State Bar Councils: Structure, Functions, and Power

Section 6 of the Advocates Act, 1961 lays down the functions of the State Bar Council which are:

To admit persons as advocates on its roll:

The State Bar Council shall admit those advocates on its state roll those who are qualified to be admitted on
state roll as per Section 25. Section 24 of the Advocates Act, 1961 states the qualifications that need to be
fulfilled by a person to be admitted as an advocate on a state roll which are:

 He must be a citizen of India

 (Provided that a national of any other country is permitted to practice in India as an advocate only if that
country allows the nationals of India to practice as an advocate in that country, with due qualifications.)
 He must have completed the age of 21 years.
 He must have obtained a degree in law.
 He must have fulfilled all other conditions as specified by the State Bar Council.
 He has paid the stamp duty according to the Indian Stamp Act, 1899 and has paid the enrollment fee as
prescribed by the State Bar Council.

To prepare and maintain the state roll:

According to Section 17, every State Bar Council shall prepare and maintain a roll of advocates along with their
names and addresses. Such roll shall consist of senior advocates as well as other advocates.

Section 18 states the power of the State Bar Council to transfer a name from its roll to another State Bar Council
and every such State Bar Council shall send an authenticated copy of advocated prepared by it for the first time
to the Bar Council of India, along with any alterations made to such roll.

To determine and entertain the cases of misconduct by advocates admitted on its roll:
Whenever the State Bar Council has a reason to believe or on a receipt of a complaint of any professional
misconduct by an advocate admitted on its roll as an advocate, the State Bar Council refers the case to the
disciplinary committee, as per Section 35 of the Advocates Act, 1961.

 To safeguard and protect the rights, priviledges and interests of advocates on its roll;
 To conduct seminars and talks on legal topics by some eminent jurists and publish journals;
 To manage and invest the funds of the State Bar Council;
 To organize the elections of its members;

To visit and inspect universities and check whether or not they are functioning according to the directions given
under sub-section 7(1)(i);

And to perform any other function prescribed by the Advocates Act, 1961.

 to admit persons as advocates on its roll;

 to prepare and maintain such roll;
 to entertain and determine cases of misconduct against advocates on its roll;
 to safeguard the rights, privileges and interests of advocates on its roll;
  to promote the growth of Bar Associations for the purposes of effective implementation of the welfare
schemes;
 to promote and support law reform;
 to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers
of legal interest;
 to organise legal aid to the poor in the prescribed manner;
 to manage and invest the funds of the Bar Council;
 to provide for the election of its members;
 to visit and inspect Universities in accordance with the directions;
 to perform all other functions conferred on it by or under this Act;
 to do all other things necessary for discharging the aforesaid functions.

Formation of State Bar Councils

Section 3 of Advocates Act, 1961 states that “there shall be state bar council.” Likewise, state bar councils are
the statuary bodies that governs the legal profession in their respective jurisdictions.

Structure of the State Bar Councils

As per section 3 (2) of Advocates Act, a State Bar Council shall consist of the following members, namely −

In the case of the State Bar Council of Delhi, the Additional Solicitor-General of India will be ex-officio
member; and, in case of all other state, the advocate-general will be the ex-officio member.

In the case of a State Bar Council with an electorate not exceeding 5,000, 15 members, in the case of a State Bar
Council with an electorate exceeding 5,000 but not exceeding 10,000, 20 members, and in the case of a State
Bar Council with an electorate exceeding 10,000, 25 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.

There shall be a Chairman and a Vice-Chairman of each State Bar Council elected by the Council in such
manner as may be prescribed.

Powers of the State Bar Councils

Being a statutory and administrative body, the state bar councils have various power such as −

 Rule-Making Authority − State Bar Councils have the authority to make rules regarding the conditions
for enrollment and admission, standards of professional conduct, and disciplinary proceedings.
 To Conduct Election − State Bar Council has the power to conduct election, which include the manner
of conducting election, eligibility to cast postal vote, manner of publishing results, deciding validity of
all such elections, etc.
 Constitution and Management of Funds − Based on situation and requirement, state bar council can
constitute fund and manage it accordingly.
 Organization of Legal Aid − As per the situation, state bar council can constitute committee to provide
legal aid to all poor or marginalized classes of society.
  Administrative Power − The state bar councils have the power to appoint auditors to audit the accounts
of the Bar Council.
 Disciplinary Action − One of the most significant powers of state bar council is to initiate disciplinary
proceedings against the advocates found guilty of professional misconduct.
 Legal Education Regulation − State Bar Councils have the authority to regulate legal education within
their jurisdiction. They prescribe standards for law schools and legal courses to ensure that aspiring
lawyers receive quality education aligned with ethical principles.

the Bar Council of India

The Bar Councils of India were established under the Advocates Act, 1961 based on the recommendations of
the All India Bar Committee. These councils operate at both the national and state levels. The State Bar
Councils were established under Section 3 of the Act.

The Bar Council of India comprises members elected from each State Bar Council, the Attorney General of
India, and the Solicitor of India, who serve as members automatically. The members of the State Bar Councils
are elected for five years. The Council has the power to choose its own Chairman and Vice-Chairman from
among its members, and they serve for two years.

The powers and functions of the Bar Council of India have been discussed below.

Powers of the Bar Council of India

Admission as an Advocate
According to Section 20 of the Advocate Act, any advocate who had the right to practice in the Supreme Court
before the appointed day but was not listed in any state roll can express their intention to the Bar Council.

They must do this within the prescribed time and using the prescribed form. Upon receiving the application, the
Bar Council of India will direct the respective state Bar Council to enter the advocate’s name in the state roll
without a fee.

Sending Copies of Rolls

Section 19 of the Advocate Act mandates that every State Bar Council must send an authenticated copy of the
advocate role, prepared for the first time under this Act, to the Bar Council of India. Furthermore, any
alterations or additions made to the roll must be promptly communicated to the Bar Council of India.

Transfer of Name
Section 18 of the Advocate Act deals with transferring an advocate’s name from one State Bar Council role to
another. If an advocate wishes to transfer their name, they must apply to the Bar Council of India.

Upon receiving the application, the Bar Council of India will direct the removal of the advocate’s name from
the first State Bar Council’s roll and its entry into the roll of the other State Bar Council. No fee is required for
this transfer.

Appointment of Committees and Staff Members

Section 9 empowers the Bar Council of India to appoint disciplinary committees, legal aid committees,
executive committees, legal education committees, and other necessary committees.

Section 11 allows the Bar Council to appoint a secretary, accountant, and other staff members as necessary. The
secretary and accountant must possess the required qualifications. Having a secretary is mandatory for the Bar
Council.

Maintenance of Accounts
Under Section 12, the Bar Council of India must maintain books of accounts and other relevant books in a
prescribed format. Qualified auditors, similar to the auditing of company accounts, must audit these accounts.

The Bar Council of India is also responsible for sending a copy of its accounts and the auditors’ report to the
Central Government. Furthermore, these accounts are published in the Gazette of India.

Rules Making Power

The Bar Council of India can make rules under Section 15 of the Advocate Act. These rules can cover various
aspects such as the election of Bar Council members, the chairman and vice-chairman, dispute resolution, filling
of vacancies, powers and duties of the chairman and vice-chairman, organisation of legal aid, meetings and
conduct of the business of committees, and management and investment of funds of the Bar Council.

General Power and Punishment for Misconduct

Section 49 of the Advocate Act grants the Bar Council of India general power to make rules for discharging its
functions under the Act. Additionally, Section 36 empowers the Bar Council to punish advocates for
professional or other misconduct. The Bar Council of India can suspend advocates from practice, remove their
names from the state roll, dismiss complaints, or issue reprimands as it deems fit.

Appellate Power
Section 37 gives the Bar Council of India authority to hear appeals against the orders of disciplinary
committees. The disciplinary committee of the Bar Council of India must hear any appeal.

Furthermore, Section 38 allows individuals aggrieved by the order passed by the Disciplinary Committee of the
Bar Council of India to file an appeal before the Supreme Court within 60 days.

Other Powers and Functions

Apart from the aforementioned points, the Bar Council of India has additional powers and functions.

 providing financial assistance to State Bar Councils that require funds to perform their functions,
 preventing citizens of specified countries from practising law in India if those countries prevent Indian
citizens from practising law there,
 reviewing the legality and propriety of proceedings conducted by State Bar Councils or their
committees,
 giving its orders except in matters handled by the disciplinary committee, and
 providing directions to State Bar Councils or their committees to ensure the proper and efficient
discharge of their functions.
Functions of the Bar Council of India

Establishment of the Bar Council of India

Parliament established the Bar Council of India under the Advocates Act of 1961. Its main responsibilities
include regulating the legal profession and legal education in India.

Statutory Functions of the Bar Council of India

The Bar Council of India has various statutory functions outlined in Section 7 of the Advocates Act, 1961:

1. Standards of Professional Conduct: It lays down the standards of professional conduct and etiquette for
advocates.

2. Disciplinary Procedure: It establishes the procedure to be followed by its disciplinary committee and the
disciplinary committees of each State Bar Council.

3. Advocates’ Rights and Interests: It safeguards advocates’ rights, privileges, and interests.

4. Law Reform: It promotes and supports law reform initiatives.

5. Handling Referred Matters: It deals with and resolves matters referred to by State Bar Councils.

6. Legal Education: It promotes legal education and sets standards for legal education in consultation with
universities and State Bar Councils. It also visits and inspects universities or directs State Bar Councils to do so.

7. Recognising Qualifications: It recognises universities whose law degrees qualify for enrollment as an
advocate. Foreign qualifications in law obtained outside India may also be recognised reciprocally.

8. Seminars and Publications: It organises seminars and talks on legal topics by eminent jurists and publishes
journals and papers of legal interest.

9. Legal Aid: It organises legal aid for the underprivileged.

10. Management of Funds: It manages and invests the funds of the Bar Council.

11. Election of Members: It provides for the election of members who will run the Bar Councils.

Establishment of Funds
The Bar Council of India can establish one or more funds according to prescribed procedures. These funds may
be used to organise welfare schemes, provide legal aid or advice, and establish law libraries. The Bar Council
can receive grants, donations, gifts, or benefactions for these purposes.

Membership in International Legal Bodies

Under Section 7(a) of the Advocate Act, 1961, the Bar Council of India may become a member of international
legal bodies like the International Bar Association or International Legal Aid Association. It can contribute
funds and authorise participation in international legal conferences or seminars.
Prohibition of Strikes and Boycotts
The Bar Council of India must uphold professional conduct and etiquette for advocates. It is illegal and void for
the Bar Council to pass resolutions instructing advocates not to participate in legal aid programs or disrupt court
proceedings.

Advocates who participate in strikes or boycotts can face disciplinary action by the concerned State Bar
Council. Advocates are obligated to ignore calls for strikes or boycotts.

Professional Misconduct Under The Advocates Act,

Misconduct means any acts which are unlawful in nature even though they are not inherently wrongful. Before
the Advocates Act, 1961, we had the Legal Practitioners Act, 1879. There is no definition given for the term
‘misconduct’ in the Act, but the term ‘unprofessional conduct’ is being used in the Act. Some of the instances
of professional misconduct are as follows:

 Dereliction of duty
 Professional negligence
 Misappropriation
 Changing sides
 Contempt of court and improper behaviour before a Magistrate
 Furnishing false information
 Giving improper advice
 Misleading the clients in court
 Not speaking the truth
 Disowning allegiance to the court
 Moving application without informing that a similar application has been rejected by another authority
 Suggesting to bribe the court officials
 Forcing the prosecution witness not to say the truth.

Advocates Act, 1961

The provisions of Section 35 of the Advocates Act deal with professional misconduct of lawyers and advocates
in India, which read as:

A person is found guilty of professional misconduct; it shall refer the case to a disciplinary committee, shall fix
a date of hearing and issue a show cause notice to the Advocate and the Advocate General of the State. The
disciplinary committee of the State Bar Council, after being heard of both the parties, may:

 Dismiss the complaint, or where the proceedings were initiated at the instance of the State Bar Council,
directs that proceedings be filed;
 Reprimand the advocate;
 Suspend the advocate from practice for such a period as it deems fit;
 Remove the name of an advocate from the state roll of advocates.

Misconduct is of infinite variety; this expression must be understood in a broad meaning, such that it extends
the meaning under natural law, and there is no justification for restricting their natural meaning. Section 49 of
the Advocate Act empowers the Bar Council of India to frame rules and standards of professional misconduct.
Under the Act, no person has a right to make advertisement or soliciting; it is against advocate’s code of ethics.
He is also not entitled to any advertisement through circulars, personal communications or interviews, he is not
entitled to demand fees for training and to use name/service for unauthorized purposes.

Contempt of Court as professional misconduct

Contempt of court may be defined as an offense of being disobedient or disrespectful towards the court or its
officers in the form of certain behaviour that defies authority, justice, and dignity of the court.[5] In various
cases involving contempt of court, the court held that if any advocate or legal practitioner is found guilty of the
act of contempt of court, he/she may be imprisoned for six years and may be suspended from practicing as an
advocate (In re Vinay Chandra Mishra).[6]The court also held that license of the advocate to practice a legal
profession might be canceled by the Supreme Court or High Court in the exercise of the contempt jurisdiction.

There are many other landmark judgments regarding the cases involving professional misconduct of the
advocates. In the case of V.C. Rangadurai v. D.Gopalan[7], the court looked into the matter of professional
misconduct in such a way that the decision was made in a humanitarian manner, considering the future of the
accused in this case. The court held that “even so justice has a correctional edge, a socially useful function,
especially if the delinquent is too old to be pardoned and too young to be disbarred. Therefore, a curative, not
cruel punishment has to be delivered in the social setting of the legal profession”. The court then gave the
decision in such a way that it looked at each and every aspect concerning the case as well as the parties
concerned. It adopted a deterrent was of justice mechanism so that the accused person is awarded certain
punishments but also provided a warning towards such other people who intend to commit acts of a similar
nature. The judgment turned out to be a landmark in cases concerning professional misconduct as it delivered an
effective judgment and but did not jeopardize the future of the accused person. In various other cases like J.S.
Jadhav v. Musthafa Haji Muhammed Yusuf[8], the court delivered the decision in such a way that it created a
notion in the minds of the wrongdoers that offenders will be punished accordingly.

Constitution of the disciplinary committee

The Bar Council shall constitute a disciplinary committee as per Section 9 of the Advocates Act, 1961. This
section provides that one or more disciplinary committees are required to be formed and each of these
disciplinary committees shall consist of three members.

The election of two from the three members of the disciplinary committee shall be done by the Council from the
members of the Bar Council of India itself. The third member shall be co-elected by the Council outside of the
members of the Bar Council but shall be an advocate and possess qualifications as prescribed in Section 3(2) of
the Advocates Act, 1961.

The section further states that the senior-most advocate shall be the chairman of the committee. The term of
members of this committee shall be not more than 3 years.

Powers of the disciplinary committee

Section 42 of the Advocate’s Act, 1961 provides powers of the disciplinary committee. The section states that
the disciplinary committee shall have the same powers as vested in a civil court as per the Code of Civil
Procedure, 1908 which are as follows:
  Summoning and enforcing the attendance of any person and examining him on oath.
 Requiring discovery and production of any documents.
 Receiving evidence on affidavits.
 Requisitioning any public record or copies thereof from any court or office.
 Issuing commission for the examination of witnesses or documents.
 Any other matter which may be prescribed.

Restricted powers of the disciplinary committee

The disciplinary committee can exercise these powers only with the prior approval of certain authorities. These
are as follows:

 Attendance of any presiding officer of a court shall be allowed only with the prior approval of the High
Court to which such court is subordinate.
 Attendance of any officer of the revenue court shall be allowed only with prior approval of the State
Government.

Miscellaneous powers
The proceedings before the disciplinary committee shall be deemed to be judicial proceedings.

The disciplinary committee shall be deemed to be a civil court.

If a chairman or any member of the disciplinary committee is unavailable on the date fixed for hearing the
matter then the disciplinary committee may if it thinks fit proceed with the hearing and pass necessary orders
provided that the order passed shall not be the final order. The proceedings and the order passed by such a
committee shall not be invalid merely because the chairman or all three members of the disciplinary committee
were not present.

Where the final orders cannot be made because of want of majority among the disciplinary committee or is not
in accordance with the opinion of the Chairman or the members of the disciplinary committee then such matter
or case shall be placed before the Chairman of the Bar Council. If the Chairman of the Bar Council is acting as
the chairman of the disciplinary committee, then the case shall be placed before the Vice Chairman of the Bar
Council. After hearing the case, the Vice Chairman shall deliver his opinion and the disciplinary committee
shall follow such final order.

Regarding situations involving the professional misconduct of the advocates, there have been various landmark
judgments. The court in V.C. Rangadurai v. D.Gopalan examined the issue of professional misconduct in such a
way that the judgment was rendered in a humane manner, taking the accused’s future into consideration. Even
yet, the court declared, “justice has a corrective edge, a socially beneficial purpose, especially if the offender is
too old to be pardoned and too young to be disbarred. Therefore, given the social environment of the legal
profession, a remedial punishment that is not cruel must be administered.

The court then rendered a ruling after carefully considering every aspect of the case, including Even yet, the
court declared, “justice has a corrective edge, a socially beneficial purpose, especially if the offender is too old
to be pardoned and too young to be disbarred. Therefore, given the social environment of the legal profession, a
remedial punishment that is not cruel must be administered.
The court then rendered a ruling after carefully considering each and every element of the case as well as the
parties involved. It established a deterrence style of justice such that the accused individual receives certain
sanctions but also served as a message to others who could be planning similar crimes.

A curative, not cruel punishment has to be delivered in the social setting of the legal profession”. The court then
gave the decision in such a way that it looked at each and every aspect concerning the case as well as the parties
concerned. It adopted a deterrent was of justice mechanism so that the accused person is awarded certain
punishments but also provided a warning towards such other people who intend to commit acts of a similar
nature. The judgment turned out to be a landmark in cases concerning professional misconduct as it delivered an
effective judgment.

The decision proved to be a turning point for instances involving professional misconduct since it offered a
strong ruling without endangering the accused’s future. In numerous other cases, such as J.S. Jadhav v.
Musthafa Haji Muhammed Yusuf the court presented the ruling in a way that gave the wrongdoers the
impression that they would be punished appropriately.

Appeal To the bar council of India [section 37]:

Section 37 o the advocates act 1961 deals with appeal to the bar council of India states that any person who is
aggrieved. by an order of disciplinary committee of state bar council or the advocate general of state may within
the 60 days from date of the order prefer an appeal to the bar council of India.

Appeal to the Sc [section 38]

Section 38 of the advocates act 1961 deals with appeal to the Sc states that any person who is aggrieved by an
order of disciplinary committee of bar council of India or the attorney general. of India may within 60 days
from the date order prefer an appeal to the SC.

Stay of Order [Section 40]

The aggrieved party can file a application to before concerned. bar council has been passed for stay of order still
appeal is filed.

Similarly, after filing an appeal before the BCI or SC the aggrieved party can ask for the stay of order. still the
disposal of the appeal.