The Advocates Act 1961: Conduct, Discipline and Appeals

• (a) dismiss the complaint, or, where the proceedings were begun at the Council's instance, direct that they be filed;
• (b) reprimand the advocate;
• (c) suspend him from practice for such period as it thinks fit;
• (d) remove his name from the State roll of advocates.

35(4): an advocate suspended under clause (c) is, during the suspension, debarred from practising in any court or before any authority or person in India. A State Council's order therefore has national effect, which follows from the national right to practise in section 30.

35(5): the Advocate-General may appear before the committee in person or through an advocate. The Explanation provides that in relation to the Union territory of Delhi the Advocate-General means the Additional Solicitor-General of India.

The presence of the Advocate-General is the feature of the section that answers the charge of self-regulation. The first law officer of the State is entitled to notice and to be heard in every disciplinary proceeding, and by section 37 he may appeal against the order.

Section 36: the Bar Council of India's own jurisdiction

36(1): where the Bar Council of India has reason to believe, on a complaint or otherwise, that an advocate whose name is not entered on any State roll has been guilty of professional or other misconduct, it refers the case to its own disciplinary committee.

36(2): notwithstanding anything in the Chapter, the disciplinary committee of the Bar Council of India may, of its own motion, or on a report by a State Bar Council, or on an application by any person interested, withdraw for inquiry before itself any disciplinary proceeding pending before the disciplinary committee of any State Bar Council and dispose of it.

36(3): in doing so it follows the procedure in section 35, the references to the Advocate-General being read as references to the Attorney-General of India.

36(4): it may make any order a State disciplinary committee could make under section 35(3), and where a proceeding has been withdrawn, the State Bar Council concerned shall give effect to the order.

Section 36A allows a successor disciplinary committee to continue proceedings from the stage at which its predecessor left them, which matters because committees are constituted for terms.

Section 36B: the one-year rule

36B(1): the disciplinary committee of a State Bar Council shall dispose of a complaint under section 35 expeditiously, and in each case the proceedings shall be concluded within one year from the receipt of the complaint or the initiation of the proceedings, failing which the proceedings stand transferred to the Bar Council of India, which may dispose of them as if they had been withdrawn under section 36(2).

This is the provision that turns the Bar Council of India's supervisory role into a real one. A State Council that sits on a complaint does not delay the matter; it loses it. Section 36B was inserted by the Advocates (Amendment) Act 1973, and 36B(2) made transitional provision for proceedings then pending.

Sections 37 and 38: two appeals

Section 37(1): any person aggrieved by an order of the disciplinary committee of a State Bar Council under section 35, or the Advocate-General of the State, may, within sixty days of the communication of the order, appeal to the Bar Council of India.

37(2): the appeal is heard by the disciplinary committee of the Bar Council of India, which may pass such order as it deems fit, including an order varying the punishment; with a proviso that no order shall be varied so as to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard.

Section 38: any person aggrieved by an order of the disciplinary committee of the Bar Council of India under section 36 or section 37, or the Attorney-General of India or the Advocate-General of the State concerned, may, within sixty days, appeal to the Supreme Court, which may pass such order as it deems fit, including an order varying the punishment, subject to the same proviso about a reasonable opportunity of being heard.

That is the architecture, and it should be drawn as a ladder in any answer:

Note who may appeal. Not only the advocate: the complainant, as a person aggrieved, the Advocate-General under section 37, and the Attorney-General or the Advocate-General under section 38. A disciplinary order that is too lenient can be appealed by a law officer, which is the second answer to the charge of self-regulation.

Section 39 applies sections 5 and 12 of the Limitation Act 1963 to appeals under sections 37 and 38: section 5 allows an appeal to be admitted after the period on sufficient cause being shown, and section 12 excludes the time taken to obtain a copy of the order.

Section 40: an appeal does not operate as a stay of the order appealed against; but the disciplinary committee of the Bar Council of India, or the Supreme Court, may for sufficient cause direct a stay on terms; and where a stay is applied for before the appeal time expires, the committee whose order it is may itself grant it.

Sections 41 to 44: the consequences and the powers

Section 41: where an order reprimands or suspends an advocate, a record of the punishment is entered against his name in the State roll; and where an order removes him from practice, his name is struck off the State roll. The subsection also provides for the record where the order is passed by the Bar Council of India, and for the effect of an order in appeal on those entries.

Section 42: the powers of a disciplinary committee, which are the powers vested in a civil court under the Code of Civil Procedure in respect of:

• (a) summoning and enforcing the attendance of any person and examining him on oath;
• (b) requiring discovery and production of documents;
• (c) receiving evidence on affidavits;
• (d) requisitioning any public record or copies from any court or office;
• (e) issuing commissions for the examination of witnesses or documents; and
• (f) any other prescribed matter.

with a proviso that no such committee shall require the attendance of a presiding officer of a court except with the previous sanction of the High Court to which the court is subordinate, or of an officer of a revenue court except with the previous sanction of the State Government.

42(2): all proceedings before a disciplinary committee of a Bar Council shall be deemed to be judicial proceedings within the meaning of the sections of the Penal Code that make perjury and the fabrication of evidence punishable, and every such committee is deemed a civil court for the specified purposes of the Code of Criminal Procedure.

42(5) deals with the case where no final order of the kind mentioned in section 35(3) can be made because the committee's members are not unanimous or for other reasons, providing for the matter to go to the Bar Council of India or its Chairman as the section directs.

Section 42A applies certain provisions of section 42 to the Bar Council of India and to other committees, so that the enrolment and executive committees also have the powers they need.

Section 43: the disciplinary committee may make an order as to the costs of a proceeding, and such an order is executable as if it were an order of the Supreme Court, in the case of the Bar Council of India's committee, or of the High Court, in the case of a State Bar Council's committee.

Section 44: review. The disciplinary committee of a Bar Council may, of its own motion or otherwise, review any order passed by it, within sixty days of the date of that order, subject, in the case of a State committee, to the approval of the Bar Council of India.

Sections 45 to 49: the miscellaneous chapter

Section 45: any person who practises in any court or before any authority or person in or before whom he is not entitled to practise under this Act shall be punishable with imprisonment which may extend to six months. That is the successor of section 32 of the Legal Practitioners Act 1879, and the sanction behind sections 29, 30 and 33.

Section 45A: power to frame and publish lists of touts. Every High Court, District Judge, Sessions Judge, District Magistrate and Revenue-officer not below the rank of a Collector, each as regards his own court and the courts subordinate to it, may frame and publish lists of persons proved to his satisfaction to be touts. This section was inserted by the Advocates (Amendment) Act 2023, and it is why section 36 of the Act of 1879 could finally be repealed on 30 September 2024: the power had been re-enacted here.

Section 46 is repealed. Section 46A allows the Bar Council of India to give financial assistance to a State Bar Council which it is satisfied needs funds to perform its functions.

Section 47: reciprocity. 47(1): where any country specified by the Central Government by notification prevents citizens of India from practising the profession of law there, or subjects them to unfair discrimination, no subject of that country shall be entitled to practise the profession of law in India. 47(2): subject to that, the Bar Council of India may prescribe the conditions on which foreign qualifications in law obtained by persons other than citizens of India are recognised for admission as an advocate. Read this with the proviso to section 24(1)(a).

Section 48: indemnity. No suit or other legal proceeding lies against any Bar Council, any committee of it, or any member, for anything done in good faith in pursuance of the Act or the rules.

Section 48A: power of revision. The Bar Council of India may at any time call for the record of any proceeding under the Act disposed of by a State Bar Council or a committee of it, from which no appeal lies, to satisfy itself as to the legality or propriety of the disposal, and may pass such orders as it thinks fit; and no order prejudicially affecting a person may be passed without giving him a reasonable opportunity of being heard.

Section 48AA: review. The Bar Council of India or any of its committees, other than its disciplinary committee, may review any of its own orders within sixty days.

Section 48B: power to give directions. For the proper and efficient discharge of the functions of a State Bar Council or its committees, the Bar Council of India may, in the exercise of its powers of general supervision and control, give such directions as appear to it necessary, and the State Bar Council or committee shall comply.

Sections 48A and 48B are the teeth of section 7(1)(g). A national body with a power to revise, a power to direct, and, under section 36B, a power to take over a proceeding by lapse of time, supervises in a way that a merely advisory body could not.

Section 49: the general power of the Bar Council of India to make rules for discharging its functions, and the list is long: the conditions on which an advocate may vote at a State Bar Council election and the preparation of electoral rolls; qualifications and disqualifications for membership of a Bar Council; the manner of giving effect to the ten years' requirement in the proviso to section 3(2); the manner in which an advocate may be prevented from being entered on more than one State roll; the manner of determining seniority; the minimum qualifications for admission to a course of degree in law; and, among the further clauses, the standards of professional conduct and etiquette, the class or category of persons entitled to be enrolled, the standards of legal education and the inspection of Universities.

Section 49A gives the Central Government power to make rules for carrying out the purposes of the Act.

Section 50 and the rest: what this Act killed

Section 50 is the repealing section, and it is the answer to a favourite question about what the Advocates Act did to the old law.

50(1): on the date a State Bar Council is constituted, sections 3 to 7, sub-sections (1), (2) and (3) of section 9, section 15 and section 20 of the Indian Bar Councils Act 1926 stand repealed in that territory.

50(2): on the date Chapter III comes into force, there stand repealed:

• (a) sections 6, 7, 18 and 37 of the Legal Practitioners Act 1879, and so much of sections 8, 9, 16, 17, 19 and 41 of that Act as relate to the admission and enrolment of legal practitioners;
• (b) sections 3, 4 and 6 of the Bombay Pleaders Act 1920;
• (c) so much of section 8 of the Indian Bar Councils Act 1926 as relates to admission and enrolment; and
• (d) the provisions of the Letters Patent of any High Court, and of any other law, in so far as they relate to the admission and enrolment of legal practitioners.

Read clause (d) slowly. Clause 9 of the Letters Patent of 1865, which chapter 740 set out and which had governed the admission of advocates, vakils and attorneys since the first High Courts, is repealed by this clause, so far as it relates to admission and enrolment. The line that runs from clause 11 of the Charter of 1774 ends here.

The further subsections of section 50 repeal the rest of the 1879 Act, the 1926 Act and the corresponding State laws as the remaining Chapters come into force, and it was those staged commencements that produced the dates in chapter 750: 1 December 1961, 1 September 1963 and 15 June 2011.

Section 51: rule of construction. On and from the appointed day, references in any enactment to an advocate enrolled by a High Court, in any form of words, are construed as references to an advocate enrolled under this Act.

Section 52: saving. Nothing in the Act affects the power of the Supreme Court to make rules under article 145 for laying down the conditions on which a senior advocate may practise in that Court, and for determining the persons entitled to act or plead in it. The dual system, in the form the All-India Bar Committee left it, survives in this saving.

Chapter VII, sections 53 to 58 and their many lettered additions, is transitional. Section 53: the elected members of the first State Bar Council were elected by and from among advocates, vakils, pleaders and attorneys then entitled as of right to practise in the High Court and ordinarily practising in the territory. Section 54: their term was two years from the first meeting. Section 56: on the constitution of a new State Bar Council, the properties, assets, rights, liabilities and obligations of the corresponding Bar Council under the Act of 1926 vest in it, and all pending disciplinary proceedings stand transferred. Section 57: power to make rules pending the constitution of a Bar Council. Sections 58 and 58A onwards make special provision for the transitional period and for particular classes of advocate, including those enrolled by particular State Bar Councils, persons migrating to India, articled clerks of the Calcutta High Court, and territories such as Puducherry, Goa, Daman and Diu, and Jammu and Kashmir. Section 58B makes special provision for certain disciplinary proceedings pending at the change-over.

Section 55 is the one to remember, because it is the reason the Act of 1879 stayed alive for fifty years. Notwithstanding anything in this Act, every pleader or vakil, every mukhtar, and every revenue agent practising as such immediately before Chapter IV came into force, who does not elect to be, or is not qualified to be, enrolled as an advocate, may continue to practise as before. That is the All-India Bar Committee's recommendation enacted exactly, and it explains why sections of the Act of 1879 governing those grades could not be repealed until the last of them had gone.

Section 59: removal of difficulties. Section 60: power of the Central Government to make rules in respect of the matters the section specifies.

A worked example

A client complains to the Bar Council of Karnataka that her advocate, Prakash Rao, took her money for a decree he never executed.

What must the Council do? If it has reason to believe he has been guilty of professional or other misconduct, section 35(1) says it shall refer the case to its disciplinary committee. It has no discretion to sit on it, and it could have acted without any complaint at all, on the words "or otherwise".

Who is heard? The committee fixes a date and gives notice to Prakash Rao and to the Advocate-General of the State, and must give both an opportunity of being heard: section 35(2) and (3).

What can it order? Dismiss the complaint, reprimand, suspend him for such period as it thinks fit, or remove his name from the State roll. If it suspends him, section 35(4) debars him during the suspension from practising in any court or before any authority or person in India, not merely in Karnataka.

The committee has not finished in a year. By section 36B(1) the proceeding stands transferred to the Bar Council of India, which disposes of it as if it had been withdrawn under section 36(2).

He is suspended for two years and appeals. By section 37 he may appeal to the Bar Council of India within sixty days, and so may the complainant as a person aggrieved, and so may the Advocate-General if he thinks the punishment too light. The appeal does not stay the suspension unless a stay is granted for sufficient cause under section 40.

The Bar Council of India increases the punishment to removal. It may do so under section 37(2), but not without giving him a reasonable opportunity of being heard.

He appeals again. By section 38, to the Supreme Court within sixty days, which may pass such order as it thinks fit, including varying the punishment, subject to the same requirement of a hearing. Section 39 lets the Court excuse delay under section 5 of the Limitation Act 1963 and exclude the time taken for a copy under section 12.

And the record? By section 41, a reprimand or suspension is entered against his name on the State roll, and on removal his name is struck off.

What beginners get wrong

"The Bar Council of India hears all appeals against disciplinary orders." It hears appeals from a State disciplinary committee's orders under section 35. From its own orders, whether original under section 36 or appellate under section 37, the appeal is to the Supreme Court under section 38.

"Only the advocate can appeal." Any person aggrieved, which includes the complainant, and the Advocate-General under section 37; and under section 38 the Attorney-General of India or the Advocate-General concerned.

"The State Bar Council decides every complaint against its own advocates." Not necessarily. The Bar Council of India may withdraw a proceeding to itself under section 36(2), and under section 36B a proceeding not concluded within one year stands transferred to it automatically.

"Misconduct means professional misconduct." The words are "professional or other misconduct", which is wider, and the Act leaves the standards to the Bar Council of India's rules under section 7(1)(b).

"An appeal stays the punishment." Section 40 says the opposite: an appeal does not operate as a stay, though a stay may be granted for sufficient cause.

Limits and criticism

The standing criticism of the scheme is that a profession judging its own members will be lenient, and the Act's answers are structural: the Advocate-General must be given notice and heard in every case; any person aggrieved and the law officers may appeal; the Bar Council of India can withdraw a case, revise a decision from which no appeal lies, and give binding directions; and the Supreme Court sits at the top of the ladder with power to vary the punishment.

The criticism that has proved most substantial in practice is delay, and Parliament has legislated about it once already: section 36B, inserted in 1973, transfers a proceeding to the Bar Council of India if a State committee has not finished it in a year. That a legislature had to provide for the automatic transfer of undecided disciplinary cases is itself a comment.

And the Act's own transitional provisions, sections 55 and 58A onwards, are a reminder of what a real reform costs. Parliament could declare in section 29 that there is only one class of persons entitled to practise law; it could not make the mukhtars and revenue-agents of 1961 disappear, and did not try. It let them practise out their lives under the Act of 1879, and the last of those sections was repealed in 2011.

Quick revision

• s.35: on a complaint or otherwise, a State Bar Council with reason to believe an advocate on its roll is guilty of professional or other misconduct shall refer the case to its disciplinary committee, which, after notice to the advocate and the Advocate-General and an opportunity to be heard, may dismiss, reprimand, suspend, or remove from the roll; a suspended advocate is debarred throughout India.
• s.36: the Bar Council of India's committee deals with an advocate on no State roll, and may withdraw any State proceeding to itself; it follows s.35's procedure with the Attorney-General in place of the Advocate-General. s.36A: a successor committee continues from where its predecessor stopped.
• s.36B: a State committee must conclude within one year, or the proceeding stands transferred to the Bar Council of India.
• s.37: appeal to the Bar Council of India within sixty days, by any person aggrieved or the Advocate-General; it may vary the punishment but not to the appellant's prejudice without hearing him. s.38: appeal to the Supreme Court within sixty days, by any person aggrieved, the Attorney-General or the Advocate-General.
• s.39: ss.5 and 12 of the Limitation Act 1963 apply to those appeals. s.40: an appeal is not a stay, but a stay may be granted for sufficient cause.
• s.41: record of punishment entered on the roll; name struck off on removal. s.42: the committee has the powers of a civil court (attendance and oath, discovery, affidavits, public records, commissions), with sanction needed to summon a presiding officer or revenue officer; proceedings are judicial proceedings. s.42A: like powers for other committees. s.43: costs, executable as an order of the Supreme Court or the High Court. s.44: review within sixty days.
• s.45: practising when not entitled: imprisonment up to six months. s.45A: lists of touts, inserted in 2023. s.46A: financial assistance to a State Bar Council. s.47: reciprocity. s.48: indemnity for good faith. s.48A: revision by the Bar Council of India where no appeal lies. s.48AA: review within sixty days, not by the disciplinary committee. s.48B: directions under its power of general supervision. s.49: the Bar Council of India's general rule-making power. s.49A: Central Government rules.
• s.50: repeals, including so much of the Letters Patent of any High Court as relates to admission and enrolment. s.51: references to an advocate enrolled by a High Court now mean an advocate enrolled under this Act. s.52: saves the Supreme Court's power under article 145 over senior advocates and over who may act or plead there.
• ss.53 to 60: transitional. s.53 first elections by advocates, vakils, pleaders and attorneys; s.54 two years; s.55 existing pleaders, vakils, mukhtars and revenue agents may continue to practise; s.56 assets and pending proceedings transferred; s.57 rules pending constitution; ss.58 and 58A onwards special provisions; s.59 removal of difficulties; s.60 Central Government rules.

Test yourself

1. Set out the procedure and the orders under section 35. Where on a complaint or otherwise a State Bar Council has reason to believe that an advocate on its roll has been guilty of professional or other misconduct, it must refer the case to its disciplinary committee. The committee fixes a date and gives notice to the advocate and to the Advocate-General of the State, and after giving both an opportunity of being heard may dismiss the complaint or direct the proceedings to be filed, reprimand the advocate, suspend him from practice for such period as it thinks fit, or remove his name from the State roll. A suspended advocate is debarred during the suspension from practising in any court or before any authority or person in India.

2. Draw the appellate ladder, with the time limits. From an order of a State Bar Council's disciplinary committee under section 35, an appeal lies to the Bar Council of India under section 37 within sixty days, at the instance of any person aggrieved or of the Advocate-General. From an order of the Bar Council of India's disciplinary committee, whether made under section 36 or on appeal under section 37, an appeal lies to the Supreme Court under section 38 within sixty days, at the instance of any person aggrieved, the Attorney-General of India or the Advocate-General concerned. Sections 5 and 12 of the Limitation Act 1963 apply, and by section 40 an appeal does not itself operate as a stay.

3. In what three ways can the Bar Council of India control a State Bar Council's disciplinary work? It may withdraw a pending proceeding to its own disciplinary committee under section 36(2), of its own motion, on a State Council's report, or on an application by a person interested. Under section 36B a proceeding not concluded within one year stands transferred to it automatically. And under section 48A it may call for the record of any proceeding from which no appeal lies to satisfy itself as to the legality or propriety of the disposal, and pass such orders as it thinks fit, after hearing anybody prejudicially affected.

4. What did section 50 repeal that matters to a History of Courts paper? Sections 3 to 7, parts of section 9, section 15 and section 20 of the Indian Bar Councils Act 1926 on the constitution of a State Bar Council; sections 6, 7, 18 and 37 of the Legal Practitioners Act 1879 and so much of sections 8, 9, 16, 17, 19 and 41 of it as related to admission and enrolment; sections 3, 4 and 6 of the Bombay Pleaders Act 1920; and, most significantly for this subject, the provisions of the Letters Patent of any High Court and of any other law so far as they related to the admission and enrolment of legal practitioners, which ended the regime that clause 9 of the Letters Patent of 1865 had established.

5. Why could the older Acts not simply be swept away in 1961? Because of section 55. Every pleader or vakil, every mukhtar and every revenue agent then practising who did not elect to be, or was not qualified to be, enrolled as an advocate was allowed to go on practising as before, under the law that governed him. The sections of the Legal Practitioners Act 1879 that governed those grades therefore had to remain in force while they practised, which is why most of that Act was repealed only with effect from 15 June 2011.