INTRODUCTION
Discipline is the fundamental aspect of a profession. Therefore, it is necessary that in the field of law, the discipline is imbibed. In the legal world, professional ethics and etiquette are to be followed by every person involved in the process of securing justice. The Bar Council of India is a statutory body, created to exercise disciplinary jurisdiction over the bar. The Bar Council of India has laid down rules for the advocates, regarding their conduct, duties, enrolment, restrictions, welfare, financial assistance, etc. There is a great obligation of an advocate towards their client, court, opponent, and colleagues. As lawbearers, the advocates must act professionally and ethically and abide by the rules and regulations made for them.
DISCIPLINARY COMMITTEE
The Disciplinary Committees are constituted by the Bar Council of India, under the Advocates Act, 1961.[1] It can be one or more in number. The committee shall be constituted by three members- two would be elected by the Council from amongst its members and one, co-opted by the Council from amongst the advocates, who have been, for at least 10 years, an advocate on State roll (which includes the period when he was working as an advocate registered under the Indian Bar Councils Act of 1926[2]). The committee shall meet at times and places as prescribed. The tenure of the members is for 3 years. There are certain grounds on which the members can be disqualified- if the member has been consecutively absent from 3 meetings without any sufficient cause, if his name has been stricken from the list of advocates, or if he is disqualified according to any rules issued by the Bar Council of India.
The election to the Disciplinary Committee is done by secret ballot. Any member of the Bar Council of India who is available to fill the vacant position may be requested by the other two members of the Disciplinary Committee when there is an absence of a member of the Bar Council of India during the sitting of the Disciplinary Committee. Similarly, any available co-opted member of the Disciplinary Committee of the Bar Council of India shall be approached with the request in the absence of a co-opted member. For that meeting, it shall be deemed to be a committee and the powers shall be exercised that of the Disciplinary Committee of the Bar Council of India. All the power granted to the Civil Court or Court of Appeal under C.P.C. will be vested in the Disciplinary Committee of the Bar Council of India.[3]
The aggrieved party can file an appeal to the Bar Council of India against the order passed by the Disciplinary Committee of the State Bar Council.
According to section 35[4] and section 36[5] of the Advocates Act, 1961, the case shall be referred to the Disciplinary Committee of the Bar Council of India upon receiving a complaint or otherwise, against an advocate of being guilty of professional or other misconduct, whose name is not entered in any State roll. The Disciplinary Committee of the Bar Council of India may withdraw any proceedings for inquiry before itself on its own or a report by the State Bar Council or on application made by an interested person, for disciplinary action pending against any advocate. In this case, the order passed by the Disciplinary Committee of the Bar Council of India shall be complied with by the State Bar Councils. The date of the hearing shall be fixed by the Disciplinary Committee of the Bar Council of India and the notice shall be given to the advocate concerned and the Attorney General of India. They can appear in person or can be represented on behalf of an advocate. The Disciplinary Committee then shall pass an order, after giving an opportunity of being heard to them, for dismissal of the complaint, or reprimand the advocate or cancel his name from the State roll or, if it deems fit, suspend him from practice for a certain period.
“Non-compliance with Rule 36 invites the application of section 35 of the Advocates Act, 1961[6] dealing with the punishment of advocates for misconduct. Hence publication of advertisements as mentioned in Rule 36 by advocates shall be construed as misconduct under the Advocates Act and disciplinary action under the relevant Act and Rules shall follow.”[7]
DISCIPLINARY COMMITTEE PROCEEDINGS
A show cause notice shall be sent expeditiously by the Registrar to the concerned advocate, against whom the complaint has been filed after the complaint has been referred to a Disciplinary Committee by the Bar Council. The person is required to submit the documents, affidavits, and statement of defence in his favour. He shall also be informed that the matter shall be heard and determined in his absence if he does not appear on the date fixed for the hearing.
The date, place, and hour of inquiry shall be fixed by the Chairman of the Disciplinary Committee, which should be within 30 days from the date of receipt of reference. The Registrar then shall give the notice at least 10 days before the fixed inquiry date to the complainant/ aggrieved person, the concerned advocate, and the Attorney General, in the case of the Bar Council of India.[8] The disposal should be within 1 year from the date of the receipt of the complaint.
There shall be in-camera proceedings before the Disciplinary Committee. The council has to appear in proper court dress before any of the Disciplinary Committee/s of the Bar Council of India.
The Bar Council of India or its Disciplinary Committee can appoint an advocate to appear as Amicus Curiae at any stage of the case. A day-to-day record of its proceedings has to be maintained by every Disciplinary Committee. Withdrawal, settlement/compromise, or unwillingness of the client to proceed with such inquiry cannot be the sole reason to drop any disciplinary proceedings.
When the Disciplinary Committee of the Bar Council of India /State Bar Council ceases to exercise jurisdiction then the succeeding Bar Council of India /State Bar Council shall take up the proceedings from the stage so left by the previous committee.
The person against whom any proceedings before the Disciplinary Committee are pending, files any transfer application, then the committee may reject the application for transfer of name from one State roll to another.
The State Bar Council should translate any complaint on disciplinary matters before sending out it to the Bar Council of India if it is filed in Hindi or any other regional language.
“The disciplinary proceedings are always against a member of the Bar. The concerned member of the Bar will be always anxious to ensure that the proceedings are terminated at the earliest. Therefore, it will be always open for the Disciplinary Committee to suggest to the members of the Bar to produce English translations of the relevant documents which are not in English. This will obviate the delay in disposal of the disciplinary proceedings.”[9]
No final order can be passed by the Disciplinary Committee, in the absence of the Chairman and other members of the Committee. The amount of the costs shall be specified in all the orders involving costs along with the party against whom the cost is imposed and the time granted to pay such amount. The copies of the final orders made under Sections 36, 36B, and 37 by the Disciplinary Committee, shall be sent to all the State Bar Councils. An appeal can also be filed against the order passed by the Disciplinary Committee of the Bar Council of India in the Supreme Court of India.
CONCLUSION
Advocates are the people who are involved deeply in the process of law. They should be the guide for the people to help them in seeking justice. Fairness and justice would truly be seen only when they help the legal system to enhance and elevate in a lawful direction. They have a huge responsibility towards their client especially. The people having the legal knowledge should aid the people needing the legal help. These disciplinary proceedings are carried out to ensure that no one is troubled by any advocate and that they do not misuse their profession and have ethical conduct. The proper procedure has been laid down under the Advocates Act, 1961, and under the rules made by the Bar Council of India, concerning this Act. The Disciplinary Committee has the responsibility to conduct such proceedings in an appropriate and bona fide manner. Hence, this would not only help in establishing fairness in the conduct of an advocate but also would help the common people in obtaining justice in a true sense. As in any circumstance the essence of justice cannot be undermined.
Author(s) Name: Preesha Vaswani (Jagran Lakecity University)
References:
[1] The Advocates Act 1961
[2] The Indian Bar Councils Act 1926
[3] Bar Council of India Rules, Part 7, Ch 1, D, 30A
[4] The Advocates Act 1961, s 35
[5] The Advocates Act 1961, s 36
[6] The Advocates Act 1961, s 35
[7] P.N. Vignesh v. The Chairman and Members of the Bar Council, The Bar Council of India and Ors., W.P. No. 31281 of 2019
[8] Bar Council of India Rules, pt 7, ch 1
[9] J. Johnson vs. S. Selvaraj, Civil Appeal No. 4855/2023
