BAR BENCH RELATION

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
superiormost, officers of the court such as persons appointed for examination, commission, receiver etc
come 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 moulded 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 organisation 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
invites 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 Lahore 14 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 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.”
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 counsel
serves 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 not
decide out of fear, when he fears 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 or bias. 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 knowledge 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 otherside 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 set up. 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 in
force 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.

Duties of an Advocate in the Court while dealing with his case

1) As the advocate s are officers of the court, they are required to maintain towards the court
respectful attitude bringing in mind that the dignity of the judicial office is essential for the
survival of the society.

2) an advocate should make his best effort to restrain and prevent his Clint from resorting to
unfair practices in relation to the court

3) an advocate should not influence the decision of the court by any illegal or improper means

4) an advocate should not communicate with a judge relating to pending case

5) an advocate is required to conduct himself with dignity and self-respect during the
presentation of the case

6) an advocate should not consider himself mere mouthpiece of the client and should exercise
his own judgment in the use of restrained language in dealing with the court

7) an advocate should not use intemperate language during arguments in the court .he should
avoid scurrilous attacks in pleadings

8) an advocate should make accurate statement of facts and should not twice them

9) an advocate should not misguide the court by citing knowingly an overruled decision or a
repealed statue

10) an advocate should uphold the dignity and should not do anything which brings the court
into disrepute

“ Judge is a public officer who hears and decides cases, settling the dispute in the
court of law. There is no office in the State of such power as that of the Judge. Judges hold
power which is immensely greater than that of any other functionary.”

Duties of Judges

1) A person who is acting as a Judge in the Court of Law must discharge his duties without fear
or favor, ill will or affection.

2) A Judge must be impartial and must do everything for justice and nothing for himself or his
friends or relatives.

3) A Judge should have patience and gravity of heating. He should allow the advocate or party
fullest opportunity to present case.

4) A Judge should respect the Privilege of Bar.

5) A Judge should sit with a receptive mind. No Judge should form the opinion regarding the
merit of the case till he heard the parties.

6) No Judge Should desire that the Bar Should be servile

7) A Judge must not allow himself to be subjected to any influence other than the influence of
law and justice of the cause.

8) A Judge should avoid a controversial manner or tone in addressing controversial manner or

tone in addressing counsel litigant or witness.

9) A Judge should avoid interruption in the Counsel in their argument and in the examination of
the witness.
10) An important duty which the judge owes to the Bar is of consideration and courtesy. He
should possess calm temper.

Duties of an Advocate towards the Court and Duty to render Legal Aid

An Advocate has greater responsibility to protect the Country and lead the Community
because an Advocate is a privileged member of the community and a gentleman besides beings
a citizen.

Duties of an Advocate :

1 Duties of an advocate towards the court

2 Duties of an advocate towards his colleagues and opponent

3 Duties of an Advocate towards a client

Duty to Render Legal Aid

Every Advocate in the Practice of the profession of law bear in mind that any one
genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it
adequately or fully and that within the limits of an advocates, economic condition, free legal
assistance to the indigent and oppressed is one of the highest obligations an advocate owes to
the society

 An advocate shall establish Legal aid Societies for the purpose of rendering legal
assistance to really poor, backward persons, free of any charge.

 An advocate shall provide legal education to the illiterate and working people by
informing them of their rights and legal provisions in simple language.

 An advocate shall help the local constitutional bodies such as panchayats in village to
function on sound line, so that people may discharge their functions in an enlightened
and responsible manner.

 And Advocate shall compose family differences and settle petty disputes and
controversies by amicable settlement.

Duties of an advocate towards the court

Introduction -

An advocate Shall all times, comport himself in a manner benefiting his status as an
officer of the court. An advocate is a privileged member of the community and a gentlemen
besides being a citizen. He has great responsibility to protect the country and lead the
community.

Duties of an advocate towards the court are as follows -

1) An advocate shall, during the presentation of his case and while otherwise acting before a
court conduct himself with dignity and self-respect. He shall not be servile and whenever there
is proper ground for serious complaint against a judicial officer, it shall be his right and duty to
submit his grievance to proper authorities.

2) An advocate shall maintain towards the court a respectful attitude bearing in mind that the
dignity of the judicial office is essential for the survival of a free community.
3) An advocate shall not influence the decision of a Court by any illegal or improper means.
Private communication with a judge relating to a pending case are forbidden.

4) An advocate shall use his best efforts to restrain and prevent his client from restoring to sharp
or unfair practices or from doing anything in relation to the court, opposing Counsel or parties
which the advocates himself ought not to do. An advocate shall refuse to represent the client
who persists in such improper conduct. He shall not consider himself a mere mouthpiece of the
client, and shall exercise his own judgment in the use of restrained language in correspondence,
avoiding scurrilous attack in pleadings, and using intemperate language during arguments in
court.

5 ) An advocate shall appear in court at all times only in the prescribed dress, and his
appearance shall always be presentable .

6) An advocate shall not enter appearance, act,plead or practice in any way before the court,
tribunal or authority mention in Section 30 of the Act, if the sole or any member thereof is
related to the Advocate as father, mother, grandfather, son, grandson, daughter, sister , father in
law, mother in law , son in law, brother in law , daughter in law or sister in law.

For the purposes of this rule, court shall mean a court bench or tribunal in which above
mentioned relation of an advocate is a Judge , member of the preseding officer.

7) An advocate shall not band or gown in public places other than in courts except on such
ceremonial occasions and as such places as the bar council of India or the court may prescribe.

8) An advocate shall not appear in or before any court or tribunal or any other authority for or
against an organisation or an Institution, society or Corporation, if he is a member of the
executive committee of such organisation or institution or society or Corporation," executive
committee " ,by whatever name it may be called shall include any committee or body of persons
which, for the time being is vested with the general management of the affairs of the
organisation or institution, society or Corporation : provided that this rule shall not apply to
such a member appearing as amicus Curie or without a free on behalf of a bar council,
incorporated law Society or a bar association.

9) An Advocate should not act or plead in any matter in which he himself is pecuniarily
interested.

10) An advocate shall not stand as a surety, or certify the soundness of a surety for his client
required for the purpose of any legal proceedings.

11) An advocate should have sense of humour and pleasing manners in his argument.

12) An advocate should be straight forward and his argument should be pointed, clear precious
and concise

13) An Advocate must be tactful in presenting the matters.

14) An Advocate should not mislead Court.

15) An advocate shall not criticize the Judiciary with malice

What are the duties of an advocate towards his colleagues and opponent ?

The judges administer the law with the participation of advocates as officers of the
court. The Bar and Bench, thus, play an important role in the administration of justice. The
advocates are expected to assist the court in an appropriate manner in the administration of
justice. The legal profession is a branch of administration of justice and is a partner with
judiciary in this context.
An advocate is a Privileged member of the community and gentlemen besides being a
citizen he has greater responsibility to protect the country and lead the community

Duties of an advocate towards his colleagues and opponents are as follows -

A) Duty to Opponent - (Section – III) –

1) An advocate shall not in any way communicate or negotiate upon the subject
matter of controversy with any party represented by an Advocate except through that Advocate.

2) An Advocate shall do his best to carry out all legitimate promises made to the
opposite party even though not reduced to writing or enforceable under the rules of the court.

3) An advocate shall not mislead an opponent, or put him on the wrong scent,
regarding any point in this case.

B) Duty towards Colleagues (Section – IV)–

1) An advocate shall not solicit work or advice directly or indirectly through Mass
Communication.

2) An advocate shall not pursue his profession in spirit of competition or rivalry, with
his brethren.

3) An advocate should be courteous to opposing Counsel and should accede to

reasonable request regarding Court proceedings.

4) An advocate shall not enter appearance in any case in which there is already a
Vakalatnama or Memo of appearance filed by an advocate engaged for a party expect with his
consent.

5) An advocate does not envy another advocate who attains to position and rank and
earns well.

6) An younger advocate must be cordial and relationship and pay respect to senior
advocates.
7) An advocates shall be ready to give help and advice to brother members.
8) An advocate shall strive at all the levels aid the legal profession in advancing the
standard of members of profession.
9) An advocate shall not accept a fee less than taxable under the rules when the client is
able to pay the same.

10) An advocate shall not permit his professional services or his name to be used in aid
or the make possible, the unauthorized practice of law by any lay agency.

Advocate should maintain their high traditions of Fearless Independence, probity and
integrity, and live up to their noble ideals and dedicated lives for the Vindication of truth, and
Justice, and also for good of the common man.
Punishments that can be given to an Advocate under the Advocates Act,1961
for professional misconduct

Before the Enactment of the Advocate Act, 1961 , High court has the Disciplinary
jurisdiction over legal practitioners. The High Court is the competent authority to punish the
advocates for their professional misconduct. But now the Advocate Act, 1961 entrusted this
jurisdiction of dealing misconduct of the advocates to the Bar councils. As the Bar council is a
large body with the multiple activities, it entrusted to their Disciplinary Committees . The
Disciplinary Committees have authority to hold Disciplinary proceedings against the
misconduct of advocates.

The authority to punishment for professional misconduct -

Section 35 of the Advocate Act provides that on receipt of a complaint or otherwise if
a State Bar Council has reason to believe that any advocate on its roll has been guilty of
professional or other misconduct, it shall refer the case for disposal to its Disciplinary
Committee. Section 9 of the Act empowers the State Bar Council to constitute one or more
Disciplinary Committees. The Disciplinary Committee will consist of three members of whom
two shall be persons elected by the council from amongst its members and other shall be a
person co-opted by the council from amongst advocates who passes the qualification specified
in the proviso to sub section (2) of section 3 and who are not members of the Council and the
senior most advocate amongst the members of a Disciplinary Committee shall be the chairman
thereof .
According to Section 35(1-A) of Advocate Act Provides that the State Bar council
may, either of its own motion or on application made by it by any person interested , withdraw
a proceeding pending before its Disciplinary Committee and direct the inquiry to be made by
any other Disciplinary Committee of that State Bar council.

According to section 35(2) of the Advocate Act, the disciplinary committee of a State Bar
council shall fix a date for the hearing of the case and shall cause a notice thereof to be given to
the advocate concerned and the Advocate-General of the State.

Section 35 (3) Provides that the Disciplinary Committee of a State Bar Council after giving the
Advocate concerned and the Advocate General on opportunity of being heard, may make
following orders, namely : -

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

Where an advocate is suspended from practice as per the order of disciplinary

committee he shall during the period of suspension, be debarred from practicing in any court or
before any authority or person in India..

Professional Misconduct

1) Meaning of Misconduct -

Misconduct is the antonyms of conduct. Conduct means behavior with

good manners and treatment shown towards others . Misconduct represents misbehavior.
Misconduct as explained in the Dictionary is 'improper conduct'. The term 'misconduct' has
been defined in Black's Dictionary as 'a transgression of some established and defined rule of
action, a forbidden act , a dereliction of duty, unlawful behavior, wilful in character, improper
or wrong behavior'. Its synonyms are misdemeanor, impropriety, mismanagement,offence , but
not negligence or carelessness.

In State of Panjab V. Ram Singh (AIR 1992, SC 2188) the Supreme Court held that the
term may involve moral turpitude,

An advocate is bound to conduct himself in a manner befitting the high and honorable
legal profession. The legal profession is a noble profession having high traditions. An advocate
is expected to uphold those traditions. He must comply with the conduct of professional ethics
and etiquette as laid down by bar council of India.

2) Meaning of Professional misconduct and other misconduct -

Section 35 of the Advocate makes it clear that an advocate may be punished for
professional misconduct or other misconduct. The terms misconduct and professional
misconduct are not defined In Section 35 or any other provisions of the Advocate Act, 1961.
The expression 'professional or other misconduct' are mentioned in section 10 of Bar councils
Act,1926. by using those words it was made clear that the authority might take action in all
cases of misconduct, whether in professional or other capacity.

Every misconduct may not be Professional or other misconduct. Only unsatisfactory

professional conduct of a substantial, recurring or continuing nature is considered as
professional or other misconduct. Thus a guilty or fraudulent grossly improper conduct of an
advocate in the discharge of his professional duty is considered as professional misconduct.

Professional misconduct is conduct occurring otherwise than in connection with the practice
of law that would justify a finding that its preparation is not of good fame and character or is not
a fit and proper person to remain on the Roll of Legal Practitioners.

Giving of improper Advice and wrong Advice -

It is professionally improper for a member of Bar to prepare false document or

to draw pleadings knowingly that the allegations made are untrue to his knowledge. Thus,
giving of improper legal advice may amount to professional misconduct.

Negligence and Professional misconduct -

Whether negligence will amount professional misconduct or not depends upon

the facts and circumstance of each case.Gross negligence in the discharge of duties partake of
shade of delinquency and would undoubtedly amount to professional misconduct. But
negligence without moral turpitude or delinquency may not amount to professional misconduct.

Moral turpitude -

Moral turpitude is very serious professional misconduct. From section 24-A of the
Advocate Act, it is clear that a person cannot be admitted as an advocate on a State Roll if he is
convicted of an offence involving moral turpitude. Thus a person who is convicted of an offence
involving moral turpitude is disqualified for being admitted as an advocate on the State Roll of
advocates. This means that the conduct involving conviction of an offence moral turpitude
which will disqualify a person from being enrolled as an advocate has to be considered a serious
misconduct.when found to have been committed by a person who is enrolled as an advocate and
it would call for the imposition of punishment of removal of the name of the advocate from the
Roll of Advocates

Types of contempt of courts

Types of contempt of courts -

Section 2(A) of The Contempt of courts Act,1971 , provides that contempt of court means
civil contempt or criminal contempt .
contempt of court classified mainly in two categories
1) Civil contempt of courts,and
2) Criminal contempt of Court

The willful disobedience to the order of court is considered civil contempt, while
the scandalizing or lowering the authority of the court in the public eye is considered criminal
contempt. The classification or categorization of contempt of court into Civil and criminal are
not closed. There are several contempt which do not fall in any of them. for example, undue
delay in pronouncing the order by a judge or judge coming late to the court by amount to
contempt of court, but they are not covered exactly by the definition of classification of
contempt in the act .

1) Civil contempt-
According to section 2 (b) of The Contempt of court Act, 1971, civil contempt means
"willful disobedience to any judgement, decree, direction , order, writ or other process of a
court or willful breach of an undertaking given to the Court . "
Thus Civil contempt consist of disobeying the orders and process of the court .Civil
contempt involves only the willful disobedience of the courts order or breach of undertaking
given to the court. The purpose of the proceeding for the Civil contempt is not only to punish
the container but also to exercise enforcement and obedience to the order of the court .

Civil contempt serves two purposes -

1) Vindication of the public interest by punishment of contemptuous conduct; and

2) coercion to compel the container to do what the court requires of him.

To constitutes 'civil contempt' the following things are required to be proved :

A) there is disobedience of the order, decree etc. of the court or breach of undertaking given to
the court ;and

B) the disobedience of Breach Is Wilful.

For civil contempt it is necessary that order which has been disobeyed must have
been passed by the court having jurisdiction to pass such order. If the order has been passed
without jurisdiction , it is not binding on the party against which it has been Passed by the and
therefore disobedience of such order will not amount to contempt of Court. The burden to prove
that the court has no jurisdiction to pass the order lies on the person who alleges it.

When the court orders a person to do something or not to do something, it is incumbent on

that party to comply with that order forthwith. The person disobeying the order of the court will
alone be responsible for the consequence and he cannot be heard to say that he referred the
matter to his higher officer.
 The breach of undertaking given to the court is also taken as contempt, if it is wilful. the
basis for taking the breach of undertaking as contempt of court is that the container by making a
false representation to the court obtains a benefit for himself and if he fails to Honour the
undertaking, he plays a serious fraud on the Court itself and thereby obstructs the course of
justice and brings disrepute to the judicial institution. But the breach of undertaking recorded
are forming part of compromise decree, would not amount to contempt of court.

For civil contempt , the disobedience of the order, decree, etc .of the court or breach of
undertaking given to The Court Must Be willful . Willful means the action or state for which
compulsion of ignorance or accident cannot be pleaded as excuse, intentional, deliberate, due to
perversity or self-will. To establish that the disobedience is willful , it is not necessary to show
that it is contumacious in the sense that there is a direct intention to disobey the order; it is
sufficient to show that effective administration of justice requires some penalty for disobedience
to the order of the court ,if it is a more than casual, accidental or unintentional .

The reasons of the Civil contempt is willful disobedience to any judgement degree ,
direction, order, or writ of a court, and not Mere inaction to give effect to it . The conduct of the
alleged contemner must be willful showing deliberate and conscious disregard of the court order
. or a despising or disdainful attitude towards the verdict of the court .

If a party who has full knowledge of the order of the court or is conscious and aware of the
consequences and implications of the court's order, ignores it or acts in violation of the courts
order, it must be held that disobedience is willful.

Whether the disobedience has been wilful or not It is an issue to be decided by the court, taking
into account the facts the circumstances of the case.

2) Criminal contempt -

According to Section 2(c) of The Contempt of courts Act, 1971 , "criminal contempt" means the
publication ( whether by words, spoken or written, or by signs ,or by visible representations, or
otherwise) of any matter or the doing of any other Act whatsoever which -

I) scandalize or tends to scandalize, or lower or tends to lower, the authority of any Court ;or

II) prejudice or interfere or tents to interfere with, the due course of any judicial proceeding ; or

III) interface or tends to interfere with or obstructs, tends to obstruct, the administration of
justice in any other manner.

Criminal contempt is a conduct directed against dignity of Court.

Criminal contempt is directed against the power and dignity of the court. The definition of
criminal contempt is wide enough to include any act of a person which would tend to interfere
with the administration of justice or with which would lower to the authority of the court.

To constitute the criminal contempt it is not necessary that the publication or other acts
should have actually resulted in scandalizing or lowering the authority of the court but it is
enough that the act is likely to result in scandalizing. Thus the offense of contempt is complete
by mere attempt and does not depend on actual deflection of Justice .

'Scandalize' connotes to speak falsely, or maliciously, to bring into approach ,dishonor,

disgrace, to offend the feelings, conscious or property of an action. ' scandalize' also means to
offend a moral feeling, and to make a public scandal of, to utter false or malicious reports of a
person's conduct, slander, or to bring same or discredit or to disgrace . We can say that the
disgraceful word scandalize means the defamatory , derogatory, false malicious disgraceful
statements regarding the persons as Judges.

It is for the court to decide whether or not the publication or act is likely to scandalize or
lower the authority of the court or interfere with due course of any judicial proceeding for
administration of justice.

The publication act will be taken as criminal contempt, if it has resulted in scandalizing the
authority of court or interference with the due course of judicial proceedings or interfering the
administration of justice in any matter.

The word ' Publication ' was given very wide meaning . The publication may be by
words written or spoken by sign's or by visible representations or otherwise of any matter. but in
the Act it is not clear as to whether the publication should be taken to mean Publication to the
general public or any kind of Publication.

Scandalizing the court means any hostile criticism of the judge ; any Personal attack on him
unconnected with the office he holds, is dealt with under the ordinary rules of Slender and libel.
The criticism can form the basis for committal of contempt of court only if it is made against
the judge in exercise of his judicial function.

The publication which prejudice or interferes with or tends to interfere with, the due course of
any judicial proceeding is taken as contempt of court . Whenever the publication or any other
act unduly influences the result of a litigation it is treated as criminal contempt of court and a
punished therefore .

If the parties to a pending proceeding are abused and vilified and the words are likely to
cause prejudice to the case, it will amount to contempt of court.

The publication of doing of any other act which interferes or tend to interfere with or
obstructs or tend to obstruct the administration of justice in any of other manner is also taken as
contempt of court .

An Advocate is an officer of the court and hence undue interference with the Advocate in the
discharge of his professional functions amount to contempt of court .

Any conduct by which course or Justice is prevented either by a party or a stranger is a

contempt of court. Any person who interfere or prevent other person from coming to the stream
of justice is he liable for contempt of Court. The Court must be very careful in analyzing the
facts and circumstances of the case for determining whether or not the action taken by a person
amounts to interfere with the course of Justice.

Witnesses are also integral part of the judicial process and they must have freedom to perform
their duties and so interference with performance of their duties is taken as contempt of Court

Abuse of the process of court calculated to hamper the due course hamper of judicial
proceedings or the administration of Justice amounts to contempt of court.

Development of Legal Profession In India

What is Profession?

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

What is the legal profession?

The profession of law is one of the oldest and noblest professions. The person in the
legal profession is called an advocate or lawyer. An advocate is an officer of justice and a friend
of the court. He has to accept a brief for any man who comes before the courts and do what one
can do honorably on behalf of his client. He has to collect legal material relating to the case of
his client had argue in the courts to help the judges to deliver judgments. The central function
that the legal profession must perform is nothing less than the administration of Justice.

An advocate also serves the public by giving legal advice by explaining the
complicated and confusing provisions of different Acts and Rules to citizens who seek his
service.

An advocate assists the parties in drafting the economic transactions like contracts,
agreements, deeds, wills etc.

An advocate also provides professional services regarding taxation and trade

performance.

An advocate should provide free Legal Aid to the poor and deserving people on
compassionate grounds.

An advocate has to protect the fundamental and Human Rights in addition to

propagating them among citizens.

An advocate is the foreigner of the society. He has to fight for law reforms and social
change and at the same time extend his services to maintain law and order.

Development of legal profession in India -

Development of legal profession in India can be divided into three phases are as
follows -

1) Legal profession in ancient India -

2) Legal profession in medieval India -

3) Legal profession in British India -

4) Legal profession in India after independence -

1) Legal profession in ancient India -

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

2) Legal profession in medieval India -

During the Muslim period, there was no Institution of the legal profession. But
both the parties of the litigation appoints their Vakils. This body decides the case and they were
paid a percentage of the amount in the suit. The Court has the power to decide who should be
allowed to appear as Vakils. They act as agent for principals but not as lawyers.

The same system was continued in North India even under the rule of East India
Company.

3) 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 from the East India
Company. The charter of 1661 has already described the English law.

i) Charter of 1726 :

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

ii) Charter of 1753 -

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

iii) Charter of 1774

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

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

Clause II of the Charter of 1774 empowered the said Supreme Court of Judicature
Calcutta to approve and enroll advocates and Attorneys- in-law. They were to be Attorneys of
record. They were authorized to appear and act in the supreme court. The supreme court had
the power to remove any advocate for Attorney on reasonable cause. Indian legal practitioners
were not allowed to enter the supreme court. At that time 'Advocate' means the British and Irish
Barristers and member of the faculty of advocates in Scotland. The term 'Attorney' applied to
the British attorneys or solicitor.

iv) The Bengal Regulation Act of 1793 :

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

v) The Legal Practitioners Act, 1846 -

 The legal practitioners Act 1846 allowed at the people of any nationality or
religion to act as leaders. It also allowed attorneys and barristers enrolled in any of Her
Majesty's courts in India to plead in the company's Sardar Adalat.

The Legal Practitioners Act, 1853 - This Act authorized the barristers and
Attorneys of the Supreme Court to plead in any of the companies courts subordinate to Sadar
court subject to rules in force in the said subordinate courts as regards language or otherwise.

vi) Indian High Court Act, 1861 -

The Indian High Court Act, 1861 empowered the government to establish High
Court in Presidency towns. After the establishment of the High Courts, the Civil Courts were
organized at different towns. The criminal courts were organized by the Criminal Procedure
Code 1898.

vii) Legal Practitioners Act 1879 -

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

Section 5 of the Act says that every person entered as an attorney on the role of any High Court
would be entitled to practice in all the courts subordinate To Such High Courts and in all
revenue offices.

Section 6 of the Act Empowered the High Court to make rules consistent with the Act as to
Suspension and dismissal of pleaders and Mukhtars.

Section 8 empowered the pleader to practice in courts and revenue offices after enrollment.

Section 9 empowered the Mukhtar to practice in the courts after enrollment.

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

Section 14 of the Act made provisions in respect of the procedure when the charge of
professional misconduct was brought in subordinate Court or revenue office.

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

viii) Indian Bar Committee 1923 -

A committee called Indian bar committee under the chairmanship of Sir

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

Indian Bar Council Act 1926 -

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

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

4 ) Legal profession in India after independence -

All India Bar Committee, 1951-

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

Advocate Act 1961 -

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

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

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

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

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

Chapter IV deals with the right to practice chapter.

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

Chapter VI Miscellaneous issues.

Chapter VII deals with the temporary and transitional provisions.

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

The Advocate Act,1961 provides for an autonomous bar council in each state and All
India Bar Council consisting mainly of the representatives of the state bar councils. Under the
act, a state bar council is to enroll the qualified person as advocates and a prepare a roll of
advocates practicing in the state and thereafter a comment roll of advocates for the whole of
India is to be prepared by the bar council of India.
 The Advocates whose Names are entered in the common roll would be entitled as of
right to practice in all courts in India including the Supreme Court.

Advocate Act 1961 amended many times to bring changes with the changing times and
to solve the practical problems.

Senior Advocates and Restrictions of Senior Advocates.

Admission as Senior Advocates -

According to Sec.16 of Advocate Act ,1961-

1) There shall be two classes of Advocates, namely , Senior Advocates and Other
Advocates.

2) An Advocate may, with his consent, be designated as senior advocate if the Supreme
court or A High court is of opinion that by virtue of his ability, standing at the Bar or special
knowledge of experience in law he is deserving of such distinction.

3) Senior Advocate shall, in the matter of their practice , be subject to such restrictions as
the Bar Council of India may, in the interest of the legal profession, prescribe.

4) An Advocate of the supreme court who was a senior advocate of the court immediately
before the appointed day shall, for the purposes of the section, be deemed to be a senior
Advocate.

Provided that were any such senior advocate makes an application before 31 of
December,1965 to the Bar council maintaining the role in which his name has been entered that
he does not desire to continue as a senior advocate , The Bar Council may grant the application
and the role shall be altered accordingly.

Designate an advocate as a senior advocate means recognition of his professional skill

,long standing in the bar, experience and services rendered to the society. An advocate can be
called as senior advocate on the basis of his -
(a) ability ;
(b)long standing at the bar ;
(c) his special knowledge or experience in law ;
(d) confirmation by the supreme court or high court.

Restrictions on Senior Advocates U/S49 (1)(G) -

Under section 49 (1)(g), The Bar council made rules restricting in the matter of parties
to which senior advocates shall be subjected in chapter I of part VI of the bar council Of India
thus :

Senior Advocate shall, in the matter of their practice of the profession of law mentioned in
sectioned in section 30. of the Act be subject to the following restrictions-

First lets see what is Section 30 of the Advocate Act, 1961-

Sec.30 of the Advocate Act 1961 says . Subject to the provisions of this Act ,
every advocate whose name is entered in the state roll shall be entitled as of right to practice
throughout the territories to which this act extends-
 1) In all courts including the Supreme court .
2) Before any tribunal or person legally authorised to take evidence;
3) Before any other authority or person before whom such advocate is by under any law for
the being in force entitle to practice
Restrictions on Senior Advocates -

a) A senior advocate shall not file a vakalatnama or act in any court , or tribunal , or before
any person or other authority mentioned in section 30 of the act .

b) (i) A senior advocate shall not appear without an advocate on on record in the supreme
court without an advocate an advocate of the state roll in any court or any tribunal or before any
person or other authorities mentioned in section 30 of the act.

(ii) where a senior advocate has been engaged prior to the coming into force of the rule in
this chapter shall not continue thereafter unless an advocate in Part II of the state roll is engaged
along with him:
c) He shall not accept instruction to draft pleading or affidavit , advice on evidence or to
do any drafting work of an analogous kind in any court or tribunal , or before any person or
authority mentioned in the section .30 of the act or undertake conveyancing work of any kind
whatsoever. This restriction however shall not extend to settling any such matter as aforesaid in
consultation with an advocate in Part-II of t state roll.

cc) A Senior advocate shall, however, be free to make connections or give undertaking in
the course of arguments on behalf of his clients on instructions from the junior advocates.

d) He shall not accept directly from a client any brief or instructions to appear in any court
or tribunal , or before any person or any other authority in India.

e) S senior advocate who had acted as an advocate (junior) in a case, shall not after he has
been designated as a senior advocate advice on grounds of appeal in a court of appeal in a court
of appeal or in the supreme court , except with an advocate as aforesaid.

f) A senior Advocate may in recognition of the services rendered by an advocate in Part II

of the state roll appearing in any matter pay him a fee which he consider reasonable.

The Constitution, Powers and Functions of a State Bar Council

The Advocate Act, 1961, has made provisions for the establishment of Bar Councils.
The Bar Council will be two patterns - Bar Council of India and State Bar Council. Under
Section 3 of the Act State Bar Council will be established. However, Under Section 4, a Bar
Council of India will be established.

State Bar Councils :

(1) There shall be a Bar Council —

(a) for each of States of Andhra Pradesh, Bihar, Gujarat, Jammu and Kashmir, Jharkhand
Madhya Pradesh, Chhattisgarh, Karnataka, Orissa, Rajasthan Uttar Pradesh and Uttaranchal, to
be known as the Bar Council of that State;

(b) for the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland
and Tripura to be known as the Bar Council of Assam, Nagaland, Meghalaya, Manipur, Tripura,
Mizoram and Arunachal Pradesh.
 (c) for the State of Kerala and the Union territory of Lakshadweep, to be known as the Bar
Council of Kerala;

(cc) for the State of Tamil Nadu and the Union territory of Pondicherry to be known as the
Bar Council of Madras;

(ccc) for the States of Maharashtra and Goa, and the Union territories of Dadra and Nagar
Haveli and Daman and Diu, to be known as the Bar Council of Maharashtra and Goa;

(d) for the States of Punjab and Haryana, and the Union territory of Chandigarh, to be
known as the Bar Council of Punjab and Haryana;

(dd) for the State of Himachal Pradesh, to be known as the Bar Council of Himachal
Pradesh;

(e) for the State of West Bengal and the Union territory of Andaman and Nicobar Islands,
to be known as the Bar Council of West Bengal; and

(f) for the Union territory of Delhi, to be known as the Bar Council of Delhi.

(2) A State Bar Council shall consist of the following members, namely:—

(a) in the case of the State Bar Council of Delhi, the Additional Solicitor General of India
ex officio in the case of the State Bar Council of Assam, Nagaland, Meghalaya, Manipur and
Tripura, the Advocate General of each of the State of Assam, Manipur, Meghalaya, Nagaland
and Tripura, ex officio; in the case of the State Bar Council of Punjab and Haryana, the
Advocate-General of each of the State of Punjab and Haryana, ex officio; and in the case of any
other State Bar Council, the Advocate-General of the State, ex officio;

(b) in the case of a State Bar Council with an electorate not exceeding five thousand,
fifteen members, in the case of a State Bar Council with an electorate exceeding five thousand
but not exceeding ten thousand, twenty members, and in the case of the State Bar Council with
an electorate exceeding ten thousand, twenty-five members, elected in accordance with the
system of proportional representation by means of the single transferable vote from amongst
advocates on the electoral roll of the State Bar Council: Provided that as nearly as possible one-
half of such elected members shall subject to any rules that may be made in this behalf by the
Bar Council of India, be persons who have for at least ten years been advocates on a State roll,
and in computing the said period of ten years in relation to any such person, there shall be
included any period during which the person has been an advocate enrolled under the Indian
Bar Councils Act, 1926 (38 of 1926).

Term of Office of the Members of State Bar Council : Section 8 Provides term of the office
of the Members of the State Bar Council -
The term of office of an elected member of a State Bar Council (other than an
elected member thereof referred to in section 54) shall be five years from the date of publication
of the result of his election:

Provided that where a State Bar Council fails to provide for the election of its member
before the expiry of the said term, the Bar Council of India may, by order for reasons to be
recorded in writing, extend the said term, the Bar Council of India may, by order, extend the
said term for a period not exceeding six months.

Powers and functions of State Bar Council are as under

Functions of State Bar Council :

a) General functions -
Section 6(1) of the Advocate Act 1961 makes provisions in respect of the functions of the State
Bar Council.

Functions of State Bar Councils:-

(1) to admit persons as advocates on its roll;

(2) to prepare and maintain such roll;

(3) to entertain and determine cases of misconduct against advocates on its roll;

(4) to safeguard the rights, privileges and interests of advocates on its roll;

(5) to promote the growth of Bar Associations for the purposes of effective implementation
of the welfare schemes referred to in clause (a) of sub-section (2) of this section clause (a) of
sub-section (2) of section 7;

(6) to promote and support law reform;

(7) to conduct seminars and organise talks on legal topics by eminent jurists and publish
journals and paper of legal interest;
(8) to organise legal aid to the poor in the prescribed manner;

(9) to manage and invest the funds of the Bar Council;

(10) to provide for the election of its members;

(11) to visit and inspect Universities in accordance with the directions given under clause
(i) of sub-section (1) of section 7;

(12) to perform all other functions conferred on it by or under this Act; (i) to do all other
things necessary for discharging the aforesaid functions.

A State Bar Council may constitute one or more funds in the prescribed manner for the purpose
of—

(a) giving financial assistance to organise welfare schemes for the indigent, disabled or
other advocates;

(b) giving legal aid or advice in accordance with the rules made in this behalf;

(c) establishing law libraries.

A State Bar Council may receive any grants, donations, gifts or benefactions for all or any of
the purposes specified in sub- section (2) which shall be credited to the appropriate fund or
funds constituted under that sub-section.
b) To Issue Certificates of Enrollment -

Section 22 of Advocate Act 1961 provides that, There shall be issued a certificate of enrollment
in the prescribed form by the State Bar Council to every person whose name is entered in the
roll of advocates maintained by it under this Act.
Every person whose name is so entered in the State roll shall notify any change in the place
of his permanent residence to the State Bar Council concerned within ninety days of such
change.

Admission as an Advocate on a State Roll -

A person may be enrolled as an advocate by the State Bar Council if he fulfills the
Conditions required for admission as an advocate Under section 24 of the Advocate Act, 1961.
Conditions laid down in this section for admission as an advocate, may be enrolled as an
advocate by the State Bar Council, namely :

a) He is a citizen of India.

b) He has completed the age of twenty one years.

 c) He has obtained the degree of Law.

d) He fulfills such other conditions as may be specified in the rules made by the State Bar
Council.

e) He has paid, in respect of enrollment, stamp duty, and an enrollment fee payable to State
Bar Council.

An application for enrollment shall be made in the prescribed form to the State Bar
Council within whose jurisdiction the applicant proposes to practice. The application is referred
to enrollment Committee of State Bar Council. The application may be allowed or rejected.
Where the Enrollment Committee of Bar Council propose to refuse any such application, it shall
refer such application for the opinion of the Bar Council of India.

It may be noted that Section 26A of Advocate Act empower a State Bar Council by
amendment of 1973 to remove from the State Roll the name of any Advocate who is dead or
from whom a request has been received to that effect.

Section 27 of The Act Provides that where an application has been once refused, it cannot be
entertained by another Bar Council except in certain circumstances. It lays down that where a
State Bar Council has refused the application of any person for admission as an advocate on its
roll, no other State Bar Council shall entertain an application for admission of such person as an
advocate on its roll, except with the previous consent in writing of the State Bar Council which
refused the application and of the Bar Council of India.

c) To Maintain Roll of Advocates -

Section 17. of Advocate Act, 1961 provides that every State Bar Council shall prepare and
maintain a roll of advocates in which shall be entered the names and addresses of all persons
who were entered as advocates on the roll of any High Court under the Indian Bar Councils Act,
1926, immediately before the appointed day including persons, being citizens of India, who
before the 15th day of August, 1947, were enrolled as advocates under the said Act in any area
which before the said date was comprised within India as defined in the Government of India
Act, 1935, and who at any time express an intention in the prescribed manner to practice within
the jurisdiction of the Bar Council also enroll all other persons who are admitted to be
advocates on the roll of the State Bar Council under this Act on or after the appointed date.

Each such roll of advocates shall consist of two parts - the first part containing the names of
senior advocates and the second part, the names of other advocates.

Section 19 of the Advocate Act, 1961, requires the State Bar Council to send copies of rolls of
advocates to the Bar Council of India. It provides 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 alterations
in, the additions to, any such roll, as soon as the same have been made.
Powers of State Bar Council

a) Power to make rules

The State Bar Council has been empowered to make rules to carry on the purposes of
section 16 to Section 27 of the Advocate Act, 196, dealing with the admission and enrollment of
advocate, Section 28(1) provides that the State Bar Council may make rules to carry out the
purposes of chapter III (Section 16 to section 28) of the Act but this rules shall not effective
unless approved by Bar Council of India.

b) Power to punish Advocate

The State Bar Council has Power to punish an advocate for professional misconduct
and other misconduct. The Disciplinary Committee of the State Bar Council may make any of
the following order -

(a)dismiss the complaint or, where the proceedings were initiated at the instance of the
State Bar Council, direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit;
 (d) remove the name of the advocate from the State roll of advocates.

c) To appoint Committees and Staff Members

A bar Council establishes several committees to its function under this Act including
disciplinary committee, executive Committee, Enrollment Committee, etc. Every such
committee is allotted a distinct function to carry.

d) To Maintain Accounts and Conduct Audit

Section 12. of Advocate Act 1961 provides that every Bar Council shall cause to be maintained
such books of accounts and other books in such form and in such manner as may be prescribed.
The accounts of a Bar Council shall be audited by auditors duly qualified to act as auditors of
companies under the Companies Act, 1956 (1 of 1956), at such times and in such manner as
may be prescribed. A State Bar Council 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
The Functions of Bar Council of India

Section 7 of the advocate Act 1961 provides that the functions of Bar Council of India shall be –
A) The functions of bar council of India shall be –

i) to lay down standards of professional conduct and etiquette for advocates; (See
also....Professional Misconduct)

ii) to lay down the procedure to be followed by its disciplinary committee and the disciplinary
committee of each state bar council.

iii) to safeguard the rights, privileges and interests of advocates.

iv) to promote and support law reform.

v) to deal with the disposal of any matter arising under the Act which may be referred to it by a
state bar council.

vi) to exercise general supervision and control over the state bar council.
vii) to promote legal education and to lay down standards of such education in consultation with
the universities in India imparting such education and the state bar council

viii) to recognize universities whose degree in law shall be a qualification for enrollment for an
advocate for that purpose to visit and inspect universities or cause the state bar council to visit
and inspect universities in accordance with such direction as it may be given in this behalf

ix) to conduct seminars and organize talks on legal topics by eminent jurist and publish journals
and papers of legal interest.

x) to organize legal aid to the poor in the prescribed manner

xi) to recognize on a reciprocal basis foreign qualifications in law obtained outside India for the
purpose of admission as an advocate under this Act.

xii) to manage and invest the funds of the bar council.

xiii) to provide for the election of its members

xiv) to perform all other functions conferred on it by or under this Act

xv) to do all other things necessary for discharging the aforesaid functions

2) The bar council of India may constitute one or more funds in the prescribed manner for the
purpose of giving financial assistance to organize welfare schemes for indigent, disabled or
other advocates Giving legal aid or advice in accordance with the rules made in this behalf
establishing law libraries

3) Bar council of India may receive any grants donations, gifts or benefactions for all or any of
the purposes specified in sub-section (2) which shall be credited to the appropriate funds
constituted under the sub section.

According to Section 7 (a) of the Advocate Act, 1961 the Bar Council of India may
become a member of international legal bodies such as the International Bar Association or
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 seminars.

Admission and Enrolment of Advocates

Admission and Enrollment of Advocates-

Advocate is the person who argues in the Court of Justice professionally. for this an
advocate has to enroll in bar council . Every person cannot be enrolled as an advocate in bar
council .

Section 24(1) of Advocate Act, 1961

According to Section 24(1) of the Advocate Act, 1961, a person is qualified to be admitted as
an advocate on a state roll, if he fulfills the following 5 conditions mentioned in a,b, c ,e , f of
section 24 (1)

A) He is a citizen of India .

Read here Who is citizen of India

B) He has completed the age of 21 years .

The person who has not attend the age of 21 years is not eligible to be an advocate. In
the advocate act,1961, there is no other age restriction. Hence the bar council of India's rule
whereby all person who had attained the age of 45 years were not qualified to be enrolled as an
advocates was considered as ultra vires by the supreme court in Indian Council of Legal Aid
and advice vs Bar Council of India ,(AIR1995 Supreme Court 691) .

C ) He has obtained a degree in law -

(I) before the 12th day of March, 1967, from any university in the territory of India ; or

(II) before 15th day of August, 1947 , from any university in area which was comprised before
that date within India as defined by the government of India Act,1935 ;or
(III) after the 12th day of March 1967, save as provided in sub-clause (IIIA), after undergoing a
three years course of study in law from any university in India which is recognized for the
purposes of this act by the bar council of India , ; or

(IIIA) after undergoing a course of study in law, the duration of which is not less than 2
academic years commencing from the academic year 1967-68, or any earlier academic year
from any university in India which is recognised for the purpose of this act by Bar Council of
India; or

(IV) in any other case, from any University outside the territory of India if the degree is
recognised for the purpose of this act by the bar council of India ; or he is a barrister and is
called to the bar bar on or before the 31st day of December, 1976 or has passed the article clerk
examination or any other examination specified by the high court at Bombay or Kolkata for
enrollment as an attorney of the high court or has obtained search order for in qualification in
law as is recognized by Bar Council of India for the purpose of admission as an advocate.

( E ) he fulfills such other conditions as may be specified in the rules made by the state bar
council under this chapter;

(F) he had paid, in respect of enrollment stamp duty, if any chargeable under the Indian stamp
act,1899 and an enrollment fee payable to the state Bar Council of 600 rupees and to the bar
council of India 150 Rupees by way of a bank draft drawn in favour of that council.

Provided that where such a person is a member of the schedule caste or Scheduled
Tribes and produces a certificate to that effect from Such authority as may be prescribed
enrollment fee payable by him to the state bar council shall be 100 rupees and to the bar council
of India 25 rupees .
Explanation -

for the purpose of this sub-section, a person shall be Deemed to have obtained a degree in
law from a university in India on the date on which the results of examination for the degree are
published by the University on it's notice board. or otherwise declaring him to have passed that
examination.
Section 24 (2) -
notwithstanding anything contained in sub-section (1), a Vakil or a leader who is a law
graduate may be admitted as an advocate on state roll if he -

A) makes and application for Such enrolment in accordance with the provisions of this Act, not
later than 2 years from the appointed day and

B) fulfilled the conditions specified in close (A) (D ) (E) and (F ) of sub-section (1)
Section 24 (3) -
notwithstanding anything contained in sub section (1) a person-

A) has for at least 3 years, been a Vakil or a pleader or Mukhtar or was entitled at any time to
be enrolled under any law as an advocate of a High Court( including a high court of a former
Part B state ) or of Council of judicial Commissioner in any union territory; or

AA) before the first day of December,1961, was entitled otherwise than as an advocate to
practice the
profession of law (whether by the way of pleading or acting or both) by virtue of the provisions
of any law or who would have been so entitled he had he not been in public service of the said
date; or

C) before the 1st day of April 1937 ,has been an advocate of any High Court in any area which
was comprised within Burma as defined in the Government of India Act 1935, or

D) is entitled to be enrolled as an advocate under the new rule made by the bar council of India
in this behalf .
maybe admitted as an Advocate on state roll if he -
I) Makes and application for such enrollment in accordance with the provision of the act. and

II) fulfill the conditions specified in clause (A) (D) (E) and (F) of subsection (1).
Chapter VIII of part II of the bar council of India rules gives additional qualification for
enrollment as an advocate thus "any person who has held office as a judge of any High Court in
India may on retirement be admitted as an advocate on the role of any state Council where he is
eligible to practice.
In the case of L.M. Mahurkar vs Bar Council of Maharashtra, the supreme court held that a
person who has not acquired the educational qualifications required for enrollment as an
advocate is not entitled to be enrolled through the person practicing as sales tax practitioner
before enforcement of the Advocate Act 1961, by virtue of the provisions of Bombay sales Tax
act 1959. (AIR 1996 SC 1602)

The supreme court held that the rule imposed by bar council pre enrollment training and
apprenticeship is ultra vires the rule making power of BAR council in V.Sudhir vs Bar
Council of India (AIR 1999 Supreme Court 1167 )

The supreme court held that the rule debaring a person who has completed the age of 45 years is
beyond the rule making power of the bar council of India .(Indian Council of Legal Aid and
advice vs Bar Council of India(AIR 1995 Supreme Court 691).
Prahlad Saran Gupta Vs. Bar Council of India (1997) (Professional
MIsconduct)

Prahlad Saran Gupta Vs. Bar Council of India (1997) (Professional MIsconduct)

Matter- Withholding of amount

The appellant Pralhad Saran Gupta was a practicing lawyer at Ghaziabad of UP. He
was appearing for the decree-holder in a case in the court of civil judge, Ghaziabad.
A complaint was received by the U.P. State Bar Council from Rajendra Prasad alleging him
withholding of Rs 1500/- without paying the decree-holder and with other allegations.

The Bar Council referred the case to it's disciplinary committee but it could not complete
the proceedings within one year and the same was transferred to the Bar Council of India .

The disciplinary committee of Bar Council of India did not find merit in the allegation
in the complaint that the appellant was grossly careless in handling the execution case. however
, the committee found the appellant guilty of gross professional misconduct regarding
withholding RS. 1500/- and imposed the punishment of suspension from practice for a period of
one year .

The appellate appealed the case to the Supreme Court. The Supreme Court found one
charge against the appellant established and that was withholding rs.1500/- rupees which was
handed over to him. The Court imposed the penalty of reprimand on the appellant said
misconduct of wrongfully retaining the amount.

Disqualifications for enrollment as an Advocate

Section 24A which has been inserted by Advocate (Amendment) Act, 1973 lays down
the conditions under which a person shall be disqualified for being enrolled as a member of the
State Bar Council. Originally there were two grounds of Disqualification, 1) For conviction of
an offense under the Untouchability Act, 1955. and; 2) Conviction of an offense involving
moral turpitude. However a third clause has been inserted by the Amendment of 1993 that
dismissal or removal from employment or office under the State on any charge involving moral
turpitude.
The self explanatory provisions of Section 24 A are as follows :
(1) No person shall be admitted as an advocate on a State roll —
(a) if he is convicted of an offence involving moral turpitude;

(b) if he is convicted of an offence under the provisions of the Untouchability (Offences) Act,
1955
(c) if he is dismissed or removed from employment or office under the State on any charge
involving moral turpitude.
Explanation—
In this clause, the expression “State” shall have the meaning assigned to it under Article
12 of the Constitution:
Provided that the disqualification for enrolment as aforesaid shall cease to have effect
after a period of two years has elapsed since his release or dismissal or, as the case may be,
removal.
(2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty is
dealt with under the provisions of the Probation of Offenders Act, 1958.
Apart from the above provisions of disqualification of an advocate the Maharashtra
and Goa Bar Council under Rule 1(1) denies simultaneous practice of another profession
along with the practice law.
See.. Famous case in this respect →→ Dr. Haniraj Chulani Vs. Bar Council of
Maharashtra and Goa
In this case supreme court held that the rule made by the bar council restricting the entry
of person already carried on other profession is not admitted and therefore not violative to the
Article 14, 19(1) (g) and Article 21 of the Constitution.
Origin and Development of Contempt law in India

The Contempt of Court is a serious matter requiring suitable punishment to

uphold the dignity of the court and administration of justice. The power of court to punish for its
contempt was exercised by the court much before the enactment of statutory provisions relating
to the contempt of Court. The existing law relating to the contempt of court is essentially of
English origin and, therefore the study of the scheme of the contempt law in indigenous systems
in India is not of much use for our parents purpose . The indigenous legal systems of India was
based as they were on the concept of a law above the sovereign and his Courts and functioning
as they did, in times when means of communication were slow and publication of anything but
a small scale well nigh impossible neither possessed nor needed anything like elaborate system
of contempt law such as we have now.

There are many kinds of contempt of Courts, such as insult to judges, attacking them,
comments on pending proceedings with a tendency to prejudice trial, obstruction to officers of
Courts, witness or parties abusing the process of Court, breach of Duty by officers of the Courts
and scandalizing Judges of Court.

Meaning and Definition of contempt of Court :

According to Corpus Jurist Secondum, The Contempt of Court is disobedience
to the Court by acting in opposition to the authority, justice and dignity thereof. It also signifies
a wilful disregard or disobedience of the Courts order.

According to Halsbury, " Any act done or writing published which is calculated to bring a
Court or Judge into disrepute or lower his authority or to interfere with the due course of justice
or the Lawful process of the Court is contempt of Court."

In the opinion of Oswald -

contempt of Court may be constituted by any conduct that trends to bring the
authority and admission of law in to disrespect or disregard to to interfere with or prejudice
parties, litigation, their witness during the litigation.

Contempt law in ancient India -

In the ancient times, primarily it was conceived to be the duty of the King to administer
Justice by hearing litigation and in doing so he was directed to take the assistance of Councillors
who were to act assessors or adviser of the King. When the king himself could not preside over
the deliberations of the Court by reason of other avocations, it was directed that he should
appoint a Judge to act as his delegate along with Councillors.

King was fountain of justice, judicial system and code of conduct in all walks of life.
Similarly, whosoever disobeyed decisions or orders or of Court or dictates or Ordinance issued
by King was held to have committed contempt or Avman, or Utkraman, Ullanghan and was
punished. Along with the filing of the plaint the temporary injunction could be obtained and
that was called as Asedhuh an injection was to be obeyed by the defendant till he appeared and
got it vacated. In Katyayan Smriti (104 to 105) there is a mention that in such circumstances,
in case an injection was served on the dependent and it was disobeyed it was punishable.
disobedience of the order of Court was contempt and was punishable.

Punishment was imposed -

For the contempt of court punishment provisions was made, the kinds of
punishment that could be awarded have been mentioned in Narada Smurti (1-47) Smriti
Chandrika as local arrest, temporary arrest, inhibition from traveling and restraining from doing
certain specific acts. The party on whom such restraint was imposed shall not break or disobey
the same.
A person who willfully violated a legal restraint properly imposed rendered himself liable to be
punished and on the other hand, the person who imposed a legal restraint without proper
grounds and under circumstances in which did not justify its imposition made himself liable to
penalty.

It can be thus safely said that the content of the concept of contempt of court was
developed in our judicial system since thousand years, to the date of India was brought under
the foreign law.

Read also.... Punishment for Contempt of Court

Introduction of Contempt law by Britisher in India -
The present law relating to contempt of Court is however, based on the English law
concept. the British courts from the earliest legal history assumed the power of contempt of
court against those who obstructed the administration of justice

In England, the Courts of Record have inherent powers to punish the contempt itself and
also the Court subordinate to it since the advent of judicial system. The Superior Court being
court of Record has inherent power to punish contempt of itself and courts subordinate to it.
Thus the contempt power of the Superior Court does not base on any statutory enactment but on
the common law principle that the concept is inherent in every court of record.
The contempt of law introduced in British India by setting up of the Court of Record
through a charter of 1687 issued by the East India company for the establishment of Mayor's
Court at Madras. Thereafter charter of 1726 occupied and important places in the development
of the administration of justice in India. Before 1726, there was no uniform judicial system in
all three Presidency towns, for example Bombay, Madras and Calcutta. The Mayor court was
reconstituted in 1753 and thereafter also, it remained the court of Record having power to
punish for contempt of Court. Even prior to it, when after 1704, the court of Admiralty ceased
to sit regularly appeals from the Mayor's Court lay to the governor in Council. The admiralty
court and the governor in Council may also be taken as Court of record as they heard appeals
from the Mayors Court of record.
In 1774, the Calcutta Mayor's Court was replaced by Supreme Court established under the
charge for granted in 1774 in 1st year and software regulating act 1773 in the Madras and
Bombay High Court continued till 1797 when they were superseded by the recorders court.
watch a court of record and it has power to punish for content there after the British Parliament
passes and act in 1893 The recorders court was a court of record and as such it had power to
punish contempt.
The Indian High Courts Act, 1861 replaced the Supreme Courts of Calcutta and Madras
by unification of Company's Court and Crowns Courts. The High Court was a Court of record,
had a power to punish for its Contempt.

The first Contempt of Court Act was enacted in the year 1926 which was repealed and
replaced by the Contempt of Courts Act, 1952. The Act of 1952 made some notable changes,
the Act empowered the court of Judicial commissioner to punish the Contempt of court
subordinate to it. It was given to Jurisdiction to inquire into or try a Contempt of itself or any
Court subordinate to it.

However, the Contempt of Court Act, 1952 was not satisfactory as there were certain defects,
for example., The definition of Contempt of Court and defenses available to contemner etc. not
given.
There was no provision as to defenses of innocent Publication, fair and accurate report of
judicial proceedings, fair criticism of judicial decisions etc. Besides these defects, even the Act
did not contain any provision as to Contempt liability of the Judges and other persons acting
Judicially. The Act did not contain any provision to the procedure to be followed in the
Contempt proceeding and as to appeal in contempt cases. The above defects in the Act
compelled the Government to examine the existing Contempt law and to remove out the defects
therein. Accordingly on 1st April, 1960 a bill was introduced in Lok Sabha by Shri Bibhuti
Bhushan Dasgupta who amend the law relating to Contempt of Courts. After considering the
Bill, the Government realized need to Reform the law relating to Contempt of Court, and
Committee was set up by the Government under the Chairmanship of Shri H.N. Sanyal,
Additional Solicitor General of India in July 1961. The entire law on the Contempt of Court
was scrutinized by the Committee and then the Committee submitted its report on 28 February
1963 to Lok Sabha. The Bill was then referred to the joint select committee of the parliament.
The Committee submitted its report on 20 February 1970. The Bill was substantially altered in
the light of the said effect and thereafter, it enacted as the Contempt of Courts Act, 1971. This
act came into force on 24 December 1971 and repealed replaced the earlier Contempt of Court
Act, 1952.
The provisions of this Act extends to the whole India, provided that it shall not apply
to the State of Jammu and Kashmir, except to the extent to which the provisions of this Act
relate to the content of Supreme Court. This Act is not exhaustive code Section 22 of the Act
provides that the provisions of this act shall be in addition and not in derogation of the
provisions of any other law relating to the Contempt of Courts. In this Act the definition of
term, "Contempt of Court" is along with important defenses. The Act makes provisions in
respect of liability of the Judges, Magistrates and other persons acting Judicially. It makes
elaborate provisions in respect of the procedures to be followed in the Contempt proceeding and
also in respect of the Appeal.
Punishment for Contempt of Court.

Punishment for Contempt of Court -

According to Section 12 of The Contempt of courts Act ,1971, the following are the
punishments for the Contempt of court.

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

Provided that the accused may be discharged or the punishment awarded may be remitted on
apology being made to the satisfaction of the court.

Explanation –

An apology shall not be rejected merely on the ground that it is qualified or conditional if the
accused makes it bona fide.

(2) Notwithstanding anything contained in any law for the time being in force, no court shall
impose a sentence in excess of that specified in sub section for any contempt either in respect of
itself or of a court subordinate to it.

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

(4) Where the person found guilty of contempt of court in respect of any undertaking given to a
court is a company, every person who, at the time the contempt was committed, was in charge
of, and was responsible to, the company for the conduct of business of the company, as well as
the company, shall be deemed to be guilty of the contempt and the punishment may be
enforced, with the leave of the court, by the detention in civil prison of each such person.

Provided that nothing contained in this sub section shall render any such person liable to
such punishment if he proves that the contempt was committed without his knowledge or that
he exercised all due diligence to prevent its commission.

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

Explanation –

For the purpose of sub sections (4) and (5)-

(a) “Company ” means any body corporate and includes a firm or other association of
individuals, and

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

S.13 Contempt not punishable in certain cases

According to Section 13 of contempt of courts Act 1971, notwithstanding anything contained in

any law for the time being in force no court shall be impose a sentence under this act for a
Contempt of court unless it is satisfied that the contempt is of such nature that it substantially
interference or tends substantially to interfere with the due course of justice.

S.20 Limitation for actions for contempt

No court shall initiate any proceedings if contempt, either on its own motion or otherwise, after
the expiry of a period of one year from the date on which the contempt is alleged to have been
committed.

Contempt of Courts by Lawyers

The court has power to punish every person, body or authority found guilty
of Contempt of Court. The Contempt jurisdiction is very wide.

The lawyer has to discharge certain duties towards the Court. But sometimes
because of the nature of duties, the lawyers and judges may get into heated dialogue which may
result in contempt of court.

Contempt by lawyers is the most pertinent problem before the Courts these days.
There are several instances of misconduct, which have been taken as contempt of Court. For
example, using insulting language against the judge, making scandalous allegations against a
judge, suppressing the facts to obtain favorable order, allegation of partiality and and unfairness
against the judge, etc. An advocate who advises his clients to disobey the Court is. Also held
liable for contempt Courts. In Bar Council election attacking judiciary is also taken, at contempt
of court if a council, advocate refuses to answer the question of the Court, is also liable for
the contempt of court.

In Re Ajay Kumar Pandey, A.I.R. 1998 S.C.3299 the Supreme Court has held
that an advocate using intemperate language and casting unwarranted aspersion (false report) on
various judicial officers is equality of gross contempt of court for not getting expected results.
Court awarded punishment of sentence to 4 months simple imprisonment and fine Rs.1000 /-
Supreme Court in this case warned that only because a lawyers appear as a party in
Person, he does not get a license to submit content of court , by intimidating the judges or
scandalizing the Court. An Advocate can use language either in pleading or during argument
which is either intemperate or unparliamentary and which has tendency to interfere in the
administration of justice and undermine the dignity of the Court.
In another case Re Vijay Chandra Mishra A.I.R., 1995, SC 2348
Supreme Court held that to resent (to show anger) the question asked by the judge
to be disrespectful to him, to question is authority, to ask question, to shout at him, to threaten
him with transfer and impeachment, to use insulting language, to abuse him to dictate order,
such acts of advocate tends to prevent court from performing its Duty to administer the justice
and hence, are instances of contempt of court.
Narain Das vs Government of Madhya Pradesh AIR 1974 SC 1252.
It has been held that if a wrong or misleading statement is deliberately and willfully
made by the party to a litigation with a view to obtain a favourable order, it would prejudice or
interfere with the due course of the judicial proceedings and thus amount to contempt.
In another case the Municipal Corporation of Greater Bombay vs Shrimati Annattee
Remond Uttanwala (1987) Cr LJ 1038.

An advocate was Personally engaged in earlier litigation involving a particular property

and which has resulted in an eviction order against the client of the Advocate, who suppressed
these fact in the pleading in subsequent proceeding brought by the wife of his client in respect
of the same property and obtained an interim injunction restraining the Municipal Corporation
from interfering with the possession of the wife. Bombay High Court held the Advocate guilty
of contempt .
Justice Sawant of the Bombay High Court delivering the judgement observed that, "the
contemner by suppressing the facts, had fraudulently obtained from the Courts favorable Orders
and had thus prejudiced and interfered with the due course of the judicial proceeding and had
also obstructed the administration of justice. That a false statement made to the court with a
view to obtain a favorable order amounts to contempt of the Court.
Whether boycott of Court or Strike by lawyers amount to Contempt of Court is still a
controversial issue.
Tarini Mohan of pleaders, A.I.R. 1923, Cal 212 :

In this old decided case Calcutta High Court held that the Bombay Council has no power
to call strike of Lawyers and such call amount to contempt of court. It was observed that
boycotting the Court, the advocates violets his duties not only towards the client but also
towards the court. (See also...Duties of an Advocate towards a client)
Many great jurist India writing, expressed their view that there is no justification for the
lawyers to boycott the Court are to participate. It is taken as professional misconduct.

Constitutional validity of the Contempt of Courts Act, 1971

Article 129 of the Constitution of India says that the Supreme Court Shall be a a court of
record and shall have all the powers of such a court including the power to punish for contempt
of itself.

According to article 215 of the Constitution of India, every High Court Shall be court of record
and shall I have all the powers of such a court including the power to punish for contempt of
itself.

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

The state legislature has exclusive power to make laws with respect of any of the matter
or subjects enumerated in list II(State list) of the seventh scheduled of the Constitution .

Entry 77 of the list is as follows-

Constitution , organization, jurisdiction and powers of the Supreme Court
(including contempt for such a court ) and the fees taken therein; persons entitled to practise
before the supreme Court.

Entry15 of list II is as follows " contempt of court but not including contempt of
Supreme Court " .
The legislature is fully competent to legislate with respect to competent of court subject only to
the qualification that the legislature cannot take away the power of the Supreme Court or the
High Court to punish for contempt or vest that power in some other court.

Article 142(2) of the Constitution of India states that the Supreme Court shall have all and
every power to make any order for the purpose of securing the attendance of any person, the
discovery or production of any document, or the investigation or punishment of any contempt of
itself .
According to Article 372 of Constitution of India, all the laws in force in the territory of
India immediately before the commencement of this Constitution shall continue in force therein
until altered or repealed or amended by a competent legislature or other competent authority.
That is why section 22 of the competent of Courts Act 1971, it makes it clear that the provision
of this Act shall be in Addison to and not in derogation of the provision of any other law
relating to contempt of courts.

The contempt of Courts Act is not violation of guarantee of equality and Article 14 as
the classification of a founded on the intelligible differentia which distinguisher persons or
things that are grouped together from other left out of the group and the differentia has a
rational relation to the object thought to be achieved by the statute in question is reasonable.

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

According to clause 10 of the Article 366 the existing law means any law ordinance
order bye- law , rule or regulation passed or made before the commencement of this
Constitution by a legislature, authority or person having power to make such a law., ordinance
bye-law , rule or regulation.
The contempt of law is not violative of article 21 which provides that no person shall be
deprived of his life or personal liberty except according to the procedure established by law as
the existing procedure for contempt proceedings have statutory sanction. Section 10 of the
contempt Act,1971, makes it clear that every High Court shall have and exercise the same
jurisdiction powers and authority in accordance with the same procedure and practice in respect
of contempts of courts subordinate to it as it has and exercise in respect of contempts of itself.
beside this article 225 of the Constitution of India makes provision for its continuity.

Hence on the above grounds, it can be concluded that the contempt of court at 1971 is
not violative of any provision of the Constitution and it is constitutionally valid
Right to Practice under the Advocates Act, 1961

1. Introduction :

According to the Section 29 to 34 of the Advocate Act, 1961, Practice of Advocates is a

right. Section 29 of the Advocate Act, 1961, lays down provisions that "the Advocates are the
only recognized class of persons entitled to practice law". It may be noted that under this
section, only one category of person, the Advocates, are authorized to practice, subject to the
Provisions of this Act. In D.A.S. Swami Vs. Kulbendran AIR 1967 it has been held that a
person who is not an Advocate on the roll of High Court, has no right to represent the accused

2. Right to Practice :

A) Advocates to be the only recognized class of persons entitled to Practice law

(Section.29)

Subject to the provisions of this Act and any rules made thereunder, there shall, as
from the appointed day, be only one class of persons entitled to practice the profession of law,
namely, advocates.

B) Right of Advocates to practice (Article 30)

 Subject to provisions of this Act, every advocate whose name is entered in the State
roll shall be entitled as of right to practice throughout the territories to which this Act extends
—

(i) in all Courts including the Supreme Court;

(ii) before any tribunal or person legally authorized to take evidence; and

(iii) before any other authority or person before whom such advocate is by
or under any law for the time being in force entitled to practice..

C) Advocates alone entitled to practice (Section 33)

Except as otherwise provided in this Act or in any other law for the time being in
force, no person shall, on or after the appointed day, be entitled to practice in any court or
before any authority or person unless he is enrolled as an advocate under this Act.

3.Conditions for Right to Practice

Bar Council of India has framed rules accordingly and Chapter III of the Bar council
of India rules regarding conditions for right to practice provides as follows :

1) Every Advocate shall be under an obligation to see that his name appears in the roll of
State Council within whose jurisdiction he ordinarily practices:

Provided that if an advocate does not apply for transfer of his name to the roll of the
State Bar Council within whose jurisdiction he is ordinarily practicing within 6 months of the
start of the practice, it shall be deemed that he is guilty of professional misconduct within the
meaning of section 35 of the Advocate Act.

2) An advocate shall not enter into a partnership of any other arrangement for sharing
remuneration with any person or legal practitioner who is not an advocate.

3) Every advocate shall keep informed the bar council on the roll of which his name
stands, of every change of his address.

4) The Council or a State Council can call upon an advocate to furnish the name of the
state council on the role of which his name is entered, and call for other particulars.

5) i) An Advocate who voluntarily suspends his practice for any reason whatsoever shall
intimate by registered post to the State Bar Council on the rolls of which his name is entered,
of such suspension together with his certificate of enrollment in original.

ii) Whenever any such advocate who has suspended his practice desires to resume his
practice shall apply to the Secretary of the State Bar Council for resumption of practice along
with an affidavit damping stating whether he has incurred any of the disqualifications under
Section 24A, Chapter III of the Act during the period of suspension.

iii) The Enrollment Committee of State Bar Council may order with the resumption
of his practice and return the certificate to him with necessary endorsement. If the enrollment
committee is of the view that the Advocate has incurred any of the disqualifications the
committee shall refer the matter under proviso to Section 26(1) of the Act.

iv) On Suspension and resumption of his practice the Secretary shall act in terms of
rule 24 of part IX.
6) i) An advocate whose name has been removed by order of the Supreme Court or a
High Court or Bar Council as the case may be, shall not be entitled to practice the profession of
law either before the court or before the authorities mentioned under Section 30 of the Act, or in
Chambers or otherwise.

ii) An advocate who is under suspension shall be under the same disability one in
which he held office.

7) An officer after his retirement or otherwise ceasing to be in service shall not

practice for a period of 2 years in the area in which he exercised jurisdiction for a period of 3
years before his retirement or otherwise ceasing to be in service.

8) No Advocate shall be entitled to practice if in the opinion of the Council he is

suffering from such contagious disease as makes the practice of law hazard to the health of
others. The disqualification shall last for such period as the Council directs from time to time.

4. Advocate Alone entitled to practice

Section 33 of Advocates Act, 1961 provide that except as otherwise provided in

this Act or in any other law for the time being in force, no person shall, on or after the appointed
day, be entitled to practice in any court or before any authority or person unless he is enrolled as
an advocate under this Act. it means advocates alone are entitled to practice in a Court or in any
Authority.

5. Case Law -

Hari Shankar Rastogi vs. Girdhari Sharma AIR 1978 SC 1019 In this the Case Supreme
court has held that a private person who is not an advocate , has no right to barge into Court and
claim to argue for a party.

Remedies against the order of punishment passed by the Disciplinary

Committee

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.

(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.

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 .

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.

Case law

O.N. Mohindro vs District Judge, Delhi , AIR 1971, SC 107

In this case it was held that the appeal to the Supreme Court is not a restricted Appeal. It
is not an appeal on law alone but also on fact. Supreme Court must in all cases go into the
matter to satisfied itself that justice has been done by the Disciplinary Committee Committees.
The Supreme Court possesses under the constitution special power of review and futher may
pass any order to do full and effective justice under section 38 Supreme Court has jurisdiction to
pass in such appeals any order it deems fit

Powers of State Bar Council

Powers of State Bar Council

a) Power to make rules

The State Bar Council has been empowered to make rules to carry on the purposes of
section 16 to Section 27 of the Advocate Act, 196, dealing with the admission and enrollment of
advocate, Section 28(1) provides that the State Bar Council may make rules to carry out the
purposes of chapter III (Section 16 to section 28) of the Act but this rules shall not effective
unless approved by Bar Council of India.

b) Power to punish Advocate

The State Bar Council has Power to punish an advocate for professional misconduct and
other misconduct. The Disciplinary Committee of the State Bar Council may make any of the
following order -

(a)dismiss the complaint or, where the proceedings were initiated at the instance of the
State Bar Council, direct that the proceedings be filed;
(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit;

(d) remove the name of the advocate from the State roll of advocates.

c) To appoint Committees and Staff Members

A bar Council establishes several committees to its function under this Act including
disciplinary committee, executive Committee, Enrollment Committee, etc. Every such
committee is allotted a distinct function to carry.

d) To Maintain Accounts and Conduct Audit

Section 12. of Advocate Act 1961 provides that every Bar Council shall cause to be maintained
such books of accounts and other books in such form and in such manner as may be prescribed.
The accounts of a Bar Council shall be audited by auditors duly qualified to act as auditors of
companies under the Companies Act, 1956 (1 of 1956), at such times and in such manner as
may be prescribed. A State Bar Council 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
Contempt of Court : Defences in Criminal Contempt
1) Introduction :
Any act done or writing published calculated to bring a court or a Judge of the Court into
Contempt or lower his authority, is one class of contempt further , an act done or writing
published calculated to obstruct or interfere with due course of the courts, is another class of the
Contempt of Court.
The purpose of the Contempt jurisdiction of court is, therefore, to uphold the majesty and
dignity of the law Courts and the image of such majesty in the minds of the public cannot be
allowed to be destroyed. An action for contempt is not for the purpose of placing judges in a
position of immunity from criticism but is aimed at protection of the freedom of individual and
the orderly and equal administration of laws. Contempt of Court Act 1971, Section 3 to 7
provides for defenses to the persons charged with Criminal Contempt.
2) Meaning Contempt of Court :
Halsbury Laws of England defines Contempt of Court as , " Any act done or writing
published which calculated to bring a court or Judge into contempt or lowering authority or
inference with due course or lawful process of the court is the contempt of Court.
According to Oswald " Contempt of Court may be said to be constituted by any conduct that
tends to bring the authority and administration of law into disrespect or disregard or to interfere
with or prejudice parties to litigation or their witnesses during the litigation.
The Contempt of Court cannot be defined exhaustively. According Section 2(a) of the
Contempt of Court Act, 1971 Contempt of Courts means, Civil Contempt or Criminal
Contempt.
3) Criminal Contempt :
According to Section 2(c) of the Contempt of Court Act, 1971 “Criminal contempt”
means the publication whether by words, spoken or written, or by signs, or by visible
representation, or otherwise of any matter or the doing of any other act whatsoever which -
(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 justice.
The definition of Criminal Contempt is wide enough to include any act of person which
would tend to interfere with administration of justice or which would lower the authority of the
court. Doctrine mens rea is not applicable and is not essential ingredient of the Criminal
Contempt.
4) Defences In Criminal Contempt :
Section 3 to 7 of the contempt of Court Act 1971, provides for defences to the person charged
with criminal contempt are as follows :
I) Innocent publication and distribution of matter (Section 4)
(1) A person shall not be guilty of contempt of court on the ground that he has published
whether by words, spoken or written, or by signs, or by visible representations, or otherwise any
matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of
justice in connection with criminal proceeding pending at that time of publication, if at that time
he had no reasonable grounds for believing that the proceeding was pending.
(2) Notwithstanding anything to the contrary contained in this Act or any other law for the
time being in force, the publication of any such matter as is mentioned in sub-section (1) in
connection with criminal proceeding which is not pending at the time of publication shall not be
deemed to constitute contempt of court.
 (3) A person shall not be guilty of contempt of court on the ground that he has distributed a
publication containing any such matter as is mentioned in sub-section (1), if at the time of
distribution he had no reasonable grounds for believing that it contained or was likely to contain
any such matter as aforesaid:
Provided that this sub-section shall not apply in respect of the distribution of —
(i) any publication which is a book or paper printed or published otherwise than in
conformity with the rules contained in section 3 of the Press and Registration of Books Act,
1867;
(ii) any publication which is a newspaper published otherwise than in conformity with
the rules contained in Section 5 of the said Act.
Explanation —
For the purposes of this section, a judicial proceeding —
(a) is said to be pending —
(A) in the case of a civil proceeding, when it is instituted by the filing of a plaint or
otherwise;
(B) in the case of a criminal proceeding under the Code of Criminal Procedure,
1898, or any other law —
(i) where it relates to the commission of an offence, when the charge-sheet or challan is
filed, or when the court issues summons or warrant, as the case may be, against the accused, and
(ii) in any other case, when the court takes cognizance of the matter to which the
proceeding relates, and in the case of a civil or criminal proceeding, shall be deemed to continue
to be pending until it is heard and finally decided, that is to say, in a case where an appeal or
revision is competent, until the appeal or revision is heard and finally decided or, where no
appeal or revision is preferred, until the period of limitation prescribed for such appeal or
revision has expired;
(iii) which has been heard and finally decided shall not be deemed to be pending merely
by reason of the fact that proceedings for the execution of the decree, order or sentence passed
therein are pending.
II) Fair and accurate report of judicial proceeding not contempt (Section 4)
Subject to the provisions contained In section 7, a person shall not be guilty of
contempt of court for publishing a fair and accurate report of a judicial proceeding or any state
thereof.
III) Fair criticism of judicial act not contempt (Section 5)
A person shall not be guilty of contempt of court for publishing any fair comment on the
merits of any case which has been heard and finally decided.
IV) Bona fide Complaint against presiding officers of subordinate courts (Section 6)
A person shall not be guilty of contempt of court in respect of any statement made by him
in good faith concerning the presiding officer or any subordinate court to –
(a) Any other subordinate court, or
(b) The High court to which it is subordinate.
Explanation – In this section, ”subordinate court” means any court subordinate to a High court.
V) Publication of information relating to proceeding in chambers or in camera not
contempt except in certain cases (Section 7)
(1) Notwithstanding anything contained in this Act, a person shall not be guilty of contempt
of court for publishing a fair and accurate report of a judicial proceedings before any court
sitting in chambers or in camera except in the following cases, that is to say -
(a) Where the publication is contrary to the provisions of any enactment for the time
being in force.
(b) Where the court, on grounds of public policy or in exercise of any power vested in
it, expressly prohibits the publication of all information relating to the proceeding or of
information of the description which is published.
(c) Where the court sits in chambers or in camera for reason connected with public
order or the security of the State, the publication of information relating to those proceedings,
(d) Where the information relates to secret process, discovery or invention which is an
issue in the proceedings.
(2) Without prejudice to the provisions contained in sub section (1) a person shall not be
guilty of contempt of court for publishing the text or a fair and accurate summary of the whole,
or any part, of an order made by a court sitting in chambers or in camera, unless the court has
expressly prohibited the publication thereof on grounds of public policy, or for reasons
connected with public order or the security of the State, or on the ground that it contains
information relating to secret process, discovery or invention, or in exercise of any power vested
on it.
VI) Contempt not punishable in certain cases (Section 13)
Section 13 of the Contempt of Court Act, 1971 provides that notwithstanding
anything contained in any law for the time being in force no court shall impose a sentence under
this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it
substantially interferes, or tends substantially to interfere with the due course of justice.
In order to constitute Criminal Contempt, it is not necessary that there should be an actual
interference with the administration of justice, but it is sufficient if the publication or act
complained of is likely top interfere with the administration of justice.

Concept and role of Bar-Bench Relation with Reference to Administration of

Justice

1) What are Bar and Bench?

(i) Bar

Advocates are enrolled by the State Bar Council as such, on getting L.L.B degree from a
University and getting a certain training under some advocate as prescribed by rules. The
advocates are known as the 'Bar' as a whole body of advocates and an advocate represents the
Bar. In short, Bar is a collective term for the attorneys who are licensed to practice in the
Courts, or a particular court, of any state.

(ii) Bench :

Bench means all the judges taken together as distinguished from the ‘Bar’ the name for
all the members of the legal profession-bench is that part of the court considered in its official
capacity, while the judges are sitting. The earlier meaning of Bar contained the part of Bench
also at the present term ‘Bar’ is applied for the attorneys part of the court and the term is used
for the judicial officers part of the Court.

2) Role of Bar Bench in Administration of Justice

The Bar and Bench play important role in the administration of justice. According to
Justice C.L. Anand, there is no office in the State of such power as that of the Judge. Judges
hold power which is immensely greater than that of any other functionary. The common
people's life, and liberty, personal domestic happiness, property, and reputation subject to the
wisdom of the judges and hang citizens on their decisions. If Judicial power becomes corrupt
no security is left of life, liberty expires, there no guarantee is left of personal or domestic
happiness. A strong powerful, impartial active and the capable judiciary is the greatest need of a
State. On the account of the importance of the judges in the maintenance of the orderly society,
judges should perform their duties.
 Like Judges, Advocates also plays important role in the administration of Justice.
Advocates are officers of the Court, they are expected to assist the Court in the Administration
of Justice. Advocates collect materials relating to the case and thereby assist the Court in
arriving at a (conclusion)correct judgment. An advocate is a partner with the judiciary in the
administration of Justice.
3) Bar-Bench Relations:
Administration of Justice is not something which concerns Bench only. It concerns the Bar
also. Mutual respect is necessary for the maintenance of the cordial relations between the Bar
and Bench. Advocates and Judges are complementary to each other. Bar is the Principal ground
for recruiting Judges. So they both belong to the same community. ar and Bench should
maintain cordial relations with each other. But on account of nature of duties to be
discharged by advocates and judges, they may get into dialogues sometimes, humorous,
sometimes heated and sometimes harsh.
Scandalising of the court by an advocate is really polluting the very foundation of justice
and such conduct by an advocate brings disrepute to the whole administration of justice.
The attitude of an Advocate towards the Court should be one of the uniform respect, whatever
the status of the Court. Advocates Private opinion about the Presiding officer, he must not show
in its behavior because he has to uphold the dignity of the judiciary as an institution. At the
same, it is equally the duty of the judiciary not only to be polite towards the members of the Bar
but to do everything possible to advance ints high traditions.
The uncourteous conduct or misconduct of a lawyer or judge may amount to contempt of
Court, there are two Types of Contempt of Court. for example, using insulting language
against a judge or threatening him with transfer or impeachment or addressing the judge in a
loose manner or questioning his authority to ask questions or making scandalous allegations
against a judge etc. It amounts to contempt of Court. He is liable for his uncourteous act and
punishable for such contempt of Court. The punishment for contempt of Court is intended to
protect the public confidence in the system of Administration of Justice.
Disqualification and punishments for Professional Misconduct

When is a person disqualified for enrollment as an advocate? What are the punishments for
misconduct under the Act?
Answer -
Section 24A which has been inserted by Advocate (amendment) Act 1973 lays down
the condition under which a person shall be disqualified for being enrolled as a member of the
state bar council. Originally there were two grounds of disqualification ,namely,
1) Conviction of an offence involving moral turpitude.
2) For conviction of an offence under the untouchability (offence) Act 1955 . However, a
third clause has been inserted by the amendment of 1993 that dismissal or removal from
employment or office under the state on any charge involving moral turpitude.
Thus Section 24A which provide for the grounds of disqualification are as under.

1) No person shall be admitted as an advocate on a state roll -

A) if he is convicted of. Any offence involving moral turpitude
B) If he is convicted of any offence under the provisions of the untouchability (Offence)
Act 1955 .
C) If he dismissed or removed from employment of office under the state on any charge
involving moral turpitude.
Explanation
 In this clause the expression state shall have the meaning assigned to it under Article 12 of the
constitution :
provided that the disqualification for enrollment as aforesaid shall cease to have effect
after a period of two years has elapsed since is release or dismissal or as the case may be
removal.

2. Nothing contingent in subsection (1) shall apply to a person who having been found quality
is dealt with under the provision probation of the offender Act, 1958 .
The above part from provisions of disqualification of any advocate the Maharashtra
and Goa Bar Council under rule 1 (1) Denies simultaneous practice of another profession along
with the practice of law. The famous case in this respect is Dr. H.L .Chulani Vs Bar Council
of Maharashtra and Goa,19