Transfer of Proceedings from the State Bar Council to the Bar Council of India

In one line

A case can leave a State Bar Council in two quite different ways: because the Bar Council of India decides to take it, or because a year has gone by and the law takes it.

In exam wording: transfer of disciplinary proceedings is governed by section 36(2) of the Advocates Act 1961, under which the disciplinary committee of the Bar Council of India may withdraw a pending proceeding for inquiry before itself, and by section 36B(1), under which a proceeding not concluded within one year stands transferred to the Bar Council of India by operation of law.

The two provisions, side by side

A question that says "transfer of proceedings" without more expects both.

Section 36(2): withdrawal, and it is a choice

"Notwithstanding anything contained in this Chapter, the disciplinary committee of the Bar Council of India may, either of its own motion or on a report by any State Bar Council or on an application made to it by any person interested, withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same."

The non obstante clause. "Notwithstanding anything contained in this Chapter" overrides the ordinary allocation in section 35, under which an advocate on a State roll answers to that State's committee.

The three routes were not all there in 1961. The section originally allowed withdrawal only "of its own motion"; the words permitting a report by any State Bar Council or an application by any person interested were substituted by the amending Act of 1973 with effect from 31 January 1974. So a complainant who thinks a State committee is not proceeding properly has a route of his own.

"Withdraw for inquiry before itself... and dispose of the same." The Bar Council of India does not send the case back with directions. It takes it over and decides it, exercising under section 36(4) any order a State committee could make under section 35(3), and the State Bar Council shall give effect to that order.