be liable for Contempt of Court.
• Command of the order is impossible: If compliance of the order is impossible or it can not
be done easily then it would be taken as a defence in the case of Contempt of Court.
However, one should differentiate the case of impossibility with the case of mere
difficulties. Because this defence can be given only in the case of the impossibility of doing
an order.
• Criminal Contempt

According to Section 2(c) of the Contempt of Court Act, 1971, Criminal Contempt is Defined as (i)
the publication of any matter by words, spoken or written, or by gesture, or by signs, or by visible
representation or (ii) doing of any act which includes:

1. a) Scandalize or tends to scandalise, or lowers or tends to lower the authority of any court,
or

25
 2. b) Biasness, interferes or tends to interfere with the due course of any type of Judicial
proceedings, or

3. c) obstructs or tends to obstruct, interfere or tend to interfere with the administration of

justice in any manner.
Case on Scandalizing the Court: Jaswant Singh v. Virender Singh: In this case an advocate
caste derogatory and scandalous attack on the judge of the High Court. An application was filed an
election petitioner in the High Court, who was an advocate. He wanted to seek to stay for further
arguments in an election petition and also the transfer of election petitions. These things cause an
attack on the judicial proceeding of the High Court and had the tendency to scandalize the Court. It
was held in this case that it was an attempt to intimidate the judge of the High Court and cause an
interface in the conduct of a fair trial.

- Punishment for Contempt of Court: Section 12 of the Contempt of Court Act, 1971 deals with
the punishment for Contempt of Court. High Court and the Supreme Court have been given the
power to punish someone for the Contempt of Court. Section 12(1) of this Act states that a
person who alleged with the Contempt of Court can be punished with simple imprisonment and
this imprisonment can extend to six months, or with fine which may extend to two thousand
rupees or can be of both type punishment. However, an accused may be discharged or the
punishment that was awarded to him maybe remitted on the condition that if he makes an
apology and this apology should satisfy the court then only he can be exempted from the
punishment of Contempt of Court. Explanation of this sentence is that if the accused made an
apology in the bona fide then this apology shall not be rejected on the ground that it is
conditional or qualified. The court can not impose a sentence for Contempt of Court in excess of
what is prescribed under the given section of this Act either in respect of itself or of a court
subordinate to it.

IV. Remedies against an order of Punishment: Section 13 has been added in the Contempt of
Court Act, 1971 after amendment in 2006. The new Act may be called The Contempt of Court
(Amendment) Act, 2006. This Section tells that contempt of court cannot be punished under
certain circumstances or certain cases. Clause (a) of Section 13 of the Contempt of Court
(Amendment) Act, 2006 states that no Court under this Act shall be punished for Contempt of
Court unless it is satisfied that the Contempt is of such a nature that it substantially interferes or
tend to substantially interfere with the due course of Justice. Clause (b) of Section 13 of this Act
states that the court may give the defence on the justification of truth if it finds that the act done
in the public interest and the request for invoking that defence is bona fide.

V. Contempt by a Company: In case any person is found guilty of contempt of court for any
undertaking given to a court while he is a member of the company. Then the person who at that
time was in charge of that company will be responsible for the conduct of the business of that
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 company and shall be deemed to be guilty of the contempt. The punishment may be enforced by
the detention in the civil prison of such person with the leave of the court However, that person
can be free from liability if such person proves that the contempt was committed without his
knowledge or that he exercised all possible means to prevent its commission.

Liability of officer of the company: If the contempt of court has been committed by a company
and it is provided that the contempt has been committed with the consent of, or is attributable to any
neglect on the part of, any director, manager, secretary or other officers of the company, then such
persons shall also be deemed to be guilty of the contempt and the punishment will be enforced
against them by the detention in civil prison of such director, manager, secretary or other officer
with the leave of the court.

VI. CONTEMPT OF COURT BY LAWYERS: The uncourteous conduct or misconduct of a

lawyer such as using insulting words against the judge, imposing scandalous allegations on the
judge, hiding or suppressing the facts and evidence for obtaining favorable judgment, hurling a
shoe at the judge, alleging judge to be partial, biased, unfair amounts to contempt of court. A
lawyer who advises his clients to disobey the judgment or the order of the court is guilty of
contempt of court. Further, when a lawyer refuses or ignores to answer the question asked to
him by the court, he is liable for contempt of court. The lawyer in his pleadings or arguments
cannot use language which is intemperate or unparliamentary, which undermines the dignity of
the court. A lawyer who is disrespectful to the judge, questions his authority, shouts or yells at
him, loses his temper in the court, threatens the judge with impeachment or transfer, uses
insulting or abusive language, dictates the judge to pass a favorable judgment, or does any act
that interferes or obstructs the administration of justice amounts to contempt of court.

In re Nandlal Balwani case, 1999, the advocate chanted slogans in court and even hurled his shoe
towards the court. This was taken as gross criminal contempt of court and was punished for the
same. The advocate’s apology was rejected by the court by saying that it was not genuine or
bonafide and was made only to escape punishment.

A lawyer imposing unfounded and false allegations of corruption on the judge, accusing the judge
to be unfair as a ground of appeal to the appellate court, convincing the client to make a false
affidavit, false documents, give false testimony amounts to contempt of court. Moreover, a lawyer
withholding the funds of the client and not giving back even after repeated requests by the client, or
acting as a lawyer without having necessary qualification also amounts to contempt of court.

VII.CONTEMPT BY JUDGES, MAGISTRATES, OR OTHER PERSONS ACTING

JUDICIALLY:

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Section 16 of the Contempt of Court Act, 1971 provides that judges, magistrates, and other
persons acting judicially can also be held liable for contempt of their courts or any other court.
However, this section does not apply to any observation or remark made by the judges or magistrate
relating to any subordinate court in case of any pending appeal or revision of any order or judgment
passed by the subordinate court.

A judge who insults the lawyer or any party to the case he is hearing by his over actions or words
loses the confidence and trust of the people and thereby also interferes in the administration of
justice. A judge during a hearing cannot ask a counsel to get out or leave the courtroom without any
rational reason. Such an act by a judge amounts to contempt of his court.

Article 141 of the Constitution of India provides that the law declared by the Supreme Court
which is the apex court of India is binding on all courts in India. Further, Article 227 states that the
ruling made by the High court shall be binding on all subordinate courts except when a judgment of
the high court conflicts with that passed by the Supreme Court. In case of a subordinate court not
following, ignoring, or disobeying the law laid down by its superior court it amounts to contempt of
the superior court. In case of judge or magistrate of subordinate court purposely ignoring or
avoiding the binding judgment passed by the High Court then he is liable for contempt of court.
When the subordinate court had knowledge of the order or judgment of the High Court and
deliberately disregards it then it may be held liable for contempt.

If the judge or magistrate scandalizes, uses abusive language, acts furiously, lowers the authority of
the court, interferes in the judicial proceeding or administration of justice, or is found accepting any
kind of bribe or illegal gratification for passing favorable judgment is also liable for contempt of
court.

The Judicial Officers Protection Act, 1850, protects the persons acting as judicial officers from
contempt proceedings. The immunity or the protection granted under this Act applies to acts of
Judges, Magistrate, Justice of the peace, Collector, or other persons acting judicially in good faith
within jurisdiction while discharging their duties.

• Justice Karnan’s case: He was the first sitting High Court Judge to be jailed for six months
on the accusation of Contempt of Court. In February 2017, contempt of court proceeding
was initiated against him after he accused twenty Judges of the Higher Judiciary of
Corruption. He wrote a letter to PM Modi against this but he did not provide any evidence
against them.

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 UNIT 5

I. Need for maintenance of accounts for lawyers-

1. To calculate the annual income : To calculate the annual income of the Advocate from the
legal profession, it is necessary to maintain proper accounts of his income from the profession.
Maintaining this account is useful for Advocates also. By knowing his Annual Income , he can
take steps to improve his profession.

2. To Calculate income Tax : Advocates are liable to Pay Income tax for the income derived from
the profession. In order to calculate the amount payable as income tax, he has to maintain
proper accounts relating to his income and expenditure. To calculate the taxable income he is
entitled to deduct certain expenditure like rent, salary, telephone bill and other administrative
expenditure. For this purpose also he has to maintain proper accounts.

3. To calculate professional tax: Every six months the advocates are liable to pay professional
tax to the Government. The amount of professional tax varies depending on the income. In
order to calculate the amount of professional tax he has to maintain the proper accounts.

4. To Ascertain the amount due from the client or due to the client: The account relating to the
amount received from the client and the amount received on behalf of the client from others or
from the court should be properly maintained. Then only the amount due from the client can be
calculated. This will help not only the client but also the Advocate.

II. Books of accounts: Rules Relating to Accounting Under Income Tax Act. Under the Income
Tax Act, every lawyer is required to maintain the following books of accounts and other
documents to enable the Assessing Officer to calculate his total income

i) cash book

(ii) Receipt Voucher

(iii) payment voucher

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(iv) journal

(v) ledger.

The accounting year is 1st April to 31 st March next year.

1. Cash book : It is the book in which the amount received by the Advocates from the clients and
others and the amount spent for the clients are written. This book is useful for the Advocate to know
the amount in his hand on each day.
2. Receipt Voucher : It is the document prepared for recording the receipt of money by cash or
cheque. When an Advocate received money from the client, the Advocate has to issue a receipt to
the client. Advocate shall maintain receipt books with serially numbered receipt forms in duplicate.
The original receipt should be given to the client and the duplicate shall be retained by the
Advocate.
3. Payment Voucher : Payment vouchers are used to record such payments for which receipts are
not obtainable from the person to whom such payments are made. For example bus fare, auto fare,
court fees, stamps, refreshment expenses etc. In such cases the Advocate signature in the payment
voucher and the signature of the person to whom payment is made may be obtained.
4. Journal : Journal is the book of first entry or original entry. In the journal the transactions are
recorded in the order of their occurrence. It should contain the following details

(i) Date of Transactions

(ii) Account to which the transaction relates

(iii) Amount to be debited,

(iv) Amount to be credited

(v) Explanation of the transaction.

5. Ledger : The transactions recorded in the journal are to be posted to the separate heads of
account in other book called as Ledger. In the ledger different pages are allotted to the different
heads of accounts. When the journal entries are posted to the concerned heads of account in the
ledger, the page number of the ledger should be noted in the journal for easy reference.
The ledger account of an advocate shall contain the following heads.
Clients Account : For each and every client separate pages shall be allotted in this ledger and
separate account shall be maintained for them.

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(i) Fees Account : In this account the fees received from each and every client shall be entered
separately. From this account the total amount of fees received from all the clients in a financial
year can be ascertained.
(ii) Rent Account.
(iii) Salary Account.
(iv) Library Account.
(v) Printing and Stationary Account.
(vi) Postage and Telegram Account.
(vii) Electricity Charges.
(viii) Conveyance Charges.
(ix) Repair and Maintenance.
(x) Office Miscellaneous Expenses Account.
At the beginning of the ledger book the index may be given with the name of the different heads of
account and their respective pages for easy reference.

III. Bar council Rules relating to accounting: Accounting is an art of recording, classifying and
summarizing in a significant manner the event which are financial in character and
interpreting the result there of . An Advocate is under a duty to maintain proper accounts of
money received from his client and the amount received on behalf of client from others or
from the court. The rules relating to such accounting is dealt in rules 25 to 32 of the Bar
Council Of India Rules 1975.

Rule 25: An advocate should keep the accounts of the client’s money entrusted to him. The accounts
should show the amounts received from the client, the expenses incurred for him and the debits
made on the account of Advocate fees with the respective dates and all other necessary particulars.

Rule 26 : Where moneys are received from the client, it should be entered whether the amount have
been received for the advocates fees or expenses. Amount received for the expenses shall not be
diverted towards Advocates fees without the consent of the client in writing.

Rule 27: Where any amount is received on behalf of his client the fact of such receipt must be
intimated to the client as early as possible.

Rule 28 : After the completion of the proceeding, the advocate shall be at the liberty to take the
settled fee due to hi to the unspent money in his hand.

Rule 29: Where the fee has been left unsettled, the advocate shall take the fees which he is legally
entitled from the moneys of the client remaining in his hands, after the completion of the
proceeding. The balance shall be returned to the client.
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Rule 30: A copy of the client account shall be furnished to him after getting the necessary copying
charges from him.

Rule 31: An advocate shall not make any agreements whereby client’s funds in his hands are
converted into loans to the advocate.

Rule 32: An Advocate shall not lend money to his client for the purpose of conducting the case.

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