The Remedies Compared: Which Door, and When
Chapter Forty-Three
Syllabus topic 3.3 Remedies against the order of punishment
Pages 226 to 230 of 355
In one line
Ask four questions in order: who made the order, is an appeal given, how many days have passed, and what is actually wrong with it.
In exam wording: the remedies against an order of punishment under the Advocates Act 1961 are appeal to the Bar Council of India under section 37, appeal to the Supreme Court under section 38, review by the deciding committee under section 44, and revision by the Bar Council of India under section 48A where no appeal lies, with stay governed by section 40.
The table
| Review, s.44 | Appeal, s.37 | Appeal, s.38 | Revision, s.48A | Review, s.48AA | |
|---|---|---|---|---|---|
| Against whose order | the same disciplinary committee's | a State disciplinary committee's, under s.35 | the Bar Council of India's disciplinary committee's, under s.36 or s.37 | any proceeding disposed of by a State Bar Council or a committee of it | the Bar Council of India's or its other committees' |
| Who decides | the same committee | the Bar Council of India's disciplinary committee | the Supreme Court | the Bar Council of India | the same body |
| Who may move it | the committee of its own motion or otherwise | any person aggrieved, or the Advocate-General | any person aggrieved, the Attorney-General, or the Advocate-General | the Bar Council of India, calling for the record | the body of its own motion or otherwise |
| Time | 60 days from the date of the order | 60 days from communication | 60 days from communication | at any time | 60 days from the date of the order |
| Available if an appeal lies? | yes | it is the appeal | it is the appeal | NO | not applicable |
| Ground | something not considered; not a rehearing | the whole matter, findings and punishment | the whole matter, but restraint on concurrent findings of fact | legality or propriety of the disposal | as the body thinks fit |
| Can the punishment be increased? | in principle, by the same body | yes, s.37(2) | yes, s.38 | such orders as it thinks fit | not a punishment power |
| Hearing before an adverse order | natural justice | proviso to s.37(2) | proviso to s.38 | s.48A(2) | natural justice |
| Extra condition | a State committee's review needs Bar Council of India approval | none | none | only where no appeal lies | excludes the disciplinary committee |
| Delay condoned? | not provided for | yes, s.39 applies s.5 Limitation Act | yes, s.39 | no period to condone | not provided for |
| Stay | s.40(2), before the appeal time expires | s.40(1), by the Bar Council of India | s.40(1), by the Supreme Court | not provided for | not provided for |
The four questions, in order
Question one: whose order is it?
- A State disciplinary committee's, made under section 35: the appeal is section 37 to the Bar Council of India.
- The Bar Council of India's disciplinary committee's, under section 36 or section 37: the appeal is section 38 to the Supreme Court.
- Any other proceeding of a State Bar Council or its committees: think section 48A.
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