1. What are the duties of an advocate to court and Client ?

Ans. Introduction
Professional ethics is nothing but the duties which are to be followed by the advocate. An advocate
who violates these duties is considered as he has violated the principles of professional ethics. The
core subject of legal ethics is to maintain honour, dignity of the law profession and to create a friendly
atmosphere in the court without any biasness and quarrels between advocates which eventually spoils
the bar and bench relations and ultimately affects the administrative system of justice.

Cooperation and fair dealing is necessary for the advocates. Advocacy is a noble profession. It cannot
be compared with any other profession like trade, business etc. because it is a part and parcel of
judiciary and administration of justice. Bar and bench are two eyes of the Justice. There are judicial
ethics and etiquette for judges.

There are professional ethics and etiquette for advocates. Every advocate should follow them in his
profession. An advocate is also a key person in conducting a proceeding before the court. While
conducting a proceeding the advocate should function intelligently. Every advocate must follow these
duties because they are part and parcel of the professional ethics and etiquette. Whoever fails to oblige
them, such an advocate is said to have committed professional misconduct and be punished
accordingly

A. Duties towards the Court

1. A lawyer or Advocate should be straight forward, and his arguments should be pointed clear
and precise.
2. A lawyer or Advocate should have a sense of honour and pleasing manners in his arguments.
3. A lawyer or Advocate must be tactful in presenting the matter.
4. A lawyer or Advocate should not mislead the Court.
5. A lawyer or Advocate should not influence the decision of the Court by any illegal or
improper means.
6. A lawyer or Advocate shall appear in the Court at all times only in the prescribed dress. He
shall not wear a band or the gown in the public place(s) other than a Court.
7. A lawyer or Advocate shall consider when presenting the case and while otherwise acting
before a Court, conduct himself with dignity and self-respect.
8. A lawyer or Advocate shall not enter an appearance, plead or practice in any way before a
Court, Tribunal or Authority on behalf of kith and kin.
9. A lawyer or Advocate should not criticize the judiciary with malice.
10. A lawyer or Advocate should not act or plead in any matter in which he has some pecuniary
interest.

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B. Duties towards the Client

1. A lawyer or Advocate shall fearlessly uphold the interest of his client by all fair and
honourable means without regard to unpleasant consequences to himself or any other.
2. A lawyer or Advocate shall fairly and reasonably submit the case on behalf of his client.
3. A lawyer or Advocate shall pay attention which he is capable of giving to the case he is
dealing with.
4. A lawyer or Advocate shall not act on the instructions of any person other than his client or
his authorized agent.
5. A lawyer or Advocate shall not ordinarily withdraw from engagements ones accepted,
without sufficient cause and unless reasonable and sufficient notice given to a client.
6. A lawyer or Advocate shall not do anything whereby abuses or takes advantage of the
confidence reposed in him by his client.
7. A lawyer or Advocate shall not accept a fee less than the fee taxable under the rules when the
client is able to pay the same.
8. A lawyer shall not adjust the fee payable to him by his client against his own personal liberty
to the client where liability does not arise in the course of his employment as an Advocate.
9. A lawyer or Advocate shall keep the accounts of its client’s money entrusted to him.
10. A lawyer or Advocate shall not disclose communications made to them in the course of their
professional engagement(s) even after the case is over.

Conclusion

An advocate should always ensure that the interests of the client are not in any manner hurt by his acts
or omissions. He must always confront his client about the real facts of the particular law and to astray
them from the path. Lawyers are obliged to maintain the confidentiality of their clients. The relation
between a lawyer and a client is based upon the trust and faith which comes hand in hand.

Advocate has duties which are to be performed towards himself, his clients, opponents, colleagues,
court etc. it is the duty of the advocate to maintain the decorum of the court and act properly with his
opponents or colleagues. He must always act in the best interests of his clients and should not do any
kind of act that betrays their trust upon him.

An advocate has to present his case before the court fearlessly. He must maintain the dignity of the
legal profession as well as the dignity of the court. He is considered as an officer of the court and
required to uphold the dignity and decorum of the court.

These rules prohibit private communication with the judge relating to a pending case. Not only the
litigants and witnesses but the general public will also get the inspirations from the example of
advocates. It is necessary for dignified and honourable administration of justice that the court should
be regarded with respect by the suitors and people. All these duties, ethics and morals help an advocate
to be in a better position in his career and become a successful lawyer.

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 2. What are the Functions of Bar Council of India ?

Ans. Bar Council Of India - Historical Background

• At its annual conference in Madras, the Inter-University Board issued a resolution

emphasizing the necessity for an all-India Bar and the importance of having uniformly high
standards for legal examinations in different universities across the country, given the
establishment of the Supreme Court of India.
• The Madras Provincial Lawyers Conference presided over by Shri S. Varadachariar,
decided in May 1950 that the Government of India should appoint a committee to develop a
strategy for an all-India Bar and alter the Indian Bar Councils Act to bring it into
compliance with the new Constitution.
• The Madras Bar Council adopted that decision during its sitting on October 1, 1950.
• On March 30, 1953, the All India Bar Committee issued its comprehensive report.
• It recommended that each state form a Bar Council, with a national All-India Bar Council
serving as the apex authority for regulating the legal profession and overseeing the quality of
legal education in India.
• The Advocates Act was enacted in 1961 to carry out the recommendations of the 'All India
Bar Committee' and the 'Law Commission.' The initial chairman and vice chairman were M. C.
Setalvad and C. K. Daphtary, respectively.

Bar Council Of India - Statutory Provisions

• The Indian Bar Council is a statutory body established by Parliament to regulate and represent
the Indian legal profession. It was founded in 1961 under Section 4 of the Advocates Act.
• It regulates the bar by establishing norms of professional conduct and etiquette and exercising
disciplinary authority over the members.
• Concerned Ministry: The Ministry of Law and Justice is responsible for the Bar Council of
India.
• Every Bar Council so constituted shall be a body corporate having perpetual succession and a
common seal with power to acquire and hold property, both movable and immovable, and to
contract, and shall by the name of the Bar Council of the High Court for which it has been
constituted sue and be sued.
• Meeting of Bar Council of India: Meetings are held regularly to ensure the smooth
functioning of BCI.

Composition
Bar Council Of India - Composition

• Each Bar Council shall have a Chairman and Vice-Chairman elected by the Council in the
manner prescribed by law.
• The Attorney General of India and the Solicitor General of India who are ex officio members.

Every Bar Council shall consist of 15 members:

• One shall be the Advocate-General;

• Four shall be those nominated by the High Court, not more than two of whom may be High
Court Judges; and
• Ten shall be elected by the High Court's advocates from among their number.

VIRAJ GHARAT 3
 • Eligibility: Not less than five elected members of each Bar Council must have been entitled to
practise in the High Court for which the Bar Council was formed for at least ten years.

Tenure of chairperson & member

Tenure of Chairperson and Members of Council

• The nominated and elected members of any such Bar Council shall serve for three years from
the date of the Council's first meeting.
• No member of the Bar Council of India has the right to withdraw from membership for
reasons that are not regarded genuine or for the purpose of sharing the terms set forth in the
Statute.

Disqualification of the member

Disqualification of the Members of the Bar Council of India

• An elected member of a Bar Council is deemed to have vacated his office if he is declared by
the Bar Council of which he is a member to have missed three consecutive meetings of that
Council without sufficient excuse, or if his name is removed from the roll of advocates for
any reason, or if he is otherwise disqualified under any rule made by the Bar Council of India.

Election to Bar Councils

Election to Bar Councils
No election to a Bar Council member shall be called into dispute just because due notice of the
date has not been given to any individual eligible to vote, if notice of the date has been published in
the Official Gazette at least thirty days before to that date.

Bar Council of India - Functions

• To establish guidelines for advocates' professional conduct and decorum.

• To establish a mechanism for its disciplinary committee and the disciplinary committees of
each state bar council to follow.
• To protect advocates' rights, privileges, and interests.
• To encourage and assist the reform of the legal system.
• To deal with and resolve any problem that a State Bar Council may refer to it.
• To promote legal education and establish legal education standards. This is done in
collaboration with Indian universities that offer legal education as well as state bar councils.
• To recognize universities that offer a law degree as a prerequisite for becoming an advocate.
The Bar Council of India inspects and visits universities, or directs the State Bar Councils to do
so.
• Seminars and discussions on legal themes by famous jurists will be held, and journals and
papers of legal relevance will be published.
• To organize poor people's legal aid.
• Recognize foreign legal qualifications gained outside of India for the purpose of admission as
an advocate in India on a reciprocal basis.
• To manage and invest the Bar Council's funds.
• To make provisions for the election of persons who will lead the Bar Councils.
• The Bar Council of India can also set up funds for the following purposes: providing financial
support for welfare initiatives for the destitute, disabled, and other advocates, providing legal
aid, and establishing law libraries.
• For any of these reasons, the Bar Council of India can receive grants, donations, and gifts.

VIRAJ GHARAT 4
Bar Council of India - Associated Powers

• Power of Bar Council to make bye-laws: The Bar Council may make bye-laws consistent
with this Act and any rules made there under to provide for any of the following matters,
namely:
• The appointment of such ministerial officers and servants as the Bar Council may think
essential, as well as their pay, allowances, and other working conditions; and
• The appointment and organization of Council Committees, their procedures, and the
determination of the Council's powers and functions that may be delegated to such
Committees.
• The Bar Council may create rules to govern the admission of persons to be advocates of the
High Court, with the prior approval of the High Court; provided, however, that such
regulations shall not limit or in any way influence the High Court's discretionary jurisdiction to
reject admission to any person.
• No woman shall be barred from becoming an advocate solely because of her gender.
• The summoning and holding of Bar Council meetings, the conduct of business threats, and the
number of members required to form a quorum;
• The constitution and functions of any Bar Council committee, as well as the term of office of
members of any such committee;
• The Bar Council's responsibility for keeping books of accounts and other records;
• Appointment of auditors and auditing of the Bar Council's accounts;
• The management and investment of the Bar Council's money.

Committee Of Bar Council Of India

• The Bar Council of India has various committees which make recommendations to the council.
The members of these committees are elected from amongst the members of the Council.
• Executive Committee: The executive committee is in charge of fund management, personnel
matters, accounts, work allocation, council affairs management, audit, library, and legal
publications. Work delegated.
• Legal Education Committee: This committee makes recommendations to the BCI on legal
education issues, establishes legal education standards, visits and inspects colleges,
recommends pre-requisites for foreign advocates practising law in India, and recommends
recognition or discontinuation of a university's law degree.
• Disciplinary Committee: This committee considers appeals from the state bar councils'
summary dismissal of charges against advocates for professional misconduct, as well as
appeals from the state bar councils' disciplinary committees' orders.
• Advocate Welfare Association: This committee investigates welfare fund petitions submitted
by advocates. It checks the application and approves the funding. The Advocates Welfare Fund
Act of 2001 certifies the Advocates Welfare Committee.
• Legal Aid Committee: It assists persons who require legal assistance.
• Building Committee: The Building Committee is in charge of establishing the Council's
offices.
• Rules Committee: The Rules Committee is in charge of reviewing the Council's rules and
regulations.
• The Finance Committee, Special or Oversee Committee, and All India Bar Examination
Committee are the other committees.

Conclusion
The Bar Council of India possesses numerous capacities, that it can use to reconstruct and reinterpret
the entire legal sector in India. Indeed, it may be all the more strongly imagined that it has contributed
nothing to the advancement of law in India in recent years. Although there have been discussions

VIRAJ GHARAT 5
about increasing BCI's power to ensure a more effective command of the law as a profession, the Bar
Council of India is working efficiently.

3. How a Person Can Be Good Lawyer ?

Ans. Skills of a good lawyer

Good Communication Skills

Lawyer or advocates must possess excellent communication skills, both oral and written. To argue with
more persuasiveness before the Hon’ble Judge(s) in a Court of Law, speaking with fluency efficiently
and effectively is a skill that can be learned and developed during the time in pursuance of the graduation
while indulging in extra-curricular activities like, Moot Court(s), Youth Parliament(s) and various
competitions.

As if the activities built the communication skills of an individual in writing by researching on various
topics and oral by presenting that conducted research before the Judge or even to the public at large.

Judgment

It is the skill to make, draw or reach the logical and logical conclusions from the limited information
provided and received. Anticipate and spot the possible event(s) and happening(s), analyze the positive
and negative areas of the case to prepare the same in such a manner that is beneficial and in the favour
and taken into consideration the interest of the client.

Analytical Skills

Being involved and as a part of the legal industry, a lawyer or Advocate must possess a distinctive
attribute of analytical skills as if to crystallize the information received either, half or wrong. A lawyer
or Advocate must be able to analyze the events by using the critical method of analyzing.

Research Skills

Another most crucial skill needed to be a good lawyer or Advocate is the ability to research as quick as
lightning, also, to be ready, the research and approach towards the same must be valid and efficient
taken into consideration the legal strategies which satisfy and safeguards the interest of the clients.

Perseverance

Perseverance is the skill on the one side and attitude on the other. I want to confess perseverance is the
nature and attitude which develops the capability to deal and perform the activities and task(s) assigned

VIRAJ GHARAT 6
productively and constructively with the numerous and variety-full events which in further embodies
distractions.

Creativity

Few of the eminent Jurist(s) and Attorneys not only be perseverant but logical and analytical also have
the traits of creativity. In order to reach a possible best conclusion it is not always to take the paths of
the precedents or the obviousness, one must be creative and possess the ability to think out of the box.

Logical Thinking Ability

It has to be logical enough to draw and make out the conclusions, following the approach of
justifiableness and reasonableness.

Even though the other counsel is your opponent, but it should not be minded and must not be considered
and regarded as the enemy of the client or the lawyer or advocate itself.

A fair amount of good relations must be formed with the opposite counsel, but that ties must not be
affecting or disregard the interest of the client.

Public Speaking Skills

Well-spoken and be expressive being an essential skill that a great lawyer or Advocate possesses. A
critical element(s) like public speaking and addressing a Court of Law, a lawyer or Advocate must be
flawless and magnificent;

Public speaking is a skill which can be developed by acknowledging the fact that one correctly and
genuinely want(s) to work upon his this skill.

Writing Skills

Excellent writing skills assists and aids in making the position of the client and case, the marriage and
fusion of both speaking and writing skills are invincible. In order to become a great lawyer or Advocate,
tremendous writing skills are needed which are useful and beneficial while preparing the case
arguments, briefs and other legal documents.

Leadership Skills

No individual lacking leadership quality in itself can become a lawyer or Advocate. A lawyer or
Advocate must be accompanied by managerial skills (manage the people one is working within a manner
which is peaceful and responsive) and leadership skills, and thus leadership skills are necessary for a
lawyer or advocate to be successful.

VIRAJ GHARAT 7
Listening Skills

To be a great lawyer or advocate one must have and possess the quality and skill to listen to each, and
every individual tend(s) to speak before him, develop the ability to listen to others patiently and
carefully.

In practical, this skill helps the lawyer or Advocate and their practice in every possible manner so as to
cross-examine the witness, or to the finding of the opposite counsel and facilitate in an effective rebuttal.

Decision Making Skills

Based on the understanding of the event with full reasonableness and in a logistic manner, a lawyer or
Advocate can make out and draw conclusions based upon the information provided to him and his past
experience(s).

Decision-making skills are the ability to take decisions out of situations and events after analyzing them,
and another person can judge the lawyer or advocate through his ability to make decisions that may in
future events bring stability and upgrade the personality of his client and perform accordingly with the
needs of the client taking into consideration its interest.

Enquiring Skills

A good lawyer or Advocate must have the capacity and ability to understand the topics in its deepest
sense and essence form, in lightning speed to understand the numerous things simultaneously, the client,
case, remedy, and justice he wishes to seek, or likewise.

Not only enquiring but, inquiring and analyzing the appropriate provisions are pointed out and implied
in a particular case, so this is done, in a smoother way as if a lawyer or Advocate acquires the skill of
enquiring.

Comprehension Skills

Understanding of minute details of the topics of Law is taken into consideration while doing study and
practice of law, as to understand, organize the information gathered in a comprehensive manner.

So, as to develop this skill, one must indulge in the practice of client competition(s) and Moot Court (s)
while studying in the Law College.

Firmness

Firmness, being a very important and crucial trait as if it tests the consistency and regularities in a good
lawyer or advocate to pursue a case. It is the ability and skill demanded by this career from a lawyer or

VIRAJ GHARAT 8
advocate to be consistent and stick loyally towards the client and his case in a Court of Law before the
Hon’ble Judges.

Characteristics of a good lawyer

Client Care

Professionalism and courtesy, these two are the qualities and traits of those lawyers or advocates who
know that their clients are to be treated with.

Client’s care must be taken as a primary concern by a lawyer or advocate and must be taken into
consideration and acknowledged in a fact that client is the only person who is going to arrange for you
and your family’s bread and butter and therefore, must be treated with utmost respect and sincerity.

Understanding the Client’s Business

Understanding and analyzing the business of the client, which helps its Attorney to act and perform in
accordance with its business sector and industry, in a manner which suits the need of its client and
benefit them.

As if a lawyer or Advocate is well versed with his client’s business, then only the favourable outcome
is guaranteed out of its lawyer or Advocate’s conduct while acting and performing on behalf of its
clients.

Business Development

The lawyer or Advocate who understands and acknowledges the client care and its business will
definitely be good at Business Development; it will eventually increase his working pace by building
new business relations and tie-ups.

Leadership

It is generally noticed that in a small practice, usually Leadership skills are needed neither, the
management skills are needed at peak or god level.

Whereas on the other hand, large firm’s leadership skills play a very crucial and important role while
determining the skill-set and thought process of the lawyer or Advocate so as to be a leader of a follower.

VIRAJ GHARAT 9
Project Management

Lawyer or advocates engaged in the cross-border transaction(s) or case(s), project management skills
are crucial, to do, perform and manage the project(s) indulged in. Coordination is a very primary and
generic factor that helps in facilitating the management of a project between different nations indulging
in the lawyer or advocates practising in a variety of field(s) and industries at different paces.

Responsiveness

The lawyer or Advocate must deal with all the situation(s) and event(s) with the utmost responsive
manner. Timely research, planning, execution, present on the date of the hearing, all these activities
performed by a lawyer or Advocate reflects the responsive behaviour.

This type of skill and quality is appreciated not only by the client(s) but the Hon’ble Judge(s) as well.
This trait, skill, and quality also appreciates in value of a particular lawyer or advocate and increase its
demand at the marketplace.

Emotional Balance

Apart from professionalism and ethics, a lawyer or Advocate must possess a balance of emotional trait,
and this should be a part of his personality. So as to ensure the performance made by him in a Court of
Law, he could be able to attach the variety of events in the case of his client so as to drive and explain
the happenings of the event(s) to the Hon’ble judges.

It is very much important to have an emotional balance, which will help in the client’s case as a whole.

Organized

Although, it is said to be a lawyer or Advocate’s desk should be a messy one; but on the other side, it is
demanded in the character of a lawyer or advocate to be and stay organized. He should always be well
versed with the cases he indulged in, the case files, the main theme, and the subject matter of the case
he pursued.

It is another attitude pursued by a lawyer or Advocate, to be and stay organized, keeping a routine check
over all his belongings in a stipulated time, regularly.

Patience

It’s a saying; A Good Listener is a Good Speaker, that’s why, a lawyer or Advocate must be patient
enough to listen to the client, the opposing counsel, the Hon’ble Judge(s), the members of the jury, and
the people involved in a particular case. As this is a skill that a good lawyer or Advocate must be well
versed with, and it should be a part of his personality.

VIRAJ GHARAT 10
Code of conduct for lawyers or advocates in India
Code of Professional Ethics in the Legal Industry is the sum of adopted key principles for the lawyer or
advocates and their code of conduct. These principles are of obligatory nature and lawyers or advocates
must act and perform in its accordance.

Some of the general provisions are discussed below:

Independence

Lawyer or Advocate, being an individual and independent personality, he should not be driven by third-
party influence or even his personal interest harms his client’s interest and shall act in a manner that
serves his client(s) need in the best possible manner or degrade his standing at the Bar.

Confidence

Confidence, need time to be built, it is one part of the client to have and moreover on his lawyer or
advocate to build confidence, and this should only be done and visible if the lawyer or Advocate
maintains the dignity, integrity, and honour of this Noble profession.

Personal Advertising

Law, is a noble profession and thou shalt never solicit; this is the learning my mentor gave me. It is the
profession of utmost respect, treating every man equal and providing services to the underprivileged and
indigenous people, which is our duty as a lawyer or advocate towards the society and it is a matter of
honour and great pleasure.

And some other code of conduct or the specified duties that a lawyer or Advocate must not forget, and
must act, perform in accordance and in compliance with the general principles of professional and work
ethics of the Bar:

4. Discuss the Provision Related to Disciplinary action under

advocates Act ?

Ans. Introduction

A lawyer’s profession is meant to be a divine or sacred profession by all means. In every profession,

there are certain professional ethics that need to be followed by every person who is into such a

profession. But there is the fact that professional misconduct is a common aspect, not only in other

professions but also in advocacy also. In simple terms, it means certain acts done by the persons which

VIRAJ GHARAT 11
seem to be unfit for the profession as well as which are against certain ethics in this field. The term has

been clearly defined in Black’s Dictionary as, the transgression of some established and definite rule

of action, a forbidden act, a dereliction of duty, unlawful behaviour, improper or wrong behaviour. Its

synonyms are a misdemeanour, impropriety, mismanagement, offense, but not negligence or

carelessness. From the definition, it is now clear that the act of professional misconduct is done purely

with an intention of getting unlawful gains. The Advocates Act, 1961 and the Indian Bar Council play

a vital role in providing rules and guidelines regarding the working, code of conduct and such other

matters concerning lawyers and advocates in India.

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:

1. Dismiss the complaint, or where the proceedings were initiated at the instance of the State
Bar Council, directs that proceedings be filed;
2. Reprimand the advocate;
3. Suspend the advocate from practice for such a period as it deems fit;
4. 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. 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
VIRAJ GHARAT 12
may be suspended from practicing as an advocate (In re Vinay Chandra Mishra). 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, 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, 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.

VIRAJ GHARAT 13
Conclusion

From the analysis of various cases and certain facts and circumstances, it will be clear that unlike any
other profession, advocacy is regarded as a noble profession and professional ethics must be maintained.
Courts have dealt with various cases of professional misconduct wherein attempt of murder by the
advocate towards his client have also been reported. Hence, there must be interference from concerned
authorities so that persons with a criminal background are kept away from this profession. Even though
there are guidelines dealing with the social background of the person enrolling in this profession, i.e. the
person enrolling must be free from any criminal cases, it does not prove that the person has a criminal
nature of his own. So Bar Council can implement certain rules and regulation so that the conduct of the
person who is showing criminal behaviour can be controlled strict guidelines ensuring that the person
no longer acts unlawfully against his profession. There must be various career guidance and
development programs conducted by the Bar Council immediately after enrolment so that new legal
professionals they will be aware of the do’s and don’t of this profession and there will be a better group
of advocates in the coming decades.

5. What is Contempt of Court ? Discuss Kinds of Contempt of

Court?
Ans. Contempt of Court

• Meaning:
o Contempt of court, as a concept that seeks to protect judicial institutions from
motivated attacks and unwarranted criticism, and as a legal mechanism to punish those
who lower its authority.
o This follows the initiation of contempt proceedings by the Supreme Court of India, on
its own motion.
• Origin:
o The concept is several centuries old.
o In England, it is a common law principle that seeks to protect the judicial power of
the king, initially exercised by himself, and later by a panel of judges who acted in his
name.
o Violation of the judges’ orders was considered an affront to the king himself. Later, any
disobedience against judges and/or disrespect towards them or their order became
punishable.
• Statutory Basis:
o When the Constitution was adopted, contempt of court was made one of the restrictions
on freedom of speech and expression.
o Separately, Article 129 of the Constitution conferred on the Supreme Court the power
to punish contempt of itself.
o Article 215 conferred a corresponding power on the High Courts.
o The Contempt of Courts Act, 1971, gives statutory backing to the idea.
• A suo motu action:
o The prior consent of the Attorney General (AG) of India is not required to suo motu
initiate the inherent contempt powers of the Supreme Court.
▪ The Contempt of Court Act of 1971 cannot limit this power of the court.
The statute only provides the procedure in which such contempt is to be
initiated.
o The suo motu contempt powers of the top court are drawn from Article 129 of the
Constitution, which says the Supreme Court, as a court of record, has the power to
punish for contempt of itself.
• Two Types of Contempt:
VIRAJ GHARAT 14
 o Civil Contempt
▪ It is committed when someone wilfully disobeys a court order, or wilfully
breaches an undertaking given to court.
o Criminal Contempt
▪ It consists of three forms:

(a) words, written or spoken, signs and actions that “scandalise” or “tend to
scandalise” or “lower” or “tends to lower” the authority of any court

(b) prejudices or interferes with any judicial proceeding and

(c) interferes with or obstructs the administration of justice.

• Objective:
o The rationale for this provision is that courts must be protected from tendentious attacks
that lower its authority, defame its public image and make the public lose faith in its
impartiality.
• Punishment:
o The punishment for contempt of court is simple imprisonment for a term up to six
months and/or a fine of up to ?. 2,000.
• 2006 Amendment:
o For many years, “truth” was seldom considered a defence against a charge of
contempt.
o There was an impression that the judiciary tended to hide any misconduct among its
individual members in the name of protecting the image of the institution.
o The Act was amended in 2006 to introduce truth as a valid defence, if it was in public
interest and was invoked in a bona fide manner.

Arguments in Favour of retaining the contempt provision

• Increasing instances of Contempt and scandalising:

o The high number of cases justify the continuing relevance of the contempt of court law.
• Maintained supremacy of law:
o The recognition of contempt of court and to punish for contempt is essential for a
nation such as India which is based on the concept of rule of law, which requires
supremacy of law, since the judiciary is considered, as the last bastion of hope and
justice for the citizens of any nation.
• Constitutional Source of Contempt Power:
o Supreme Court and High Courts derive their contempt powers from the Constitutional
Articles 129 and 215.
o Therefore, deletion of the offence from the Act will not impact the inherent
constitutional powers of the superior courts to punish anyone for its contempt.
• Sine qua non aspects:
o Trust, faith and confidence of the citizens in the judiciary is sine qua non for the
existence of Rule of Law.
• Impact on Subordinate Courts:
o The Contempt of Court Act additionally allows the High Court to punish for contempt
of subordinate courts.
o Thus, if the definition of contempt is removed, subordinate courts will suffer as there
will be no remedy to address cases of their contempt.
• Maintain administration of judiciary:

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 o Civil contempt is necessary as wilful disobedient litigants who ignore the orders of the
court cannot be let-off otherwise it would seriously affect the administration of justice
and trust of people in the judiciary.
• Ambiguity:
o If there is no definition for criminal contempt in the Act, superior courts may give
multiple definitions and interpretations to what constitutes contempt. The Commission
suggested retaining the definition for the purpose of ensuring clarity.
• Adequate Safeguards:
o The Law Commission noted that there are several safeguards built into the Act to
protect against its misuse.
o For instance, the Act contains provisions which lay down cases that do not amount to
contempt and cases where contempt is not punishable.
o These provisions suggest that the courts will not prosecute all cases of contempt.

Arguments against retaining the contempt provision

• Against Civil Liberties (Article 19 & 21):

o A law for criminal contempt gets in conflict with India’s democratic system which
recognises freedom of speech and expression as a fundamental right.
• Violating the Doctrine of Overbreadth:
o The language defining criminal contempt is vague enough to encompass within its
sweep legitimate criticism as well.
• Wide Scope of Contempt:
o The definition of criminal contempt in India is extremely wide, and can be easily
invoked.
o Further, the Contempt of Courts Act was amended in 2006, to add truth and good faith
as valid defences for contempt, but it is seldom entertained by the judiciary.
• Supreme Court judgement:
o In S.Mugolkar v. Unknown (1978), the Supreme Court held that the judiciary cannot
be immune from fair criticism, and contempt action is to be used only when an obvious
misstatement with malicious intent seeks to bring down public confidence in the courts
or seeks to influence the courts.
• No one to be own judge:
o Does not recognise one of the basic principles of natural justice, i.e., no man shall be a
judge in his own cause.
o Thus, in contempt proceedings, the court arrogates to itself the powers of a judge, jury
and executioner which often leads to perverse outcomes.

Conclusion

• The Law Commission of India held that there is a need to retain the provision regarding the
contempt of courts.
• However, it also recommended the definition of contempt in the Contempt of Court Act should
be restricted to civil contempt, i.e., willful disobedience of judgments of the court.
• The contempt of court should not be allowed to be used as a means to prevent criticisms. In
contemporary times, it is more important that courts are seen to be concerned about
accountability, that allegations are scotched by impartial probes rather than threats of
contempt action, and processes are transparent.
• In this backdrop, there is a need to revisit the need for a law on criminal contempt, where
India can learn from Britain which abolished the offence of scandalizing the judiciary as a
form of contempt of court in 2013 based on the fact that the law was vague and not
compatible with freedom of speech.

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